Digitally signed
by Reporter of
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Illinois Official Reports the accuracy and
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document
Appellate Court Date: 2022.07.19
16:18:20 -05'00'
People v. Plummer, 2021 IL App (1st) 200299
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JOHNNY PLUMMER, Defendant-Appellant.
District & No. First District, Sixth Division
No. 1-20-0299
Filed August 20, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 91-CR-21451; the
Review Hon. Vincent M. Gaughan, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Joey L. Mogul and Brad J. Thomson, of People’s Law Office, and
Appeal David M. Shapiro, of Roderick & Solange MacArthur Justice Center,
both of Chicago, and Megha Ram, of Roderick & Solange MacArthur
Justice Center, of Washington, D.C., for appellant.
Myles P. O’Rourke, Special State’s Attorney, of Chicago (Andrew N.
Levine, Ariel Yang-Hodges, and Elisabeth Gavin, Assistant Special
State’s Attorneys, of counsel), for the People.
Daniel J. Schneider, of Edelson PC, of Chicago, for amici curiae
Chicago Torture Justice Center et al.
Michael A. Scodro, Elaine Liu, Sara Norval, and Sarah I. Rashid, of
Mayer Brown LLP, of Chicago, for amici curiae Robert W. Bennett
et al.
Panel JUSTICE ODEN JOHNSON delivered the judgment of the court, with
opinion.
Presiding Justice Mikva and Justice Harris concurred in the judgment
and opinion.
OPINION
¶1 Defendant, Johnny Plummer, appeals the second stage dismissal of his amended successive
postconviction petition on the State’s motion. On appeal, defendant contends that the trial
court’s dismissal should be reversed where defendant made a substantial showing to proceed
to a third stage evidentiary hearing based on newly discovered evidence corroborating his
claims of police torture and a Brady v. Maryland, 373 U.S. 83 (1963), violation. For the
following reasons, we reverse and remand for third stage proceedings.
¶2 I. BACKGROUND
¶3 A. Pretrial and Trial Proceedings
¶4 Following a bench trial, the court found defendant guilty of first degree murder, attempted
first degree murder, and aggravated battery with a firearm in the death of Michael Engram
(decedent) and the shooting of D’Andre Dyson (D’Andre). Accordingly, the court imposed a
cumulative sentence of 50 years. The following facts were detailed by this court in defendant’s
direct appeal. People v. Plummer, 306 Ill. App. 3d 574 (1999).
¶5 The shooting occurred on August 11, 1991, and defendant, who was 15 years old at the
time, was arrested shortly thereafter. Prior to trial, a hearing on defendant’s motion to suppress
statements was held. Id. at 576. The evidence established that Chicago police Detective
Michael Kill was investigating the homicide of Anthony Phillips, near the location of 5817
South Union Avenue on August 18, 1991, around 6:30 p.m. Detective Kill saw defendant near
the scene, and defendant gave him information regarding the Phillips death. 1 Id. Defendant
was allowed to leave the scene. Id.
¶6 On August 19, 1991, at around 3:30 a.m., Detective Kill was again near the scene of the
Phillips’s homicide talking to other witnesses. Id. He saw defendant walk by and asked
defendant and other witnesses to accompany him to the police station: defendant agreed. Upon
arrival at the Chicago Police Department Area 3 station (Area 3), the witnesses were put in
separate interview rooms where they each gave a statement about Phillips’s murder. Id.
Defendant was not given his rights under Miranda (Miranda v. Arizona, 384 U.S. 436 (1966))
because he was being treated as a witness. Plummer, 306 Ill. App. 3d at 576. At 6 a.m.
Detective Kill and Detective John Halloran (Detective Halloran) interviewed defendant at
1
The two attended a party right before Phillips’s death and were known associates.
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which point he implicated a suspect in that case. Id. at 576-77. They gave the witnesses the
option of staying at the station or coming back when they picked up the suspect. Id. at 577.
The witnesses all elected to stay at the station. Id.
¶7 Later that morning, Chicago police Detective Stanley Turner received an anonymous call
telling him that “Smokey” murdered decedent. Id. The caller described “Smokey” as a young
black man, of dark complexion, tall, and from around the area of 59th Street. Id. Decedent was
shot at 60th Street and Morgan Street on August 11, 1991, at around 4 p.m. Id. Detective Turner
learned that an individual named “Smokey” was in the station already. Id. Defendant admitted
that he was known as “Smokey” but denied any involvement at approximately 4 p.m. on
August 19, 1991. Id. Detective Turner testified that defendant was not handcuffed and looked
coherent and appeared relaxed. Id.
¶8 At 6 p.m. Detectives Kill and Kenneth Boudreau spoke with defendant again about the
Phillips murder, and they left the station. Id. The detectives confirmed that the witnesses would
stay at the station in the event that the suspect was found. Id. Detective Kill did not know
defendant was known as “Smokey” and did not know about his potential involvement in the
murder of decedent. Id. Detective Kill denied treating defendant in an abusive manner and
stated that defendant never asked for an attorney or his mother. Id.
¶9 At 7 p.m., Detective Halloran returned to the police station to give food to the witnesses
when he was informed that they had an eyewitness to the decedent’s murder. Id. Detective
Halloran denied treating defendant in an abusive manner and testified that defendant did not
ask to see anyone. Id. Detective Halloran denied any involvement with the investigation into
decedent’s death. Id.
¶ 10 At 8:30 p.m., defendant stood in a lineup and was positively identified as decedent’s killer.
Id. at 577-78. Afterwards, defendant was informed of his Miranda rights by Detective Devon
Anderson. Id. at 578. Defendant confessed to the murder of decedent to Assistant State’s
Attorney (ASA) William Marback and agreed to give a signed confession. Id.
¶ 11 At 12:35 a.m. on August 20, 1991, ASA Marback again advised defendant of his Miranda
rights and wrote out defendant’s statement of confession in his presence. Id. Defendant insisted
on adding an additional statement that indicated that he shot the decedent because he was
informed that decedent put a hit on him, which ASA Marback transcribed. Id. At 3:50 a.m. on
August 20, 1991, defendant gave a witness statement to ASA Marback and Detective Halloran
regarding the Phillips murder. Id. ASA Marback testified that defendant stated he was treated
“fine” and was allowed to use the bathroom and was given a soda and a cigarette.
¶ 12 Defendant testified that between 9 and 10 a.m. on August 18, 1991, two detectives took
him to the police station where he was placed in a small room and handcuffed to a ring in the
wall. Id. Six hours later, he was driven to the scene of Phillips’s murder.
Id. at 579. He was
taken back to the station and given one hamburger. Id. Defendant asked Detective Kill if he
could go home or talk to his mother, and Detective Kill just laughed in defendant’s face. Id.
Detective Kill proceeded to hit defendant in the face, stomach, and side, pulled his hair, and
then left the room. Id. Another detective, who defendant did not identify, came into the room
and took his shoes. Id. That detective came back and claimed that the shoes matched the prints
from the scene. Id. Another unidentified officer told defendant he would get 40 years in prison,
where he would be raped. Id. Defendant testified that he only made the confession in
decedent’s case and witness statements for the Phillips case because he was told he could go
home if he did so and because he was tired and afraid. Id.
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¶ 13 On cross examination, defendant acknowledged that when he was talking about the Phillips
murder, he was not handcuffed. Id. He agreed to go to the scene of Phillips’s murder; however,
when he returned to the station, he was then accused of murdering Phillips. Id. He asserted that
he was never given any Miranda rights by any member of law enforcement but did receive his
Miranda rights from ASA Marback. Id. Defendant stated that he informed ASA Marback that
he was abused, but ASA Marback did not do anything. Defendant testified that “about a half
day” after he gave his witness statement, Detective Kill hit him once in the face and three times
with a flashlight. Id. Defendant testified that he did not know what was in the statement he
signed, but he signed it because he was afraid and tired of being in the police station. Id. He
testified that he signed that statement after he signed the witness statement regarding the
Phillips murder. Id. He testified that when he was taken to the juvenile temporary detention
center on August 20, 1991, he told the doctor there that the police had beaten him. Id. When
defendant was shown photographs taken of him during the lineup, he admitted that there were
no marks on his face. Id.
¶ 14 On redirect examination, defendant testified that both Detective Kill and his partner hit
him. He also clarified that he was hit by Detective Kill’s partner prior to signing his confession.
¶ 15 Defendant’s mother, Jeanette Plummer, testified that she visited defendant on August 21,
1991, at the “Audy Home” and observed that his back and face were swollen and that he had
dark marks on his upper chest. Id. at 580. However, on cross examination, she acknowledged
that defendant’s lineup photos showed no visible injuries. Id.
