Opinion
1-19-2045
09-30-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDDIE MOSLEY, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 03 CR 15223 Honorable Charles P. Burns, Judge, presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Martin concurred in the judgment.
ORDER
REYES PRESIDING JUSTICE
¶ 1 Held: The circuit court properly denied leave to file a successive postconviction petition where defendant failed to establish cause and prejudice for his claim that the State violated Brady v. Maryland, 373 U.S. 83 (1963).
¶ 2 Defendant Eddie Mosley appeals from the circuit court's denial of his motion for leave to file a successive petition for relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On appeal, defendant argues that the discovery of a police file related to his case, which the police allegedly hid, established cause and prejudice to warrant a successive filing. We affirm.
¶ 3 Following a jury trial, defendant was found guilty of first degree murder in striking Kevin Gavin with a baseball bat and sentenced to 50 years' imprisonment. We recount the facts only to the extent necessary to resolve the issues in this appeal.
¶ 4 At a pretrial hearing on defendant's motion to suppress identification testimony, Chicago police detective Brian Forberg testified that multiple individuals viewed photo arrays, police lineups, or both, and identified defendant as the person who struck Gavin on the head with a baseball bat. Forberg testified that the photo arrays were missing, explaining: "[A]t the time of this investigation, Area 1 was located at 1819 West Pershing. At the completion of this-sometime shortly after this investigation was completed, we had relocated back to 51st and Wentworth. So we went to 39th Street to look and see if the photo arrays were there and somehow separated in the move. We searched everywhere in Area 1 and have checked with the ERPS through the computer system to see if we were able to locate them in that manner."
¶ 5 Defendant subsequently filed a motion to dismiss the indictment or, in the alternative, hold an evidentiary hearing to determine whether the arrays were suggestive. After hearing arguments, the court denied this motion, and the motion to suppress.
¶ 6 At trial, Emmanuel Poe, Anthony Green, Ashley Yarbrough, DeAngelo Taylor, and Keon Smith testified that a group of young people were gathered outside Julius Doxy's home on May 31, 2003, so Doxy and another teenaged boy could fight. Around 6 p.m., Gavin attempted to defuse the situation when a shirtless individual came up and struck him on the back of his head with a baseball bat. Gavin fell, and the person struck Gavin several more times with the bat. Poe, Green, Yarbrough, Taylor, Smith, and Harrison King identified defendant at trial as the individual who hit Gavin with the bat. An evidence technician and forensic scientist testified that the bat was recovered, but there were no fingerprints suitable for testing. Gavin died of blunt force trauma to his head.
In the record, Julius Doxy's last name is also spelled Doxie. We adopt the spelling from his testimony.
¶ 7 King testified that he was mowing his lawn next door when 15 or 20 teenagers congregated around Doxy's front yard. King asked Gavin if the group could quiet down. King returned to his yard 15 or 20 feet away, then he heard a commotion, turned, and observed defendant run at Gavin from behind and strike him in the head with a bat. King and defendant made eye contact and King saw his full face. King went inside, dialed 911, and then returned outside. Defendant was still holding the bat, and then left in a vehicle with a few other people. In the next day or two after the incident, King met with Forberg and Detective John Foster and identified defendant in a photo book. Shortly thereafter, King identified defendant in a lineup.
¶ 8 On cross-examination, King acknowledged that he told responding officers on the night of the murder that he did not believe he could identify the offender's face. That evening, King described the offender to officers as being in his late teens or early 20's with short hair and a slim, muscular build. When the officers contacted King to view the photographs, he again responded that he was not sure he could recognize the person. The photo book that Forberg and Foster displayed to King contained at least 20 photographs of African American males of all ages, heights, builds, and hair styles. The officers did not tell him there was a suspect included within the photographs. At trial, King identified a photograph of defendant in a tank top with bare arms as "probably" the photograph that he viewed. On redirect examination, King testified that defendant's face was "etched" in his mind.
¶ 9 Poe testified that he was about 15 feet away when defendant hit Gavin with the bat and he saw defendant's face. On June 10, 2003, Poe identified defendant in a lineup.
