appellate court of illinois people of the state of
TRANSCRIPT
NO. 4-11-0415
IN THE
APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
vs.
JAMES SNOW,
Defendant-Appellant.
) Appeal from the Circuit Court of) the Eleventh Judicial Circuit) McLean County, Illinois)) No. 99-CF-1016)) Honorable) Alesia McMillen) Judge Presiding.
QBRIEF AND ARGUMENT FOR PLAINTIFF-APPELLEE
William A. YoderMcLean County State's AttorneyMcLean County Law & Justice CenterBloomington, Illinois 61701
Patrick DelfinoDirectorRobert J. BidermanDeputy DirectorAnastacia R. BrooksStaff AttorneyState's Attorneys Appellate
Prosecutor725 South Second StreetSpringfield, Illinois 62704(217) 782 - 8076
COUNSEL FOR PLAINTIFF-APPELLEE
ORAL ARGUMENT REQUESTED
PAGE
.,POINTS AND AUTHORITIES
I
THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS
TO RAISE A FREESTANDING CLAIM OF ACTUAL INNOCENCE . . . . 19
People v. Washington, 171 Ill.2d 475, 665 N.E.2d 1330
(1996) ..... . . 19
People v. Collier, 387 Ill.App.3d 630, 900 N.E.2d 396
(1st Dist. 2008) . . . . . . . . . . . . . · · 19, 23
People v. Morales, 339 Ill.App.3d 554, 791 N.E.2d 1122
(1st Dist. 2003) . . . . . . . . . . . . . . · · . . 19
People v. Steidl, 142 Ill.2d 204, 568 N.E.2d 837
(1991) .
People v. Brown, 371 Ill.App.3d 972, 864 N.E.2d 767
(1st Dist. 2007) .....
People v. Cleveland, 342 Ill.App.3d 912, 796 N.E.2d
201 (2d Dist. 2003)
People v. Reyes, 369 Ill.App.3d I, 860 N.E.2d 488
· . . 20
· .. 23
· .. 27
(1st Dist. 2006) . . . · . . . 27
II
THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS
TO SHOW THAT HE RECEIVED INEFFECTIVE ASSISTANCE . . . . . 28
i
People v. Albanese, 125 Ill.2d 100, 531 N.E.2d 17
'.. (1988) . 28
28
· 30
. .. 30
. . . . 30
29
· 30
Strickland v. Washington, 466 U.S. 668 (1984)
People v. Morales, 339 Ill.App.3d 554, 791 N.E.2d 1122
(1st Dist. 2003) .
People v. Thomas, 2011 IL App (4th) 100666 . . . ..
People v. Gabriel, 398 Ill.App.3d 332, 924 N.E.2d 1133
(1st Dist. 2010) .
People v. Love, 377 Ill.App.3d 306, 878 N.E.2d 789
(1st Dist. 2007) .
People v. Enis, 163 Ill.2d 367, 645 N.E.2d 856
(1994) .
People v. Smith, 195 Ill.2d 179, 745 N.E.2d 1194
(2000) . . . . . . . . . . . . . . . . . . . . . .. 31
People v. Snow, No. 4-01-0435 (August 20, 2004)
(unpublished order pursuant to Supreme Court
Rule 23) . . . . . . . .
Supreme Court Rule 341(h) (7)
34
· 30
III
THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS
TO SHOW THAT HIS DUE PROCESS RIGHTS WERE VIOLATED . . . . 35
United States v. Bagley, 473 U.S. 667 (1985) 35
ii
. 36
37
37
•
Kyles v. Whitley, 514 U.S. 419 (1995) 35
People v. Morales, 339 III.App.3d 554, 791 N.E.2d 1122
(1st Dist. 2003) .
Akrawi v. Booker, 572 F.3d 252 (6th Cir. 2009)
Matthews v. Ishee, 486 F.3d 883 (6th Cir. 2007)
People ex reI. Daley v. Fitzgerald, 123 III.2d 175,
526 N.E.2d 131 (1988) 38
People v. Rodriguez, 387 III.App.3d 812, 901 N.E.2d
927 (1st Dist. 2008) 39
People v. Love, 377 III.App.3d 306, 878 N.E.2d 789
(1st Dist. 2007) 39
People v. Enis, 163 III.2d 367, 645 N.E.2d 856
(1994) . . . . . . . . . . . . . . . . . . . . . . . 39
People v. Curtis, 113 III.2d 136, 497 N.E.2d 1004
(1986) . . . . . . . . . . . . . . . . . . . . . . . 40
Neil v. Biggers, 409 U.S. 188 (1972) 40
People v. Jones, 211 III.2d 140, 809 N.E.2d 1233
(2004) . . . . . . . . . . . . . . . . . . . . . . . 41
People v. Newman, 365 Ill.App.3d 285, 848 N.E.2d 262
(4th Dist. 2006) . . . . . . . . . . . . . . . . . . 41
People v. Borello, 389 III.App.3d 985, 906 N.E.2d 1250
(4th Dist. 2009) 41
People v. Robinson, 375 IIl.App.3d 320, 872 N.E.2d
1061 (2d Dist. 2007) . . . . . . . . . . . . . . . . 42
iii
210 III.2d R.341(h) (7) . . . . . . . . . . . . . 41
IV
THE TRIAL COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR
BALLISTICS DATABASE TESTING OF THE BULLETS THAT HAD BEEN
RECOVERED FROM THE VICTIM'S BODY 43
People v. Slover, 2011 IL App (4th) 100276 . . ..... 43
People v. Savory, 197 III.2d 203, 756 N.E.2d 804
(2001) . . . . . . . . . . . . . . . . . . . . . . . 44
People v. Pursley, 407 III.App.3d 526, 943 N.E.2d 98
(2d Dist. 2011) .. 44
725 ILCS 5/116-3 (c) (1) (West 2010) 43
V
DEFENDANT HAS FAILED TO PERSUADE THAT HE IS ENTITLED TO
POST-CONVICTION DISCOVERY AND/OR REMAND FOR FURTHER
PROCEEDINGS BEFORE A DIFFERENT JUDGE . . . . . . . . . . 45
People ex reI. Daley v. Fitzgerald, 123 III.2d 175,
526 N.E.2d 131 (1988) 45
Eychaner v. Gross, 202 III.2d 228, 779 N.E.2d 1115
(2002) . . . . . .
210 II1.2d R.341(h) (7)
iv
47
46
NATURE OF THE CASE
Following a jury trial, defendant was convicted of first
degree murder and was sentenced to natural life in prison.
This court affirmed on direct appeal. See People v. Snow, No.
4-01-0435 (August 20, 2004) (unpublished order pursuant to
Supreme Court Rule 23). Defendant now appeals from the trial
court's dismissal of his post-conviction petition and the
denial of his motions for ballistics testing, discovery, and
further supplementing the petition.
