Court of Appeals of Illinois, First District, Third Division
The trial court erred in summarily dismissing defendant’s pro se postconviction petition alleging that his counsel was ineffective in failing to call defendant’s girlfriend as an alibi witness in his prosecution for first degree murder arising out of an aggravated vehicular hijacking under an accountability theory, since his petition was supported by his girlfriend’s signed and notarized affidavit and corroborated defendant’s trial testimony that he did not facilitate the offense, but merely told the perpetrator where he could find the vehicle.
Appeal from the Circuit Court of Cook County, No. 04-CR-11843; the Hon. Clayton J. Crane, Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Todd T. McHenry, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Douglas P. Harvath, and Peter Maltese, Assistant State's Attorneys, of counsel), for the People.
Presiding Justice Hyman and Justice Pierce concurred in the judgment and opinion.
¶ 1 Defendant Reco Wilson appeals the summary dismissal of his pro se postconviction petition. On appeal, Wilson contends that his petition, supported by a signed and notarized affidavit of an alleged alibi witness, presents an arguable claim that trial counsel provided ineffective assistance where counsel failed to call that witness. Accordingly, Wilson contends that his petition should advance to the second-stage proceedings with appointment of counsel. For the reasons that follow, we reverse and remand for further postconviction proceedings.
¶ 2 BACKGROUND
¶ 3 In simultaneous but severed bench trials in 2008, Wilson and codefendant Marcel Milton were convicted of first degree murder in the shooting death of Deon Gardner. The State presented evidence that Milton fatally shot Gardner on March 22, 2004, during the course of an aggravated vehicular hijacking. Wilson was convicted on an accountability theory for calling Milton and informing him of the vehicle's location, knowing that Milton was armed with a gun.
¶ 4 On March 17 or 18, 2004, Wilson approached Sergio Wray on the street and asked if he could move a car for him. Wray agreed and Wilson then drove him to the area near 78th Street and South Shore Drive and handed him the keys to a silver Jeep Grand Cherokee that Wilson and Milton had stolen earlier from an Alamo car rental facility. Wilson told Wray to follow him in the Jeep to 77th Street and Yates Boulevard, but after losing sight of Wilson's vehicle, Wray decided to keep the Jeep.
¶ 5 On the evening of March 22, 2004, Wray was watching movies with Lamar Murphy and Deon Gardner at Murphy's apartment at 6926 South Michigan Avenue. Around 9 p.m., Wray asked Murphy to drive him and Gardner in the Jeep to Gardner's house to get more movies. As they pulled away from the curb, a white car traveling the wrong way on Michigan Avenue approached the Jeep and stopped. Milton exited the passenger's seat of the white car, pulled out a gun and ordered the men out of the Jeep. Milton fired two shots at Murphy and Wray as they exited through the driver's door and ran. Milton then got into the driver's seat and ordered Gardner, who was in the backseat, to exit the Jeep. As Gardner exited the vehicle, Milton shot him once in the back and then twice after he had fallen to the ground.
¶ 6 Evidence introduced at trial, including an inculpatory videotaped statement by Wilson,  showed that earlier that day Wilson saw the Jeep near 69th and Cottage Grove. Wilson contacted Milton on his cell phone and told Milton he was following the Jeep and that Milton should come with an extra set of keys to retrieve the vehicle. Wilson then called his cousin to give Milton a ride. Wilson followed the Jeep to 69th and Michigan, where he observed the occupants exit the vehicle and enter a building. In the videotaped statement, Wilson acknowledged that he knew Milton carried a gun in such situations and admitted that he thought Milton would bring a gun to retrieve the Jeep. He also stated that when he later called Milton on his cell phone to tell him to hurry, Milton stated that he had his "blow on [him]." Wilson stated that a "blow" was a gun. According to Wilson's statement, he observed Milton's arrival in the Jeep and his initial two shots at Murphy and Wray. As Wilson drove away, he looked in his rearview mirror and observed Milton shoot Gardner once as he exited the Jeep and twice as he lay on the ground.
¶ 7 Wilson testified at trial and, contrary to his videotaped statement, claimed that he did not observe Milton shoot Gardner. Wilson testified that he was with his girlfriend, Tiffany Taylor, and her children at a McDonald's when he saw the Jeep drive by. He stated that Taylor was with him in the car when he called Milton and drove to the area of 69th and Michigan, and that they left before Milton ...