¶ 10 On cross-examination, Poe testified that the police showed him three photographs about one minute before he viewed the lineup. Poe identified defendant, who was the only person in the photo array wearing a tank top and whom the officers named after Poe selected him. In the lineup, everyone was shirtless, and defendant was the most muscular person and the only one with short hair, although Poe denied that was why he identified defendant. On redirect examination, Poe testified that he identified defendant as he recognized him as the person who hit Gavin with the bat.
¶ 11 Green testified that on the night of the attack, he described the defendant to police as a shirtless, muscular man, about 5'11", with slightly dark caramel skin and a "low fade" haircut. About a week later, officers showed Green four or five photos matching the description, and Green selected defendant. On June 10, 2003, Green identified defendant in a lineup.
¶ 12 On cross-examination, Green testified that he noticed a scar on the left side of defendant's face in the photograph, and a tattoo. Several of the photographs depicted muscular men with a low hair style, but no one else wore a tank top. Only one person in the lineup had a low fade or short hair, but Green denied that was why defendant "stuck out" to him. The defendant, however, did draw his attention as defendant was the only shirtless person and a detective had to tell defendant to raise his head. On redirect, Green testified that other individuals in the lineup removed their shirts, but he selected defendant as he was the individual who was at Doxy's.
¶ 13 Yarbrough testified that she saw defendant's face when he hit Gavin and when he walked towards her to enter the vehicle. Defendant was shirtless and Yarbrough noticed tattoos on his chest and stomach. About a week later, Detective Andrew Burns showed her photographs, and Yarborough recognized "Chuck," who was with the attacker. The next day, Burns showed Yarbrough four more photographs, and Yarbrough identified defendant as the person who hit Gavin with the bat. A few days later, on June 10, 2003, Yarbrough selected defendant in a lineup. Everyone in the lineup was shirtless.
¶ 14 On cross-examination, Yarbrough testified that she described the attacker as having a low fade and tattoos. Burns coached Yarbrough's brother in sports and showed her about 16 photographs on June 7, and she told him the attacker had tattoos. Yarbrough denied telling Burns that the photograph she selected on June 8 "look[ed] like" the person who hit Gavin. Defendant was the only person in the lineup who had been in the four photographs she saw on June 8, and after she selected him, officers stated that others had identified the same person. At some point, Yarbrough returned to the station and signed a written statement which did not provide that the attacker had tattoos, but Yarbrough testified that she stated the attacker had tattoos. On redirect examination, Yarbrough testified that she identified defendant in the lineup because she recognized him as the individual who struck Gavin with the bat.
¶ 15 Taylor testified that after defendant struck Gavin, he chased Taylor and hit Taylor with the bat approximately four times. About a week later, Taylor viewed six or seven photographs of similarly-aged African American males and identified defendant. On June 10, 2003, he identified defendant in a lineup.
¶ 16 On cross-examination, Taylor testified that, during the attack, defendant wore grey pants and no shirt, appeared to be about 20 years old, was muscular, and had short hair or a low fade. Taylor did not remember if the individuals in the other photographs wore tank tops, but he could tell whether they were "fit." He agreed that some photographs were "bigger" and that "the person in the picture was bigger than some of the others." The detectives did not tell Taylor whether there was a suspect in the lineup, and everyone in the lineup wore a shirt. Taylor identified a photograph of the lineup and stated that defendant was wearing grey pants. On redirect examination, Taylor testified that he identified defendant as the individual who beat Gavin.
¶ 17 Smith testified that he was three feet away and saw defendant's face when defendant struck Gavin. On the evening of June 10 or early morning of June 11, 2003, Smith identified defendant in a lineup. No one told him whom to identify.
¶ 18 On cross-examination, Smith testified that police officers showed him five photographs on June 8. Defendant was the only person without braids. When Smith looked at defendant's photograph, the officers asked him if that person was familiar, and Smith stated he was and selected the photograph. He looked at the same photograph before his grand jury testimony and trial testimony.
