People v. Nowicki

• Decision Date: 29 August 2008
• Docket Number: No. 1-05-3645.,1-05-3645.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Casey NOWICKI, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

894 N.E.2d 896

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Casey NOWICKI, Defendant-Appellant.

No. 1-05-3645.

Appellate Court of Illinois, First District, Sixth Division.

August 29, 2008.

Office of the State Appellate Defender, Chicago (Brian A. McNeil, Assistant Appellate Defender, Michael J. Pelletier, Deputy Defender, of counsel), for Appellant.

Cook County State's Attorney's Office, Chicago (Richard A. Devine, State's Attorney, James Fitzgerald, Peter Fischer, Assistant State's Attorneys of Counsel), for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

In December 2000, defendant, Casey Nowicki, was charged in a seven count indictment for the 1984 murder of the victim, Marcy Andrews, whose body was never found. Following a jury trial in the circuit court of Cook County, defendant was found guilty of first degree murder and sentenced to natural life in prison. Defendant contemporaneously filed a post-trial motion seeking a new trial, and a section 2-1401 petition for relief from judgment seeking to vacate his conviction. The circuit court denied defendant's post-trial motion for a new trial and dismissed his section 2-1401 petition, and defendant now appeals from both. Defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) he received ineffective assistance of counsel where in opening argument counsel promised to advance various theories of the case but then failed to do so, and where counsel failed to challenge the competency of the State's key witness despite the witness's inability to recollect the events; (3) he was denied due process when the trial court permitted the State to present and rely on the perjured testimony of its key witness at trial; and (4) he was denied a fair trial when the prosecution improperly shifted the burden of proof to defendant. For the reasons that follow we affirm.

I. BACKGROUND

In 2000, nearly 16 years after the crime had been committed, defendant was charged in a seven-count indictment with the first degree murder of Marcy Andrews. That indictment included: (1) one charge of intentional first degree murder in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Criminal Code) (720 ILCS 5/9-1(a)(1) (West 2000)), in that defendant unlawfully, intentionally or knowingly killed Marcy Andrews by drugging and strangling her; (2) one charge of first degree murder in violation of section 9-1(a)(2) of the Criminal Code (720 ILCS 5/9-1(a)(2) (West 2000)), in that defendant knew that the drugging and strangling of Marcy Andrews created a strong probability of death or great bodily harm to her; and (3) five charges of felony murder in violation of section 9-1(a)(3) of the Criminal Code (720 ILCS 5/9-1(a)(3) (West 2000)), in that Marcy Andrews was killed while defendant was committing the forcible felonies of rape, aggravated kidnaping, aggravated battery, unlawful restraint, and/or deviate sexual assault.

Defendant was tried before a jury in July 2005. The evidence adduced at trial established the following pertinent facts. In 1984, Sara Andrews lived on the north side of Chicago with her husband Robert and two minor children. Sara also had an adult daughter, the victim, 24-year-old Marcy Andrews. At that time, Marcy was 5 feet 2 inches tall and weighed about 120 pounds.

Sara testified at trial that Marcy was not Robert's daughter but rather the daughter of James Prather, who was no longer alive at the time of the trial. Sara explained that she married Robert when Marcy was 11 years old and that she then changed Marcy's last name to Andrews. According to Sara, Marcy lived in an apartment in her step-grandmother's house on the northwest side of Chicago.

According to Sara, sometime in 1982, Marcy approached her and told her that she had a drinking problem and that she wanted to go to a treatment center. Sara stated that soon thereafter Marcy entered herself in a program called Crossroads at St. Xavier University, where she stayed for about nine months. While at Crossroads, Marcy attended Daley Junior Community College. According to Sara, Marcy wanted to make sure her treatment was complete and she also wanted to counsel other people who came to the center.

After leaving Crossroads, Marcy moved into an apartment in her step-grandmother's house and enrolled in nearby Northeastern Illinois University. In February 1984, Marcy worked at Periodical Publishers on West Lawrence Avenue in Chicago. At that time, she had stopped attending Northeastern University because she had made plans to move to Paducah, Kentucky, where Sara's sister lived. According to Sara, Marcy had already traveled to Paducah to apply for a job in Wal-Mart, find an apartment, and obtain the necessary application forms for Paducah Community College. Marcy intended to leave Chicago in mid-March in order to start the summer semester at Paducah Community College on June 1.

