People v. Willingham

• Decision Date: 06 November 2020
• Docket Number: 1-16-2250
• Citation: 2020 IL App (1st) 162250,186 N.E.3d 912
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Edward WILLINGHAM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2020 IL App (1st) 162250

186 N.E.3d 912

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

v.Edward WILLINGHAM, Defendant-Appellant.

No. 1-16-2250

Appellate Court of Illinois, First District, SIXTH DIVISION.

November 6, 2020

James E. Chadd, Patricia Mysza, and Christopher R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

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

PRESIDING JUSTICE MIKVA delivered the judgment of the court, with opinion.

¶ 1 Following a jury trial, Edward Willingham was convicted of the first degree murder of Shiquita Fleming and the attempted murder and aggravated battery with a firearm of Maurice Scott. These convictions were affirmed on direct appeal. People v. Willingham , 298 Ill. App. 3d 1164, 250 Ill.Dec. 271, 738 N.E.2d 235 (1998) (table) (unpublished order under Illinois Supreme Court Rule 23 ). Mr. Willingham filed a postconviction petition asserting claims of (1) actual innocence, (2) ineffective assistance of trial counsel, and (3) ineffective assistance of appellate counsel. The circuit court dismissed the petition at the second stage, finding Mr. Willingham failed to make a substantial showing of a constitutional violation. Mr. Willingham now challenges that dismissal. In our initial decision in this case we affirmed. However, on a fully briefed petition for rehearing, wherein we also allowed Mr. Willingham to cite addition authority— People v. Robinson , 2020 IL 123849, 450 Ill. Dec. 37, 181 N.E.3d 37 —arguing our supreme court rejected the "total vindication" standard we employed in our reasoning in rejecting his claim of actual innocence, we now reverse, in part, the circuit court's dismissal of Mr. Willingham's postconviction petition and remand for an evidentiary hearing on two of his three postconviction claims. On rehearing, we have determined that Mr. Willingham has made a substantial showing on his claim of actual innocence as well as his claim of ineffective assistance of trial counsel.

¶ 2 I. BACKGROUND

¶ 3 Mr. Willingham's convictions stem from a shooting that occurred at around 4:30 p.m. on June 20, 1995, in Chicago Heights. Albert Adams and Tyjuan Turner were charged as codefendants but are not parties to this appeal.

¶ 4 There was no question that on that day Mr. Willingham arrived at the scene where members of his gang—the Gangster Disciples—and a rival gang—the Four Corner Hustlers, or Solid Fours—were engaging in fist fights. Mr. Willingham also does not dispute that he fired shots at the rival gang members. His defense at trial was that he shot in self-defense. The State's witnesses claimed that Mr. Willingham and his codefendants were the only shooters and that Mr. Willingham shot at unarmed individuals.

¶ 5 Mr. Willingham testified that, on the date of the incident, he planned to go to Albert Adams's house to sell three guns to someone named "Spider." Mr. Willingham put the guns in a white plastic bag and got a ride from a friend named "Chewy" to the house. Mr. Willingham testified that when they arrived, no one was in front of the house and Spider's car was not there, so they drove to 435 Hickory Street in Chicago Heights, where Albert Adams's cousin lived, and where Albert Adams frequently hung out.

¶ 6 Mr. Willingham testified that, as he approached the house, he noticed a large crowd of 30 to 35 people fighting in the driveway. He saw Albert Adams and Mr. Turner, also Gangster Disciples, pick up a third person who was knocked down. As they did so, "the crowd started reaching in." Mr. Willingham got out of the car a few houses away and put a gun in his waistband because he knew the street was Solid Four territory.

¶ 7 According to Mr. Willingham, Jermaine Fleming, a Solid Four member, approached him with four or five other men behind him and stated, "I got your a*** now." Mr. Willingham knew Jermaine Fleming to carry a gun and testified that he had recently been shot at by Jermaine Fleming. Mr. Willingham lifted his shirt and showed Jermaine Fleming that he had a gun in his waistband. Mr. Willingham then heard gunshots. Though Mr. Willingham did not see a gun in Jermaine Fleming's hands, he thought that the shots had come from either Jermaine Fleming or one of the men standing behind Jermaine Fleming. Mr. Willingham testified that he then took his gun from his waistband and shot at Jermaine Fleming, but his gun did not go off. He heard more shots and fled, dropping the bag containing the two guns he had hoped to sell.

¶ 8 Mr. Willingham testified that, as the crowd fled east down the street, he saw Jerrett McCullor, a Solid Four, chasing Albert Adams and Mr. Turner and firing a gun in their direction. Fearing that Albert Adams or Mr. Turner would be killed, Mr. Willingham fired his own gun at Mr. McCullor until he ran out of bullets.

