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People v. Jones

Court of Appeals of Illinois, First District, Fifth Division

September 8, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
ANTELETO JONES, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 00 CR 8223 Honorable Domenica A. Stephenson, Judge, presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Reyes concurred in the judgment and opinion. Justice Gordon dissented, with opinion.

          OPINION

          LAMPKIN JUSTICE.

         ¶ 1 Defendant Anteleto Jones was convicted in 2003 of first degree murder and sentenced to 44 years' imprisonment. In 2011, he filed a pro se motion for leave to file a successive postconviction petition that alleged two claims of actual innocence based on newly discovered evidence of (1) an eyewitness to the murder and (2) police misconduct and coercion to obtain defendant's confession. The circuit court denied both defendant's motion for leave to file the petition and subsequent motion to reconsider that denial.

         ¶ 2 On appeal, defendant argues the circuit court erroneously denied him leave to file a successive postconviction petition because he presented a colorable claim of actual innocence based on the affidavit of Telvin Shaw, which defendant claims is newly discovered exculpatory evidence. Defendant also argues for the first time on appeal that he established cause and prejudice to file a successive postconviction petition because previously unavailable evidence showed that the police officers who coerced his confession were liable in a civil case of fabricating a confession in another murder investigation.

         ¶ 3 On June 30, 2016, a majority panel of this court reversed and remanded the circuit court's denial of defendant's motion for leave to file his successive postconviction petition. However, after the State filed a petition for rehearing and defendant filed an answer, this court, on December 6, 2016, allowed the State's petition for rehearing, which nullified the June 2016 opinion by operation of law. Oral argument was held on December 13, 2016.

         ¶ 4 For the following reasons, we affirm the judgment of the circuit court, which did not err by denying defendant leave to file his successive postconviction petition.

         ¶ 5 I. BACKGROUND

         ¶ 6 Defendant Anteleto Jones was convicted in 2003 of the first degree murder of Jerry Green and found to have personally discharged a firearm during the offense. The shooting occurred about 5 a.m. on January 8, 2000, when the victim attempted to enter his parked car after leaving the house of his friend, Curtis Moore. The victim's relative, Lawrence Green, also resided at that house. Lawrence was the leader of a street gang faction that was at war with the rival faction to which defendant belonged. The victim, however, was not affiliated with either gang faction.

         ¶ 7 Defendant was arrested in March 2000 and gave statements to the police and a videotaped confession admitting to his participation in the offense and implicating codefendants Melvin Jones and Travis Ashby. All three were charged with the first degree murder of the victim.

         ¶ 8 A. Pretrial and Jury Trial

         ¶ 9 Prior to trial, defendant moved to suppress his statements, asserting that he (1) had been interrogated after electing to remain silent and requesting an attorney and (2) had been physically coerced by the polygraph examiner, Officer Robert Bartik, who allegedly pushed, shoved, and punched defendant. At the suppression hearing in October 2001, Officer Bartik and Detectives Robert Lenihan, Timothy Nolan, and Michael Rose denied defendant's allegations. Defendant did not testify or call any witnesses. The trial court denied the motion to suppress.

         ¶ 10 Defendant and Ashby were tried simultaneously before separate juries in January 2003. The State's evidence showed that defendant, Melvin, and Ashby were members of the same gang faction. On the date in question, they agreed to arm themselves and go into rival gang territory to Lawrence Green's house and shoot him. Their plan was retaliation for a humiliating beating Melvin had received the day before in front of his girlfriend. Lawrence's house, 7159 South Seeley Avenue, was at the end of the block on the northeast corner of the intersection of Seeley Avenue and 72nd Street. The victim had parked his two-door car across the street from the house, on the south side of 72nd Street and facing east toward Damen Avenue. A garage that faced 72nd Street was in front, or east, of the victim's car.

         ¶ 11 According to defendant's statements to the detectives and his videotaped statement, he, Ashby, and Melvin left their car near 73rd Street and walked north through the alley between Damen and Seeley Avenues toward 72nd Street. Ashby and Melvin waited in the alley on the north side of 72nd Street, behind Lawrence's house, and defendant waited in the alley on the south side of 72nd street, behind a garage. The group waited about 10 or 15 minutes and saw the victim exit Lawrence's house and cross 72nd Street to the victim's parked car. Melvin left the north alley first, approached the victim, stood in front of him, confronted him, and swore at him. Melvin stood about two feet in front of the victim by the open car door. The victim waved his hands and said he was not involved in the matter. When Ashby emerged from the north alley, he walked about three to four feet behind Melvin and went about three feet to the right side of Melvin. When defendant left the south alley, he went about 8 to 10 feet behind them and about 8 to 10 feet on the far left side of Melvin. Melvin, who used a .380 semiautomatic gun, fired six or seven gunshots, and the victim fell to the ground. Ashby, who used either a .45 or a 9-millimeter gun, fired three to four gunshots. Defendant used a .357 handgun and fired two gunshots toward the victim as he was falling. Melvin ran east on 72nd Street toward Damen Avenue, and Ashby and defendant ran south down the alley toward 73rd Street.

