THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL J. REYES, Defendant-Appellant.
No. 2-21-0143
Appellate Court of Illinois, Second District
October 3, 2022
2022 IL App (2d) 210143-U
JUSTICE SCHOSTOK delivered the judgment of the court. Justices Hutchinson and Birkett concurred in the judgment.
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). Appeal from the Circuit Court of Kane County. No. 07-CF-1821. Honorable Charles E. Petersen, Judge, Presiding.
Held: The second-stage dismissal of the defendant‘s postconviction petition is affirmed on the defendant‘s claims related to actual innocence and juror bias. The dismissal of the defendant‘s claim that defense counsel was ineffective in failing to call alibi witnesses to testify at trial is reversed and remanded for an evidentiary hearing.
¶ 1 The defendant, Michael Reyes, appeals the order of the circuit court of Kane County dismissing his postconviction petition under the Post-Conviction Hearing Act (Act) (
I. BACKGROUND
¶ 2 The facts are set forth in detail in our decision on direct appeal. See People v. Reyes, 2015 IL App (2d) 130832-U. We set forth here only those facts necessary to place into context the issues raised in the defendant‘s postconviction appeal. All additional facts necessary to resolve the arguments raised on appeal will be discussed in conjunction with the particular alleged basis for reversal.
¶ 3 On March 9, 1993, two brothers, Jesus and Francisco Montoya, were found murdered in a van parked on a residential street in Aurora. The men were in the back of the van and had bullet wounds to their heads. However, neither was shot between the eyes, or in his throat or neck. Four .45 caliber shell cases were found inside the van.
¶ 4 In 1993, a coworker of the defendant, Dennis Sorbel, gave a statement to the police that implicated the defendant in the murders. The defendant‘s home was searched the next day and the defendant voluntarily spoke to police. However, the defendant was not charged with the murders of the Montoya brothers until 2007. A jury trial was held between January 28 and February 1, 2013. The following evidence was presented.
¶ 5 Jesus‘s girlfriend testified that in 1993 the brothers were involved in selling cocaine for their family, who obtained it from an uncle in Texas.
¶ 6 Sorbel testified that, in 1993, he and the defendant were both employees at the same manufacturing plant in Aurora. On March 10, 1993, while eating lunch together at a Pizza Hut near work, the defendant told Sorbel that he had murdered two brothers as part of a “ripoff” involving $60,000 worth of drugs. The defendant said he used a .45 caliber gun and that he shot
¶ 7 Former FBI agent Paul Bock testified that he worked on an investigation into drug trafficking by members of the Latin Kings street gang in Aurora in late 2001. A large number of gang members were arrested and charged, and many offered to cooperate with the government‘s efforts to prosecute other gang members in exchange for cash, relocation, or favorable plea agreements in their own cases. Among other efforts, the FBI worked with the county sheriff and county prosecutor to reexamine unsolved murders, including the murders of the Montoya brothers.
¶ 8 The following people were involved with the FBI‘s gang-related investigations and received concessions in exchange for their testimony. Jose Oliva testified that in the spring of 1993, the defendant asked him for a gun and Oliva gave him a .45 caliber handgun. Juan Acevedo testified that he had been a Latin King in Aurora from 1988 through about 2004. In October 2002, the defendant told Acevedo that he and Abraham Estremera had murdered the Montoya brothers. Carlos Olivares testified that the defendant told him that he had used a .45 caliber handgun to kill the Montoya brothers and that he took nine ounces of cocaine from the brothers. Carlos Escalante testified that the defendant told him that he had killed the Montoya brothers. The defendant said that he arranged to buy cocaine from them, met with them inside a van, and shot them. Michael Rodriguez testified that, while he was in jail in 2007, he shared a cell with the defendant. At some point during that time, the defendant volunteered that he had killed the Montoya brothers. The defendant said Estremera was with him. The defendant first shot one brother, who was in the driver‘s seat; then he shot the other brother, who was a passenger. The defendant split the nine ounces of cocaine they took from the brothers with Estremera.
