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No. 3-01-0161

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2002

JUSTICE SLATER delivered the opinion of the court:

A detailed recitation of the evidence was set forth in ourdecision on direct appeal of this case. See Rish, 208 Ill. App.3d at 754-67, 566 N.E.2d at 921-30. We therefore relate onlythose facts necessary to a general understanding of the case andthe issues presented.

On September 2, 1987, Stephen B. Small was kidnaped and aransom demand was sent to his home. Small's sister called thepolice, who immediately initiated an investigation. Theinvestigation focused on Danny Edwards and the defendant, wholived together in a townhouse in Bourbonnais.

On September 4, a search warrant was executed for thetownhouse. That evening, Edwards led the police to a rural areawhere Small's body was recovered. It appeared that Small hadbeen placed in a wooden box which had been fitted with a PVC pipedesigned to give him air for 24 to 48 hours. The box alsocontained a light connected to an automobile battery, a onegallon jug of water, candy bars, gum, and a flashlight. Small'swrists were handcuffed and the box was buried. The coroner laterdetermined that his death was caused by "asphyxia due tosuffocation."

That same night, the police arrested defendant and held herat the station for questioning. Defendant requested a specificattorney, J. Scott Swaim, who had previously represented her, andshe was given an opportunity to obtain his counsel. Thedefendant did not know that Swaim was friends with the victim.

The two had socialized at dinner parties and entertained togetheron several occasions. However, Swaim did not inform defendant ofhis friendship with Small prior to or at any time afterundertaking representation.

For the next four days, between September 4 and September 8,the police questioned defendant with counsel present. Eightstatements were elicited concerning her knowledge and actions inthe early days of September. None of the statements was totallyconsistent with any other.

On October 1, defendant was charged by indictment withfirst-degree murder and aggravated kidnaping for her alleged rolein Small's death. On November 2, 1988, defendant was tried by ajury. No direct evidence was presented linking her to thekidnaping or death of Small. However, the State was able toenter defendant's eight inconsistent statements into evidence. Witnesses were also presented who testified that they had seenher at various times with Edwards when he was purchasing some ofitems that were ultimately found with Small's body. Otherwitnesses reported that they had observed her at various relatedlocations during the course of the kidnaping and ransom calls. Lastly, the State submitted evidence that Edwards had used theirgarage to build the box in which Small's body was found. Thejury found defendant guilty on both counts, and the trial courtsentenced her to a term of natural life imprisonment and aconcurrent 30-year term.

After this court affirmed defendant's convictions andsentences and her petition for leave to appeal to the supremecourt was denied, defendant filed a post-conviction petition. Following a substitution of counsel, a twelve-claim amendedpetition was submitted. A separate supplemental petition wasalso filed, adding two additional claims. The circuit court heldan evidentiary hearing on four of the claims. Ultimately, allfourteen of the claims were dismissed.

Defendant then filed a second supplemental petition, raisingtwo more claims, but these were also dismissed without anevidentiary hearing. Defendant's motion for reconsideration wasdenied.

On appeal, defendant challenges the dismissal of eight ofher post-conviction claims, arguing them as four issues: (1)whether she was denied due process because the prosecutorpresented allegedly false contentions to the jury; (2) whetherthe trial court erred in finding that two discovery violationswere not material within the meaning of Brady v. Maryland; (3)whether claims of ineffective assistance of counsel at custodialinterrogation were inappropriately dismissed at the pleadingstage; and (4) whether defendant is entitled to sentencing reliefpursuant to Apprendi v. New Jersey.

ANALYSIS

The Post Conviction Hearing Act (the Act) (725 ILCS 5/122--1et seq. (West 2000)) provides a three-step process foradjudication of petitions for post-conviction relief. At thefirst stage, the circuit court does not decide the petition onthe merits; instead, without input from the State or furtherpleadings from the defendant, the court determines if thepetition presents the gist of a claim for relief, that is,whether the petition contains sufficient facts upon which ameritorious constitutional claim could be based. See People v.Gaultney, 174 Ill. 2d 410, 675 N.E.2d 102 (1996). At this firststage, "all well-pleaded facts that are not positively rebuttedby the original trial record are to be taken as true." People v.Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063, 1073 (1998).

