People v. Morrison

2022 IL App (5th) 210202-U

Opinion

2022 IL App (5th) 210202-U NOTICE NOTICE Decision filed 08/08/22. The This order was filed under text of this decision may be NO. 5-21-0202 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Massac County. ) v. ) No. 98-CF-105 ) JEFFERY MORRISON, ) Honorable ) William J. Thurston, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

PRESIDING JUSTICE BOIE delivered the judgment of the court. Justices Welch and Wharton concurred in the judgment.

ORDER

¶1 Held: Where the defendant did not satisfy the “cause” prong of the cause-and-prejudice test, the circuit court did not err in denying him leave to file a successive postconviction petition, and since any argument to the contrary would lack merit, the defendant’s appointed counsel on appeal is granted leave to withdraw, and the judgment of the circuit court is affirmed.

¶2 Defendant, Jeffery Morrison, appeals the circuit court’s order denying leave to file a

successive postconviction petition. The defendant’s appointed attorney on appeal, the Office of

the State Appellate Defender (OSAD), has concluded that this appeal lacks merit. Accordingly,

OSAD has filed a motion to withdraw as counsel for the defendant (see Pennsylvania v. Finley,

481 U.S. 551 (1987)) along with a brief in support of the motion. OSAD has provided the

defendant with a copy of its Finley motion and brief. Defendant has filed a response. Having read

OSAD’s Finley motion and brief and defendant’s response, and having examined the record on 1 appeal, we agree that this appeal lacks merit and there is no potential ground for appeal.

Accordingly, we grant OSAD leave to withdraw and affirm the judgment of the circuit court.

¶3 BACKGROUND

¶4 Following a jury trial, defendant was convicted of first degree murder (720 ILCS 5/9-

1(a)(1) (West 1998)) and other offenses in the death of Roxanne Colley. The primary witness

against defendant was his brother, Glen Morrison. Glen testified that he had lived with Colley and

her twin boys for about a month prior to the shooting.

¶5 On October 23, 1998, defendant was visiting. Glen was in the living room when he heard

an argument between defendant and Colley. Roxanne accused defendant of stealing a gun

belonging at a friend. Defendant threatened to shoot her. Colley said that defendant did not have

the nerve. Defendant pointed a gun at Colley and shot her in the back as she turned to leave.

¶6 Other witnesses at trial included Andrea McDonald, who was sitting in the front yard of

her uncle’s house when she heard what she thought was a door slamming and saw “Roxanne fly

out the door.” Colley was motionless at the bottom of her steps. Andrea began running toward

Colley’s house but was stopped by Robert Simmons, who said that what she heard was a gunshot.

As she turned to run back away from the scene, she looked back to see defendant wiping off his

hands with a white rag. Then he picked up Colley and carried her into the house.

¶7 Simmons testified that he was walking toward Doug McDonald’s house when he saw a

screen door open and heard a shot. The force of the shot “pushed her out the door.” He saw

Andrea approaching and stopped her. When he arrived at Doug McDonald’s house, he saw a man

come out of Colley’s house, pick her up, and carry her back in the house. Simmons recognized

the man as one of the Morrison brothers, but was not certain which one. He saw the car that was

usually parked in the yard come out of the back alley. Two children were in the back seat.

2 ¶8 Doug McDonald testified that he heard a gunshot, so he got on his bicycle and rode in the

direction of the shot. He saw the Morrisons come out, pick up the lady, and carry her back into

the house. The Morrisons came back out and got in the car, but one of them went back in the

house and got the four-year-old twins and put them in the car. McDonald heard one of the boys

say, “Jeff shot my Mommy. He shot her dead.” McDonald went inside the house and found Colley

dead.

¶9 The rifle and shell casings produced no useable fingerprints. Bruce Warren, a DNA expert,

testified that blood on a shoe taken from defendant was Colley’s. Blood on jeans taken from

defendant was a mix of Colley’s and either defendant’s or Glen’s. The jury found defendant guilty.