¶ 10 Finally, Gino Montoya testified that he was the victims’ younger brother. On the night in question his brothers left the house with nine ounces of cocaine and were planning to meet the defendant and some other individuals. He did not tell the police until September 2012 because his mother was afraid that he would be a victim of retaliation. Gino conceded that his mother had arranged for him to talk with police in 1993 and he did not tell the police what he knew at that time.
¶ 11 Following trial, the jury found the defendant guilty of three counts of first-degree murder (
¶ 12 On November 30, 2015, the defendant filed a postconviction petition. The defendant alleged that during postconviction investigation, former Aurora police officer, Reynaldo Rodriguez, provided an affidavit, dated November 25, 2015, which was attached to the petition. The defendant also attached a March 13, 1993, police report written by Rodriguez. The defendant argued that the affidavit and report established his actual innocence.
¶ 14 In his March 1993 police report, Rodriguez stated that on March 9, 1993, at about 3:00 to 3:45 a.m., he observed a brown and white van on Spencer Street near Downer Place. The police report described how Rodriguez observed two men near the van. The description was the same as
¶ 15 Based on Rodriguez‘s affidavit and police report, the defendant raised a claim of actual innocence, arguing that since Rodriguez did not identify the defendant as one of the men he saw near the van on the night of the murders, the defendant was innocent. The defendant acknowledged that for a claim of actual innocence he needed to present evidence that was new, material, noncumulative, and which would probably change the result on retrial. The defendant argued that the evidence was new because Rodriguez‘s mental condition prevented him from relaying the information to defense counsel and the jury at the time of trial. It was material and noncumulative because no one else saw the offenders on the night of the murders. Finally, it would likely change the result on retrial because there was no direct evidence of the defendant‘s guilt and the State‘s case at trial was largely based on testimony from informants who received concessions in exchange for their cooperation with the State.
¶ 16 Although not referenced in his postconviction petition, the record also contains a September 13, 2000, report that was written by Rodriguez after he viewed the photo arrays. Rodriguez indicated that he chose two photos from the arrays. He stated that one of the photos, showing a person with a mustache and goatee, was “similar” to one of the people he observed and that the other photo was of a person with the same approximate age and build of the person he saw
¶ 17 As an alternative to his claim for actual innocence, the defendant argued that defense counsel was ineffective in failing to call Rodriguez to testify at trial because Rodriguez would have presented exculpatory testimony to the jury.
¶ 18 On December 17, 2018, the defendant filed a supplemental petition. The defendant argued that defense counsel was ineffective in failing to interview and present alibi witnesses at the defendant‘s trial. The defendant also argued that he was deprived of his right to trial by an impartial jury where it appeared that one of the jurors knew the victims’ family.
¶ 19 The defendant attached affidavits from the defendant‘s mother, Teresa Martinez, and two sisters, Danielle Reyes and Raquel Martinez. In those affidavits, Teresa and Danielle stated that, at the time of the Montoya murders, they lived in the same house with the defendant. On the night of the murders, the defendant was at home all day and evening and never left the house. They stated that they repeatedly tried to give this information to defense counsel but defense counsel never had time to speak with them. They stated that they were at the trial every day and could have provided alibi testimony on behalf of the defendant.
¶ 20 The affidavits of Danielle and Raquel indicated that, on the first day of trial, they saw one of the jurors wave to Noelia Morales when she entered the courtroom. Morales was the mother of one of the victim‘s children, and she was on the witness list. The affiants indicated that the juror was excited to see Morales and waved. In response, Morales nodded and smiled. Raquel stated that the juror was a white woman with long, highlighted, blond hair. Raquel indicated that she informed defense counsel of the exchange. Defense counsel acknowledged the information but they never spoke about it again. Danielle also attested that the same juror gestured to the victims’
¶ 21 On September 16, 2019, the State filed a motion to dismiss the defendant‘s postconviction petition. The State argued that defense counsel was not ineffective in failing to call Teresa and Danielle as alibi witnesses because the decision of what witnesses to call is a matter of trial strategy. The State also argued that the defendant had not made a substantial showing that he was denied the right to an impartial jury. The State noted that, during voir dire, all the jurors stated that they could be fair and impartial and would render a verdict solely based on the evidence presented.
