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People v. Simon

Court of Appeals of Illinois, First District, Fifth Division

December 5, 2014

DAMON SIMON, Defendant-Appellant

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Appeal from the Circuit Court of Cook County. No. 06 CR 20692. The Honorable Frank Zelezinski, Judge Presiding.


The trial court's denial of leave for defendant to file a successive postconviction petition was affirmed by the appellate court, notwithstanding defendant's contentions that his petition presented a claim of actual innocence founded on an affidavit of a key prosecution witness and that he showed the requisite cause and prejudice for failing to raise several claims with respect to the ineffectiveness of his counsel in his prior pleadings, since no viable claim of actual innocence was set forth in the successive petition and even considering the petition pursuant to the more lenient standard applicable to an initial postconviction petition, the claim of ineffective assistance of counsel lacked any basis.

For APPELLANT: Michael J. Pelletier, State Appellate Defender; Alan D. Goldberg, Deputy Defender; Kathleen Week, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, Illinois.

For APPELLEE: Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Peter D. Fischer, Assistant State's Attorneys, Chicago, Illinois.

JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Reyes concurred in the judgment and opinion.



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[¶1] Following a bench trial, defendant Damon Simon was convicted of first degree murder for the shooting death of Robert Hill and sentenced to 50 years in the Illinois Department of Corrections. Defendant filed a direct appeal and, while the appeal was pending, filed a pro se petition for postconviction relief that was summarily dismissed at the first stage of the proceedings. We affirmed the trial court in both defendant's direct appeal ( People v. Simon, 2011 IL App. (1st) 091197, 953 N.E.2d 1, 352 Ill.Dec. 65) and in his appeal from the dismissal of his postconviction petition ( People v. Simon, 409 Ill.App.3d 1159, 377 Ill.Dec. 750, 2 N.E.3d 666 (2011) (unpublished order under Supreme Court Rule 23)). Defendant subsequently filed another petition for postconviction relief, raising additional claims, including a claim of actual innocence. The trial court denied defendant leave to file the petition, finding that defendant had not demonstrated the cause and prejudice required for successive postconviction petitions. Defendant appeals, and we affirm.


[¶3] The evidence at trial has been described twice before by the appellate court, in our opinion affirming the trial court on direct appeal ( People v. Simon, 2011 IL App. (1st) 091197, 953 N.E.2d 1, 352 Ill.Dec. 65) and in our order affirming the dismissal of defendant's first postconviction petition ( People v. Simon, 409 Ill.App.3d 1159, 377 Ill.Dec. 750, 2 N.E.3d 666 (2011) (unpublished order under Supreme Court Rule 23)). Those prior orders are incorporated here by reference, and the facts will be described only as needed for the resolution of the issues now before us.

[¶4] I. Trial

[¶5] On August 14, 2006, defendant was arrested and subsequently indicted for first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) for the July 21, 2006, shooting death of Robert Hill (the victim). In his answer to the State's motion for pretrial discovery, defendant stated that he would assert the affirmative defense of self-defense. Defendant waived a jury trial and proceeded with a bench trial on November 12, 2008.

[¶6] During the State's case-in-chief, the State presented four witnesses who testified to the circumstances of the shooting. Aaron Jackson testified that he was attempting to purchase marijuana from defendant, who was sitting in the passenger seat of a vehicle parked in the parking lot of Corona's Food Mart in Calumet Park, when defendant turned to reach behind his seat. Defendant turned around quickly to face forward, looking surprised, and left the vehicle, removing a gun from his waistband. Jackson observed the victim approaching, riding a bicycle in the direction of the vehicle. Defendant walked up to the victim, pointing the gun at him. Jackson heard defendant tell the victim, " talk that shit now," to which the victim responded " what, what," while holding up his hands with his palms facing out; the victim was not holding anything in his hands and appeared surprised. Defendant stood in place and shot the victim twice. After Jackson observed defendant shoot the victim, Jackson " [t]ook off," but heard an additional four gunshots. Jackson later testified that after the shooting, he observed defendant " tak[ing] off" in the vehicle.