¶ 19 Forberg testified that he and Foster responded to the scene and spoke with several witnesses. The witnesses described the offender as an African American male, 16 or 17 years old, about 6'0" and 160 or 165 pounds, and muscular, with a medium complexion. Forberg obtained a computer-generated photo array of five to eight people with a similar appearance and age to that description, which eventually included a photograph of defendant in a sleeveless t-shirt. On June 7 and 8, 2003, Forberg and Foster showed the arrays to witnesses, and Burns showed an array to Yarbrough. The photo arrays were placed in an investigative file, and Forberg believed they were lost. During the investigation, at the end of June or beginning of July 2003, the police station moved from its temporary home on the 1800 block of West Pershing Road to a remodeled station at 51st Street and Wentworth Avenue.
¶ 20 On cross-examination, Forberg testified that the description of the offender he received did not include tattoos on his stomach or chest, and Forberg denied that Yarbrough stated the offender had tattoos. According to Forberg's reports, Smith and Poe never viewed photo arrays, and Forberg denied showing Poe three photos immediately before Poe viewed the lineup. Forberg did not recall what the other individuals wore in the arrays shown to Green and Taylor, but denied that defendant was the only shirtless person in the lineup which Green viewed. Forberg did not inventory the photo arrays.
¶ 21 Burns testified that Forberg and Foster provided 16 computer-generated photographs which Burns showed Yarbrough on June 7, 2003. Yarbrough identified a photograph of "Chuck," who was with the person who struck Gavin with the bat. Burns returned the photographs to Forberg and Foster. On June 8, Forberg and Foster provided five or six computer-generated photos which Burns showed Yarbrough, and Yarbrough identified defendant as the person who struck Gavin with the bat. Burns returned the photos to Forberg and Foster and had no further involvement in the case. On cross-examination, Burns testified that Yarbrough stated that defendant "looked like" the person who struck Gavin with a bat.
¶ 22 The defense called Patrick Stevenson, who testified that he was present when Gavin was struck with the bat. Stevenson viewed approximately seven photographs about a week later and agreed with the officer that a photograph of an individual with short hair "looked familiar." About a week later, Stevenson viewed a lineup in which everyone had short hair, and stated that the person whose photograph he had seen looked familiar. People spoke about the case in the days between the attack and when he viewed the lineup. On cross-examination, Stevenson identified defendant as the person he selected in the lineup.
¶ 23 David Weiner, an assistant State's attorney, testified that he took Yarbrough's statement and did not recall her stating that the offender had tattoos on his chest and stomach. Alicia Stewart, an investigator for the public defender, testified that she was present while defense counsels interviewed witnesses, and Doxy stated that defendant was not at his residence and the individual who struck Gavin had not arrived in the vehicle with Chuck. According to Stewart, Taylor stated that the offender had a tattoo on his right bicep, and Poe stated that he told police the offender ran into Doxy's house after the attack.
¶ 24 Latasha Jackson testified that, on May 31, 2003, she was with defendant at his wife's baby shower from around 11 a.m. to around 6 p.m. When defendant was charged, Jackson visited him regularly while he was incarcerated but did not tell the police he had been with her. On cross-examination, Jackson testified that she did not know until shortly before trial that the defendant was accused of having committed murder that day.
¶ 25 In closing argument, defense counsel submitted that the detectives hid the photo arrays as they were suggestive and contained only one photograph matching the offender's description, and that the witnesses' identifications of defendant in the lineups stemmed from their recognition of defendant's photograph. The jury found defendant guilty and the court imposed a sentence of 50 years' imprisonment.
¶ 26 Defendant appealed, arguing, inter alia, that the trial court abused its discretion by refusing to issue a jury instruction regarding the missing evidence. Defendant contended that the photo arrays were critical to his defense, may have contained photos of individuals who did not resemble him, and the jury was unable to evaluate whether they were suggestive. We affirmed, noting that no evidence suggested the State withheld the photo arrays as they were adverse to the State's case, and the photo arrays were not "real evidence," but "simply corroborated" the eyewitnesses' testimony. People v. Mosley, No. 1-06-1479 (2008) (unpublished order under Illinois Supreme Court Rule 23).
