Court of Appeals of Illinois, First District, Second Division
Rehearing denied December 16, 2016
from the Circuit Court of Cook County, No. 08-CR-3180; the
Hon. James B. Linn, Judge, presiding
Michael J. Pelletier, Patricia Mysza, and Pamela Rubeo, of
State Appellate Defender's Office, of Chicago, for
M. Alvarez, State's Attorney, of Chicago (Alan J.
Spellberg, Peter Fischer, and Whitney Bond, Assistant
State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE delivered the judgment of the court, with
opinion. Justices Pierce and Mason concurred in the judgment
1 After his conviction for first degree murder and robbery
was affirmed, Roman filed a pro se postconviction
petition. He alleged that the State violated his due process
rights under Brady v. Maryland, 373 U.S. 83 (1963),
by failing to disclose evidence showing the State allegedly
assisted two witnesses obtain citizenship and disability
benefits in exchange for their testimony. The trial court
dismissed the petition finding no Brady violation.
We determine Roman failed to present the gist of a
constitutional claim as he has not shown that the State
suppressed evidence material to the finding of his guilt or
to the punishment imposed on him.
3 The underlying facts are recounted in the opinion disposing
of Roman's appeal from conviction. People v.
Roman, 2013 IL App (1st) 102853. Here, we state only
those facts necessary to address the issues raised in this
4 Roman, his brother Martin, Adolfo Zuniga, and Carlos Lopez,
along with Roman's cousins Ismael and Omar Morales, were
charged with murder and robbery. The victim, a forklift
operator at a tortilla factory, was fatally beaten. Roman
elected a bench trial and was tried simultaneously with
codefendant Ismael Morales, whose case was heard by a jury.
Luis Fernando Garcia and his girlfriend, Sylvia Ortiz, who
lived in an apartment near the tortilla factory, witnessed
the incident from their apartment window. Initially reluctant
to talk to the police, Garcia and Ortiz went to the police
station a few days later, explained what they saw, and
identified Roman and his codefendants in photo arrays and in
a lineup. At trial, Garcia and Ortiz testified that they saw
the men pull the victim off the forklift and kick and punch
him, take his wallet, and drop a concrete rock on his head.
The State presented several other witnesses, including the
responding police officers, detectives who investigated the
murder, a forensic scientist, and the medical examiner.
5 The trial court found Roman guilty of first degree murder
and robbery and sentenced him to 35 years and 7 years
respectively, to be served concurrently. After this court
affirmed on direct review, Roman filed a pro se
postconviction petition alleging, in part, that the State
violated his due process rights by committing a
Brady violation. Specifically, Roman alleged that
the State failed to disclose a promise to help Garcia with
immigration and disability benefits issues in exchange for
his and Ortiz's cooperation. Roman attached to the
petition a letter from Assistant State's Attorney (ASA)
Andrew Varga to the Immigration and Naturalization Service
(INS) dated July 10, 2010. In the letter, ASA Varga wrote,
"I am writing to you in connection with Mr. Garcia's
citizenship application." ASA Varga explained that he
became acquainted with Garcia during the prosecution of five
men for first degree murder because Garcia was an eyewitness
to the murder. Varga wrote:
"Mr. Garcia's cooperation with the Chicago Police
Department and Cook County State's Attorney's Office
personnel investigating the case was instrumental in the
arrest and eventual charging of the offenders. Subsequently,
Mr. Garcia has testified in the jury trials of the juvenile
offender, two of the adult offenders and in a bench trial of
a third adult offender. All four were convicted of First
Degree Murder. It is anticipated that Mr. Garcia will be
called to testify at the trial of the remaining twoadult
offenders. It is our expectation that those offenders will go
to trial by early 2011."
6 In response to an impound order filed by Roman's
appellate attorney, the letter was impounded on April 27,
2011, and was part ...