Appeal from the Circuit Court of Kane County. Honorable Timothy Q. Sheldon, Judge, Presiding. No. 96-CF-1191
The opinion of the court was delivered by: Justice Schostok
JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
Justices Zenoff and Burke concurred in the judgment and opinion.
The defendant, Lorenzo Gonzalez, appeals from the December 28, 2008, order of the circuit court of Kane County denying his post-conviction petition following an evidentiary hearing. On appeal, the defendant argues that he is entitled to a new trial based on newly discovered evidence of his actual innocence. Alternatively, the defendant argues that he is entitled to a new trial because trial counsel was ineffective in failing to call an alibi witness to testify at trial. We affirm.
On July 16, 1996, the defendant, along with a co-defendant, James Lewis (Lewis), was indicted in connection with the murder of Ralph Stadler in Aurora, on January 15, 1996. The defendant and Lewis were tried separately. On December 5, 1997, following a jury trial, the defendant was found guilty of first degree murder and was sentenced to 33 years' imprisonment. On October 7, 1999, this court affirmed the defendant's conviction and sentence on direct appeal. See People v. Gonzalez, No. 2-98-0572 (1999) (unpublished order under Supreme Court Rule 23) (Gonzalez I).
The facts necessary for an understanding of the disposition of this appeal are as follows. Stadler had been found by his son-in-law, Greg Zanis, around 1 p.m., at 610 Jungels Street in Aurora, a residence from which Stadler conducted business related to various rental properties that he owned. Stadler had been shot in the face. One of the rental properties owned by Stadler was located at 561 North Root Street in Aurora. Jennifer Lewis (Jennifer), who was Lewis's sister, and Steve Klingel, Jennifer's boyfriend, rented an apartment in this building. Lewis occasionally stayed at the apartment and the defendant visited him at the apartment.
At trial, Jennifer's neighbor, Irma Rodriguez, testified that sometime between 11 a.m. and 1 p.m. on January 15, 1996, she and her daughter, Sonia Garcia, saw Lewis and the defendant standing in the driveway talking to Greg Zanis. Esmerelda Avila testified that she lived six houses west of Stadler's rental office. Between 11:15 a.m. and 11:45 a.m. on January 15, 1996, she looked out her window and saw what she described as two "young kids" running across Jungels Street. Garcia and Avila testified as to the clothing worn by the individuals they observed. The clothing they described was very similar. William Jeffers, an investigator with the Aurora police department, testified that the victim's wallet was found within a block of the defendant's home.
Both Klingel and Jennifer testified at the defendant's trial. Klingel testified that around 11:30 a.m. on January 15, 1996, he was working, as a tow-truck driver, when he received a page from Jennifer. When he called her back, Jennifer told him that Lewis had called her and said that he and the defendant had just robbed Stadler and had shot him to death. Approximately 30 minutes after his conversation with Jennifer, Klingel was towing a car when he saw the defendant's car drive by. Klingel motioned to the defendant. The defendant stopped his car and came over to Klingel's tow truck. Klingel asked the defendant, "what the hell you guys did?" The defendant responded that "we shot that mother f***er and got a few hundred bucks." Based on what Jennifer had told him, Klingel knew that the defendant was referring to Stadler. However, he did not go to the police.
Klingel testified that he finally went to the police on June 21, 1996. On the day he went to the police, he was on conditional discharge for misdemeanor theft and was also supposed to be in court on some pending felony charges. He was eligible for consecutive prison sentences totaling 14 years in connection with those felony charges, and a petition to revoke his conditional discharge was pending. However, in exchange for his testimony, the State's Attorney dismissed the felony charges and the petition to revoke his conditional discharge.
Jennifer testified that on January 15, 1996, Lewis and the defendant had been at her apartment around 9 or 10 a.m. and left in the defendant's car to get cigarettes. Jennifer further testified that, a few weeks after the murder, she spoke to the police at her apartment, but she did not reveal all that she knew. She next spoke to the police on June 21, 1996, after Lewis had been arrested. The parties then presented a stipulation concerning what Jennifer had told the police on June 21, 1996. According to the stipulation, Jennifer told the police that Lewis had called her around 11:30 a.m. on January 15, 1996, and said that he needed to talk to Klingel about something serious. When Jennifer asked what Lewis was talking about, he told her that she did not have a landlord anymore. When Jennifer asked what he meant, Lewis said that he had killed him. Jennifer then paged Klingel, and when he called her back, she told him what Lewis had said.
Investigator Marshall Gauer of the Aurora police department testified that he had interviewed the defendant at the Kane County jail on June 22, 1996. The defendant denied being at Klingel's apartment the morning of the murder, saying that he usually slept until noon. The defendant also denied knowing Stadler or being involved in Stadler's murder.
The Honorable John L. Petersen testified that he is a judge in the Sixteenth Judicial Circuit and, on June 23, 1996, had presided at the bond hearings for the defendant and Lewis. Although the bond hearings for the defendant and Lewis were held separately, the two made eye contact with one another during the transition between their hearings, and one said to the other, "You tricked on me," to which the other replied, "No, you tricked on me." Pam Monaco, an assistant State's Attorney who was also present at the bond hearing, testified that, as defendant was being led out of his bond hearing, Lewis was being brought into the room. The two made eye contact and defendant said to Lewis, "You tricked on me." Lewis replied, "No, you tricked on me and I'm going to get you."
The defendant did not testify on his own behalf and did not present any evidence. During its deliberations, the jury had multiple questions for the trial court and at one point all 12 jurors stated to the trial court that they did not feel further deliberations would lead to a verdict. However, the trial court ordered the jury to continue deliberating. ...