NOTICE 2020 IL App (4th) 190501-U FILED This order was filed under Supreme Court Rule 23 and may not be cited April 29, 2020 as precedent by any party except in NO. 4-19-0501 Carla Bender the limited circumstances allowed 4th District Appellate under Rule 23(e)(1). Court, IL IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) De Witt County WILLIAM D. SPENCER, ) No. 15CF53 Defendant-Appellant. ) ) Honorable ) Roger B. Webber, ) Judge Presiding.
JUSTICE KNECHT delivered the judgment of the court. Presiding Justice Steigmann and Justice Turner concurred in the judgment.
ORDER
¶1 Held: The appellate court affirmed, concluding defendant’s petition for relief from judgment failed to allege sufficient facts to establish the possibility of a meritorious claim.
¶2 Defendant, William D. Spencer, appeals from the trial court’s dismissal of his
petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (Code) (735
ILCS 5/2-1401 (West 2018)). On appeal, defendant argues we should reverse and remand for
further proceedings as his petition alleged sufficient facts to establish the possibility that it was
timely filed and included a meritorious claim. We affirm.
¶3 I. BACKGROUND
¶4 A. Information ¶5 In August 2015, the State charged defendant by information with aggravated
battery (720 ILCS 5/12-3.05(c) (West 2014)). The State alleged, on September 11, 2014, defendant
“knowingly and without authority made physical contact of an insulting or provoking nature with
Dustin Peterson [by using] his body to strike and move *** Peterson, knowing *** Peterson to be
on public property[,] to wit: the De Witt County Courthouse.”
¶6 B. Jury Trial
¶7 In May 2016, the trial court conducted a jury trial. Prior to commencing the trial,
the court heard argument on a motion to quash a subpoena for a reporter, Jerry Nowicki. Nowicki’s
attorney alleged Nowicki would testify only to the fact defendant winked at him prior to the
incident between defendant and Peterson and the wink was in response to Nowicki nodding at
defendant as a friendly acknowledgement. Nowicki’s attorney argued, in part, the testimony was
irrelevant as the gestures between defendant and Nowicki were not pre-arranged signals
concerning the subsequent incident between defendant and Peterson. The State disagreed, asserting
Nowicki’s testimony was relevant as Nowicki was the only one who saw the wink and it was for
the jury to decide defendant’s intentions behind the gesture. The State specifically noted, “If there
was somebody else that could testify to this, then I would call them to avoid this, but in the
investigation, there was never anybody else that saw this that was interviewed.” In response,
Nowicki’s attorney stated to the court: “I think that Mr. Nowicki did acknowledge to a deputy that
he had winked, but I don’t want you to be left with the impression that Nowicki like called the
police officer and told him it happened. That isn’t how the police officer learned about it.” The
State, in response, noted a “Detective Werts” indicated in a report “that [Nowicki] told me that
[defendant] winked at him just moments before he struck Dustin.” After considering the arguments
-2- presented, the court denied the motion. In rendering its decision, the court noted “everyone agrees
no one else saw the wink.”
¶8 At trial, the evidence showed the following. On September 11, 2014, at 8 p.m., the
De Witt County Board held a meeting in a De Witt County courtroom. Sheriff’s Deputy Mack
King provided security for the county board meeting. Deputy King was equipped with a body
camera on the front of his jacket.
¶9 At the time, the De Witt County Board consisted of members of two opposing
political factions. Sherrie Brown, the county board chairman and paramour of defendant, ran a
coalition to preserve clean water and stop the dumping of hazardous waste at the Clinton landfill,
which was located above the Mahomet Aquifer. The majority of the county board members were
members of the coalition. Defendant, a non-board member, was both a member of the coalition as
well as the WATCH Clinton Landfill group, a group dedicated to protecting the water in the
county. Members of the Better Government for De Witt County organization opposed the actions
of the coalition. Several county board members were members of that organization. Peterson, a
non-board member, was also a member of the Better Government for De Witt County organization.