The trial court sentenced him to 40 years’ imprisonment for murder, with concurrent sentences for

the other convictions.

¶ 10 On direct appeal, this court, with some minor modifications, affirmed defendant’s

convictions. People v. Morrison, No. 5-00-0054 (2002) (unpublished order under Supreme Court

Rule 23). Defendant filed a postconviction petition, which the circuit court summarily dismissed.

This court affirmed. People v. Morrison, No. 5-03-0147 (2005) (unpublished order under Supreme

Court Rule 23).

¶ 11 Defendant sought to file a successive postconviction petition. The trial court denied leave

to file and this court affirmed. People v. Morrison, 2014 IL App (5th) 120036-U.

¶ 12 On March 19, 2021, defendant sought leave to file a second successive postconviction

petition. He alleged that trial counsel was ineffective in relying on the grand jury testimony of

Detective Alan Burton that a Japanese 6.5-millimeter rifle would not produce testable gunpowder

residue. In response to a grand juror’s inquiry, he said that the rifle “is a closed mechanism. It’s

a bolt-action, closed mechanism.” Defendant alleged that in late 2019, “based on information

3 provided by a fellow prisoner,” he began writing experts seeking assistance. As a result, he

received a letter dated February 15, 2021, from Emanuel Kapelsohn of Peregrine Corporation

asserting that a Japanese 6.5-millimter rifle does produce testable materials. Defendant asserted

that he established cause for not raising this claim earlier because he could not have done so

without Kapelsohn’s letter.

¶ 13 Defendant alleged that he was prejudiced because “[a]n independent investigation into the

presence or absence of gun powder residue or other by-products on Petitioner’s clothing would

have been conclusive evidence of whether or not he fired the rifle.” Defendant asserted that such

testing would have shown an absence of gunpowder residue (GSR), which would have supported

his defense that he did not shoot Colley.

¶ 14 The circuit court denied leave to file the petition. The court found that defendant had not

established cause because the facts underlying the claim were known to him before he filed his

first postconviction petition and the State did not withhold anything from him. Defendant timely

appealed.

¶ 15 ANALYSIS

¶ 16 OSAD asserts that the only potential issues defendant could raise are whether he should

have been allowed to file a successive postconviction petition because he demonstrated the

requisite cause and prejudice or whether he presented a viable claim of actual innocence. OSAD

concludes that neither issue has even arguable merit. We agree.

¶ 17 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides

a statutory remedy for criminal defendants alleging substantial violations of their constitutional

rights at trial. People v. Edwards, 2012 IL 111711, ¶ 21. The Act contemplates the filing of only

one petition. People v. Coleman, 2013 IL 113307, ¶ 81. Illinois courts permit the filing of

4 a successive postconviction petition only where fundamental fairness so requires. Id. Courts have

recognized two such situations. The first is where the defendant establishes “cause and prejudice”

for failing to raise the claim earlier. Id. ¶ 82. Second, even without a showing of cause and

prejudice, a defendant may bring a claim of actual innocence to prevent a miscarriage of justice.

Id. ¶ 83.

¶ 18 To establish “cause,” a defendant must show that some objective factor external to the

defense impeded his ability to raise the claim in the initial postconviction proceeding. Id. ¶ 82;

725 ILCS 5/122-1(f) (West 2016). To establish “prejudice,” a defendant must show that the

claimed constitutional violation so infected his trial that the resulting conviction violated due

process. Coleman, 2013 IL 113307, ¶ 82; 725 ILCS 5/122-1(f) (West 2016).

¶ 19 Here, defendant knew the basic facts underlying his claim—i.e., Burton’s grand jury

testimony—long before he filed his first postconviction petition. No “objective factor external to

the defense” impeded his ability to raise the claim earlier. In other words, he points to no reason

for not presenting the claim sooner other than his own failure to investigate it. That he learned in

a fortuitous encounter with a fellow inmate more than 20 years after the shooting that Burton’s

testimony might have been inaccurate does not excuse his failure to investigate the issue sooner.

