People v. Gillespie

• Decision Date: 29 December 2010
• Docket Number: Nos. 1–08–3016,1–10–0702.,s. 1–08–3016
• Citation: 346 Ill.Dec. 883,941 N.E.2d 441,407 Ill.App.3d 113
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Jerry GILLESPIE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

407 Ill.App.3d 113

941 N.E.2d 441

346 Ill.Dec. 883

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

v.Jerry GILLESPIE, Defendant–Appellant.

Nos. 1–08–3016

1–10–0702.

Appellate Court of Illinois, First District, Third Division.

Dec. 29, 2010.

DePaul University College of Law, Chicago (Professor Andrea D. Lyon, Director, Center for Justice in Capital Cases, of counsel), for Appellant.Stuart A. Nudelman (Ret.), Special State's Attorney, Cook County, Chicago (Assistant Special State's Attorney Andrew N. Levine, of counsel), for Appellee.Presiding Justice QUINN delivered the opinion of the court:

[407 Ill.App.3d 114 , 346 Ill.Dec. 886] Defendant Jerry Gillespie appeals from orders of the circuit court denying him leave to file his third and fourth successive petitions for relief under the Post–Conviction Hearing Act (Act) (725 ILCS 5/ 122–1 et seq. (West 2008)) and dismissing two petitions for relief under section 2–1401 of the Illinois Code of Civil Procedure (Code) (735 ILCS 5/2–1401 (West 2008)). For the following reasons, we affirm.

I. BACKGROUND

Following a 1994 jury trial, defendant was convicted of first degree murder based on a theory of accountability for his participation in the fatal shooting of beauty shop employee Jeffrey Rodgers. On February 13, 1993, at about 9 p.m., six masked men entered the beauty shop and ordered everyone to the ground. Three of the masked men used guns to shoot and kill Rodgers in retaliation for the murder of the brother of a gang member.

Following his arrest, on February 22, 1993, codefendant Antwan Holiday provided a court-reported statement. Holiday admitted that he held the rank of chief of security for his street gang and that KB (Johnell Alexander) ordered a hit on the victim because the victim was involved in the murder of a gang member. Holiday implicated defendant and stated that defendant had a .38–caliber weapon, while codefendant Jeffrey Clarkson had a 9–millimeter gun and another gang member had a Glock. Holiday stated that he acted as a security agent at 56th and Racine while

[346 Ill.Dec. 887 , 941 N.E.2d 445]

the armed men entered the beauty shop and killed the victim. A 9–millimeter gun was recovered from Clarkson's bedroom. Holiday and codefendant Gerald Earl were tried simultaneously before separate juries. Both Holiday and Earl were convicted of first degree murder and sentenced to 60 years in prison.

On direct appeal, this court corrected the mittimus to reflect only one count of first degree murder and affirmed Holiday's conviction and sentence. People v. Holiday, No. 1–94–4185, 288 Ill.App.3d 1101, 238 Ill.Dec. 436, 711 N.E.2d 823 (June 20, 1997) (unpublished order under Supreme Court Rule 23). On direct appeal, this court reversed Earl's conviction and remanded for a new trial because the State failed to present evidence, which was apparently available, to connect Earl to the guns and ammunition admitted into evidence. People v. Earl, No. 1–94–3449, 294 Ill.App.3d 1096, 242 Ill.Dec. 571, 721 N.E.2d 850 (January 23, 1998) (unpublished order under Supreme Court Rule 23).

Two other codefendants were convicted of the first degree murder of Rodgers in separate trials. Willie Hughes was convicted and sentenced to 60 years in prison. On direct appeal, this court affirmed the judgment. People v. Hughes, Nos. 1–94–4184, 1–95–0340 & 1–95–2942, cons., 288 Ill.App.3d 1101, 238 Ill.Dec. 436, 711 N.E.2d 823 (June 30, 1997) (unpublished order under Supreme Court Rule 23). Jeffrey Clarkson was convicted and sentenced to 40 years in prison and this court affirmed the judgment on direct appeal. People v. Clarkson, No. 1–94–4398, 288 Ill.App.3d 1099, 238 Ill.Dec. 435, 711 N.E.2d 822 (June 27, 1997) (unpublished order under Supreme Court Rule 23).

In defendant's case, police officers initially treated defendant as a witness during their investigation of the Rodgers homicide. On February 18, 1993, at about 2 p.m., defendant accompanied Detectives McDonald and Rajkovich to the police station. Following an interview with Detective Clancy, defendant provided an exculpatory statement which implicated co-defendant Clarkson. Defendant then repeated the statement to an assistant State's Attorney who reduced it to writing. After that interview, which concluded at approximately 3 a.m., the assistant State's Attorney asked defendant whether he would testify before the grand jury. Defendant agreed, and, citing safety factors, defendant opted to spend the night at the police station.