¶ 22 The State also argued that the defendant failed to establish a claim of actual innocence. The State asserted that Rodriguez‘s affidavit did not present any newly discovered evidence because Rodriguez‘s reports were in the possession of the defendant prior to trial. Further, Rodriguez was listed as a possible witness and under subpoena to appear at trial. The State noted that, at the start of trial, defense counsel filed a motion in limine to bar evidence that Rodriguez was discharged from the police department because of a record of untruthfulness. The State asserted that defense counsel made a strategic decision not not call Rodriguez to testify after the trial court denied the motion in limine. The State also argued that Rodriguez‘s affidavit was not of such a conclusive character that it would have changed the result on retrial.
¶ 23 On February 17, 2021, following a hearing, the trial court entered a written ruling. The trial court found that it was sound trial strategy not to call Teresa and Danielle as alibi witnesses since they were family members and the affidavits did not specifically indicate that they laid eyes on the defendant in the house on the night of the murders. The trial court also found that
II. ANALYSIS
¶ 24 The defendant‘s first contention on appeal is that the trial court erred in dismissing his postconviction petition because he made a substantial showing of actual innocence. Specifically, the defendant argues that Rodriguez‘s affidavit established that Rodriguez saw the offenders near the van where the murders occurred and that the defendant was not one of the people he saw.
¶ 25 The Act allows criminal petitioners to collaterally attack a prior conviction and sentence where there was a substantial violation of his or her constitutional rights. People v. Gosier, 205 Ill. 2d 198, 203 (2001). In order for a petitioner to successfully challenge a conviction or sentence pursuant to the statute, he or she must demonstrate that there was a substantial deprivation of federal or state constitutional rights. People v. Morgan, 187 Ill. 2d 500, 528 (1999).
¶ 26 The Act sets forth three stages of review. At the first stage, the trial court may summarily dismiss a postconviction petition as frivolous and patently without merit.
¶ 28 If the motion to dismiss is denied, the State must answer the petition and the proceeding moves to the third stage for an evidentiary hearing at which the trial court acts as the fact finder and determines whether the evidence introduced demonstrates that the defendant is entitled to relief.
¶ 29 The conviction of an innocent person violates the due process clause of the Illinois Constitution (
¶ 30 The last of these elements—i.e., that the evidence is of such conclusive character that it would probably change the result on retrial—is the most important element of an actual-innocence claim. People v. Washington, 171 Ill. 2d 475, 489 (1996). “[T]he hallmark of actual innocence means total vindication, or exoneration.” (Internal quotation marks omitted.) People v. Collier, 387 Ill. App. 3d 630, 636 (2008). In determining whether the evidence is so conclusive as to probably change the result on retrial, the court must engage in a balancing test of the evidence before it. Coleman, 2013 IL 113307, ¶ 97.
¶ 31 In the present case, the defendant failed to make a substantial showing of a claim of actual innocence. First, the information provided by Rodriguez in his affidavit was not new. It was substantially the same information contained in his March 1993 police report. The record shows that in a July 25, 2012, motion for additional discovery, the defendant acknowledged receipt of Rodriguez‘s March 1993 police report and a later report, dated September 13, 2000, in which Rodriguez described viewing photo lineups. Further, at a September 25, 2012, hearing on a motion to dismiss the defendant‘s indictment, defense counsel acknowledged the existence of Rodriguez‘s March 1993 and September 2000 reports. The record also shows that Rodriguez was under subpoena and was included on a witness list that was filed prior to trial.