         ¶ 12 Inside the house, Moore was using a phone and heard 5 to 10 gunshots, some of which seemed like they were right next to his window, while others did not sound as loud. Moore dropped the phone, woke his fiancée, and told her the victim had just gone outside. Moore left his bedroom and went to the back of the house, looked out a window, and then went outside. He found the victim unresponsive and lying on his side in the street by the door of his car. His feet pointed toward the front of the car and his head toward the rear of the car. Moore did not see who shot the victim, nor did he see anyone run from the scene. People began to come outside, and Moore told someone to call 911. The victim sustained five gunshot wounds and died at the hospital.

         ¶ 13 Odis Deal, who lived nearby at 7200 South Damen Avenue, testified that he heard the gunfire at about 5 a.m. He first heard two to three gunshots, and then eight or nine gunshots followed, one right after the other. Deal had been in the army and heard gunfire before. The first two or three gunshots sounded different from the rest, like the shots were coming from two or three different guns. About five to six minutes after the firing stopped, Deal went outside to the back of his home, which was located on the southwest corner of 72nd Street and Damen Avenue. He saw police cars and an ambulance and then went back inside.

         ¶ 14 The police recovered numerous shell casings on both sides of the victim's car. They recovered six PMC-brand .380 auto cartridge casings, all predominantly in the street alongside or immediately in front of the car. Two of the .380 casings were near the driver's side door toward the rear of the car. Another casing was to the rear of the car, and three additional casings were recovered from the street. A fired bullet was also observed adjacent to the driver's door next to a set of keys. The State's forensic scientist who examined the recovered firearms evidence concluded that the six PMC .380 cartridge casings were all chambered in the same weapon. He was unable to determine whether the shell casings were actually fired from the same weapon because the breech face marks lacked the individual characteristics necessary to make an identification.

         ¶ 15 Additionally, the police recovered two FC-brand 9-millimeter Luger cartridge casings on the passenger side of the car at the curb area near the front of the victim's car. The State's forensic scientist determined that the two FC 9-millimeter Luger casings were fired from the same weapon. He also testified that the bullet recovered from the crime scene and the two bullets recovered from the autopsy had the class characteristics of a .380 or 9-millimeter bullet with six lands and grooves and a right twist. They could be fired from either a .380 or a 9-millimeter gun. In comparing these bullets, he determined that all three were fired from the same firearm. Finally, assuming that a .357-caliber weapon was used, he testified that he would not expect to find shell casings because .357 handguns are normally revolvers, which do not automatically eject their spent casings.

         ¶ 16 The police at the scene noted two bullet holes in the overhead door of the garage that faced 72nd street and was in front of the victim's car. The bullet holes seemed to be new because there was no corrosion or wear and tear in the holes and the dislodged paint chips appeared fresh. The police were unable to locate any spent rounds or fragments inside the garage due to the accumulation of debris. The testimony of police officers and photographs of the scene admitted into evidence showed that shrubbery and trees blocked certain views east and west on 72nd street.

         ¶ 17 The post-mortem examination of the victim found evidence of five gunshot wounds and additional abrasions or scrapes. One entry wound to the victim's right shoulder involved the heart and abdominal cavity, and a medium-caliber copper-jacketed bullet was recovered from the muscle beneath the skin. A second entry wound to the victim's left shoulder showed an exit wound from the victim's left upper back. A third entry wound to the victim's lower chest involved the abdomen and showed an exit wound from the musculature of the left back. A second medium-caliber copper-jacketed bullet was recovered from beneath the skin of the victim's lower back. A fourth entry wound to the palm of the victim's right hand showed an exit wound to the back of the hand. A fifth entry wound on the back of the victim's left hand showed an exit wound on the front of his left forearm. The medical examiner opined that the last two gunshot wounds were defensive injuries. None of the wounds involved close-range firing, i.e., firing from 18 inches or less from the surface of the entry wounds.

         ¶ 18 The defense presented the alibi testimony of defendant's mother, Audie Jones. She testified that at the time of the offense, defendant lived with her, her husband, and their two children on South Racine Avenue in Chicago. On January 7, 2000, she came home around 11:30 p.m., and all of her children were present in the house when she went to bed at 12:30 a.m. She slept until 6 a.m. on January 8, 2000, and when she got up, she went to the kitchen and saw defendant in his bed.

         ¶ 19 On January 30, 2003, the jury found defendant guilty of first degree murder enhanced by a finding that he personally discharged a firearm during the commission of the offense.

