People v. SmithPeople v. Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court.
Justices Pucinski and Sterba concurred in the judgment.
O R D E R
¶ 1 Held: Where defendant‘s assertion in second post-conviction petition that investigator‘s interview with victim was material such that failure to disclose interview constituted Brady violation was merely speculative, defendant did not meet cause and prejudice requirements; the denial оf leave to file a successive post-conviction petition was affirmed.
¶ 2 Defendant Michael Smith appeals the circuit court‘s order denying him leave to file a second post-conviction petition. On appeal, defendant contends he met the cause-and-prejudice
¶ 3 Following a bench trial, defendant was convicted in January 1994 of attempted first degree murder, conspiracy to commit first degree murder, solicitation of murder, aggravated battery with a firearm and aggravated kidnaping. At trial, Stephanie Powe, the victim, testified defendant was a high-ranking member of the Gangster Disciples, and she and defendant were arrеsted in Will County in May 1990 and charged with armed violence and possession of cocaine with intent to deliver. The Will County case against defendant and Powe remained pending at the time of defendant‘s trial.
¶ 4 Powe testified that on February 19, 1992, defendant was in prison and directed two men to kill her in Chicago beсause she was cooperating with Will County law enforcement officials about the pending case in that county. Powe was shot twice in the head and once in the arm. The defense strategy at trial was to question Powe‘s credibility as the State‘s main witness.
¶ 5 At sentencing, the State indicated defendant hаd two previous offenses, including a 1976 murder conviction. Based on that criminal history, defendant was sentenced to a mandatory term of life imprisonment. On direct appeal, this court affirmed. People v. Smith, 278 Ill. App. 3d 343 (1996). Defendant did not appeal to the Illinois Supreme Court.
¶ 6 On December 30, 1996, counsel for defendant filed a petition seeking relief under the Post-Conviction Hearing Act (thе Act) (
¶ 8 The State moved to dismiss the petition, asserting the petition was not timely filed аnd did not establish a deprivation of a constitutional right necessary for an evidentiary hearing. The State argued the October 1996 notification reflected an agreement in defendant‘s Will County case and did not pertain to his Cook County trial. The State further pointed out Powe testified at the Cook Cоunty trial in 1994, which was two years before the date of the Will County agreement.
¶ 9 Defendant responded his petition‘s untimeliness should be excused because he did not learn of Powe‘s cooperation with Will County officials until October 1996, and he argued Powe had an agreement with Will County at the time of his trial. On June 26, 1997, the circuit court granted the State‘s motion to dismiss defendant‘s petition, finding the petition was not timely filed and did not allege facts showing the delay was not attributable to defendant‘s own culpable negligence.
¶ 10 About a month after that dismissal, counsel for defendant filed a motion for leave to supplеment defendant‘s petition to argue his trial counsel was ineffective in failing to ask Powe at trial whether she agreed to testify against defendant in exchange for favorable treatment in the Will County case. The motion also asserted the State failed to disclose Brady material that could havе been used to impeach Powe, namely the October 1996 notification, which defendant asserted was “clear” proof of Powe‘s cooperation with the State. The motion argued “an offer of leniency must have been made” before Powe would have agreed to be added аs a witness in the
¶ 11 Defendant then appealed the dismissal of his first post-conviction petition, and this court affirmed in People v. Smith, No. 1-97-3606 (1999) (unpublished order under Supreme Court Rule 23). This court observed that defendant provided no evidence that Powe was lying or had been offered a deal in the Will County case in exchange for her testimony in the Cook County prosecution; rather, the notification established her cooperation only as to the Will County case involving her and defendant. The court held defendant‘s petition was correctly dismissed without an evidentiary hearing.
¶ 12 On May 19, 2009, defendant, acting pro se, filed a successive post-conviction petition asserting, inter alia, he was deprived of a fair trial because the State “intentionally withheld several interviews” of Powe in violation of Brady.1 The petition statеd that in 2001, defendant was interviewed by Mary Hodge, who was then an investigator for the Illinois Department of Corrections. According to the petition, Hodge told defendant that in her previous position as a federal agent, she had interviewed Powe in the hospital several weeks after the February 1992 events and that she had submitted her reports, notes and records of that interview to the prosecution in that case.
¶ 13 Defendant asserted he subsequently requested copies of those materials from Hodge but did not receive them. He stated the prosecution never disclosed to the defensе the content of Hodge‘s interview of Powe. He asserted those documents contained “exculpatory evidence as
¶ 14 On appeal, defendant contends he stated an “arguable basis of cause and prejudice” in regard to the non-disclosure of Hodge‘s interview of Powe. He contends the documentation of that interview could have been used to impeach Pоwe, as the State‘s main witness. He further contends Powe‘s statements to Hodge “might well have demonstrated that Powe was making the statements in consideration of her pending drug case.”
