People v. Dupree

• Decision Date: 01 November 2018
• Docket Number: Docket No. 122307
• Citation: 124 N.E.3d 908,2018 IL 122307,429 Ill.Dec. 398
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Torrence D. DUPREE, Appellant.
• Court: Illinois Supreme Court

2018 IL 122307

124 N.E.3d 908

429 Ill.Dec. 398

The PEOPLE of the State of Illinois, Appellee,

v.Torrence D. DUPREE, Appellant.

Docket No. 122307

Supreme Court of Illinois.

Opinion filed November 1, 2018.

Modified Upon Denial of Rehearing February 28, 2019.

JUSTICE BURKE delivered the judgment of the court, with opinion.

¶ 1 After a Lake County jury trial, defendant Torrence Dupree was convicted of two counts of armed robbery and two counts of aggravated robbery. His convictions were upheld on direct appeal. 2012 IL App (2d) 101247-U, 2012 WL 6967062. Subsequently, defendant filed a postconviction petition. The petition advanced to the second stage, at which time defendant filed a third-amended petition raising several claims, including a claim that his trial counsel was ineffective for failing to call an "exculpatory witness" to testify at trial. The circuit court dismissed the petition on the State's motion, finding that defendant failed to make a substantial showing that his trial counsel was ineffective.

¶ 2 On appeal, the appellate court affirmed the circuit court's dismissal of the postconviction petition in an unpublished order. 2017 IL App (2d) 141013-U, 2017 WL 1401470. Unlike the circuit court, however, the appellate court did not consider the ineffective assistance claim on its merits but held that the postconviction petition was properly dismissed, as a matter of law, solely because defendant failed to attach to his petition an affidavit from the proposed witness.

¶ 3 We granted defendant's petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Mar. 15, 2016). For the reasons that follow, we now hold that, under the facts of this case, defendant's failure to provide an affidavit was not, by itself, fatal to his claim of ineffective assistance of counsel. Nonetheless, we affirm the circuit court's dismissal of defendant's postconviction petition because we, like the circuit court, find that defendant failed to make a substantial showing that his trial counsel was ineffective.

¶ 4 BACKGROUND

¶ 5 Defendant Torrence Dupree (also known as Teko) was charged with two counts of armed robbery ( 720 ILCS 5/18-2(a)(2) (West 2010) ) and two counts of aggravated robbery (id. § 18-5 (now codified at 720 ILCS 5/18-1(b)(1) (West 2016) ) ), in connection with the robbery of Matthew Morrison and Kiernan Collins on February 16, 2010, in Grayslake, Illinois. At a jury trial, evidence established that on the evening of February 16, 2010, Steven Nowell called Matthew Morrison to arrange for the purchase of some marijuana. Morrison, accompanied by a friend, Kiernan Collins, drove to the Grayslake Apartments complex to meet with Nowell. When Nowell met Morrison in the parking lot of the apartment complex, a man armed with a gun and wearing a black, hooded sweatshirt with the hood pulled up over his head pushed his way into the front passenger seat of Morrison's car, demanded money from Morrison and Collins, and removed a backpack from the backseat of Morrison's car before fleeing. Because the gunman wore a hooded sweatshirt, which covered much of his face, and because there was no physical evidence tying defendant to the robbery, the identification of defendant as the armed robber was the main issue at trial.

¶ 6 Steven Nowell was one of two identification witnesses presented by the State. He testified that on the afternoon of February 16, 2010, he had been with defendant and three other people—Cedric, "Blue," and Kramer—at Kramer's apartment located in the Grayslake Apartments complex.

Later, Nowell, Kramer, and Blue left the apartment, picked up Nowell's girlfriend, Kenyana Whiteside, and went to McDonald's to purchase some food. Nowell testified that, when they returned from McDonald's, he and Whiteside went to her apartment, which was also in the Grayslake Apartments complex. Nowell then made a phone call to Morrison to arrange for the purchase of some marijuana.

¶ 7 According to Nowell, after he called Morrison, defendant came to Whiteside's apartment and asked to use her cell phone. Nowell claimed that, when defendant finished using Whiteside's phone, defendant asked him if he was going to get some marijuana from Morrison. Nowell testified that he told defendant "no" because he didn't want to share and because he "knew what [defendant] was capable of." Nowell said defendant accompanied him when he left Whiteside's apartment but he saw defendant walking away from the complex as he continued toward the parking lot to meet with Morrison.