         ¶ 20 Defendant filed a posttrial motion alleging, inter alia, that newly discovered alibi evidence from Anthony and Darryl Thomas, who claimed defendant was at their home at the time of the shooting, mandated a new trial. In signed but unsworn written statements dated March 17, 2003, Anthony and Darryl asserted that on the date in question defendant attended a party in their basement and was asleep at their house at the time the shooting occurred. According to Anthony, defendant slept until either 6 or 7 a.m. on January 8, 2000, but according to Darryl defendant slept until 11 a.m. Darryl claimed that he informed Assistant State's Attorney (ASA) Margaret Wood about this alibi by February 26, 2003. Anthony claimed he talked to the ASA about three times; the first time they spoke, Anthony said defendant "wasn't there so [Anthony was] not going to testify saying that he was."

         ¶ 21 At the March 2003 hearing on defendant's motion for a new trial, ASA Wood testified that she first spoke with Darryl Thomas on February 28, 2003, well after defendant's trial had concluded. Darryl telephoned her from jail and said defendant was with him at the time of the murder. Although ASA Wood spoke with Anthony Thomas the week prior to the start of defendant's trial, they talked about the gang war between the rival factions and did not talk about defendant specifically. ASA Wood never asked Anthony to testify, and he never said prior to trial that he would not testify. ASA Wood had another conversation with Anthony in her office after defendant's trial in mid-March 2003. On that occasion, Anthony told her for the first time that defendant was drinking with him and Darryl at the time of the murder. After receiving the information from the Thomases, ASA Wood contacted counsel for defendant and codefendant Ashby. The defense did not ask ASA Wood any questions at the hearing, and neither Anthony nor Darryl Thomas testified.

         ¶ 22 The trial court denied the motion for a new trial. The court found that the Thomases' inconclusive statements would not have affected the jury's verdict and ASA Wood was credible and refuted the defense allegations that the State had knowledge of and withheld any exculpatory evidence. The court sentenced defendant to a term of 24 years' imprisonment for first degree murder with a 20-year enhancement based on the jury's finding that he personally discharged a firearm during the commission of the murder.

         ¶ 23 On direct appeal, defendant did not challenge the sufficiency of the evidence. Rather, he argued that a portion of his sentence was unconstitutional and should be vacated. This court affirmed his conviction and sentence. People v. Jones, No. 1-03-1316 (2004) (unpublished order under Supreme Court Rule 23).

         ¶ 24 B. First Postconviction Petition

         ¶ 25 In August 2005, defendant filed his first pro se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)). Defendant asserted, inter alia, claims of actual innocence, newly discovered evidence, prosecutorial misconduct, and ineffective assistance of trial and appellate counsel. The petition included the August 23, 2004, affidavit of codefendant Melvin Jones, which was written about 17 months after Melvin's trial. Melvin averred that he was "solely responsible" for the murder of the victim and falsely accused defendant of being Melvin's accomplice in the shooting. According to the affidavit, when Melvin was arrested, the police offered him leniency in exchange for information on other people involved in the shooting, and Melvin, to better his circumstances, falsely stated that defendant fired a .357 handgun at the scene. Furthermore, when Melvin had access to a telephone, he contacted his gang members and informed them to instruct defendant to admit to the police to being present at the scene and discharging a .357 handgun. If defendant did not comply, then either he or a close family member would be killed. Melvin averred defendant did not accompany him at the time of the murder and was nowhere in the vicinity. Melvin claimed that he had abandoned his former ways, changed his lifestyle, and could no longer live with the fact that an innocent person was incarcerated for something for which Melvin was responsible. Melvin's affidavit, however, did not state that he was willing to testify consistently with the substance of his affidavit. Defendant argued that Melvin's affidavit exonerated him.

         ¶ 26 Defendant also attached to his petition two letters he wrote to his parents in 2000. In his March 2000 letter, defendant described the circumstances of his arrest, questioning by police, and confrontation with Melvin's confession. After defendant agreed to take a polygraph test, the polygraph officer said he knew defendant would fail the test and face the death penalty. Because this frightened defendant, he cried and decided to give a false confession similar to Melvin's false statements. Defendant knew "damn well [he] was in the house at the time" of the murder and would not "cop out for some time over" something he did not do.

         ¶ 27 In defendant's October 2000 letter to his parents, he asserted that even though the police had threatened to beat him if he did not confess his involvement in the murder, the police never touched him physically and no gang member had threatened him "to do it." At the police station, he was scared and weak, did not understand his rights, and essentially "went along" with Melvin's confession after the police showed him Melvin's written and videotaped statements. Defendant asserted that "Devo, " i.e., gang leader Leonard Klien, never gave defendant a gun because defendant "was never there when that s*** happen[ed]."

         ¶ 28 Defendant also attached to his petition the Thomases' unsworn March 2003 statements, which were previously submitted with defendant's motion for a new trial.

