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NO. 4-02-1039

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

JUSTICE McCULLOUGH delivered the opinion of the court:

In April 2000, a jury convicted defendant, Charles B.Palmer, of first degree murder (720 ILCS 5/9-1(a)(1) (West Supp.1997)), and the trial court sentenced him to natural life inprison. In August 2002, defendant filed a pro se postconvictionpetition. In November 2002, the court summarily dismisseddefendant's petition, finding his claims were frivolous andpatently without merit. Defendant appeals, contending the trialcourt erred in summarily dismissing his postconviction petition. We affirm.

In February 1999, the State charged defendant byinformation with five counts of first degree murder in thatdefendant (1) "with the intent to kill or do great bodily harm toWilliam Helmbacher, repeatedly struck [him] on the head, therebycausing the death of [him]" (count I); (2) "repeatedly struck[Helmbacher] on the head, knowing said act would cause the deathof [Helmbacher], thereby causing the death of [him]" (count II);(3) "repeatedly struck [Helmbacher] [o]n the head, knowing suchact created a strong probability of death or great bodily harm to[Helmbacher], thereby causing the death of [him]" (count III);(4) "while committing or *** attempting to commit a forciblefelony, [r]obbery, *** repeatedly struck [Helmbacher] on the headand thereby caused the death of [Helmbacher]" (count IV); and (5)"while committing or attempting to commit a forcible felony,[r]esidential [b]urglary, *** repeatedly struck [Helmbacher] onthe head and thereby caused the death of [Helmbacher]" (count V)(see 720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West Supp. 1997)). The State also charged defendant with residential burglary ofHelmbacher's apartment (count VI) (720 ILCS 5/19-3 (West 1998)).

The evidence at defendant's April 2000 trial showed thefollowing. Ray Taylor, defendant's cousin, testified that helived upstairs in Helmbacher's apartment building in Decatur. Around dusk on August 26, 1998, defendant came to Taylor'sapartment and told Taylor that he was going to break intoHelmbacher's apartment. Defendant then went in the side windowof Helmbacher's apartment, opened the front door, and askedTaylor to look out for him. Taylor "stood there, and then ***went upstairs" to his apartment. Shortly thereafter, defendantcame upstairs to Taylor's apartment with some items, includingbeer and some change in a jar. He asked Taylor for a bag to putthings in, and Taylor handed him a plastic garbage bag. Defendant put some of the items in the bag, and Taylor anddefendant drank some of the beer. They then walked to a Dumpstera few blocks from Taylor's apartment, and Taylor threw theplastic bag in it. At that point, Taylor went to his mother'shome. He did not see defendant again that night.

On the evening of August 27, 1998, Taylor saw defendantat the apartment of another cousin, John Bradford. Defendantasked Taylor to come inside Bradford's apartment. Once inside,Taylor noticed that defendant was wearing a different pair ofshoes and different clothes from the previous day. Defendantsaid to Taylor, "Man, you know I had to beat the dude to death." Taylor asked defendant, "What dude?," and defendant replied thatit was the man who lived downstairs in Taylor's building--namely,Helmbacher. Defendant also said that Helmbacher only had $11 onhim on August 27. Taylor then asked defendant where his newtennis shoes were that he was wearing the previous day during theburglary, and defendant replied that "blood was everywhere."

Later that night, police officers came to Taylor'sapartment and questioned him about Helmbacher's murder. Policealso questioned him again on September 1, 1998. During thoseinterviews, Taylor did not tell them that he knew anything aboutthe murder because he did not want to become involved. Laterduring September 1998, after police recovered the plastic bagcontaining Helmbacher's property and informed Taylor that theyhad found his fingerprints on the bag, he told them what he knewabout defendant's participation in the burglary and Helmbacher'smurder. (On September 10, 1998, a gardener at the James MillikinHomestead found a plastic bag containing empty beer bottles, awallet, and a packet of business cards identifying Helmbacher asan attorney.)

Taylor also stated that after Helmbacher's murder,police officers showed him a pair of tennis shoes, which heidentified as the shoes defendant was wearing during the August26, 1998, burglary of Helmbacher's apartment.

Taylor acknowledged that he had been charged withresidential burglary of Helmbacher's apartment (720 ILCS 5/19-3(West 1998)), based on the August 26, 1998, burglary (MaconCounty case No. 98-CF-1476). Because Taylor agreed to testifyfor the State at defendant's trial, the State told him that hiscooperation would be taken into account in case No. 98-CF-1476. However, the State had not made any promises to Taylor regardingthe outcome of his case. Taylor also acknowledged that he hadtwo prior felony convictions.

