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People v. Gonzalez

Court of Appeals of Illinois, First District, Second Division

December 27, 2016

TONY GONZALEZ, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 98 CR 23340 The Honorable Vincent M. Gaughan, Judge Presiding.

          Justice Mason concurred in the judgment and opinion.



         ¶ 1 Petitioner Tony Gonzalez appeals from the trial court's second-stage dismissal of his amended petition for postconviction relief brought pursuant to the Postconviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). Gonzalez asks this court to reverse the dismissal of his amended postconviction petition asserting claims of actual innocence and a Brady violation, and requesting remand for a third-stage evidentiary hearing.

         ¶ 2 BACKGROUND

         ¶ 3 Following a 1999 jury trial, Gonzalez was convicted of one count of first degree murder and two counts of attempted murder. Before trial, petitioner moved to suppress the identification testimony of two State witnesses, Luis Marrero and Yesenia Rodriguez, asserting that the lineup composition was suggestive. The trial court denied the motion. On appeal, this court reversed Gonzalez's convictions and remanded for a new trial based on the submission of an erroneous jury instruction regarding the evaluation of eyewitness identification testimony. People v. Gonzalez, 326 Ill.App. (3d) 629 (2001).

         ¶ 4 The following is a summary of the evidence outlined in our order affirming Gonzalez's conviction following his 2003 trial. People v. Gonzalez, No. 1-03-1286 (2006) (unpublished order under Supreme Court Rule 23). On July 23, 1998, Marrero, Hector Rivera, and Waldemar Nieves spent the evening drinking at a bar in the Humboldt Park neighborhood in Chicago. In the early morning hours of July 24, they left the bar and went to Nieves' house a block away. Nieves went to bed but Marrero and Rivera stayed with Nieves' 15-year-old sister, Rodriguez, who had been dating Marrero for two months, and Illuminata Nieves, Rodriguez's mother. Marrero left the apartment twice to buy more alcohol. Rodriguez and Marrero left the apartment at 2 a.m., arguing about Marrero's excessive alcohol consumption. They were standing at the corner of the apartment building when a man with a gun came out of the alley and shot at them, hitting Marrero twice.

         ¶ 5 Marrero testified that when he and Rodriguez were arguing in the alley, he was facing Rodriguez and had his back to the gunman, who shouted "Jiver killer." Marrero turned around and faced the gunman who had a t-shirt on the top of his head. When Marrero was shot, he fell to the ground, facing the shooter, and was shot a second time. The man ran into the apartment building.

         ¶ 6 Inside the apartment, the gunman shot Rivera and Illuminata, then returned to the alley and shot Marrero a third time in the back as he lay on the ground. Marrero testified this gave him another opportunity to see the shooter's face. He then pointed the gun at Rodriguez but she begged him not to shoot. He struck Rodriguez in the head with the butt of his gun. Rivera later died from his injuries.

         ¶ 7 A couple of days after the shooting, Detective Reynaldo Guevara visited Marrero at the hospital and showed him a photographic array of six pictures of Hispanic men. Gonzalez's picture was the only one with numbers visible underneath his face and a white background. The other five pictures had dark backgrounds and no numbers visible. Marrero identified Gonzalez as the gunman. Marrero testified that he told police the gunman had a "spot" by his neck after he saw the photo array. He also told the officers that the shooter had a gold tooth. On cross-examination, Marrero denied that the arrest placard under petitioner's photo or the white background influenced his selection of petitioner's photo. About two weeks later, Marrero identified Gonzalez in a police lineup. Marrero testified he had seen Gonzalez in the neighborhood but did not know his name or if he belonged to a gang. Marrero stated no one in Nieves' apartment on the night of the shooting, including himself, was affiliated with a gang. The neighborhood store sold shiny wraps used to cover a tooth to resemble a gold tooth.

         ¶ 8 Rodriguez gave an account of the shooting that was consistent with Marrero's version including that the gunman had shouted "Jiver killer." She stated that police who responded to the scene interviewed her in Spanish. She told police the shooter was a male Hispanic and denied telling the police the shooter was a "black Hispanic" or that the shooter had obscured his face. She did not notice that the shooter had a gold tooth or a birthmark.

         ¶ 9 The parties stipulated that two hours after the shooting Marrero's blood alcohol level was 88 milligrams per deciliter; a normal range is less than 10 milligrams per deciliter.

         ¶ 10 Detective Guevara, who also testified at Gonzalez's first trial, stated he was a gang crimes specialist assigned to a violent crime unit. He stated the Latin Jivers and the Spanish Cobras were rival gangs in the area where the shooting occurred. The day after the shooting, Guevara interviewed Rodriguez at her apartment. She told him that the shooter had a white t-shirt tied around his head that did not conceal his face. Rodriguez also told him that the gunman had shouted "Jiver killer." Knowing the two gangs were at war, Guevara brought Rodriguez to the police station and showed her a book of photographs of members of the Spanish Cobras gang. She identified Gonzalez's photograph on page 36 of the 37-page Spanish Cobras book.

