People v. Brown

864 N.E.2d 767

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Keith BROWN, Defendant-Appellant.

No. 1-04-1943.

Appellate Court of Illinois, First District, Third Division.

February 28, 2007.

Michael J. Pelletier, State Appellate Defender, Carolyn R. Klarquist, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, for Appellant.

Richard A. Devine, State's Attorney, James E. Fitzgerald, Tasha Marie Kelly, Jackie Thursby-Elvekrog, Assistant State's Attorneys, Chicago, for Appellee.

Presiding Justice THEIS delivered the opinion of the court:

Defendant appeals from the denial of his post-conviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2000)), after the trial court held an evidentiary hearing on one issue and granted the State's motion to dismiss on the remaining issues. On appeal, defendant contends that: (1) the trial court's failure to grant him a new trial is manifestly erroneous because he demonstrated that trial counsel was ineffective for failing to call a witness who would impeach the credibility of the State's key eyewitness; (2) he was entitled to an evidentiary hearing where he made a substantial showing that trial counsel was ineffective for failing to present two alibi witnesses and to investigate a statement against penal interest that another individual committed the offense; (3) he was entitled to an evidentiary hearing where he made a substantial showing of a free-standing claim of actual innocence; and (4) he is entitled to additional sentencing credit.

Previously, in People v. Brown, No. 1-04-1943 (2006) (unpublished order under Supreme Court Rule 23), we affirmed the judgment of the circuit court. In doing so, we held that the sentencing credit issue was not cognizable under the Act and was forfeited. Subsequently, pursuant to the supreme court's supervisory order, we vacated our original order, and allowed the State another opportunity to address the sentencing credit issue on the merits. For the following reasons, we affirm the judgment of the circuit court and order the mittimus corrected to reflect the additional sentencing credit requested.

BACKGROUND

The facts adduced at defendant's bench trial have been detailed by this court previously on direct appeal. According to the evidence presented, defendant's convictions arose from the fatal shooting and robbery of Gregory Jones on June 27, 1992, in a gangway near Erie Street and Cicero Avenue in Chicago. Carl Taylor implicated defendant in the shooting. At about 9:30 a.m., Taylor saw his friend Jones and defendant from about 20 to 25 feet away as they exchanged a plastic bag for currency. Defendant then produced a gun, telling Jones to give him the "shit." Defendant grabbed the bag, then shot Jones three times as Jones attempted to flee. After Jones fell, defendant turned him over, rifled through his pockets, took some money and something from Jones' shoe. Defendant fired at Taylor twice before he fled. Taylor then observed Neal Blake, who was acting as a "look-out" for Jones, in a struggle with codefendant Anthony Smith before Smith and defendant ran to a parked, cream-colored Pontiac Bonneville. He then saw the car later that day with detectives in the alley between Homan Avenue and Carroll Avenue. The following day, Taylor identified defendant in a lineup.

Taylor stated that he had seen defendant on two other occasions prior to the shooting, but on cross-examination, he stated he could not recall whether it was after or before the Jones shooting. He told the police that he had seen defendant before the incident. The first time he saw defendant was with some other Black Soul street gang members. He was not introduced to him by anyone. He was told that defendant went by the nickname "Mookie" by some Black Souls who were friends of his named "Black" and "Hoak." Taylor stated that "Hoak" was a nickname for Ernest Daniels. Taylor explained that his gang, the Cicero Insanes had a dispute with the Black Souls and that the Black Souls had "jumped on" Taylor. He asked Daniels "who was they goin' send at [him]?" and Daniels told him that defendant was "the shooter" for the Black Souls. Taylor could not recall when that conversation took place. He stated that the second time he saw defendant was on Erie Street, but could not recall the date.

Antwan Coffie was in the area of West Erie street on the morning of the occurrence at about 9:30 a.m. when he heard 3 to 4 shots. He observed Smith and Blake "tussling," saw Blake slip out of his jacket and run off after they fought. Coffie then looked southbound down Erie and saw someone about 50 feet away holding something in his hand standing over another individual. The man then ran to a cream-colored Pontiac Bonneville. Coffie was unable to identify defendant as the man leaning over Jones.

Neal Blake was acting as "security" for Jones while he was in the gangway selling drugs at about 9:45 a.m. He saw Jones come running past him followed by a man with a gun in his hand. The man shot Jones. Blake saw the side of the man's face, but was not able to get a good look at him. As Blake was running, he was grabbed by a man who he later identified in court as Smith. Blake struggled out of his jacket and ran home.