1
STATEMENT OF FACTS
In September 1999, defendant was indicted on first degree
murder charges arising from his March 31, 1991, shooting of
William Little. (R. Vol. I, C20-C22)
A. Tim Powell
Powell had a sister, Susan Claycomb, whose brother-in-law
was defendant. (R. Vol. XXV, 198) Weeks before the Clark
station shooting, defendant rode with Powell and commented
about going to rob the Freedom station. (R. Vol. XXV, 198-200)
Defendant then went into the Clark station. (R. Vol. XXV, 202)
B. Carlos Luna
Luna lived nearby the Clark station. (R. Vol. XXIII, 73-
75) Luna "kept looking" at someone who exited the station,
walked east, and then north. (R. Vol. XXIII, 80) Luna thought
that the suspect was carrying the cash register tray
underneath a coat. (R. Vol. XXIII, 82) At the time, Luna got
the impression that the station was robbed. (R. Vol. XXIII,
83) Police then arrived. (R. Vol. XXIII, 84) Weeks later,
Luna viewed an in-person six-person lineup and selected
defendant. (R. Vol. XXIII, 87-88) Luna testified that
defendant "fit the picture" in his mind. (R. Vol. XXIII, 89)
When police asked if Luna was "sure," Luna replied, "I think
he is the person." (R. Vol. XXIII, 108, 112)
2
pump at
158-159)
Defendant's petition contains a report of the lineup, and
Luna said that defendant "looked like the person" based on the
resemblance of his face shape and hair. (R. Vol. X, C2736)
Defendant also provided testimony that police did not think
that Luna "could provide enough information to complete an
effective composite." (R. Vol. X, C2750) In 2010, Luna
provided the defense an affidavit about the lineup to the
effect that defendant "best fit" but that Luna could not say
that he was "sure." (R. Vol. XII, C3232)
C. Danny Martinez
Martinez testified that he was using the air
Clark when he heard "two bangs." (R. Vol. XXII,
Martinez saw a man "coming out the door backwards," and
Martinez walked toward the station. (R. Vol. XXII, 159)
Martinez noticed the man's eyes when they were face-to-face.
(R. Vol. XXII, 160) Martinez claimed, "I'll never forget
those eyes." (R. Vol. XXII, 160) The man walked around the
east corner and headed north. (R. Vol. XXII, 162) Martinez
then walked toward the station and heard an officer order him
to stop. (R. Vol. XXII, 161, 163) Martinez was unable to
identify defendant in photo books or an in-person lineup due
to distance and lighting. (R. Vol. XXII, 172-173) In July
2000, Martinez spotted defendant in a photograph of the
lineup. (R. Vol. XXII, 173-175) Martinez had seen defendant's
3
photograph in the newspaper after defendant's arrest. (R. Vol.
XXII, 176-177) Martinez identified defendant in court. (R.
Vol. XXII, 177-178) Martinez had been "85 percent sure" but
became "a hundred percent sure" at trial. (R. Vol. XXII, 178)
Defendant's petition contained affidavits claiming that
Martinez knew defendant growing up. (R. Vol. X, C2681-C2686)
Moreover, Martinez's police interviews showed that the man
left the area before police arrived. (R. Vol. X, C2713, C2716,
C2718, C2722, C2724)
D. Jeff Pelo and Paul Williams
Pelo took three minutes to respond to the holdup alarm at
Clark. (R. Vol. XXII, 99) Pelo parked in a concealed location
and approached on foot. (R. Vol. XXII, 100) Pelo saw Martinez
using the air pump. (R. Vol. XXII, 101) Martinez then walked
toward the station. (R. Vol. XXII, 103) Pelo did not see
anyone exit the station, and Martinez was the only other
person on foot at the time. (R. Vol. XXII, 103, 123) Martinez
told Pelo that Martinez had seen someone leave the station and
proceed north. (R. Vol. XXII, 133) Williams did not see
anyone else leave the station. (R. Vol. XXII, 152)
Defendant's petition contained Pelo's affidavit to the
effect that he saw no one leave the Clark station after he got
in position to view the door. (R. Vol. X, C2674) Pelo also
provided that conclusion in a taped interview from March 1999.
4
(R. Vol. X, C2701) Pelo disputed Martinez's claim about
speaking with Pelo before leaving the lot. (R. Vol. X, C2677)
E. Karen Strong
At the time of the shooting, Strong knew defendant
through her boyfriend, Mark "Stretch" McCowan. (R. Vol. XXVII,
5-6) A couple of hours later, McCowan asked Strong if
defendant could "stay for a few days." (R. Vol. XXVII, 8)
Strong saw defendant outside. (R. Vol. XXVII, 9) McCowan
later indicated that defendant had "needed a place to stay for
a few days because he was in trouble." (R. Vol. XXX, 6)
McCowan later added that defendant "had shot the Little kid in
the robbery." (R. Vol. XXX, 9)
Defendant's petition contained McCowan's affidavit
speculating that Strong was "working off" an arrest about
which McCowan had "heard." (R. Vol. XI, C2826) Moreover, Mark
Huffington's affidavit alleged that Strong disclaimed
knowledge about the case. (R. Vol. XI, C2831)
F. Bill Gaddis
Gaddis testified that he knew defendant most of his life.
(R. Vol. XXIV, 15) He visited an apartment the next day and
saw defendant and other people. (R. Vol. XXIV, 17-19)
Everyone seemed "down," and Gaddis asked, "who died." (R. Vol.
XXIV, 20) No one answered until "Frankie said Jamie shot a
boy at a gas station." (R. Vol. XXIV, 20) Defendant had his
5
head down and did not say anything. (R. Vol. XXIV, 21) Dennis
Hendricks' denial of that incident was impeached with his
grand jury testimony. (R. Vol. XXXVIII, 45-47)
G. Randall Howard
Howard had been "best friends" with defendant. (R. Vol.
XXV, 46-47) Howard took a bus back to Bloomington a day or
two after the shooting, and defendant picked up Howard. (R.
Vol. XXV, 48) Defendant asked, "did you hear what happened"
before saying, "Man, bro, I f***ed up. I shot this kid." (R.
XXV, 54)
Vol. XXV, 49-50)
loud. (R. Vol.
Defendant's demeanor was very excited and
After a minute of conversation,
defendant said, "no, I'm just joking." (R. Vol. XXV, 50)
Defendant remarked days later that the police composite
drawings looked "just like me." (R. Vol. XXV, 56) Howard
added, "the one does look just like him." (R. Vol. XXV, 56)
Defendant's petition contained Howard's affidavit to the
effect that police visited him "every week" for a few months
after the shooting, asking him "a lot" of questions about
defendant and whether Howard knew anything. (R. Vol. XI,
C2782) Howard claimed that he told police the truth during
those conversations. (R. Vol. XI, C2782)
H. Ed Palumbo and Shannon Wallace
Palumbo testified that he knew defendant for a "number of
years." (R. Vol. XXIII, 119) A few days after the shooting,
6
Palumbo was with Wallace when he encountered defendant. (R.
Vol. XXIII, 121-122) Defendant asked Palumbo to read about
defendant in the newspaper. (R. Vol. XXIII, 123) Defendant
added, "Boom boom. Gun goes off. Kid dies." (R. Vol. XXIII,
123) Weeks later, Palumbo asked about the gun, and defendant
replied that "he took care of it." (R. Vol. XXIII, 126)
Defendant added that he shot the attendant for being a "smart
ass," it was not as hard as he thought, and there was not a
lot of money. (R. Vol. XXIII, 126) Palumbo possibly hoped for
leniency when he spoke with police. (R. Vol. XXIII, 139-140)
Palumbo denied that the prosecution promised anything. (R.