¶ 10 That evening, a vacancy on the county board existed, and members of the Better
Government for De Witt County organization sought to approve one of their members, Christina
Pruser, to fill the position. The issue caused a commotion at the meeting. At one point, Danny
Ballenger, a county board member and member of the Better Government for De Witt County
organization, called out to Peterson, who was seated in the audience. At approximately 8:40 p.m.,
Brown adjourned the meeting because members of the Better Government for De Witt County
organization were being uncivil. Board members objected to the adjournment and directed
-3- disparaging comments at Brown. Deputy King began to clear the courtroom. Members of the
opposing political factions began to argue with each other. Due to the disparaging comments
directed at Brown, defendant yelled, “ ‘Bullies and wife beaters.’ ” Defendant testified he was not
angry when he made the comment. Defendant, who was seated in the back of the courtroom, stood
up and began to walk down an aisle toward the front of the courtroom to collect recording
equipment he brought to the meeting. The aisle was three feet wide.
¶ 11 At that time, Peterson was standing in the courtroom aisle, leaning up against the
courtroom bench with his hands on his hips, and talking with Pruser and Andy Hedrick. Peterson
testified, “[O]ut of my left corner of my eye, I saw [defendant] approaching, and at that point he
lowered his shoulder and tried to knock me over.” Peterson indicated he was struck in the
“shoulder, left chest area,” causing him to shuffle his feet and grab the bench in front of him.
Peterson testified he did not try to block the aisle, stick his elbow into defendant’s path, or strike
defendant. He believed sufficient space existed behind him for a person to walk by without making
contact. Peterson also stated neither before nor after the incident did he and defendant exchange
comments with each other.
¶ 12 Pruser testified, while talking with Peterson after the county board meeting
adjourned, she observed defendant “lower his shoulder and run into” Peterson, causing Peterson
to lose his balance. She believed Peterson was struck on the right side of his body. Pruser disclosed
what she observed to Deputy King on the night of the incident.
¶ 13 Hedrick testified, while talking with Peterson after the county board meeting
adjourned, he observed defendant “coming down the [aisle] toward [Peterson], and when he got
up there to him he lowered his shoulder like a football player and hit him in the back.” Hedrick
-4- believed the contact occurred intentionally. Hedrick testified he did not hear Peterson say anything
to defendant. He acknowledged, however, he stated in a September 12, 2014, interview he heard
Peterson say something to defendant. Hedrick testified if Peterson said something, it occurred after
the contact. Hedrick was not a member of the Better Government for De Witt County organization.
¶ 14 Defendant testified, in approaching the front of the courtroom, he first passed
Nowicki, a reporter, in the aisle, who smiled at him and then he smiled back. Defendant
acknowledged he “might have winked” at Nowicki and asserted, if he did, it was as a friendly
gesture. Nowicki testified he acknowledged defendant when defendant was passing with a nod of
the head and a smile and then defendant “[s]miled and winked” at him as a form of
acknowledgment. Nowicki testified he did not call the police and report the wink by defendant.
¶ 15 Defendant testified he passed by Nowicki without having to turn his body. After
passing Nowicki, defendant observed Peterson staring at him. Peterson was standing in the middle
of the aisle, with his elbows sticking out behind his back and his hands on his hips. When defendant
was approximately a step away from Peterson, Peterson called him an “asshole.” Defendant did
not respond to Peterson’s comment. Defendant turned his shoulder away from Peterson and toward
the wall and continued forward, believing he had sufficient space to pass Peterson without making
contact. Defendant asserted Peterson intentionally blocked his path by rotating his arm and turning
into him. Defendant was unsure whether contact actually occurred. Defendant demonstrated for
the jury the movements he made when passing by Peterson. After collecting his equipment in the
front of the courtroom, defendant returned down the aisle and passed Peterson without making any
contact. Defendant testified, prior to rendering his testimony, he reviewed a video recording of the
incident approximately 20 times.
-5- ¶ 16 Karen Musick testified she watched defendant walk up the aisle after the county
board meeting, and he never made contact with anyone, either intentionally or unintentionally.
¶ 17 Video footage from Deputy King’s body camera was published to the jury. The
video footage shows the incident between defendant and Peterson. The jury was also given still
images taken from the video.
¶ 18 After the incident occurred, Deputy King finished clearing the courtroom. During
that time, defendant collected his equipment and left to drive his friend home. Keith Koons testified
defendant did not appear to be upset after the incident. Deputy King did not ask defendant to
discuss the incident prior to him leaving the building.
