Opinion
3-11-0808
08-30-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JACKIE L. WILLIAMS, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court
of the 10th Judicial Circuit,
Peoria County, Illinois,
Appeal No. 3-11-0808
Circuit No. 07-CF-111
Honorable
Stephen Kouri,
Judge, Presiding.
JUSTICE delivered the judgment of the court.
Justices McDade and O'Brien concurred in the judgment.
ORDER
¶ 1 Held: Trial court erred in (1) dismissing defendant's postconviction petition at first stage of postconviction proceedings where defendant alleged that his appellate counsel was ineffective for failing to challenge the admissibility of statements defendant made to police after he requested counsel, and (2) requiring defendant to submit DNA sample and pay analysis fee where his DNA was already in DNA database. ¶ 2 Defendant was charged with first degree murder with attempted armed robbery as the underlying felony. Before trial, defendant filed a motion to suppress statements he made to police. The trial court denied the motion, and the case proceeded to trial. The jury found defendant guilty of murder and attempted armed robbery. The trial court sentenced defendant to life imprisonment and ordered him to submit a DNA sample. Defendant appealed, arguing ineffective assistance of counsel. We affirmed. See People v. Williams, No. 3-08-0537 (2010) (unpublished order under Supreme Court Rule 23). Defendant filed a postconviction petition alleging that his appellate counsel was ineffective for failing to appeal the trial court's ruling on his motion to suppress. The trial court summarily dismissed defendant's postconviction petition. We reverse and remand the trial court's summary dismissal of defendant's postconviction petition and vacate the portion of the trial court's order requiring defendant to provide a DNA sample. ¶ 3 On January 27, 2007, officers from the Peoria police department arrested defendant in connection with the murder of David McCreary. The officers took defendant to the police station and placed him in an interrogation room. After sitting in the room alone for several hours, two detectives, Keith McDaniel and Shannon Walden, entered the room. They read defendant his Miranda rights and then began questioning defendant. Defendant initially denied ever going to McCreary's house. Approximately 20 minutes into the interrogation, defendant stated, "I'm going to need me a lawyer." The detectives then proceeded to leave the room. As Walden was leaving, defendant asked the difference between first and second degree murder. Walden responded, "We can't talk." ¶ 4 Approximately 10 minutes later, McDaniel and Walden reentered the interrogation room. McDaniel brought in a gun in an evidence bag and placed it on the table. Defendant asked, "Where'd you get that from?" Walden responded "We can't talk to you about that." Walden then asked defendant his name, height, weight and birth date. After providing his birth date, defendant said, "I want to talk about it now. I want to talk." McDaniel gave defendant his Miranda rights again. Defendant provided a written statement indicating that he had previously asked for an attorney but was waiving that right and wanted to talk to the detectives without one. ¶ 5 Defendant then admitted that he went to McCreary's house to rob him on January 25, 2007. He wore a bandana covering his face and black clothing. When McCreary opened the front door, defendant entered McCreary's house pointing a gun, saying "Give me your weed, your money." McCreary then "charged" at defendant. The two were involved in an altercation, and defendant's gun went off twice. Defendant said that he had no intention of killing McCreary but just wanted to rob him so he could help his girlfriend pay her rent. ¶ 6 Defendant was charged with one count of attempted armed robbery (720 ILCS 5/8-4(a) (West 2006); 720 ILCS 5/18-2(a)(2) (West 2006)) and three counts of first degree murder for killing McCreary while attempting to commit armed robbery (720 ILCS 5/9-1(a)(3) (West 2006)). Defendant filed a motion to suppress the statements he made to McDaniel and Walden on January 27, 2007, arguing that he made those statements after requesting counsel. Following a hearing, the trial court denied the motion, finding that McDaniel and Walden "did not use [the booking questions] as a pretext to try to get [defendant] to talk about the case." ¶ 7 At trial, Carolyn Crosswhite testified that she went to McCreary's house with her son and boyfriend, Frankie Ratliffe, in the afternoon of January 25, 2007. That night, McCreary received a telephone call, and approximately 15 to 20 minutes later, she heard a knock on the door. McCreary answered the door, and a black male wearing a "bandana from the nose down" and black clothing "came in just half way into the door and the first shot rang off." She did not hear the man say anything before shooting. She said McCreary was standing in front of the man to "hold him back from getting further inside the house." After hearing the first gunshot, she and McCreary's daughter ran and hid in a closet in a bedroom at the back of the house. ¶ 8 Frankie Ratliffe testified that he went to McCreary's house with Crosswhite on January 25, 2007. At approximately 8:00 p.m., there was a knock at the door. When McCreary answered, Ratliffe saw two black males with bandanas across their faces and hoodies on their heads. He also saw the "silhouette" of a third person near the door, but he could not make out if it was a man or woman. One of the men Ratliffe saw had a gun and said "break yourself," which Ratliffe understood from watching television to mean, "It's a holdup" or a "stick-up." Ratliffe then observed McCreary "tussling" with the men. Ratliffe grabbed his son and McCreary's daughter and went to the back bedroom where Crosswhite was. Ratliffe heard two or three gunshots. When