Court of Appeals of Illinois, First District, Fifth Division
from the Circuit Court of Cook County No. 99 CR 20534
Honorable Thomas Gainer, Jr., Judge Presiding.
JUSTICE ROCHFORD delivered the judgment of the court, with
opinion. Presiding Justice Reyes and Justice Lampkin
concurred in the judgment and opinion.
1 A jury convicted defendant, Jose Velasco, of first degree
murder, and he was sentenced to 45 years' imprisonment.
Defendant subsequently filed an amended postconviction
petition, alleging actual innocence and ineffective
assistance of trial counsel. The postconviction court entered
two orders: (1) a July 1, 2014, order, dismissing his actual
innocence claim at the second stage without an evidentiary
hearing and (2) a May 16, 2016, order denying his ineffective
assistance of counsel claim after a third-stage hearing.
Defendant appeals the July 1, 2014, and May 16, 2016, orders.
We reverse the second-stage dismissal of defendant's
actual innocence claim and remand for a third-stage hearing.
We affirm the third-stage denial of defendant's
ineffective assistance claim.
2 Defendant was charged with the first degree murder of the
15-year-old victim, Juan Luna (the victim). At the jury
trial, Andrea Thomas and Michelle Scott testified that, at
about 2:30 p.m. on August 7, 1999, they drove Ms.
Thomas's boyfriend, Jevon Ollins, to his job at
Tito's Tacos, located at 1852 S. Blue Island Avenue in
Chicago. Ms. Thomas and Ms. Scott saw defendant standing
outside the restaurant. Defendant asked Ms. Scott whether she
and Ms. Thomas wanted to buy some cocaine, and Ms. Scott
declined. Ms. Scott testified she commented on
defendant's hair, the style of which (short except in the
back) she found unusual. Ms. Thomas and Ms. Scott eventually
left the scene.
3 Meanwhile, the victim and his friend, Danny Garcia, were at
the home of the victim's sister, Veronica Luna, and her
husband, Javier Sepulveda. Ms. Luna testified that her home
at 1916 S. Loomis Street was in the territory of a gang known
as La Raza. However, the nearby intersection of 18th and
Loomis Streets is in the territory of a gang known as the
Ambrose, a rival of La Raza. Defendant was a member of La
Raza, but the victim was not. Ms. Luna and Mr. Sepulveda
testified that defendant and the victim were good friends.
Mr. Sepulveda also testified that, while it was not safe for
members of one gang to go into the territory of a rival gang,
Tito's Tacos was considered a neutral zone.
4 At approximately 2:30 a.m. on August 8, 1999, the victim,
Mr. Sepulveda, and Mr. Garcia decided to walk one block to
Tito's Tacos to pick up some food and drinks. Ms. Luna
testified that she waited outside for the three of them to
return. Ms. Luna was concerned for the victim's safety
because an Ambrose "chief" named Willie Perez was
pressing charges against the victim for breaking Willie's
car windows. Mr. Sepulveda and Mr. Garcia went inside
Tito's Tacos, while the victim waited outside.
5 During this same time period, Ms. Thomas and Ms. Scott
returned to Tito's Tacos to pick up Mr. Ollins at the end
of his shift. The area was lit by street lights and lights
from Tito's Tacos. Ms. Scott testified that, after she
exited the car, she saw defendant approach the victim and
they argued. Ms. Scott and Ms. Thomas then saw defendant
reach to his side, pull out a gun, and shoot the victim. The
victim ran, but collapsed across the street, and subsequently
died. Defendant ran away. Ms. Luna testified that she heard
the shot and saw a man she could not identify running toward
18th and Loomis Streets (Ambrose territory).
6 Ms. Thomas testified that the police arrived almost
instantly. Mr. Ollins closed up Tito's Tacos and left
with Ms. Scott and Ms. Thomas, without speaking to the
7 Ms. Scott testified that, later that day, Mr. Ollins told
her that the police wanted to speak with her. Ms. Scott went
to the police station, where she gave two detectives a
description of the shooter based on his clothing, haircut,
bad acne, and a teardrop tattoo under his right eye. The
police showed Ms. Scott a series of photographs, from which
she identified defendant. Ms. Scott also returned to the
police station that evening, where she identified defendant
in a lineup. Ms. Scott testified to prior convictions for
forgery and possession of cannabis with intent to deliver.
8 Ms. Thomas testified that, three days after the shooting,
she also identified defendant from a photo array and
subsequently identified him in a lineup. Ms. Thomas testified
that she was placed on probation for a drug possession
charge, but she denied receiving any favors for her testimony
in this case.