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[¶7] Anthony Green testified that approximately five minutes before the shooting, he was standing with defendant in front of the home of the victim's girlfriend, Star Gardner. Green observed the victim come out from the home with a handgun in his back pocket. When defendant observed the gun, he " disappeared." Green ran up to the victim and told him to put the gun away because both the victim and defendant were Green's friends and he did not want to see either killed. The victim then went back to Gardner's home; when he emerged from the home, Green no longer observed the gun.

[¶8] Green testified that he had observed the victim " pistol-whip" defendant several days before the shooting. Green also testified that he had heard about the victim previously shooting defendant and when the State objected, the trial court sustained the objection.

[¶9] After speaking with the victim, Green left to find defendant and went to Corona's Food Mart, located a block from Gardner's home, to purchase a beverage. Green encountered defendant inside the store and they had a conversation as they walked from the store to a vehicle in the parking lot in which a man unknown to Green was sitting in the driver's seat; defendant entered the vehicle. Green spoke to defendant through the vehicle's passenger window when defendant pushed Green back and drew a gun. Green backed up, turned around, and observed the victim on a bicycle. Defendant opened the door, left the vehicle, and fired at the victim while he was on the bicycle. Green testified that once he observed the victim being shot the first time, " it was like, I blanked out."

[¶10] The State questioned Green about a statement that Green gave to a police detective a few days after the shooting; Green acknowledged making the statement, but could not recall the date because he " [u]sed a lot of drugs." In the statement, Green stated that the victim did not have a weapon and never moved toward defendant. Green testified that while the statement included that assertion, " to be realistic, I didn't know what the hell was going on." He acknowledged that he signed the page and was allowed to make corrections but " I can't barely even read cursive, so I don't know how I can correct something that [the detective] wrote." However, Green admitted that there were several places within the statement where he had made corrections.

[¶11] Green testified that after the victim was shot, Green was in shock and backed up, leaving the scene. He did not observe defendant entering the vehicle and leaving. The State read from Green's statement that Green was attempting to leave the scene when he observed defendant in a vehicle and heard defendant yell " GDK," which Green knew to mean " Gangster Disciple killer." After hearing the statement, Green testified that defendant " jumped in the car[, rode] past and said it to me, GDK." Green later testified that the yell could have come from defendant or from another member of the Black P Stones named Mooney[1] who was nearby. Green testified that he was a Gangster Disciple with the victim, but that there were no other Gangster Disciples in the area of the shooting. Green later testified that there were people near the victim when he was riding his bicycle toward defendant, and the people were the same ones who had been present when the victim had pistol-whipped defendant.

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[¶12] Green testified that he observed defendant shooting the victim once, after which " it was over for me." The State read from Green's statement that once defendant shot the victim once or twice, the victim " went down," and defendant stood over the victim, shooting him " maybe five or six or seven times altogether." During cross-examination, the defense questioned Green about the assertion in the statement, and Green testified that the statement could not be true because the gun could not have held that many bullets. Green further testified that the detective taking his statement did not write down " the majority of what the truth was or what I had to say," but admitted that most of the assertions in the statement were true; while still under cross-examination, Green later testified that the assertions in the statement were not true but then admitted during redirect examination that he had reviewed the statement shortly before trial and told the State's Attorney the statement was true. During cross-examination, Green testified that he was considered a suspect at the time he gave his statement to police and heard the detective's account of what had occurred prior to giving his statement. He testified that he signed the statement because he was in fear of being sent to jail and that he had been in the holding cell of the Calumet Park police department for three days without being given food or water before signing the statement. Green also testified that he was unable to read the majority of the statement.

[¶13] After Green's testimony, the State called Eric Celauro, a former assistant State's Attorney who worked in the Cook County State's Attorney's office on July 25, 2006, to testify about his interview with Green and the circumstances under which the statement was obtained. Celauro was contacted by two detectives from the Calumet Park police department about interviewing Green. The interview took place in the State's Attorney's office and Celauro, Green, and the two detectives were present. Celauro informed Green that he could either write a statement himself or Celauro could write it for him, after which Green would check it for accuracy. Green requested Celauro to write the statement. The State then asked to publish the statement, and defense counsel objected. The court allowed the statement to be admitted into evidence and published, both for purposes of impeachment and substantively.

