People v. Thigpen

1

2024 IL App (1st) 200620-U

THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. ARTEZ THIGPEN, Petitioner-Appellant.

No. 1-20-0620

Court of Appeals of Illinois, First District, First Division

September 16, 2024

This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County, Criminal Division. No 04 CR 2814 Honorable James B. Linn, Judge Presiding

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Pucinski and Cobbs concurred in the judgment.

ORDER

FITZGERALD SMITH PRESIDING JUSTICE

¶ 1 Held: The circuit court's second-stage dismissal of the petitioner's pro se petition is affirmed in part and reversed in part. The petitioner made a substantial showing of actual innocence and ineffective assistance of counsel for counsel's failure to investigate, call exculpatory witnesses, and impeach the lead investigating police detective with evidence regarding his pattern and practice of misconduct. The circuit court properly dismissed the petitioner's remaining claims.

¶ 2 After a jury trial in the circuit court of Cook County, the petitioner, Artez Thigpen, was convicted of two counts of first-degree murder and sentenced to natural life imprisonment. The petitioner now appeals from the second-stage dismissal of his pro se petition filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)). He first contends that we must reverse the dismissal of his petition because the circuit court utilized an improper standard of review and made credibility determinations, which are not permitted at the second stage of postconviction proceedings. In addition he contends that his petition should have been advanced to the third stage of postconviction proceedings because, taken as true, his pleadings made a substantial showing of ineffective assistance of both his trial and appellate counsels, numerous trial errors, and a freestanding claim of actual innocence. For the following reasons, we affirm in part and reverse in part.

¶ 3 I. BACKGROUND

¶ 4 Because the record before us is voluminous, as it spans over two decades, we set forth only those facts and procedural history relevant to the resolution of this appeal. The instant matter arises from the September 13, 1993 gang-related kidnapping and murder of two victims, 15-year-old Stanton Burch and 18-year-old Michael Purham. In 1993, four codefendants Derrick Harvey, Hulon Verser, Fred Weatherspoon and Antonio House were arrested and charged for their involvement in these murders. Codefendants Verser and Weatherspoon were convicted of the two murders, while codefendant Harvey was acquitted of the murders but found guilty of kidnapping. After the conclusion of the codefendants' trials and five years after the incident occurred, in July 1998, the State charged the petitioner^[1] with, inter alia, two counts of first-degree murder for his involvement in the crime.^[2]

¶ 5 The petitioner was subsequently tried twice. His first jury trial was held on January 26, 2004, after which he was found guilty of both murders. A month after his conviction, however, the United States Supreme Court released its decision in Crawfordv. Washington, 541 U.S. 36 (2004), and the petitioner filed a motion arguing that his conviction was invalid. Upon agreement from both parties, the circuit court ordered that the petitioner be granted a new trial.

¶ 6 The petitioner's second jury trial was held in February 2005, and the following relevant evidence was adduced. The State's theory of the case was that the two victims were kidnapped and shot by a group of Unknown Vice Lord gang members, led by the petitioner, as part of an intragang dispute over the control of drug sales at a certain intersection on the west side of Chicago.

¶ 7 Chicago Police Commander Micheal Cronin, who was an expert in gang intelligence, testified that in 1993 the area near Springfield Avenue and Fillmore Street in Chicago was controlled by the Unknown Vice Lords, whose leader was Willie Lloyd, and who sold crack cocaine there. According to Commander Cronin, in 1993 there was a war within the Unknown Vice Lords, with one faction loyal to Lloyd and another loyal to Tyrone Williams, otherwise known as Baby Ty, with the faction led by Ty having attempted to kill Lloyd twice.