¶ 9 Mr. Willingham testified that he and Mr. Turner then ran into Albert Adams's house and hid their guns in the basement. Mr. Willingham said he found out an hour later that Shiquita Fleming and Mr. Scott were shot during the incident. He voluntarily turned himself into the police 10 days later.

¶ 10 Seven members of the Solid Four gang testified in the State's case-in-chief: Japheth Harris, Livingston Hall, Willie Fleming, Jermaine Fleming, Mr. McCullor, Mr. Scott, and Joseph Fleming. Shirley Fleming—Shiquita Fleming's mother and Jermaine, Willie, and Joseph Fleming's aunt—was with her daughter when she was shot and also testified, as did another relative of the Flemings—Ida Ruffin—who was Joseph Fleming's cousin, and Gregorio Salinas, who lived on Hickory Street and watched the scene unfold from his driveway. The State's witnesses uniformly testified that it was only after the last fist fight had broken up and the crowd had started to disperse that Mr. Willingham drove up, exited his car, and pulled three guns from a white plastic bag, giving one to Albert Adams and one to Mr. Turner. According to these witnesses, the three men then shot, unprovoked, into the dispersing crowd, killing Shiquita Fleming and injuring Mr. Scott. The State's witnesses all testified that no one else was armed with guns that day. In addition, both Mr. McCullor and Jermaine Fleming specifically denied carrying or shooting a weapon that day. Mr. Salinas admitted, however, that he could not see people's hands who were walking or running away from the crowd and did not see Mr. McCullor at all. All of the State's witnesses were Solid Four members or related to Solid Four members except for Mr. Salinas, who lived in Solid Four territory.

¶ 11 Twenty-one spent 9-millimeter cartridge casings and two bullets were recovered from the scene. A bullet was also recovered from Shiquita Fleming's body and from Shirley Fleming's purse. An expert in firearm identification testified that the evidence was consistent with the firing of three to five different guns.

¶ 12 During the State's closing argument, it emphasized that Mr. Willingham's testimony and version of events was completely uncorroborated. In his own closing argument, Mr. Willingham's counsel questioned the trustworthiness of the State's witnesses, whom he argued were all affiliated with the Solid Fours, including Shirley Fleming and Ms. Ruffin, who were both related to Jermaine, Willie, and Joseph Fleming.

¶ 13 The jury found Mr. Willingham guilty of first degree murder, attempted murder, and aggravated battery with a firearm. Mr. Willingham received consecutive sentences of 60 years for the murder and 30 years for the attempted murder, with the aggravated battery with a firearm charge merging with the attempted murder conviction.

¶ 14 Mr. Willingham appealed, arguing (1) the prosecutor's closing argument denied him due process by improperly shifting the burden of proof from the State to him and (2) the trial court committed sentencing errors. This court affirmed Mr. Willingham's convictions on direct appeal ( Willingham , 298 Ill. App. 3d 1164, 250 Ill.Dec. 271, 738 N.E.2d 235 ) and our supreme court denied his petition for leave to appeal on February 3, 1999 ( People v. Willingham , 182 Ill. 2d 570, 236 Ill.Dec. 675, 707 N.E.2d 1245 (1999) (table) (unpublished order under Illinois Supreme Court Rule 23 )).

¶ 15 Mr. Willingham filed a pro se postconviction petition in December 1999. The circuit court advanced the petition to the second stage and appointed counsel to represent Mr. Willingham. Counsel filed a supplemental petition alleging (1) Mr. Willingham was actually innocent based on an affidavit signed by Jacobi Adams stating that Jermaine Fleming was armed on the afternoon of June 20, 1995, and shot at Mr. Willingham first; (2) trial counsel was ineffective for not calling Robert Johnson, Gentry Johnson, and Tyrone Bennett as witnesses, who, according to their affidavits, would have testified that Mr. Scott, Mr. McCullor, and at least one other Solid Four member, Kevin Fleming, were armed with guns on the afternoon in question; and (3) appellate counsel was ineffective for failing to argue that the jury instructions were erroneous.

¶ 16 The State filed a motion to dismiss the petition, arguing that Mr. Willingham's claims of ineffective assistance of trial and appellate counsel were meritless and he had failed to make a substantial showing of actual innocence. The court granted the motion to dismiss on July 31, 2015, and denied Mr. Willingham's motion to reconsider on August 12, 2016. Mr. Willingham filed a timely appeal, and on February 14, 2020, this court affirmed the dismissal. Mr. Willingham subsequently filed a petition for rehearing—which has been fully briefed—and a motion to cite additional authority, People v. Robinson , 2020 IL 123849, 450 Ill. Dec. 37, 181 N.E.3d 37 . We granted both.

¶ 17 II. JURISDICTION

¶ 18 Mr. Willingham filed his timely notice of appeal on August 12, 2016. We have jurisdiction pursuant to article VI, section 6, of the Illinois Constitution ( Ill....