¶ 16 Dr. Lawrence Heinrich, a clinical psychologist, testified that he performed a series of tests
on defendant in the spring of 1993 and reviewed prior medical reports, and he determined that
defendant suffered from schizo-affective disorder. Id. In Dr. Heinrich’s opinion, stress and
prolonged interrogation would cause defendant to do anything to escape the situation, although
he would not understand what he was doing. Id. He also testified that sometimes defendant did
not tell the truth. Id.
¶ 17 In rebuttal, the State presented Dr. Albert Stipes, a psychiatrist, who testified that he met
with defendant in 1992. Id. After reviewing police reports, defendant’s statements, and his
social and psychiatric history, Dr. Stipes determined that defendant could knowingly and
understandingly waive his Miranda rights, that he was fit and sane at the time of the incident,
and that there was no evidence of a schizo-affective disorder. Id. He also stated that he believed
that defendant was malingering and exaggerating or faking the symptoms of mental illness. Id.
at 580-81.
¶ 18 The trial court denied defendant’s motion to suppress statements finding that he was not
physically, psychologically, or emotionally coerced. Id. at 581.
¶ 19 At trial, two witnesses identified defendant as the shooter.
Id. Roger Tyler testified to
seeing defendant prior to and after the crime, while hearing several gunshots being fired in
between. Id. Reiko Dyson (Dyson) testified that she was in a candy store with decedent and
her son when defendant came in the store and opened fire. Id. The shooting resulted in
decedent’s death and her son being hit in the finger by gunfire. Id.
¶ 20 ASA Marback testified that defendant made a written confession detailing why he
committed the murder. Id. The statement indicated that defendant purchased a gun for
protection after an argument with decedent. Id. On August 11, 1991, when he saw decedent at
the candy store, decedent threatened defendant, and defendant began shooting at him. Id.
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¶ 21 Defendant was found guilty by the trial court of first degree murder, attempted first degree
murder, and aggravated battery with a firearm and sentenced defendant to concurrent prison
terms of 50 years, 25 years, and 25 years, respectively. Id. at 582.
¶ 22 B. Direct Appeal
¶ 23 On direct appeal, defendant contended that (1) the trial court erred in denying his motion
to suppress statements where the evidence established that he was denied access to his mother
and family once his status changed from witness to suspect, (2) the youth officer failed to
perform his duties to safeguard defendant’s rights, and (3) there was medical evidence that he
was easily susceptible to the influence of others. Id. This court held that the statements made
by defendant were freely and voluntarily given and not against the manifest weight of the
evidence. Id. at 589. Additionally, we found that a juvenile held in custody without a warrant
does not lose their protections under the Juvenile Court Act of 1987 (Juvenile Court Act) (705
ILCS 405/5-4(6)(a) (West 1992)) until charged with an offense that is enumerated under the
Juvenile Court Act. Plummer, 306 Ill. App. 3d at 583. Defendant’s conviction and sentence
were affirmed. Our supreme court denied defendant’s petition for leave to appeal on October
6, 1999.
¶ 24 C. Initial Postconviction Petition
¶ 25 Defendant filed his initial pro se postconviction petition on September 4, 1996, alleging
ineffective assistance of trial counsel. Defendant alleged that defense counsel was ineffective
for failing to subpoena detectives he claimed abused him, failing to call two witnesses who
could have corroborated the abuse he received, failing to introduce evidence of his poor school
grades, and failing to file a motion to suppress the lineup identification when he was the only
person in the lineup with a dark complexion. On December 26, 1996, defendant supplemented
his petition with an allegation that Detectives Kill and Boudreau perjured themselves at trial.
Defendant amended his petition several more times, and the court assigned counsel. The trial
court ultimately granted the State’s motion to dismiss, finding that defendant failed to establish
ineffective assistance of appellate or trial counsel. Defendant appealed, and we affirmed the
dismissal on June 10, 2009. People v. Plummer, No. 1-06-1552 (2009) (unpublished order
under Illinois Supreme Court Rule 23). Our supreme court denied defendant’s petition for
leave to appeal on September 30, 2009.
¶ 26 D. Habeas Corpus Petition
¶ 27 Defendant filed a federal habeas corpus petition in the Northern District of Illinois on
September 29, 2010, alleging that he was physically and mentally coerced into making a
confession by detectives. On September 1, 2011, the court denied defendant’s petition as well
as the certificate of appealability. Plummer v. Rednour, No. 10-C-6225, 2011 WL 3876908
(N.D. Ill. Sept. 1, 2011).
¶ 28 E. Class Action Petition
¶ 29 On October 29, 2012, defendant, along with Vincent Wade, filed a putative class action
petition in the circuit court of Cook County on their own behalf and as representatives of the
putative class of then-incarcerated persons who were coerced into confessing to serious crimes
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by former Commander Jon Burge and his associates and were convicted and sentenced to
prison based on those coerced confessions. The named defendants sought certification of the
class and a third stage postconviction evidentiary hearing for each class member based on their
respective claims of coercion and or torture. The petition to certify the class was denied on
March 12, 2014. However, a special master was appointed to identify all valid claims of
coerced confessions. The special master determined defendant’s claim to be valid and
recommended that an attorney be appointed to represent him. On June 17, 2015, the trial court
further ruled that individuals with a valid Burge-related postconviction claim were entitled to
appointed counsel to assist them in filing successive postconviction petitions wherein they
were entitled to rely on newly discovered evidence of systemic torture and abuse under Burge’s
command.
¶ 30 F. Successive Postconviction Petition
¶ 31 On February 29, 2016, defendant filed a motion for leave to file a successive postconviction
petition. The petition alleged (1) newly discovered evidence showing that interrogating
Detectives Kill and Boudreau were involved in a pattern and practice of torture, physically
abuse, and other acts of coercion to elicit incriminating statements under the command of
Burge in Areas 2 and 3; (2) the State committed a Brady, 373 U.S. 83, violation when it
withheld exculpatory evidence regarding the practices of the interrogating detectives’ practice
and pattern of torture and physical coercion; and (3) a fundamental fairness claim regarding
the use of defendant’s confession at trial when it was physically coerced. The trial court granted
defendant’s motion on June 15, 2016. On September 28, 2016, the State filed a motion to
dismiss.
¶ 32 On June 18, 2019, defendant filed a motion for leave to file an amended successive
postconviction petition after uncovering information that appeared beneficial to his case, which
the trial court granted. The petition restated the allegation that Detectives Kill and Boudreau
used torture and abuse to elicit incriminating evidence and added the following new
allegations: (1) newly discovered evidence of a federal investigation involving decedent that
the State withheld, which could have provided information of other suspects who may have
been responsible for the murder of decedent in violation of defendant’s due process rights;
(2) newly discovered evidence eroding the identification of defendant as shooter; and (3) the
cumulative effect of all of the errors alleged deprived defendant of his fundamental right to
due process. Defendant attached three affidavits and other supporting evidence in support of
his amended successive postconviction relief petition.
¶ 33 1. Affidavit of Reiko Dyson
¶ 34 In defendant’s postconviction petition, defendant attached the affidavit of Reiko Dyson
(Dyson) dated May 13, 2019, who originally identified defendant as being a shooter in a lineup
and at trial. Dyson averred that on August 11, 1991, she was dating the decedent and had been
in a relationship with him for years. Dyson, decedent, and her son, D’Andre, went to the candy
store at 6038 South Morgan Street. While in the store Dyson observed the shooter outside of
the door of the candy store (he did not come in), and she remembered him as being a tall man
with “dark skin.” Dyson averred that she did not get a good look because the shooting happened
very quickly, and she was focused on her son. Dyson was unable to see the shooter’s face, she
only saw him through with her peripheral vision. When Dyson picked defendant out of the
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lineup, he appeared to resemble the shooter the most and noted he had dark skin. Dyson averred
that she was unable to say for sure that defendant was the shooter.
¶ 35 2. Affidavit of Spencer Riley
¶ 36 Defendant attached the affidavit of Spencer Riley dated December 16, 2016. Riley averred
that in August 1991, he and defendant were friends, and they were detained and taken to Area
3 in handcuffs by Detective Kill. Riley stated that he was familiar with Detective Kill because
he would often take him in for questioning if a crime happened in their neighborhood. While
at Area 3, Detective Kill informed Riley that he knew they had nothing to do with the crime
and that there was another suspect. Riley asserted that Detective Kill informed him that there
was a federal investigation occurring and they thought the murder was an “in house” job,
meaning the murder was done by the people decedent was in the drug business with. Riley was
free to leave that day while defendant remained; he had not been in contact with defendant
since that day.
¶ 37 3. Evidence of a Pattern of Police Abuse and Misconduct
¶ 38 Defendant attached an abundance of exhibits containing affidavits, complaints, and
investigations, as well as trial and appellate decisions concerning other defendants who alleged
they were abused by Burge and his associates from the 1970s onward. Specifically, defendant
attached numerous reports on the allegations of abuse made by the Torture Inquiry and Relief
Commission (TIRC), the Office of Professional Standards (OPS), the City of Chicago, and the
special state’s attorney.
