People v. Terry

2016 IL App (1st) 140555

THIRD DIVISION
June 22, 2016

No. 1-14-0555

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 02 CR 22649
)
CORKY TERRY, ) Honorable
) Charles P. Burns,
Defendant-Appellant. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion.
Presiding Justice Mason and Justice Pucinski concurred in the judgment and opinion.

OPINION

¶1 Defendant Corky Terry appeals from the circuit court's denial of leave to file a successive

petition for postconviction relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1 et seq. (West 2012)). On appeal, defendant contends that the court erred when it denied him

leave to file the instant petition because the petition met the requirements of the cause and

prejudice test. Specifically, defendant contends that he has established cause because the 2006

Report of the Special State's Attorney (the Egan Report), which corroborates his claims of

physical coercion by police officers was not available to him at the time of his "trial" or the filing

of his initial postconviction petition. Defendant contends that he has established prejudice
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because our supreme court has held that the introduction of a physically coerced confession is

never harmless error. We affirm.

¶2 BACKGROUND

¶3 Defendant's arrest and prosecution arose out of the fatal shooting of the victim, Reginald

Washington, on August 6, 2002.

¶4 Defendant later filed a motion to suppress statements alleging, inter alia, that detectives

Jerry Bogucki and Tony Noradin physically coerced him into making an inculpatory statement.

¶5 At the hearing on defendant's motion, Detective Raymond Schalk testified that he, along

with detectives Bogucki and Noradin, interviewed defendant in the early morning hours of

August 7, 2002. During an initial conversation, defendant stated that he did not shoot the victim,

explained that he ran away when he heard gunshots and denied possessing a gun. Schalk

responded that the arresting officers saw defendant with a gun and had recovered that gun. He

further stated the gun would be tested for fingerprints and that defendant and defendant's

clothing would be tested for gunshot residue. After hearing this, defendant admitted that he shot

the victim. Schalk testified that defendant was not handcuffed during this conversation.

¶6 Later that day, Schalk was present, along with assistant State's Attorney (ASA) Molly

Riordan, Bogucki and Noradin, when defendant again "told *** the story" of how he shot the

victim. Schalk denied that anyone threatened defendant in order to obtain a statement. Neither he

nor anyone in his presence kicked, punched or slapped defendant, grabbed defendant by the hair,

or swung a phonebook at defendant. Defendant never complained about being mistreated. Schalk

knew that Bogucki and Noradin did not interview defendant outside of his presence, because if

they had, they were required to notify him as lead detective.

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¶7 During cross-examination, Schalk denied that defendant was told that the police "had"

defendant's fingerprints on the gun or that defendant told officers that he was under the influence

of alcohol and marijuana. He also denied that either he or Bogucki and Noradin were ever alone

with defendant.

¶8 ASA Molly Riordan testified that defendant chose to make a videotaped statement.

Defendant's videotaped statement was then published to the court. 1

¶9 In the statement, defendant stated that he was a member of the Maniac Latin Disciples

gang and that the "Familia Stones" (Stones) was a rival gang. Defendant further stated that two

days prior to the victim's death, he was threatened by certain Stones. On the day of the victim's

death, defendant saw members of the Stones at a pool and "figured" that he had to scare them to

make them leave him alone. He thought he could catch them "off guard" while they were

barbecuing and planned to "just let off some shots" with a "Tech 9" handgun. When he was

about 75 feet away from the group, he pulled the trigger four times and then ran away. As he was

being chased by the police, he threw the gun away and hid under a car. Defendant had "no

intention" to kill anyone and was "very sorry."

¶ 10 Defendant stated that no threats or promises were made in order to get him to make a

statement and that he was treated well by the police. He denied being under the influence of

drugs or alcohol. Defendant finally stated that he was sorry for what had happened and that "as a

man" he was taking responsibility for his actions.

¶ 11 Riordan then testified that defendant was not handcuffed when she spoke to him. He did

not appear coached or under the influence of alcohol or drugs, and he did not complain about any

1
The record does not contain the videotape of defendant's statement.

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threats or mistreatment. During cross-examination she denied stating that defendant was not

telling the truth or leaving him alone with Bogucki and Noradin.