Vol. XXIII, 147-148) Wallace heard only the word "Paper," but
Palumbo told her that same day that defendant admitted "that
the gun went off and the kid died." (R. Vol. XXV, 74-76)
Defendant's petition contained Palumbo's affidavit to the
effect that he informed on defendant while "trying to get a
deal" and that he was threatened with consequences if he did
not testify. (R. Vol. X, C2757) Palumbo also alleged that the
State's Attorney admitted to him that defendant "didn't do
this" and also offered before Palumbo's testimony to "see what
he could do" about a prison transfer. (R. Vol. X, C2758)
I. Steve Scheel and Molly Eades
Scheel knew defendant since childhood. (R. Vol. XXV, 132)
Weeks after the shooting, Scheel saw defendant at Eades' home.
7
(R. Vol. XXV, 133) During a discussion of defendant being Uon
the run," defendant admitted having robbed the Clark station
and shooting the attendant. (R. Vol. XXV, 139) Scheel denied
having sought any consideration for his information. (R. Vol.
XXV, lSI) Eades confirmed that defendant had been at the
gathering. (R. Vol. XXV, 94-9G)
Defendant's petition contained an investigator's
affidavit recounting Scheel's purported admission to perjury
and implied pressure to cooperate by police. (R. Vol. XI,
C2792-C2794) However, Scheel was Utoo scared" to sign an
affidavit for the defense because he could be charged with
perjury. (R. Vol. XI, C279S-C279G)
J. Steven Parker
Parker worked for police in Missouri. (R. Vol. XXVII, G3)
Weeks after the shooting, Parker received a warrant for
defendant's arrest, and he was wanted in connection with the
homicide. (R. Vol. XXVII, G4) A tactical team found defendant
hiding in the attic underneath insulation. (R. Vol. XXVII, Ga)
K. Russell Thomas and Mike Bernardini
Thomas then went to Missouri to bring defendant back for
Bloomington police. (R. Vol. XXVI, 117) Defendant was not
under arrest for the Clark shooting, but defendant asked why
police were looking at him for that crime. (R. Vol. XXVI, 120)
Defendant was Uvery nervous," and he asked Thomas uwhat would
a
happen to him if he knew something about the murder." (R. Vol.
XXVI, 121) Thomas kept telling defendant in the car to relax,
but defendant periodically asked about the murder. (R. Vol.
XXVI, 121) During questioning at the station, defendant
became most agitated when talking about the murder. (R. Vol.
XXVI, 126) Defendant even asked "why could he be charged with
murder if he didn't have the gun." (R. Vol. XXVI, 128) After
Thomas and Bernardini explained accountability, defendant
wanted to know "what would happen to him if he knew
something." (R. Vol. XXVI, 128) Thomas and Bernardini were
unable to make deals and wanted the truth. (R. Vol. XXVI, 129
130) Defendant indicated that if he told the truth about his
involvement, he would have to incriminate himself. (R. Vol.
XXVI, 130) Thomas concluded that defendant implicated himself
in the murder. (R. Vol. XXVI, 153) Bernardini corroborated
Thomas's account. (R. Vol. XXVII, 37-47)
L. Charles Crowe
In June 1991, Crowe organized an in-person lineup at the
jail. (R. Vol. XXX, 18) Defendant indicated that he talked to
his attorney, whom he wanted to fire, and that he was not
going to stand in any lineup. (R. Vol. XXX, 19) Defendant
still refused to participate after additional consultation
with his lawyer and being told that he would be "cuffed to the
bars or held up by people." (R. Vol. XXX, 20) After more
9
consultation with the attorney, defendant still refused until
two officers approached him after being directed to assist
defendant to a place in the lineup. (R. Vol. XXX, 21)
M. Dawn Roberts
Roberts heard defendant direct her to bring him
composites that were on display around town. (R. Vol. XXVI,
33) Roberts saw composites on defendant's table. (R. Vol.
XXVI, 34) Defendant admitted that the composite "was of him,"
and defendant told McCowan "not to worry" because "It is me
not you." (R. Vol. XXVI, 35) Roberts also saw defendant pour
out beer as a toast to people who suffered and heard defendant
say, "This is to Billy Little." (R. Vol. XXVI, 36)
Defendant's petition contained Roberts' affidavit to deny
that defendant gave a last name when toasting a "Billy" that
could have been someone else who had died. (R. Vol. XI, C2774)
Roberts admitted having taken down some composites of the
suspect because defendant was her friend. (R. Vol. XI, C2776)
N. Bill Moffitt
Moffitt and defendant shared a prison cell. (R. Vol.
XXIV, 100-101) Defendant expressed concern about having
committed an armed robbery "that had went wrong." (R. Vol.
XXIV, 102) Defendant admitted to shooting a "B.L." during the
robbery. (R. Vol. XXIV, 103) Moffitt denied having been
promised anything for his testimony. (R. Vol. XXIV, 117)
10
Defendant's petition contained Dennis Hendricks'
affidavit to the effect that Moffitt admitted getting a "time
cut in exchange." (R. Vol. X, C2685)
O. Bruce Roland
Roland made contact with defendant in prison. (R. Vol.
XXVI, 83) Defendant admitted to Roland that he shot Little.
(R. Vol. XXVI, 85) After Roland was arrested for DUI, his
attorney suggested that he should come forward. (R. Vol. XXVI,
89) Roland denied that anyone made any "promises or
guarantees" about "receiving anything in return" for his
statement. (R. Vol. XXVI, 90)
Defendant's petition had a report that the state's
Attorney had directed police to inform Roland's attorney that
"if his client was totally truthful and his information was
correct that his office had a history of taking the persons
cooperation into consideration at sentencing time." (R. Vol.
XI, C2837) In November 2001, Roland pleaded guilty to three
felony traffic offenses and received two consecutive 30-month
prison terms. (R. Vol. XI, C3009)
P. Ed Hammond
Hammond knew defendant for 25 years. (R. Vol. XXIV, 131)
Hammond met defendant in prison in 1995. (R. Vol. XXIV, 134)
Defendant said, "I shot the kid." (R. Vol. XXIV, 136) Hammond
thought that defendant said that a .22 caliber weapon was
11
involved. (R. Vol. XXIV, 136) Defendant knocked something
over as he left, and defendant encountered someone in the
parking lot. (R. Vol. XXIV, 136)
Q. Kevin Schaal
Schaal was in the same prison cell as defendant in 1996.
(R. Vol. XXV, 155-156) Schaal later had contact with
defendant in Florida. (R. Vol. XXV, 166) Defendant discussed
the escalating pressure from the investigation. (R. Vol. XXV,
170) Schaal said that if defendant was not involved, he had
nothing to worry about. (R. Vol. XXV, 170; Vol. XXVI, 50)
Defendant replied, uwell, I was. I was there." (R. Vol. XXVI,
50) .
Schaal was convicted of a federal crime in 2000. (R. Vol.
XXV, 155) At trial, Schaal admitted that an ATF agent offered
to help if Schaal cooperated. (R. Vol. XXVI, 54-55) Schaal
provided information because he was awaiting federal
sentencing and because his attorney told him it would serve
him to cooperate. (R. Vol. XXVI, 55-56) Schaal agreed that
the prosecutor indicated that Uthere were no promises or
guarantees about what good" cooperating would do for him. (R.