Ratliffe came out from the bedroom, McCreary said he had been shot and fell. ¶ 9 Ratliffe admitted that he had smoked marijuana at McCreary's house 20 to 30 minutes before the shooting. According to Crosswhite, Ratliffe was smoking marijuana "off and on" for several hours prior to the shooting. ¶ 10 Kitissue Warfield testified that she is currently serving a 12-year prison sentence for attempted armed robbery in connection with the events on January 25, 2007. She admitted that she reached a plea agreement with the State that required her to testify against defendant, her former boyfriend. Warfield testified that she knew McCreary because he was her marijuana supplier. Warfield contacted McCreary, at defendant's request, on January 22 or 23, 2007, and told him that she wanted to buy about two pounds of marijuana for $2,000. At 1:00 p.m. on January 25, 2007, she contacted McCreary, again at defendant's request, and told him she planned to pick up the marijuana that evening. ¶ 11 Between approximately 6:00 to 7:00 p.m., defendant came to her house in a car driven by Gabe Shelton. Defendant was wearing "[a]ll black" and gloves. Warfield got in the car to "go pick up the weed." She did not have the money to pay for the marijuana and did not know if defendant could pay for it. ¶ 12 After leaving Warfield's house, Shelton drove to Harrison Homes to pick up Demarco Spencer. Spencer got in Shelton's car and gave defendant a gun. Defendant then told Warfield to call McCreary and tell him that she was on the way to his house. When they arrived at McCreary's house, Warfield, defendant and Spencer got out of Shelton's car. Defendant pulled a scarf over his face. ¶ 13 Warfield knocked on McCreary's door. While they waited for an answer, Spencer pulled his shirt up, covering his face from the nose down. Warfield opened the door and found McCreary standing in front of her. Spencer said, "Move, bitch," and knocked her down. She saw defendant and McCreary fighting and then heard two gunshots. She got up and ran toward her house. As she was running, she met defendant and Shelton. She got in Shelton's car and realized she did not have her cell phone. Police found Warfield's cell phone in McCreary's house. ¶ 14 Warfield testified that she believed that she, defendant and Spencer were going to McCreary's house to buy marijuana. She never discussed robbing McCreary with defendant. No one discussed a robbery with her on January 25, 2007, or any time prior to that. ¶ 15 Two days after McCreary's murder, police recovered a gun in a garbage can in an alley not far from McCreary's house. Officer Scott Bowers of the Peoria police department examined the gun and determined that it had been fired three times. He checked the gun for fingerprints and found none. Linda Yborra of the Illinois State Police Forensic Science Laboratory tested the gun and determined that two bullets recovered from walls in McCreary's home were fired by the gun. ¶ 16 Defendant testified that in January 2007, he intended to purchase marijuana from McCreary and sell it for profit to pay Warfield's rent after she was served with an eviction notice. Warfield knew McCreary and made arrangements to purchase three pounds of marijuana from him for $2000. Defendant did not have enough money to buy the marijuana, so Shelton suggested that they rob McCreary. Defendant said he wanted to think about it. Defendant obtained a gun from Shelton "for protection" because McCreary was a member of a rival gang. Defendant told Shelton that he would not rob McCreary if children or other people were in McCreary's home. ¶ 17 When defendant approached McCreary's house, he pulled a bandana up over his face and Shelton put on a mask "just in case there was going to be a robbery." Warfield knocked on the door, and a woman responded, "Come in." Defendant also heard children inside and told Shelton that he was not going to rob McCreary. At that point, Shelton removed his mask, and defendant pulled the bandana down off his face. ¶ 18 Warfield opened the door and went into McCreary's house first. Defendant followed behind her. McCreary was standing approximately eight feet in front of defendant and asked Warfield if she brought rival gang members to his house. Defendant and McCreary verbally argued, and McCreary charged at him. Defendant stepped back, pulled out a gun and told McCreary, "Hold up." McCreary grabbed defendant and tried to grab his gun, so defendant fired "a warning shot." McCreary continued to wrestle with defendant, and defendant fired two shots at McCreary. McCreary fell to the ground, and defendant ran from the house. ¶ 19 Defendant admitted that he made a statement to police on January 27, 2007, but said he did not tell the police the entire story. He did not tell them that although he initially intended to rob McCreary, when he heard a woman's voice, he decided to buy marijuana from McCreary instead. ¶ 20 The jury found defendant guilty of attempted armed robbery and first degree murder predicated on attempted armed robbery. The court sentenced defendant to life imprisonment. The court ordered defendant to submit a sample of his DNA to the Illinois State Police and pay a fee to have it analyzed. Defendant filed a motion for a new trial and a motion to reconsider his sentence. The trial court denied the motions. ¶ 21 Defendant appealed, arguing that his trial counsel was ineffective. We affirmed defendant's conviction. See People v. Williams, No. 3-08-0537 (2010) (unpublished order under Supreme Court Rule 23). Defendant then filed a postconviction petition, alleging ineffective assistance of appellate counsel for failing to argue that the trial court should have granted his motion to suppress. Attached to the petition was an affidavit from defendant that was not notarized. The trial court summarily dismissed defendant's postconviction petition.