¶ 15 We first address the applicable standard to be applied in reviewing successive post-conviction petitions. Defendant argues, citing People v. LaPointe, 365 Ill. App. 3d 914, 923 (2006), aff‘d on other grounds, 227 Ill. 2d 39 (2007), that he need only state the “gist” of a meritorious constitutional claim of cause and prejudice. The Act provides that a defendant may file a successive post-conviction petition after obtaining leave of the circuit court and satisfying the cause and рrejudice test, under which he must demonstrate both cause for failing to raise the error in prior proceedings and actual prejudice resulting from the claimed error.
¶ 16 In addition to citing the “gist” standard from LaPointe, defendant relies on the language from People v. Hodges, 234 Ill. 2d 1 (2009), that pro se petitioners neеd only state a post-conviction claim with an “arguable basis in law or fact.” We squarely reject the applicability of Hodges, which involved an initial post-conviction filing, to this case, which involves a successive post-conviction petition. Indeed, our supreme court, in a case decidеd after LaPointe, has distinguished the “gist” standard applicable to initial post-conviction petitions from the “more exacting” cause-and-prejudice test required for successive petitions. People v. Conick, 232 Ill. 2d 132, 142 (2008).
¶ 17 As the State points out in this appeal, the supreme court‘s decision in LaPointe was silent on the appellate сourt‘s application of the “gist” standard to the cause and prejudice test. Therefore, we reject defendant‘s assertion that at this stage, the merits of his successive petition should be reviewed using the less stringent “gist” standard. In keeping with Conick and section 122-1(f) of the Act, we apply the requirements of cause and prejudice in this case. See, e.g., People v. McDonald, 405 Ill. App. 3d 131, 135 (2010) (citing supreme court decision in LaPointe and applying cause and prejudice without reduced “gist” standard).
¶ 18 Cause and prejudice are express statutory requirements to obtain leave to file a successive petition. See
¶ 19 Defendant stated in his petition that the prosecution did not disclose Hodge‘s interview of Powe, and he contends Powe‘s statements to Hodge were “arguably material” because at trial, Powe provided the only evidence connecting defendant to the crime.
¶ 20 A criminal defendant‘s rights to due process and a fair trial are violated when the prosecution fails to disclose material evidence favorable to the defense, and such claims pursuant to Brady are cognizable in post-conviction proceedings. People v. Harris, 206 Ill. 2d 1, 44 (2002). In Brady, the United States Supreme Court held that a prosecutor violates a defendant‘s
¶ 21 It is true that impeachment evidence such as pending criminal charges against a State witness is evidence that is favorable to the accused and therefore must be disclosed to the defendant during discovery. Chears, 389 Ill. App. 3d at 1029. Defendant ascribes relevance to the contents of Powe‘s interview with Hodge because Powe had pending charges in Will County at the time of defendant‘s trial, which took place in Cook County. Defendant argues it is possible the statements Powe made to Hodge revealed that her testimony against defendant in the Cook County case was offered in return for leniency.
¶ 22 More precisely, defendant argues the documentation of Powe‘s statements to Hodge in the weeks after the crime would have allowed the defensе “to explore the veracity” of Chicago police officer Terrance Gibbons’ trial testimony. Officer Gibbons testified that when he arrived at the crime scene, a gravely wounded Powe told him that defendant was responsible for her injuries. The defense was able to, and indeed did, question Officer Gibbоns about those events at trial via cross-examination.
¶ 23 Defendant also asserts Powe‘s statements to Hodge “might well have demonstrated that Powe was making the statements in consideration of her pending drug case.” As with the impact on Officer Gibbons’ testimony, defendant‘s reliance on the unknown contents of Powe‘s
¶ 24 The agreement presented in the record involves the dismissal of charges in Will County against Powe by the Will County‘s State‘s Attorney in return for her cooperation against defendant in the narcotics case in Will County. As for the effect of Powe‘s cooperation in the Will County case on her testimony in the Cook County prosecution, this court has expressly rejected the notion that a State‘s Attorney for one county can dismiss or agree not to pursue charges in another jurisdiction. People v. Turley, 174 Ill. App. 3d 621, 626 (1988); see also People v. Centanni, 164 Ill. App. 3d 480, 490-93 (1987). No evidence was presented of pending charges against Powe in Cook County that could have provided the impetus for her testimony against defendant; rather, Powe‘s testimony at the instant trial was that of a crime victim, describing life-threatening injuries she sustained at defendаnt‘s direction. Therefore, even if defendant met the cause requirement excusing his failure to present this claim in his earlier petition, he has not established he was prejudiced by the inability to present Powe‘s statements to Hodge following the instant crimes.
¶ 25 In summary, defendant was required to show not merely an “arguable basis” for cause and prejudice or the materiality of Powe‘s interview with investigator Hodge. To bring this claim in a successive post-conviction petition, defendant was required to show the failure to disclose that evidence denied him due process. Under Brady, defendant must show a reasonable probability that, had that evidence been disclosed, the result of his proceeding would have been
¶ 26 Acсordingly, the circuit court‘s denial of leave to file defendant‘s successive post-conviction petition is affirmed.
¶ 27 Affirmed.