Opinion
No. 1-14-2080
08-23-2017
PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TERRELL JONES, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Cook County. No. 05 CR 13777 The Honorable Clayton J. Crane, Judge Presiding. JUSTICE LAVIN delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment. ORDER ¶ 1 Held: Defendant failed to set forth an arguable constitutional claim in his postconviction petition that his due process rights were violated. This court affirmed the first-stage dismissal of defendant's petition. ¶ 2 Following a jury trial, defendant Terrell Jones was found guilty of first degree felony murder, predicated on armed robbery, and attempted murder, then sentenced to life imprisonment. Defendant appeals from the first-stage summary dismissal of his petition filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). Defendant contends he presented the gist of a constitutional claim that his due process rights were violated when the State knowingly relied on perjured testimony from one of its principal witnesses, Tameka Newson. He alleges Newson, an accomplice, lied when she denied receiving consideration in exchange for her testimony for the State. Defendant asks that we remand his petition for second-stage postconviction proceedings. However, as defendant's claim is meritless, we affirm the petition's dismissal.
¶ 3 BACKGROUND
¶ 4 Defendant was arrested and charged with the above-stated offenses after he and his accomplices planned and executed an armed robbery in 2005 that resulted in two deaths. Trial evidence showed that Newson, also known as "Lady," met the victim Wallace Ross via a telephone "party line" for singles. In March 2005, Newson and Martha "Country" Jean, then age 15, invited Ross and a friend, Darius Williams, to meet the women on the south side of Chicago. ¶ 5 Unbeknownst to the two men, Newson and Jean had devised a plan with their respective boyfriends, defendant and his co-felon Larry Johnson, to rob the men at Johnson's apartment and later kill them. Ross and Williams arrived at the apartment, they conversed and smoked marijuana with Newson, whose six-month-old baby was present, and Jean. Meanwhile, defendant and Johnson remained hidden. After the women discovered the victims were unarmed, defendant and Johnson emerged, then tied up and robbed the men at gunpoint. Defendant and Johnson marched Ross and Williams to a car, intending to drive them to a different location to kill them, but while heading to the car, Williams fled. Johnson chased after him and shot Williams in the head, killing him. An on-duty railroad officer witnessed the murder, then pursued Johnson. The two exchanged gunfire, but Johnson shot and wounded the officer. Serendipitously, a police officer on his way to work witnessed the shooting and ultimately shot and killed Johnson. ¶ 6 Ross escaped and lived to testify against defendant at his murder trial. Although both Newson and Jean had been charged under the same indictment as defendant, they pleaded guilty to the murder of only the victim Williams, among other counts, and also agreed to testify against defendant at his trial. Several days before trial, the prosecutor stated on the record that he intended to call Newson and Jean as witnesses. He noted the defense attorney had copies of their witness interviews, and they had already spoken about "this issue." The prosecutor then stated:
"There's been no deals with either of the women. By that I mean we have not agreed to reduce their sentences or plead them in different counts or anything like that. *** The one thing that we mention to them is that we would probably be required to write a letter to IDOC.The prosecutor also said the office would "oppose any motion by either of these women to reduce their sentences or anything like that" because the sentences were too low already. Defense counsel stood silent during the prosecutor's statement, and the court replied, "Okay. That's fair ground." ¶ 7 Before Newson and Jean took the stand, defense counsel moved to bar the State from inquiring into their guilty pleas or sentences, claiming those issues were irrelevant to defendant's case. The prosecutor objected, responding:
I don't know if you want to consider on their behalf but we certainly need to let the IDOC know that two of their inmates corroborated with the State's attorney because that puts them in a situation that's different from other inmates?
Now, they may be going to different places because of safety. They may get more privileges, I don't know. If you want to consider that a benefit, Judge, I have no objection to cross on that issue but we have written a letter and we have indicated to both women if they testify we would write that letter to the Illinois DOC.
Counsel knows it and now you know it."
