Appeal from the Circuit Court of Cook County Honorable Thomas Hennelly, Judge Presiding. No. 95 CR 11719
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion.
Presiding Justice Lavin and Justice Salone concurred in the judgment and opinion.
Defendant Gerald Lofton was charged by indictment with two counts of first degree murder in the shooting death of Anthony Williams. Lofton's first trial resulted in a hung jury. Following a second jury trial, Lofton was found guilty of first degree murder. The circuit court sentenced Lofton to 50 years in prison. On direct appeal, this court affirmed the conviction (People v. Lofton, No. 1-97-3486 (1999) (unpublished order under Supreme Court Rule 23)). Lofton filed a pro se post-conviction petition in July 2000. The circuit court's dismissal of this petition was affirmed by this court on September 19, 2002 (People v. Lofton, No. 1-00-2980 (2002) (unpublished order under Supreme Court Rule 23)) . Lofton filed a second pro se post-conviction petition on April 16, 2004. Lofton was appointed counsel, and a supplemental petition was filed on October 27, 2008. The circuit court granted the State's motion to dismiss the petition on December 18, 2009. On appeal, Lofton contends that the circuit court erred in granting the motion to dismiss where the petition contained a claim of actual innocence based on newly discovered evidence and the court erroneously applied the cause-and-prejudice test to this claim. For the reasons that follow, we reverse the judgment of the circuit court and remand for a third-stage evidentiary hearing.
On March 20, 1995, Williams and his father, Carl Fisher, were walking south on Princeton Avenue in Chicago near 113th Street when they were attacked by a group of young men. Two shots were fired at Williams, killing him, and the group then scattered. Officer Kevin Williams and his partner were standing outside their squad car a short distance away and heard the shots. They then saw approximately 10 to 12 young men running from the direction where they heard the gunshots. Officer Williams went to the scene and saw Williams on the ground in a pool of blood. The only other person still in the area was Fisher. Officer Williams asked Fisher if he knew who had shot his son, and Fisher told him yes. Fisher gave Officer Williams the name of "Little Anthony."
At a hearing on defense counsel's motion to suppress the arrest before Lofton's first trial, Officer Williams confirmed that on the police report he generated after the incident, he wrote that Williams was shot by Little Anthony. Officer Williams testified that he later discovered that Little Anthony went by the name of Antonio Fountain. Officer Williams said that Fisher did not mention Lofton. Officer Williams testified that he wrote "AKA Gerald Lofton" next to Fountain's name on the report because he later overheard Norman Moss, who was being questioned by police at the station in connection with the incident, tell another officer that Lofton was the shooter. Officer Williams said that he initially assumed that Lofton and Fountain were the same person.
At the second trial, Fisher testified that on March 20, 1995, his son was visiting him. At approximately 5 p.m., Fisher left his house with his son to walk him back to his own residence a few blocks away. They were walking southbound on Princeton and Fisher said that he heard someone coming up behind them. He turned and saw a group of four or five young men walking toward them at a fast pace. Fisher said that he knew his son was in a gang and he knew about the different gang territories, so he told his son that they were coming for him and to get out of there. Fisher recognized one of the young men in the group as someone he knew from the neighborhood as Little Anthony. The group attacked them and Fisher and Williams fought back. During the attack, Fisher was fighting with two of the young men and he stepped back and fell over the curb. As he was getting back up, he heard someone say, "Where is the nine, where is the nine?" Fisher said that he looked for his son and saw Lofton with a gun in his hand, hitting Williams with it. Fisher shouted, "No, don't do it!" He then heard two shots and the group scattered. Fisher saw Little Anthony running across the street with the gun in his hand. His son was on the sidewalk and he ran to him, but Williams was unresponsive. Fisher started shouting for help.
The police arrived and a short time later, some young men were brought
to the scene in the back of a police car. Fisher identified Moss, who
was in the police car, as one of the men
who had attacked them. Fisher had initially given the police
the name of Little Anthony and he later took the police to Little
Anthony's mother's house. Fisher then went to the police station and
was shown a book with some photos in it. He was subsequently asked by
the detectives to view a lineup. Fisher said that at first he did not
want to identify anyone in the lineup because he and his family lived
in the neighborhood and he was afraid for his family's safety. He said
that when he first viewed the lineup, he recognized Lofton as the
person who shot his son but he did not say anything because he was
afraid. The detectives had him view the lineup a second time and he
identified Lofton as the person who shot his son.
On cross-examination, Fisher denied telling Officer Williams at the scene that Little Anthony was the person who shot his son. He acknowledged that Officer Williams asked him who shot his son, but he said that he did not tell Officer Williams who had done it, nor did he give him a description of the person at that time. He said that he did not describe the shooter at the scene as being a male black, 16 to 17 years old and about 5 feet 1 inch in height. He said that he later gave a similar description to the police of the shooter, but he said that the shooter was about his height, 5 feet 9 inches, or a little taller. Fisher was also asked if he knew the names of the two young men who were fighting with him. He responded that he did not know at that time but learned later that Moss and an individual named Robert Foster were the ones who were attacking him.
Detective George Karl testified that he put together the lineup containing Lofton and brought Fisher in to view the lineup. Detective Karl said that as soon as Fisher looked at the lineup participants, he started shaking and crying. Detective Karl asked Fisher if he wanted to continue and Fisher said that he was scared to death. When asked if he knew anyone in the lineup, Fisher said he did, but he could not say because he was scared for himself and his family. Detective Karl then had Fisher step out of the lineup viewing area and waited until he calmed down. Detective Karl told Fisher that the police would protect his family and relocate them if necessary, and Fisher agreed to go back into the lineup room. As soon as they went back into the lineup viewing area, Fisher identified Lofton as the person who shot his son.
Detective Karl testified that on April 8, 1995, he took a number of photographs to Fisher and asked if he could identify anyone in the photos. Fisher identified Fountain as Little Anthony, the person who participated in the attack, struck his son, and ran off with the gun after the shooting. He also identified Flomont Johnson as someone he knew from the neighborhood, but he said that Johnson did not participate in the attack and he did not see him in the area at the time. He did not know the identity of anyone else in the photographs. One of the photographs was of Foster, and the remaining photographs were fillers.
Officer Davis testified that he and his partner were in the area at the time of the shooting and responded to a call of shots being fired. A description was given that several young men were running north on Princeton and that one was wearing a red jacket or coat. The officers proceeded down 112th Street and observed two young men running north from Princeton, one of whom was wearing a red coat. They stopped the two men, searched them, and took them to the crime scene. When they arrived at the scene, Officer Davis got out of the car to speak to his supervisor. Fisher ran over to the squad car, shouting that one of the individuals in the back of the car was at the scene, and tried to get into the car to go after the individual. Officer Davis later learned that the person Fisher was trying to get to was Moss. The ...