THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DARRELL JARRETT, Defendant-Appellant.
First District (4th Division) No. 1-07-2820
Appellate Court of Illinois, First District, Fourth Division
Opinion filed March 18, 2010.
Rehearing denied April 13, 2010.
399 Ill. App. 3d 715
Anita M. Alvarez, State‘s Attorney, of Chicago (James E. Fitzgerald, Alan J. Spellberg, Miles J. Keleher, and Ugo H. Buzzi, Assistant State‘s Attorneys, of counsel), for the People.
PRESIDING JUSTICE O‘MARA FROSSARD delivered the opinion of the court:
Following a jury trial, defendant Darrell Jarrett was convicted of two counts of first degree murder and sentenced to natural life imprisonment, which was affirmed on direct appeal. People v. Jarrett, No. 1-03-2859 (2005) (unpublished order under Supreme Court Rule 23). Defendant filed a pro se postconviction petition under
Defendant and codefendant Travoy Williams were charged with the December 1999 murders of Anthony Harris and William Key. The evidence adduced at their joint trial was as follows.
On December 29, 1999, Tarimako Allen was driving in her brown van and picked up Linda McGee, defendant, and Williams on the west side of Chicago. McGee sat in the front passenger seat, defendant sat behind McGee, and Williams sat behind Allen. As they approached the intersection of West Lexington Street and South Sacramento Boulevard, Williams told Allen to go west on Lexington. They drove down the block and approached a black Chevrolet Lumina on the south side of the street, in which the victims, Harris and Key, and an unidentified third individual were sitting.
Harris and Key were in the front seats of the Lumina and the third individual sat in the backseat. They spoke to Devon Joshua, who was standing outside the car, next to the driver‘s side window. Four feet behind the Lumina, Barbara Starling was sitting in her car, a white Plymouth.
Allen had driven just past the Lumina when defendant asked Williams, “Is that the guys [sic]?” Williams told defendant he believed so, and told Allen to stop and back up. Allen testified that Williams spoke briefly with the people in and around the Lumina, and then pushed her head down toward the steering wheel. Allen stated that she heard multiple gunshots very close to her, and McGee testified that it was Williams who drew a revolver and began firing multiple times at the Lumina. McGee ducked down in the backseat of the van. Starling also testified that the first set of gunshots came from the front driver‘s side of Allen‘s van.
When the shooting began, Harris and Key escaped the Lumina through the driver‘s side window, while Joshua ducked down next to the car. Starling testified that Harris and Key ran toward a vacant lot through a gangway as defendant—whom she knew by the nickname “Meat Man“—got out of the van by a passenger side door, walked to the back of the van, and fired multiple times toward Harris and Key. Harris and Key both died of gunshot wounds.
Joshua testified that he was standing next to the Lumina talking to Harris and Key, who were both sitting inside. After he saw Williams fire several shots, Joshua took cover behind the sedan. Joshua then saw defendant, whom he knew as “Meat Man,” get out of the van. Joshua ducked down lower, but he saw defendant‘s feet walk toward the curb. Joshua then heard several more gunshots.
Allen heard several shots from the backseat of the van, followed by several more from outside the van. After the shooting, Allen saw
Chicago police officer Michael Cronin testified that defendant‘s brother-in-law allowed him into the apartment and gave him permission to search it. Officer Cronin saw defendant leave a room and arrested him, and he arrested Williams after finding him in a bedroom in the apartment. He then returned to the room from where defendant had emerged and found a plastic bag containing a .45-caliber Colt revolver, a .45-caliber Glock revolver, and a .25-caliber pistol. Subsequent forensic tests indicated that bullets recovered from the crime scene were consistent with the guns found in defendant‘s brother-in-law‘s apartment.
Defendant testified that when Allen‘s van stopped next to the Lumina, he got out of the van to see if a particular person was there, but as he walked to the back of the van, he heard gunshots. When he heard the shots, defendant believed someone was trying to shoot at him, so he pulled out his gun and returned fire into a crowd of people he saw running around him.
On May 9, 2003, the jury found defendant guilty of two counts of first degree murder and one count of aggravated discharge of a firearm. On September 4, 2003, the trial court sentenced defendant to life in prison.
