People v. Thomas

• Decision Date: 26 September 2014
• Docket Number: No. 2–12–1001.,2–12–1001.
• Citation: 18 N.E.3d 577,2014 IL App (2d) 121001,385 Ill.Dec. 316
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Marquis THOMAS, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (2d) 121001

18 N.E.3d 577

385 Ill.Dec. 316

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

v.Marquis THOMAS, Defendant–Appellant.

No. 2–12–1001.

Appellate Court of Illinois, Second District.

Sept. 26, 2014.

Rehearing Denied Oct. 31, 2014.

Alan D. Goldberg and Rachel Moran, both of State Appellate Defender's Office, of Chicago, for appellant.

Joseph P. Bruscato, State's Attorney, of Rockford (Lawrence M. Bauer and Richard S. London, both of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

Presiding Justice BURKE delivered the judgment of the court, with opinion.

¶ 1 A jury found defendant, Marquis D. Thomas, guilty of the first-degree murder of Lavontaye Nunn. See 720 ILCS 5/9–1(a)(1) (West 2006). The trial court sentenced defendant to 30 years' imprisonment with a 25–year handgun "add-on" penalty, resulting in a 55–year aggregate term. On direct appeal, defendant argued, inter alia, that the trial court erred by excluding the statement "I did it" uttered to detectives by N.H., an incarcerated minor N.H. had recanted the statement in a video-recorded interview. We affirmed the judgment, holding that the trial court did not abuse its discretion by excluding the statement as unreliable, in part because it was not corroborated by other evidence. People v. Thomas, 2011 IL App (2d) 091061–U, ¶ 56, 2011 WL 10100615.

¶ 2 Defendant filed a pro se postconviction petition in which he alleged that appellate counsel was ineffective for failing to argue trial counsel's ineffectiveness. The petition reiterated that N.H. confessed to the detectives, asserted that N.H. also confessed to a jail chaplain, and argued that trial counsel should have taken additional steps to ensure that the confession was admitted.

¶ 3 The postconviction court summarily dismissed the petition as frivolous and patently without merit. The court concluded that appellate counsel was not ineffective for failing to allege trial counsel's ineffectiveness in handling the evidence, because trial counsel, in fact, had raised, argued, and preserved for direct appeal the admissibility of N.H.'s statement to the detectives. On appeal, defendant frames the underlying issue differently, arguing that appellate counsel was ineffective for failing to argue that the trial court erred in excluding N.H.'s conversations with the chaplain and for failing to argue that the chaplain's testimony would have corroborated N.H.'s statement to the detectives.

¶ 4 The State responds that defendant has forfeited his present arguments because the postconviction petition focuses on N.H.'s statement to the detectives, not to the chaplain, and attributes the error to trial counsel, not the trial court. The State echoes the postconviction court's conclusion that, because trial counsel raised, argued, and preserved the issue, he was not ineffective. The State alternatively contends that, if we choose to address defendant's present arguments regarding N.H.'s statements to the chaplain and the detectives, the petition does not state the gist of a constitutional claim, because the chaplain's disclosure was correctly barred under the clergy-penitent privilege.

¶ 5 The forfeiture issue is a close one, but the standard of review for a first-stage dismissal is de novo, and we have a duty to construe pro se postconviction petitions liberally and to allow borderline petitions to proceed. Defendant's petition and appellate brief both argue that counsel on direct appeal mishandled the admissibility of N.H.'s alleged confessions to the detectives and the chaplain, and the record and the law potentially support that assertion. Therefore, we conclude that defendant has not forfeited his present appellate arguments and that the petition states the gist of a constitutional claim. We reverse the summary dismissal of the petition and remand the cause for further postconviction proceedings. We also modify the mittimus to reflect an additional credit for defendant's time spent in presentence custody.

¶ 6 I. BACKGROUND

¶ 7 A. Evidence at Trial

¶ 8 The shooting occurred on the central walkway of a courtyard on the 1500 block of Birch Court in Rockford. The block has two long rectangular apartment buildings that run north and south and are separated by a grassy central courtyard. The central walkway runs north and south through the middle of the courtyard. To the west of the west building is Garden Court and to the east of the east building is Birch Court. The area is bordered on the north by Buckbee Street and on the south by 15th Avenue.

