The People Of The State Of Ill. v. Jarrett

• Decision Date: 13 April 2010
• Docket Number: No. 1-07-2820.,1-07-2820.
• Citation: 927 N.E.2d 754,340 Ill.Dec. 15,399 Ill.App.3d 715
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Darrell JARRETT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 715

927 N.E.2d 754

340 Ill.Dec. 15

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Darrell JARRETT, Defendant-Appellant.

No. 1-07-2820.

Appellate Court of Illinois First District, Fourth Division.

March 18, 2010.

Rehearing Denied April 13, 2010.

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Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, and Vanessa Caleb Herman, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Appellant.

Anita Alvarez, Cook County State's Attorney, Chicago, IL (James E. Fitzgerald, Alan J. Spellberg, Miles J. Keleher, and Ugo H. Buzzi, Assistant State's Attorneys, of counsel), for Appellee.

Presiding Justice FROSSARD delivered the opinion of the court:

Following a jury trial, defendant Darrell Jarrett was convicted of two counts of first degree murder and sentenced to natural life imprisonment, which was affirmed on direct appeal. People v. Jarrett, No. 1-03-2859, 356 Ill.App.3d 1128, 321 Ill.Dec. 543, 889 N.E.2d 808 (2005) (unpublished order under Supreme Court Rule 23). Defendant filed a pro se postconviction petition under section 122-1(f) of the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2006)), and we also affirmed the circuit court's summary dismissal of defendant's petition. People v. Jarrett, No. 1-06-2766 (2008) (unpublished order under Supreme Court Rule 23). Defendant now appeals the summary dismissal of his successive pro se postconviction petition and the imposition of certain fees and costs. Defendant on appeal contends that his petition stated the gist of a constitutional claim of actual innocence, ineffective assistance of trial counsel, and a violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Defendant further contends that the circuit court's imposition of certain fees violated his right to equal protection and was otherwise erroneous. We affirm as modified.

BACKGROUND

Defendant and codefendant Travoy Williams were charged with the December 1999 murders of Anthony Harris and William Key. The evidence adduced at their joint trial was as follows.

On December 29, 1999, Tarimako Allen was driving in her brown van and picked up Linda McGee, defendant, and Williams on the west side of Chicago. McGee sat in the front passenger seat, defendant sat behind McGee, and Williams sat behind Allen. As they approached the intersection of West Lexington Street and South Sacramento Boulevard, Williams told Allen to go west on Lexington. They drove down the block and approached a black Chevrolet Lumina on the south side of the street, in which the victims, Harris and Key, and an unidentified third individual were sitting.

Harris and Key were in the front seats of the Lumina and the third individual sat in the backseat. They spoke to Devon Joshua, who was standing outside of the car next to the driver's side window. Four feet behind the Lumina, Barbara Starling was sitting in her car, a white Plymouth.

Allen had driven just past the Lumina when defendant asked Williams, “Is that the guys [ sic ]?” Williams told defendant he believed so, and told Allen to stop and back up. Allen testified that Williams spoke briefly with the people in and around the Lumina, and then pushed her head down toward the steering wheel. Allen stated that she heard multiple gunshots very close to her, and McGee testified that it was Williams who drew a revolver and began firing multiple times at the Lumina. McGee ducked down in the backseat of the van. Starling also testified that the first set of gunshots came from the front driver's side of Allen's van.

When the shooting began, Harris and Key escaped the Lumina through the driver's side window, while Joshua ducked down next to the car. Starling testified that Harris and Key ran toward a vacant lot through a gangway as defendant-whom she knew by the nickname “Meat Man”-got out of the van by a passenger side door, walked to the back of the van, and fired multiple times toward Harris and Key. Harris and Key both died of gunshot wounds.

Joshua testified that he was standing next to the Lumina talking to Harris and Key, who were both sitting inside. After he saw Williams fire several shots, Joshua took cover behind the sedan. Joshua then saw defendant, whom he knew as “Meat Man,” get out of the van. Joshua ducked down lower, but he saw defendant's feet walk toward the curb. Joshua then heard several more gunshots.

Allen heard several shots from the backseat of the van, followed by several more from outside of the van. After the shooting, Allen saw defendant get back into the van, although she did not see defendant leave the van after the shooting started. Allen was then told to drive to defendant's brother-in-law's apartment near the intersection of North Hamlin Avenue and West Fulton Street.