Vol. XXVI, 62)
Defendant's petition contains a publicly filed motion by
the United States for a downward departure. (R. Vol. XII,
C3034) The July 2000 request for a two-level reduction cited
12
Schaal's cooperation as to other crimes, plus the information
that he provided in this case. (R. Vol. XII, C3034-C3035) The
departure was allowed, and Schaal received a federal sentence
of 110 months for possessing a firearm as a felon. (R. Vol.
XII, C3039)
R. Dan Tanasz
Tanasz worked in Florida with defendant. (R. Vol. XXIV,
79-80) Defendant said that he could not return to Illinois
because he was "involved in a robbery." (R. Vol. XXIV, 82)
Another time, defendant said that "he had shot somebody." (R.
Vol. XXIV, 86)
Defendant's petition contained Tanasz's affidavit to the
effect that defendant said that police were accusing him of a
robbery and that defendant never said that he was involved in
this offense. (R. Vol. XI, C2804, C2807)
S. Ronnie Wright
Wright knew defendant over 20 years. (R. Vol. XXV, 175)
Wright claimed that he got angry and provided information to
police because he and defendant "got into a little spat" in
the jail. (R. Vol. XXV, 176) Defendant told Wright that he
killed someone in an armed robbery, got out because of
insufficient evidence, and moved to Florida. (R. Vol. XXV,
177-178) Defendant had known about the arrest warrant when he
left Florida for Ohio. (R. Vol. XXV, 178)
13
Wright admitted
that defendant had shown him certain discovery papers. (R.
Vol. XXV, 180, 187) Defendant smoked crack cocaine in
Florida, and defendant wanted Wright to lie about it to avoid
bringing back what happened in 1991. (R. Vol. XXV, 181-182)
Defendant supplemented his petition with an affidavit
from Wright to the effect that defendant never told him about
any involvement in the crime. (R. Vol. XIII, C3304) Wright
also claimed that he read Uall" of the discovery. (R. Vol.
XIII, C330S) Wright claimed that he lied to police, telling
them what they wanted to hear from the discovery, to get back
at defendant for an incident in the jail. (R. Vol. XIII,
C330s-C3308) The police never threatened Wright, and the
prosecution never offered him any deal. (R. Vol. XIII, C3307
C3308)
T. Jody Winkler
Winkler lived with defendant in Florida. (R. Vol. XXV,
112) Defendant disclosed that he committed this crime. (R.
Vol. XXV, 115) At trial, Winkler noted that he did not get
anything for his cooperation, although at first he tried
asking authorities what he could get. (R. Vol. XXV, 119, 127,
130)
Defendant's petition contained a January 2000 plea
agreement in which Winkler received a four-year prison
sentence for forgery. (R. Vol. XI, C2814-C2824)
14
u. Robert Ondecker
Ondecker worked for police in Ohio who looked for
defendant in September 1999. (R. Vol. XXIV, 54-55) Defendant
claimed that he was uDavid Arison" and also presented Arison's
birth certificate. (R. Vol. XXIV, 57) Defendant denied being
uJamie Snow" and ran from police who tried to check his
tattoos. (R. Vol. XXIV, 58-60)
V. Mary Burns
Burns met defendant while employed at the jail. (R. Vol.
XXVII, 17-20) Defendant said that he knew who committed the
murder. (R. Vol. XXVII, 23) Defendant said that he was in a
car with Claycomb, as well as a man and a woman whose
identities he did not disclose. (R. Vol. XXVII, 23, 25)
Defendant claimed to have been in the alley behind the Clark
station, and he figured that the other man committed the
crime. (R. Vol. XXVII, 24)
Defendant's petition contained Burns' statement that
Darren Smart was present during the conversation. (R. Vol.
XII, C3048) Smart's affidavit claimed that defendant never
made the statements to Burns. (R. Vol. XII, C3235)
X. Jamie Snow
Defendant testified that he never had been in that Clark
station and he spent all day with his wife. (R. Vol. XXIX, 53,
141-142) Defendant encountered Palumbo but said only that he
15
read about Palumbo in the newspaper because Palumbo committed
armed robberies. (R. Vol. XXIX, 57) Defendant denied having
ever seen Gaddis. (R. Vol. XXIX, 60) Defendant denied
confessing to Howard and did not recall talking about
composites. (R. Vol. XXIX, 61-62) Defendant never attended a
party with Scheel and did not confess to him. (R. Vol. XXIX,
63) Defendant never asked to stay at Strong's residence. (R.
Vol. XXIX, 64)
Defendant claimed that Thomas and Bernardini confused him
because he never had information about this crime. (R. Vol.
XXIX, 70) Defendant insisted that he was only concerned about
having his attorney witness the lineup. (R. Vol. XXIX, 72)
Defendant denied talking around Roberts or obtaining
composites. (R. Vol. XXIX, 75-76) Defendant denied confessing
to Moffitt, Hammond, Schaal, or Roland in prison. (R. Vol.
XXIX, 80, 93-94, 101) When defendant told Schaal that he had
been "there," he meant Bloomington, not the crime scene. (R.
Vol. XXIX, 99) Defendant told Tanasz only that was not going
back to Illinois because he was a suspect, and defendant never
said that he shot anyone. (R. Vol. XXIX, 105-106) Defendant
denied confessing to Winkler or Wright in Florida. (R. Vol.
XXIX, 109, 118) Defendant ran because he was afraid. (R. Vol.
XXIX, 116) Defendant absolutely denied ever showing Wright
any discovery. (R. Vol. XXIX, 120-121) Defendant claimed that
16
Burns misunderstood him. (R. Vol. XXIX, 127) Defendant denied
committing this crime. (R. Vol. XXIX, 129)
The jury found defendant guilty. (R. Vol. XXXII, 5) The
trial court heard defendant's post-trial complaints about his
attorney's assistance. (R. Vol. XXXII, 41-141) The trial
court concluded that defendant's lawyers were prepared and not
impaired and that their performance was "excellent." (R. Vol.
IV, C762, C767-C768)
On direct appeal, this court had affirmed defendant's
first degree murder conviction and sentence of natural life in
prison. See People v. Snow, No. 4-01-0435 (August 20, 2004)
(unpublished order pursuant to Supreme Court Rule 23). (R.
Vol. V, C1127-C1159) This court noted that Luna's
identification was "stronger" than Martinez's "questionable"
identification. See Snow, slip order at 27. (R. Vol. V,
C1154) Moreover, the identifications were corroborated by
defendant's admissions to "about a dozen other witnesses" and
evidence of flight. See Snow, slip order at 27-28. (R. Vol.
V, C1154-C1155) This court also rejected defendant's
ineffective-assistance claims, including issues about Riley's
stroke and Picl's alcohol consumption. See Snow, slip order
at 9-11, 29-30. (R. Vol. V, C1136-C1138, C1156-C1157)
Defendant filed an amended post-conviction petition with
exhibits in January 2010. (R. Vol. X, C2610-C2758; Vol. XI,
17
C2759-C3029; Vol. XII, C3030-C3250} In April 2011, the trial
court allowed the prosecution's motion to dismiss defendant's
amended post-conviction petition. (R. Vol. XII, C3256-C3262;
Vol. XIV, C3875-C3878)
18
ARGUMENT
I
THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS TO
RAISE A FREESTANDING CLAIM OF ACTUAL INNOCENCE.