"If the inference is drawn that they're testifying because they got some sort of a deal, it certainly [a]ffects their credibility. And so I think we're within our rights to let the jury know that in fact there was no deal made as it relates to their testifying against this co-defendant and the only way to do that is to present exactly what it is they pled to and how many years they got as a result of that plea."The prosecutor explained that omitting testimony as to their guilty pleas and sentences could lead the jury to infer "some sort of a sweetheart deal in order to testify," which might motivate them to testify less than truthfully for the State. ¶ 8 The court held the State was prohibited from identifying the length of the sentences that Newson and Jean were serving unless the defense raised the issue of favoritism. The court, however, did allow the State to inquire whether the witnesses received any consideration or if there was an agreement to testify, in addition to whether they pled guilty. ¶ 9 At trial, Newson testified that she resided at Dwight Correctional Facility because she had pleaded guilty to certain charges relating to this case, including first degree murder. Consistent with the court's earlier ruling, the State asked Newson if she had "received any consideration to testify." Newson responded, "no," and defense counsel objected, leading to a sidebar. Defense counsel stated whether there was "consideration" was "totally irrelevant" because "we're not going to be going into any deal, any consideration that was given to the State." The court essentially ruled the State's question was consistent with its earlier ruling, and the proceedings continued. ¶ 10 The jury found defendant guilty of the first degree felony murder of the victim Williams and also of defendant's co-felon Johnson and one count of attempted murder of the railroad officer. Defendant was sentenced to concurrent terms of life imprisonment for the murder convictions and a consecutive term of 60 years for the attempted murder conviction. ¶ 11 Defendant filed a direct appeal contending the evidence was insufficient to convict him of co-felon Johnson's murder because it was not a forseeable consequence of the armed robbery. See People v. Jones, 2013 IL App (1st) 112923-U. Rather, the death was a result of Johnson's bizarre and unpredictable actions. This court disagreed, and affirmed the judgment of the circuit court. ¶ 12 Defendant subsequently filed a pro se postconviction petition contending in relevant part that his constitutional due process rights were violated because Newson perjured herself at trial when she "swore under oath that she was not offered anything to testify." In support, defendant attached the affidavit of his mother, Delaine Jones. Delaine attested that Newson relayed via a telephone conversation that the State coerced her to testify at defendant's trial. In exchange for that testimony, the State agreed to "write her a letter of recommendation promising her special favor" in prison, which was "priority in all programs and jobs the prison had to offer." Although Newson offered to file an affidavit attesting to these matters, Delaine was essentially unable to reach Newson. Delaine explained that she sent Newson a letter from defendant, but the prison returned the letter, stating "no third party allowed." ¶ 13 The circuit court concluded the petition was frivolous and patently without merit and therefore dismissed the petition. Defendant now appeals.
The record does not make clear the exact terms of Newson and Jean's guilty pleas or the length of their sentences. However, the IDOC website, of which we may take judicial notice, shows they are serving 45 years and 38 years respectively. People v. Henderson, 2011 IL App (1st) 090923, ¶ 8. --------
¶ 14 ANALYSIS
¶ 15 The Act provides a method by which persons under criminal sentence in this state can assert that their convictions were the result of a substantial denial of their rights under the United States Constitution, the Illinois Constitution, or both. 725 ILCS 5/122-1 et seq. (West 2014); People v. Hodges, 234 Ill. 2d 1, 9 (2009). The petition must "clearly set forth the respects in which petitioner's constitutional rights were violated" and "have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2014). The threshold inquiry at the first-stage of proceedings is whether the allegations contained in the petition are frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2014); People v. Edwards, 197 Ill. 2d 239, 244 (2001). A petition is frivolous or patently without merit if the allegations contained therein, taken as true and liberally construed in favor of the petitioner, have no arguable basis in law or fact, i.e. they are based on an indisputably