¶ 39 4. Evidence of Brady Violation
¶ 40 The following documents were uncovered by the instant postconviction counsel, after
issuing subpoenas to various agencies. These documents were created around the time of
defendant’s interrogation.
¶ 41 a. Affidavit of Special Agent Zehme
¶ 42 On April 17, 1991, Richard Zehme, a special agent with the Internal Revenue Service (IRS)
criminal investigation division in Chicago, provided an affidavit wherein he attested that his
job was to conduct investigations on individuals who derived income from illegal sources.
Agent Zehme began his investigation of decedent and Anthony Battiste in May 1990. This
investigation was conducted jointly with the Drug Enforcement Administration (DEA). Agent
Zehme’s investigation revealed that within two years Battiste had acquired property, cars, and
furnishings amounting to $200,000 despite not having any legitimate source of income. Agent
Zehme’s investigation revealed that property located at 6238 Beaver Dam Road, Matteson,
Illinois was the center of the illegal operation. Even though Battiste resided at the property, the
real estate records revealed that the property was owned by decedent and all utility bills were
in decedent’s name.
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¶ 43 b. Memo of Agents Zehme and Pat Maloney
¶ 44 On August 13, 1991, IRS agents Zehme and Pat Maloney interviewed Tony Nelson.
Detective Boudreau was also present. Nelson stated that “the word on the street” was that
Battiste had decedent killed because he feared decedent would cooperate with federal
authorities.
¶ 45 c. Memo of Agent Zehme
¶ 46 On August 19, 1991, agent Zehme met with decedent’s brother, Johnny Engram (Johnny).
Johnny stated that he and his brother grew up with Battiste and that he used to work for Battiste
but stopped in May 1985 because he was not getting paid. Johnny proceeded to outline the
inner workings of Battiste’s drug operation including several men who worked for Battiste.
Johnny also indicated that Battiste was told by his attorney that a person named “Big Wayne”
was cooperating with authorities, at which point, Battiste told his men to shoot at Big Wayne’s
people.
¶ 47 d. Report of Agent Zehme
¶ 48 On February 25, 1993, agent Zehme assembled a report that revealed that a search warrant
of the home that decedent lived in was issued on August 19, 1991. The search revealed drugs,
paraphernalia, and large amounts of money.
¶ 49 5. The State’s Motion to Dismiss
¶ 50 On September 5, 2019, the State filed an amended motion to dismiss defendant’s amended
successive postconviction petition arguing that (1) all claims were barred by res judicata
because (a) fundamental fairness should not be relaxed when the trial record contradicted
defendant’s claim that certain detectives were involved in decedent’s investigation and when
the detectives in question left Area 3 prior to the time defendant claimed they abused him and
(b) the record suggested that defendant made a voluntary statement; (2) defendant had not
alleged a Brady violation petition when (a) Detectives Kill and Boudreau were not involved in
the interrogations and (b) defendant did not allege specific evidence of another person who
had the opportunity, motive, and intent to kill decedent; (3) defendant’s challenge to the
reliability of Dyson’s eyewitness and trial testimony with an affidavit that only stated that she
was unsure of her former identification of defendant was not a recantation and was cumulative
of her testimony on cross examination by defendant and not newly discovered; and (4) because
all of defendant’s claims were barred by res judicata, he was not entitled to a claim of
cumulative error.
¶ 51 Defendant subsequently filed a response 2 arguing that (1) he was entitled to relitigate the
claim that his confession was involuntary when there was newly discovered evidence of police
misconduct corroborating his claim; (2) People v. Patterson, 192 Ill. 2d 93 (2000), and its
progeny clearly demonstrate that the evidence contained in defendant’s successive
postconviction petition was relevant, material, and would likely lead to a different result if
presented at a new motion to suppress hearing; (3) newly discovered evidence shows that
Detectives Kill and Boudreau both participated in the investigation of decedent’s murder
2
The response is provided in the record but does not have a file date stamped on it.
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despite their denials, and therefore the evidence showed (a) Detectives Kill and Boudreau
interrogated defendant regarding decedent’s murder and (b) Detectives Kill and Boudreau
physically coerced defendant into confessing; (4) the State’s arguments did not accept as true
the allegations of defendant as required and instead based their motion on assertions of
disputed testimony of detectives whose credibility is at issue; (5) defendant does not have to
establish that he sustained visible physical injuries to demonstrate that Detectives Kill and
Boudreau coerced his confession; (6) the State improperly argued that the confession was
exculpatory and therefore, voluntarily given; (7) defendant presented a cognizable Brady
violation when he presented evidence demonstrating that Detectives Kill and Boudreau failed
to produce evidence of other suspects who may have been responsible for the murder of
decedent.
¶ 52 The State filed a reply in further support of its motion to dismiss. 3 In addition to restating
their initial contentions, the State further argued that defendant’s Brady claim was conclusory
as to what Detectives Kill and Boudreau knew and their conduct.
¶ 53 On January 9, 2020, the trial court conducted a hearing on the State’s amended motion to
dismiss. The State argued that the defendant’s amended successive postconviction petition was
a “repeat effort” to allege claims against Detectives Kill and Boudreau, who were not involved
in the custodial interrogation of defendant. The State contended that defendant’s claim that he
had newly discovered evidence of the detectives’ pattern and practice of police brutality must
fail because he did not make a substantive claim and was barred by res judicata. The State
maintained that the issue of police brutality was raised at trial and in his previous
postconviction petition. The State reminded the court that Detective Kill testified at the pretrial
hearing that he was listed in the police report as being involved in the decedent’s case in error.
According to the State, Detective Anderson took defendant’s statement at approximately 8:30
p.m. on August 19, 1991, following a lineup where defendant was identified. Detective Kill
had left the police station that day at approximately 7 a.m. The State asserts that Detective Kill
was only involved as an investigator for the Phillips murder investigation, not the decedents.
¶ 54 The State also pointed out that Detective Turner testified that he received the anonymous
tip that identified defendant as the suspect in the decedent’s murder. When he brought this to
defendant’s attention, at approximately 4 p.m. on August 19, 1991, defendant denied any
involvement. Thus, the State proposed that defendant’s denial at 4 p.m. demonstrated how his
will was not overborne by Detectives Kill and Boudreau, who were not alleged to have been
in the building at that time.
¶ 55 Additionally, the State alleged that the claim lacked materiality because defendant did not
specifically assert that Detective Boudreau was involved in the abuse. The State argued that
the new evidence of Detective Boudreau’s mere presence at Nelson’s interview regarding
decedent’s murder did not demonstrate that he was assigned to this case. The State also argued
that the claims of physical injury were not reflected in the photos of defendant that were
submitted at the suppression hearing and his mother did not testify to seeing any visible injuries
on defendant.
¶ 56 Next, the State argued that defendant’s Brady claims should fail because the State never
withheld information pertaining to a pattern and practice of police brutality by Detectives Kill
and Boudreau and such evidence was not widely known to prosecutors during pretrial
3
The time stamped date is not visible on the copy provided in the record.
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proceedings in the early 1990s. According to the State, defendant failed to cite any evidence
in support of his theory that the State had knowledge and withheld said information.
¶ 57 Finally, the State insists that defendant’s third claim should be declined because defendant
failed to prove that the State had knowledge and an obligation to share said knowledge of the
federal grand jury investigation involving the decedent. The State argued that evidence of
several men under Battiste’s “command” that look similar to defendant still does not clearly
identify a potential suspect who had motive to kill the decedent. 4 The State argued that, even
though defendant provided a list of potential suspects, witnesses identified him as the shooter,
and thus, the claim lacks materiality because knowing this information would not have made
a difference in the case.
¶ 58 Defendant argued that his first claim, which raises the issue of whether Detectives Kill and
Boudreau were part of the decedent’s murder investigation, cannot be dismissed because it
involves a disputed fact that must be decided by the trier of fact. Defendant alleges that just
because the detectives were not present when defendant made the statement does not mean that
defendant was not coerced. Defendant suggests that this requires an examination of not who
took the statement but rather who did the interrogation, citing People v. Rogers, 413 Ill. 554
(1953), as support. Defendant posits that if the newly discovered evidence showing that
Detective Kill lied regarding his participation in the decedent’s murder investigation, that
Detective Kill actually interrogated Riley, and that Detective Kill had a pattern and practice of
abuse had been presented at the motion to suppress hearing, the motion to suppress the
statement of confession would have been granted.
¶ 59 In regard to defendant’s second claim of a Brady violation, for failure to disclose, defendant
rested on the arguments made in his response to the States motion to dismiss.