         ¶ 29 The circuit court summarily dismissed defendant's petition as frivolous and patently without merit, and this court affirmed that first-stage postconviction proceeding dismissal, finding that it lacked an arguable basis in fact. People v. Jones, 399 Ill.App.3d 341 (2010). Specifically, this court stated that Melvin's "cleverly drawn" affidavit did not constitute newly discovered evidence, failed to actually inculpate himself, and seemed to acknowledge merely that the events leading to the murder of the victim "were precipitated by the beating [Melvin] suffered in the presence of his girlfriend." Id. at 366. This court, mindful that credibility assessments and fact-finding were foreclosed at a first-stage postconviction proceeding, conducted an exhaustive analysis of the many contradictions between the evidence in the record and the incredible factual assertions in support of defendant's actual innocence claim and concluded that the latter " 'taxes the gullibility of the credulous.' " Id. at 364 (quoting People v. Coulson, 13 Ill.2d 290, 296 (1958)).

         ¶ 30 C. Successive Postconviction Petition

         ¶ 31 In July 2011, defendant filed a pro se motion for leave to file a successive postconviction petition, a pro se motion for appointment of counsel, and an accompanying pro se petition for postconviction relief. Defendant alleged newly discovered evidence supported his two claims of actual innocence. This newly discovered evidence consisted of (1) the affidavit of Telvin Shaw and (2) a June 2010 newspaper article about a jury award in a malicious prosecution lawsuit that involved three police officers who were also involved in the Jerry Green murder investigation. Defendant argued that Shaw's affidavit exonerated him and the newspaper article established that defendant's involuntary confession was the product of police misconduct and psychological, mental, and physical coercion.

         ¶ 32 In his affidavit dated January 21, 2011, Telvin Shaw averred that he was standing in the gangway of a residence at 7200 South Seeley Avenue around 5 a.m. on January 8, 2000. At the time he was affiliated with the same gang faction as Lawrence Green. Shaw had been out all night "hustling." He saw the victim, whom Shaw did not know, exit the backyard of Lawrence's house and walk to his car, which was parked on 72nd Street and faced east toward Damen Avenue. Then Shaw saw someone approach the victim from behind from the alleyway. When the approaching person came closer, Shaw recognized that it was Melvin. Shaw averred that Melvin "stood alone by himself in front of [the victim]" and held a gun in his hand. Suddenly, the victim raised his hands up, and Melvin fired several times until the victim fell to the ground. After Melvin stopped shooting, Shaw did not "continue to look to see where [Melvin] went." Shaw immediately ran home and never told anyone what he had seen.

         ¶ 33 When Shaw learned that the victim was Lawrence's relative, Shaw wanted to retaliate and collect $5000 by killing Melvin or a member of his faction, but Shaw never had an opportunity to do so. After March 2003, Shaw was incarcerated at Menard Correctional Center and encountered defendant in the prison library in the summer of 2008. They spoke, and Shaw was surprised to learn that defendant had been convicted in this matter. Shaw averred he knew "for a fact that [defendant] did not have any involvement with the murder because 'Melvin' was the only person I seen [sic] that night." Shaw came forward to do what he knew was right and was willing to testify to assist defendant in proving his innocence.

         ¶ 34 The newspaper article, dated June 9, 2010, stated that plaintiff Donny McGee, who previously had been prosecuted for murdering his neighbor but was acquitted based on DNA evidence, received a jury verdict in his favor on his malicious prosecution claim against the city of Chicago, Detectives Edward Farley and Lenihan, and Officer Bartik. McGee alleged that he had refused to confess to the murder, so the police lied about him voluntarily confessing even though there was no written or taped confession and no physical evidence. The jury awarded compensatory damages in the amount of $975, 000 against the defendants and punitive damages of $110, 000 against each individual defendant. (However, in 2012, this court in McGee v. City of Chicago, 2012 IL App (1st) 111084, reversed the circuit court judgment and remanded the matter for a new trial because the circuit court had failed to voir dire a juror who did independent research during the trial on the issue of memory lapses.) Attached to the newspaper article was a letter, dated June 10, 2010, to defendant's father from defendant's first postconviction petition counsel. The letter referenced their telephone conversation about the article that morning and gave the contact information for the law firm involved in the malicious prosecution matter.

         ¶ 35 In May 2012, the circuit court denied defendant leave to file his postconviction petition because he failed to assert a colorable claim of actual innocence. Although the court found that Shaw's affidavit was newly discovered evidence, the affidavit contained the same facts concerning the crime scene that were available in the record. The court found that Shaw's affidavit was not of such a conclusive character that it would likely change the result on retrial. Shaw's assertion that there was only one shooter was rebutted by the evidence, which included defendant's confession, Odis Deal's testimony that he heard gunfire from two or three weapons, and the two different types of cartridge cases recovered at the scene. Also, the court found defendant's argument about the hearsay newspaper article conclusory and insufficient.