On direct appeal, defendant contended that he was denied the effective assistance of counsel because his attorney failed to file a motion to suppress evidence relating to the guns found when defendant and Williams were arrested. We rejected defendant‘s contention and affirmed his conviction and sentence. People v. Jarrett, No. 1-03-2859 (2005) (unpublished order under Supreme Court Rule 23), ap-peal denied, 216 Ill. 2d 710 (2005). On March 14, 2006, defendant filed a pro se postconviction petition claiming, inter alia, ineffective assistance of trial and appellate counsel based upon alleged improper jury instructions on accountability. The trial court summarily dismissed the petition, and we affirmed. People v. Jarrett, No. 1-06-2766 (2008) (unpublished order under Supreme Court Rule 23), ap-peal denied, 233 Ill. 2d 579 (2009).
On June 11, 2007, defendant filed the instant successive pro se postconviction petition alleging: (1) actual innocence based upon newly discovered evidence, (2) ineffective assistance of trial and appellate counsel, and (3) a Brady violation. In his actual innocence claim, defendant included the affidavits of Ashake Banks and Charles Ginns. Banks‘s affidavit indicated that Ginns told her that, when the shoot-
Defendant also claimed that his trial counsel was ineffective, inter alia, for failing to investigate witnesses that could support his self-defense theory and for instructing him not to testify regarding an individual pointing a gun at him.
Defendant‘s claim of ineffective assistance of appellate counsel—which he does not pursue on appeal—alleged that appellate counsel failed to brief and argue ineffective assistance of trial counsel.
Finally, defendant alleged a Brady violation on the part of police based upon Officer Cronin‘s alleged refusal to give defendant the name of a “favorable witness” and the name of the person who aimed a gun at defendant because defendant would not provide information regarding drug activity in the Lawndale neighborhood of Chicago.
On September 5, 2007, in an eight-page written order, the trial court summarily dismissed defendant‘s successive petition, finding the petition entirely frivolous. In a separate order, the trial court imposed filing fees and court costs totaling $359, including a $294 fee for filing a postconviction petition and $50 in State‘s Attorney‘s fees.
Defendant now appeals the summary dismissal of his successive pro se postconviction petition and the imposition of certain fees and costs. Defendant contends that his petition stated the gist of a constitutional claim of actual innocence, ineffective assistance of trial counsel, and a Brady violation. Defendant further contends that the circuit court‘s imposition of certain fees violated his right to equal protection and was otherwise erroneous. We will address each argument in turn.
ANALYSIS
I. Defendant‘s Failure to Seek Leave to File a Successive Petition
The State initially argues that the trial court properly dismissed the successive petition because defendant failed to first obtain leave to file his petition under
In a noncapital case, the Act creates a three-stage procedure for postconviction relief. People v. Boclair, 202 Ill. 2d 89, 99 (2002). At stage one, the trial court determines whether the petition is frivolous or patently without merit.
An action for postconviction relief is a collateral proceeding rather than an appeal from the underlying judgment. People v. Williams, 186 Ill. 2d 55, 62 (1999). Principles of res judicata and waiver will limit the range of issues available to a postconviction petitioner ” ‘to constitutional matters which have not been, and could not have been, previously adjudicated.’ ” People v. Scott, 194 Ill. 2d 268, 273-74 (2000), quoting People v. Winsett, 153 Ill. 2d 335, 346 (1992). Accordingly, rulings on issues that were previously raised at trial or on direct appeal are res judicata, and issues that could have been raised in the earlier proceedings, but were not, will ordinarily be deemed waived. Scott, 194 Ill. 2d at 274;
The doctrines of res judicata and waiver will be relaxed, inter alia, where fundamental fairness so requires. People v. Williams, 209 Ill. 2d 227, 233 (2004). Moreover,
The State‘s initial response is that the trial court‘s dismissal was proper because defendant failed to seek leave to file a successive petition prior to submitting it to the trial court. The State further argues that, because “leave to file was never expressly granted, the successive post-conviction petition was never filed, and never made it to the first stage of proceedings.” The State then concludes, quoting People v. DeBerry, 372 Ill. App. 3d 1056, 1060 (2007), that this court has ” ‘nothing further to discuss or review’ ” because defendant‘s failure to obtain leave to file a successive petition ” ‘trumps anything that defendant‘s petition may contain.’ ”
Recently, however, the supreme court considered this issue in People v. Tidwell, 236 Ill. 2d 150 (2010). There, as here, the defendant filed a successive postconviction petition, but neither included a motion seeking leave nor expressly requested leave to file it. Tidwell, 236 Ill. 2d at 154. Nonetheless, the trial court issued a six-page order denying the petition and concluding that the defendant had failed to meet the cause-and-prejudice test. Id. The appellate court, however, found that the successive petition was not considered filed because the defendant failed to expressly seek leave of court prior to filing the successive petition. Tidwell, 236 Ill. 2d at 155. For that reason, the appellate court declined consideration of the defendant‘s allegations on appeal. Id. The supreme court, however, vacated the appellate court‘s judgment and remanded the cause to that court for review of the merits of the trial court‘s ruling regarding the cause-and-prejudice test. Tidwell, 236 Ill. 2d at 160. The supreme court specifically explained:
“[A] successive postconviction petition is not considered ‘filed’ for purposes of section 122-1(f), and further proceedings will not follow, until leave is granted, a determination dependent upon a defendant‘s satisfaction of the cause-and-prejudice test. There is also a commonsense acknowledgment that a defendant who submits a successive postconviction petition wants to ‘file’ it and institute proceedings thereon. However, it is still defendant‘s burden to obtain leave, and he must submit enough in the way of documentation to allow a circuit court to make that determination. Certainly, no separate motion seeking leave is mandated by section 122-1(f) in its current form, nor, as we have demonstrated, is an explicit
request even required if the circuit court sees fit to consider the matter and rule of its own accord. We find that circuit courts have that authority under the statute.” (Emphasis in original.) Tidwell, 236 Ill. 2d at 161.
