People v. Howery
People v. Howery
Opinion
*542 ¶ 1 Defendant, Bernon L. Howery, appeals the denial of his pro se motion for leave to file a successive postconviction petition and motion for discovery. We affirm.
¶ 2 I. BACKGROUND
¶ 3 Defendant is currently serving a sentence of life imprisonment after a jury found him guilty of four counts of first degree murder ( Ill. Rev. Stat. 1989, ch. 38, ¶ 9-1(a)(2) ), four counts of felony murder (
id.
¶ 9-1(a)(3) ), and one count of aggravated arson (
id.
¶ 20-1.1). The evidence presented at trial was exhaustively reviewed in defendant's direct appeal.
People v. Howery
,
¶ 4 On December 9, 1989, a fire occurred at the home of defendant's ex-girlfriend, Linda Walls. The fire killed Walls's four children (defendant was the father of three of the children).
¶ 5 At trial, the State presented expert witness John DeHann, a criminalist for the California Department of Justice Bureau of Forensic Services in Sacramento.
Id.
at 21,
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*1076
¶ 6 In defendant's case-in-chief, he presented his own expert witness, Charles Neuf.
Id.
at 25,
¶ 7 While serving his sentence, defendant appealed his convictions and sentence and initiated several collateral proceedings, which are not relevant to this appeal.
People v. Howery
, No. 3-05-0674 (2007) (unpublished order under Illinois Supreme Court Rule 23 );
People v. Howery
,
¶ 8 Defendant attached a proposed pro se successive postconviction petition to his motion for leave. 1 The proposed successive petition repeated defendant's claim that new developments demonstrated that the expert testimony as to the cause of the fire was based on misleading and antiquated beliefs that were now proven unreliable. Defendant's pro se successive postconviction petition did not identify which portion of the State's forensic expert's testimony he believed was now unreliable. Defendant did not explain how fire science had changed or how those changes would have affected the outcome in his case. Defendant also did not explain how the changes in fire and arson technology demonstrated his innocence.
¶ 9 After review, the circuit court found that defendant's pro se motion for leave and the proposed successive postconviction petition failed to allege any prejudice. The court also found that defendant failed to allege that he was actually innocent. The court concluded that defendant's pleadings were nothing more than a request for a court-ordered fishing expedition. The court denied defendant leave to file his successive postconviction petition.
¶ 10 Next, defendant filed a motion to reconsider. The motion again argued that changes in fire science supported his actual innocence claim. Defendant then asserted that the State should be ordered to provide defendant with evidence regarding the new developments in fire science, including a copy of NFPA 921: Guide for Fire and Explosion Investigations (Nat. Fire Protection Ass'n 2017 ed.) (NFPA 921). Defendant also filed a free-standing motion for discovery, requesting a copy of NFPA 921. 2 Defendant asserted that he *544 *1077 was unsuccessful in obtaining the discovery on his own. Defendant claimed that the publication was essential to his actual innocence claim. According to defendant, "NFPA 921's explanations of non-arson causes for multiple non-communicating fires can probably make sense of the two fires in the instant case, eliminating defendant as the arsonist, and proving defendant is an innocent man."
¶ 11 Ultimately, the circuit court denied defendant's motion to reconsider. The court also denied defendant's free-standing motion for discovery on the basis that defendant failed to provide any legal authority to support the motion.
¶ 12 II. ANALYSIS
¶ 13 For clarity, we note that defendant frames his argument on appeal by claiming that the circuit court erred in denying his pro se motion for leave to file a successive postconviction petition and his free-standing motion for discovery. However, defendant does not ask this court to reverse the denial of his motion for leave to file a successive postconviction petition. Instead, defendant asks for the cause to be remanded "for the limited purpose of allowing the trial court to exercise its discretion on defendant's discovery request and for such further proceedings as may be warranted." While defendant condenses the court's rulings on each motion into a single argument, we discuss each motion (for leave to file a successive postconviction petition and for discovery) separately.
¶ 14 First, defendant contends that the circuit court should have allowed him leave to file a successive postconviction petition because his allegations sufficiently alleged a colorable claim of actual innocence. Alternatively, defendant contends that his motion for leave to file a successive postconviction petition sufficiently alleged cause and prejudice. Specifically, defendant contends that developments in fire and arson forensic science after his trial call into question the reliability of the State's forensic expert's testimony as to the cause of the fire.