         ¶ 36 In July 2012, defendant moved the court to reconsider and attached as exhibits to the motion numerous documents and transcripts from the record in this case. Thereafter, defendant amended his motion to argue that the trial court failed to apply the correct legal standard to his motion for leave to file a successive petition alleging claims of actual innocence.

         ¶ 37 In August 2012, the circuit court denied defendant's motion to reconsider, finding that he failed to present any newly discovered evidence, changes in the law, or errors in the court's prior judgment. Defendant filed a pro se motion for leave to file a late notice of appeal, and this court granted the motion and appointed counsel to represent defendant on appeal.

         ¶ 38 II. ANALYSIS

         ¶ 39 Defendant argues the trial court erred by denying him leave to file his postconviction petition because he presented a colorable claim of actual innocence based on the newly discovered exculpatory affidavit of Telvin Shaw. Defendant also argues for the first time on appeal that he established cause and prejudice to file his successive postconviction petition because previously unavailable evidence-i.e., three police officers who elicited defendant's confession were found liable in 2010 in an unrelated civil case of fabricating a murder confession-would have supported defendant's claim that his confession was the product of police coercion.

         ¶ 40 The Act provides a statutory remedy to criminal defendants who claim that substantial violations of their constitutional rights occurred at trial. People v. Eddmonds, 143 Ill.2d 501, 510 (1991). The Act is not a substitute for an appeal but, rather is a collateral attack on a final judgment. People v. Ruiz, 132 Ill.2d 1, 9 (1989). When, as here, a defendant has previously taken an appeal from a judgment of conviction, the ensuing judgment of the reviewing court will bar, under the doctrine of res judicata, postconviction review of all issues actually decided by the reviewing court, and any other claims that could have been presented to the reviewing court will be deemed waived. People v. Neal, 142 Ill.2d 140, 146 (1990).

         ¶ 41 Successive postconviction petitions are disfavored under the Act. People v. Edwards, 2012 IL 111711, ¶ 29. The Act provides that any claim of substantial denial of constitutional rights not raised in the original or amended petition is subject to the doctrines of res judicata and waiver. 725 ILCS 5/122-3 (West 2010); People v. Smith, 341 Ill.App.3d 530, 535 (2003). However, the waiver provision can be lifted, and a successive petition can be considered on the merits if it either meets the cause and prejudice test of section 122-1(f) of Act (725 ILCS 5/122-1(f) (West 2010)) or its consideration is necessary to prevent a fundamental miscarriage of justice because the defendant shows a claim of actual innocence. People v. Pitsonbarger, 205 Ill.2d 444, 459 (2002). A defendant seeking to institute a successive postconviction proceeding through the filing of a successive postconviction petition must first obtain leave of court. People v. Tidwell, 236 Ill.2d 150, 157 (2010).

         ¶ 42 A. Claim of Actual Innocence-Shaw's Affidavit

         ¶ 43 Where, as here, a defendant's successive petition makes a claim of actual innocence, such a claim may only be considered if the evidence in support of the claim was newly discovered, material to the issue and not merely cumulative of other trial evidence, and of such a conclusive character that it probably would change the result on retrial. People v. Ortiz, 235 Ill.2d 319, 333-34 (2009). Newly discovered evidence is defined as evidence that has been discovered since the trial and could not have been discovered sooner by the defendant through due diligence. Id. at 334. Material evidence is relevant and probative of the defendant's innocence (People v Coleman, 2013 IL 113307, ¶ 96), but evidence is considered cumulative when it adds nothing to what was already before the jury (Ortiz, 235 Ill.2d at 335).

         ¶ 44 The United States Supreme Court has emphasized that claims of actual innocence must be supported "with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1995). Claims of actual innocence are rarely successful because such evidence is obviously unavailable in the vast majority of cases. Id.

         ¶ 45 Requests to file successive petitions are reviewed under a higher standard than the first-stage standard for initial postconviction petitions, which is simply a determination of whether the petition is frivolous or patently without merit. People v. Smith, 2014 IL 115946, ¶ 35; Edwards, 2012 IL 111711, ¶¶ 25-29. To set forth a colorable claim of actual innocence in a successive petition, the defendant's "request for leave of court and his supporting documentation must raise the probability that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence." Edwards, 2012 IL 111711, ¶ 31. The defendant has the burden to obtain leave of court and also must submit enough in the way of documentation to allow a circuit court to make that determination. Id. ¶ 24. "This is so under either [the] *** cause and prejudice or actual innocence [exception to the bar against successive postconviction proceedings.]" Id. "[L]eave of court to file a successive postconviction petition should be denied when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings." Smith, 2014 IL 115946, ¶ 35. Although decisions granting or denying leave of court generally are reviewed for an abuse of discretion, a trial court's determination that a petitioner has failed as a matter of law to assert a colorable claim of actual innocence suggests de novo review. Edwards, 2012 IL 111711, ¶ 30. Just as our supreme court did not decide this question in Edwards, we need not determine this issue in this case because defendant's claim of actual innocence fails under either standard of review, since his supporting documentation is too insufficient to justify further proceedings. See id.