9 Following all the evidence, the jury convicted defendant of
the first degree murder of the victim, and he was sentenced
to 45 years' imprisonment. On direct appeal, this court
affirmed defendant's conviction. See People v.
Velasco, No. 1-02-1793 (2003) (unpublished order under
Illinois Supreme Court Rule 23).
10 On January 18, 2013, defendant filed an amended
postconviction petition, claiming actual innocence based on
newly discovered evidence and ineffective assistance of trial
counsel based on counsel's failure to call alibi
11 I. Actual Innocence
12 In support of his claim of actual innocence, defendant
attached (1) the unnotarized statement of Andrea Thomas, (2)
the unnotarized statement of Claudia Cruz, (3) the affidavit
of Jevon Ollins, (4) the affidavit of Jonathan Meskauskas,
(5) the affidavit of Lynda Tricarico, (6) the affidavit of
Max Hernandez, and (7) the affidavit of Erica Vargas.
13 A. The Unnotarized Statements
14 1. Andrea Thomas
15 In her statement, dated April 19, 2010, Andrea Thomas
stated that both she and Ms. Scott were drunk and high when
they dropped off Mr. Ollins at Tito's Tacos on August 7,
1999. There were many Hispanic teenage boys standing outside
Tito's Tacos, and most of them had the same "strange
haircut" in which "their heads were shaved except
for long tails in the back."
16 Ms. Thomas and Ms. Scott were still drunk and high when
they drove back to Tito's Tacos several hours later to
pick up Mr. Ollins. Ms. Thomas and Ms. Scott were having a
conversation outside Tito's Tacos when they heard a
gunshot. Ms. Thomas ducked down beneath the car's
dashboard and yelled to Ms. Scott to get down. Ms. Thomas
never got a clear look at the person who fired the gun, and
she does not know whether defendant was the shooter.
17 After the shooting, Ms. Thomas initially avoided the
police because she previously had been arrested for selling
and possessing drugs and had missed a court date, and she
believed there was a warrant out for her arrest. Mr. Ollins
told her, though, that the State would "quash" her
arrest if she would cooperate and identify the shooter. Ms.
Thomas went to the police station, where the police took her
to a room in which Ms. Scott was sitting, and they were left
alone together. Ms. Scott had previously identified
defendant's photograph, and she described the photograph
so that Ms. Thomas would be able to identify the same person.
18 After speaking with Ms. Scott, the police questioned Ms.
Thomas alone. Initially, Ms. Thomas told them that she had
not seen the shooter, but the police told her she would be
locked up and would "lose" her child if she did not
cooperate. The police showed her some photographs,
"indicated" to her the one she should pick, and she
picked out the photograph of defendant. Ms. Thomas had
"no idea whether the boy [she] selected was the actual
19 After the identification, Ms. Thomas's arrest warrant
was quashed and she was allowed to go home with the
understanding that she was being released in exchange for her
cooperation and testimony against defendant. Ms. Thomas's
charges were reduced to possession of a controlled substance,
and she ultimately received one year of probation.
20 At defendant's trial, Ms. Thomas identified defendant
as the shooter. Her testimony was untrue, but she felt that
she had to identify defendant so as to avoid "more
probation, prison time, or other negative consequences."
21 In 2010, someone from the Northwestern University Pritzker
School of Law (Northwestern) met with her in prison and asked
her about the shooting. She agreed to recant her statement
because her trial testimony has "haunted [her]
conscience for the last 10 years" and she wanted
"to set the record straight."
22 2. Claudia Cruz
23 In her statement, dated November 30, 2007, Claudia Cruz
stated that she was walking toward Tito's Tacos on the
night of August 8, 1999, when she saw her cousin, Miguelito
(Miguel) Perez, and another cousin, Arturo, walking in an
alley. Ms. Cruz yelled: "Miguelito, " and he looked
in her direction. As she approached Tito's Tacos, Ms.
Cruz saw Miguel and Arturo come from behind Church's
Chicken toward the victim. Arturo brought his hands up from
his waistband and he fired two shots at the victim. Ms. Cruz
ran away and told her sister that "they just shot [the
victim]." To avoid getting into trouble with her mother
for being out late near Tito's Tacos, Ms. Cruz and her
sister made up a story that they had been together the whole
24 Ms. Cruz was now coming forward to make this statement
because she feels "bad" that defendant is locked up
for a crime he did not commit.
25 B. The Affidavits
26 1. Jevon Ollins
27 In his affidavit dated June 19, 2007, Jevon Ollins
attested that he was inside Tito's Tacos at the time of
the shooting and did not see the shooter. Mr. Ollins told the
police he had not seen the shooter, but they showed him a
photographic array and pointed out defendant's photograph
five or six times, thereby indicating to him that he was
supposed to identify defendant.