¶ 8 Chicago Police Sergeant Robert Schaefer next testified that on September 14, 1993, he was among a group of police officers conducting surveillance at a gang funeral. After receiving a dispatch that a group of gang members were approaching two vehicles near the funeral, Sergeant Schaefer began walking towards one of the vehicles. As he did so, the passenger door of the vehicle opened and he observed codefendant Harvey sitting in the passenger seat, holding "a large blue steel shotgun" commonly referred to as "a street sweeper." Sergeant Schafer drew his gun and ordered codefendant Harvey to drop the weapon and exit the car. Harvey and the other occupants of the vehicle fled, but Sergent Schafer caught Harvey, handcuffed him, brought him back to the car and recovered the shotgun with "six live shotgun rounds." He identified the shotgun at trial and claimed that it was capable of firing what is known as a "deer slug" bullet. Even though Sergeant Schafer testified that he sent the shotgun for fingerprint and ballistic analysis, no forensic, fingerprint or ballistic evidence was presented at trial linking the shotgun to the petitioner or anyone else involved in the commission of the crime.

¶ 9 Instead, the State's case consisted of the testimony of three eyewitnesses, two of whom recanted at trial.

¶ 10 Codefendant Harvey, who was serving a 30-year sentence for kidnapping in the instant case,^[3] acknowledged that he was an Unknown Vice Lord in 1993. He testified that he was familiar with the petitioner from the neighborhood but did not know him personally and did not know whether the petitioner was a member of the same gang.^[4] Harvey acknowledged that he was near Springfield and Fillmore on September 13, 1993, but denied making statements that inculpated either him or the petitioner in the shootings that occurred that day.

¶ 11 Codefendant Harvey testified that he was arrested the night after the shooting, while returning from a funeral. He claimed that he observed the police pull a shotgun out of a car that was parked nearby. Harvey averred that he was never inside that car, never possessed the shotgun, and never told the police that the shotgun was used to shoot one of the victims in this case. Instead, Harvey claimed that once he was brought to the police station, he was placed in an interview room where he was interrogated by Detective Kriston Kato, who was the lead investigator on the case. Detective Kato told Harvey that the police had recovered two bodies and needed a witness, and that if Harvey agreed to go along with the detective's story, he would be released. Detective Kato struck Harvey in the face and threatened to put his family's names and addresses in the newspaper if he refused. He then told Harvey to just go along with whatever the detective said after the Assistant State's Attorney (ASA) entered the room. In addition, he instructed Harvey to tell the ASA that the detectives did not offer or threaten him with anything.

¶ 12 Codefendant Harvey acknowledged that when he subsequently met with the ASA, the ASA asked him basic questions about his education and whereabouts, after which he got multiple papers from Detective Kato and told Harvey to sign them. Harvey signed the papers without reading them because he just wanted to get out of the police station. He disavowed all the inculpatory information contained therein and denied having led the police to the victims' bodies.

¶ 13 Codefendant Harvey also acknowledged that he received a ten-year sentence for refusing to testify at the petitioner's original trial and that in exchange for his present testimony the State offered him immunity and agreed to ask the circuit court to purge that sentence.

¶ 14 After codefendant Harvey's testimony, ASA James Nelson testified that he took Harvey's statement at about 5:40 a.m., on September 15, 1993. He acknowledged that he was in the interview room alone with Harvey for only about one minute. Detective Kato was also present in the room for the remainder of the time. ASA Nelson acknowledged that he did not ask Harvey whether the police allowed him to sleep. He testified, however, that after he read Harvey his Miranda rights, Harvey agreed to give a written statement.

¶ 15 That statement was a handwritten summary of Harvey's account written by ASA Nelson and signed by Harvey. It was published to the jury and included the following relevant information. Harvey, who was 18-years old at the time told the police that he had been a member of the Unknown Vice Lords for approximately four years and mainly sold drugs for them. The petitioner was Harvey's immediate superior and ran an exclusive drug spot on the corner of Springfield and Fillmore. According to Harvey, Lloyd was the head of the Unknown Vice Lords but there was an internal struggle to determine whether he would remain "head boss."

¶ 16 On September 12, 1993, Harvey got a telephone call from the petitioner to come to Springfield and Fillmore. Once there, he was joined by about ten other gang members, one of whom, named "Larry," told the petitioner that Lloyd and a few of his men had robbed him of all of his drugs and money. The petitioner and a man named "Tyrone," who was an even higher-ranking Unknown Vice Lord than the petitioner, then handed out guns to the remaining gang members and told them to look for...