The next morning, on February 19, 1993, Detective Rajkovich took defendant to testify before the grand jury. During his grand jury testimony, defendant stated that on February 11, 1993, he was walking down the street and met “Ray Ray” (codefendant Clarkson). Defendant testified that he asked Clarkson what happened with the shooting at the beauty salon and Clarkson replied that he did not know. Defendant testified that later that day he spoke with a boy named Michael, who told defendant that Ray Ray (Clarkson), Twan (Antwan Holiday), and Six–Point (Willie Wilson) were responsible for the beauty shop shooting. Defendant testified that when he saw Clarkson again that day, defendant told Clarkson that he heard that Clarkson, Holiday, and Wilson were responsible for the shooting. Defendant testified that Clarkson agreed and told defendant that they shot the victim in the beauty salon while the victim was on the phone. Defendant also testified that he had known Clarkson for about five years, Clarkson was a member of the Gangster Disciples, and Clarkson usually carried a 9–millimeter gun.

After the grand jury, Detective Rajkovich was driving defendant to defendant's

[346 Ill.Dec. 888 , 941 N.E.2d 446]

residence when the detective received a page. The detective returned the page and learned that defendant had been implicated in the murder by codefendant Hughes. Detective Rajkovich returned defendant to the police station. At the station, Detective McDonald spoke with defendant and told him that it appeared that defendant had lied in his previous statement. Defendant admitted that he had lied and subsequently provided an inculpatory, court-reported statement.

In the court-reported statement, defendant admitted that he was a member of the Gangster Disciples street gang. Defendant stated that KB (Alexander) was in control of his neighborhood for the Gangster Disciples and that KB's duties included directing members, holding meetings, and telling members to be on security. Defendant stated that on the day of the Rodgers murder, at about 7 p.m., he met with codefendants Holiday and Clarkson at his house. Defendant stated that Holiday and Clarkson were also members of the Gangster Disciples and they informed defendant that they were going to kill a rival gang member who worked at the beauty shop because that person was involved in the murder of one of the Gangster Disciples' leaders. Holiday and Clarkson told defendant to meet them at 55th and Racine between 8 and 8:30 p.m., and that defendant's role was to act as security while they shot the rival gang member. At about 8 p.m., defendant went to the designated corner, which was located across the street from the beauty shop, and Alexander directed defendant to his security post. Defendant stated that Alexander was directing everyone regarding what to do during the murder. Defendant noticed that Holiday was carrying a Glock, and Clarkson was carrying a .38– or .357–caliber revolver. Defendant watched six gang members, including three members who were armed, walk toward the beauty shop. A short time later, defendant heard gunshots from inside the beauty shop, and defendant left the scene and went home. Defendant stated that he had not been threatened by police officers or an assistant State's Attorney and that he provided the statement under his own free will.

Prior to trial, defendant filed a motion to quash arrest and to suppress his inculpatory statements. At the hearing on his motion, defendant testified that on February 18, 1993, at about 3 p.m., he was driving in his car when police officers pulled in front of him and blocked his way. Defendant testified that detectives got out of their vehicles with weapons drawn, ordered defendant out of his car, handcuffed defendant, and placed defendant in a police car and took him to the police station. Defendant testified that he was not advised of his Miranda rights and was held incommunicado.

Defendant testified that the detectives did not ask him whether he wanted to testify before the grand jury and no one provided him with the option to sleep at home on the evening before testifying before the grand jury. After he testified before the grand jury, defendant was returned to the police station and defendant testified that he was physically and psychologically abused by police officers. Defendant testified that he was told he would go to jail for 100 years if he did not cooperate with the murder investigation. After he denied involvement in the Rodgers murder, defendant testified that Detective Foley slapped him in the face, grabbed him by the throat, and then slapped him again. Defendant also testified that Detective McDonald knocked over the chair that defendant was sitting on. On cross-examination, defendant testified that he voluntarily signed the statement which said that he was well-treated by the police, but defendant refuted the

[346 Ill.Dec. 889 , 941 N.E.2d 447]

veracity of his signed statement. The State also presented several witnesses to testify at the suppression hearing. After hearing arguments, the circuit court made lengthy findings of fact. The circuit court found that defendant voluntarily went to the police station to assist in the murder investigation and was not advised of his Miranda rights initially because he was considered to be a witness at that time. With regard to the physical coercion claim, the circuit court found no credible evidence of police brutality. Acc...