Joseph Moyer testified that in August 1998, he andHelmbacher both worked for Doug Lee. On the evening of August27, 1998, Moyer and Lee were collecting rent from occupants ofapartment buildings owned by Lee. At around 9:45 p.m., Moyer andLee arrived at Helmbacher's apartment and knocked on the door. When no one answered, they left to collect rent at otherbuildings. At around 10:30 or 10:45 p.m., they returned toHelmbacher's apartment. Moyer looked through a small window inHelmbacher's front door and saw a half-eaten cheeseburger on atable and Helmbacher's shoes lying on the floor. Thinkingsomething was wrong, Lee opened the door and found Helmbacherdead on the floor.

Moyer acknowledged that on the night of the incident,Lee was upset with Helmbacher because Helmbacher was behind incollecting rent for Lee. Moyer also acknowledged that he had aprior felony burglary conviction.

Decatur police officer Brian Cleary testified that onthe evening of August 27, 1998, he responded to a call atHelmbacher's apartment. Upon arriving, he looked through awindow and saw Helmbacher lying on the floor. Cleary saw nosigns of forced entry.

Decatur police detective Roger Ryan testified that heinvestigated the crime scene on August 27 and 28, 1998. Ryanstated that the inside of Helmbacher's front door was splatteredwith blood and a large pool of blood had formed aroundHelmbacher's body. However, Ryan did not observe bloodyfootprints or any blood outside Helmbacher's apartment. Ryanalso stated that he found a hammer near Helmbacher's body.

Dr. Travis Hindman, a forensic pathologist, testifiedthat he performed an autopsy on Helmbacher. Hindman opined thatHelmbacher died as a result of brain trauma resulting from narrowsurface blunt trauma to the head, compatible with blows from ahammer.

Mike Callaway testified that defendant spent the nightwith him on August 27, 1998. When defendant arrived at hisapartment around 10 p.m., Callaway did not notice any blood onhim. At some point, Callaway went to the liquor store. Hereturned about 45 minutes later and found defendant wearing oneof Callaway's shirts. Callaway told defendant that he had towash his own clothes out and wear them. Later during defendant'sstay, Callaway saw defendant washing some clothes. Callaway wasnot sure whether he told Decatur police detective Tim Carltonthat defendant had arrived at his apartment just before dark,although he acknowledged he may have.

Carlton testified that when he interviewed Callaway,Callaway said that defendant had arrived at his apartment onAugust 27, 1998, around dark. During a September 22, 1998,interview of defendant, Carlton noticed that defendant waswearing a pair of white tennis shoes with red specks on them. Carlton took the shoes from defendant and showed them to Taylor. Carlton then placed the shoes in the police department's evidencestorage area. The shoes were later sent to the Illinois StatePolice crime laboratory for analysis. After initial testingindicated that no human blood was on the shoes, Carlton sent theshoes back to the crime laboratory with instructions to "takethem apart" and analyze them again. Carlton testified that hedid not touch the shoes before sending them back for furtheranalysis.

Decatur police officer Roger Morville testified thatduring August and September 1998, he was the evidence officer. On September 24, 1998, he transported defendant's tennis shoes tothe crime laboratory. After the initial testing, Morvilletransported the shoes from the laboratory to the policedepartment's evidence storage area. On October 15, 1998, heagain transported the shoes to the crime laboratory. At thattime, the shoes were still in a sealed evidence storage bag andhad not been tampered with or altered in any fashion.

Jennifer Lu, a crime laboratory employee trained inforensic biology, testified that she initially analyzeddefendant's tennis shoes on September 25, 1998. She tested thered specks on the laces and outside of the shoes and determinedthat the stains were not human blood. On November 4, 1998, Lureexamined the shoes at the request of the Decatur police. Ludismantled the shoes and discovered three stains on the rightside of the right shoe (the first stain was located under a pieceof leather covered with mesh and the second two stains werelocated under the mesh). After testing, Lu determined that thestains were human blood. Lu also stated that the police had sentHelmbacher's fingernail scrapings, which contained a blood-likesubstance, to the laboratory as well; however, she did not testthose scrapings.

Dana Pitchford, an Illinois State Police forensicscientist, testified that she conducted a deoxyribonucleic acid(DNA) analysis of a blood standard from Helmbacher and the blood-stains found on defendant's shoes. Pitchford opined that the DNAtest results indicated that the blood on defendant's shoes camefrom Helmbacher. The likelihood that another individual couldhave been the source of the bloodstains is 1 out of 42 trillionin the "White" population and 1 out of 38 trillion in the "Black"population. (Helmbacher was "White.")