The discussion above indicates that, ideally, before or at the time of filing a successive petition, a defendant would ask the trial court for leave to file a successive petition, and the trial court would set the matter for a ruling on whether it should grant the defendant leave to file the successive petition. After reviewing the documentation that the defendant submits, the trial court would then determine whether the defendant has satisfied the requirements under
In this case, as in Tidwell, defendant did not file a motion seeking leave to file a successive petition and did not expressly ask for leave to file it. Also similar to Tidwell, the trial court in this case issued an eight-page order that considered, but ultimately rejected, defendant‘s allegations, concluding that defendant failed to meet the cause-and-prejudice test for filing a successive petition and that his actual innocence and Brady claims would not have changed the outcome of his trial, i.e., he suffered no prejudice. As previously noted by the court in Tidwell, “Certainly, no separate motion seeking leave is mandated by section 122-1(f) in its current form, nor, as we have demonstrated, is an explicit request even required if the circuit court sees fit to consider the matter and rule of its own accord. We find that circuit courts have that authority under the statute.” (Emphasis in original.) Tidwell, 236 Ill. 2d at 161. Keeping these principles in mind, we disagree with the State‘s argument that the trial court was required to expressly grant leave to file a successive postconviction petition prior to evaluating it according to
Finally, we note that a proposed 2007 House bill would amend
II. Defendant‘s Claim of Actual Innocence
Defendant contends that he presented the gist of a constitutional claim of actual innocence based upon newly discovered evidence. Specifically, defendant argues that Ginns‘s and Banks‘s affidavits establish that a third individual, Michael Blue, aimed a gun at defendant, thus corroborating his self-defense theory. The State responds that defendant‘s claim was properly dismissed because defendant forfeited the claim, failed to meet the cause-and-prejudice test, and failed to show that the proposed evidence would have exonerated him.
Where, as here, a defendant in a noncapital case alleges a claim of actual innocence in a successive postconviction petition, “the defendant is excused from showing cause and prejudice.” People v. Ortiz, 235 Ill. 2d 319, 330 (2009); see also Pitsonbarger, 205 Ill. 2d at 459. To obtain relief under a claim of actual innocence, however, the evidence adduced by the defendant must first be “newly discovered,” i.e., it must be evidence that was not available at the defendant‘s original trial and that the defendant could not have discovered sooner through diligence. People v. Morgan, 212 Ill. 2d 148, 154 (2004). It is well established that evidence is not “newly discovered” when it presents facts already known to a defendant at or prior to trial, even if the source of these facts may have been unknown, unavailable, or uncooperative. See People v. Collier, 387 Ill. App. 3d 630, 637 (2008), citing People v. Moleterno, 254 Ill. App. 3d 615, 625 (1993). In addition, the evidence must also be material, noncumulative, and of such
In this case, defendant states in his successive petition that he was innocent of first degree murder because he knew a person was aiming a gun at him “as shots were being fired in close proximity to him but where he could not see who was doing the shooting and therefore acted to defend himself.” Defendant also claims in his petition that on September 17, 2003, Officer Cronin visited defendant in prison and told defendant that he knew of a witness who saw someone aim a gun at defendant prior to defendant drawing his own gun. In the petition, defendant, however, replied that he knew the name of the person shooting at him and told his trial attorney at the time of his arrest. Defendant readily admits in his petition that he knew prior to trial that Michael Blue allegedly aimed a gun at him while shots were being fired; this evidence was therefore not “newly discovered.” See Morgan, 212 Ill. 2d at 154 (holding that evidence is not newly discovered if it was available at the defendant‘s original trial). Therefore, defendant knew that Blue had supposedly aimed a gun at him prior to his trial, but nevertheless said nothing on direct appeal, or even in his first postconviction petition. In addition, the fact that he may not have known the names of alleged witnesses to Blue‘s aiming of a gun at defendant does not support defendant‘s assertion that his proffered evidence is newly discovered. As noted above, if a defendant knew of certain facts at or prior to trial, those facts are not transformed into “newly discovered evidence” simply because the source of these facts may have been unknown, unavailable, or uncooperative. See Collier, 387 Ill. App. 3d at 637, citing Moleterno, 254 Ill. App. 3d at 625.