¶ 20 In any event, defendant cannot establish prejudice. He fails to explain how, even had

defense counsel known that Burton’s statement was arguably inaccurate, counsel could have

challenged it. Burton did not testify at trial about the rifle’s characteristic and the State presented

no evidence of a GSR test (presumably because none was done). Counsel could not be expected

to challenge evidence that was never offered at trial.

¶ 21 Defendant seems to suggest that counsel could have requested an independent test on the

assumption that a negative test would have conclusively established his innocence. However, GSR

5 remains on skin or clothing for at most a few hours after a gun is fired. M. Trimpe, The Current

Status of GSR Examinations, FBI Law Enforcement Bulletin, May 1, 2011

http://leb.fbi.gov/articles/featured-articles (accessed July 25, 2022). Moreover, it is easily

removed by washing (id.), and Andrea McDonald saw defendant wiping his hands immediately

after the shooting. A negative GSR test performed months or years after the shooting would have

had no probative value in establishing defendant’s innocence.

¶ 22 In any event, the evidence of defendant’s guilt was overwhelming. His brother, Glen,

witnessed the shooting. Three other eyewitnesses placed defendant at the scene immediately after

hearing the shot, and the victim’s blood was found on defendant’s shoe. Moreover, even

conclusive proof that defendant did not fire the fatal shot would not preclude a finding of guilt by

accountability.

¶ 23 People v. Johnson, 401 Ill. App. 3d 685 (2010), which defendant’s motion cites, is

distinguishable. There, prior to trial, the State repeatedly downplayed the significance of

fingerprint comparisons that excluded the defendant. Thus, the defendant’s postconviction

allegation that counsel relied on the prosecutor’s assertion that there was “ ‘nothing conclusive

about any of the fingerprints, and it was not really an issue’ ” stated at least the gist of a claim that

counsel was ineffective. Id. at 695-97. Here, there was (so far as the record shows) no favorable

report that counsel could have discovered, and, as noted, an independent test done long after the

shooting would have proved nothing.

¶ 24 OSAD further concludes that defendant has not made a viable claim of actual innocence.

To succeed on a claim of actual innocence, a defendant must present new, material, noncumulative

evidence that is so conclusive that it would probably change the result on retrial. People v.

Coleman, 2013 IL 113307, ¶ 96. “New” means that the evidence was discovered after trial and

6 could not have been discovered earlier through the exercise of due diligence. Id. “Material” means

that the evidence is relevant and probative of the petitioner’s innocence. Id. And “conclusive”

means that the evidence, when considered along with the trial evidence, would probably lead to a

different result. Id.

¶ 25 Here, Kapelsohn’s statements about the characteristic of the rifle, in and of itself, do not

tend to prove defendant’s innocence. It suggests only that a GSR test could have been performed,

but, as noted, a test performed long after the shooting would not have been probative. Therefore,

defendant’s claim cannot reasonably be construed as one of actual innocence.

¶ 26 In his response, defendant largely reiterates the arguments that he has established cause

and prejudice. For the reasons stated, we disagree. Defendant alternatively asks that we stay the

case so that he can pursue forensic testing pursuant to section 116-3 of the Code of Criminal

Procedure of 1963 (725 ILCS 5/116-3 (West 2020)). However, that section requires that the testing

have the potential to produce evidence that is “materially relevant” to an assertion of actual

innocence. Id.; People v. Savory, 197 Ill. 2d 203, 213 (2001). As discussed above, a negative

GSR test conducted more than 20 years after the shooting would have no probative value, and thus

would not materially advance defendant’s claim of innocence.

¶ 27 CONCLUSION

¶ 28 For the foregoing reasons, we grant OSAD’s motion and affirm the circuit court’s

judgment.

¶ 29 Motion granted; judgment affirmed.