¶ 19 Defendant later received a phone call from Deputy King, but he did not answer.
Defendant testified he called a “criminal lawyer” and did not return Deputy King’s phone call
based on the legal advice he received. Deputy King acknowledged defendant had the right not to
speak to the police.
¶ 20 Terry Hoffman, a member of the coalition, recalled incidents in the past where
members of the Better Government for De Witt County organization would block the aisles during
county board meetings.
¶ 21 Multiple witnesses testified defendant had a reputation for peacefulness. Defendant
acknowledged the witnesses who rendered such testimony were his friends.
¶ 22 On the night of the incident, Peterson told Deputy King he did not desire charges
to be pursued against defendant. Later, after reviewing video footage from the incident, Peterson
requested charges be pursued as he was “shocked” and “wasn’t sure why [the incident] happened.”
Peterson acknowledged after the incident he stated “he was not going to stoop to their level” and
-6- “[h]e knows he’s an idiot,” referring to defendant. Peterson testified he did not engage in a
conspiracy to stand by the aisle and block defendant to get him in trouble.
¶ 23 During Peterson’s cross-examination, the State objected to a question about
whether Peterson had been drinking alcohol prior to the meeting. A discussion then occurred on
the record outside the presence of the jury. During the discussion, the State acknowledged Peterson
had been charged with driving under the influence of alcohol (DUI), which it believed was still
pending, but requested defense counsel be barred from asking any questions about the charge.
Defense counsel asserted it would be proper for her to inquire about the charge if Peterson had
been promised any favor in exchange for his testimony against defendant as it would show bias
and motivation. The court allowed defense counsel to examine Peterson outside the presence of
the jury as part of an offer of proof. During the offer, Peterson testified he was not promised any
favor in exchange for his testimony against defendant. The court took judicial notice of the pending
DUI case against Peterson and the fact it was being prosecuted by an independent special
prosecutor. The court ruled defense counsel could not inquire about the pending DUI case given
the lack of any expectation of favor and the fact the prosecution was completely unrelated. The
court allowed defense counsel to question Peterson about whether he had been drinking alcohol
prior to the meeting, to which Peterson testified he had not.
¶ 24 In closing argument, defendant presented a theory of defense suggesting Peterson
was acting in concert with other, like-minded politicians to retaliate against him for his political
speech and political acts. The State, in its argument, commented on the alleged wink defendant
gave to Nowicki: “What is the wink for? I’ll let you determine that. To me, the wink would be,
you know, ‘watch this’, ‘watch what’s coming’, and virtually moments after that, it did happen.”
-7- In response, defendant argued the jury should focus on the testimony presented when considering
the alleged wink. Specifically, defendant argued both his and Nowicki’s testimony indicated any
wink was simply a form of friendly acknowledgment. Defendant further suggested the wink was
“something of a red herring, some kind of weird evidence that’s brought in to try to take your focus
away from what really happened.”
¶ 25 Following deliberations, the jury found defendant guilty of aggravated battery.
¶ 26 C. Posttrial Motion and Sentencing
¶ 27 In June 2016, defendant filed a posttrial motion and a memorandum of law in
support of the motion. Following a July 2016 hearing, the trial court denied defendant’s motion
and then sentenced him to 12 months’ probation.
¶ 28 D. Appeal
¶ 29 Defendant appealed pro se, seeking reversal of his conviction or a new trial based
on various claims of error. We affirmed, concluding defendant’s claims of error were either
forfeited or meritless. See People v. Spencer, 2017 IL App (4th) 160569-U. Defendant, through
retained counsel, filed a petition for rehearing, which we denied, and then a petition for leave to
appeal. In January 2018, the supreme court denied defendant’s petition for leave to appeal.
