Lead Opinion
delivered the opinion of the court:
Defendant Salvador Ortiz appeals the denial of his third postconviction petition. We reverse the ruling of the trial court and remand for new trial. In February 1994, following a bench trial, defendant was found guilty of first degree murder and sentenced to 47 years in prison. Defendant’s conviction and sentence were affirmed on direct appeal.
BACKGROUND
The defendant was convicted of the murder of Francisco Ramos (victim), who was shot and killed near Gill Park on Sheridan Road in Chicago on June 28, 1992.
Christopher Estavia testified for the State that he drove his friend, the defendant, one of the leaders of the Latin Eagles, to Gill Park. Estavia testified that he has never been a member of the Latin Eagles or any other street gang. While sitting on the hood of his automobile, he saw codefendants Oscar Chacon (Oscar) and Edwin Gomez in the park with the victim. He saw Oscar and Gomez make gang signs with their hands to elicit a response from the victim relating to his
Estavia further testified that an unknown person had threatened his wife at work in August 1992 and that his automobile windows were shot out sometime after he went to the police. In addition, his niece had been threatened at school when she was told that there would be problems if Estavia testified. Estavia was later placed under protective custody in 1993 after he claimed an unknown person shot at him. On May 4, 1993, Estavia gave another statement in the presence of a court reporter to private investigators hired by defendant recanting the statement he had previously given to police. He denied telling police that a high-ranking member of the Latin Eagles was present when he gave the statement.
Estavia’s testimony was further tainted when he failed to appear in court at two earlier trial dates, and a warrant was issued for his arrest. Estavia attempted to flee when police came to his home, arrested him and brought him to court, where a petition for contempt was filed against him. A police officer brought him to court when he testified on February 24, 1994. He testified he was not offered any deals regarding his pending contempt charges at the time of his testimony.
Edwin Villariny, a former member of the Latin Eagles, also testified for the State. He knew defendant from the Gill Park neighborhood and denied at trial being in the area on June 28, 1992. However, he provided a statement to the police that he was at Gill Park with defendant and codefendants the night of the shooting. His statement further corroborated Estavia’s trial testimony that defendant shot the victim once as he fled and that Oscar shot the victim an additional four times. Villariny also told the police in his statement that he saw a third, unknown man on a bicycle follow the victim and shoot him a sixth time. Villariny repeated the information in his statement before the grand jury, but recanted everything at defendant’s trial, testifying he was not at Gill Park on the night in question. He confirmed that he gave the police the written statement, but testified it was coerced and untrue. He claimed that the police interrogated him for two days while he was handcuffed to a wall, and he was struck by a police officer. He further claimed that the police threatened to charge him with a narcotics offense and call the Department of Children and Family Services on his family.
Detective John Murray and Assistant State’s Attorney Patrick McGuire both testified
The State also offered into evidence Oscar’s statement to the police admitting that he shot the victim and that a second person riding a bicycle on Sheridan Road also shot the victim, but that they were the only shooters. Oscar refused to identify the man on the bicycle. There is no mention of defendant in his statement.
Forensic evidence showed the victim died of multiple gunshot wounds. The victim had been shot six times, but only five bullets were recovered from his body, including one .32-caliber and four .22-caliber bullets. The medical examiner testified that the pattern of gunshot wounds indicated that at least four bullets entered from the victim’s back and went through to the front of his body. He found no evidence of close-range firing, which he defined as gunshots taken from 18 inches to 2 feet from the victim.
Defendant called his friend Arthur Dunlam, who was a Vietnam War veteran and not a member of the Latin Eagles or any other gang, to testify as an alibi witness. Dunlam testified that he was at Gill Park with defendant on the night of June 28, 1992. At 9:45 p.m. they were drinking beer with a group of men and heard what sounded like shots being fired but did not see anyone shooting or fighting and did not participate in any events with the victim.