Decatur police sergeant Brian Bell testified ondefendant's behalf that during a September 21, 1998, interview ofTaylor, Taylor admitted going into Helmbacher's apartment duringthe August 26, 1998, burglary. Decatur police officer JeremyWelker testified that when he interviewed Taylor on August 28,1998, Taylor stated that he had been home on the evening ofAugust 27, 1998, but had not heard anything unusual.

Defendant testified and denied committing the crimes. He stated that he spent the day and night of August 26, 1998, atTaylor's apartment. He slept off and on all day because he wasnot feeling well. On August 27, 1998, defendant woke up sometimebetween 11 a.m. and noon. Around 3:30 or 4 p.m., defendant wentto Callaway's apartment, where he stayed until the next day. Defendant stated that he and Callaway often wore each other'sclothes, and on the morning of August 27, 1998, defendant put ona pair of Callaway's pants and a shirt. Defendant also statedthat he did not loan his shoes to anyone, but someone may haveworn them without his permission.

On this evidence, the jury found defendant guilty offirst degree murder and not guilty of residential burglary. Thetrial court later sentenced him as stated.

Defendant appealed, alleging that the State failed toprove him guilty beyond a reasonable doubt of first degreemurder. Specifically, he claimed that (1) Taylor's testimony was"contradictory and inherently unreliable," (2) the evidence"tend[ed] to point more towards Taylor's guilt," and (3) the onlyphysical evidence "that in any way implicate[ed] [defendant] forthis crime was trace amounts of blood" on his shoes, which were"discovered under suspicious and questionable circumstances."

In September 2001, this court affirmed the trialcourt's judgment. People v. Palmer, No. 4-00-0634, slip order at19 (September 25, 2001) (unpublished order under Supreme CourtRule 23). In February 2002, the Supreme Court of Illinois denieddefendant's petition for leave to appeal. People v. Palmer, 198 Ill. 2d 603, 766 N.E.2d 243 (2002).

In August 2002, defendant filed a pro se postconvictionpetition, approximately 40 pages in length, asserting (1) he wasdenied effective assistance of appellate counsel, (2) he wasdenied effective assistance of trial counsel, (3) "prosecutorialmisconduct," (4) "insufficient evidence," and (5) he was notproved guilty beyond a reasonable doubt. Defendant attached tohis petition more than 100 pages of "exhibits," most policereports.

In November 2002, the trial court summarily dismisseddefendant's petition as frivolous and patently without merit.

This appeal followed.

Defendant alleges the trial court erred in summarilydismissing his postconviction petition. This court reviews denovo a trial court's dismissal of a postconviction petitionwithout an evidentiary hearing. People v. Simms, 192 Ill. 2d348, 360, 736 N.E.2d 1092, 1105-06 (2000).

Under the Post-Conviction Hearing Act (Act) (725 ILCS5/122-1 through 122-8 (West 2002)), the trial court must first,independently and without considering any argument by the State,determine whether the petition is "frivolous or is patentlywithout merit." 725 ILCS 5/122-2.1(a)(2) (West 2002). Tosurvive dismissal at this first stage, the petition need onlypresent "the gist of a constitutional claim," which is "a lowthreshold." People v. Gaultney, 174 Ill. 2d 410, 418, 675 N.E.2d102, 106 (1996).

"In considering a petition pursuant to [section 122-2.1of the Act], the [trial] court may examine the court file of theproceeding in which the petitioner was convicted, any actiontaken by an appellate court in such proceeding[,] and any transcripts of such proceeding." 725 ILCS 5/122-2.1(c) (West 2002).The court should examine those records to determine whether theallegations are positively rebutted by the record. That determination will assist the court in resolving the issue as to whetherthe petition is frivolous or patently without merit. People v.Little, 335 Ill. App. 3d 1046, 1051, 782 N.E.2d 957, 962 (2003).

Our supreme court has consistently upheld thefirst-stage dismissal of a postconviction petition when therecord from the original trial proceedings contradicts thedefendant's allegations. People v. Rogers, 197 Ill. 2d 216, 222,756 N.E.2d 831, 834 (2001); see People v. Jones, 66 Ill. 2d 152,157, 361 N.E.2d 1104, 1106 (1977) ("A court may also properlydismiss a post-conviction petition if the record of proceedingsat trial shows the petition to be nonmeritorious"); see alsoPeople v. De Avila, 333 Ill. App. 3d 321, 329, 775 N.E.2d 79, 85(2002) ("courts will uphold the summary dismissal of a post-conviction petition when the record from the original trialproceedings contradicts the defendant's allegations").