To make a compelling showing of actual innocence that
requires relief, the supporting evidence must be (1) new, (2)
material, (3) noncumulative, and (4) of such conclusive
character as would probable change the result on retrial. See
People v. Washington, 171 Ill.2d 475, 489, 665 N.E.2d 1330,
1337 (1996). Evidence is not newly discovered when it
presents facts already known to a defendant at or prior to
trial, though the source of these facts may have been unknown,
unavailable or uncooperative. People v. Collier, 387
Ill.App.3d 630, 637, 900 N.E.2d 396, 403 (1st Dist. 2008).
"Evidence that merely impeaches a witness will typically
not be of such conclusive character as to justify
postconviction relief." Collier, 387 Ill.App.3d at 637, 900
N.E.2d at 403 (where allegations merely impeached or
contradicted trial testimony). "As a general rule, hearsay
affidavits are insufficient." People v. Morales, 339
Ill.App.3d 554, 565, 791 N.E.2d 1122, 1132 (1st Dist. 2003)
(noting that affidavits containing inadmissible hearsay were
"not sufficiently conclusive"). Recantations have been deemed
19
very unreliable, especially where given by unrepresented
witnesses outside the presence of the prosecution. See People
v. Steidl, 142 III.2d 204, 254-255, 568 N.E.2d 837, 858-859
(1991) .
Defendant's actual innocence claim depends most on his
mistaken efforts to portray Martinez as the "star witness"
before vainly trying to discredit him. (Def. br., 3, 30)
Defendant erroneously characterizes the "centerpiece" of the
prosecution's case as the "critical" testimony that Martinez
could not forget defendant's eyes. (Def. br., 3, 32-33)
However, the prosecution told jurors that this was "not
an eyewitness identification case" and did not hinge on any
"single piece of evidence." (R. Vol. XXII, 16, 27) The
defense pointed out after trial that Martinez left the witness
stand "very badly damaged." (R. Vol. XXXII, 54) Luna's
superior performance at the lineup made the prosecution rely
more on Luna as an eyewitness. (R. Vol. XXXII, 38)
Defendant now asserts that Pelo "makes clear" that
Martinez "could not have seen" defendant. (Def. br., 33)
However, defendant fails to establish his key assumption that
if Martinez saw defendant leaving the Clark station, then Pelo
would have seen him as well. (Def. br., 33) Defendant did not
reply to the fact that "defendant left the scene prior to the
officers arriving." (R. Vol. XII, C3258; XIII, C3282-C3283)
20
At trial, Pelo testified that he did not see anyone leave
the station. (R. Vol. XXII, 103) Martinez was already on the
Clark lot before Pelo finally parked and walked into position
at least three minutes after receiving the dispatch. (R. Vol.
XXII, 99-101) Martinez was on the lot when he heard "two
bangs," and police did not arrive until after Martinez lost
sight of defendant. (R. Vol. XXII, 159-163) Someone had to
exit the station after shooting the attendant, and it is
frivolous for defendant to suggest that Martinez is
discredited simply because Pelo reiterates that he saw no one
leave once he "was on the scene." (R. Vol. X, C2677)
Martinez was cross-examined at trial about telling police
that two photos in their book "resembled the suspect." (R.
Vol. X, C2712; XXII, 207) Also old information was "Mrs.
Little" calling Martinez in 1999. (R. Vol. X, C2733) Pelo's
affidavit created a conflict on the collateral matter of
whether Pelo spoke to Martinez before Martinez backed out of
the lot. (R. Vol. X, C2677) Also inconclusive were the two
Hendricks affidavits containing potential material with which
to impeach Martinez. (R. Vol. X, C2681-C2686) Defendant would
have known if Martinez had played sports with him when they
were children. (Def. br., 33)
The trial result would not have changed even if Luna's
"new" information had been available. Luna has not retracted
21
or "eviscerated" his identification of defendant in the
lineup. (Def. br., 17, 34) Defendant grossly mischaracterizes
the affidavit as meaning that Luna "cannot identify" him.
(Def. br., 30)
Instead, Luna now says merely that defendant "best fit"
the suspect and that he was not "sure." (R. Vol. XII, C3232)
However, the trial already revealed Luna's inability to say
that he was sure, as Luna could only answer, "I think he is
the person." (R. Vol. XXIII, 108, 112). Luna's inability to
"provide enough information to complete an effective
composite" was previously available. (R. Vol. X, C2750) Luna
cited defendant's face shape and hair at the lineup. (R. Vol.
X, C2736) Therefore, the Martinez and Luna observations
remain as important corroboration of defendant's admissions
and the circumstantial evidence. The conviction has not
become "based solely" on defendant's confessions. (Def. br.,
34)
Defendant's other affidavits fail to demonstrate any
"totality of the evidence" favoring innocence. (Def. br., 35)
As explained below, defendant erroneously claims that
"numerous" witnesses recanted, claimed "pressure," or accepted
"deals." (Def. br., 30) In any event, a freestanding claim of
innocence contemplates that the newly discovered evidence "is
not also being used to supplement the assertion of another
22
constitutional violation with respect to the trial." Collier,
387 Ill.App.3d at 637, 900 N.E.2d at 404. Defendant complains
about defense counsel's failure to obtain "available" evidence
about deals and pressure. (Def. br., 39)
Defendant claims that Roberts, Tanasz, Wright, and Scheel
recanted. (Def. br., 35) Scheel's purported recantation is
worthless hearsay without an affidavit from him and an
indication that he will testify. See Morales, 339 Ill.App.3d
at 565, 791 N.E.2d at 1132. Scheel did not "affirmatively
aver" that he would have testified differently, so his alleged
evidence remains unavailable. See People v. Brown, 371
Ill. App . 3d 972 , 982 , 864 N. E . 2d 767, 776 (1s t Dis t . 2007 )
(requiring an affidavit to identify the availability of
alleged evidence) .
Roberts' recantation of the toasting incident, even if
believed, would not affect any significant aspect of the
prosecution's case. (R. Vol. XI, C2774) In contrast, Robert's
continuing admission to taking down composites to help
defendant is inconsistent with his theory of innocence. (R.
Vol. XI, C2776)
Tanasz's recantation of defendant's admission of
involvement in a robbery did not explain why he testified
differently at trial. (R. Vol. XI, C2803-C2807) Tanasz's
affidavit was only cumulative because the trial already
23
contained defendant's testimony that he told Tanasz only that
he was a suspect in a shooting. (R. Vol. XXIX, 105) In any
event, Tanasz did not recant defendant's admission that he had
"shot somebody." (R. Vol. XXIV, 86)
Wright's recantation was grounded in the notion that
defendant had "confided" in him "all" of the discovery, which
Wright read and used to lie. (R. Vol. XIII, C330S) That
recantation is directly rebutted by defendant's own testimony.
When asked if defendant showed "any" discovery to Wright,
defendant replied, "Absolutely not. I have showed him
nothing." (R. Vol. XXIX, 120-121) In addition, Wright points
out that police and prosecutors never threatened him, offered
any deal, or told him what to say. (R. Vol. XIII, C3307-C3308)
Without any conclusive recantations, defendant cites
purported evidence of consideration for cooperation.
Palumbo's affidavit showed that he sought a benefit for his
information. (R. Vol. X, C27S7) However, Palumbo's trial
testimony disclosed that he hoped for leniency when he spoke
with police. (R. Vol. XXIII, 139-140) He received no
promises. (R. Vol. XXIII, 147-148)
Similarly, nothing new affects Winkler's trial testimony,
which disclosed an unsuccessful attempt to seek a benefit. (R.