         ¶ 11 Guevara interviewed Marrero while he was in the hospital and showed him an array of about six photos from which Marrero selected Gonzalez as the gunman. Guevara stated Marrero told him the shooter had a birthmark, but Guevara did not include this statement in his police report.

         ¶ 12 Gonzalez was arrested two weeks later. Guevara arranged a lineup where Rodriguez and Marrero separately identified Gonzalez. Guevara testified Rodriguez and Marrero were together for about ten minutes before looking at the lineup but did not interact during their separate viewings of the lineup. Guevara admitted this was not good police procedure, although he did not "see anything wrong with that." Gonzalez was the only individual who was in the lineup whose picture was in the photographic array.

         ¶ 13 For the defense, a dentist testified she reviewed Gonzalez's dental records and examined his mouth; he had not had any front teeth prepared for a crown. People v. Gonzalez, 2011 IL App (1st) 093016-U, ¶ 9.

         ¶ 14 The jury convicted Gonzalez of first degree murder of Rivera and attempted murder of Marrero and Illuminata. He was sentenced to consecutive terms of 30 years' incarceration for murder and six years' incarceration on each of the attempt murder convictions, for a total of 42 years.

         ¶ 15 On direct review, this court affirmed. See People v. Gonzalez, No. 1-03-1286 (2006) (unpublished order under Supreme Court Rule 23). In rejecting petitioner's argument that the evidence was legally insufficient to sustain his conviction, we found Marrero and Rodriguez "confidently and independently" identified petitioner one to two days after the shooting. Each made multiple identifications of petitioner after having "multiple opportunities to observe the face of the shooter from just a few feet away, " and gave a description of the shooter that described the petitioner. Although there were differences, "their testimonies were corroborative in several ways." We further noted that defense counsel "made sure the jury was aware of the discrepancies between the eyewitnesses' testimonies and various police reports, the purported suggestiveness of the photographic and lineup identifications, and the fact Marrero had been drinking before the shooting." Finally, we concluded that "given the fact that Rodriguez reliably testified that Gonzalez was the shooter and that Marrero corroborated most of the details of her testimony, the evidence against petitioner was not closely balanced." People v. Gonzalez, No. 1-03-1286 (2006) (unpublished order under Supreme Court Rule 23).

         ¶ 16 On August 2, 2009, Gonzalez filed a pro se postconviction petition pursuant to section 122-1 of the Act (725 ILCS 5/122-1 et seq. (West 2010)) asserting his innocence. In the petition, Gonzalez stated that on June 26, 2009, he obtained newly discovered evidence rising to the level of actual innocence when he read a news report of a federal wrongful conviction case won by Juan Johnson on June 23, 2009, against the City of Chicago involving witness intimidation by Chicago police detective Reynaldo Guevara. Attached to Gonzalez's petition were a photocopy of the photographic lineup viewed by Marrero and a transcript of Guevara's testimony at his trial.

         ¶ 17 In October 2009, the trial court dismissed the petition at the first stage as frivolous and patently without merit. Gonzalez appealed, contending his petition stated the gist of a claim of actual innocence based on newly discovered evidence sufficient to survive the first stage of postconviction review. In July 2012, this court reversed the summary dismissal, finding that Gonzalez's postconviction petition should proceed to the second stage of review because his claim of actual innocence was "not based on a fanciful factual allegation or an indisputably meritless legal theory." Gonzalez, 2011 IL App (1st) 093016-U, ¶ 19.

         ¶ 18 Through counsel, Gonzalez filed an amended postconviction petition, alleging that he was deprived of his due process rights because newly discovered evidence of his actual innocence demonstrated Guevara engaged in a pattern and practice of framing suspects by orchestrating false identifications, and that the State failed to tender exculpatory evidence of Guevara's complaint history prior to Gonzalez's retrial in 2003 in violation of Brady v. Maryland, 373 U.S. 83 (1963). He also argued that his trial counsel was ineffective for failing to investigate Detective Guevara's history of misconduct. Gonzalez attached an affidavit from retired Chicago police Detective William Dorsch who testified that between 1971 and 1985 he served as a gang crimes officer and at one time worked a homicide case with Guevara. Also attached were documents relating to other cases alleging misconduct by Guevara and a photocopy of the six head shot photographic array that Guevara showed Marrero. Notably, the amended petition and attached exhibits did not include any affidavits from Marrero or Rodriguez or any other person involved in the investigation or trial that resulted in petitioner's conviction.

         ¶ 19 On May 15, 2014, the trial court granted the State's motion to dismiss Gonzalez's amended postconviction petition stating, "I find the Petitioner has not established the prerequisite standard for relief under the Postconviction Act. One of the factors is that there's no affidavits, and also there has not been an actual, the actual innocence claim has not been supported by sufficient evidence." It is from this order that Gonzalez now appeals.

         ¶ 20 ANALYSIS

         ¶ 21 First, we consider whether Gonzalez's amended postconviction petition made a substantial showing of actual innocence that entitles him to a third-stage evidentiary hearing.