¶ 60 For defendant’s third and last claim, he argued that the undisclosed evidence revealed that
there was an alternative suspect. Defendant attested that prior to his death the decedent was
engaged in criminal activity with Battiste, a governor in the Gangster Disciples; both of whom
were being investigated by federal authorities. Defendant argued that the eyewitness described
the shooter and that the description matched four men who worked for Battiste. Defendant
referred the court to evidence of a meeting wherein a federal agent and Detective Boudreau
interviewed a witness two days after decedents death. The witness told them that it was a
widely known rumor that Battiste had decedent killed to prevent him from testifying against
him. Defendant explained that Battiste benefited by not only eliminating the potentially
damning testimony of the decedent; but he also had the benefit of blaming the money
laundering and narcotics charges on decedent. Battiste was ultimately found not guilty of the
narcotics charges. Accordingly, defendant believed that this evidence was exculpatory in
nature and should have been disclosed by the State.
¶ 61 Defendant argued that he had newly discovered evidence of an affidavit from Riley who
stated that he was brought in with defendant for questioning about the Phillips murder. While
questioning Riley, Detective Kill stated that he knew about the federal investigation and that
he believed that the decedent was murdered by someone he did business with. This evidence
was never before raised and therefore was not barred by res judicata. Defendant presents that
Defendant listed several men (Michael Battiste (Battiste’s brother), Darnell Reese, Shawn Reese
4
and Edward Reese) and provided their respective criminal backgrounds, as well as mugshots, and
argued that they were all possible suspects who could have committed the crime on behalf of Battiste.
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this evidence also impeaches Detective Kill because it demonstrates that he was not being
honest in the suppression hearing when he indicated that he had nothing to do with the
investigation of decedent’s death. Defendant argued that this evidence was material to
defendant’s guilt because he should have had the right to show that other people matched the
description of the shooter. Lastly, defendant argued that he should have had this evidence
available to him at trial in order to demonstrate that the investigation was inadequate because
they were aware of other potential suspects and did not attempt to investigate them.
¶ 62 In rebuttal, the State indicated that Detective Kill treated defendant as a witness in the
Phillips murder investigation and that the defendant’s statement was voluntarily given.
Additionally, the affidavit by Riley cannot be newly discovered because he was known by the
time of trial and an affidavit by him would lack the required due diligence. Lastly, the State
argued that they did not know the details of the federal investigation or what involvement
Detective Boudreau had with that investigation.
¶ 63 Defendant responded that Riley was in fact a known witness, however, there were no
reports regarding his interrogation. It was not defendant’s burden to know or figure out that
Detective Kill had interrogated Riley with respect to the decedent’s murder. As far as the
defendant knew, Riley was just a potential witness to defendant’s alleged abuse and whether
defendant was brought to the police station involuntarily.
¶ 64 The trial court found that there was no question that Detectives Kill and Boudreau engaged
in a pattern and practice of abuse. However, on August 19, 1991, Detective Kill left the police
station at 7 a.m. At 4 p.m., defendant denied any involvement in the death of decedent. The
trial court determined that, even if there was torture, it had been attenuated when he denied
involvement at 4 p.m. According to the court, this denial showed that defendant’s will had not
been overborne. The trial court noted it was only after he was identified in a lineup that his
statement was taken by persons other than Detectives Kill and Boudreau. The trial court ruled
that Detectives Kill and Boudreau’s past bad acts were not relevant nor material. The trial court
found that it was not known what the decedent was going to testify to in the federal
investigation because there is nothing in the record to reflect that; to assume either way would
be mere speculation. The trial court indicated that if there was any evidence to demonstrate
that Battiste killed the decedent, he would have faced additional federal charges. Lastly, the
trial court found that common sense would dictate that a defense attorney would ask a witness
who was referenced in a police report what was discussed between that witness and a detective.
The trial court dismissed the amended successive postconviction petition.
¶ 65 Following defendants notice of appeal, we granted leave to file a brief to Mayer Brown
LLP and Edelson PC (collectively, amici), who both individually represent a coalition of
groups and individuals who are interested in this matter. Additionally, this court heard the oral
arguments of the State and defendant on July 8, 2021.
¶ 66 II. ANALYSIS
¶ 67 On appeal, defendant contends that this court should reverse the second stage dismissal of
his successive postconviction petition where he made a substantial showing of (1) newly
discovered evidence of police torture by Detectives Kill and Boudreau corroborating his claim
of being tortured into making a confession and (2) the State committing a Brady violation by
concealing evidence that proved that there were alternative suspects in the murder investigation
of decedent. The arguments contained in the amici briefs largely echo that of defendant, and
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we will not dissect them here but will make specific reference thereto as necessary.
¶ 68 A. Standard of Review
¶ 69 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) provides
a statutory remedy for defendants who claim that their constitutional rights were violated at
trial. People v. Edwards, 2012 IL 111711, ¶ 21. The Act is not a direct appeal but rather a
collateral attack on a prior final judgment. Id. “The purpose of a postconviction proceeding is
to permit inquiry into constitutional issues involved in the original conviction and sentence
that were not, and could not have been, adjudicated previously on direct appeal.” People v.
English, 2013 IL 112890, ¶ 22.
¶ 70 The Act contemplates the filing of only one petition without leave of court. People v.
Sanders, 2016 IL 118123, ¶ 24. Any claim not presented in an original or amended petition is
waived. Id. There are two exceptions for which the bar on successive petitions can be relaxed.
Id. The first exception is when the petitioner satisfies the cause and prejudice test. 725 ILCS
5/122-1(f) (West 2014). The second exception is known as the fundamental miscarriage of
justice exception. People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). That exception requires
the petitioner to demonstrate actual innocence. Id.
¶ 71 The Act provides a three-stage process for adjudicating petitions. People v. Cotto,
2016 IL
119006, ¶ 26. At the first stage, the trial court determines whether the petition is “frivolous or
is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2014). If the petition is not
dismissed at first-stage proceedings, it advances to the second stage. Cotto, 2016 IL 119006,
¶ 26. At the second stage, the trial court must determine whether the petition and any
accompanying documentation makes a “substantial showing of a constitutional violation.”
(Internal quotation marks omitted.) People v. Domagala, 2013 IL 113688, ¶ 33. At a third stage
evidentiary hearing, the trial court serves as the fact finder; the court’s function is to determine
witness credibility, decide the weight to be given testimony and evidence, and resolve any
evidentiary conflicts. Id. ¶ 34. At a postconviction hearing, a defendant bears the burden of
proof to show a denial of a constitutional right by the preponderance of the evidence. People
v. Coleman, 2013 IL 113307, ¶ 92.
¶ 72 At the second stage of proceedings, all well-pleaded facts that are not positively rebutted
by the trial record are to be taken as true, and in the event the trial court dismisses the petition
at that stage, we generally review that decision de novo. People v. Childress, 191 Ill. 2d 168,
174 (2000).
B. Newly Discovered Evidence of Torture
¶ 73 Defendant contends that evidence continues to be unearthed, regarding the pattern and
practice that Detectives Kill and Boudreau engaged in while working at Area 3 under Burge’s
command, and has provided such evidence in his amended successive postconviction petition.
Specifically, defendant cites the TIRQ, OPS, and the City of Chicago as sources who have
confirmed, cataloged, and deemed credible the allegations of the abuse by Detectives Kill and
Boudreau.
¶ 74 Defendant contends that evidence of systematic torture entitles him to a third stage
evidentiary hearing where he may present evidence of abuse and argue for a new suppression
hearing. In support, defendant has demonstrated that he (1) has consistently maintained for
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decades that as a 15-year-old child he was tortured when detectives beat him with a flashlight,
pulled his hair, and hit him while he was handcuffed to a wall and radiator; (2) the claims were
strikingly similar to other claims of torture such as (i) Clinton Welton, Andre Wilks, and
Marcus Wiggins who recalled being struck in the head or body while in custody and (ii) Peter
Williams who was handcuffed to a radiator for hours; (3) Detectives Kill and Boudreau are
identified in other credible allegations of torture; and (4) his allegations are consistent with
OPS findings of systematic torture where the abuse was committed at Area 3 under Burge’s
command and that the torture was systematic and the culture was prevailing citing People v.
Wrice, 406 Ill. App. 3d 43, 53 (2010), as support. Both defendant and the amici rely on Wrice,
which formulates the principle that misconduct of this type is always material and can never
become harmless error. The amici further contend that it can find no case, state or federal, that
has held that the admission of a confession obtained with the degree of abuse that defendant
experienced was harmless error. As such, the amici analogizes the decision of the trial court to
a regression back to the beginning of Burge-related cases where black victims were required
to present indisputable evidence to prove that they were abused.
¶ 75 The amici contend that Burge-related postconviction proceedings make clear that the trial
court’s decision warrants reversal. Illinois precedent has established that “a pervasive pattern
of criminal conduct by police officers is enough for courts to reconsider the voluntariness of a
defendant’s confession.” (Internal quotation marks omitted.) People v. Tyler, 2015 IL App
(1st) 123470, ¶ 189.
