2020 IL App (1st) 180322-U
SIXTH DIVISION JUNE 5, 2020
No. 1-18-0322
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 10553 (01) ) DION BANKS, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________
JUSTICE CUNNINGHAM delivered the judgment of the court. Justices Connors and Harris concurred in the judgment.
ORDER
¶1 Held: Dismissal of the defendant’s postconviction petition at the first stage reversed where petition stated the gist of a Brady violation.
¶2 Defendant-appellant Dion Smith, convicted of first-degree murder and aggravated
discharge of a firearm, appeals the first stage dismissal of his postconviction petition. On appeal,
the defendant argues that he stated the gist of a claim that the Chicago police department’s failure
to turn over its 340-page street file concerning him prior to trial amounted to a Brady violation.
For the reasons that follow, we reverse the judgment of the circuit court of Cook County and 1-18-0322
remand the matter for second stage proceedings and the appointment of counsel to represent the
defendant.
¶3 BACKGROUND
¶4 On March 24, 2001, the defendant shot and killed Rose Newburn outside of Ford City Mall
in front of her four- and five-year-old sons during the course of a carjacking. The defendant left
the scene in Newburn’s car with her children in the backseat. After driving for a short time, the
defendant stopped the car and told the boys to jump out of the window, but then allowed them to
leave through the door. The boys hid behind a stop sign as the defendant drove away, and then
returned to the mall where their mother was.
¶5 In addition to Newburn’s five-year-old son, another witness saw the shooting and identified
the defendant as the shooter. Other witnesses also saw the defendant driving Newburn’s car that
day. During an interview with an assistant state’s attorney two days after the shooting, the
defendant confessed to the carjacking and murder.
¶6 In 2006, a jury convicted the defendant of first-degree murder and aggravated discharge of
a firearm and also found him eligible for the death penalty. Following a hearing at which evidence
in aggravation and mitigation was presented, the jury found no mitigating factors that would
preclude the imposition of the death penalty. The defendant appealed his conviction and sentence
directly to the supreme court, which affirmed both in February 2010. His sentence was commuted
to life in prison in 2011.
¶7 On September 7, 2017, the defendant filed a postconviction petition in the circuit court of
Cook County. His petition alleged that he was contacted by attorney Candace Gorman, who
uncovered a street file bearing the defendant’s name during the course of her search for documents
in her own client’s case. According to the defendant, that street file was never disclosed to his
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trial counsel. Attached to the defendant’s petition was the letter attorney Gorman sent to the
defendant informing him of the existence of the street file as well as Gorman’s own affidavit.
Gorman averred that during the course of her representation of Nathson Fields in an unrelated civil
rights claim, she discovered a homicide investigative file on Fields which contained “substantial
exculpatory material” that had never been tendered to Fields or his prior counsel. She recovered
the file in a cabinet in the basement of the police station at 51st Street and Wentworth Avenue in
Chicago. That basement had over 20 other cabinets all containing homicide investigation files.
Among the 466 files she recovered from that location was the file of the defendant in the instant
case, containing 320 pages of “documents and photos.” Gorman wrote to the defendant and
informed him of the existence of the street file. She could not share the file directly with the
defendant because of a court order, so she asked the defendant for the contact information for his
current or previous attorney with whom she could share the file.
¶8 The defendant put Gorman in touch with Charles Schiedel, who was the deputy defender
at the office of the State Appellate Defender when that office represented the defendant in his
appeal to the Illinois supreme court. Schiedel also submitted an affidavit in support of the
defendant’s postconviction petition. In that affidavit, Schiedel averred that he was contacted by
Gorman and signed the required non-disclosure forms in order to review the material in the
defendant’s street file. Scheidel also consulted Allen Andrews, who had been assigned to represent
the defendant in his appeal before the Illinois supreme court. Based on that consultation and his
review of the file provided by attorney Gorman, Schiedel believed that the material in the street
file was not included in the appellate record sent to the Office of the State Appellate Defender.
Further, Schiedel believed that the material in the file “could have had an impact on the issues of
[the defendant’s] guilt or innocence and/or his sentence.”