Anthony Pettigrew lived on West Erie Street. On the morning of the occurrence, at about 9:45 a.m., he looked out his window after he heard gunshots. Then, for a minute he watched defendant, who was holding a revolver while leaning over a body on the ground. As Pettigrew walked out his front door, he saw defendant running from about 15 feet away. Defendant looked up facing Pettigrew, and Pettigrew got a quick glance at him. He made an in-court identification that defendant was the man he saw with the revolver.

Paramedics and police arrived at the scene at 9:48 a.m. Officer Howard Lodding testified that Taylor told him that defendant shot Jones five times and that defendant jumped into a Pontiac, but Taylor did not tell him that defendant shot twice in Taylor's direction.

Detective Luis Munoz testified for the defense that Pettigrew told him he was outside when he saw defendant standing over Jones. Pettigrew did not tell him that he observed defendant for over a minute from his window. Nor did Taylor tell Munoz that defendant shot at him twice. Taylor told him that defendant was known as "Mookie" and that he had been "seeing him around" for several years. Drametta Todd knew defendant, his family and friends. She had never heard any family or friends call defendant by the name "Mookie."

Following the bench trial, defendant was convicted of three counts of first degree murder, one count of armed robbery, armed violence, and conspiracy to commit armed robbery, and six counts of unlawful use of a weapon by a felon. He was sentenced to 80 years' imprisonment. At the sentencing hearing, defendant made the following statement in allocution: "I am sorry. I wish I hadn't done it myself."

On direct appeal, we affirmed his conviction for first degree murder, armed robbery, and unlawful use of a weapon (UUW) by a felon. We vacated his convictions on the remaining counts of first degree murder, armed violence, conspiracy to commit armed robbery, and the remaining counts of UUW by a felon. We remanded for resentencing on the armed robbery and UUW convictions. People v. Brown and Smith, Nos. 1-93-3519 and 1-93-3520 (consolidated) (1995) (unpublished order under Supreme Court Rule 23). On remand, defendant was sentenced to an additional concurrent prison term of 37 years.

On September 20, 2000, defendant was granted leave to file a late pro se petition for relief under the Act (725 ILCS 5/122-1 et seq. (West 2000)), which the circuit court summarily dismissed without appointing counsel. We reversed the summary dismissal and remanded for further proceedings consistent with sections 122-4 through 122-6 of the Act (725 ILCS 5/122-4 through 5/122-6 (West 2000)). People v. Brown, No. 1-00-4081 (2001) (unpublished order pursuant to Supreme Court Rule 23). Thereafter, post-conviction counsel filed a supplemental post-conviction petition and the State filed a motion to dismiss the petition, arguing that petitioner failed to establish a substantial violation of his constitutional rights.

After a hearing on the motion to dismiss, the trial court granted defendant an evidentiary hearing on the issue of whether his trial counsel was representing Ernest Daniels at the time of defendant's trial, and whether this representation created a conflict of interest which caused trial counsel not to call Daniels as a witness who would impeach Taylor's credibility. The facts relevant to that hearing are discussed below. Additionally, the trial court granted the State's motion to dismiss the remaining issues without an evidentiary hearing. At the conclusion of the evidentiary hearing, the trial court denied defendant's request for post-conviction relief, finding that counsel's performance was not tainted by a conflict of interest and that he was not otherwise prejudiced by any failure to call Daniels. Defendant filed a timely appeal.

ANALYSIS

We initially address defendant's contention with regard to his third-stage post-conviction proceedings. A ruling by the trial court after holding an evidentiary hearing in connection with a petition filed under the Act must be affirmed unless it is manifestly erroneous. 725 ILCS 5/122-6 (West 2000); People v. Pitsonbarger, 205 Ill.2d 444, 456, 275 Ill.Dec. 838, 793 N.E.2d 609, 612 (2002). "Manifest error" is error that is clearly evident, plain, and indisputable, for purposes of our review of the trial court's judgment on a post-conviction petition. People v. Morgan, 212 Ill.2d 148, 155, 288 Ill.Dec. 166, 817 N.E.2d 524, 528 (2004).

Defendant contends that the denial of his request for a new trial is manifestly erroneous because the testimony at the evidentiary hearing established that trial counsel...