¶ 33 The defendant‘s reliance on Ortiz is unpersuasive. Unlike in Ortiz, where the defendant had no way of knowing that the affiant witnessed the murder and the affiant fled to another jurisdiction, the defendant in the present case was aware of Rodriguez‘s police reports and his observations of the two men near the van on the night of the murders. Further, Rodriguez was on the witness list and subpoenaed for trial. Rodriguez‘s affidavit does not state that he would have refused to testify if called at trial. Moreover, even assuming that Rodriguez‘s had a mental condition that would have prevented him from testifying at trial, this does not mean his affidavit is newly discovered evidence. People v. Jones, 399 Ill. App. 3d 341, 364 (2010) (“evidence is not newly discovered when it presents facts already known to a defendant at or prior to trial, though the source of those facts may have been unknown, unavailable or uncooperative.“).
¶ 35 The defendant‘s next contention on appeal is that defense counsel was ineffective in failing to call Rodriguez to testify at trial as he could have provided exculpatory evidence. The defendant argues that he was prejudiced because there was no direct evidence of his guilt and the case against him was based almost entirely on the testimony of informants who received benefits in exchange for their testimony.
¶ 36 Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant arguing ineffective assistance of counsel must show not only that his or her counsel‘s performance was deficient but also that the defendant suffered prejudice as a result. People v. Houston, 226 Ill. 2d 135, 143 (2007). Specifically, under the two-prong Strickland test, “a defendant must show that (1) his counsel‘s performance *** fell below an objective standard of reasonableness, and (2) *** but for
¶ 37 To satisfy the deficient performance prong of Strickland, a defendant must show that his counsel‘s performance was so inadequate “that counsel was not functioning as the ‘counsel’ guaranteed by the sixth amendment” and, also, must overcome the strong presumption that any challenged action or inaction may have been the product of sound trial strategy. People v. Evans, 186 Ill. 2d 83, 93 (1999). Decisions concerning which witnesses to call at trial and what evidence to present on a defendant‘s behalf are considered matters of trial strategy and are generally immune from claims of ineffective assistance of counsel. People v. Wilborn, 2011 IL App (1st) 092802, ¶ 79. If a defendant can establish that counsel‘s performance was deficient, the second prong requires the defendant to show that he was prejudiced as a result. People v. Dupree, 2018 IL 122307, ¶ 44. “That is, a defendant must show that counsel‘s deficiency was so serious that it deprived him of a fair trial.” Id.
¶ 38 In the present case, the defendant has failed to make a substantial showing that defense counsel was ineffective in failing to call Rodriguez to testify at trial. The record indicates that Rodriguez was on the witness list and subpoenaed for trial. Prior to trial, defense counsel filed a motion to bar any evidence related to Rodriguez‘s personnel file or the reasons why he was terminated from the police department. The trial court denied the motion, finding that, because one of the reasons for Rodriguez‘s termination had to do with truthfulness, it was open for cross-examination. As such, if Rodriguez had been called to testify, he could have been impeached with evidence that he was terminated from the police department based on being untruthful. Accordingly, the defendant has failed to overcome the strong presumption that defense counsel
¶ 39 The defendant‘s third contention on appeal is that he made a substantial showing that defense counsel was ineffective in failing to present alibi witnesses. Teresa and Danielle both provided affidavits stating that, at the time of the offense, they lived with the defendant and that, on the day of the murders, he was at home all day and night. They also stated that they attempted to speak with defense counsel about the alibi, but defense counsel ignored their requests.
¶ 40 As noted above, decisions concerning which witnesses to call at trial and what evidence to present are matters of trial strategy that are generally immune from claims of ineffective assistance of counsel. Wilborn, 2011 IL App (1st) 092802, ¶ 79. Nonetheless, defense counsel has a professional duty to conduct reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. Domagala, 2013 IL 113688, ¶ 38. The failure to interview witnesses may be indicative of deficient representation when the witnesses are known to trial counsel and their testimony may be exonerating or support an otherwise uncorroborated defense. Coleman, 183 Ill. 2d at 398; People v. Tate, 305 Ill. App. 3d 607, 612 (1999).