Chicago police officer Michael Cronin testified that defendant's brother-in-law allowed him into the apartment and gave him permission to search it. Officer Cronin saw defendant leave a room and arrested him, and arrested Williams after finding him in a bedroom in the apartment. He then returned to the room from where defendant had emerged and found a plastic bag containing a .45-caliber Colt revolver, a .45-caliber Glock revolver, and a .25-caliber pistol. Subsequent forensic tests indicated that bullets recovered from the crime scene were consistent with the guns found in defendant's brother-in-law's apartment.

Defendant testified that when Allen's van stopped next to the Lumina, he got out of the van to see if a particular person was there, but as he walked to the back of the van, he heard gunshots. When he heard the shots, defendant believed someone was trying to shoot at him, so he pulled out his gun and returned fire into a crowd of people he saw running around him.

On May 9, 2003, the jury found defendant guilty of two counts of first degree murder and one count of aggravated discharge of a firearm. On September 4, 2003, the trial court sentenced defendant to life in prison.

On direct appeal, defendant contended that he was denied the effective assistance of counsel because his attorney failed to file a motion to suppress evidence relating to the guns found when defendant and Williams were arrested. We rejected defendant's contention and affirmed his conviction and sentence. People v. Jarrett, No. 1-03-2859, 356 Ill.App.3d 1128, 321 Ill.Dec. 543, 889 N.E.2d 808 (2005) (unpublished order under Supreme Court Rule 23) appeal denied, 216 Ill.2d 710, 298 Ill.Dec. 384, 839 N.E.2d 1031 (2005). On March 14, 2006, defendant filed a pro se postconviction petition claiming, inter alia, ineffective assistance of trial and appellate counsel based upon alleged improper jury instructions on accountability. The trial court summarily dismissed the petition, and we affirmed. People v. Jarrett, No. 1-06-2766 (2008) (unpublished order under Supreme Court Rule 23), appeal denied, 233 Ill.2d 579, 335 Ill.Dec. 640, 919 N.E.2d 359 (2009).

On June 11, 2007, defendant filed the instant successive pro se postconviction petition alleging: (1) actual innocence based upon newly discovered evidence, (2) ineffective assistance of trial and appellate counsel, and (3) a Brady violation. In his actual innocence claim, defendant included the affidavits of Ashake Banks and Charles Ginns. Banks's affidavit indicated that Ginns told her that, when the shooting began, Allen's brown van “pulled off,” leaving defendant standing on the street. In addition, Banks's affidavit stated that Ginns then saw Michael Blue “draw and aim a gun” at defendant and defendant shoot at Blue in response, and that Ginns left the area after the shooting to avoid becoming involved in the investigation. Ginns's affidavit, however, only relates that Blue “pulled out his gun to throw down on [defendant] and [defendant] pulled out his gun and shot at” Blue. Defendant asserted that this constituted newly discovered evidence because Ginns did not testify at defendant's trial. Defendant further claimed in an affidavit that his trial counsel specifically advised him not to testify that an individual pointed a gun at him.

Defendant also claimed that his trial counsel was ineffective, inter alia, for failing to investigate witnesses that could support his self-defense theory and for instructing him not to testify regarding an individual pointing a gun at him.

Defendant's claim of ineffective assistance of appellate counsel-which he does not pursue on appeal-alleged that appellate counsel failed to brief and argue ineffective assistance of trial counsel.

Finally, defendant alleged a Brady violation on the part of police based upon Officer Cronin's alleged refusal to give defendant the name of a “favorable witness” and the name of the person who aimed a gun at defendant because defendant would not provide information regarding drug activity in the Lawndale neighborhood of Chicago.

On September 5, 2007, in an eight-page written order, the trial court summarily dismissed defendant's successive petition, finding the petition entirely frivolous. In a separate order, the trial court imposed filing fees and court costs totaling $359, including a $294 fee for filing a postconviction petition and $50 in State's Attorney's fees.

Defendant now appeals the summary dismissal of his successive pro se postconviction petition and the imposition of certain fees and costs. Defendant contends that his petition stated the gist of a constitutional claim of actual innocence, ineffective assistance of trial counsel, and a Brady violation. Defendant further contends that the circuit court's imposition of certain fees violated his right to equal protection and was otherwise erroneous. We will address each argument in turn.

ANALYSIS

I. Defendant's Failure to Seek Leave to File a Successive Petition

The State initially argues that the trial court properly dismissed the successive petition because defendant...