¶ 76 Defendant and the amici both contend that the abuse suffered by defendant had not been
attenuated by the passage of time, as the trial court had found. Defendant contends that the
abuse is not rendered less material or relevant because Detectives Kill and Boudreau were not
present at the time defendant made the statement. The amici agree and contend that case law
demonstrates that coercion is still present even when those who tortured defendant were not
present for the confession, citing Patterson, 192 Ill. 2d at 111-18, as support. The amici urge
this court to hold that the alleged attenuation does not extinguish petitioner’s right to show the
coercive effect of Burge-era abuse. Defendant reminds the court that violence at any time while
in custody is enough to render a confession involuntary, especially when it was obtained after
a 39 hour interrogation, citing Rogers, 413 Ill. at 564-65 (1953), for support. Lastly, defendant
reasons that a finding of attenuation was unsupported by the record and could only be found if
a fact-specific inquiry and hearing are conducted.
¶ 77 The State contends that the alleged “new” evidence was cumulative of defendant’s
previous allegation of torture and thus would not have changed the result of the suppression
hearing. At the suppression hearing the trial court weighed defendant’s claim against the
evidence presented by the State and determined that defendant’s confession was voluntary.
The State relies on the following sequence of events: defendant denied involvement in the
murder at approximately 4:30 p.m. on April 19, 1991, he was then identified in a lineup, after
which he made a statement implicating himself and gave a handwritten confession wherein, he
included additional information as to his motive. The State contends that the exculpatory
language in the written statement as well as ASA Marback having followed proper procedure
when taking the statement is an indicator that the statement was less likely coerced. The State
further asserts that defendant’s calm and relaxed demeanor throughout his custody, his being
offered a cigarette and the opportunity to use bathroom, as well as the lack of any visible
physical injury were also indicators of a voluntary confession.
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¶ 78 Next, the State contends that defendant is barred by res judicata from raising this claim as
defendant raised this issue in both the direct appeal and the postconviction petition. The State
notes that this court previously determined that the claims of defendant were illogical because
he claimed that Detective Kill abused him after he obtained a witness statement. Additionally,
this evidence is cumulative to what was attached to his ineffective assistance claim. The State
claims that defendant has not demonstrated that the new evidence is sufficient to warrant the
relaxation of res judicata, citing Patterson, 192 Ill. 2d at 139, as support. According to the
State, defendant has not shown that the evidence is substantially new evidence, material or
conclusive. The evidence is not new because evidence of such was presented along with his
previous ineffective assistance claim, the evidence is not material or conclusive when
defendant’s confession was taken outside the presence of those he alleged abused him, and the
evidence presented is general in nature. Likewise, Riley’s affidavit is not newly discovered
because he was a witness known at trial and the affidavit itself does not contain any new
information. Additionally, the evidence could not be material because the record shows that
Detective Kill was not involved in the decedent’s murder investigation.
¶ 79 Defendant’s reply brief contends that the presentation of Riley’s affidavit and the pattern
and practice evidence constitute substantially new evidence that is material in nature.
Defendant contends that the State previously acknowledged that this evidence was new and
therefore this argument is waived. Additionally, defendant contends that much of the new
evidence did not exist until after his initial petition was dismissed on September 30, 2009.
Defendant references the following evidence, among others, that has subsequently emerged:
(1) Burge was convicted of perjury in 2010 when the court found that Burge and his
subordinates used methods of torture “designed to inflict pain and instill fear while leaving
minimal marks” (United States v. Burge, 711 F.3d 803, 806 (7th Cir. 2013)); (2) former ASA
Johnson revealed that Detective Boudreau told suspects what to say before the court reporter
arrived and those individuals were later exonerated; (3) in 2012, 2014, and 2017, TIRC found
substantial evidence demonstrating that Detectives Kill and Boudreau engaged in a pattern of
practice of torture in cases involving Gerald Reed, George Anderson, Anthony Jakes, Arnold
Day, Demond Weston, and Clayborn Smith; and (4) in 2016, reparations were awarded to
people from the City of Chicago for the abuse that was inflicted upon them.
¶ 80 Defendant’s reply brief contends that the new evidence is not immaterial because the
passage of time did not cure the abuse and did not render the confession voluntary.
Additionally, Detectives Kill and Boudreau’s presence were not needed at the time defendant
signed the confession in order to validate his claims of torture. Defendant maintains that instead
of addressing the factors contained in Patterson, which defendant believes he satisfies, the
State focuses on how the evidence would not have changed the result of the suppression
hearing because of other aspects that rendered the confession voluntary. Defendant argues this
is improper because the custodial interrogation was not brief and lasted for 39 hours; the 4:30
p.m. denial did not demonstrate that his will was overborne because by that time he had already
told ASA Marback about the abuse and realized that no one was going to help; the exculpatory
statement was consistent with “minimization,” which is a manipulative interrogation technique
whereby officer’s elicit confessions by downplaying the moral consequences while the legal
consequences remain the same; the absence of physical evidence does not indicate a lack of
abuse and rejecting defendants mother’s testimony that he was abused requires a credibility
determination, which is impermissible at this stage; and even if ASA Marback followed
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procedure when writing the confession, he still failed to act when defendant informed him he
was abused and was not present when defendant was interrogated.
¶ 81 Lastly, defendant insists that he has consistently maintained since the suppression hearing
that both Detectives Kill and Boudreau beat him before he confessed. Additionally, any
confusion as to the timing of the abuse and his confession should be understandable
considering the fact that defendant was a 15-year-old who was experiencing a traumatic event,
citing People v. Gibson, 2018 IL App (1st) 162177, ¶ 125, as support.
¶ 82 1. Res Judicata
¶ 83 First, we will consider whether defendant’s claim of abuse and or torture is barred by
res judicata based on his initial postconviction petition. Res judicata provides that “any issues
which could have been raised on direct appeal, but were not, are procedurally defaulted and
any issues which have previously been decided by a reviewing court are barred.” People v.
Whitfield, 217 Ill. 2d 177, 183 (2005). Defendant’s initial postconviction petition alleged
ineffective assistance of counsel. However, in this instant appeal, defendant presents newly
discovered evidence to support his allegations of torture. These issues are clearly not the same,
and thus, the newly discovered evidence could not have been previously decided by the
postconviction court. See id. Additionally, the multitude of evidence that demonstrates a
pattern and practice was not created at the time defendant raised his ineffective assistance claim
in his initial postconviction petition. Defendant could not have raised this particular issue
sooner; defendant has not waived this issue. See id. Therefore, defendant’s amended successive
postconviction petition cannot be barred by res judicata based on his previous postconviction
petition.
¶ 84 Next, we must determine if defendant’s claim is barred by res judicata based on his direct
appeal. The doctrine of res judicata is relaxed “where the facts relating to the issue do not
appear on the face of the original appellate record.” (Internal quotation marks omitted.) Tyler,
2015 IL App (1st) 123470, ¶ 158. “The standards addressing whether new evidence is
sufficiently substantial so as to relax res judicata are the same standards used to determine
whether newly discovered evidence should result in a new trial.” (Internal quotation marks
omitted.) Id.
“[F]or new evidence to be sufficient to relax res judicata and warrant an evidentiary
hearing, ‘the evidence (1) must be of such conclusive character that it will probably
change the result on retrial; (2) must be material to the issue, not merely cumulative;
and (3) must have been discovered since trial and be of such character that the
defendant in the exercise of due diligence could not have discovered it earlier.’ ”
(Internal quotation marks omitted.) Id. (quoting People v. Mitchell,
2012 IL App (1st)
100907, ¶ 61).
¶ 85 Here, defendant contends that newly discovered evidence of systematic torture supports
his allegations of torture and challenges the voluntariness of his confession. On direct appeal,
defendant alleged that the trial court erred in denying his motion to suppress because (1) during
interrogation, defendant was subjected to a coercive atmosphere when his status changed from
witness to suspect and he was denied access to his mother and family; (2) the youth officer
failed to secure his rights; and (3) there was medical evidence that he was susceptible to the
influence of others. Although defendant has not made the exact same argument, he has
previously challenged the voluntariness of his confession based on coercion and therefore is
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subject to being barred by res judicata. Thus, we must examine whether the evidence is
substantially new so as to relax this bar.
¶ 86 a. Newly Discovered Evidence of Torture
¶ 87 The question we are faced with is whether the evidence defendant provided in his
successive petition was “discovered since trial” and whether it is “of such character that the
defendant in the exercise of due diligence could not have discovered it earlier.” (Internal
quotation marks omitted.) Id. ¶ 162. Here, although there were many complaints of alleged
abuse in the 1990s, it was not until the 2000s when these allegations began to be not only
recorded but also investigated, compiled, and substantiated.
