People v. Simms

• Decision Date: 03 June 2020
• Docket Number: No. 1-16-1067,1-16-1067
• Parties: The PEOPLE of the State of Illinois Plaintiff-Appellee, v. Ahmad SIMMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 161067

170 N.E.3d 159

446 Ill.Dec. 333

The PEOPLE of the State of Illinois Plaintiff-Appellee,

v.Ahmad SIMMS, Defendant-Appellant.

No. 1-16-1067

Appellate Court of Illinois, First District, Third Division.

June 3, 2020

James E. Chadd, Patricia Mysza, and Deepa Punjabi, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

OPINION

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

¶ 1 Defendant Ahmad Simms¹ appeals from the denial of his pro se motion for leave to file a successive postconviction petition under the postconviction Hearing Act (Act) ( 725 ILCS 5/122-1 et seq. (West 2016)). He argues he should be permitted leave to file a successive petition because he presented an actual innocence claim based on newly discovered evidence. For the following reasons, we affirm.

¶ 2 I. BACKGROUND

¶ 3 On November 27, 1999, the body of Susie Irving was discovered inside her apartment on the 7000 block of South Michigan Avenue. Dr. Thamrong Chira, Cook County deputy medical examiner, testified, as an expert in forensic pathology, that he performed an autopsy on Irving and found the cause of death to be a single, contact gunshot wound

above her right forehead. Dr. Chira recovered a bullet from Irving's head and determined the manner of death to be homicide.

¶ 4 In January 2000, defendant, along with codefendants, Lino Niles and Curtis King, were charged, by indictment, with five counts of first degree murder, six counts of home invasion, and one count each of armed robbery, residential burglary, and possession of burglary tools. Prior to trial, the State nol-prossed the residential burglary and possession of burglary tools charges. Defendant and Niles were tried in separate but simultaneous jury trials. Defendant was convicted of first degree murder, armed robbery, and home invasion. He was sentenced to a total of 60 years' imprisonment: a 45-year term for first degree murder and two concurrent 15-year terms for armed robbery and home invasion to be served consecutively to his murder sentence. We affirmed on direct appeal. People v. Sims , 349 Ill. App. 3d 1037, 322 Ill.Dec. 365, 890 N.E.2d 1284 (2004) (table) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 5 Prior to trial, defendant filed a motion to suppress evidence, claiming that his statements to the police were involuntarily made. The trial court denied the motion, finding that defendant was advised of his rights and there was no credible evidence that the police violated his constitutional rights.

¶ 6 Because defendant presents a claim of actual innocence based on an affidavit from Niles purporting to state that defendant was not involved in the crime, we will, at the appropriate time, recount in detail the evidence of defendant's involvement in the offense presented at his jury trial. At this juncture we provide an overview of the events that led to Irving's death.

¶ 7 At trial, the State's theory of the case was that defendant was guilty of the murder by accountability. According to the State's theory of the case, defendant, Niles, and King planned to burglarize Irving's apartment. In the afternoon of November 27, 1999, defendant, Niles, and King forced their way into Irving's apartment and shot and killed her. They then removed various items from the house, including a video cassette recorder (VCR), a coin collection, a small baseball bat, a small television, a maroon attaché case, a small briefcase containing some coins, a Christian Brothers brandy bottle containing coins, and a comforter. They later sold some of the items at an auto shop nearby and left some of the items in the garbage behind the same auto shop. Many of these items were recovered by police during their investigation, and the items were identified as belonging to Irving. Defendant also admitted to law enforcement, via a written statement and a videotaped statement, that he assisted Niles in breaking into and robbing Irving's apartment but claimed that Niles was the shooter.

¶ 8 Evelyn Parks testified that on November 27, 1999, she lived with her 84-year-old sister, Susie Irving, in an apartment on the 7000 block of South Michigan Avenue in Chicago. On that day, Parks left the apartment between 11:30 a.m. and noon. When she returned home about 6 p.m., she learned that the apartment had been broken into and Irving had been killed via a gunshot wound

to the head. Items missing from the apartment included a VCR, a coin collection, a small baseball bat, a small television, a maroon attaché case, a small briefcase containing some coins, a Christian Brothers brandy bottle containing coins, and a comforter.

