Court of Appeals of Illinois, First District, Second Division
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.
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(unpublished order under Supreme Court Rule 23).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
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
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
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
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
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
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
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
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,
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
"Under the due process clause of the Illinois
Constitution of 1970 (Ill. Const. 1970. art. I, § 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.