meritless legal theory or a fanciful factual allegation. Hodges, 234 Ill. 2d at 11-13, 16; Edwards, 197 Ill. 2d at 244. An indisputably meritless legal theory, for example, is one which is completely contradicted by the record, while fanciful factual allegations include those which are fantastic or delusional. Hodges, 234 Ill. 2d at 16-17. Our review of is de novo. Hodges, 234 Ill. 2d at 9. ¶ 16 Relying on his mother's hearsay affidavit, defendant now contends he presented an arguable claim that his due process rights were violated when Newson committed perjury. The State responds that hearsay affidavits are generally inadmissible and defendant's petition therefore lacks the necessary evidentiary support. See People v. Sanchez, 115 Ill. 2d 238, 284-85 (1986) (affidavits must be made on personal knowledge of witness, generally precluding hearsay affidavits). Defendant counters that the affidavit is admissible under the Supreme Court Rule 191(b) exception because Newson is both a hostile witness and unavailable, as she's incarcerated. See Ill. S. Ct. R. 191(b) (eff. Jan. 4, 2013) (stating, hearsay affidavits may be admissible when "material facts which ought to appear in the affidavit are known only to persons whose affidavits affiant is unable to procure by reason of hostility or otherwise, naming the persons and showing why their affidavits cannot be procured and what affiant believes they would testify to if sworn"). Defendant also argues Delaine's affidavit is satisfactory under People v. Allen, 2015 IL 113135, ¶ 37, which held that evidence submitted in support of a first-stage postconviction petition need not necessarily be competent or admissible. Rather, "[i]t is enough for first-stage purposes that the defendant has provided substantive evidentiary content showing his claims are capable of corroboration and independent verification," during later proceedings. Id. ¶¶ 33, 37. The core focus is on the "substantive virtue" of the petition, not its procedural compliance. Id. at ¶ 24. ¶ 17 For the following reasons, we need not perseverate on the matter. Even assuming the affidavit's substantive merit, we conclude defendant's postconviction petition is unsustainable because the record demonstrates there was no consideration given and therefore no perjury occurred. ¶ 18 Perjury is a false statement made under oath, material to the issue or point in question, which the person does not believe to be true. 720 ILCS 5/32-2(a) (West 2014). The knowing use of perjured testimony to obtain a criminal conviction is a violation of a defendant's due process rights. People v. Jimerson, 166 Ill. 2d 211, 223 (1995). If a prosecutor knowingly permits perjured testimony to be used in a criminal prosecution, the defendant is entitled to a new trial. Id. at 224. The same principles apply when the prosecutor, although not soliciting the false evidence, allows it to go uncorrected when it appears. People v. Olinger, 176 Ill. 2d 326, 345 (1997). This is the case even where the witness's false testimony goes only to her credibility. Id. ¶ 19 Here, prior to trial, the prosecutor noted on the record and with defense counsel present that there was "no deal" with Newson, meaning that the State had not agreed to reduce Newson's sentence or dismiss charges in exchange for her testimony against defendant. The prosecutor nonetheless disclosed that he would be sending a letter to the IDOC on Newson's behalf informing the prison of her cooperation with the State. He set forth that she may obtain more privileges, but he did not "know." He then stated, "If you want to consider that a benefit, Judge, I have no objection to cross on that issue but we have written a letter and we have indicated to both women if they testify we would write that letter to the Illinois DOC." Defense counsel stood silent and the court responded, "Okay. That's fair ground." This record shows that there was no "guaranteed" benefit for Newson's testimony. Defendant has not cited any case law demonstrating that a recommendation by the State to the IDOC with regard to a prisoner will be honored. In addition, clearly neither defense counsel, nor the court believed the IDOC letter constituted an agreement or consideration in exchange for the testimony, such that it was a "deal" needing to be disclosed to the jury. Cf. Jimerson, 166 Ill. 2d at 227 (where the State agreed to drop murder charges against a witness in exchange for her testimony at the defendant's trial, her denials of a deal constituted perjury). The record therefore contradicts the allegation that Newson committed perjury when she asserted there was no consideration given by the State in exchange for her testimony against defendant. ¶ 20 Defendant cleverly points out that any allegation of