The trial court found defendant guilty of first degree murder and sentenced him to 47 years in prison. Defendant’s conviction and sentence were affirmed on direct appeal. See People v. Ortiz, No. 1—94—2094 (1996) (unpublished order under Supreme Court Rule 23). Defendant filed a postconviction petition claiming actual innocence and ineffective assistance of counsel that was summarily dismissed. The dismissal was later affirmed on appeal. See People v. Ortiz, No. 1—98—1311 (1999) (unpublished order under Supreme Court Rule 23).
Defendant filed a second postconviction petition alleging actual innocence and ineffective assistance of counsel based on affidavits by Victoria Kahn and Victor Ocasio. Kahn said in her affidavit she witnessed the shooting and was brought to the police station to view the lineup, but Kahn could not identify the shooter. Ocasio said he saw Oscar chase the victim down Sheridan Road and shoot the victim four times. The affidavit also stated that he saw Efrain Chacon on a bicycle shoot at the victim three times. He did not mention defendant in his affidavit. Ocasio, a former member of defendant’s gang, said he did not come forward with this information sooner because he feared for his safety.
The trial court found the affidavits did not constitute newly discovered evidence and were cumulative of the evidence at trial. The trial court dismissed defendant’s second postconviction petition. This court affirmed. See People v. Ortiz, No. 1—01—0368 (2003) (unpublished order under Supreme Court Rule 23).
Defendant filed a third postconviction petition, which is the subject of this appeal. Defendant alleges actual innocence based on affidavits by Sigfriedo Hernandez, Daniel Huertas and Victor Ocasio. The trial court held an evidentiary hearing on the petition. Hernandez testified at the hearing that he knew defendant because they were both members of the same street gang. Hernandez said he was at Gill Park on the night in question. When Hernandez entered the park, he saw Oscar, Efrain Chacon (Efrain) and Miguel Renteria beating the victim. Hernandez said he walked
Hernandez testified that he did not tell anyone what happened that night because he was afraid that other members of the Latin Eagles would kill him if he did. He moved to Wisconsin in late 1992 or early 1993, and he came back in June 2003 for the Puerto Rican parade, where he ran into defendant’s mother. He testified that he felt compelled to tell her what he knew about the events that put her son in jail, and he agreed to put down in writing what he had told her because he felt bad for her. Hernandez said he finally came forward with the information “[t]o get it off [his] chest.”
The trial court found Hernandez’s testimony cumulative and insufficient to warrant a new trial. The court explained in its written opinion:
“The two eye-witnesses at the trial knew the defendant and said that the defendant was the shooter. This case did not deal with an identification issue but rather a question of credibility and the court found the two eye-witnesses to be credible. Therefore this court finds that *** Hernandez’s testimony was cumulative when weighed against the other two eye-witnesses who testified during the trial.”
The trial court denied defendant’s postconviction petition and this appeal followed.
ANALYSIS
A postconviction petitioner is entitled to an evidentiary hearing when he makes a substantial showing that his constitutional rights were violated. People v. Coleman,
Not every constitutional violation may be challenged through a postconviction proceeding. Coleman,
Before discussing the merits of defendant’s postconviction petition, this court must consider the State’s argument that the trial court should not have allowed a successive postconviction petition. The State argues that the Post-Conviction Hearing Act contemplates the filing of only one petition per defendant, and that to qualify for a successive petition, the new petition must satisfy the cause-and-prejudice test discussed by the Illinois Supreme Court in People v. Pitsonbarger,
The “cause-and-prejudice test as defined in Pitsonbarger” was “adopted” by our legislature and made part of the Post-Conviction Hearing Act. People v. Anderson,
“Only one petition may be filed by a petitioner under this Article without leave of the court. Leave of court may be granted only if a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction proceedings and prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process.” 725 ILCS 5/122 — 1(f) (West 2004).
