2021 IL App (3d) 180618
Ill. App. Ct.2021Background
- Costic was convicted of first-degree murder and aggravated battery after a jury trial; he received consecutive prison terms totaling 51 years. On direct appeal, convictions and sentences were affirmed.
- At trial, eyewitness Kimberly Brock identified Costic from a photo lineup and in court as the shooter; Christeia Bonner heard shots but did not see the shooter; Gerald Embrey (familiar with both brothers) saw the brothers near the scene but did not see who fired.
- Defense witness Twila Williams testified that she saw Michael (Costic’s brother) fire a gun and another man stood beside him, but she said she didn’t get a good look at the second man. Co-defendant Michael invoked his Fifth Amendment right at trial and did not testify.
- A jailhouse witness, Jared Hanneman, testified that Costic told him Michael grabbed a gun and shot into the crowd; Costic did not testify at trial.
- Two years after conviction, Michael submitted a notarized affidavit saying he alone retrieved a gun and fired the shots; Costic filed a pro se postconviction petition asserting a claim of actual innocence supported by that affidavit. The trial court summarily dismissed the petition as frivolous and without merit.
- The appellate court reversed the first-stage dismissal, holding Michael’s affidavit pled a colorable claim of actual innocence and remanding for second-stage postconviction proceedings with appointment of counsel; Justice Schmidt dissented.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Costic) | Held |
|---|---|---|---|
| Whether Michael’s affidavit qualifies as "newly discovered" evidence supporting a stand‑alone actual innocence claim | Affidavit is not newly discovered because facts were known and Michael was available to be called; affidavit submitted after Michael’s conviction undermines credibility | Michael was constitutionally unavailable at trial (invoked Fifth); thus his later affidavit is newly discovered and material | Affidavit is newly discovered: Michael’s Fifth Amendment invocation made his testimony unavailable at trial; petition states gist of actual innocence |
| Whether Michael’s affidavit is noncumulative and of such conclusive character that it would probably change the result on retrial | Affidavit is cumulative of Williams’s trial testimony and lacks conclusive force; other trial testimony (Brock, Embrey, Hanneman) undermines it | Affidavit constitutes an admission by the actual shooter and adds noncumulative, materially conclusive evidence that conflicts with the prosecution’s identification | Affidavit is noncumulative and sufficiently conclusive at the first stage to require second‑stage proceedings and appointment of counsel |
Key Cases Cited
- People v. Manrique, 351 Ill. App. 3d 277 (Ill. App. Ct. 2004) (a codefendant’s willingness to testify to his own guilt can establish an actual innocence claim)
- People v. Ortiz, 235 Ill. 2d 319 (Ill. 2009) (newly discovered evidence is noncumulative when it adds something no trial witness offered and may undercut the verdict)
- People v. Coleman, 183 Ill. 2d 366 (Ill. 1998) (first‑stage review limits court to the petition’s well‑pleaded allegations; no credibility determinations)
- People v. Morgan, 212 Ill. 2d 148 (Ill. 2004) (actual innocence claim is cognizable under postconviction statute to prevent miscarriage of justice)
- People v. Hodges, 234 Ill. 2d 1 (Ill. 2009) (de novo review of first‑stage summary dismissal)
- People v. Molstad, 101 Ill. 2d 128 (Ill. 1984) (even when defendant presented alibi testimony at trial, later evidence from codefendants may raise questions about the verdict)