¶ 22 I
¶ 23 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) provides a method by which persons under criminal sentences can assert that their convictions resulted from a substantial denial of their rights under the Constitution of the United States or of the State of Illinois or both. 725 ILCS 5/122-1(a)(1) (West 2010). At the first stage of postconviction proceedings, the trial court must independently review the petition, taking the allegations as true and determine whether the petition is "frivolous or patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010). A petition may be summarily dismissed as frivolous or patently without merit only if the petition has no arguable basis either in law or in fact. People v. Tate, 2012 IL 112214, ¶ 9. "A petition which lacks an arguable basis either in law or in fact is one which is based on an indisputably meritless legal theory or a fanciful factual allegation." People v. Hodges, 234 Ill. 2d 1, 16 (2009). ¶ 24 The first stage in the proceeding allows the trial court "to act strictly in an administrative capacity by screening out those petitions which are without legal substance or are obviously without merit." People v. Rivera, 198 Ill. 2d 364, 373 (2001). Because most first-stage postconviction petitions are drafted by defendants with little legal knowledge or training, "the threshold for survival [i]s low." Tate, 2012 IL 112214, ¶ 9. We review the summary dismissal of a postconviction petition de novo. Id. at ¶ 10.
¶ 25 A
¶ 26 The State first argues that the trial court properly dismissed defendant's postconviction petition at the first stage because defendant's verification affidavit was not notarized. ¶ 27 A postconviction proceeding "shall be commenced by filing with the clerk of the court in which the conviction took place a petition (together with a copy thereof) verified by affidavit." 725 ILCS 5/122-1(b) (West 2010). The mere fact that a verification affidavit is not notarized does not justify dismissal at the first stage of postconviction proceedings. People v. Cage, 2013 IL App (2d) 111264, ¶ 14; People v. Terry, 2012 IL App (4th) 100205, ¶ 23; People v. Henderson, 2011 IL App (1st) 090923, ¶ 34. ¶ 28 "[T]he purpose of the Act and section 122-2.1 would be hindered by preventing petitions which are neither frivolous nor patently without merit from proceeding to the second stage due to the technicality [of not having a notarized affidavit.]" Henderson, 2011 IL App (1st) 090923, ¶ 35. A lack of notarization is a more appropriate objection at the second stage. Id. ¶ 29 Here, defendant's postconviction petition was filed together with a verification affidavit from defendant that was not notarized. Defendant's failure to have his affidavit notarized was not grounds for the trial court to summarily dismiss his postconviction petition at the first stage of postconviction proceedings. See Cage, 2013 IL App (2d) 111264, ¶ 14; Terry, 2012 IL App (4th) 100205, ¶ 23; Henderson, 2011 IL App (1st) 090923, ¶ 34.
