People v. Garcia

• Decision Date: 05 November 2010
• Docket Number: No. 1–08–2841.,1–08–2841.
• Citation: 939 N.E.2d 972,345 Ill.Dec. 792,405 Ill.App.3d 608
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Daniel GARCIA, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

405 Ill.App.3d 608

939 N.E.2d 972

345 Ill.Dec. 792

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Daniel GARCIA, Defendant–Appellant.

No. 1–08–2841.

Appellate Court of Illinois, First District, Fifth Division.

Nov. 5, 2010.

Anita Alvarez, State's Attorney, County of Cook, Chicago (Alan Spellberg, Mary Needham, William L. Toffenetti, of counsel), for Plaintiff–Appellee–People of the State of Illinois.Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Caroline E. Bourland, Assistant Appellate Defender, for Petitioner–Appellant.

Justice TOOMIN delivered the opinion of the court:

[345 Ill.Dec. 797 , 405 Ill.App.3d 610] In the present appeal, we consider a postconviction claim premised, in part, on the findings of an allegedly discredited serologist. During the course of second-stage proceedings, the State's motion to dismiss was granted. Defendant appeals contending: (1) an evidentiary hearing is required to assess his claims regarding the testing of physical evidence, ineffectiveness of counsel, and the availability of testing to support his claim of actual innocence; (2) he made a substantial showing of ineffectiveness of appellate counsel and a violation of his due process rights; and (3) postconviction counsel's performance violated the mandate provided under Supreme Court Rule 651(c) (134 Ill.2d R. 651(c)). For the reasons that follow, we affirm.

BACKGROUND

In 1997, defendant, Daniel Garcia, was convicted of murder, aggravated kidnaping, and robbery following a jury trial and sentenced to terms of imprisonment of 80 years, 15 years, and 7 years, respectively. His codefendant, Benjamin Kirk, was also convicted in a simultaneous bench trial. Defendant appealed contending: (1) the admission of highly inflammatory testimony deprived him of a fair trial; (2) the evidence was insufficient to prove his guilt of aggravated kidnaping; (3) counsel was ineffective prior to and during trial; and (4) his sentence was excessive. We affirmed his conviction and sentence. People v. Garcia, No. 1–97–1049, 301 Ill.App.3d 1085, 253 Ill.Dec. 889, 746 N.E.2d 337 (1998) (unpublished order under Supreme Court Rule 23).

The facts of defendant's case are derived from the trial evidence reflected in the summary order disposing of defendant's direct appeal, coupled with our review of the trial record. Here, we recite those facts necessary to a resolution of the second-stage dismissal of his postconviction petition. On February 8, 1992, the body of Margaret Anderson was found beneath a viaduct near the intersection of the 3000 block of North Sacramento Avenue and the John F. Kennedy Expressway in Chicago. The 78–year–old victim was found by a passerby beaten almost beyond recognition and naked from the waist down.

Responding officers found Anderson's body lying on her back atop a ledge beneath the expressway. Officers were initially unable to determine either her race or her age due to the condition of her face. Although no identification was found near the body, a set of keys was located that opened the doors to Anderson's apartment. Thereafter, the victim's niece, Mary Wentland, identified Anderson's body at the office of the Cook County medical examiner. According to Wentland, Anderson wore eyeglasses. The medical examiner's testimony revealed that Anderson suffered numerous injuries to her face, knees, and thigh. Additionally, evidence of brain hemorrhages was identified and it was further determined that Anderson sustained a broken neck. Her injuries were consistent, in part, with being struck in the face. The medical examiner further opined that the fractured neck resulted from Anderson's head being forcefully struck against the concrete ledge beneath the viaduct.

Chicago police officers Cruz Reyes and Nathaniel Hill testified to their canvass of the surrounding area several days after the discovery of Anderson's remains. One of the sources they spoke with was Rosie Cintron, who was known to the officers as a prostitute and drug user. Reyes and Hill met Cintron outside Johnnie's Grill, a location drug dealers, addicts, and prostitutes were known to frequent. The officers

[345 Ill.Dec. 798 , 939 N.E.2d 978]

described her reaction to their questioning about the murder as being “taken aback” Nevertheless, Cintron voluntarily accompanied the officers in their car to discuss the murder. She was taken to police headquarters at Grand and Central, where the investigation was turned over to the detectives working the case.

