People v. Pecoraro

• Decision Date: 06 February 1997
• Docket Number: No. 78457,78457
• Citation: 222 Ill.Dec. 341,175 Ill.2d 294,677 N.E.2d 875
• Parties: , 222 Ill.Dec. 341 The PEOPLE of the State of Illinois, Appellee, v. John PECORARO, Appellant.
• Court: Illinois Supreme Court

Page 875

677 N.E.2d 875

175 Ill.2d 294, 222 Ill.Dec. 341

The PEOPLE of the State of Illinois, Appellee, v. John PECORARO, Appellant.

No. 78457.

Supreme Court of Illinois.

Feb. 6, 1997.

Rehearing Denied March 31, 1997.

Marshall J. Hartman, Chicago, David J. Keefe, Nashville, Tennessee, and Daniel R. Schwartz and Gregory Elsnic, law students, for appellant, and John Pecoraro, of Menard, appellant pro se.

James E. Ryan, Attorney General, Springfield, and Jack O'Malley, State's Attorney, Chicago (Arleen C. Anderson, Assistant Attorney General, Chicago, and Renee Goldfarb and Kim A. Novi, Assistant State's Attorneys, of counsel), for the People.

Justice NICKELS delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, John Pecoraro, was found guilty of murder (Ill.Rev.Stat.1981, ch. 38, par. 9-1) in connection with the shooting death of Jimmy Christian. Thereafter a capital sentencing hearing was conducted before the trial court and defendant was sentenced to death. Defendant's conviction and sentence were affirmed on direct appeal. People v. Pecoraro, 144 Ill.2d 1, 161 Ill.Dec. 296, 578 N.E.2d 942 (1991). Defendant subsequently filed a petition for relief under the Post-Conviction Hearing Act. 725 ILCS 5/122-1 et seq. (West 1994). The State filed a motion to dismiss defendant's petition and the circuit court granted the motion. Defendant appeals directly to this court pursuant to Supreme Court Rule 651 (134 Ill.2d R. 651). We note that defendant has filed briefs through counsel and has also submitted a pro se brief. For the reasons set forth we affirm the judgment of the circuit court.

BACKGROUND

On Wednesday, December 8, 1982, the body of the victim, Jimmy Christian, was discovered in his brown Oldsmobile, which was parked near the premises of a small manufacturing company in Chicago. The owner and an employee of the company had observed that the Oldsmobile had been parked in the same spot and had not moved since Monday, December 6. The cause of the victim's death was a gunshot wound to the chest.

The record reveals that defendant worked with the victim's wife, Nadine Christian, for a company called Parklane Jewelry. The detectives investigating the murder apparently considered defendant a suspect and interviewed him in connection with the crime, but were initially unable to obtain sufficient evidence to support charges against defendant. The turning point in the case occurred several years after the offense. On August 6, 1986, at about 9 a.m., defendant flagged down a police car driven by Chicago police officer Jeffrey Becker. Defendant stated that he wanted to confess to a murder. Officer Becker placed defendant under arrest and administered his Miranda warnings. Defendant informed Officer Becker that he had killed Jimmy Christian. Defendant related that he waited outside the victim's house. When the victim emerged, defendant forced the victim at gunpoint into the victim's automobile. Defendant drove to a certain location and shot the victim. Defendant indicated that the murder weapon was a .45-caliber handgun and that he disposed of the weapon in the Chicago River.

After Officer Becker transported defendant to the police station, defendant was interviewed by Detectives William Kaupert and Peter Aipaia and later by Assistant State's Attorney Joseph Barbaro. Before each interview, defendant was advised of his Miranda rights. Assistant State's Attorney Barbaro prepared a handwritten statement detailing defendant's account of the crime. Defendant refused to sign the statement, indicating that he only wanted to get the crime "off his chest," but did not want to go to prison. The handwritten statement was read to the jury at trial without objection by the defense. Defendant's account to the detectives and assistant State's Attorney was similar to his account to Officer Becker. He stated that he waited for the victim to leave for work, forced the victim into his own car and drove the car a few blocks from the Christian home where he shot the victim in the chest with a .45-caliber handgun. With respect to his motive for the crime, defendant indicated that he had been involved in a romantic relationship with the victim's wife, Nadine, and that he did not like the way the victim treated Nadine.

Prior to trial, defendant moved to suppress his statements to police on the basis that he had consumed substantial quantities of drugs and alcohol and was fatigued when he spoke with police. Defendant claimed that he was unable to knowingly and intelligently waive his rights under Miranda. The trial court denied the motion.