28 Mr. Ollins did not want to testify, but he was scared
because he had just gotten out of prison and the detectives
threatened that they could make things "hard" for
him. Mr. Ollins subsequently testified before the grand jury.
Detective Rodriguez and another detective told him to testify
that he saw defendant running after the shooting. Mr. Ollins
testified accordingly, although his testimony was untrue.
29 The police also told Mr. Ollins to tell Ms. Thomas that
they would "take care of" her pending court case if
she testified against defendant. Mr. Ollins passed that
information on to Ms. Thomas.
30 Ms. Thomas and Ms. Scott both told him they did not see
the shooter and that they testified against defendant only
because they were pressured to do so by the police.
31 Mr. Ollins has heard that the Ambrose gang put out a
"hit" on the victim because "of something that
happened between [the victim] and Willie Perez [an Ambrose
32 2. Jonathan Meskauskas
33 In his affidavit, dated April 14, 2010, Jonathan
Meskauskas attested that he was an Ambrose member in 1999. On
August 7, 1999, he heard about an Ambrose party on 18th
Street. When he arrived at 3 a.m., on August 8, he saw a lot
of police activity. Two Ambrose members told him that another
Ambrose had shot a La Raza member. Mr. Meskauskas
subsequently learned that the Ambrose had ordered the
shooting as retaliation for "something that a [La] Raza
or somebody associated with [La Raza] had done to one of the
older members of the Ambrose."
34 Eleven years later, Mr. Meskauskas and defendant were in
prison together, and defendant asked him for help in proving
his innocence. Mr. Meskauskas agreed because he was no longer
an active member of the Ambrose and because he knew defendant
35 3. Lynda Tricarico
36 In her affidavit dated July 24, 2012, Lynda Tricarico
attested that she is a practicing attorney in New York and a
former law student at Northwestern, where she participated in
the April 2010 interview of Mr. Meskauskas. Ms. Tricarico
heard Mr. Meskauskas reveal that, one week after the
shooting, Ambrose member Miguel Perez bragged about shooting
the victim. Mr. Meskauskas further revealed that the shooter
was the nephew of an Ambrose "chief" and is
currently confined to a wheelchair.
37 Mr. Meskauskas told Ms. Tricarico that he was willing to
sign a statement indicating that the Ambrose gang was
responsible for killing the victim, but that he did not want
to "snitch" on Mr. Perez and publicly identify him
as the shooter. Ms. Tricarico wrote out the statement of Mr.
Meskauskas, which he signed, that reflected the details to
which he was willing to testify.
38 4. Max Hernandez
39 In his affidavit dated April 11, 2013, Max Hernandez
attested that, at about 2 a.m. on August 8, 1999, he was
standing in front of a bar called Club Holiday on Blue Island
Avenue. He saw the victim walk to the nearby Tito's Tacos
with "Lil Danny" and "Javy." Lil Danny
and Javy went inside the restaurant while the victim remained
outside. Less than two minutes later, Mr. Hernandez saw an
Ambrose member named Miguelito "talking face to
face" with the victim. Miguelito took a few steps back,
pulled a gun from his waist, and shot the victim in the
chest. Miguelito then ran toward Church's Chicken, while
the victim ran toward 19th Street and collapsed on the curb.
40 Mr. Hernandez did not come forward earlier because he had
been unaware that defendant had been charged with this crime
until he moved back "into the neighborhood" around
41 5. Erica Vargas
42 In her affidavit dated January 11, 2014, Erica Vargas
attested that on the night of August 8, 1999, she was at her
boyfriend's third-floor apartment located at 1840 S. Blue
Island Avenue, across the street from Church's Chicken,
and just north of Tito's Tacos. She looked out the window
and saw Miguelito coming from behind Church's Chicken,
"creeping and crouching" so as not to be seen. She
knew who Miguelito was because she "saw him all the
time." She also knew defendant from seeing him around
the neighborhood, and she would have recognized defendant
"if that was him."
43 As Miguelito crossed Blue Island Avenue heading toward
Tito's Tacos, Ms. Vargas lost sight of him because a bay
window blocked her view. A few seconds later, she heard a
gunshot, and then saw Miguelito "run full speed back
towards Church's Chicken and Ambrose territory." The
next day, she learned that the victim was the person who had
been shot near Tito's Tacos the night before.
44 Ms. Vargas did not tell the victim's family,
defendant, or anyone in La Raza about what she had seen. She
remained silent because she had two younger brothers living
in Ambrose territory and did not want them to get hurt. Also,
about a week after the shooting, she was at her
boyfriend's apartment, when someone fired a shot through