According to Cintron's testimony, she knew both defendant and codefendant, Kirk. At the time of Anderson's murder, Cintron was an active drug user, who supported herself by prostitution and selling drugs. She testified that on February 7, 1992, she got high with the defendants at a crack house on Albany. She claimed she was high throughout the day and into the night. Cintron left the crack house with defendant in a cab. Eventually, she exited the cab at defendant's direction because he and codefendant “were going to score.” Later that morning Cintron again saw the defendants running past her into the crack house. They did not speak to her at that time. Eventually the defendants exited the building and Cintron spoke to defendant. When defendant came outside, he showed Cintron rocks of crack cocaine and a “golden bracelet.” According to Cintron, defendant indicated that he had to sell the bracelet, “get rid of it.”

Cintron next saw defendant a few days later at a hotel, when defendant explained how he and codefendant, Kirk, had watched a lady from the viaduct. When she walked by, codefendant grabbed her and began to beat her. According to Cintron, defendant “said that [codefendant] was nothing but an animal and he was brutal.” Defendant claimed they took a gold bracelet from the victim, which was the same one he had previously showed Cintron. Defendant described the victim as an old lady with glasses. At some point, Kirk threw the glasses onto the expressway.

Cintron made a voluntary statement concerning the foregoing to police. She identified the defendants from police photographs. At trial, Cintron conceded that some of her testimony before the grand jury was not truthful.

Following his arrest on February 14, 1992, defendant gave a written statement to Assistant State's Attorney Theodore Kmiec, which was published to the jury. According to the statement, defendant and Kirk were outside Johnnie's Grill at about 5 a.m. on February 8, 1992. They opted to go steal things in order to get money. As they walked along Diversey Avenue, they decided to steal audio equipment from a Mazda parked on the street. Kirk was the lookout while defendant removed the stereo.

Defendants continued down Diversey toward Sacramento. Upon turning northbound onto Sacramento, they encountered an older woman wearing glasses. Defendants observed jewelry on her person, which they believed to be gold. Kirk suggested they steal the woman's purse, to which defendant agreed. In furtherance of this plan, Kirk confronted the woman while defendant stood behind her. Kirk attempted to grab her purse. The victim struggled and resisted against his efforts. Kirk punched the woman in the face and then demanded the victim's jewelry. The woman refused and asked why she should give it to him. After Kirk struck the woman another time, defendant told her to surrender her jewelry in order to avoid being hit again. Defendant told Kirk to remove her bracelet and stop striking her. Kirk responded that defendant should keep quiet and “keep watching out.” Defendant watched as Kirk grabbed the woman by the hair and dragged her up the incline below the viaduct.

According to defendant, he became frightened by all the cars driving in the

[345 Ill.Dec. 799 , 939 N.E.2d 979]

area and ran back to Johnnie's Grill. Approximately an hour after defendant departed the viaduct, codefendant arrived at Johnnie's and summoned defendant outside. Defendant exited the restaurant and shook hands with Kirk. When he did, he found a gold bracelet on his palm. It was the same bracelet they saw the old woman wearing. As he tendered the bracelet to defendant, Kirk cautioned, “you did not see anything.”

The parties also stipulated to the testimony of serologist and microbiologist Pamela Fish. At the time of trial she had been employed by the Illinois State Police crime laboratory for approximately six months. Before that, Fish worked at the Chicago police crime laboratory, which was closed and folded into the Illinois State Police laboratory. If called to testify, Fish would describe receiving swabs from Anderson's vagina, mouth, and rectum. Having utilized acceptable methods in the scientific community, it was her opinion that those swabs were negative for the presence of spermatozoa or semen. Next, she would testify that her testing of a swab “containing a reddish brown substance * * * taken from the sidewalk of 3030 North Sacramento” indicated the substance was human blood, but the sample was “insufficient * * * to test the blood type.” Likewise, a second sample taken from the ledge beneath the viaduct was determined to be human blood, but the sample was insufficient to conduct blood typing. Furthermore, she would testify that while a jacket found beneath the viaduct was tested for the presence of blood, the results were negative.

Defendant testified on his own behalf. He claimed he was arrested and taken to the 14th District police station, where he repeatedly denied knowing anything about Anderson's murder. Notwithstanding his denials, the detectives hit and punched him, pulled his hair, and kicked him. Defendant further claimed the detectives planted keys and an identification card in his jacket. During a subsequent interview he was struck in the head with a telephone book, causing him to fall and lacerate his arm. He was told each time he denied being involved he would be struck with the book. Defendant claimed he was struck...