         ¶ 46 Defendant argues the circuit court erroneously denied him leave to file his successive petition because Shaw's affidavit represents the only eyewitness account of the victim's murder and states a colorable claim of actual innocence. We disagree. Although Shaw avers that Melvin "stood alone by himself in front of [the victim]" and Melvin "was the only person I seen [sic] that night, " Shaw critically does not assert that defendant was not present when the shooting took place. Even if Shaw's affidavit is considered newly discovered, material, and not cumulative, it does not raise the probability that, in the light of the new evidence, it is more likely than not that no reasonable juror would have convicted defendant. "This evidence is not 'of such conclusive character that it would probably change the result on retrial' [citation]." Edwards, 2012 IL 111711, ¶ 40.

         ¶ 47 In his initial postconviction petition, defendant already presented the theory that his convicted codefendant Melvin Jones was the only shooter, and this court found that claim of defendant's actual innocence "indisputably meritless" and rejected the notion that Melvin's affidavit was of such conclusive character that it would probably have changed the result on retrial. Jones, 399 Ill.App.3d at 366-67. This court noted that Melvin's affidavit was "cleverly drawn" and failed to actually inculpate himself; his statement that he was "solely responsible" for the victim's murder was "a meaningless assemblage of words" and merely seemed to acknowledge the fact that Melvin's humiliating beating in the presence of his girlfriend by members of the rival street gang faction precipitated the events that resulted in the victim's murder. Id. at 366.

         ¶ 48 This court, in reaching its ultimate conclusion that defendant's initial postconviction actual innocence claim lacked an arguable basis in law and fact, conducted an exhaustive analysis of the many contradictions between the record and the theory that Melvin was the sole shooter, including the fact that defendant's postarrest actions-i.e., persistently proclaiming his innocence to three different teams of detectives for over 12 hours-failed to coincide with the postconviction claim that Melvin coerced defendant to incriminate himself. Id. at 360-63. Moreover, when defendant finally did confess, he offered (contrary to any alleged instruction from Melvin) a detailed explanation of the shooting that highlighted Melvin's involvement, minimized defendant's own participation, and added substantial accusatory details of Ashby's participation. Id. at 360-63.

         ¶ 49 The deficiencies of Melvin's "cleverly drawn" affidavit from the initial postconviction petition proceeding reverberate in Shaw's similarly cleverly drawn affidavit before this court in this successive petition. Shaw admits that he was at the scene "hustling, " presumably selling drugs, and never states that the scene was deserted except for the presence of himself, the victim, and Melvin. Shaw's affidavit indicates merely that Melvin and the victim were the only people Shaw observed from his distant vantage point in a gangway between two houses on the west side of the 7200 block of South Seeley Avenue, which was neither parallel to, opposite from, nor cater-corner to the shooting. Specifically, Shaw avers merely that Melvin "stood alone by himself in front of [the victim]" and held a gun in his hand. Melvin fired several times until the victim fell to the ground. After Melvin stopped shooting, Shaw did not "continue to look to see where [Melvin] went, " and Shaw immediately ran home.

         ¶ 50 Shaw does not state he could see from his vantage point that defendant was not present at the scene, and Shaw's affidavit does not contradict the facts contained in defendant's statements to the detectives and videotaped confession. Specifically, defendant admitted that he, Ashby, and Melvin hid in two separate locations outside Lawrence Green's home and Melvin emerged from the alley first, walked up to the victim, and stood about two feet in front of him. Melvin confronted the victim and swore at him. Meanwhile, Ashby and defendant emerged from their hiding places to help Melvin surround the victim. Neither Ashby nor defendant stood in front of or near the victim or spoke to him. See Edwards, 2012 IL 111711, ¶ 39 (although the codefendant's affidavit averred that the defendant was neither a part of nor took part in the shooting, the codefendant critically failed to assert that the defendant was not present when the shooting took place and, thus, did not establish a colorable claim of actual innocence where the defendant was convicted of the murder under the theory of accountability).

         ¶ 51 Moreover, Shaw's affidavit is devoid of any details indicating that his view of the crime scene from the gangway was clear, unobstructed, and wide enough to refute the likelihood that Ashby and defendant, who initially were hiding while they waited in enemy territory and then stood several feet away from Melvin at the time of the shooting, were not within the scope of Shaw's limited view. It would have been dark at 5 a.m. in January, and photographs admitted into evidence and the testimony of police officers at the scene established that shrubbery blocked certain views east and west on 72nd Street. In addition, Shaw admitted that he stopped looking and ran after Melvin stopped shooting. Accordingly, Shaw, in addition to missing the sight of Melvin running east toward Damen Avenue, also would have missed the sight of defendant and Ashby firing their guns or disappearing south down the alley toward 73rd Street.