¶ 15 Initially, we note that defendant's entire argument on this issue is based on NFPA 921. That publication was not included in either defendant's motion for leave to file a successive postconviction petition or his proposed successive postconviction petition. In fact, defendant did not reference NFPA 921 at all in his argument. As he did not include this information in his proposed successive postconviction petition, it is not properly before this court.
People v. Anderson
,
¶ 16 There are two ways a defendant may obtain leave of court to file a successive postconviction petition. First, a defendant must establish cause and prejudice for the failure to raise the claim earlier.
People v. Pitsonbarger
,
*545 *1078 ¶ 17 Here, defendant's claim failed to identify the evidence that he believed was unreliable, how fire and arson forensic science had changed since his trial, how the new developments affected the fairness of his trial, or how these developments demonstrated his innocence. Defendant's claim also lacked any documentary support. At best, defendant merely speculated that possible changes in fire and arson forensic science may have affected the outcome in his case. Defendant, therefore, failed to satisfy the cause and prejudice standard and the actual innocence standard. Thus, the circuit court did not err when it denied defendant's motion for leave to file a successive postconviction petition.
¶ 18 Having found that the court did not err when it denied defendant leave to file a successive postconviction petition, we turn to defendant's argument that the court erred in denying his free-standing motion for discovery. In the motion, defendant sought to obtain NFPA 921 (which defendant's appellate counsel has now obtained and discussed at length in his appellate brief), which he claimed was essential to his successive postconviction argument. Defendant contends that the court erred when it denied the motion for discovery based on defendant's failure to provide statutory authority allowing discovery. Therefore, defendant asks this court to remand the matter to exercise its discretion and rule on the motion. Because defendant filed his motion for discovery after the circuit court denied defendant leave to file a successive postconviction petition, we find the discovery request was untimely.
¶ 19 Both parties agree that the circuit court has inherent authority to order discovery in postconviction proceedings following a hearing for "good cause shown."
People ex rel. Daley v. Fitzgerald
,
¶ 20 Once a motion for leave to file a successive postconviction petition is denied, a defendant can either file a motion to reconsider or challenge the denial on appeal.
People v. Blair
,
¶ 21 Here, defendant's belated request for discovery was procedurally improper. Defendant's motion sought to
obtain
evidence that he speculated
may
support his successive postconviction claims. Simply put, this is not the purpose of a motion to reconsider. Moreover, the information defendant
*1079
*546
requested was not newly discovered, as he was aware of the materials he sought at the time he filed his motion for leave to file a successive postconviction petition. See generally
People v. English
,
¶ 22 Even if we were to find that the circuit court had discretion to rule on defendant's belated discovery motion, we find that remand is unnecessary in this case. Defendant's appellate counsel is in possession of NFPA 921, as he has thoroughly reviewed its contents in his appellate brief. Defendant's appellate counsel can provide defendant with this information. Should defendant choose to file a new motion for leave to file a successive postconviction petition, he can incorporate NFPA 921 into his pleadings.
¶ 23 In reaching our conclusion, we reject defendant's reliance on
Pinkston
,
¶ 24 Unlike the defendant in Pinkston , defendant here requested discovery after the circuit court denied his motion for leave to file a successive postconviction petition. This procedural distinction is significant. As noted above ( supra ¶ 19), the proceedings in this case were completed prior to the filing of the motion for discovery. Discovery at this stage of the proceedings would not affect the court's denial of defendant's request for leave to file a successive postconviction petition. Defendant in Pinkston , by contrast, filed his motion for discovery while his pro se postconviction petition remained pending. See 725 ILCS 5/122-5 (West 2016). In other words, the circuit court in Pinkston had not yet made a determination on defendant's postconviction petition.
¶ 25 III. CONCLUSION
¶ 26 The judgment of the circuit court of Kankakee County is affirmed.
¶ 27 Affirmed.
Presiding Justice Schmidt and Justice Lytton concurred in the judgment and opinion.
Defendant raised other claims in his proposed successive postconviction petition. However, defendant does not make any argument that these claims have merit in this appeal. We will not address the points not argued by defendant on appeal. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
Defendant's motion to reconsider and motion for discovery also raised other issues which are not challenged on appeal. Therefore, we do not address those contentions. See Ill. S. Ct. R. 341(h)(7) (eff. Nov. 1, 2017).
Reference
- Full Case Name
- The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Bernon L. HOWERY, Defendant-Appellant.
- Cited By
- 3 cases
- Status
- Unpublished