If the court does not dismiss the petition at the firststage, it will, in the second stage, appoint counsel to representan indigent defendant who requests legal assistance, and counselwill have an opportunity to amend defendant's post-convictionpetition. See 725 ILCS 5/122--4 (West 2000). The State may thenfile a motion to dismiss, and the court will determine whether anevidentiary hearing on the merits of the defendant's petition iswarranted. See 725 ILCS 5/122--5 (West 2000). A defendant isnot entitled to an evidentiary hearing as a matter of course; itis required only when the allegations of the petition, supportedwhere necessary by the trial record and affidavits, makes asubstantial showing of a constitutional violation. People v.Ward, 187 Ill. 2d 249, 255, 718 N.E.2d 117, 123 (1999); People v.Henderson, 171 Ill. 2d 124, 140, 662 N.E.2d 1287, 1296 (1996). In making this determination, all well-pleaded facts in thedefendant's petition and any accompanying affidavits are taken astrue. People v. Caballero, 126 Ill. 2d 248, 259, 533 N.E.2d1089, 1091 (1989). Mere conclusions, however, are insufficientto require a hearing under the Act. Coleman, 183 Ill.2d at 381,701 N.E.2d at 1072. The evidentiary hearing and a determinationon the merits is the third and final stage of post-convictionproceedings. See 725 ILCS 5/122--1 through 122--8 (West 2000);see also People v. Patton, 315 Ill. App. 3d 968, 735 N.E.2d 185(2000). In considering plaintiff's appeal, we have divided ouranalysis of defendant's post-conviction claims into two separatesections, according to the appropriate standards of review.

Claim Subject to Deferential Review
Brady Violation

We first consider the denial of count three, alleging a violation of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83S. Ct. 1194 (1963). Since this count survived to the third stagefor an evidentiary hearing, we will not disturb the circuitcourt's ruling unless it is manifestly erroneous. See Coleman,183 Ill. 2d at 385, 701 N.E.2d at 1074.

Defendant asserts that the prosecution committed a Bradyviolation when it presented James Witvoet as an identificationwitness, but failed to disclose that criminal proceedings werepending against him. At the time he testified, two charges ofillegal operation of a migrant labor camp were pending againstWitvoet in Kankakee County. Each count was a petty offense, witha minimum fine of $100 and a maximum fine of $500. Defendantmaintains that the State's omission was prejudicial to her casebecause the criminal charges could have been used to impeachWitvoet's testimony.

We do not find defendant's assertion tenable. Although thegovernment is obligated to turn over evidence in its possessionthat is favorable to the accused, the evidence must be materialto guilt or punishment. See Brady, 373 U.S. at 87, 10 L. Ed. 2dat 218, 83 S. Ct. at ____. Evidence is material only if there isa reasonable probability that, had it been disclosed to thedefense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient toundermine confidence in the outcome. Pennsylvania v. Ritchie,480 U.S. 39, 57, 94 L. Ed. 2d 40, 57, 107 S. Ct. 989, ___ (1987). In this case, the prosecutor's failure to disclose Witvoet'spending criminal charges was not a Brady violation because thecriminal charges were not material to defendant's guilt. Witvoettestified that he was driving with another person in an area nearthe crime scene when he saw a van similar to one owned byEdwards. Witvoet saw two people in the van: a male with darkhair and another individual with dishwater blonde hair, similarto defendant's. However, Witvoet was unable to say whether theblonde passenger was a man or a woman.

As the circuit court noted, when a witness has a pendingcriminal charge, the concern is that he may testify falsely inreturn for leniency. Witvoet first reported his observations tothe police in September of 1987; he was not charged criminallyuntil ten months later, in July of 1988. His testimony at trialwas consistent with his earlier report to the police. There isno indication that Witvoet altered his testimony to gain favorwith the State. Indeed, Witvoet testified at the post-convictionhearing that the charges did not affect his testimony because heknew that the State had mistakenly charged him instead of hisfather, James Witvoet, Sr. Witvoet believed that the chargeswould ultimately be dismissed, and they were, in January of 1989,for that reason. There were no plea negotiations with theState's Attorney prior to dismissal.

Of course, the relevant question is not whether Witvoet'stestimony was affected by the criminal charge, but whether theresult of the trial was undermined by defendant's inability toimpeach Witvoet with those charges. Given the lack of gravity ofthe charges, their timing, Witvoet's professed lack of concern,and the absence of any plea bargain, we believe the impeachmentvalue of the charges was extremely low. Accordingly, we findthat the circuit court's ruling that the State's discoveryviolation was not material was not manifestly erroneous. Thedenial of count three of defendant's post-conviction petition isaffirmed.

Claims Subject to De Novo Review

The following seven claims will be reviewed de novo, sinceno deference is extended to the trial court when no evidentiaryhearing has been held. Coleman, 183 Ill. 2d at 388-89, 701N.E.2d at 1075.

Ineffective Assistance of Counsel

Defendant challenges the dismissal of count one of herpetition, which alleged that her right to counsel was violatedduring custodial interrogation. She complains that her attorneyat the interrogation, J. Scott Swaim, had an interest in the casethat was adverse to her own. Specifically, she claims that Swaimwas a close friend of the victim, Stephen Small. In addition,Swaim had been the attorney for a Kankakee police officerinvolved in the case, Detective Robert Anderson. These twoconflicts, the defendant argues, motivated Swaim to allow her togive eight inconsistent statements over the course of the fourday interrogation, statements that were later used by theprosecution at trial.

The defendant argues that both the fifth amendment to theU.S. Constitution (U.S. Const., amend. V) and article 1, section10 of the Illinois Constitution (Ill. Const. 1970, art. I,