¶ 41 The defendant relies on Tate in arguing that he is entitled to an evidentiary hearing on his claim. In Tate, following a jury trial, the defendant was convicted of murder. Id. at 608. The defendant filed a postconviction petition alleging counsel was ineffective in failing to call certain alibi witnesses whose affidavits indicated that the defendant could not have been present at the
¶ 42 We find the defendant‘s reliance on Tate to be persuasive. In the present case, the defendant has also made a substantial showing that defense counsel was ineffective in failing to present the alibi witnesses. The defense theory at trial was that the defendant was innocent and the State‘s witnesses were not credible as the majority of them were cooperating with the State to secure benefits for themselves, such as monetary payments and reduced sentences for their own crimes. As in Tate, the affidavits of Teresa and Danielle, taken as true at this stage in the proceedings (Gerow, 388 Ill. App. 3d at 526), would have supported the defense as an alibi would have further tested the credibility of the State‘s witnesses. The record simply does not reflect that defense counsel made a strategic decision not to call the alibi witnesses, as there was no apparent reason not to do so. Further, in the absence of any physical evidence linking defendant to the crime scene and if the alibi witnesses were deemed credible, we cannot say that there is no reasonable probability that the result of the trial would have been different. Accordingly, the defendant is entitled to an evidentiary hearing on this claim. Tate, 305 Ill. App. 3d at 612.
¶ 44 We also note that the State relies on People v. Williams, 2017 IL App (1st) 152021, in arguing that the dismissal of this claim should be affirmed. In Williams, the defendant was convicted of murder based mostly on the testimony of witnesses who received concessions in exchange for their testimony. Id. ¶¶ 6-8. In a postconviction petition, the defendant alleged that trial counsel was ineffective in failing to interview and call alibi witnesses. Id. ¶ 9. The trial court granted the State‘s motion to dismiss the petition. Id. On appeal, the reviewing court reversed the second-stage dismissal of the claim and remanded for an evidentiary hearing. Id. ¶ 10 (citing People v. Williams, 2013 IL App (1st) 110304-U, ¶¶ 17, 20). At the evidentiary hearing, the alibi witnesses provided testimony regarding the alleged alibi. Id. ¶¶ 11-13. Following the testimony, the trial court granted the State‘s motion for a directed finding. The trial court found that the alibi witnesses were not credible, that trial counsel made a strategic decision not to present the alibi testimony, and that there was no reasonable probability that the alibi testimony would have changed the result at trial. Id. ¶ 15. On appeal, the defendant argued that the trial court erred in
¶ 45 We find the State‘s reliance on Williams misplaced as it actually supports our determination in the present case. In this case, as in Williams, the evidence against the defendant was largely based on testimony of witnesses who received concessions in exchange for their testimony. Though the Williams court affirmed the dismissal of the defendant‘s postconviction claim, it was only after an evidentiary hearing was held where the trial court could assess the credibility of the alibi testimony, whether trial counsel made a strategic decision not to call the alibi witnesses, and whether the lack of alibi testimony was prejudicial to the defendant. In this case, as in Williams, the defendant is entitled to an evidentiary hearing.
¶ 46 The defendant‘s final contention on appeal is that he made a substantial showing that he was denied his right to an impartial trial where it appeared that one juror knew the victim‘s family or at least one member of the victim‘s family. In relation to that argument, the defendant also argues that the trial court erred in denying his request for postconviction discovery concerning the identity of the jurors.
¶ 47 The federal and Illinois constitutions guarantee the right to a fair trial by an impartial jury.
