People v. Truly
Case Date: 12/26/2000
Court: 1st District Appellate
Docket No: 1-99-0292 Rel
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FIRST DIVISION December 26, 2000 No. 1-99-0292
JUSTICE O'MARA FROSSARD delivered the opinion of the court: Following a jury trial in the circuit court of Cook County, defendant, Billy Truly, wasconvicted of the murders of Paul Lowe and Jarvanley Johnson. For the murders, the circuit courtsentenced defendant to natural life imprisonment. We affirmed these convictions on directappeal. People v. Truly, No. 1-96-1705 (1998) (unpublished order pursuant to Supreme CourtRule 23). Defendant filed a timely pro se petition seeking relief pursuant to the Post-ConvictionHearing Act (725 ILCS 5/122-1 et seq. (West 1998)). The circuit court dismissed the petitionwithout an evidentiary hearing. Defendant appeals to this court maintaining that: (1) he wasdenied his constitutional right to cross-examine a key prosecution witness as to her motive,interest and bias in testifying; (2) defendant's right to counsel at the lineup was violated; and (3)defendant received ineffective assistance by appellate counsel. We reverse and remand this caseto the circuit court for an evidentiary hearing. BACKGROUND Antoinette Bell was the State's only eyewitness to the double murder. Prior to trial, theState made a motion in limine to bar any of the officers from testifying that since the murdersoccurred Antoinette Bell had been arrested on misdemeanor charges which had been dismissedand that she received a sentence of supervision for criminal trespass to land a few weeks beforeshe testified against defendant. The trial court granted the State's motion in limine. The evidence at trial established that on August 8, 1992, at approximately 10 p.m., Loweand Johnson were sitting on the front porch at 5846 South King Drive. As defendant and anotherman walked past the porch, Johnson made a comment to defendant about his girlfriend. Defendant replied, "Man, why you disrespecting me?" Defendant told Johnson that he was amember of the Gangster Disciples street gang and then walked away. Later that night, Johnsonand Beverly Fowler walked to a nearby store and noticed defendant and another man. Johnsonapproached defendant and apologized to him. Johnson and Beverly Fowler returned to theapartment building. A short time later, a group of men walked toward the building and Johnsonwent to the front porch to meet them. Lenora Jones looked out her second-floor apartmentwindow and heard someone say, "Disrespecting GD. You have to have a violation." BeverlyFowler announced that she had called the police. The men left the building but said that theywould be back later. A few hours later, Beverly Fowler looked out the window and watched as a group ofpeople got out of the cars and saw Johnson and Lowe run to the backyard. Beverly Fowler calledthe police. Antoinette Belle walked onto the back porch and saw defendant pull an 18-inch-long,three-inch-wide pole from the car, approach Johnson and hit him in the head with the pole. Defendant then walked in the direction of Lowe. Bell heard sounds like somebody hitting abaseball bat. Defendant walked back over to Johnson, who was lying on the ground, and hit himagain. He walked over to Lowe, and Bell heard the same sound. Defendant again walked over toJohnson, hit him in the head three times with the pole and drove off in a car. At trial, Detective Regal testified that he found the bodies of Lowe and Johnson on theground. He stated that Bell told police what she saw and described the defendant. However, shedid not give her real name to the police. Bell identified defendant in a photo array 4 monthslater. She identified defendant in a lineup 13 months later. Detective Regal further testified thatBeverly Fowler identified defendant as the man Johnson approached and apologized to earlier inthe evening. Detective Regal testified that Bell was subpoenaed to appear in court to testify butshe did not appear and as a result was arrested for contempt of court. Bell testified that defendant was the only person she saw beating Lowe and Johnson withthe pole. She further stated that she had never seen defendant before the night of the murders. She also testified that she was afraid when she spoke to the officers at the scene and when shewas subpoenaed to testify in court. She stated that she was held in custody for almost a monthuntil the day she testified at defendant's trial. During cross-examination, defense counsel askedBell whether the assistant State's Attorneys made any promises to her if she testified atdefendant's trial. Bell responded that she asked them if they could move her out of the state aftershe testified and that they had agreed to do so. She mentioned no other promises. Following the cross-examination of Bell, the trial court heard Bell's contempt case. The assistant public defender representing Bell requested that the contempt charge against Bell bepurged since Bell testified. The State agreed and withdrew its petition and the trial court purgedBell's contempt charge. The attorney representing Bell then asked the State when they expectedto have Bell's airplane ticket ready. Defendant's counsel, upon hearing about the plane ticket forthe first time, requested that he be allowed to recall Bell and question her as to whether any otherpromises were made to her by the State including the plane ticket and the purging of thecontempt charge. Defense counsel further sought to recall Bell to ask Bell the destination for theplane ticket and where she stayed during the period from 1992 to the day of trial. The trial courtdenied defense counsel's requests but allowed defense counsel to question Bell outside thepresence of the jury about her expectation regarding the contempt charge. Defendant presented an alibi defense that he was in Milwaukee, Wisconsin, when themurders took place. Defendant's former girlfriend, Clara Green, and family members testifiedthat defendant was not in Chicago at the time of