¶ 12 Defendant testified that he was playing basketball when he heard gunshots so he ran

away. He denied having a gun. Before playing basketball, he drank two "40 ouncers of Old

English" and smoked 4 ½ grams of marijuana. After being taken into custody and transported to

a police station, defendant stated that he did not have anything to do with the victim's death. The

detectives left the room, and when they returned they had a photograph which showed defendant

with members of the Maniac Latin Disciples. They stated that they "knew" who defendant was,

he had been seen running across a street, and they had the gun with his fingerprints on it. When

Schalk asked whether he was under any type of influence, defendant replied he was under the

influence of alcohol and marijuana.

¶ 13 An ASA then entered the room and asked defendant if he wanted to tell her what had

happened. Defendant repeated that he had been playing basketball when he heard gunshots so he

ran away. The ASA stated that defendant was not telling the truth and left. Bogucki and Noradin

then entered the room and told defendant that "this" was his last chance. Defendant said that he

had given the detectives his side of the story and they left. When Bogucki and Noradin returned,

Noradin grabbed defendant, who was handcuffed to a bench, by the hair and punched him in the

ribs. Defendant was kicked and punched several times before the detectives left the room. When

they returned, defendant was prone on a bench, covered in his own vomit and urine. The

detectives then "did the same thing over," that is, grabbed his hair and punched him. Defendant

was told that he could make an oral, handwritten or videotaped statement. When he again denied

involvement, Bogucki swung a phonebook at him. Bogucki stated that defendant could either

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admit that he did it or they could do "this" another way which would not involve a phonebook.

Although defendant agreed to make a written statement, the detectives told him to make a

videotaped statement and what to say.

¶ 14 During cross-examination, defendant testified that he was not telling the truth in the

videotaped statement and that he was no longer a member of the Maniac Latin Disciples.

However, he admitted that certain personal information such as his age and address was correct.

He also admitted that he did not say anything about the police "feeding" him facts or kicking and

slapping him on the videotape. Defendant acknowledged that on the videotape he stated that the

statement was made voluntarily, that he was treated with respect by the police and that he was

not under the influence of alcohol or drugs. Defendant reiterated that the detectives told him

what to say. Although he made up the details surrounding his problems with the Stones and that

he only wanted to scare people, the detectives told him to say that he had no intention to kill

anyone.

¶ 15 In denying defendant's motion, the trial court characterized the issue as one of credibility,

and stated that the videotaped statement "overwhelmingly" corroborated the testimony of the

State's witnesses. The court also stated that defendant's testimony that he was mistreated was not

corroborated by any other evidence and was actually contradicted by his statement. The court

concluded that the statement was "more logical and believable and credible" than defendant's

testimony which the court characterized as "absolutely incredible" in that defendant testified that

some details of his statement were fed to him by detectives and that he made up the rest.

¶ 16 On April 5, 2004, defendant entered a negotiated plea of guilty to first degree murder and

was sentenced to 35 years in prison. The factual basis for defendant's plea was that on August 6,

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2002, the victim was fatally shot. The State further stated that the evidence would show that

officers David Ruiz and David Pfest heard gunshots and proceeded to a park where witnesses

stated that the shooter fled toward a certain street. As the officers approached that street, they

observed defendant running while carrying a Tech 9 semiautomatic handgun. The officers

chased and apprehended defendant. The evidence would also show that a sweatshirt recovered

from defendant tested positive for gunshot residue and that the gun defendant dropped "came

back positive" to a shell casing recovered at the crime scene. Finally, the evidence would show

that defendant made an inculpatory videotaped statement. The parties stipulated to these facts.

¶ 17 When the court asked defendant if those were the facts that defendant was stipulating to,

defendant answered in the affirmative. The trial court accepted defendant's plea and sentenced

him to 35 years in prison.

¶ 18 Defendant then filed a motion to withdraw the plea alleging that his plea was not

knowing and voluntary because his attorney used "mental coercion," including pressure from

defendant's family to force him to accept a plea. The trial court denied the motion, and this

judgment was affirmed on appeal. See People v. Terry, No. 1-05-0351 (2006) (unpublished order

under Supreme Court Rule 23).

