JUSTICE KARMEIER delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Thomas, Garman, Burke, and Theis concurred in the judgment and opinion.
This case involves a homicide which took place in July of 1983 when a man was shot to death in a Chicago tavern. A bartender, who did not see the actual shooting, did see this defendant and the victim, a frequent customer, talking just before the event. After the shooting, he saw the body on the floor and, outside, “saw the person running.” The defendant was arrested the next day and a preliminary hearing was held at which the bartender testified. The circuit court of Cook County found probable cause and set the case for further proceedings, but defendant failed to appear on the date set for his arraignment. A warrant was issued for his arrest, but it was accidentally purged from the system. Based on a 2006 tip from a man who said that he had seen his cousin’s killer, the defendant was located in Burbank in 2007 and arrested. Meanwhile, the bartender had been deported in 1984.
In a bench trial, the defendant was convicted of first degree murder and was sentenced to 20 years in prison. At his trial, there was testimony from the police detective who first responded to the scene and from two other individuals who saw comings and goings in the neighborhood outside the tavern. Each of these neighborhood bystanders had seen a man with a gun, and, in police station lineups, had identified that man as the defendant. However, there were no in-court identifications.
The prosecution asked for and received permission to, introduce at trial the 1983 preliminary hearing testimony of the bartender-witness who had been deported. After the conviction, this issue was raised in posttrial proceedings in which it was alleged that use of the preliminary hearing testimony of the now-unavailable bartender violated the constitutional right to confront. The posttrial motion was denied and defendant sought review in the appellate court. At that level, he obtained a reversal and a remand, with the appellate court finding that the defect was not harmless as a matter of evidentiary law. The State appealed.
In this decision, the supreme court affirmed the appellate court, but it did so on the basis that defendant had been denied his constitutional right to adequately cross-examine. For one thing, when the witness testified at the preliminary hearing, discovery in the form of inconsistent statements the witness made to police was not available to defense counsel for use in cross-examination. In addition, the record of the preliminary hearing did not show the constitutionally required adequate opportunity for cross-examination. The preliminary hearing commenced amidst an obviously crowded docket. The supreme court expressed concern about the atmosphere in which the cross-examination was conducted, in which the court made it clear to defense counsel that the court was not enthusiastic about proceeding immediately with the preliminary hearing. Cross-examination of the bartender was brief, and the court placed restrictions-overt and covert-on it, seeming to send a message to defense counsel to wrap it up. The supreme court said that “it is clear from the record that counsel would have done more with the witness *** if he had felt free to do so.” It could not be said that counsel was afforded the degree of cross-examination which is constitutionally required. Admitting the testimony was, therefore, error, and it was not harmless.
The appellate court’s reversal was affirmed.
JUSTICE THEIS delivered the judgment of the court, with opinion.
Chief Justice Kilbride and Justices Freeman, Garman, Karmeier, and Burke concurred in the judgment and opinion.
Justice Thomas took no part in the decision.
This appeal arises from an offense that is almost 30 years old. In 1982, a 33-year-old woman was sexually assaulted, beaten and burned in the attic of this defendant’s Chicago residence. Several other men were also implicated in the attack. Before his Cook County jury trial, Wrice’s motion to suppress his inculpatory statements was denied, and, after the jury was instructed on accountability, he was found guilty of multiple offenses in 1983. After his appeal to the appellate court, Wrice’s convictions for rape and deviate sexual assault remained intact, along with a combined 100-year sentence.
Wrice filed a pro se postconviction petition in 1991, complaining that Detective Peter Dignan and Sergeant John Byrne violated his constitutional rights because he was beaten while in custody at Area 2 Violent Crimes Headquarters in Chicago. The circuit court entered a summary dismissal, and the appellate court affirmed. In 2000, Wrice filed a successive pro se postconviction petition. He cited a report from the Chicago police department’s Office of Professional Standards (OPS) establishing that abuse of prisoners and coerced confessions at Area 2 was widespread and systematic. He argued that this new evidence increased the likelihood that his statements would have been suppressed, changing the outcome. The petition was dismissed, and the appellate court affirmed.
In 2006, there was released to the public the Report of Special State’s Attorney Edward J. Egan, who had been appointed in 2002 to investigate allegations of torture by police officers under the command of Jon Burge at Area 2. Wrice received the report in early 2007 and sought leave of court to file a second, successive, postconviction petition, which is the subject of this appeal. This type of pleading is now subject to special requirements. Leave of court to file a successive postconviction petition must be sought and granted, and the petitioner must establish both cause for not raising his issues sooner and, also, prejudice. The circuit court denied leave to file, but the appellate court found that “cause” had been established based on the timing of the reports. It also found that prejudice had been established, relying on the Illinois rule of People v. Wilson, 116 Ill. 2d 29 (1987), that the “use of a defendant’s coerced confession as substantive evidence of his guilt is never harmless error.” (The Wilson case had been the first Area 2 police brutality case to reach the Illinois Supreme Court.) The appellate court remanded for a third-stage, or evidentiary, hearing. The State appealed.
Before the supreme court, the State conceded that there was “cause,” but claimed that Wrice had not shown “prejudice,” arguing that the U.S. Supreme Court has held that admission of a coerced confession is subject to harmless-error analysis (Arizona v. Fulminante, 499 U.S. 279 (1991)). This is the principal issue presented for review.
In this decision, the Illinois Supreme Court explained that the Fulminante case did not involve physical coercion. There, the United States Supreme Court agreed with a state court ruling that a confession was not voluntary when it was obtained by a paid government informant to whom the accused in that case (who was in jail) confessed in hopes that his listener would protect him from other fellow inmates, of whom he was afraid. The Illinois Supreme Court said that the United States Supreme Court in Fulminante used the terms “coerced” and “involuntary” interchangeably, as a convenient shorthand. Fulminante did not involve torture, and the Illinois Supreme Court said that the constitutional rule should be recast to provide that “use of a defendant’s physically coerced confession as substantive evidence of guilt is never harmless.” The court also noted that Wrice was not precluded from claiming both that he never confessed at all and that his confession was coerced.
The Illinois Supreme Court said that, although Wrice has satisfied both the cause and prejudice tests for being granted leave to file his second successive postconviction petition, he still has to establish the allegations set forth in the petition itself. What the supreme court is doing here is merely allowing the defendant to proceed. He still has an evidentiary burden to bear in the postconviction proceeding. What the appellate court had done was modified to provide that, on remand, counsel should be appointed for Wrice and that second stage proceedings on the postconviction petition should take place.