[¶14] In the statement, Green said that on the day of the shooting, he observed the victim leaving his girlfriend's house and further observed the handle of a gun protruding from the victim's back pocket. Since Green knew the victim well, he told the victim to " cool out" and put the gun away because there were children nearby. At the time, defendant was outside, one building away, and at some point, defendant went inside.

[¶15] A short time later, as Green left Corona's Food Mart after a brief visit, he observed defendant sitting in the passenger seat of the vehicle and walked over and spoke with defendant. Green observed a handgun in defendant's lap. Defendant looked around Green " like he saw someone," and Green turned and observed the victim on a bicycle. Defendant pushed Green away and exited the vehicle. Defendant was a few feet from the victim and walked toward him with a pointed gun. Green did not observe the victim with a weapon and the victim never moved toward defendant. The victim attempted to get off of his bicycle as defendant " got right up on him" and said something like, " what's that shit you was talking about." The victim laid his bicycle on the ground and stood with his hands in the air, saying something like, " are you going to do this in

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broad daylight," and partially turned his back on defendant.

[¶16] Defendant began shooting the victim from a foot or two away. After the first or second shot, the victim " went down" and defendant stood over him and continued shooting " maybe five or six or seven times altogether." Green said that at some point, Jackson or someone named Mooney[2] had ridden in on a bicycle and observed the scene as well. Green attempted to walk away from the scene and observed defendant " jump" into the vehicle and drive away, yelling " GDK" from the vehicle, which meant " Gangster Disciple killer."

[¶17] Also in response to Green's testimony, the State called as a witness Dan Maloney, an assistant Cook County State's Attorney who was a witness to a conversation between one of the prosecutors, Shital Thakkar, and Green on November 12, 2008, during defendant's trial. Maloney testified that Green did not want to be involved and did not know why he was " locked up," after which Thakkar explained to Green that he was arrested and held pending his testimony at trial due to a warrant issued after he did not appear in court after being subpoenaed. Thakkar told Green that he would review Green's statement with him and, if something was untrue, Green should inform Thakkar. Thakkar took Green's handwritten statement and read it to Green, asking every few sentences if the statement was true; Green responded to each question that the statement was true. Green began laughing when Thakkar read the assertion regarding defendant yelling " GDK" and said something to the effect of " it was just funny; I can't believe he said that" ; Green acknowledged remembering the incident.

[¶18] The State additionally called Antrelle Clayborn as a witness, who testified that on July 21, 2006, he was driving his automobile when he received a cell call from defendant. Defendant told Clayborn that he had just observed Clayborn driving down the street and asked Clayborn to pick him up in the alley behind defendant's house. Clayborn complied and defendant entered Clayborn's vehicle with a 40-ounce beer and began talking about an incident that had occurred between defendant and someone else. Clayton also stated that " [defendant] said it was somebody on the front that he thought had a gun who was going to shoot him," but the court sustained the State's objection on hearsay grounds.

[¶19] Defendant asked Clayborn to drive to Corona's Food Mart. Clayborn parked the vehicle and defendant exited the vehicle and entered the store while Clayborn waited. Defendant exited the store four or five minutes later and entered the vehicle. Anthony Green walked up to the passenger side of the vehicle and spoke with Clayborn.

[¶20] Clayborn testified that the victim came " riding up" on his bicycle, not riding at a fast speed, and was riding toward the store, which was in the same direction as the vehicle; Clayborn opined that " [h]e wasn't never close to us or nothing." The victim was alone when he entered the parking lot.

[¶21] Clayborn testified that defendant lifted his shirt and Clayborn observed the handle of a handgun in defendant's waistband and defendant told Green to move out of the way so that defendant could open the door. Defendant jumped out of the vehicle while pulling out his gun, " said

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a few words" that Clayborn was unable to hear, and shot the victim while he was still on his bicycle. Clayborn was able to see both of the victim's hands when he was riding up to the store and testified that both of his hands were on the handlebars of the bicycle and he was not holding anything else; Clayborn further testified that the victim's hands never left the handlebars.

[¶22] Clayborn was preparing to leave after the shooting when defendant opened the door and jumped into the vehicle. Defendant told Clayborn that the victim ...

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