Vol. XXV, 119, 127, 130) Evidence of Winkler'S plea agreement
24
contained no link to this case, so Winkler never obtained
anything for his cooperation. (R. Vol. XI, C28l4-C2824)
Nothing rebuts Roland's lack of any promises for
information following his DUI arrest. (R. Vol. XXVI, 89-90)
Instead, prosecutors said only that they had a "history" of
taking truthful cooperation into consideration at sentencing.
(R. Vol. XI, C2837)
Defendant cites only a vague rumor that Strong might have
being "working off" an arrest. (R. Vol. XI, C2826) Moreover,
defendant relies on only hearsay to claim that Moffitt
received a "time cut." (R. Vol. X, C2685) At trial, Schaal
admitted that when he cooperated, he lacked promised benefits
but he knew that federal authorities might help him with his
pending sentencing in federal court. (R. Vol. XXVI, 54-56, 62)
By the time he testified, he did benefit from a downward
departure that resulted primarily from his cooperation with
other cases but still received a llO-month for possessing a
firearm as a felon. (R. Vol. XII, C3034-C3035, C3039)
Therefore, defendant still has nothing to substantiate his
claim that police or prosecutors had promised any deal for
information from even one witness who testified.
Further, no trial witness signed an affidavit that cited
undue pressure. Howard claimed only persistent questioning
but asserted that he told the police the truth. (R. Vol. XI,
25
C2782) Defendant's petition fails to challenge Powell,
Gaddis, Hammond, Parker, Crowe, and Ondecker. Their testimony
included three important admissions, two incidents of flight
from authorities, and defendant's desperation to avoid being
in the Clark shooting lineup. (R. Vol. Vol. XXIV, 20-21, 57
60, 136; Vol. XXV, 198-202; Vol. XXVII, 68; Vol. XXX, 18-21)
Defendant produces only one inmate affidavit to rebut
Burns. (R. Vol. XII, C3235) However, defendant claimed at
trial that Burns misunderstood what he said. (R. Vol. XXIX,
127) Defendant tries to challenge Thomas and Bernardini by
citing grand jury testimony about defendant seeking assurances
before discussing his involvement in the Freedom Oil robbery.
(R. Vol. XII, C3068) However, defendant still implied his
involvement in the Clark shooting. (R. Vol. XXVI, 121, 128
130, 153; Vol. XXVII, 37-47) No contradiction necessarily
occurred regarding the crimes being discussed. (Def. br., 22)
To recap, the vast majority of the prosecution's case
remains unscathed by defendant's post-conviction attempts to
whittle it down. Nothing new significantly impacted the
incrimination arising from Powell, Luna, Gaddis, Howard,
Palumbo, Parker, Thomas, Bernardini, Crowe, Moffitt, Roland,
Hammond, Schaal, Winkler, and Ondecker. Defendant has tried
to (1) present rebuttal or impeachment material against
Martinez, Strong, and Burns; (2) offer partial recantations
26
from Roberts and Tanasz, (3) provide a dubious recantation
from Wright, and (40 suggest a recantation from Scheel.
In light of the survival of the prosecution's strong case
against defendant, this court should conclude de novo that
defendant fails to meet the standard for obtaining a new
trial. Nothing new presented was so conclusive that the
result likely would change on retrial. Because this court
reviews the judgment, the contents of the trial court's
reasoning does not provide an independent ground for
reversing. (Def. br., 31) See People v. Cleveland, 342
III.App.3d 912, 915, 796 N.E.2d 201, 204 (2d Dist. 2003).
Defendant fails to show any relevance to actual innocence
of two reversed McLean County convictions. (Def. br., 36)
Defendant fails to connect this case with situations in which
"other acts" of police misconduct have been admitted. See
People v. Reyes, 369 III.App.3d 1, 18-19, 860 N.E.2d 488, 505
(1st Dist. 2006) (where the same officer was accused of using
similar methods of brutality as part of a pattern of coercing
false statements from suspects). Defendant fails to cite any
case in which "other acts" of prosecutorial misconduct have
been deemed relevant to actual innocence. Defendant has not
shown that the prosecutor in this case had been responsible
for the cited reversals. Regardless, defendant still lacks
any new, conclusive evidence likely to succeed on any retrial.
27
ARGUMENT
II
THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS TO
SHOW THAT HE RECEIVED INEFFECTIVE ASSISTANCE.
Defendant argues that Unumerous trial errors" umade a
difference." (Def. br., 38) Defendant asserts that this issue
should not be barred by res judicata despite its rejection on
direct appeal. (Def. br., 41) Defendant notes that his
petition raised new issues. (Def. br., 41) However, res
judicata bars the relitigation of counsel's effectiveness even
if different allegations of incompetence are added. See
People v. Albanese, 125 Ill.2d 100, 105, 531 N.E.2d 17, 19
(1988). On the merits, defendant has the burden of showing
deficient performance that prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687 (1984).
Defendant did receive a post-trial hearing. (Def. br.,
41) (R. Vol. XXXII, 41-141) The trial court then held that
defendant's trial lawyers were prepared and not impaired and
that their performance was uexcellent." (R. Vol. IV, C762,
C767-C768) As explained below, defendant offers no new
compelling complaints to rebut those findings.
With respect to impeaching Martinez, defense counsel
already noted that Martinez was Uvery badly damaged" and that
28
Hendricks would not have "done much" for the defense. (R. Vol.
XXXII, 54) Defense counsel's tactics included refraining from
"pounding away" at a damaged witness. (R. Vol. XXXII, 54)
Cumulative impeachment would be counterproductive. (R. Vol.
XXXII, 53) Moreover, it would have been pointless to hinge
the defense on Pelo's failure to see anyone leave the Clark
station door once he arrived on the scene.
With respect to Luna, defense counsel made an extensive
cross-examination. (R. Vol. XXIII, 90-110) Defendant was not
prejudiced by the failure to elicit Luna's inability to create
an "effective" composite. (R. Vol. X, C2750) Moreover, trying
to damage Luna in that way only would have emphasized the
corroboration arising from Luna's belief in the resemblance of
defendant's face shape and hair. (R. Vol. X, C2736)
with respect to the claim of not interviewing Scheel,
defendant has provided only an insufficient hearsay affidavit.
(R. Vol. XI, C2791-C2797) See People v. Morales, 339
Ill.App.3d 554, 565, 791 N.E.2d 1122, 1132 (1st Dist. 2003).
Defendant has not shown that prevailing professional norms
required interviewing every prosecution witness before trial.
Even if Scheel were not any witness to an admission from
defendant, the prosecution's case would have remained very
strong without him, as discussed above. Defendant cannot show
any prej udice from speculation that Scheel might not have
29
incriminated defendant at trial if the defense had contacted
him beforehand. (R. Vol. XI, C2795)
With respect to Martinez's identification testimony,
defendant's brief fails to provide any analysis or citation to
authority regarding the merits of a suppression motion. (Def.
br., 39) Defendant forfeits this issue by failing to comply
with the briefing requirements of Supreme Court Rule
341(h) (7). See People v. Thomas, 2011 IL App (4th) 100666, "
36, 38 (noting that defendant "must make his argument and
support it with authority"). Defendant "bears the burden of
showing that the motion would have been granted and that the
trial outcome would have been different if the evidence had
been suppressed." People v. Gabriel, 398 Ill.App.3d 332, 348,
924 N.E.2d 1133, 1148 (1st Dist. 2010).
That burden includes proof that "a pretrial
identification was impermissibly suggestive." People v. Love,
377 Ill.App.3d 306, 311, 878 N.E.2d 789, 794 (1st Dist. 2007).
Even then, an identification remains admissible if "the
witness is identifying the defendant based on his independent
recollection of the incident." People v. Enis, 163 Ill.2d
367, 398, 645 N.E.2d 856, 870 (1994).