¶ 88 As such, defendant attached evidence of allegations, 5 that were later found to be credible,
from others who alleged that they too were abused by Detectives Kill and Boudreau. On
September 26, 1991, six teenagers (ranging from the ages of 13 to 19) named Imari Clemons,
Diyez Owens, Welton, Wiggins, Jesse Clemons, and Damoni Clemons (collectively, “Clemons
case”) were interrogated by various officers including Detectives Kill and Boudreau.
Cassandra Clemons, mother of the Clemons brothers, accompanied her sons to the Area 3
police station. While she waited, she heard their screams, but she was denied access to them.
Those six teenagers alleged that they were handcuffed to the wall, smacked, beat with fists,
punched in the neck, beat with flashlights, shocked with electricity, had their hair pulled, had
their fingers pulled back, and were not allowed to see anyone. Both Detectives Kill and
Boudreau told OPS they observed no incidents of abuse to anyone. OPS reported that Detective
Boudreau failed to follow proper procedure when he questioned the minors without a parent
present. However, OPS concluded its findings on November 10, 1994, with no finding of abuse
because they could not identify the specific abusers. Nevertheless, a Freedom of Information
Act (FOIA) (5 ILCS 140/1 et seq. (West 2014)) response from the City of Chicago disclosed
that some of those teenagers received reparations from the City of Chicago in January 2016.
¶ 89 On August 21, 1991, 15-year-old George Anderson was arrested and later taken to Area 3.
He was interrogated by Detectives Kill, Boudreau, and Halloran. While being questioned, he
was subjected to beatings which including being kicked in the wrist that was handcuffed to the
wall. He was threatened and subjected to more attacks by different officers until he signed the
confession, which he ultimately did. TIRC investigated his claims and in 2017 and determined
that there was sufficient credible evidence in his case to warrant further review.
¶ 90 On February 4, 1992, Arnold Day was 18 years old and claimed he was arrested at a
friend’s house. During the arrest, the officers handcuffed him, stomped him in the back of the
head, and took him to Area 3 where he was interrogated by Detective Boudreau, Officer Judd
Evans, and Detective William Foley. They typically questioned him separately, however, while
Detective Boudreau was questioning Day, Detective Foley entered the room and grabbed him
by the neck, choked him, and told him he was going to throw him out of the window if he did
not confess. Detective Boudreau did nothing. His claims were investigated by TIRC, which
determined in 2014 that there was sufficient credible evidence in his case to warrant further
review.
Defendant attached an abundance of allegations, we will identify those that are most analogous to
5
defendant’s allegations.
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¶ 91 On September 15, 1991, police received an anonymous call implicating a tall, skinny, black
male as being a shooter in a murder. Soon after, police received another anonymous call
indicating Jakes, who was 15 years old at the time, knew something about the murder.
Sometime thereafter, Jakes was arrested and taken to Area 3 where he was interrogated by both
Detectives Kill and Boudreau. Jakes was slapped, threatened to be thrown out the window,
burned with cigarettes, and told that they would have his family killed by the Latin Kings if he
did not confess. Detectives Kill and Boudreau supplied Jakes with information about the
murder to give to the ASA, who Jakes eventually confessed to. When Jakes made this
confession, he had been at Area 3 for more than 16 hours. Jakes was subsequently convicted.
However, in 2014, TIRC found his allegations of coercion credible. Consequently, Jakes’s
conviction was later vacated, and he received a certificate of innocence.
¶ 92 Williams was arrested when he was 19 years old and taken into Area 3 for questioning
about a murder that occurred on October 14, 1990. Williams was interrogated and alleged that
he was beaten by Detectives Boudreau and Kill and other officers for hours. Williams alleged
that he was beaten with a blackjack and a pistol was put in his mouth while the trigger was
pulled. Ultimately, defendant was cleared of all charges when it was determined that he was in
jail at the time of the murder. Williams’s allegations were detailed in a civil suit 6 filed by
Harold Hill, who also alleged he was abused by Detective Boudreau and others. Hill was
subsequently convicted of the same crime Williams was charged with but was ultimately
exonerated with DNA evidence in 2005.
¶ 93 Now, we will examine whether the aforementioned cases are newly discovered. The abuse
resulting in the Clemons case occurred in September 1991, only a month after defendant’s
encounter with Detectives Kill and Boudreau causing their respective criminal proceedings to
occur almost simultaneously. OPS conducted an investigation and concluded its report on
November 10, 1994, regarding the Clemons case. OPS reportedly declined to find the
allegations credible because they were unable to ascertain who actually committed the abuse.
Nevertheless, in 2006, the defendant was able to ascertain records via FOIA that confirm that
the City of Chicago paid the Clemons case victims reparations for the abuse they experienced.
These records gave credibility to the claims of the Clemons case whereas the OPS report did
not.
¶ 94 The aforementioned FOIA documents were not available until over a decade after
defendant’s trial. Likewise, even though the Williams abuse occurred prior to defendant’s
abuse, the evidence supporting the Williams allegations did not come into existence until after
defendant’s trial. Similarly, the 2006 report by the special state’s attorney, which catalogues
the investigation of allegations of abuse, was completed over a decade after defendant’s trial
occurred. TIRC investigated and found allegations in the cases of Anderson, Day, and Jakes,
spanning from 2014 to 2017, to be credible; this occurred over two decades after defendant’s
trial.
¶ 95 In the case at bar, defendant has presented as newly discovered evidence, not the
complaints themselves, but the investigations and reports that gave the complaints credibility.
It is clear that these reports were not discoverable at the time of defendant’s trial because they
6
Defendant attached Williams’s civil suit, Hill v. City of Chicago, No. 06-C-06772, 2009 WL
174994 (N.D. Ill. Jan. 26, 2009), against the City of Chicago and the various detectives involved,
including Detective Boudreau, to his petition.
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did not actually exist until decades later. Given the sensitive nature of police investigations and
the sheer scale of the criminal justice system, it is unreasonable to expect defense counsel to
discover whom these individual detectives were abusing unless counsel interviewed every
suspect who was detained by them. Tyler, 2015 IL App (1st) 123470, ¶ 162 (“ ‘beyond
interviewing anyone who had ever been a prisoner at Area 2, we can conceive of no manner in
which [defense counsel] reasonably could have obtained this information’ ” (quoting
Patterson, 192 Ill. 2d at 109)); People v. Reyes,
369 Ill. App. 3d 1, 20 (2006) (“the various
allegations against [the detective] could have been discovered prior to trial only if defense
counsel had interviewed every person ever detained by [the detective]”). In fact, some of the
complaints are of such a character that they mirror the claims raised by defendant here. Tyler,
2015 IL App (1st) 123470, ¶ 162. As a result, we consider defendant’s evidence of
investigations, reports, and FOIA records to be newly discovered for the purposes of relaxing
the doctrine of res judicata.
¶ 96 b. Conclusive
¶ 97 Evidence is conclusive if it would probably lead to a different result when considered
alongside the trial evidence; that is, it places the trial evidence in a different light and undercuts
the court’s confidence in the factual correctness of the guilty verdict. Coleman, 2013 IL
113307, ¶ 97. One similar incident of misconduct by the same detective can demonstrate
“intent, plan, motive, and could impeach the officers’ credibility” Tyler, 2015 IL App (1st)
123470, ¶ 186 (citing People v. Banks,
192 Ill. App. 3d 986, 994 (1989)). Defendant’s amended
successive postconviction petition undoubtedly presents evidence of a systematic pattern of
similar abuse by Detectives Kill and Boudreau, some of which are detailed above. This alleged
pattern of abuse could be used to impeach Detective Kill’s credibility and bolster defendant’s
credibility. The proposed evidence places such a weight on the scales of justice that it
significantly undercuts this court’s confidence in the guilty verdict. Thus, we find that this
evidence is so conclusive in nature, that if these reports were allowed at defendant’s motion to
suppress, it would have likely changed the outcome on retrial.
¶ 98 c. Material and Noncumulative
¶ 99 Detective Kill’s credibility was specifically at issue when he implied that he did not abuse
defendant by stating that he was not involved in the case. The specific tactics that were used
and later substantiated in the other cases (such as hitting teenagers with flashlights, beating
them while they are handcuffed, pulling their hair, and threatening to have them or their
families assaulted and/or killed) would cause a reasonable trier of fact to question the
truthfulness of Detective Kill’s statement. This evidence is duly material because it references
abuse similar to that which defendant in this case complained of regarding Detectives Kill and
Boudreau. The finding of coercion by physical and mental abuse would call into question the
validity of the confession, which was the linchpin of the case against defendant. Hence, we
believe that when considered along with the evidence introduced at trial, evidence of
substantiated abuse similar to what we have here, and by some of the same officers, is so
material that it would probably have led to a different result. Coleman, 2013 IL 113307, ¶ 96.