-3- 1-18-0322
¶9 Allen Andrews averred that he read the record on appeal while preparing the defendant’s
appeal to the Illinois supreme court and noted that the only evidence elicited at trial regarding the
cause of Newburn’s death was that after she was shot, “she was observed at the scene to be in
shock, and that she died from a loss of blood caused by a gunshot wound.”
¶ 10 On November 17, 2017, the circuit court dismissed the defendant’s postconviction petition,
finding that the defendant’s claim that the State withheld exculpatory material in violation of Brady
was “merely speculative and conclusory.” The court chastised the defendant for failing to support
his claims with “factual details” or “specific information.” The defendant appealed.
¶ 11 ANALYSIS
¶ 12 We note that we have jurisdiction to review this matter, as we allowed the defendant’s late
notice of appeal. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R. 303 (eff. July 1, 2017).
¶ 13 The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a
penitentiary to challenge his conviction or sentence for violations of his federal or state
constitutional rights. 725 ILCS 5/122-1 (West 2016); see also People v. Whitfield, 217 Ill. 2d 177,
183 (2005). The Act establishes a three-stage process for adjudicating a postconviction petition.
725 ILCS 5/122-1. During the first stage, at issue here, the circuit court must independently review
the petition, taking the allegations as true, in order to determine whether the petition is frivolous
or patently without merit. People v. Tate, 2012 IL 112214, ¶ 9; 725 ILCS 5/122-2.1(a)(2) (West
2016)).
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2020 IL App (1st) 180322-U
SIXTH DIVISION JUNE 5, 2020
No. 1-18-0322
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). _____________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT _____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 10553 (01) ) DION BANKS, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________
JUSTICE CUNNINGHAM delivered the judgment of the court. Justices Connors and Harris concurred in the judgment.
ORDER
¶1 Held: Dismissal of the defendant’s postconviction petition at the first stage reversed where petition stated the gist of a Brady violation.
¶2 Defendant-appellant Dion Smith, convicted of first-degree murder and aggravated
discharge of a firearm, appeals the first stage dismissal of his postconviction petition. On appeal,
the defendant argues that he stated the gist of a claim that the Chicago police department’s failure
to turn over its 340-page street file concerning him prior to trial amounted to a Brady violation.
For the reasons that follow, we reverse the judgment of the circuit court of Cook County and 1-18-0322
remand the matter for second stage proceedings and the appointment of counsel to represent the
defendant.
¶3 BACKGROUND
¶4 On March 24, 2001, the defendant shot and killed Rose Newburn outside of Ford City Mall
in front of her four- and five-year-old sons during the course of a carjacking. The defendant left
the scene in Newburn’s car with her children in the backseat. After driving for a short time, the
defendant stopped the car and told the boys to jump out of the window, but then allowed them to
leave through the door. The boys hid behind a stop sign as the defendant drove away, and then
returned to the mall where their mother was.
¶5 In addition to Newburn’s five-year-old son, another witness saw the shooting and identified
the defendant as the shooter. Other witnesses also saw the defendant driving Newburn’s car that
day. During an interview with an assistant state’s attorney two days after the shooting, the
defendant confessed to the carjacking and murder.
¶6 In 2006, a jury convicted the defendant of first-degree murder and aggravated discharge of
a firearm and also found him eligible for the death penalty. Following a hearing at which evidence
in aggravation and mitigation was presented, the jury found no mitigating factors that would
preclude the imposition of the death penalty. The defendant appealed his conviction and sentence
directly to the supreme court, which affirmed both in February 2010. His sentence was commuted
to life in prison in 2011.
¶7 On September 7, 2017, the defendant filed a postconviction petition in the circuit court of
Cook County. His petition alleged that he was contacted by attorney Candace Gorman, who
uncovered a street file bearing the defendant’s name during the course of her search for documents
in her own client’s case. According to the defendant, that street file was never disclosed to his
-2- 1-18-0322
trial counsel. Attached to the defendant’s petition was the letter attorney Gorman sent to the
defendant informing him of the existence of the street file as well as Gorman’s own affidavit.