With respect to Howard's tip about hearing a bailiff's
remark, defendant's petition presented no proof that any juror
had been biased. Defendant has failed to show any prejudice
30
because he has not demonstrated that had counsel investigated,
any reversible error would have been uncovered. Speculation
is insufficient to meet defendant's burden. See People v.
Smith, 195 III.2d 179, 203, 745 N.E.2d 1194, 1208 (2000).
For that same reason, defendant cannot show prejudice
from counsel's alleged failure to investigate rumors about
Strong "working off" an arrest. Defendant's petition presents
no proof that Strong received any consideration for her
information.
Defense counsel also was not ineffective because Roland
and Schaal were sufficiently impeached about their desires for
benefitting from their information. Trial evidence connected
Roland's decision to cooperate with his DUI arrest, and Roland
truthfully denied having had any guarantee of consideration.
(R. Vol. XXVI, 89-90) Trial evidence also connected Schaal's
cooperation with his pending federal case, and Schaal
truthfully denied having had any guarantee about benefits. (R.
Vol. XXVI, 55-56, 62)
with respect to the relatively unimportant toasting
incident, Roberts' recantation indicates that Roberts would
have told the defense that the "toast could have been for
Billy McWhorter." (R. Vol. XI, C2776) However, Roberts
testified at trial that she recalled defendant saying, "This
is to Billy Little." (R. Vol. XXVI, 36) Defendant could not
31
have been acquitted had defense counsel suggested that
McWhorter could have been the subject of a toast.
Wi th respect to impeaching Martinez, defense counsel
elicited that Martinez failed to identify defendant, who had
been in the lineup. (R. Vol. XXII, 191) However, Martinez
disagreed with defense counsel's suggestion that Martinez
upicked out the wrong person altogether." (R. Vol. XXII, 191)
Martinez admitted that he could have said that Uit looks like"
number three or four ubut it wasn't them." (R. Vol. XXII, 192)
Martinez also acknowledged that he could have told police that
two mug shots uresembled" the suspect. (R. Vol. XXII, 207)
Defendant cannot show any prejudice because the record
fails to support his claim that uMartinez actually identified
other individuals as being the person he saw at the scene"
before he identif ied defendant. (Def. br., 33) Moreover,
defendant fails to explain what could have been gained by
exposing that the victim's mother had called Martinez, except
to speculate that police had been involved. (Def. br., 40)
Defendant also has shown no prejudice from defense
counsel's failure to attempt to impeach Thomas with his grand
jury testimony. The prosecutor asked Thomas, uwhat
information did [defendant] give you about . . . his
involvement in the Freedom Oil robbery?" (R. Vol. XII, C3068)
Thomas told the grand jury that defendant said that he did not
32
"actually do" that armed robbery but that he "would be able to
explain everything" if he had assurances. (R. Vol. XII, C3038)
Defendant fails to explain how that reply proves that Thomas
and Bernardini "falsely" indicated that defendant implicated
himself in the Clark shooting at some other point during the
same interrogation. (Def. br., 22-23, 40)
With respect to defense counsel's failure to rebut
correctional officer Burns with inmate Smart, defendant fails
to overcome the presumption of sound trial strategy. At
trial, defendant claimed that Burns misunderstood him. (R.
Vol. XXIX, 127) During the defense's case, no guarantee
existed that Smart's testimony would have supported that
position. Moreover, presenting Smart would have risked
highlighting the importance of defendant's admissions to
Burns. At the same time, the defense would have lost much
force in accusing the prosecution of relying on testimony from
inmates and convicts. (R. Vol. XXXI, 122-124) In any event,
no reasonable probability existed that Smart's testimony would
have acquitted defendant.
Finally, defendant fails to persuade that the defense had
been impaired by co-counsel Picl's alcoholism. (Def. br., 42)
Defendant does not really complain about picl' s performance in
court. (R. Vol. XIII, C3299) At the same time, defendant
33
fails to acknowledge that his primary attorney, Riley, and the
retained investigators also prepared the defense for trial.
The trial court cited its observations of "excellent"
performance and the record of paYment of fees to Riley as
demonstrating "without any question" that the defense had been
prepared. (R. Vol. IV, C762, C773) The trial court also
noticed "no impairment of Mr. Picl" during the course of the
trial. (R. Vol. IV, C767) Riley never saw Picl consume
alcohol during trial. (R. Vol. XXXII, 91) Picl admitted
drinking one time when the trial was essentially over. (R.
Vol. XXXII, 92-93)
Picl did not necessarily admit to drinking four to ten
hours on non-court days during the pendency of defendant's
murder prosecution. (R. Vol. XIV, C3709-C3710) The only new
item in Kevin's affidavit is Picl having two to three
alcoholic drinks during lunches "before the trial." (R. Vol.
XIV, C3821-C3822) Therefore, defendant fails to persuade that
Picl's alcohol consumption warrants any presumption of
prejudice. (Def. br., 42) This court should adhere to its
prior ruling rejecting defendant's meritless allegations of
impairment and unpreparedness. See People v. Snow, No. 4-01
0435, slip order at 10 (August 20, 2004) (unpublished order
pursuant to Supreme Court Rule 23). (R. Vol. V, Cl137)
34
ARGUMENT
III
THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS TO
SHOW THAT HIS DUE PROCESS RIGHTS WERE VIOLATED.
Defendant asserts that material exculpatory information
had been withheld from him. (Def. br., 43) Withheld evidence
is deemed Umaterial" only if there is a reasonable probability
that, had the evidence been disclosed to the defense, the
result of the proceeding would have been different. United
States v. Bagley, 473 U.S. 667, 682 (1985). The Constitution
does not require disclosure until the collective effect of
suppressed helpful evidence becomes such that it puts the
whole case in such a different light as to undermine
confidence in the verdict. See Kyles v. Whitley, 514 U.S.
419, 435-437 (1995).
Defendant relies on Pelo's belief that no one could have
left the Clark station while he was on the scene. (Def. br.,
44) Pelo's affidavit refers to what he told Barkes. (R. Vol.
X, C2676) Barkes taped his March 1999 interview with Pelo in
which Pelo denied having seen anyone leave the Clark station
from the time that he first observed it. (R. Vol. X, C2701)
Defendant implies that this information had been disclosed in
35
discovery because defendant complains about defense counsel's
purported failure to capitalize on it. (R. Vol. X, C2659)
At trial, Scheel described his observations of
defendant's appearance and clothing at a party in the weeks
after the shooting. (R. Vol. XXV, 134-135) Defendant alleges
that Scheel was coached with those details, but defendant
failed to provide any affidavit signed by Scheel. (R. Vol. XI,
C2795) The hearsay affidavit is insufficient to support the
claim. See People v. Morales, 339 IIl.App.3d 554, 565, 791
N.E.2d 1122, 1132 (1st Dist. 2003).
