Appeal from the Circuit Court of Cook County, Illinois. No. 85 C 12403 Honorable Nicholas Ford,Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
JUSTICE MURPHY delivered the opinion of the court.
On November 25, 1986, following a jury trial, defendant was found guilty of one count of first degree murder and one count of attempted murder. Defendant was sentenced to consecutive terms of 40 and 20 years' imprisonment, respectively. In 1988, on direct appeal, this court affirmed defendant's convictions and sentence. People v. Munoz, No. 1-87-0488 (1988) (unpublished order under Supreme Court Rule 23). On June 25, 2001, defendant filed a pro se post-conviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)). Defendant's petition was dismissed as frivolous and patently without merit because it was untimely and because our supreme court had found that Apprendi did not implicate consecutive sentencing concerns. On appeal, defendant's counsel filed a motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551, 95 L. Ed. 2d 539, 107 S. Ct. 1990 (1987). On July 30, 2002, this court granted the Finley motion and affirmed the trial court's dismissal of defendant's post-conviction petition. People v. Munoz, No. 1-01-3802 (2002) (unpublished order under Supreme Court Rule 23).
The instant appeal concerns defendant's October 2008 pro se motion for leave to file a successive post-conviction petition pursuant to section 122-1(f) of the Act. 725 ILCS 5/122-1(f) (West 2006). The trial court found that defendant failed to satisfy the cause-and-prejudice test and denied leave to file. The court opined that the allegations within defendant's successive post-conviction petition were entirely frivolous and patently without merit.
On appeal, defendant argues the trial court erred in denying his motion because he: (1) alleged the gist of an actual innocence claim supported by newly discovered evidence provided by the affidavit of Hermino Molina, an eyewitness to the shooting; (2) established cause and prejudice for his claim under Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), asserting that the State failed to disclose Molina as an eyewitness; and (3) established cause and prejudice for his claim that the trial court refused to question jurors on their attitudes toward gangs. Defendant also requests that this court vacate the $105 penalty assessed by the trial court pursuant to section 22-105(b) of the Illinois Code of Civil Procedure (735 ILCS 5/22-105(b)(1), (b)(4) (West 2006)). We find that defendant presented evidence of actual innocence to support further proceedings under the Act and we reverse the dismissal of defendant's motion for leave to file a successive post-conviction petition and vacate the imposition of filing fees and costs. This matter is remanded for further proceedings under the Act.
At defendant's trial, Bouvier "Bobby" Garcia testified to the events surrounding the shooting of September 8, 1985. Garcia testified that he and Ivan Mena arrived at a party at 1301 North Keeler Avenue, Chicago, Illinois, at about 10 p.m. on September 7, 1985. Garcia and Mena socialized at the party and Garcia had two cans of beer. At about midnight, Garcia saw defendant, whom he knew as "Scooby," arrive at the party with Ishmael Torres.
At around 3:30 a.m., Garcia observed an argument between defendant and "Junior," a member of the band that was playing at the party. The two were shouting at each other regarding a dispute over beer and they took their dispute outside. Garcia testified that he followed them outside and saw them engage in fisticuffs, with defendant ending up on top of Junior punching him. Garcia and Mena broke up the fight, with Mena grabbing defendant and Garcia grabbing Junior. They helped Junior get a ride home, talked with defendant and then left the party.
Garcia testified that he and Mena walked to Garcia's brother's house and then Mena's car for cigarettes. After retrieving the cigarettes, the two decided to return to the party and began walking back on West Potomac Avenue. Minutes before 4 a.m., Garcia saw defendant standing outside in front of 4218 West Potomac Avenue. He testified that he did not think anything of this until they were about 10 to 15 feet from defendant, when defendant fired three shots at them.
The first shot hit Mena, who fell to the ground. Garcia testified that he was hit in the left leg by the second shot and he fell to the ground. He then heard footseps retreating through a gangway and the clanging of a chain-link fence. Garcia crawled to Mena and tried to resuscitate him but was unsuccessful. He then crawled down the street to his house and banged on the window for his mother. Garcia was taken to St. Ann's Hospital and treated.