Gorman averred that during the course of her representation of Nathson Fields in an unrelated civil
rights claim, she discovered a homicide investigative file on Fields which contained “substantial
exculpatory material” that had never been tendered to Fields or his prior counsel. She recovered
the file in a cabinet in the basement of the police station at 51st Street and Wentworth Avenue in
Chicago. That basement had over 20 other cabinets all containing homicide investigation files.
Among the 466 files she recovered from that location was the file of the defendant in the instant
case, containing 320 pages of “documents and photos.” Gorman wrote to the defendant and
informed him of the existence of the street file. She could not share the file directly with the
defendant because of a court order, so she asked the defendant for the contact information for his
current or previous attorney with whom she could share the file.
¶8 The defendant put Gorman in touch with Charles Schiedel, who was the deputy defender
at the office of the State Appellate Defender when that office represented the defendant in his
appeal to the Illinois supreme court. Schiedel also submitted an affidavit in support of the
defendant’s postconviction petition. In that affidavit, Schiedel averred that he was contacted by
Gorman and signed the required non-disclosure forms in order to review the material in the
defendant’s street file. Scheidel also consulted Allen Andrews, who had been assigned to represent
the defendant in his appeal before the Illinois supreme court. Based on that consultation and his
review of the file provided by attorney Gorman, Schiedel believed that the material in the street
file was not included in the appellate record sent to the Office of the State Appellate Defender.
Further, Schiedel believed that the material in the file “could have had an impact on the issues of
[the defendant’s] guilt or innocence and/or his sentence.”
-3- 1-18-0322
¶9 Allen Andrews averred that he read the record on appeal while preparing the defendant’s
appeal to the Illinois supreme court and noted that the only evidence elicited at trial regarding the
cause of Newburn’s death was that after she was shot, “she was observed at the scene to be in
shock, and that she died from a loss of blood caused by a gunshot wound.”
¶ 10 On November 17, 2017, the circuit court dismissed the defendant’s postconviction petition,
finding that the defendant’s claim that the State withheld exculpatory material in violation of Brady
was “merely speculative and conclusory.” The court chastised the defendant for failing to support
his claims with “factual details” or “specific information.” The defendant appealed.
¶ 11 ANALYSIS
¶ 12 We note that we have jurisdiction to review this matter, as we allowed the defendant’s late
notice of appeal. Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R. 303 (eff. July 1, 2017).
¶ 13 The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a
penitentiary to challenge his conviction or sentence for violations of his federal or state
constitutional rights. 725 ILCS 5/122-1 (West 2016); see also People v. Whitfield, 217 Ill. 2d 177,
183 (2005). The Act establishes a three-stage process for adjudicating a postconviction petition.
725 ILCS 5/122-1. During the first stage, at issue here, the circuit court must independently review
the petition, taking the allegations as true, in order to determine whether the petition is frivolous
or patently without merit. People v. Tate, 2012 IL 112214, ¶ 9; 725 ILCS 5/122-2.1(a)(2) (West
2016)). Because most postconviction petitions are drafted by pro se defendants, the threshold for
a petition to survive the first stage is low. People v. Allen, 2015 IL 113135, ¶ 24. While a
defendant must provide some factual support for his claims to show that they are capable of
corroboration, those facts need only state the gist of constitutional claim. Id.
-4- 1-18-0322
¶ 14 A circuit court should only dismiss a petition as frivolous or patently without merit if it has
“no arguable basis either in law or fact” and relies on “an indisputably meritless legal theory or a
fanciful factual allegation.” People v. Hodges, 234 Ill. 2d 1, 16, 17 (2009). Meritless legal theories
are those that are completely contradicted by the record, while a fanciful factual allegation is
“fantastic or delusional.” Id. at 17. We review a circuit court’s dismissal of a petition at the first
stage de novo. People v. White, 2014 IL App (1st) 130007, ¶ 8.
¶ 15 The parties in this case agree that the defendant’s petition purports to allege a violation of
Brady v. Maryland, 373 U.S. 83 (1963), requiring the State to disclose material evidence favorable
to the defendant. A successful Brady claim requires a defendant to show: (1) the withheld evidence
was either exculpatory or impeaching; (2) the prosecutor either willfully or inadvertently
suppressed the evidence; and (3) the evidence was material to guilt or punishment. People v.