¶ 100 In addition to being material, the evidence must be noncumulative. Noncumulative
evidence is evidence that adds to what the jury has already heard. Id. Here, the trier of fact
heard limited testimony from defendant and his mother regarding abuse that could not be seen
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in pictures. The court did not hear evidence consisting of the OPS, TIRQ, or FOIA reports or
numerous civil cases that substantiated other, yet similar, allegations of abuse against
Detectives Kill and Boudreau. It is indisputable that this newly discovered evidence would do
more than just add to or bolster the evidence already presented at trial: this evidence could
change the defense’s case entirely. Id.
¶ 101 d. Newly Discovered Evidence of Riley’s Affidavit
¶ 102 Defendant contends that Riley’s affidavit is newly discovered with respect to Detective
Kill’s statements regarding the federal investigation that decedent was involved in. The State
counters that the affidavit of Riley is not newly discovered because it adds nothing new and
reiterates that Detective Kill participated in the investigation and extracted a confession.
Defendant however rebuts that he never used Riley to support his contention that Detectives
Kill and Boudreau were involved in the federal investigation.
¶ 103 We find the affidavit of Riley to be newly discovered because although the witness was
known at trial, the information was not. Tyler, 2015 IL App (1st) 123470, ¶ 162. Although
defense counsel talked to Riley about how defendant was abused, Riley never discussed how
Detective Kill disclosed the existence of another suspect during Riley’s interrogation.
Accordingly, Riley’s role at the trial was limited to his observation of Detective Kill hitting
defendant with a flashlight but did not include the contents of the interrogation during which
Detective Kill told Riley about the federal investigation that decedent was involved in and how
there were other suspects. Further, we decline to find that defense counsel failed to discover
this additional evidence for lack of due diligence. Id. Defense counsel should not be tasked
with asking every perceivable question to elicit information from a witness in order to uncover
potential wrongdoing of the State or its officers.
¶ 104 Riley’s affidavit is material because it corroborates the evidence that Detective Kill, and
the State by extension, was informed of alternative suspect. Id. It is not cumulative in nature
because there was no other testimony or evidence admitted regarding the federal investigation
or other suspects. Riley’s affidavit is conclusive in that it directly contradicts Detective Kills
testimony that he was not involved in the decedents case and that his name was listed on the
police report in error. Riley’s testimony could have demonstrated that Detective Kill was
significantly more involved in decedents investigation than he admitted and is of a conclusive
nature that could have changed the result of the motion to suppress if known. Id.
¶ 105 For the aforementioned reasons, we find that defendant’s newly discovered evidence is
sufficient to relax the res judicata bar.
¶ 106 2. Substantial Showing of a Constitutional Violation
¶ 107 Having determined that defendant’s claims are not barred by res judicata, we next examine
whether he made a substantial showing of a constitutional violation. In summary, defendant
alleges that the cumulative effect of all the matters alleged in the petition deprived him of his
fundamental due process right to a fair trial. Specifically, defendant and the amici contend that
the trial court erred in determining that any abuse inflicted on defendant was attenuated by the
passage of time. Defendant contends that his confession was inadmissible despite the passage
of time because he was still scared and just that he just wanted to go home. Thus, defendant
claims that even if the officers were not present when his confession was made, the evidence
must be suppressed citing People v. Thomlison, 400 Ill. 555, 569 (1948), as support. Lastly,
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defendant insists that the finding of attenuation requires factual and credibility determinations
that are not permitted at the second stage of a postconviction relief petition.
¶ 108 The State points to factors which they contend are indicative of voluntariness, such as ASA
Marback followed procedure in obtaining defendants confession; defendant stated that he was
treated okay, defendant was given the opportunity to use the bathroom and smoke cigarettes,
defendant denied any involvement in the murders at 4 p.m., defendant confessed after he was
identified in a lineup; defendant had a calm demeanor, defendant had no visible injuries, and
defendant added exculpatory language his written statement indicating that he committed the
crime in self-defense.
¶ 109 The amici and defendant assert that the standard the trial court applied when granting the
second stage dismissal was regressive and placed an incredible burden on defendants. We
agree. We have consistently held that the only thing that is required for a court to reconsider
the voluntariness of a confession is a “pervasive pattern of criminal conduct by police officers.”
(Internal quotation marks omitted.) Tyler, 2015 IL App (1st) 123470, ¶ 189. Defendant has
included in his petition incidents that are relevant and related to the issues in his case not only
because the abuse was similar (hitting teenagers with flashlights, beating them while they are
handcuffed, pulling their hair, and/or threatening to have them or their families assaulted), but
they were also perpetrated by some of the same officers from the same police stations and were
incredibly close in time to one another. These similarities are more than mere coincidence and
establish a pattern of systemic abuse by Detectives Kill and Boudreau who interrogated
defendant and evidently worked on his case. Although Detective Kill denied involvement in
decedent’s murder at the motion to suppress, he nevertheless admitted to interrogating
defendant about the Phillips investigation and both Detective Kill’s and Detective Boudreau’s
names were on the police reports as working this case.
¶ 110 We disagree with the State regarding several of the factors that they allege were
demonstrative of a voluntary confession. The State refers to the fact that ASA Marback
followed procedure when he took the confession. Simply stating that he followed procedure
does not identify what the procedure entailed such that it does not permit the court to assess
whether the procedure was a proper indicator of voluntariness. The State argues that defendant
stated that he was treated “fine” to ASA Marback and points to the fact that defendant was
given the opportunity to use the bathroom and smoke cigarettes as evidence of voluntariness.
Allowing the defendant to use the bathroom, when he was at the station for 39 hours, should
be considered human decency, not evidence of voluntariness. Further, defendant testified that
he signed the confession after the lineup because he was tired and just wanted to go home. The
remaining factors, except for lack of visible injury, which will be discussed below, seem to be
consistent with his goal of attempting to get out of the police station without incurring more
abuse.
¶ 111 The State persists that the absence of visible injury is an indicator of voluntariness.
Defendant has been adamant that he was hit in the abdomen, his hair was pulled, and he was
threatened with rape and physical violence. Defendant also provided evidence of abuse to
others that included beatings to the groin, abdomen, and legs, among other things. These kinds
of attacks would not be readily visible in a photograph: perhaps intentionally so. Additionally,
the strikes to the face that were reported by defendant might not have been visible depending
on how long after their occurrence they were viewed. Hence, we are not persuaded that the
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absence of visible injury in this case is a strong indicator that defendant’s confession was
voluntary.
¶ 112 We also disagree with the State and trial court that defendant’s confession was voluntary
because the police officers were not present when he made his confession. The effects of abuse
committed by law enforcement does not walk away with the offending officers, it very well
may linger. See Thomlison, 400 Ill. at 569. Further, defendant included evidence of such
lingering effects in his petition when he presented evidence of Dr. Heinrich’s statements that
defendant was left scared and willing to do anything to get out of that encounter. However, the
trial court found that the effects of torture had been attenuated at the time of the confession.
We agree with defendant that essentially the trial court discounted Dr. Heinrich’s assessment
of defendant’s state of mind, amounting to a credibility determination by the court. However,
at the second stage, the trial court is limited to determining whether the petition and any
accompanying documentation makes a “substantial showing of a constitutional violation.”
(Internal quotation marks omitted.) Domagala, 2013 IL 113688, ¶ 33. Thus, the weighing of
Dr. Heinrich’s testimony was impermissible at that stage. The trial court may make such
credibility determinations only at the third stage. Childress, 191 Ill. 2d at 174.
¶ 113 Accordingly, we find that defendant’s newly discovered evidence is likely to change the
result of the motion to suppress and possibly the outcome of the underlying trial. See Tyler,
2015 IL App (1st) 123470, ¶ 164.
¶ 114 C. Brady Violation
¶ 115 Defendant contends that newly discovered evidence shows that the State violated his due
process rights under Brady, 373 U.S. at 87, by concealing (1) the existence of a federal criminal
investigation into the decedent and Battiste, (2) that decedent was scheduled to testify before
a grand jury about Battiste’s criminal activity, (3) that decedent did not testify before the grand
jury at the scheduled time and was murdered three days later, (4) that Battiste and his men
were suspected of committing the murder, and (5) that several men who worked for Battiste fit
the description of the murder suspect. By concealing these matters, defendant contends that the
State failed its affirmative duty to disclose exculpatory evidence and the trial court erred in
shifting the burden to defendant when it found the evidence to be immaterial.
¶ 116 Defendant contends that the concealed evidence was favorable to defendant because it was
exculpatory and impeaching. Defendant advises us that the concealed evidence demonstrated
that there was another suspect, namely Battiste, who had a clear motive to want the decedent
murdered. That motive was consistent with the timeline of the shooting, it was known
throughout the community, and the description of the shooter matched descriptions of people
who worked for Battiste. Defendant contends that there was no physical evidence tying
defendant to the crime, eyewitness Tyler did not see him shoot anyone, eyewitness Dyson
admitted her original identification was not reliable, and defendant’s alleged motive of trying
to strike first in an attempt of self-defense while conveniently receiving a gun the day before
he coincidentally ran into decedent was not a strong one.