¶ 30 B
¶ 31 The State alternatively argues that the trial court properly dismissed defendant's petition because defendant failed to allege the gist of a claim of ineffective assistance of appellate counsel. ¶ 32 Ineffective assistance of appellate counsel exists where counsel fails to argue a patently meritorious issue on appeal. People v. Harre, 263 Ill. App. 3d 447, 451 (1994). When a defendant claims ineffective assistance of appellate counsel in a postconviction petition, the petition should not be summarily dismissed if (I) it is arguable that counsel's failure to raise an issue fell below an objective standard of reasonableness, and (ii) it is arguable that, but for this failure, there was a reasonable probability that petitioner's conviction would have been reversed. See Tate, 2012 IL 112214, ¶ 19; Harre, 263 Ill. App. 3d at 451. ¶ 33 Under the Fifth and Fourteenth Amendments to the United States Constitution, an accused has a right to have counsel present during custodial interrogations. Edwards v. Arizona, 451 U.S. 477, 481-82 (1981). Once a defendant asserts his right to counsel during a custodial interrogation, "the interrogation must cease until an attorney is present unless the accused himself initiates further communication, exchanges or conversations with the police." Id. at 484-85. The Edwards rule is designed to prevent the police from badgering a defendant into waiving his previous assertion of his right to counsel. People v. Crotty, 394 Ill. App. 3d 651, 656 (2009). ¶ 34 The first prong of the Edwards rule requires a court to determine whether the accused, rather than the police, initiated further discussion about the investigation after invoking his right to counsel. Id. A discussion will be deemed initiated by a defendant when it follows from the defendant making a statement that evinces a willingness and a desire for a generalized discussion about the investigation. People v. Miller, 393 Ill. App. 3d 1060, 1065 (2009). If there has been some kind of police conduct preceding and allegedly contributing to the defendant's supposed "initiation," the question becomes how that conduct is to be judged in determining where the impetus lies. Id. Police conduct does not "initiate" further conversation about an investigation unless it actually amounts to interrogation or its functional equivalent. Id. at 1069. ¶ 35 Interrogation "refers not only to express questioning, but also to any words or actions on the part of the police (other than those normally attendant to arrest and custody) that the police should know are reasonably likely to elicit an incriminating response from the subject." Rhode Island v. Innis, 446 U.S. 291, 301 (1980). Routine booking questions, such as height, weight, date of birth and age do not constitute interrogation. Pennsylvania v. Muniz, 496 U.S. 582, 601 (1990). ¶ 36 Here, defendant made an unequivocal request for counsel during his custodial interrogation when he stated, "I'm going to need me a lawyer." Walden and McDaniel immediately stopped asking defendant questions and left the room. Several minutes later, they returned to the room with a gun in an evidence bag. McDaniel placed the gun on the table, and defendant asked where the gun came from. The detectives refused to answer the question and began asking defendant routine booking questions. Defendant answered several questions and then announced, "I want to talk about it now. I want to talk." After receiving new Miranda warnings and providing a written statement that he wanted to talk without an attorney present, defendant admitted that he went to McCreary's house to rob him and ended up shooting and killing him. ¶ 37 Because defendant made his inculpatory statements after his unequivocal request for counsel, we must examine who initiated the discussion after defendant's request. If defendant initiated the discussion, then his statements are admissible. Crotty, 394 Ill. App. 3d at 656. If it was the detectives who initiated the discussion, defendant's statements are inadmissible and should have been suppressed. Id. ¶ 38 We find that the detectives' act of bringing the gun into the interrogation room after defendant requested counsel to be a re-initiation of their interrogation with defendant. The detectives knew that the presence of the gun was "reasonably likely to elicit an incriminating response" from the defendant. See Innis, 446 U.S. at 301. There was no reason, other than to elicit an incriminating response from defendant, for the detectives to bring the gun into the room. Because it was the detectives, not defendant, who initiated further conversation about the investigation after defendant requested counsel, defendant's statements were inadmissible and should have been suppressed. See Crotty, 394 Ill. App. 3d at 656. ¶ 39 Since defendant's confession was the product of an unlawful interrogation, the trial court's denial of defendant's motion to suppress was a patently meritorious issue that defendant's appellate counsel should have raised on appeal. Appellate counsel's failure to appeal the trial court's ruling on defendant's motion to suppress was arguably unreasonable. Defendant's postconviction petition satisfies the first part of the two-prong standard that must be met for a postconviction petition alleging ineffective assistance of appellate counsel to survive summary dismissal. ¶ 40 Now, we must determine if defendant has satisfied the second prong of the standard: if it is arguable that, but for appellate counsel's failure, there was a reasonable probability that petitioner's