In addition, we cannot say that the proffered evidence would probably have changed the result on retrial. Defendant claims that he acted in self-defense. One of the required elements of self-defense that the State must negate is that the defendant was not the initial aggressor. See
III. Defendant‘s Ineffective Assistance of Counsel Claims
Defendant also contends that the trial court erred in dismissing his claim of ineffective assistance of counsel, arguing that he stated the gist of a constitutional claim based upon his assertions that his counsel failed to investigate his self-defense claim and “deprived [defendant] of his right to testify” by advising him not to testify that Michael Blue aimed a gun at him.
We note at the outset, however, that defendant could have raised this allegation in his direct appeal or in his pro se initial postconviction petition, but did not. Instead, defendant claimed on direct appeal that he received ineffective assistance of counsel based upon trial counsel‘s failure to file a motion to suppress guns that were found in the apartment where defendant was arrested. Three years after his conviction, defendant filed his initial pro se petition alleging seven issues: a constitutional challenge to his sentence, two challenges to his indictment, a jury instruction challenge, ineffective assistance of trial counsel relating to the jury instruction issue, ineffective assistance of appellate counsel for failure to raise trial counsel‘s ineffective assistance regarding the jury instruction issue, and a claim that the State intentionally withheld defendant‘s blood sample while he was in custody. Nowhere in his direct appeal or in his initial petition does he allege that his trial counsel was ineffective because of a failure to investigate his self-defense claim or because trial counsel advised him not to testify that Michael Blue aimed a gun at him. As such, his claim is forfeited. See People v. Anderson, 375 Ill. App. 3d 990, 1000-01 (2007) (holding that the defendant‘s successive claim of ineffective as-
Moreover, regarding his claim of ineffective assistance of counsel, defendant has failed to meet the cause-and-prejudice test for filing a successive claim. First, even if the jury had heard Ginns‘s testimony, the evidence would nevertheless show that defendant and codefendant were the initial aggressors and that defendant did not act in self-defense. Counsel does not render ineffective assistance for failure to investigate witnesses whose proposed testimony would not support the defendant‘s self-defense theory, namely, that the defendant was not the initial aggressor. See People v. Hodges, 234 Ill. 2d 1, 20 (2009). Defendant therefore cannot show prejudice because he cannot show that this alleged error “so infected” the trial that the resulting conviction or sentence violated due process. Pitsonbarger, 205 Ill. 2d at 464.
In addition, defendant has failed to establish “cause.” Defendant merely asserts he was diligent but does not cite any objective factor external to the defense that impeded efforts to raise this ineffective assistance claim in an earlier proceeding—either his direct appeal or in his initial pro se petition. Defendant admits in his successive petition that he knew at the time of his arrest that it was Michael Blue who aimed a gun at him, which occurred prior to Officer Cronin allegedly visiting defendant in prison on September 17, 2003. Nonetheless, defendant never raised this matter at any time, instead waiting more than six years to allege this in a successive petition.
Defendant argues that he could not have raised this claim on direct appeal because the record was not “sufficiently developed,” citing People v. Kunze, 193 Ill. App. 3d 708, 726 (1990). Defendant‘s reliance on Kunze is misplaced. In Kunze, the defendant claimed his trial counsel was ineffective for failure to investigate his prior criminal history and for consequently advising him to testify. Kunze, 193 Ill. App. 3d at 724. The defendant then argued that he was deprived of his right to make an informed decision. Kunze, 193 Ill. App. 3d at 724-25. We stated:
“[T]he alleged incompetence of [defendant‘s] trial attorney depends upon whether [defendant] would have testified, even if he had known in advance that the State would use his prior convictions to impeach him. No evidence in the record before us addresses this question, nor is there any evidence regarding consultations between [defendant] and his trial counsel or between [defendant‘s] counsel and counsel for the other defendants.” Kunze, 193 Ill. App. 3d at 725.