After the legislature adopted the Pitsonbarger cause-and-prejudice test, our supreme court decided People v. Morgan,
Even though Morgan did not discuss the newly enacted subsection (f) and Pistonbarger was decided before it was enacted, both cases are instructive about what constitutes cause and prejudice under the statute, because the definitions of cause and prejudice in these cases are similar to the definitions contained in subsection (f). Morgan,
In sum, under both statute and case law, a petitioner seeking to establish fundamental fairness to bring a successive postconviction petition must show: (1) good cause for failing to raise the claimed
The State argues on appeal that defendant failed to show cause and prejudice and his successive postconviction petition was properly denied under section 122 — 3 of the Act (725 ILCS 5/122 — 3 (West 2004)). However, in Pitsonbarger, our supreme court stated that a showing of actual innocence
“We hold today that the cause-and-prejudice test is the analytical tool that is to be used to determine whether fundamental fairness requires that an exception be made to section 122 — 3 so that a claim raised in a successive petition may be considered on its merits. We reaffirm that even if the petitioner cannot show cause and prejudice, his failure to raise a claim in an earlier petition will be excused if necessary to prevent a fundamental miscarriage of justice. To demonstrate such a miscarriage of justice, a petitioner must show actual innocence or, in the context of the death penalty, he must show that but for the claimed constitutional error he would not have been found eligible for the death penalty.” Pitsonbarger,205 Ill. 2d at 459 .
In other words, fundamental miscarriages of justice will not be tolerated in favor of finality. Morgan,
Even though Pitsonbarger was decided before section (f) took effect, its exception for actual innocence still applies. First, as noted before, its definitions of cause and prejudice are very similar to the definitions adopted by the legislature for the same terms, and thus its discussions of those terms are still instructive. Second, as noted before, the legislature adopted the cause-and-prejudice test from Pitsonbarger. Third, in appellate court cases involving postconviction petitions filed after January 1, 2004, when section (f) became effective, several districts of the appellate court have concluded that the actual innocence exception still applies. People v.
Defendant contends on appeal that he should be granted a new trial because the trial court refused to consider eyewitness testimony as sufficient to support a claim of actual innocence and because the trial court failed to consider the trial evidence in light of the new testimony. Defendant argues that these actions amounted to manifest errors on the part of the trial court, therefore entitling him to a new trial.
“In Illinois, newly discovered evidence warrants a new trial when: (1) it has been discovered since the trial; (2) it is of such a character that it could not have been discovered prior to the trial by the exercise of due diligence; (3) it is material to the issue but not merely cumulative; and (4) it is of such a conclusive character that it will probably change the result on retrial.” People v. Williams,
This court agrees with defendant’s argument that Hernandez’s testimony warranted a new trial and that the trial court committed manifest error in denying a new trial. Hernandez’s testimony is newly discovered, material, and noncumulative, and probably would have changed the result on retrial. Hernandez not only testified that Oscar shot the victim, he was the only witness who identified the other shooter as Efrain, Oscar’s brother. The trial court erred when it found that the testimony was cumulative and when it failed to consider its effect on the result at a retrial.
Hernandez’s testimony is newly discovered evidence. Evidence is newly discovered when it has been discovered since the trial and is of such a character that it could not have been discovered prior to the trial by the exercise of due diligence. Molstad,
Defendant cites Molstad in support of his contention that eyewitness testimony is not cumulative. Molstad,
In the case at bar, Hernandez’s testimony was material and not cumulative. Evidence is considered cumulative where it “adds nothing to what [was] already before the jury.” Molstad,
Based on our supreme court’s decision in Molstad that the eyewitness testimony before it was not cumulative of other eyewitness testimony, this court finds that Hernandez’s testimony is not cumulative. Like the defendant in Molstad, the defendant in the instant case offered alibi evidence at trial and attacked the credibility of the State’s eyewitnesses. Also like the defendant in Molstad, the instant defendant presented eyewitness affidavits claiming that defendant was not present at the scene of the crime. Hernandez’s testimony goes even further by naming an entirely new offender, Efrain Chacon. It is difficult to see how this new testimony would not add anything to what is already in front of the fact finder. Just as our supreme court in Molstad found that the eyewitness testimony is not cumulative, this court must find that Hernandez’s testimony before it was not cumulative.
Also, Hernandez’s testimony probably would have changed the result on retrial. In its order denying defendant’s petition for a new trial, the trial court found that the additional eyewitness testimony was cumulative, but it did not specifically rule on whether the new testimony would have probably changed the result on retrial. Since we find that Hernandez’s testimony is not cumulative, this court must decide whether the testimony would probably change the result on retrial. This court finds that the result on retrial probably would change.