the murders. In rebuttal, Detective Winsteadstated that when he questioned defendant about the murders in August 1992, defendant told himthat he was in prison at the time of the murders. After Winstead reminded defendant that he hadalready been released from prison, defendant responded that he was out of town at the time thatthe murders occurred. However, defendant was unable to state where or with whom he was outof town. The jury found defendant guilty of both the murders of Johnson and Lowe. Defendantwas sentenced to natural life imprisonment. Defendant appealed, and his conviction andsentence were affirmed in an unpublished order. Thereafter, defendant filed a pro sepostconviction petition consisting of approximately 100 pages and 50 pages of exhibits. The trialcourt ruled that defendant's claims were barred by waiver or res judicata and dismisseddefendant's postconviction petition without an evidentiary hearing, finding the petition frivolousand patently without merit. Defendant appealed. ANALYSIS Defendant contends that the circuit court erred in summarily dismissing hispostconviction petition without an evidentiary hearing. A proceeding under the Act is not anappeal; it is a collateral attack on the prior judgment. People v. Brisbon, 164 Ill. 2d 236, 242(1995). A defendant is not entitled to an evidentiary hearing on a postconviction petition as amatter of course. People v. Albanese, 125 Ill. 2d 100, 105 (1988). In order to survive summarydismissal, a petitioner under the Post-Conviction Act (Act) (725 ILCS 5/122-1 et seq. (West1998)) needs to assert the gist of a constitutional claim. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). However, the gist of a meritorious claim is not established by a bare allegation ofdeprivation of a constitutional right. People v. Prier, 245 Ill. App. 3d 1037, 1040 (1993). Adefendant still must allege sufficient facts from which the trial court could find a valid claim ofdeprivation of a constitutional right. People v. Ramirez, 242 Ill. App. 3d 954, 958 (1993). Ahearing is required only when the allegations of the petition, supported by the trial record and theaccompanying affidavits, make a substantial showing of a violation of a constitutional right. People v. Hobley, 182 Ill. 2d 404, 427-28 (1998). All well-pleaded facts are taken as true at thisstage; therefore, the summary dismissal of a postconviction petition is subject to de novo review. Coleman, 183 Ill. 2d at 380-81, 388, 389. The Act provides a remedy to criminal defendants who make a substantial showing that aviolation of their federal or state constitutional rights occurred at the proceedings which resultedin their convictions, when such a claim has not been, and could not have been, adjudicatedpreviously. People v. Griffin, 178 Ill. 2d 65, 72-73 (1997). Issues that were decided on directappeal are barred by the doctrine of res judicata and issues that could have been raised on directappeal, but were not, are deemed waived. People v. Towns, 182 Ill. 2d 491, 502-03 (1998). Thedoctrines of res judicata and waiver will be relaxed "where fundamental fairness so requires." People v. Gaines, 105 Ill. 2d 79, 91 (1984). Where the alleged waiver stems from theincompetence of appellate counsel, the doctrine is relaxed. People v. Barnard, 104 Ill. 2d 218,229 (1984). The rule is also relaxed when the facts relating to the claim do not appear on theface of the original appellate record. People v. Eddmonds, 143 Ill. 2d 501, 528 (1991). A claimmay survive waiver as the result of any one of these three exceptions. People v. Whitehead, 169Ill. 2d 355, 372 (1996).I. Constitutional Violation of Right to Confront Witness We first consider defendant's argument that his petition makes a substantial showing thathe was denied his sixth amendment (U.S. Const., amend. VI) constitutional right to confrontAntoinette Bell, the State's only eyewitness to the double murder, and to cross-examine her as toher bias, interest and motive in testifying. Defendant claims the trial court improperly restrictedcross-examination of Bell in four areas: (1) Bell's three prostitution arrests, dismissed prior todefendant's trial, and her supervision for criminal trespass to land received just weeks beforetrial; (2) the fact that after the murders Bell continued to frequent the neighborhood where themurders occurred; (3) Bell's expectation of receiving a plane ticket from the State's Attorney'soffice in exchange for her testimony at trial; and (4) her expectation of leniency regarding apending contempt charge. Although the record reflects that defendant failed to raise these issueson direct appeal, the application of waiver is relaxed in proceedings on a postconviction petitionif fundamental fairness, as in this case, so requires. People v. Steidl, 177 Ill. 2d 239 (1997);Gaines, 105 Ill. 2d at 91. A. Restriction of Bell's Cross-Examination Regarding Arrests and Supervision Defendant maintains that it was error for the trial court to grant the State's motion inlimine prohibiting defense counsel from cross-examining Bell about three prior arrests forprostitution and her supervision for criminal trespass to land which she received a few weeksbefore testifying against the defendant. Specifically, defendant contends that the allegations inhis petition regarding trial court rulings which restricted his cross-examination of Bell establish asubstantial showing of a violation of a constitutional right and thereby entitle him to a hearing onhis postconviction petition. Cross-examination may concern any matter that goes to discredit, modify, explain ordestroy the testimony of the witness. People v. Averhart, 311 Ill. App. 3d 492 (1999). Limitation of a defendant's cross-examination of the bias, motive or interest of a witness mayviolate a defendant's constitutional right to confront the witnesses against him guaranteed by boththe federal and state constitutions. U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, |
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