¶ 19 In 2006, defendant filed a pro se petition for postconviction relief alleging, inter alia, that

he was denied the effective assistance of counsel because counsel failed to present certain

documents regarding physical evidence during the hearing on the motion to quash arrest and

suppress evidence and because counsel requested a plea without discussing it with defendant.

The petition also alleged that defendant was denied the effective assistance of appellate counsel.

The circuit court summarily dismissed the petition as frivolous and patently without merit. That

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judgment was affirmed on appeal. See People v. Terry, No. 1-07-0861 (2008) (unpublished order

under Supreme Court Rule 23).

¶ 20 In May 2013, defendant filed a pro se motion for leave to file a successive postconviction

petition and the instant successive postconviction petition. The motion alleged that newly

discovered evidence substantiated defendant's claim, first raised in his motion to suppress

statements, that his confession was the result of physical coercion. The newly discovered

evidence was the Egan Report, detailing misconduct by officers under the command of Jon

Burge. Defendant received a copy of this report in March 2013.

¶ 21 Attached to the petition in support were, inter alia, defendant's affidavit, copies of the

motions to suppress statements and quash arrest, and to suppress evidence, and documents titled

"Report on the Failure of Special Prosecutors Edward J. Egan and Robert D. Boyle to Fairly

Investigate Police Torture in Chicago," and "Victims of Area 5 Gang Crimes Unit Detectives,"

¶ 22 In an affidavit, defendant averred that in March 2013, he received copies of "Victims of

Area 5 Gang Crimes Unit Detectives" and the 2007 "Report on the Failure of Special Prosecutors

Edward J. Egan and Robert D. Boyle to Fairly Investigate Police Torture in Chicago."

¶ 23 In denying defendant leave to file the instant petition, the circuit court concluded that

because the report defendant relied upon was filed in 2007, it could not be deemed newly

discovered evidence. The court further found that although defendant filed a motion to quash

arrest alleging coercion and abuse which was denied, he did not raise this claim in his direct

appeal or his initial postconviction proceeding. The court finally found that the "OPS"

investigation regarding systematic physical abuse focused on the period of 1973 to 1986 and

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officers headquartered at Area 2, whereas defendant was arrested 16 years later and held at Area

5.

¶ 24 ANALYSIS

¶ 25 Our supreme court has held that the scope of postconviction review is limited to

constitutional matters which have not been, and could not have been, previously adjudicated.

People v. Evans, 186 Ill. 2d 83, 91-92 (1999). The judgment of the reviewing court on a previous

appeal is res judicata as to the issues actually decided, and any claim that could have been

presented in the direct appeal is, if not raised, thereafter barred under the doctrine of waiver. Id.

¶ 26 The Act contemplates the filing of only one petition without leave of court (725 ILCS

5/122-1(f) (West 2012)), and "any claim not presented in an original or amended petition is

waived." People v. Sanders, 2016 IL 118123, ¶ 24. A defendant must overcome " 'immense

procedural default hurdles' " in order to file a successive postconviction petition. People v.

Crenshaw, 2015 IL App (4th) 131035, ¶ 27 (quoting People v. Tenner, 206 Ill. 2d 381, 392

(2002)). These hurdles are only lowered in limited circumstances because successive

postconviction proceedings " 'plague the finality of criminal litigation.' " Id. (quoting Tenner,

206 Ill. at 392).

¶ 27 Leave of court may be granted when a defendant demonstrates cause for failing to raise

the claim in his earlier petition and prejudice resulting from that failure. 725 ILCS 5/122-1(f)

(West 2012). "Cause" is established when the defendant shows that some objective factor

impeded his ability to raise the claim in the original postconviction proceeding. Tenner, 206 Ill.

2d at 393. "Prejudice" is established when the defendant shows that the claimed error so infected

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his trial that the resulting conviction violated due process. Id. A defendant must establish both

cause and prejudice. People v. Edwards, 2012 IL 111711, ¶ 22.