¶ 9 Anthony Hawkins, the nephew of Parks and Irving, testified that he lived in the apartment above them. He left the building that day about 10:45 a.m. He returned to the apartment about 2 p.m. with his daughter, niece, and nephew, and he saw that the basement door latch was broken. His niece saw Irving lying on the floor in the apartment. Hawkins saw blood on her head and noticed that her walker had been tipped over. He then called 911. He also testified that there was some damage to his own apartment door.

¶ 10 Chicago police detective Michael Baker testified that he investigated Irving's murder. About 3:15 p.m. on November 27, 1999, he was directed to Irving's address. Upon approaching the apartment, he noticed some damage to the door. He then saw Irving's body on the floor and observed that the apartment was in disarray. He also later observed damage to the basement door, the second-floor door, and the exterior door to the basement.

¶ 11 About 10:45 p.m. that day, Baker received an anonymous phone call that led him to search a dumpster and garbage cans on the property of J&B Auto Repair, located just two buildings away from Irving's apartment building. Inside the dumpster, Baker found a purple attaché case, a vinyl case, and a broken Christian Brothers brandy bottle with coins in it. He also found a comforter and a small baseball bat inside a garbage can. Photographs of these items were later shown to Parks, who identified them as being taken from her apartment.

¶ 12 Chicago police forensic investigator Thomas Ginnelly testified that he was assigned to the crime scene at Irving's apartment building. During a search of the living room for firearms evidence, he located a cartridge case underneath a couch cushion. The case was from a .25-caliber gun.

¶ 13 The jury found defendant guilty of first degree murder, armed robbery, and home invasion. Defendant moved for a new trial, which the trial court denied. The court then sentenced him to a 45-year term for first degree murder and two concurrent 15-year terms for armed robbery and home invasion to be served consecutively to his murder sentence.

¶ 14 Defendant filed a direct appeal, arguing that the trial court erred in denying him his right to confront and cross-examine a witness at trial regarding the witness's bias or motive for testifying. This court affirmed his conviction and sentence and directed his mittimus to be corrected. Sims , 349 Ill. App. 3d 1037, 322 Ill.Dec. 365, 890 N.E.2d 1284.

¶ 15 On July 8, 2005, defendant filed a postconviction petition under the Act, which raised several claims. The trial court determined that the petition was frivolous and patently without merit and summarily dismissed his petition on August 15, 2005. On appeal, this court affirmed that order, after granting appointed counsel's motion for leave to withdraw pursuant to Pennsylvania v. Finley , 481 U.S. 551, 107 S.Ct. 1990, 95 L.Ed.2d 539 (1987). People v. Simms , No. 1-05-3100(2007) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 16 On September 29, 2011, defendant filed a pro se petition for habeas corpus relief. The trial court denied defendant's petition on October 6, 2011. This court affirmed, after granting appointed counsel's motion for leave to withdraw pursuant to Finley . People v. Simms , No. 1-11-3528 (2012) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 17 On April 19, 2013, defendant filed a pro se motion for leave to file a successive postconviction petition, along with an affidavit from Niles. We discuss Niles's affidavit in detail below. In the motion, defendant raised numerous claims, including that (1) law enforcement officers had no legal basis to arrest him, (2) his confession was involuntary, (3) his constitutional rights were violated when the State unlawfully amended his indictment, (4) he was denied his right to a fair trial, (5) he was denied effective assistance of counsel, and (6) the trial court prevented the jury from considering defendant's defense by instructing the jury to disregard that evidence.

¶ 18 The trial court addressed each claim individually and denied defendant leave to file the successive petition, concluding that defendant failed to satisfy the cause-and-prejudice test or to set forth a colorable claim of actual innocence. Defendant now appeals, arguing the trial court should have granted him leave to file a successive postconviction petition and that petition should advance to second-stage postconviction proceedings because Niles's affidavit constitutes newly discovered evidence that states a colorable claim of actual innocence.

¶ 19 As a threshold matter, we note that defendant did not explicitly raise a claim of actual innocence in his motion for leave to file a successive petition. However, because postconviction petitions are to be liberally construed and the content of Niles's affidavit is sufficient to raise a claim of actual innocence, we will address whether the court erred in denying defendant leave to file a successive petition. See People v. Pack , 224 Ill. 2d 144, 150, 308 Ill.Dec. 735, 862 N.E.2d 938 (2007) (stating postconviction petitions are to be " ‘liberally construed to afford a convicted...