At trial, the State presented the testimony of Martha Jackson, a coworker of defendant and Nadine Christian at Parklane Jewelry. Jackson testified that she and Nadine had met defendant in August 1982, and Nadine recruited defendant to work for Parklane. Jackson observed defendant and Nadine spending a lot of time together. On one occasion during a celebration at a tavern, Jackson observed defendant and Nadine kissing. Jackson joked that Nadine's husband was coming through the door. Defendant made an obscene gesture and stated that if he could not have Nadine, nobody could. Jackson also testified that on one occasion she observed defendant armed with a handgun in a shoulder holster. She told police the gun was a .45-caliber weapon.

Defendant presented evidence that subsequent to his statements to the authorities, it was determined that the bullet that killed the victim was fired from a .357-caliber weapon rather than a .45-caliber weapon. Defendant's former wife testified that on December 6, 1982, she and defendant woke up together at about 6:30 a.m. and defendant drove her to work, arriving at about 8:20 a.m.

Defendant also presented the testimony of Lisa Shankman, who was defendant's girlfriend in August 1986. Shankman testified that defendant was a regular cocaine user and she was familiar with the manner in which cocaine affected defendant. Shankman saw defendant briefly at about 5 p.m. on August 5, 1986, the day before his arrest, and he appeared to have been drinking or to have been under the influence of some substance. Shankman next saw defendant at 8:30 the next morning and it appeared he was definitely "high on something." It was stipulated that Jean Clark, a bartender or waitress, would testify that on the evening of August 5, 1986, she served defendant a number of drinks. It was further stipulated that Clark would testify that on a few occasions she observed defendant go into the washroom and on his return he would appear to be "more hyper and more talkative" than before.

Based on the foregoing evidence, the jury found defendant guilty of murder. The trial court found defendant to be eligible for the death penalty because he had a prior murder conviction (see Ill.Rev.Stat.1981, ch. 38, par. 9-1(b)(3)), and sentenced him to death.

THE POST-CONVICTION HEARING ACT

The Post-Conviction Hearing Act permits a defendant to mount a collateral attack on his conviction and sentence based on violations of his constitutional rights. People v. Coleman, 168 Ill.2d 509, 522, 214 Ill.Dec. 212, 660 N.E.2d 919 (1995); People v. Mahaffey, 165 Ill.2d 445, 452, 209 Ill.Dec. 246, 651 N.E.2d 174 (1995). The scope of post-conviction review is limited to matters which have not been, and could not have been, previously adjudicated. Coleman, 168 Ill.2d at 522, 214 Ill.Dec. 212, 660 N.E.2d 919; People v. Brisbon, 164 Ill.2d 236, 245, 207 Ill.Dec. 442, 647 N.E.2d 935 (1995). Determinations of the reviewing court on direct appeal are res judicata as to issues actually decided, and issues that could have been raised on direct appeal but were not are waived. Coleman, 168 Ill.2d at 522, 214 Ill.Dec. 212, 660 N.E.2d 919; Mahaffey, 165 Ill.2d at 452, 209 Ill.Dec. 246, 651 N.E.2d 174. Moreover, a defendant is entitled to an evidentiary hearing on a post-conviction claim only if he has made a substantial showing, based on the record and supporting affidavits, that his constitutional rights were violated. Coleman, 168 Ill.2d at 537, 214 Ill.Dec. 212, 660 N.E.2d 919; People v. Guest, 166 Ill.2d 381, 389, 211 Ill.Dec. 490, 655 N.E.2d 873 (1995). With these principles in mind, we review the dismissal of defendant's post-conviction petition without an evidentiary hearing.

ANALYSIS

I. Failure to Disclose or Preserve Exculpatory Evidence

Defendant contends that the prosecution violated its constitutional obligation under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and its progeny to disclose to the defense various evidence that defendant characterizes as exculpatory. Brady held that "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87, 83 S.Ct. at 1196-97, 10 L.Ed.2d at 218. Subsequently, however, the Court held that regardless of whether specifically requested by the defense, favorable evidence is material and its suppression by the State constitutes a constitutional violation "if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 3383, 87 L.Ed.2d 481, 494 (1985), quoted in Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490, 505 (1995). Moreover, the disclosure obligation applies to impeachment evidence as well as evidence bearing directly on guilt or innocence. United States v. Bagley, 473 U.S. 667, 676, 105 S.Ct. 3375, 3380, 87 L.Ed.2d 481, 490 (1985); see Kyles v. Whitley, 514 U.S. 419, 433, 115 S.Ct. 1555, 1565, 131 L.Ed.2d 490, 505 (1995).

A. Self-incriminating Statements by a Third Party

Initially, defendant claims that the State had knowledge that...