¶ 9 On the evening of April 3, 2007, Lavontaye and Eva Pennie were talking on the central walkway near 1504 Birch Court when a man walked up to them and began shooting. A bullet grazed Eva's face, and Lavontaye was hit several times. Lavontaye crawled south a short distance to where his body was found on the sidewalk between 1511 Birch Court, which is in the west building, and 1510 Birch Court, which is in the east building.

¶ 10 On the night of the shooting, Minishia Harris lived at 1510 Birch Court. At 9:15 p.m., she heard shooting and looked out her front window. Minishia was 10 to 15 feet from the scene and saw "a boy crawling, and [she saw] someone standing over him shooting." The shooter was wearing a black hoodie sweatshirt, and the hood fell down so Minishia could see his face. Minishia identified defendant in court as the offender. Minishia saw defendant run west toward Garden Court and enter a car that drove north on Garden Court toward Buckbee Street. Minishia heard the noise from a car that she identified as belonging to "Fo' Pumpkin." Minishia called 911. Minishia previously had seen defendant hanging around with Fo' Pumpkin.

¶ 11 Minishia testified that she saw the police chasing defendant and Tommie Moore through the projects on April 29, 2007, and that she saw the police arrest them. Later that day, Minishia called the police and told them that they had arrested the person who had shot Lavontaye.

¶ 12 Rockford police officer Michelle Bootz testified that she was on patrol at the Blackhawk Projects on the evening of April 29, 2007, when she arrested N.H. and Tommie Moore. Officer Bootz testified that another officer arrested defendant and brought him to where N.H. and Moore were in custody and awaiting transport to the police station.

¶ 13 Nikita Bernel–Hill testified that, on the night of the shooting, she lived at 1407 Birch Court, which was north of the crime scene. Nikita heard gunshots, went to her children's room, looked out the window, and saw defendant run past. Defendant was about 10 to 15 feet away when Nikita saw him. Defendant was wearing a black hoodie and had a gun in his waistband. Defendant bent down to pick a telephone off the ground. Nikita saw defendant run east toward Birch Court and get into Fo' Pumpkin's car, which drove south on Birch Court toward 15th Avenue. Nikita testified that, though she was not sure, it looked like Tommie Moore, who was also known as "Trapper," was driving the car. Nikita called the police and told them that she heard shots, but she also told them not to come to her house, because she feared the people in the Blackhawk Projects.

¶ 14 Eva testified that she lived at the Blackhawk Projects on the date of the shooting. Eva was standing on the sidewalk with Lavontaye, whom she knew as "Face." Someone ran up and shot Lavontaye repeatedly, and Eva ran west toward Sun Court Street and looked back. Eva did not identify defendant in court as the shooter. Eva did not speak with the police on the night of the shooting, because she was scared, but she spoke with them the next day. Eva admitted that she had omitted certain information from her statement that day, because she was scared.

¶ 15 Detective Eric Harris testified that he spoke with Eva on May 16, 2007, regarding the shooting. Detective Harris created a photographic lineup and showed it to Eva, who identified defendant as the person who shot and killed Lavontaye. Eva also gave Detective Harris a written statement in which she identified defendant as the person who shot the victim and whom she identified in the photographic lineup.

¶ 16 Eva testified that she remembered giving the police another statement on May 16, 2007, and she said that the statement was truthful. Eva admitted that she told the police that she saw who shot Lavontaye, but she testified that she was not sure who shot Lavontaye and that she could not remember who she said had shot him. Eva also testified that she remembered being shown photographs and identifying someone, but she did not remember that the person she identified was defendant.

¶ 17 Eva acknowledged that, in August 2008, she had talked with an assistant State's Attorney and a detective, telling them that she was afraid for her life and had been beaten and told to keep her mouth shut about the murder. Eva identified the written statement that she had given the police and testified that the statement was truthful. Despite that, she again testified that she did not see in court the person who shot Lavontaye.

¶ 18 Defendant presented an alibi defense through the testimony of Kimberly Keys as well as the security videotape from the emergency room of Swedish–American Hospital. Defendant's theory at trial was that he could not have committed the murder, because he was at the hospital attempting to visit a friend around the time of the shooting. He also argued that the videotape showed that he was wearing different clothing than the offender. The parties stipulated to the authenticity of the videotape, and the trial court admitted it into evidence and played it for the jury. Kimberly testified that the videotape showed her, defendant, and another couple in the emergency room lobby.

¶ 19 B. N.H.'s Statement to Detectives

¶ 20 Before trial, defendant moved to admit the statement of N.H., who blurted "I did it" while talking with Detective Harris at the police station about one month after the shooting. The...