¶ 117 Defendant contends that the concealed evidence could have impeached Detective Kill’s
testimony at the suppression hearing regarding not knowing much about the case despite being
listed as an arresting officer along with Detective Boudreau. However, defendant asserts that
correspondence from the IRS noted that Detective Boudreau was in direct contact with federal
agents who told the detectives that decedent was murdered by Battiste because of his
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involvement in the pending federal matters. Defendant insists that this knowledge of an
alternative suspect by Detectives Kill and Boudreau is further evidenced and supported by the
conversation that took place between Riley and Detective Kill during interrogation regarding
other suspects and the federal investigation.
¶ 118 As a result of the State’s suppression of evidence, defendant contends that he only learned
of the evidence when postconviction counsel commenced discovery for the instant petition.
Prior to this, defendant did not know of the federal investigation or alternative suspects.
Defendant argues that this evidence was material and could have changed the entire case.
Defendant complains that the trial court erred in finding that the evidence was not material
since there is no way to tell if the decedent were going to testify; what mattered was that
Battiste feared he would. Lastly, defendant contends that undisclosed evidence can be the basis
of a Brady determination, as knowing this information could have allowed defendant to
investigate this matter when he was building his defense.
¶ 119 The amici characterizes the alleged Brady violation as both material and serious. The amici
contend that detectives collectively (1) were more deeply involved in decedent’s murder
investigation then they indicated, (2) misled the trial court about their role in that investigation
during defendants original suppression hearing, (3) knew firsthand that the federal government
had empaneled a grand jury to investigate Battiste and called decedent as a witness to that
grand jury, (4) knew that Battiste and decedent were a part of the same gang, in which Battiste
had seniority over decedent, and (5) had been told by a witness that Battiste had decedent killed
to avoid his cooperation with federal authorities. The amici contends that if this were
introduced at trial, it could have provided defendant with a well-raised and documented
defense by having an alternative suspect to point to.
¶ 120 The State contends that the newly discovered evidence demonstrating that there were other
suspects is arguably favorable but speculative. The State contends that defendant did not
present evidence that showed that Battiste had other gang members killed in a similar manner
and did not show that the two had any altercation or violent argument prior to the murder,
citing Wilson v. Firkus, 457 F. Supp. 2d 865 (N.D. Ill. 2006), and People v. Wilson,
149 Ill.
App. 3d 293 (1986), as support. Additionally, defendant failed to demonstrate that there were
any alternative suspects in the vicinity of the shooting when it occurred. The State contends
the federal investigation was immaterial because of the evidence presented at trial, which
included three witnesses providing direct testimony implicating defendant as the shooter.
¶ 121 Defendant’s reply brief contends that the standard that the State set forth was incorrect.
Defendant is not required to produce evidence of an alternative suspect or evidence of the exact
same type as in other cases; rather, defendant was required to show evidence that “is favorable
to the accused and material to guilt or punishment,” citing People v. Beaman, 229 Ill. 2d 56,
73-74 (2008), as support. We agree.
¶ 122 In order to demonstrate a Brady violation, a defendant must show that “(1) the undisclosed
evidence is favorable to [him] because it is either exculpatory or impeaching; (2) the evidence
was suppressed by the State either wilfully or inadvertently; and (3) [he] was prejudiced
because the evidence is material to guilt or punishment.” Id. We review the trial court’s
determination for manifest error. Id. at 73. This error must be “clearly evident, plain, and
indisputable.” (Internal quotation marks omitted.) Id. Such evidence must be provided to the
defense even if it was “known only to police investigators and not to the prosecutor.” (Internal
quotation marks omitted.) Strickler v. Greene, 527 U.S. 263, 280-82 (1999).
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¶ 123 In determining if the undisclosed evidence was favorable to defendant, we must consider
whether the undisclosed evidence would have assisted decedent in presenting Battiste as an
alternative suspect. Beaman, 229 Ill. 2d at 75. “An accused in a criminal case may offer
evidence tending to show that someone else committed the charged offense.” Id. “Evidence of
an alternative suspect should be excluded as irrelevant, however, if it is too remote or
speculative.” Id. “Generally, evidence is relevant if it tends to make the existence of any fact
in consequence more or less probable than it would be without the evidence.” Id. at 75-76.
¶ 124 We find that defendant presented sufficient evidence of an alternate suspect, namely
Battiste, that had a strong motive to kill decedent. The evidence from the IRS documented not
only the investigation but that Battiste was rumored to have had decedent killed and had a
history of retaliating against those whom he believed were cooperating with law enforcement.
This makes the theory that Battiste could have been an alternative suspect more probable,
thereby making the evidence relevant. The evidence cannot be considered remote when the
decedent was killed three days after he was scheduled to testify before the grand jury and when
Battiste has reportedly ordered the murder of others that he feared might cooperate with federal
authorities. Additionally, the new evidence demonstrated that the detectives were aware of the
alternate suspect’s motive before defendant’s conviction because Detective Boudreau sat in on
an IRS interview related to the decedents federal case where he was informed that Battiste was
a suspect. Defendant’s newly discovered evidence demonstrates that Detective Kill was also
informed because he mentioned it to Riley. The evidence presented was favorable to defendant
because it showed an alternative suspect that he could have presented at trial. Id. at 73. Thus,
not having the opportunity to present such evidence proved prejudicial to defendant’s case.
¶ 125 The parties agree that the Battiste evidence was not disclosed. Defendant only became
aware of the federal investigation because of postconviction counsel’s document request. Even
though the State does not outright concede that it breached its duty, based on the admission
that the information was undisclosed, we need not determine whether the failure to disclose
was willful or not, because it makes no difference. People v. Carballido, 2015 IL App (2d)
140760, ¶ 75.
¶ 126 We must now determine whether the undisclosed evidence was material. Evidence is
material if “there is a reasonable probability that the result would have been different had it
been disclosed.” Beaman, 229 Ill. 2d at 78. An accused must show that “ ‘the favorable
evidence could reasonably be taken to put the whole case in such a different light as to
undermine confidence in the verdict.’ ” Id. The evidence presented at trial consisted of a signed
confession indicating that defendant murdered decedent before decedent had a chance to kill
him and two tentative eyewitnesses. There was no physical evidence linking defendant to the
crime. If the evidence of the alternative suspect were presented, it would have shown that
Battiste had the motive, propensity, and manpower to murder the decedent.
¶ 127 We find it reasonable to believe, that if the newly discovered information were known to
defendant at trial, the outcome could have been different. Id. It is not uncommon for defendants
to be convicted with far less evidence, however an alternative suspect with motive to kill a
federal witness days after he was supposed to testify against him cannot be ignored. We find
that the introduction of this evidence would have placed the case in a different light, especially
if defendant were given the opportunity to question and investigate those involved. Based on
these factors, we hold that the State’s suppression violated defendant’s constitutional right to
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due process under Brady and the trial court’s dismissal of defendant’s Brady claim was
manifest error.
¶ 128 Lastly, defendant requests that this case be reassigned to a different postconviction judge
based on the incorrect standard of review he applied as well as his premature credibility
determinations. Under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), the appellate
court has the power to make any order that ought to have been made and make other further
orders that the case may require. Eychaner v. Gross, 202 Ill. 2d 228, 279 (2002). Such powers
include the authority to reassign a matter to a new judge on remand. Id. A trial judge is
presumed to be impartial, and the burden of overcoming this presumption rests on the party
making the charge of prejudice. Id. at 280. “Allegedly erroneous findings and rulings by the
trial court are insufficient reasons to believe that the court has a personal bias for or against a
litigant.” Id. Here, defendant refers to the trial courts improper application of the standard of
review and credibility determinations as a presumptive unwillingness to consider the evidence
presented by defendant. Defendant does not allege that the judge made any statements or acted
otherwise in any way that would imply personal bias toward him. Thus, we find that the
defendant has not met his burden because there is no suggestion of unfairness or that
reassignment is necessary to best serve the interest of justice. People v. McAfee, 332 Ill. App.
3d 1091, 1097 (2002); People v. Serrano,
2016 IL App (1st) 133493, ¶ 45.
¶ 129 III. CONCLUSION
¶ 130 For the aforementioned reasons, we find defendant presented sufficient newly discovered
evidence to warrant a third stage evidentiary hearing. First, defendant presented newly
discovered evidence that demonstrated that systematic abuse occurred at Area 3. Next,
defendant made a substantial showing that his due process rights were violated when the State
committed a Brady violation. We deny however, defendants request to assign a new judge on
remand.
¶ 131 Reversed and remanded.
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