Sara testified that at approximately 5 p.m. to 6 p.m., on February 13, 1984, she arrived home from work, where Marcy had been babysitting her step-sister Jessica. According to Sara, Marcy had just taken a shower and was blow-drying her hair. Marcy needed a ride back to her apartment, and her stepfather gave her a ride home. Sara testified that this was the last time she saw Marcy.

Sara averred that two days later, on February 15, 1984, she called Marcy in order to ask if they could get together so that she could give Marcy a box of Valentine's Day chocolates that she had bought for her. Sara stated that she was unable to reach Marcy and instead spoke to her mother-in-law, who shared a telephone with Marcy. Sara testified that she learned that Marcy had not called her step-grandmother the night before to tell her that she would not be home. Sara stated that she became concerned when she heard this. She explained that it was unusual for Marcy not to call her step-grandmother because it was common for Marcy's step-grandmother to wait up for Marcy with a sandwich and something to drink so that they could talk before going to bed. According to Sara, Marcy had always been very attentive and respectful toward her step-grandmother.

Sara averred that she then learned that Marcy had been with a friend named Dori Pernell,¹ but that she did not know Dori's address or telephone number. Sara attempted to find Dori's telephone number but discovered that it was unlisted. She then asked her mother-in-law to make a note of everyone who called for Marcy and get their contact information. According to Sara, her mother-in-law did just that and every time someone called, she would report to Sara, who would call the person and ask them to tell her the last time they had seen or heard from Marcy. For a week, Sara could not find anyone who had seen or heard from Marcy. On the weekend, Sara drove to the family's second home in Michigan to check if Marcy had gone there and collect some of her old address books, where she hoped she could find Dori's telephone number. To Sara's dismay, however, there were no signs that Marcy had been inside the Michigan home.

While Sara was in Michigan, she received a telephone call from her mother-in-law saying that Dori had called and left a telephone number. Sara called Dori from Michigan, and after speaking with her, Sara decided to immediately call the police. Upon her return to Chicago, Sara also filed a missing person's report with the Chicago police department, providing the police with descriptions and photographs of Marcy and any other relevant information.

Sara testified that she did not hear from the police in the next few days, but that she continued "to call anybody she could," including her sister in Paducah, her parents, and other relatives, asking if they had heard from or seen Marcy. Sara also called Marcy's employer, who told her that Marcy had not shown up for work. Sara telephoned Crossroads and spoke to a few counselors there, who told her that Marcy was supposed to have lunch with one of them, but that she failed to show up. The counselors were "quite concerned" when they had not heard from Marcy.

Sara averred that she also went into Marcy's apartment. According to Sara, the apartment was very neat, Marcy's bed was made, a paperback book was open and overturned on the night stand and Marcy's reading glasses were on top of the paperback. It appeared to Sara that Marcy had started separating her clothes for the move to Paducah, because there was "a pile of discards, she had a pile of washing, and a pile of ironing," and the ironing board was set up. On the desk Sara found a few bills in envelopes, with dates written on them indicating on which date they were supposed to be mailed. On the desk, Sara also found some gold chains and jewelry. Sara also observed a request for transcripts to be sent to Kentucky and a savings passbook for Irving Federal Savings. Sara testified that from what she observed in the apartment she could not determine if anything was missing or if it appeared that Marcy was going to come back. Sara averred that she could not find Marcy's purse, but that she took the contents of the wastebasket, Marcy's old telephone books and letters, Christmas cards, and "anything that was there that had anything written on it."

In the following days, Sara spoke to Marcy's friends, Dori and Gay Dell, and then to David Harold. Sara searched area hospitals for Marcy but there were no record of Marcy there. Sara also made flyers with Marcy's photo and together with relatives distributed them continuously throughout the area.

Sara also contacted Marcy's birth father and asked him if Marcy had talked about anything out of the ordinary recently. Marcy's father was very concerned and told Sara that the last time he spoke to Marcy she seemed normal. According to Sara, Marcy's father called back with a list of all the calls Marcy had made from Boston at the time she was visiting him. Sara contacted all the people from that list...