         ¶ 22 The Act provides a process by which a criminal defendant may challenge his or her conviction. 725 ILCS 5/122-1 et seq. (West 2010). A postconviction proceeding is a collateral attack upon the prior conviction and affords only limited review of constitutional claims not presented at trial. People v. Greer, 212 Ill.2d 192, 203 (2004). A postconviction action is "not a substitute for, or an addendum to, direct appeal." People v. Kokoraleis, 159 Ill.2d 325, 328 (1994). The purpose of the postconviction proceeding is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, nor could have been, adjudicated previously on direct review. People v. Morgan, 187 Ill.2d 500, 528 (1999). A postconviction petition is a collateral proceeding and not a chance to relitigate a defendant's innocence or guilt. People v. Lucas, 203 Ill.2d 410, 417-18 (2002).

         ¶ 23 To obtain relief under the Act, a petitioner must show there was a substantial deprivation of his or her constitutional rights in the proceedings that produced the conviction. People v. Pendleton, 223 Ill.2d 458, 471 (2006). The Act "provides for postconviction proceedings that may consist of as many as three stages." Id. at 472.

         ¶ 24 At the first stage, the trial court reviews the petition and may summarily dismiss it if the court determines it is "frivolous or is patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2010); People v. Perkins, 229 Ill.2d 34, 42 (2007). In this case, we reversed the summary dismissal of Gonzalez's petition at the first stage and remanded for second stage proceedings noting "the petition sets forth sufficient facts and a legal theory that arguably support a constitutional claim." Gonzalez, 2011 IL App (1st) 093016-U, ¶ 29. At the second stage, counsel is appointed and the State may move to dismiss the petition. See People v. Rivera, 2014 IL App (2d) 120884, ¶ 7. At the second stage, the petitioner bears the burden of making a substantial showing of a constitutional violation. Id. All well-pleaded facts not positively rebutted by the trial record are taken as true. Id. If a substantial showing of a constitutional violation is made, the petition advances to the third stage for an evidentiary hearing; if not, the petition is dismissed. Id. At the third stage, the trial court hears evidence and determines whether, based on that evidence, the petitioner is entitled to relief. People v. Chatman, 357 Ill.App.3d 695, 698 (2005); People v. Garcia, 2015 IL App (1st) 131180, ¶¶ 46-47.

         ¶ 25 We review de novo the dismissal of petitioner's amended postconviction petition at the second stage. People v. Suarez, 224 Ill.2d 37, 42 (2007). We may affirm the dismissal based on any reason supported by the record because we review the judgment, not the trial court's reasoning. People v. Anderson, 401 Ill.App.3d 134, 138 (2010).

         ¶ 26 Actual Innocence

         ¶ 27 Gonzalez argues that the trial court erred when it dismissed his amended postconviction petition without an evidentiary hearing where his petition sufficiently alleged facts to support his claim of actual innocence based on the newly discovered evidence that Detective Guevara engaged in a pattern and practice of framing suspects by orchestrating false identification evidence against them.

         ¶ 28 A claim of actual innocence is not the same as a claim of insufficiency of the evidence or reasonable doubt or mere impeachment of trial witnesses, but a claim of vindication or exoneration. People v. House, 2015 IL App (1st) 110580, ¶¶ 41, 46. To succeed on a claim of actual innocence, the petitioner must present new, material, non-cumulative evidence that is so conclusive it would probably change the result on retrial. People v. Washington, 171 Ill.2d 475, 489 (1996); People v. Sanders, 2016 IL 118123, ¶ 24. "Conclusive" means the new, material, non-cumulative evidence, considered with the trial evidence, would "probably lead to a different result." People v. Coleman, 2013 IL 113307, ¶96. "Probability, not certainty, is the key as the trial court in effect predicts what another jury would likely do, considering all the evidence, both new and old, together." Id. at ¶97. See People v. Davis, 2012 IL App (4th) 110305, ¶62 ("New evidence need not be completely dispositive of an issue to be likely to change the result upon retrial."). Evidence is (i) new if it was "discovered after trial and could not have been discovered earlier through the exercise of due diligence, " (ii) material if it is "relevant and probative of the petitioner's innocence, " and (iii) noncumulative if it adds to the evidence heard at trial. Coleman, 2013 IL 113307, ¶96.

         ¶ 29 Ignoring for a moment the lack of evidence to support any wrongdoing by Detective Guevara in this case, Gonzalez's actual innocence claim suffers from a fundamental problem. A freestanding claim of actual innocence requires just that--a freestanding claim.

"Under the due process clause of the Illinois Constitution of 1970 (Ill. Const. 1970. art. I, ยง 2), a petitioner can raise in a postconviction proceeding a 'free-standing' claim of actual innocence based on newly discovered evidence. [Citation.] A free-standing claim of innocence means that the newly discovered evidence being relied upon is not being used to supplement an assertion of a constitutional violation with respect to [the] trial. ...

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