¶ 27 On February 24, 2010, defendant filed a pro se postconviction petition claiming, inter alia, that trial counsel was ineffective for failing to call a witness. Defendant attached his affidavit, averring that he repeatedly requested counsel call the witness, who "would have vindicated [defendant] from the scene of the crime." Defendant also claimed that counsel on direct appeal was ineffective for failing to argue that his due process rights were violated when the officers acted in bad faith by failing to preserve the photo arrays. The circuit court summarily dismissed the petition. On April 6, 2010, defendant filed a pro se motion to reconsider, and attached an affidavit from the witness stating that the witness was present when Gavin was attacked and defendant was not there. The court denied the motion.
¶ 28 Defendant appealed, arguing that his petition set forth an arguable claim that counsel was ineffective for failing to call the witness. We affirmed, noting that Forberg testified at a pretrial hearing that the same witness identified defendant as the attacker and other witnesses testified at trial that defendant hit Gavin with the bat. People v. Mosley, 2011 IL App (1st) 101605-U.
¶ 29 On August 14, 2018, defendant filed the instant motion for leave to file a successive postconviction petition. Defendant alleged, inter alia, that the State violated his due process rights under Brady v. Maryland, 373 U.S. 83 (1963), by suppressing the photo arrays that Forberg testified were lost. Defendant attached a letter addressed to him from an attorney, Candace Gorman, dated November 16, 2015. Gorman wrote defendant to advise him that, while reviewing files for her own client, she discovered a Chicago police file related to defendant's case. Gorman requested defendant provide her with his attorney's contact information and sign an authorization allowing her to speak with any attorney who had represented him to compare defendant's files with the one she had discovered. Gorman explained that a court order only allowed her to share the contents of the file with an attorney, not defendant. Defendant also submitted an affidavit averring that he had "been made to believe" that Gorman discovered the missing photo arrays.
¶ 30 On July 25, 2019, the circuit court denied defendant leave to file a successive petition. In a written order, the court found that defendant failed to allege factual support for his claim or provide supporting evidence that the file Gorman discovered or the photo arrays would have altered the outcome of his trial. The court ultimately found that defendant's claims were frivolous and patently without merit.
¶ 31 On appeal, defendant argues that the circuit court erred in denying him leave to file a successive postconviction petition where his Brady claim established cause and prejudice. Defendant contends that the letter from Gorman, a Chicago Tribune article about Gorman's discoveries, and the Chicago Police Department's alleged history of hiding evidence in street files arguably demonstrates that the file Gorman discovered contains exculpatory information, potentially including the missing photo arrays, which could arguably have changed the outcome at trial and explain and excuse his failure to provide supporting evidence.
¶ 32 The Act does not provide a substitute for direct appeal, but a mechanism for a defendant to collaterally attack a final judgment by asserting a substantial violation of his constitutional rights at trial. 725 ILCS 5/122-1 (West 2018); People v. Robinson, 2020 IL 123849, ¶ 42. The Act only contemplates one postconviction proceeding. Robinson, 2020 IL 123849, ¶ 42. However, a defendant can obtain leave of court to file a successive petition by establishing either (1) cause and prejudice for the failure to assert a claim in an earlier proceeding, or (2) a fundamental miscarriage of justice based on actual innocence. 725 ILCS 5/122-1 (f) (West 2018). A defendant shows cause by identifying an objective factor that impeded his ability to raise a specific claim during his initial postconviction proceedings, and prejudice by demonstrating that the claim "so infected the trial that the resulting conviction or sentence violated due process." Id.