A couple of hours after his original treatment, Garcia was transferred to Swedish Covenant Hospital. Approximately a half hour after his transfer, police visited Garcia and questioned him about the shooting. Garcia testified that he told the police that he did not know who shot him and Mena. Garcia also told the police that he did not know what clothing the shooter was wearing or the type of firearm.
Garcia admitted that he lied to the police officers when first questioned. He testified that he truthfully identified defendant as the shooter on September 27, 1985, when the police came to his house and took him to the police station to view a lineup. At the station, Garcia told the police that the defendant was the shooter and identified defendant. Garcia testified that he was familiar with the Insane Unknowns street gang and did not originally identify defendant because he was afraid the gang would retaliate against his sister.
Lydia Mena testified that she heard shots fired at approximately 4:15 a.m. on September 8, 1985. She woke up and looked out her window and saw a body on the ground. She tried to call the police and then ran outside to find that the body on the ground was her son Ivan.
Migdalia Mena testified that at approximately 1 a.m. on September 8, 1985, she attended the party at 1311 North Keeler Avenue. She testified that she saw the fight between defendant and Junior and watched her brother Ivan and Garcia break up the fight. She testified after they calmed defendant down, she watched her brother and Garcia leave the party and walk toward her mother's house. She did not see the shooting.
Defendant presented the testimony of his parents, Illalus and Tellifo Munoz. Illalus, defendant's mother, testified that she was awake when defendant returned home at 3:30 a.m. on September 8, 1985. Illalus testified that she waited up for defendant to return home and checked the time on the clock radio when he arrived. Illalus told defendant that he was out too late and defendant then went to bed in the room he shared with his father, Tellifo. Tellifo testified that defendant arrived home at about 3 a.m. and after speaking with his mother, came to the bedroom and went to bed. Tellifo testified that defendant did not leave the apartment after going to bed.
Defendant testified on his own behalf. Defendant claimed that he did not shoot Garcia and Mena. Defendant denied having a dispute with either Garcia or Mena. Defendant denied being intoxicated, but admitted to having 12 cans of beer while at the party between 8 p.m. and about 3:00 a.m. Defendant testified that he got into the altercation with Junior when he asked him for a beer. He stated that Junior was drunk and asked him if he wanted to go out to the alley, and the two started to hit each other before Garcia and Mena broke up the fight.
Defendant testified that he stayed at the party with his friend Ishmael Torres. Torres left the party at about 3:20 a.m. because he was tired. Defendant walked home at that time. When he arrived home at about 3:25 a.m., his parents were awake and he talked to his mother and then his father, who was watching television, before going to bed. Defendant denied being a member of a street gang.
In rebuttal, the State presented the testimony of Evangelina Rivera, Ivan Mena's aunt, who lived at 1301 North Keeler Avenue. Rivera testified that she was outside her home near the sidewalk at about 4 a.m. on September 8, 1985, when she heard three gunshots. She ran into her house and upstairs before looking out her window. Rivera testified that she saw a group of three boys exiting the alley. Rivera identified defendant and Torres, whom she knew from the area, as part of the group. Rivera testified that she did not see any handguns and the men all had their hands in their pockets. Rivera admitted that she did not inform the police about what she had seen until the Friday before trial.
The State also called Officer Ernest Halvorsen in rebuttal. Halvorsen testified that he interrogated defendant and arrested him on September 26, 1985, for the shootings. Halvorsen also testified that during questioning, defendant told him that he was a member of the street gang the Insane Unknowns. The parties rested and the jury returned a verdict of guilty for both shootings.
Defendant's trial counsel was suspended from the practice of law before a motion for new trial was filed and new counsel prepared a motion, without the benefit of a transcript from the voir dire proceedings. The motion was denied. Defendant filed a direct appeal arguing that the State improperly introduced evidence of gang affiliation, defense counsel was ineffective for failing to move to bar that evidence, and that the trial court erred in imposing consecutive sentences. This court ...