¶ 30 E. Section 2-1401 Petition
¶ 31 In March 2019, defendant, through retained counsel, filed a petition for relief from
judgment under section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2018)). Defendant sought
relief from the judgment of conviction based on a claim suggesting the State failed to provide him
with material evidence in violation of Brady v. Maryland, 373 U.S. 83 (1963). Defendant alleged,
in part, the State failed to provide him with evidence suggesting (1) Peterson “had been negotiating
-8- a plea deal for his pending DUI case prior to Peterson testifying at [his] trial,” (2) Peterson was
pressured by the State to cooperate and testify, and (3) “an unidentified informant told the
prosecution about [defendant] allegedly ‘winking’ at [Nowicki].” Defendant alleged the evidence
relating to Peterson was material as Peterson played a “critical role” in the State’s case and the
evidence tended to show his bias, motive, or prejudice. Defendant alleged the evidence relating
to the unidentified informant was material as a “critical issue” at trial was whether he winked at
Nowicki before the incident. Attached to defendant’s petition was, among other things, a copy of
a report prepared by a “Detective Warts.” In the report, the detective states, when speaking with
Nowicki via telephone, “I told [Nowicki] that Sheriff Shofner received information that
[defendant] made a gesture to [Nowicki] shortly before he ran into Dustin Peterson. [Nowicki] told
me [defendant] winked at him just moments before he struck Dustin.”
¶ 32 With respect to the petition’s timeliness, defendant alleged, despite the fact the
petition was filed more than two years after the judgment was entered against him, the statutory
limitations period had not expired as the ground for relief had been fraudulently concealed by the
State and he had made a good-faith effort in trying to uncover the ground for relief. Specifically,
defendant alleged the following as it related to the State’s alleged concealment:
“Here, the State violated its affirmative duty under Brady to
produce material, favorable evidence under its control, thereby
fraudulently concealing the information. Under Brady, the State has
an affirmative duty to find and produce evidence in their control that
may be material and favorable to the Defendant’s case. [Citation.]
The State had an ongoing duty under Brady to find and produce the
-9- evidence regarding: the key witness’s ongoing prosecution and
correspondence between the De Witt County Sheriff’s and State’s
Attorney’s office and the State Appellate Prosecutor, the State
affirmatively denied Petitioner access to the evidence. [Citations.] It
is unlikely that the failure to disclose was an unintentional mistake,
not only because the special prosecutor in this case was the recipient
of one of the undisclosed e-mails but also, because officials in De
Witt County and the special prosecutors were working closely
together to investigate and prosecute the Petitioner. When the
prosecution opted not to give Petitioner access to evidence in the
government’s control, it committed an affirmative act to conceal it.”
With respect to his good-faith effort in trying to uncover the ground for relief, defendant alleged
the following:
“Furthermore, the Petitioner demonstrated a good faith effort
to uncover the evidence by making several attempts throughout his
trial to uncover information through traditional methods of
discovery. [Citation.] Petitioner expected all material evidence
would have been turned over by the State at trial and did not
continue to seek disclosures outside of discovery. Nevertheless, as a
last ditch effort, Petitioner began his search for exonerative
information from other sources soon after the court’s denial of his
direct appeal. Therefore, Petitioner was diligent in his attempts to
- 10 - uncover the grounds for relief that were fraudulently concealed by
the State for over two years.
Petitioner discovered the undisclosed Brady material
between June and July of 2018.”
¶ 33 F. Motion to Dismiss and Response
¶ 34 In June 2019, the State filed a motion to dismiss defendant’s section 2-1401
petition, and defendant filed a response to the State’s motion to dismiss. In the motion to dismiss,
the State argued defendant’s petition failed to allege sufficient facts to establish the possibility that
the petition was timely filed or included a meritorious claim. Specifically, the State argued the
petition failed to sufficiently allege the ground for relief was fraudulently concealed or the
undisclosed evidence was material to defendant’s guilt.
¶ 35 G. Dismissal
¶ 36 Following a July 2019 hearing, the trial court dismissed defendant’s section 2-1401
petition.
¶ 37 This appeal followed.
¶ 38 II. ANALYSIS
¶ 39 On appeal, defendant argues we should reverse and remand for further proceedings
as his section 2-1401 petition alleged sufficient facts to establish the possibility it was timely filed
and included a meritorious claim. The State disagrees.
