*1 Illinois Official Reports
Appellate Court
,
District & No. First District, Fifth Division
No. 1-19-0483 Filed May 28, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 05-CR-12045; the Hon. William G. Gamboney, Judge, presiding. Review Judgmеnt Affirmed.
Counsel on James E. Chadd, Douglas R. Hoff, and David T. Harris, of State Appellate Defender’s Office, of Chicago, for appellant. Appeal
Kimberly M. Foxx, State’s Attorney, of Chicagо (Alan J. Spellberg, Janet C. Mahoney, and Margaret M. Smith, Assistant State’s Attorneys, of counsel), for the People.
Panel JUSTICE CUNNINGHAM delivered the judgment of the court, with
opinion.
Justices Hoffman and Rochford conсurred in the judgment and opinion.
OPINION ¶ 1 Defendant-appellant Mauricio Navarro—convicted of first degree murder, attempted
murder, and aggravated discharge of a firearm—appeals the denial of leave to file his successive postconviction petition. On appeal, the defendant argues that he established cause and prejudice sufficient to require consideration of his successive postconviction petition alleging that trial counsel was ineffective for failing to call an expert witness to testify about the reliability of eyewitness identifications. For the reasons that follow, we affirm the judgment of the circuit court of Cook County.
¶ 2 BACKGROUND On March 15, 2005, the defendant shot and killed Israel Lucena and shot at Fernаndo
Escobedo near Diversey Avenue and Laramie Avenue in Chicago. [1] The evidence at trial revealed that two eyewitnesses identified the same person (not the defendant) as resembling the shooter in a photo array, before later identifying the defendant as the shooter in a photo array and lineup. Adam Garcia, who was with the defendant at the timе of the shooting, also implicated the defendant in the shooting. At trial, the defendant did not present any evidence. The jury ultimately found the defendant guilty of first degree murder, attempted murder, and aggravated discharge of a firearm. The defendant was sentenced to an aggregate term of 80 years’ imprisonment. The defendant’s direct appeal was unsuccessful and his 2010 postconviction petition was
summarily dismissed. That dismissal was affirmed on appeal. On August 27, 2018, the defendant sought leave to file a pro se successive postconviction
petition alleging that trial counsel was ineffective for failing to call an expert to testify regarding the reliability of eyewitness identifications. On January 18, 2019, the trial court denied the defendant leave to file his successive
petition in a written ruling. [2] The defendant apрealed. ANALYSIS We note that we have jurisdiction to review this matter, as the defendant timely appealed.
Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); R. 303 (eff. July 1, 2017). The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a
penitentiary to challenge his conviction or sentence on the grounds that it was the result of a denial of his constitutional rights. 725 ILCS 5/122-1 (West 2016). The Act ordinarily contemplates the filing of a single postconviction petition ( People v. Brown , 2017 IL App (1st) 150132, ¶ 35) and explicitly states that “any claim of substantial denial of constitutional rights
not raised in the original or an amended petition is waived” (725 ILCS 5/122-3 (West 2016)).
This is bеcause successive postconviction petitions “ ‘plague the finality of criminal
litigation.’ ”
Brown
,
leave of court prior to filing such a petition. 725 ILCS 5/122-1(f) (West 2018). And a court
should only grant leave where a defendant can show either (1) cause and prejudice for fаilure
to raise the claim earlier or (2) a “fundamental miscarriage of justice,” also known as a claim
of actual innocence. See
People v. Edwards
,
ineffective for failing to call an expert to testify regarding the reliability of eyewitness
identifications. To establish сause for failure to raise this claim earlier, the defendant points to
the relationship between two cases addressing the use of expert testimony on eyewitness
identification. In 1990, the supreme court decided
People v. Enis
,
the defendant also argued that the trial court erred in barring the defense еxpert in eyewitness
identification from testifying. In , the court noted that in the years since
Enis
was
decided, research had revealed serious problems with the reliability of eyewitness
identifications and explained: “[W]hereas
Enis
expressed caution toward the developing
research concerning eyewitness identifications, today we are able to recognizе that such
research is well settled, well supported, and in appropriate cases a perfectly proper subject for
expert testimony.” ¶ 24. The court in concluded that it
was
an abuse of discretion
for the trial court to refuse to admit expert testimony on eyewitness identification.
Id. ¶
27.
The defendant in this case maintains that marked a “massive shift” in the law
regarding the reliability of eyewitness identification, justifying the defendant’s failure to raise
the issue of counsel’s ineffectiveness earlier. In , the court urged more liberal
admission
on expert testimony in the arеa of eyewitness identification. ¶ 24. In this case, the defendant
does not argue that the trial court erred in failing to
admit
expert testimony in eyewitness
identification. Instead, he argues that his counsel was ineffective for failing to
offer
expert
testimony on eyewitness identification. This was not what established.
Enis
, which was
decided in 1990, held that expert testimony on the issue of eyewitness identification was
admissible in certain circumstances. Thus, the claim that the defendant’s counsel was
ineffective for failing to offer expert testimony on the subject of eyewitness identificatiоn was
available to the defendant at the time of direct appeal in 2007, and he should, and could, have
raised the issue in that appeal.
*4
In support of his position, the defendant relies heavily on
People v. Wrice
,
But Wrice is inapposite. There, the Illinois Suprеme Court reversed the trial court’s denial of the defendant’s motion for leave to file a second successive postconviction petition where the defendant alleged that his confession was the result of torture. Id. ¶¶ 41, 90. While the defendant had made this allegation of torture at trial and in his previous postconviction petitions filed in 1991 and 2000, he supported his second successive postconviction petition with the newly released Report of the Special State’s Attorney that was not available to him until 2006. ¶¶ 29-31, 39-42. That report corroborаted the defendant’s specific allegations of torture. ¶ 41. Here, however, Lerma does not provide additional support for the defendant’s claim that
his counsel was ineffective for failing to offer expert testimony regarding eyewitness
identification. only emphasized that expert testimony on this issue was “perfectly
proper” “in appropriate cases.” ,
On one hand, he argues that, prior to , the law did nоt favor the use of expert testimony regarding eyewitness identifications, On the other hand, he argues that his counsel was ineffective for failing to offer expert testimony on the issue at his trial that took place years before was decided. The defendant cannot have it both ways. Either marked a “massive shift” on the issue of expert testimony and eyewitness identification, such that counsel could not have been ineffective for failing to offer such expert testimony at trial, or it did not, and therefore, the defendant could, and should, have raised the issuе of counsel’s ineffectiveness on that basis on direct appeal. Accordingly, we conclude that the defendant has not established cause for failure to raise
his ineffeсtive assistance of counsel claim earlier; thus, we need not determine if he was prejudiced. CONCLUSION For the reasons stated, we affirm the ruling of the circuit court of Cook County denying
the defendant’s leave to file a second, successive postconviction petition. Affirmed.
Notes
[1] The facts of this case were set forth in detail in our prior order ( , 389 Ill. App. 3d 1146 (table) (unpublished оrder under Illinois Supreme Court Rule 23)), and we repeat only those necessary to resolve the issues on appeal.
[2] On the same date, the court also denied the defendant’s pro se section 2-1401 petition for relief from judgment filed in October 2018. The defendant appealed this denial in his notice of appeal, but makes no argument for reversal in his brief. As such, it is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May 25, 2018).