At retrial, the evidence of defendant’s innocence would be much stronger. Defendant would be able to offer the testimony of Hernandez, the only witness to the entire event other than Oscar, who would testify that defendant was never present at the crime. He would also have Ocasio’s testimony that Efrain Chacon shot the victim, corroborating Hernandez’s testimony. This evidence was never viewed in conjunction with Hernandez’s testimony. Although Ocasio’s statement was not relevant previously because he did not see the whole event, the statement becomes relevant when viewed in conjunction with Hernandez’s testimony because both men name Efrain Chacon as the second shooter. All of this evidence corroborates Oscar Chacon’s original statement to the police, which states that there were only two shooters. The State argues that this statement was only part of the case against Oscar Chacon because the cases were severed; however, this contention is not supported anywhere in the record.
Also, at retrial, the evidence of defendant’s guilt would be weaker. The only evidence offered against defendant was the eyewitness testimony of Estavia and Villariny. Both of these men recanted their statements at some point, but the trial court found that these recantations were not credible. However, Hernandez’s testimony and the Ocasio affidavit would cast a shadow on Estavia’s and Villariny’s original statements and corroborate their recantations at retrial.
The State argues that Dr. Kirschner’s testimony regarding the lack of evidence of close-range shooting and the likelihood that the victim was shot four times in the back refutes Hernandez’s version of the shooting. This court is not persuaded by this argument. Hernandez did not state that there was any close-range shooting or that the victim was not shot from behind. Also, as defendant points out, Dr. Kirschner was not called to testify as a rebuttal witness; thus, his testimony cannot be
The shift in strength of each side’s case would probably create a reasonable doubt of defendant’s guilt at retrial. Defendant no longer relies solely on alibi testimony. At retrial defendant would be able to attack the credibility of the State’s eyewitnesses directly with his own eyewitnesses. In addition, there was no physical evidence pointing to defendant. The weight of the evidence in favor of defendant’s innocence would be much stronger and would probably change the result upon retrial. Therefore, defendant must be granted a new trial.
CONCLUSION
For the foregoing reasons we reverse the judgment of the circuit court and grant defendant a new trial.
Reversed.
Notes
In Morgan, the State conceded that the defendant had met the cause- and-prejudice test because of “ ‘the seriousness of an actual innocence claim in a potentially capital case.’ ” Morgan,
Concurrence Opinion
specially concurring:
I write to specially concur because I agree that defendant should be given a new trial based upon the evidence presented to the trial court which, in my opinion, meets the cause-and-prejudice test outlined in section 122 — 1(f) (725 ILCS 5/122 — 1(f) (West 2004)). Therefore, the majority discussion about case precedent since the 2004 enactment as to whether actual innocence remains an exception to the cause-and-prejudice requirement necessary for the filing of successive petitions is unnecessary. I agree with the analysis in all other respects; therefore, I specially concur.
Dissenting Opinion
dissenting:
I respectfully disagree with the conclusion that Hernandez’s testimony is noncumulative and of such a conclusive nature that it would probably change the result on retrial.
The majority compares Hernandez’s testimony to that of Christopher Estavia and Edwin Villariny, both of whom testified that defendant shot the victim. The majority concludes, correctly, that this evidence is not cumulative. But the majority does not address Oscar Chacon’s statement and Arthur Dunlam’s testimony that defendant was not involved in the shooting. Oscar said in a statement admitted at defendant’s trial that he and the bicyclist were the only shooters. Dunlam testified as an alibi witness and said defendant was with him at the time of the shooting. With the exception of the bicyclist’s identity, Hernandez’s testimony does not offer anything that was not already before the trier of fact. See People v. Molstad,
The majority concludes that under Molstad, Hernandez’s testimony must be found not cumulative.
The majority also concludes that Hernandez’s testimony is enough to create a reasonable doubt of defendant’s guilt on retrial.
I would affirm the trial court order denying defendant postconviction relief under these circumstances.