¶ 28 In People v. Smith, 2014 IL 115946, ¶ 35, our supreme court reiterated that "the cause-

and-prejudice test for a successive petition involves a higher standard than the first-stage

frivolous or patently without merit standard." A circuit court should deny a defendant leave to

file a successive postconviction petition when it is clear, based upon a review of the successive

petition and the attached documentation, that the defendant's claims fail as a matter of law or

when the petition and its supporting documents are insufficient to justify further proceedings. Id.

We review de novo whether a defendant has fulfilled his burden to justify further proceedings on

a successive postconviction petition. Id. ¶ 21.

¶ 29 On appeal, defendant contends that he has established cause because he did not obtain a

copy of the Egan Report, which "substantiate[s]" his claims of physical coercion, until 2013. He

further contends that he has established prejudice because our supreme court has held that a

physically coerced confession is never harmless error.

¶ 30 The State responds that defendant has failed to properly support his postconviction claim

because defendant failed to attach the Egan Report to his petition. The State argues the defendant

is attempting to improperly amend his petition on appeal by asking this court to take judicial

notice of the Egan Report. The State further argues that defendant has failed to meet the cause

prong of the cause and prejudice test because the Egan Report was available to him at the time of

his first postconviction petition. Defendant acknowledges that the document attached to his

successive postconviction petition is not the Egan Report, however, he argues that he "correctly

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cited the actual" Egan Report in his petition, that the report is publically available, and that he

cannot be expected to have obtained a copy because he has been incarcerated since 2004.

¶ 31 Here, defendant failed to meet the pleading requirements of section 122-2 of the Act by

failing to attach the document which he argues corroborates his claim to his successive petition.

See 725 ILCS 5/122-2 (West 2012) (a defendant must attach documentation supporting his

allegations to his petition or explain its absence); People v. Wideman, 2013 IL App (1st) 102273,

¶¶ 15-18 (discussing the pleading requirements of section 122-2 of the Act in a successive

postconviction proceeding). However, even if we were to look beyond defendant's failure to

attach to his petition the actual report upon which he bases his claim, defendant cannot satisfy

the requirements of the cause and prejudice test. Defendant has failed to meet the cause prong

because he has failed to identify an objective factor that impeded his efforts to raise the issue of

his coerced statement in an earlier proceeding.

¶ 32 A postconviction proceeding is a collateral proceeding, rather than an appeal of the

underlying judgment, and therefore it allows inquiry only into constitutional issues that were not,

and could not have been, adjudicated on direct appeal. People v. Pitsonbarger, 205 Ill. 2d 444,

455-56 (2002). Additionally, any claim not presented in an initial postconviction petition or

amended petition is waived. Sanders, 2016 IL 118123, ¶ 24.

¶ 33 The record reveals that although defendant testified at the hearing on his motion to

suppress statements that he was punched, kicked and threatened by police officers until he

agreed to make a videotaped statement, he did not challenge his inculpatory statement in either

his direct appeal or in his initial postconviction proceeding and has therefore waived the claim. It

is clear from the record before us that defendant's claim that he was physically coerced into

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confessing could have been raised on direct appeal, i.e., he could have challenged the trial court's

denial of his motion to suppress statements, but he did not. See Evans, 186 Ill. 2d at 92 (any

claim that could have been presented in the direct appeal is, if not raised, thereafter barred under

the doctrine of waiver). Additionally, having known all of the facts necessary to raise this claim

prior to the filing of his initial petition, defendant cannot establish cause for his failure to raise it

in his initial petition. See People v. Williams, 394 Ill. App. 3d 236, 246 (2009) (the defendant

could not show cause for his failure to include his claim in his initial postconviction petition

when, although trial counsel did not provide him with documents to support his claims, he was

aware of the claims and the supporting facts prior to his initial petition).

¶ 34 Defendant, however, contends that it was appellate counsel's decision to argue on direct

appeal that defendant's motion to withdraw the plea should have been granted because defendant

was "mentally coerced" by his attorney and family. He further argues that counsel's decision not

to argue that the trial court erred when it denied defendant's motion to suppress does not mean

that he gave up his claim that his confession was coerced or that he "acquiesced" to counsel's

decision. He further argues that that without "any new evidence" he was barred by res judicata

from arguing in his initial postconviction petition that his confession should have been

suppressed because it was physically coerced. We disagree.