conviction would have been reversed. See Tate, 2012 IL 112214, ¶ 19; Harre, 263 Ill. App. 3d at 451. When an appellate court determines that inadmissible evidence was admitted at trial, it must reverse the defendant's conviction unless the improperly admitted evidence was harmless beyond a reasonable doubt. People v. R.C., 108 Ill. 2d 349, 355 (1985). An error is harmless if the reviewing court is satisfied beyond a reasonable doubt that the error did not contribute to the defendant's conviction. People v. St. Pierre, 122 Ill. 2d 95, 113-14 (1988). In determining whether an error is harmless beyond a reasonable doubt, "[t]he focus should *** be upon the character and quality of the illegally obtained evidence as it relates to the other evidence bearing on the same issue and the court should appraise the possible impact upon the jury of the wrongfully obtained evidence." People v. Black, 52 Ill. 2d 544, 555 (1972). ¶ 41 "[A] confession is the most powerful piece of evidence the State can offer, and its effect on a jury is incalculable." R.C., 108 Ill. 2d at 356. As a result, the admission of an unlawfully obtained confession at trial is usually prejudicial to the defendant. See People v. Miller, 2013 IL App (1st) 110879, ¶ 82; People v. Fillyaw, 409 Ill. App. 3d 302, 311 (2011). "The erroneous admission of a confession into evidence rarely constitutes harmless error because confessions generally carry 'extreme and probative weight.' " People v. Simpson, 2013 IL App (1st) 111914, ¶ 22 (quoting St. Pierre, 122 Ill. 2d at 114); see R.C., 108 Ill. 2d at 356 (admission of defendant's confession not harmless error beyond a reasonable doubt); People v. Turner, 56 Ill. 2d 201, 207-08 (1974) (same); People v. Henenberg, 55 Ill. 2d 5, 30 (1973) (same). Even when there is other evidence of defendant's guilt, it is difficult to say, beyond a reasonable doubt, that the defendant's confession did not contribute to his conviction. See St. Pierre, 122 Ill. 2d at 115. ¶ 42 Here, defendant was convicted of first degree felony murder for killing McCreary while attempting to commit armed robbery. In order to sustain defendant's murder conviction, the State had to prove beyond a reasonable doubt that defendant committed attempted armed robbery. See People v. Pecina, 132 Ill. App. 3d 948, 955 (1985). ¶ 43 Without defendant's videotaped statements to police, the evidence that defendant killed McCreary while attempting to commit armed robbery was not overwhelming. Defendant testified at trial that while he initially considered robbing McCreary, he decided not to when he heard a woman and child in McCreary's home. Warfield, who received a plea deal in exchange for her testimony against defendant, testified that she believed that she, defendant and Spencer were going to McCreary's house to purchase marijuana, not rob anyone. Defendant never discussed robbing McCreary with her. ¶ 44 The two eyewitnesses to the shooting, Ratliffe and Crosswhite, testified to two different versions of events. Ratliffe testified that a black male entered the house and said, "break yourself," while Crosswhite testified that the man said nothing and just started shooting. It would be reasonable for a jury to find Ratliffe's testimony incredible since Ratliffe admitted that he was smoking marijuana just 20 to 30 minutes before the shooting occurred and, according to Crosswhite, had been smoking marijuana "off and on" for several hours. Crosswhite's testimony that defendant immediately began shooting does not support defendant's conviction for attempted armed robbery because as soon as defendant stopped shooting, he ran out of the house without taking or attempting to take anything from McCreary's residence. ¶ 45 Defendant's confession was the most convincing evidence that defendant attempted to commit armed robbery. We cannot say that, without defendant's confession, the evidence was so overwhelming that the jury would have found beyond a reasonable doubt that defendant committed attempted armed robbery. The admission of the defendant's confession was not harmless beyond a reasonable doubt. ¶ 46 It is at least arguable that defendant's confession should not have been admitted at trial and its admission does not appear to be harmless, and defendant has shown that it is arguable that his conviction would have been reversed if his appellate counsel had appealed the trial court's denial of his motion to suppress. The trial court erred in dismissing defendant's postconviction petition at the first stage of postconviction proceedings.
¶ 47 II
¶ 48 Defendant argues that the trial court improperly ordered him to submit a DNA sample and pay a DNA analysis fee because his DNA profile is already on file with the Illinois State Police. The State agrees.
Pursuant to People v. Marshall, 242 Ill. 285, 303 (2011), a trial court is authorized to order the taking, analysis and indexing of an offender's DNA and the payment of the DNA analysis fee only where the defendant's DNA is not currently in the Illinois State Police DNA database. A trial court's order requiring a defendant to submit an additional DNA sample and pay an additional DNA analysis fee should be vacated. Id. ¶ 49 Because defendant's DNA is already in the Illinois State Police DNA database, we vacate the portion of the trial court's order requiring defendant to submit an additional DNA sample and pay an additional DNA analysis fee. See id. ¶ 50 The judgment of the trial court of Peoria County is reversed and remanded in part, and vacated in part. ¶ 51 Reversed and remanded in part; vacated in part.