         ¶ 52 The dissent, in order to reach its desired conclusion that Shaw avers he saw Melvin Jones alone at the scene, must excise from Shaw's affidavit all the qualifying language about what Shaw allegedly saw concerning Melvin at the scene. It is a simple enough undertaking for an eyewitness affiant to state that he had a clear view of the crime scene and the defendant was not present when the affiant observed a lone assailant shoot the victim. Shaw, however, chose to qualify his statement to aver merely that "Melvin stood alone by himself in front of [the victim]" and "Melvin was the only person [Shaw had] seen that night." The plain language of Shaw's affidavit does not exonerate defendant, and this court should not ignore this deficiency or attempt to improve upon a defendant's successive petition to help him meet the already low threshold to obtain leave to file a successive petition. Also, contrary to the dissent's assertion that Shaw made himself unavailable as a witness when he moved to California in January 2000, Shaw himself admitted that he had returned to his same neighborhood in Chicago by February 2001.

         ¶ 53 Furthermore, the evidence at trial established that there was more than one shooter and at least two firearms were used. Odis Deal, who lived at the corner of 72nd Street and Damen Avenue, testified that he heard two to three gunshots followed by a volley of eight or nine gunshots. There was no pause between the gunshots; it all happened together. Deal had been in the army and had heard gunfire before. He stated that the first two to three gunshots sounded different from the rest, as if they were coming from two or three different guns. Similarly, Curtis Moore testified that he was at home, inside 7159 S. Seeley Avenue, and on the telephone at the time of the shooting. The victim had just left the house, and then Moore heard 5 to 10 gunshots. Although some gunshots sounded loud like they were right next to Moore's window, other gunshots did not sound as loud, which indicated that the gunshots were fired from different guns at different locations.

         ¶ 54 The physical evidence also established that there was more than one shooter. Cartridge casings were recovered from both the street and curb sides of the victim's parked car. Furthermore, two different types of cartridge casings were recovered from the scene. Although the State's forensic scientist was unable to state whether the six .380 casings had been fired from one weapon, he was able to determine that the two 9-millimeter casings, which were recovered on the curb side of the victim's car, were indeed fired from the same firearm. This physical evidence was consistent with defendant's statements to the police that he had fired 2 shots from a .357 revolver, Ashby had fired 3 to 4 shots from either a 9-millimeter or a ".45, " and Melvin had fired 6 to 7 shots from a .380 semiautomatic pistol. The absence of any recovered .357 ammunition from the crime scene corroborated defendant's confession because spent cartridges must be ejected manually from a revolver. In addition to the numerous shell casings recovered on both the street and curb sides of the victim's car, the police also found two fresh bullet holes in the overhead door of the garage that faced 72nd Street and was alongside and just east of the victim's parked car.

         ¶ 55 Additional support for the fact that more than one shooter attacked the victim is found in the testimony that the victim died of multiple gunshot wounds, and none of the wounds involved close-range firing, i.e., firing from 18 inches or less from the surface of the entry wound. The State's medical examiner found evidence of five gunshot wounds to the victim, and the entry wounds were on different sides of his body and had varied angles or trajectories. For example, one entry wound on the victim's right shoulder included the heart and abdominal cavity, whereas another entry wound on the victim's left shoulder exited his left upper back. The other wounds showed an entry at the victim's lower chest with an exit from the musculature of the left back, an entry at the palm of the victim's right hand with an exit to the back of the hand, and an entry at the back of the victim's left hand with an exit to the front of the left forearm.

         ¶ 56 Defendant cites People v. Harper, 2013 IL App (1st) 102181, ¶ 52, where the court found that even though some of the physical evidence corroborated the defendant's confession, another witness's recantation of his trial testimony supported the defendant's claim that his confession was coerced by the police and such evidence would likely have changed the outcome of the case. Harper, however, is distinguishable from the present case. Defendant Harper confessed to setting a fire that killed two people. Id. ¶¶ 7-8. After his conviction, Harper petitioned for postconviction relief, submitting the affidavit of a man who admitted to starting the fire, as well as an affidavit from a trial witness who recanted his testimony. Id. ¶¶ 23-25. This court found the affidavits to be newly discovered evidence that was material and likely to change the result on retrial. Id. ¶ 52. Here, the affidavit at issue is neither a recantation of trial testimony nor an admission of guilt on the part of the culpable party. Shaw's affidavit merely repeats the underlying theory of defendant's initial postconviction petition and Melvin's cleverly drawn affidavit: that Melvin was the sole gunman. Harper would be more pertinent to an innocence claim based on Melvin's affidavit, in which he claimed to be solely responsible for the murder. This court, however, has already determined that the sole gunman theory lacks merit. Jones, 399 Ill.App.3d at 367.

         ¶ 57 We conclude the circuit court properly denied defendant leave to file a successive petition based on Shaw's affidavit because it does not raise the probability that it is more likely than not that no reasonable juror would have convicted defendant.

