People v. Sutherland

• Decision Date: 13 August 2013
• Docket Number: Docket No. 1–11–3072.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. William SUTHERLAND, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2013 IL App (1st) 113072
994 N.E.2d 185
373 Ill.Dec. 700

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
William SUTHERLAND, Defendant–Appellant.

Docket No. 1–11–3072.

Appellate Court of Illinois,
First District, Fourth Division.

June 28, 2013.
Rehearing Denied Aug. 13, 2013.

[994 N.E.2d 186]

Michael J. Pelletier, Alan D. Goldberg, and Patrick F. Cassidy, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Miles J. Keleher, and Joan F. Frazier, Assistant State's Attorneys, of counsel), for the People.

[994 N.E.2d 187]

Presiding Justice LAVIN delivered the judgment of the court, with opinion. Justices Epstein and Pucinski concurred in the judgment and opinion.

[373 Ill.Dec. 702]OPINION

¶ 1 Defendant William Sutherland appeals from the denial of his pro se request to file a successive postconviction petition under the Post–Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2010)). On appeal, he argues that under the United States Supreme Court's recent case, Martinez v. Ryan, 566 U.S. ––––, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), his failure to raise an ineffective assistance of trial counsel claim in his initial postconviction petition should be excused because he did not have the aid of legal counsel in drafting the petition. He contends that fact, plus the alleged prejudice, warrants reversal of the circuit court judgment. We affirm.

¶ 2 BACKGROUND

¶ 3 In August 1998, defendant was tried and convicted by a jury for the 1997 attempted murder of his former wife, Elaine Sutherland, and his stepdaughter, Erica Ellison. He was also convicted of home invasion. Trial evidence showed that following domestic abuse incidents, Elaine asked for a divorce, and defendant responded with a “threatening okay.” Around 11 p.m. that same evening, defendant burst into the room where Elaine and Erica were sleeping, turned on the light, then shot Elaine numerous times, in her forearm, chin, jaw, shoulder, and chest, and also shot five-year-old Erica in the face above her lip. Both victims survived. Elaine suffered permanent brain damage, including retrograde amnesia, as a result of the gunshot wounds but was able to testify at trial, albeit without any recollection of the shootings. Defendant's conviction therefore rested on the identification testimony of Erica, who was a six-year-old at the time of trial. Erica testified that she watched as defendant shot her mother, “bam, bam, bam, bam,” forcing her to fall off the bed onto the floor before defendant turned the weapon on her. Erica knew it was defendant because she saw his face and saw he was wearing glasses. A neighbor who entered moments after the shooting testified that Erica's exact words were, “Will done shot us.” Police were radioed to the scene around 11:20 p.m. Erica told three police officers that defendant shot her. She identified him in photographs then and later identified him in court at trial.

¶ 4 The State also presented the testimony of another neighbor who saw a six-foot man, sporting glasses, a chin beard, and bearing a “crazy look,” digging inside his car trunk outside Elaine's home around 10:30 p.m. on the evening in question; he walked up to the porch, turned around, looked at the neighbor, then returned to his car and eventually drove off. She later identified him as defendant. The State posited that defendant returned to Elaine's home and committed the shooting about 11 p.m., leaving behind what the evidence technician later determined was a .22–caliber bullet. A search inside defendant's trunk revealed there was a winter mask with the eyes cut out, even though it was April, and rubber hospital gloves.

¶ 5 Defendant's theory of defense was misidentification. He argued that when Erica said her “daddy” was the shooter, she was referring to her biological father, even though she clarified to police officers that she was referring to “Will.” Testifying on his own behalf, defendant admitted that on the evening in question he, along with his three-year-old son by Elaine, was momentarily present outside Elaine's home somewhere between 9 p.m. and 10 p.m., but denied entering the home or shooting [373 Ill.Dec. 703]

[994 N.E.2d 188]

Elaine and Erica. After knocking on the window of Elaine's home and receiving no answer, he claimed to have driven to his father's house, which was 10 to 15 minutes away. He was there but five minutes because he found his father was either drunk or asleep. He then left and returned to a family party. A former state correctional officer himself, defendant admitted having owned a .22–caliber pistol, although he denied owning one at the time of the shooting. At 6 feet and 3 inches, he also admittedly wore glasses and a chin beard at the time of the crime and at trial.