In the instant case, defendant‘s allegation centers on his assertions that his counsel failed to investigate his self-defense claim and deprived him of his right to testify by advising him not to testify that Michael Blue aimed a gun at him. We see nothing that would have prevented defendant from properly raising this matter on appeal. Moreover, he cites no objective factor external to the defense that prevented him from raising this matter in his initial postconviction petition. He only makes the general assertion that he was diligent, which is insufficient to establish cause. Accordingly, defendant‘s failure to meet both the cause and prejudice test results in forfeiture of this claim. See Pitsonbarger, 205 Ill. 2d at 459-60.
We further note that, even if we were to consider defendant‘s forfeited claim, we would be compelled to reject it. Defendant must meet both prongs of the Strickland test, i.e., he must show that trial counsel‘s actions were objectively unreasonable and that, but for trial counsel‘s errors, there is a reasonable probability that the result of his trial would have been different. See People v. Klepper, 234 Ill. 2d 337, 350 (2009).
In the instant case, defendant cannot show prejudice because the proffered evidence would not have supported his self-defense claim and consequently would not have changed the result of defendant‘s trial. Therefore, defendant cannot meet the second prong of the Strickland test. For the reasons previously discussed, defendant‘s forfeited claim of ineffective assistance of trial counsel is unavailing because he failed to satisfy both prongs of the Strickland test.
IV. Defendant‘s Brady Claim
Defendant next contends that the trial court erred in denying his claim that the State failed to disclose exculpatory evidence—specifically, the name of Charles Ginns, who saw Michael Blue aim a gun at defendant—in violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
Under Brady, the State must disclose evidence favorable to the accused and ” ‘material either to guilt or to punishment.’ ” People v. Harris, 206 Ill. 2d 293, 311 (2002), quoting Brady, 373 U.S. at 87, 10 L. Ed. 2d at 218, 83 S. Ct. at 1196-97. This rule includes evidence known to police investigators, but not to the prosecutor. People v. Beaman, 229 Ill. 2d 56, 73 (2008), citing Kyles v. Whitley, 514 U.S. 419, 438, 131 L. Ed. 2d 490, 508, 115 S. Ct. 1555, 1568 (1995). A Brady
Defendant, however, has forfeited this claim by failing to raise it in his initial postconviction petition. See Anderson, 375 Ill. App. 3d at 1011-12; see also Pitsonbarger, 205 Ill. 2d at 458;
V. Defendant‘s Challenge to Certain Fees and Costs
Defendant next contends that the trial court erred in imposing a $50 State‘s Attorney fee, arguing, inter alia, that the successive petition was dismissed at the first stage, which does not allow for any involvement by the State‘s Attorney‘s office. We agree. Accordingly, we direct the clerk of the circuit court of Cook County to vacate that portion of the trial court‘s September 5, 2007, order imposing a $50 State‘s Attorney fee.
Rinaldi concerned a New Jersey statute providing that only indigent prisoners receiving a free transcript for their appeal would have to reimburse the state if their appeal was unsuccessful. Rinaldi, 384 U.S. at 307, 16 L. Ed. 2d at 579, 86 S. Ct. at 1498-99. The Rinaldi court found no legislative history that indicated what the statute at issue was to achieve. Rinaldi, 384 U.S. at 309, 16 L. Ed. 2d at 580, 86 S. Ct. at 1500. Unlike Rinaldi, the instant case involves the imposition of court costs and filing fees for frivolous petitions, and the legislative history of
In the alternative, defendant argues that his filing fee should be reduced to $190 to reflect the maximum allowable fee for filing a civil pleading. The State does not address this argument in its brief. This petition was filed in the circuit court of Cook County. For counties like Cook County having a population of 3 million or more, pursuant to
CONCLUSION
Accordingly, we affirm the judgment of the circuit court, but vacate that portion of the trial court‘s September 5, 2007, order imposing $50 in State‘s Attorney‘s fees and direct the clerk of the circuit court of Cook County to modify that order to reflect a $90 fee for filing a petition for postconviction relief.
Affirmed as modified.
GALLAGHER and NEVILLE, JJ., concur.