         ¶ 58 B. Cause and Prejudice Test-Newspaper Article

         ¶ 59 Next, defendant argues, for the first time on appeal, that the circuit court erroneously denied him leave to file his successive petition because he established cause and prejudice to file the petition based on a June 9, 2010, newspaper article about the jury verdict and award in the Donny McGee malicious prosecution lawsuit against the city of Chicago, Detectives Farley and Lenihan, and Officer Bartik. Defendant's new cause-and-prejudice argument on appeal differs from his argument before the circuit court, which alleged he had presented a colorable claim of actual innocence based upon this newspaper article.

         ¶ 60 Allegations not raised in the postconviction petition cannot be considered on appeal. People v. Jones, 211 Ill.2d 140, 148 (2004); People v. Smith, 352 Ill.App.3d 1095, 1112 (2004); People v. Griffin, 321 Ill.App.3d 425, 428 (2001) (the Act does not permit a defendant to raise an issue on appeal from the dismissal of a postconviction petition that he never raised in the petition). Defendant has abandoned on appeal his claim of actual innocence concerning this newspaper article, and his new cause-and-prejudice theory on appeal is improper and will not be considered by this court as part of his motion for leave to file his successive petition.

         ¶ 61 III. CONCLUSION

         ¶ 62 The dissent's assertion that defendant should be allowed to file his successive petition relies on numerous inaccurate propositions and distortions of the record, including that (1) Shaw's affidavit exonerates defendant; (2) codefendant Melvin Jones's recycled affidavit from defendant's unsuccessful actual innocence claim of his initial postconviction petition somehow exonerates defendant this time around; (3) the State somehow withheld from defendant knowledge of one of his own alibis-i.e., that at the time of the murder he was asleep at the home of his friends Darryl and Anthony Thomas, which of course is inconsistent with the alibi trial testimony of defendant's mother that he was asleep at her home; (4) Odis Deal claimed he could distinguish gunshots from different firearms based on his army experience 30 years ago; (5) defendant is connected to this murder only by his confession; (6) the physical evidence does not corroborate his confession; (7) his coercion claims concerning his confession have been consistent even though defendant initially told his parents in a letter in 2000 that the police never touched him physically and no gang member threatened him to confess, then defendant unsuccessfully sought to suppress his confession by claiming that Officer Bartik pushed, shoved, and punched him while two other officers looked on, then defendant never challenged on direct appeal the denial of his motion to suppress his confession, and defendant later argued in his initial postconviction petition that his involuntary confession resulted from coercion from members of his street gang; (8) this court has jurisdiction to review defendant's cause and prejudice claim about police misconduct and coercion to obtain his confession even though he did not raise a cause and prejudice claim before the circuit court; (9) evidence from a newspaper article about a civil case that involved claims of police misconduct supports defendant's claim of actual innocence even though defendant has abandoned that particular claim on appeal; and (10) this court made credibility determinations, engaged in fact-finding, and applied the second-stage substantial showing standard in reviewing defendant's request for leave to file his successive petition.

         ¶ 63 The parties here well know the nature of the evidence presented at the trial and the documents submitted in support of defendant's postconviction petitions. This evidence and these documents are accurately and fairly summarized in both this opinion and the 2010 opinion affirming the summary dismissal of defendant's first postconviction petition. Our role on review is to determine whether the circuit court erred in denying defendant leave to file a successive petition; this review is not an instrument to collaterally attack this court's past determinations, particularly where the documentation presented would in no way have changed the result on retrial. It is thus exceedingly inappropriate for the dissent to delve into the credibility of defendant's confession, the credibility of the trial testimony of Odis Deal and Curtis Moore, as well as the history of other court proceedings against a particular officer. Defendant's agreement to make a videotaped statement was documented both in writing and on the videotape. Also, the recording shows a calm and cooperative defendant giving an articulate, intelligent, and detailed narrative statement and confessing to his participation in the murder. Defendant does not appear disheveled, stressed, or tired. No marks, bruises, or injuries are visible on defendant, and he makes no claim in his successive petition regarding any such injuries. Furthermore, as discussed above, the physical evidence concerning the location and type of ammunition recovered at the scene, the victim's wounds, the testimony of Lawrence Green concerning the motive for the shooting, and the testimony of witnesses Deal and Moore corroborated the details in defendant's confession.

         ¶ 64 Finally, we are compelled to comment on the dissent's egregious use of People v. Tyler, 2015 IL App (1st) 123470, to attack Detective Lenihan in this case. See infra ¶¶ 86, 167. The dissent's misleading citations and parentheticals to Tyler insinuate that the allegations in that case of police misconduct and physical coercion to obtain the defendant's confession included misconduct and coercion claims against Lenihan. That insinuation, however, is absolutely false.

         ¶ 65 For the above reasons, we affirm the circuit court's denial of defendant's motion for ...


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