¶ 6 Six witnesses testified to either defendant's whereabouts on the evening in question or to his peaceful reputation. Defendant's cousin, for example, testified he left the family party around 9:40 p.m. and returned some time later, but she was not sure when; defendant's sister gave similar testimony but added that defendant returned to the house shortly after 11 p.m.; defendant's other sister testified that she was at the party but unaware of defendant's presence or absence; finally, an acquaintance at the party testified that defendant left about 10 p.m. and returned by about 10:30 p.m., but her watch was also broken. A seventh defense witness, Elaine's neighbor, testified that she saw a car she recognized as defendant's parked outside Elaine's home about 10:30 p.m., but it was gone within 15 minutes; she saw flashing police lights about 11:20 p.m. An eighth defense witness testified she saw a man who was not defendant running near the crime scene but did not get a good look at him because she thought he had a gun. Initially, she testified this was around 11 p.m. or 11:30 p.m., but then said it was around 10:30 p.m. or 11 p.m., noting she did not have a watch.

¶ 7 The jury credited the State's witnesses over the defense and determined defendant was guilty as charged. Defendant was sentenced to consecutive terms of 30 years' imprisonment for the attempted murders of Elaine and Erica, as well as 30 years' imprisonment for home invasion, resulting in a total 90–year prison term with the lesser charges merging.

¶ 8 Defendant filed a direct appeal raising a number of contentions, none of which related to trial counsel's effectiveness. This court affirmed defendant's convictions and sentence. People v. Sutherland, 317 Ill.App.3d 1117, 252 Ill.Dec. 851, 743 N.E.2d 1007 (2000), appeal denied,195 Ill.2d 594, 258 Ill.Dec. 99, 755 N.E.2d 482 (2001) (table), cert. denied,534 U.S. 1105, 122 S.Ct. 905, 151 L.Ed.2d 873 (2002).

¶ 9 In 2001, defendant, acting pro se, filed his first postconviction petition under the Act. He argued that perjured testimony had been introduced at trial, certain witnesses were not adequately impeached, he was denied the right to cross-examine Erica at the competency hearing and to present a defense, and the prosecutor committed misconduct. Defendant claimed that trial and/or appellate counsel was ineffective for these shortcomings. Notably, in the context of his prosecutorial misconduct claim, defendant asserted the prosecutor should have been precluded from arguing that the absence of defendant's father (Sutherland Senior) as a trial witness implicated defendant's culpability. For example, the prosecutor stated in closing that if defendant had really gone to his father's house, the jury would have heard from Sutherland Senior. In the initial postconviction petition, defendant specifically argued his father was unavailable to testify because he was in the hospital at the time of trial. He cited hospital records in support. Defendant noted his argument could not have been raised on direct appeal because it involved facts outside the record.

[994 N.E.2d 189]

[373 Ill.Dec. 704]¶ 10 The circuit court summarily dismissed the postconviction petition as frivolous and patently without merit on the basis of waiver and res judicata. Defendant appealed, and the dismissal was eventually affirmed. See People v. Sutherland, No. 1–01–3770, 362 Ill.App.3d 1236, 335 Ill.Dec. 806, 919 N.E.2d 525 (2005) (table) (unpublished order under Supreme Court Rule 23); see also People v. Sutherland, 345 Ill.App.3d 937, 281 Ill.Dec. 430, 803 N.E.2d 1051 (2004) (reversing the summary dismissal); People v. Sutherland, 216 Ill.2d 727, 296 Ill.Dec. 98, 834 N.E.2d 903 (2005) (supervisory order) (ordering the appellate court to reconsider the dismissal in light of People v. Blair, 215 Ill.2d 427, 294 Ill.Dec. 654, 831 N.E.2d 604 (2005)).

¶ 11 Defendant then filed a petition for a writ of habeas corpus, which apparently raised many of the same arguments as the initial postconviction petition. The federal district court denied the habeas petition and also denied defendant's request for a certificate of appealability. See United States ex rel. Sutherland v. Hulick, No. 07 C 3469, 2007 WL 6882654 (N.D.Ill. Nov. 28, 2007); United States ex rel. Sutherland v. Hulick, No. 07 C 3469, 2008 WL 360789 (N.D.Ill. Feb. 8, 2008). The United States Court of Appeals for the Seventh Circuit affirmed the district court decision. Sutherland v. Gaetz, 581 F.3d 614 (7th Cir.2009), cert. denied,559 U.S. 1053, 130 S.Ct. 2352, 176 L.Ed.2d 569 (2010) (table).

¶ 12 In 2009, defendant filed a pro se petition under section 2–1401 of the Code of Civil Procedure (735 ILCS 5/2–1401 (West 2008)). He alleged the trial court issued an erroneous jury instruction as to identification testimony, rendering his conviction void. Defendant added that his trial counsel was ineffective for failing to “investigate the absence” of his father, Sutherland Senior. In support, defendant attached an October 1999 affidavit from his father in which Sutherland Senior stated that defendant was at his residence “at or about the time” Elaine was...