perjury will necessarily contradict the record and cites People v. Olinger, 176 Ill. 2d 326, 342-351 (1997). In Olinger, the defendant alleged in his second-stage postconviction petition that a critical State's witness lied when he testified the only deal received in exchange for his testimony was immunity from prosecution for a burglary case; in fact, that witness received a multijurisdictional deal, including the dismissal of numerous pending charges. Noting the defendant's postconviction petition was supported by both an affidavit from the witness's attorney and a law enforcement investigative report, Olinger held the defendant was entitled to an evidentiary hearing on the perjury claim. In Olinger, in contrast to this case, the record did not rebut the absence of a deal. Id. 346. As stated, here, neither the parties nor the court considered the IDOC letter a form of "consideration." ¶ 21 In addition, even if we were to assume the recommended prison privileges were "consideration" or a benefit given for Newson's testimony, defendant's constitutional claim of perjury still fails because he purposefully precluded the matter from being disclosed to the jury. As defendant well knows, a party may not request to proceed in one manner and then later contend on appeal that the requested course of action was in error. People v. Denson, 2014 IL 116231, ¶ 17. Here, before Newson testified, defense counsel moved to bar the State from inquiring into details regarding her guilty plea for fear it would prejudice defendant. The prosecutor objected, noting it did not want the jury to infer some "sort of sweetheart deal." The prosecutor, rather presciently, indicated that failure to disclose the details of Newson's guilty plea to the jury could serve as a basis for defendant's future postconviction petition. The trial court ordered defense counsel to inform defendant that this was a matter of strategy. Defendant and his attorney then had an off-the-record discussion. Later at trial, when Newson testified on direct that there was no consideration and the State queried whether there were any "promises" made for her testimony, defense counsel again objected, stating in a sidebar, that whether there was "consideration" was "totally irrelevant" because "we're not going to be going into any deal, any consideration that was given to the State." Newson's direct examination then proceeded absent further details on the plea. The foregoing reveals that even considering the matter error, it was an invited error by defendant. However, the use of invited error as a basis for postconviction relief is clearly frivolous and patently without merit. People v. Kane, 2013 IL App (2d) 110594, ¶ 27. ¶ 22 Moreover, an error implicating the due process may be considered harmless in certain circumstances where we can conclude beyond a reasonable doubt that the error did not contribute to the jury's verdict. Jimerson, 166 Ill. 2d at 228. Here, even if Newson had not testified, Jean provided substantially the same testimony as Newson regarding the crimes. This was in addition to the competent and consistent testimony from the victim Ross and the two officers who attempted to detain defendant's co-felon Johnson. Ross identified Johnson as one of the offenders following Johnson's death; from a lineup, Ross also identified defendant, Newson, and Jean as the offenders. See People v. McNeal, 175 Ill. 2d 335, 355 (1997); cf. Jimerson, 166 Ill. 2d at 228 (where witness who committed perjury was the only evidence linking defendant to the crimes, error was not harmless). Numerous witnesses and forensic evidence corroborated the main trial testimony. The State also presented evidence showing that defendant, after having fled to Pennsylvania, was detained and admitted that he was "wanted for murder in Chicago." Likewise, the jury was already aware that Newson was not a disinterested witness. Evidence revealed that following the armed-robbery-turned murder, she brought her child to the hospital in an attempt to cover up her involvement in the incident and initially lied to police because she did not want to be incarcerated. Knowing that she obtained certain privileges in prison work programs likely would not have affected the jury's view of her credibility. For the reasons stated, the allegedly uncorrected false testimony did not contribute to the jury's verdict and is therefore harmless. See id. The alleged error does not undermine the reliability of defendant's conviction. This adds another point in favor of deeming defendant's postconviction petition legally meritless.
¶ 23 CONCLUSION
¶ 24 Based on the foregoing, we affirm the judgment of the circuit court dismissing defendant's postconviction petition at the first stage of proceedings. ¶ 25 Affirmed.