Morales, 2019 IL App (1st) 160225, ¶ 20. Of course, at the first stage of postconviction
proceedings, the defendant need not prove a Brady violation, but only state the gist of a claim.
¶ 16 Here, the defendant did not attach the street file to his petition and therefore, could not
allege that the evidence was either exculpatory or impeaching or that the evidence was material.
Ordinarily, a postconviction petition must attach evidence in support of its claims in order to
establish that the petition’s allegations are capable of objective corroboration. Hodges, 234 Ill. 2d
at 10. But section 122-2 of the Act also permits a petitioner to explain, by way of affidavit, why
evidence supporting his allegations cannot be attached. 725 ILCS 5/122-2 (West 2016).
¶ 17 In this case, attorney Gorman’s affidavit provides that explanation. She averred that a court
order prevented her from sharing the street file with the defendant directly and she could only
disclose it to his attorney. The defendant took the additional step of securing an affidavit from his
appellate counsel—who did review the file—in which counsel averred that the evidence “could
-5- 1-18-0322
have had an impact on the issues of [defendant’s] guilt or innocence and/or his sentence.” While
counsel does not explicitly state that the street file contained material exculpatory or impeachment
evidence, we must construe the allegation liberally in favor of the defendant. See People v.
Morales, 2019 IL 160225, ¶ 19. And construed liberally, we conclude that it is at least arguable,
based on Schiedel’s affidavit, that the street file contained evidence which may have impacted the
defendant’s guilt, innocence, or sentence.
¶ 18 With respect to whether the State suppressed the evidence, the defendant submitted an
affidavit from appellate counsel indicating that he believed the street file was not part of the
appellate record. While not all material disclosed to trial counsel necessarily becomes part of the
record on appeal, there is other evidence that raises the inference that the evidence was withheld
from trial counsel. Specifically, Gorman’s affidavit indicates that her own client’s street file
contained exculpatory material that was not disclosed to his trial counsel. And Gorman’s review
of 60 of the 400 plus street files she uncovered revealed that 54—or 90%—of those files contained
material that was not in the defense file. Jason Meisner, Old police ‘street files’ raise question:
Did Chicago cops hide evidence?, Chicago Tribune (Feb. 13, 2016),
https://www.chicagotribune.com/news/ct-chicago-police-street-files-met-20160212-story.html.
Indeed, the State acknowledges that the Chicago police department has a long history of keeping
non-disclosed street files separate from investigative files that are tendered to defense counsel.
See, e.g., Palmer v. City of Chicago, 755 F.2d 560 (7th Cir. 1985); Jones v. City of Chicago, 856
F. 2d 985 (7th Cir. 1988). While these facts may not establish that the street file was not disclosed
to the defendant’s trial counsel in the instant case, it is certainly at least arguable that the file was
suppressed.
-6- 1-18-0322
¶ 19 Finally, we are not persuaded by the State’s argument that the allegation of suppression is
contradicted by the record. Specifically, the State points out that prior to trial, it certified that all
material required to be disclosed pursuant to Illinois Supreme Court Rule 412 was tendered to
defense counsel. But this self-serving certification in no way contradicts the defendant’s allegation
that the State willfully suppressed the street file for purposes of bringing the matter under the Brady
principle. Illinois Supreme Court Rule 416 required the State to proffer this certification, but it is
far from a fanciful factual allegation to suggest that notwithstanding the certification, the State
nevertheless withheld material evidence.
¶ 20 Given the impossibility, at this stage, of including the allegedly withheld evidence itself,
this pro se defendant has met his low burden of stating an arguable Brady claim. Accordingly, the
trial court erred in summarily dismissing his petition.
¶ 21 CONCLUSION
¶ 22 For the reasons stated, we reverse the circuit court of Cook County’s dismissal of the
defendant’s postconviction petition and remand the case for further proceedings consistent with
this opinion.
¶ 23 Reversed and remanded.
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