¶ 48 In the present case, the defendant has failed to make a substantial showing that he was denied his right to a fair and impartial jury. The allegation in his postconviction petition is that one of the jurors was an acquaintance of the victim‘s family. The affidavits in support of this assertion indicate that, on the first day testimony was taken at trial, one of the jurors waved at Morales, that the same juror gestured to the victims’ family in the courthouse hallway, and that the juror hugged Morales in the parking lot after the conclusion of trial. To make a substantial showing of a constitutional violation, there must be allegations that, if proven at an evidentiary hearing, would entitle the petitioner to relief. Domagala, 2013 IL 113688, ¶ 35. Here, even if these allegations were proven to be true, they do not establish that the juror at issue was not impartial. During voir dire, the names of all the witnesses were read, including the name of Morales, and none of the jurors indicated that they knew her. In addition, all the jurors acknowledged that the defendant was innocent until proven guilty, that they would decide the case solely based on the facts heard in the courtroom, and that they could be fair and impartial to both sides. The fact that a juror may have recognized Morales upon seeing her does not establish juror bias. See, e.g., People v. Porter, 111 Ill. 2d 386, 404 (1986) (fact that juror and victim‘s mother attended the same church was insufficient to show juror bias); People v. Strawbridge, 404 Ill. App. 3d 460, 467 (2010) (fact that juror had recognized the victim when the victim testified was not sufficient to establish that juror could not be impartial).
¶ 49 In arguing that he is entitled to an evidentiary hearing, the defendant relies on People v. Hobley, 182 Ill. 2d 404 (1998). In Hobley, the defendant was convicted of murder and arson and sentenced to death. Id. at 410. The defendant filed a postconviction petition alleging, in part, that
¶ 50 The defendant‘s reliance on Hobley is unpersuasive. An evidentiary hearing was warranted in Hobley where there were allegations of presumptively prejudicial jury communications and the supporting affidavits indicated that the communications had affected the jury. In this case, unlike in Hobley, there was no allegation of direct communication between the juror and any third party. There only allegations of friendly gestures and a hug following a murder trial. These allegations are not sufficient to establish that there was any type of relationship that would support a conclusion of juror bias. See People v. Williams, 209 Ill. 2d 227, 241-42 (2004) (mere assertion of improper juror conversation did not warrant evidentiary hearing when there were no allegations establishing that the improper conversation was prejudicial).
¶ 51 In a related argument, the defendant contends that the trial court erred in denying his motion for postconviction discovery. Neither criminal nor civil discovery rules apply to proceedings under the Act. People v. Fair, 193 Ill. 2d 256, 264 (2000). Nonetheless, a trial court has inherent discretionary authority to order discovery in postconviction proceedings. People v. Johnson, 205 Ill. 2d 381, 408 (2002). Trial courts should exercise this authority with caution and should only
¶ 52 In the present case, we cannot say that the trial court abused its discretion in denying the defendant‘s request for postconviction discovery. The trial court considered relevant factors. The trial court considered that, because all the jurors denied knowing Morales during voir dire, the assertion of any relationship between Morales and a juror was rebutted by the record and any discovery would be repetitive. The trial court also considered that the jurors were only referred to by number during trial as this was a gang-related murder case and the jurors had a reasonable expectation of anonymity. Discovery could cause jurors to feel afraid or uncomfortable. The trial court also found that Danielle‘s assertion that she saw a juror wave to Morales in the courtroom, on the first day of trial where testimony was heard, was rebutted by the fact that Danielle and Morales were both on the potential witness list and would not have been in the courtroom at the same time. In light of the foregoing, we cannot say the trial court abused its discretion in denying the motion.
¶ 53 The defendant argues that he satisfied the good cause standard because the wave, gestures and embrace between the juror and Morales establish a possible relationship between the juror and
III. CONCLUSION
¶ 54 For the reasons stated, we affirm the dismissal of the defendant‘s postconviction claims related to actual innocence and juror bias. We reverse the dismissal of the defendant‘s claim that defense counsel was ineffective in failing to call alibi witnesses at trial and we remand for an evidentiary hearing on that claim.
¶ 55 Affirmed in part and reversed in part; cause remanded.