¶ 8 Nowell testified that, when he saw Morrison's car in the parking lot, he got in and noticed a man he did not know (later identified as Kiernan Collins) sitting in the rear passenger seat. Morrison then drove out of the parking lot. Shortly thereafter, Nowell stated, he got a call from Whiteside telling him he forgot his money, so he asked Morrison to go back. Morrison drove back to the parking lot, and Nowell got out. Nowell testified that, when he returned to Morrison's car, a man wearing a hooded sweatshirt and brandishing a gun came up behind him. Nowell said the gunman pushed him into the passenger seat of Morrison's car and then leaned into the car and asked, "Where's the stuff?" The gunman then pointed the gun at him and ordered him to pat down Morrison and Collins and take their cell phones. Nowell admitted taking Morrison's cell phone but said that Morrison and Collins both surrendered their money to the gunman before he could pat them down.

¶ 9 Nowell testified that the gunman pushed him out of the car and a struggle then ensued between Morrison and the gunman as Morrison attempted to start the car. The gunman reached into the backseat, took Morrison's backpack, and then fled from the vehicle as Morrison started the car and drove off. Nowell claimed that, after the robbery, the gunman started to follow him back toward the apartment complex but then jumped into a van and took off. Nowell admitted that he kept Morrison's cell phone and said that he later threw the phone away rather than return it to Morrison.

¶ 10 Nowell further testified that the next day, February 17, 2010, after learning that the police were looking for him, he turned himself in at the Grayslake Police Department. There he was questioned, intermittently, for approximately 2 ½ hours before he was arrested on charges of aggravated robbery and robbery in relation to this incident. At the police station, Nowell maintained that he was not involved in the robbery, had not set up Morrison to be robbed, and did not know who the gunman was. Later, however, when he learned that he was under arrest for his part in the robbery, he admitted to the police that defendant was the gunman. Nowell also told the jury that he later had accepted a plea deal whereby he pled guilty to reduced charges in exchange for his agreement to testify against defendant.

¶ 11 On cross-examination, Nowell reiterated that he initially told the police he could not identify the gunman and even said that defendant could not have been the gunman because he was too short. However, when he learned that he was being charged, he told the police—as he testified at trial—that, while he never saw the gunman's face, he knew it was defendant because of his voice and the clothes he was wearing. Nowell also testified that between the evening of February 16, when the robbery took place, and February 17, when he turned himself in, defendant called him several times, threatening him not to reveal defendant's identity.

¶ 12 The other identification witness was Kiernan Collins, who had been sitting in the backseat of Morrison's car at the time of the robbery. Collins's rendition of the robbery was similar to Nowell's, except that he cast Nowell more as a willing participant. Collins testified that, when Nowell first entered Morrison's car and they drove out of the parking lot, Nowell claimed he got a call from his girlfriend but Collins never heard the phone ring. Collins testified that they returned to the parking lot and Nowell got out but, almost immediately, Nowell came back to the car, followed closely by the gunman in the hooded sweatshirt. Also, Collins testified that, for much of the time during the robbery, Nowell simply stood outside Morrison's car. The gunman pushed Nowell out of the way, kneeled on the passenger seat, took money from him and Morrison, and then took Morrison's backpack before fleeing.

¶ 13 Collins admitted that he did not get a good look at the gunman because the robbery took place in the evening and it was dark. In addition, the gunman had a hooded sweatshirt pulled tightly around his head, which covered most of his face. Collins also testified that during the robbery, which only lasted a short time, he was mainly focused on the gun and was fearful of looking at the gunman directly. Nonetheless, Collins gave a description of the gunman to police and selected defendant's photo out of a six-man photo array. Collins admitted on cross-examination that he described the gunman as being six feet to six feet, two inches tall and that defendant apparently is only about five feet, eight inches or five feet, nine inches tall. Also, Collins admitted that, when he selected defendant's photo from the array, he told the police that, of the pictures in the array, defendant's picture "most resembled the gunman." Collins estimated that he was 70% sure that defendant was the gunman.

¶ 14 Lastly, Collins testified that on July 23, 2010, which was three days before trial was scheduled to begin, he received a collect phone call from the Lake County jail, where defendant was being held. When Collins learned the call was from "Torrence," he did not accept the call.

¶ 15 No physical evidence was presented at trial. Although latent fingerprints were lifted from the exterior of Morrison's vehicle, they were found either to be unsuitable for comparison or of such poor quality that comparison to defendant's prints was inconclusive. However, the State offered into evidence two...