¶ 40 Section 2-1401 of the Code (735 ILCS 5/2-1401 (West 2018)) provides “a
comprehensive statutory procedure authorizing a trial court to vacate or modify a final order or
judgment older than 30 days.” People v. Abdullah, 2019 IL 123492, ¶ 13. A petition for relief from
- 11 - judgment pursuant to section 2-1401 must “affirmatively set forth specific factual allegations
supporting each of the following elements: (1) the existence of a meritorious defense or claim;
(2) due diligence in presenting this defense or claim to the circuit court in the original action; and
(3) due diligence in filing the section 2-1401 petition for relief.” Smith v. Airoom, Inc., 114 Ill. 2d
209, 220-21, 499 N.E.2d 1381, 1386 (1986).
¶ 41 Defendant’s section 2-1401 petition sought relief from the judgment of conviction
based on a claim suggesting the State failed to provide him with material evidence in violation of
Brady. On appeal, defendant maintains his petition alleged sufficient facts to establish the
possibility of a meritorious Brady violation due to the State’s failure to provide him with the
evidence relating to Peterson and the unidentified “wink” informant. This court reviews a dismissal
of a section 2-1401 petition for failure to state a claim for relief de novo. People v. McChriston,
2014 IL 115310, ¶ 6, 4 N.E.3d 29. “De novo consideration means that we perform the same
analysis that a trial judge would perform.” People v. Miles, 2017 IL App (1st) 132719, ¶ 19, 86
N.E.3d 1210.
¶ 42 To establish a Brady violation, a defendant must demonstrate: “(1) the undisclosed
evidence is favorable to the accused because it is either exculpatory or impeaching; (2) the
evidence was suppressed by the State either willfully or inadvertently; and (3) the accused was
prejudiced because the evidence is material to guilt or punishment.” People v. Beaman, 229 Ill. 2d
56, 73-74, 890 N.E.2d 500, 510 (2008). With respect to the third element, “[e]vidence is material
if there is a reasonable probability that the result of the proceeding would have been different had
the evidence been disclosed.” Id. at 74. “To establish materiality, an accused must show ‘ “the
favorable evidence could reasonably be taken to put the whole case in such a different light as to
- 12 - undermine confidence in the verdict.” ’ ” Id. (quoting People v. Coleman, 183 Ill. 2d 366, 393, 701
N.E.2d 1063, 1077 (1998), quoting Kyles v. Whitley, 514 U.S. 419, 435, 115 S. Ct. 1555, 1566
(1995)). In considering materiality, “courts must consider the cumulative effect of all the
suppressed evidence rather than considering each item of evidence individually.” Id.
¶ 43 First, with respect to the evidence relating to the unidentified “wink” informant,
defendant alleged in his section 2-1401 petition the evidence was material as a “critical issue” at
trial was whether he winked at Nowicki before the incident. We disagree. Defendant
acknowledged before the jury he might have winked at Nowicki when he was passing him. The
only issue in dispute was defendant’s intentions for the possible wink, an issue thoroughly
addressed by defendant in his closing argument. On appeal, defendant alleges the evidence relating
to the unidentified informant was material as it suggested “the origin” of the wink allegation—
“that it was made up by the police and fed to Mr. Nowicki.” Defendant’s allegation, however, is
absent from defendant’s petition and will not be entertained for the first time on appeal.
¶ 44 Second, with respect to the evidence relating to Peterson, defendant alleged in his
section 2-1401 petition the evidence was material as Peterson played a “critical role” in the State’s
case and the evidence tended to show his bias, motive, or prejudice. We disagree. Even if the jury
was given the additional evidence tending to show bias, motive, or prejudice and then wholly
discounted Peterson’s testimony based on that evidence, the jury still had before it video footage
depicting defendant making sufficient physical contact with Peterson’s body to upset Peterson’s
balance and eyewitness testimony from two witnesses—one of which was not affiliated with the
same political faction as Peterson—about how defendant struck Peterson.
- 13 - ¶ 45 We find defendant’s section 2-1401 fails to allege sufficient facts to establish the
possibility of a meritorious claim where the evidence allegedly withheld from defendant was
immaterial to his guilt. On this ground alone, dismissal was warranted.
¶ 46 III. CONCLUSION
¶ 47 We affirm the trial court’s judgment.
¶ 48 Affirmed.
- 14 -