¶ 35 Although the Egan Report may, as defendant argues on appeal, serve to corroborate the

general proposition that Chicago police officers used physical coercion to obtain statements from

suspects, this additional evidence does not explain why defendant could not have raised this

specific claim in his first postconviction proceeding. See People v. Green, 2012 IL App (4th)

101034, ¶ 40 (although the defendant uncovered additional evidence to support his claim, that

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does not make that claim new). However, even if we take as true defendant's factual allegation

that he did not come into possession of information related to the "widespread physical abuse of

suspects" until 2013, defendant has not alleged sufficient facts to establish prejudice.

¶ 36 In order to satisfy the prejudice prong, a defendant must show that the claim not raised in

his initial postconviction petition "so infected the entire trial that the resulting conviction or

sentence violates due process." Pitsonbarger, 205 Ill. 2d at 464. In People v. Wrice, 2012 IL

111860, ¶ 84, our supreme court found that "use of a defendant's physically coerced confession

as substantive evidence of his guilt is never harmless error" and concluded that the defendant's

claim of physical coercion by officers at Area 2 headquarters "satisfied the prejudice prong of the

cause-and-prejudice test."

¶ 37 Contrary to what defendant argues on appeal, however, the court did not hold that a

defendant's bare allegation that his confession was physically coerced combined with reliance on

the Egan Report establishes prejudice. Rather, the Wrice defendant established prejudice when

he: (1) consistently claimed throughout the proceedings that he was tortured; (2) his torture

claims were strikingly similar to those of other prisoners in Areas 2 and 3; (3) the officers named

were also identified in other allegations of torture; and (4) the allegations were consistent with

the findings of torture in the Egan Report. Id. ¶ 43. In other words, the holding of Wrice does not

contradict the court's subsequent holding in Smith that a successive postconviction petition must

adequately allege facts showing cause and prejudice, and leave to file a successive petition

should be denied "where the successive petition with supporting documentation is insufficient to

justify further proceedings." Smith, 2014 IL 115946, ¶¶ 34-35.

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¶ 38 Although defendant is correct that the Egan Report has been relied upon by this court and

our supreme court in other cases, defendant's petition fails to set forth with any specificity or

certainty how the Egan Report would support his claim that he was physically coerced into

making an inculpatory statement. We note that defendant concedes that detectives Bogucki and

Noradin were not identified by name in the Egan Report and that he was held at a different police

station. Additionally, defendant does not allege that he was tortured in the same manner as the

individuals listed in the Egan Report, or that there was a pattern of abuse perpetuated either by

Bogucki and Noradin or by other officers at the police station where he was held. Rather,

defendant argues that the Egan Report corroborates his specific claim of abuse because it

"confirms" that there was "widespread physical abuse of suspects" by police officers. However,

generalized claims of abuse are not sufficient to support a claim of coercion; there must be a

direct link to specific abuses in a particular defendant's case. People v. Anderson, 375 Ill. App.

3d 121, 137-38 (2007) (generalized claims of misconduct without any link to the defendant's

case, such as evidence corroborating his allegations or some similarity between the type of

misconduct he alleges and the evidence in other cases of abuse, are insufficient to support a

claim of coercion). In other words, defendant cannot establish how he was prejudiced by the

absence of the Egan Report in his first postconviction proceeding when he has failed to establish

that the Egan Report is relevant to his specific claim of abuse.

¶ 39 We therefore reject defendant's speculative claim that because the Egan Report

established that officers at Area 2 physically coerced suspects, defendant was subject to the same

treatment years later at a different police station at the hands of different officers. Without

evidence corroborating defendant's allegations of coercion, or "some similarity between the type

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of misconduct alleged by defendant and that presented by" the cases in the Egan Report, the

report fails to provide sufficient support for defendant's claim in this case. Id. Therefore,

defendant has failed to establish how he was prejudiced by the Egan Report's absence from his

initial postconviction proceeding (see Pitsonbarger, 205 Ill. 2d at 464), and the circuit court

properly denied his motion for leave to file a successive postconviction petition (see Smith, 2014

IL 115946, ¶ 21).

¶ 40 CONCLUSION

¶ 41 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 42 Affirmed.

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