¶ 33 The cause-and-prejudice test is a higher standard than the frivolous-or-patently-without-merit standard under which an initial petition is reviewed at the first stage. People v. Smith, 2014 IL 115946, ¶ 35. The defendant must make a prima facie showing of cause and prejudice. People v. Bailey, 2017 IL 121450, ¶ 24. All well-pled allegations in the petition and supporting documents must be taken as true, unless positively refuted by the record. Robinson, 2020 IL 123849, ¶ 45. A request for leave to file a successive postconviction petition should be denied only where it is clear from a review of the petition and supporting documentation that the claim fails as a matter of law or the petition and supporting documentation are insufficient to justify further proceedings. Smith, 2014 IL 115946, ¶ 35. We review de novo a circuit court's denial of a motion for leave to file a successive petition. Robinson, 2020 IL 123849, ¶ 39.
¶ 34 Pursuant to Brady, the State violates an accused's constitutional right to due process when it fails to disclose evidence favorable to the accused and material to guilt or punishment. Brady, 373 U.S. at 87. The State's Brady duties are triggered even where the evidence is known only to police and not the prosecutor, as the prosecutor is obligated to learn of favorable evidence known by others acting on the government's behalf. Strickler v. Greene, 527 U.S. 263, 280-81 (1999). To succeed on a Brady claim, the defendant must demonstrate that (1) the undisclosed evidence is favorable to him because it is exculpatory or impeaching, (2) the evidence was willfully or inadvertently withheld by the State, and (3) the defendant was prejudiced because the evidence was material to his guilt or punishment. People v. Beaman, 229 Ill.2d 56, 73-74 (2008). To show that evidence is material, namely, that there is a reasonable probability that the result of the proceeding would have been different were the evidence disclosed, a defendant must demonstrate that it could reasonably put the case in such a different light as to undermine confidence in the verdict. Id. at 74.
¶ 35 The cause and prejudice test may parallel the second and third Brady elements. Strickler, 527 U.S. at 282. That is, the State's suppression of evidence may prevent a defendant from bringing a Brady claim earlier, and prejudice may be satisfied where the suppressed evidence is material under Brady. Banks v. Dretke, 540 U.S. 668, 691 (2004).
¶ 36 Initially, defendant notes that the circuit court denied his motion as the issues raised in his successive petition were frivolous and patently without merit. As noted, however, "the cause-and-prejudice test for a successive petition involves a higher standard than the first-stage frivolous or patently without merit standard" (Smith, 2014 IL 115946, ¶ 35), and defendant concedes that if his claims were frivolous and patently without merit, they would necessarily fail the cause-and-prejudice test. Further, we review the circuit court's judgment, not its reasoning, and may affirm on any basis supported by the record. People v. Lee, 344 Ill.App.3d 851, 853 (2003).
¶ 37 Ultimately, we conclude that defendant has not shown prejudice as the record establishes that the photo arrays would be immaterial even if included in the file Gorman discovered.
¶ 38 At trial, the witnesses testified that they had a clear view of defendant. They each identified defendant in a lineup and at trial. Defendant argues that Yarbrough initially identified "Chuck" as the person who struck Gavin when viewing the arrays, but the record sets forth that Yarbrough identified Chuck as being with the person who struck Gavin with the bat, and the next day Yarbrough identified defendant as the attacker. Further, while King told the police that he did not believe he could recognize the offender's face, he ultimately identified defendant in a photo array and at trial, and the jury was entitled to weigh his testimony as it saw fit. People v. Nelson, 2021 IL App (1st) 181483, ¶ 56 (factfinder responsible for weighing testimony and determining witnesses' credibility). Forberg testified that Smith and Poe did not view any photo arrays. In closing arguments, trial counsel argued that the detectives hid the photo arrays as there was only one photograph in the arrays which matched the description of defendant, and the witnesses identified defendant in the lineup only because they had seen his photograph. Nevertheless, the jury found defendant guilty. Thus, there was overwhelming evidence of defendant's guilt, and defendant has not established that the missing photo arrays would undermine confidence in the verdict.
¶ 39 Consequently, defendant cannot show that the State violated Brady by withholding the photo arrays. Beamon, 229 Ill.2d at 73-74. He therefore has not established prejudice, and the circuit court properly denied him leave to file a successive petition. Smith, 2014 IL 115946, ¶ 35.
¶ 40 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 41 Affirmed.