Additionally, a petition brought under the Act is not adirect appeal but rather is a collateral proceeding that permitsinquiry only into constitutional issues that defendant did notraise and could not have raised on direct appeal. Thus, issuesdefendant raised on direct appeal are barred from considerationby the doctrine of res judicata, and issues that defendant couldhave raised, but did not, are considered waived. People v.Williams, 209 Ill. 2d 227, 233, 807 N.E.2d 448, 452 (2004). Adefendant cannot avoid the bar of res judicata by simplyrephrasing issues previously addressed on direct appeal. Simms,192 Ill. 2d at 360, 736 N.E.2d at 1105. However, the doctrinesof res judicata and waiver will be relaxed in the following threecircumstances: (1) where fundamental fairness so requires, (2)where the waiver stems from the ineffective assistance ofappellate counsel, or (3) where the facts relating to the claimdo not appear on the face of the original appellate record. Williams, 209 Ill. 2d at 233, 807 N.E.2d at 452.

In this case, defendant claims that (1) on September25, 1998, a crime laboratory employee analyzed his tennis shoesand determined that the stains were not human blood and appellatecounsel "failed to bring this information to the attention of the*** court," (2) a detective "plant[ed] blood" on defendant'stennis shoes, and (3) law enforcement officials improperly seizedthe tennis shoes from defendant while he was incarcerated in thecounty jail.

On direct appeal, this court rejected defendant'scontention that the blood on his shoes was "discovered undersuspicious and questionable circumstances." Defendant simplyrephrases an issue previously addressed on direct appeal. Adefendant cannot avoid res judicata by adding additionalallegations that are encompassed by a previously adjudicatedissue. People v. Kimble, 348 Ill. App. 3d 1031, 1034, 811 N.E.2d346, 348-49 (2004). Since defendant's arguments have alreadybeen addressed, the trial court did not err in summarilydismissing defendant's postconviction petition.

Defendant next claims that he was denied his right toconflict-free counsel because the victim was an attorney. InPeople v. Graham, 206 Ill. 2d 465, 472, 795 N.E.2d 231, 236(2003), our supreme court addressed a criminal defendant's rightto conflict-free counsel as follows:

"A criminal defendant's sixth amendment rightto effective representation includes thecorrelative right to conflict-freerepresentation. [Citations.] Because adefendant is entitled to undivided loyaltyfrom defense counsel, this court has adopteda per se conflict-of-interest rule. [Citation.] Under this rule, the defendant'sconviction must be reversed if (1) defensecounsel has an actual or potential conflictof interest stemming from a previous orcurrent commitment to a party with interestsadverse to the defendant, and (2) thedefendant does not waive the conflict. [Citations.]

A threshold inquiry in anyconflict-of-interest case is whether, infact, defense counsel represented orrepresents a party with conflicting intereststo those of the defendant."

Counsel acknowledged he knew the victim "professionally" but hadno previous relationship with the victim that would give rise todivided loyalties.

Defendant next claims he was denied effectiveassistance of trial counsel because counsel failed to callmultiple named witnesses. A claim that counsel failed toinvestigate and call a witness must be supported by an affidavitfrom the proposed witness. People v. Enis, 194 Ill. 2d 361, 380,743 N.E.2d 1, 13 (2000). In the absence of such an affidavit, areviewing court cannot determine whether the proposed witnesscould have provided testimony or information favorable to thedefendant, and further review of the claim is not necessary. Enis, 194 Ill. 2d at 380, 743 N.E.2d at 13. Defendant has failedto support his claim with the appropriate affidavits.

Last, defendant claims the trial court erred by"allowing [the State] to proceed to trial with insufficientevidence." Specifically, defendant argues the State failed toconduct tests on substances found under the victim's fingernailsand thus, "has imprisoned the wrong man." On direct appeal, thiscourt rejected defendant's argument that the State failed toprove him guilty beyond a reasonable doubt of first degreemurder, stating:

"Based on the evidence that (1)defendant told Taylor that (a) he had to beatHelmbacher to death, and (b) blood waseverywhere; and (2) Helmbacher's blood wasfound on defendant's shoes, the jury couldconclude that defendant was guilty ofHelmbacher's murder. Contrary to defendant'scontention, the jury was not required tospeculate regarding the possibility that thecrime was committed by someone other thandefendant. [Citation.] Reviewing theevidence presented under the appropriatestandard of review, we conclude that arational trier of fact reasonably could havefound that defendant committed first degreemurder." People v. Palmer, No. 4-00-0634,slip order at 10 (September 25, 2001)(unpublished order under Supreme Court Rule23).

Since defendant's argument has already been addressed, the trialcourt did not err in summarily dismissing defendant'spostconviction petition.

For the reasons stated, we affirm the trial court'sjudgment.

Affirmed.

TURNER and STEIGMANN, JJ., concur.