Defendant argues that the prosecution failed to disclose
Udeals" purportedly given to witnesses. (Def. br., 44)
Defendant erroneously alleges that the prosecution had a modus
operandi of uvisiting witnesses and offering deals." (Def.
br., 44) Winkler, Schaal, and Roland all came forward hoping
to benefit, but none of them received any promise of
consideration for their information. (R. Vol. XXV, 119, 127,
130; Vol. XXVI, 55-56, 62, 89-90)
At trial, Winkler insisted that he was unsuccessful
getting anything for his information. (R. Vol. XXV, 119, 127,
130) In January 2000, Winkler had obtained an agreement to
serve a four-year prison sentence for forgery. (R. Vol. XI,
C2814-C2824) Winkler acknowledged that conviction in his
trial testimony. (R. Vol. XXV, 111)
36
Defendant has nothing that would reveal any perjury by
Winkler by connecting the plea agreement with his decision to
cooperate against defendant. See Akrawi v. Booker, 572 F.3d
252, 263 (6th Cir. 2009) ("the mere fact of favorable
treatment received by a witness following cooperation is also
insufficient to substantiate the existence of an agreement") .
Moreover, Winkler's plea agreement was public information. (R.
Vol. XI, C2814) See Matthews v. Ishee, 486 F.3d 883, 890-891
(6th Cir. 2007) (noting that "there simply is nothing for the
government to 'disclose' where a jailhouse informant's plea
was public information available to the defense) .
Similarly, the United States' July 2000 motion for a
downward departure in Schaal's federal prosecution had been
public information. (R. Vol. XII, C3034) At trial, Schaal
acknowledged the federal conviction. (R. Vol. XXV, 155)
Schaal also admitted having known that it would serve him to
cooperate. (R. Vol. XXVI, 55-56) However, nothing reveals any
perjury in Schaal's denial of having been promised any benefit
for providing information. (R. Vol. XXVI, 62)
Defendant's petition fails to allege that a specific
police report about Roland's cooperation had not been tendered
in discovery. (R. Vol. X, C2663j Vol. XI, C2837-C2838)
Defendant does not explain where he obtained a copy of that
report, if not from pretrial discovery. The prosecution
37
certified the completeness of discovery relating to Roland.
(R. Vol. I, C70) In any event, the information about the
prosecution's history of taking cooperation into account at
sentencing does not mean that Roland testified falsely when he
denied any "promises or guarantees" for his statement. (R.
Vol. XI, C2837; Vol. XXVI, 90)
Defendant cites an admittedly "speculative" rumor that
defendant had robbed jurors' homes. (Def. br., 45 ) Defendant
believes that an evidentiary hearing will enable him to
discover and prove his claim. (Def. br., 4S) However,
defendant cites no authority that making any showing "as best
as he can" automatically entitles him to discovery and an
evidentiary hearing. (Def. br., 4S)
Defendant sought to identify jurors and subpoena
"Bloomington Police" to determine if any jurors "reported
crimes." (R. Vol. X, C260S) Defendant assumes that "two" of
the McLean County "jurors' homes" that he may have "robbed"
would have been in Bloomington. (R. Vol. X, C260S; Vol. XI,
C2784) However, the defense never asked first to identify the
"tall bailiff" whom Howard allegedly overheard so that a
discovery deposition could be requested. (R. Vol. XI, C2784)
The trial court would have had discretion to deny defendant's
discovery motion, even if the defense had brought it to a
hearing. (R. Vol. XXXV, 36) See People ex reI. Daley v.
38
Fitzgerald, 123 Ill.2d 175, 183-184, 526 N.E.2d 131, 135
(1988) (noting that post-conviction proceedings "afford only
limited review" and a "potential for abuse of the discovery
process" exists).
As argued above, defendant incorrectly believes that
Martinez's identification was "the most critical part of his
conviction." (Def. br., 46) In any event, defendant fails to
adequately brief his conclusive claim that Martinez's
identification was "inherently unreliable and suggestive."
(Def. br., 45-46) Defendant fails to cite the record or
provide any analysis to explain why the identification
"violated his right to due process." (Def. br., 46) Defendant
also cites only an inapposite opinion dealing with a "show
up," when defendant had been included in a lineup in this
case. See People v. Rodriguez, 387 Ill.App.3d 812, 829-832,
901 N.E.2d 927, 943-946 (1st Dist. 2008).
Defendant's burden includes proving impermissible
suggestiveness that causes a "very substantial likelihood of
irreparable misidentification." People v. Love, 377
Ill.App . 3d 3 06 , 311 , 8 78 N. E . 2d 789, 794 (1s t Dis t . 2007).
Even then, an identification remains admissible if "the
witness is identifying the defendant based on his independent
recollection of the incident." People v. Enis, 163 Ill.2d
367, 398, 645 N.E.2d 856, 870 (1994).
39
Here, Martinez had sufficient opportunity to notice
defendant's eyes when they were face-to-face only three feet
apart. (R. Vol. XXII, 159-160) Martinez added, "I'll never
forget those eyes." (R. Vol. XXII, 160) Martinez admitted
that he saw defendant's photograph in the newspaper prior to
identifying him in the lineup photograph. (R. Vol. XXII, 173
177) Defendant's eyes caught Martinez's attention when he
viewed the newspaper photograph. (R. Vol. XXII, 177)
In People v. Curtis, 113 Ill. 2d 136, 151, 497 N. E. 2d
1004, 1011 (1986), Harris's eyewitness identification "was
properly considered" even though Harris identified Curtis from
a lineup photograph several days after seeing a newspaper
story concerning the robbery that included Curtis's picture.
Therefore, Martinez's identification of defendant's eyes was
reliable enough to avoid a likelihood of misidentification
that would violate due process. See Neil v. Biggers, 409 U.S.
188, 198-200 (1972) (citing factors such as the witness's
opportunity to view during the crime, degree of attention,
accuracy of prior description, and level of certainty
demonstrated at the confrontation).
Defendant also cites his "cumulative error" claim, which
referred to "all of the matters alleged in this petition." (R.
Vol. x, C2666) Defendant's brief then complains that his
shackling during trial violated due process. (Def. br., 46)
40
However, the defense did not retain the shackling issue when
it amended defendant's pro se petition. (R. Vol. X, C2610
C2668) By its own terms, defendant's cumulative error claim
did not encompass the issue of shackling during trial. (R.
Vol. X, C2666) See People v. Jones, 211 Ill.2d 140, 148, 809
N.E.2d 1233, 1239 (2004) (new issues may not be raised on
review) .
Considered independently, the shackling issue is
forfeited because it could have been raised on direct appeal.
(R. Vol. V, C1214) See People v. Newman, 365 Ill.App.3d 285,
848 N.E.2d 262 (4th Dist. 2006) ("issues are not amenable to
postconviction review when they could have been raised on
direct appeal but were not"). Defendant's brief forfeits
ineffective assistance of trial counsel and appellate counsel
related to shackling by failing to argue those issues in this
appeal. See People v. Borello, 389 Ill.App.3d 985, 998, 906
N. E . 2d 1250, 1261 (4th Dis t . 2 009) i 210 Ill. 2dR. 341 (h) (7)
(points not argued are waived and shall not be raised in the
reply brief) .
In any event, the record rebuts defendant's allegation
that the jury saw his stun belt and shackles. (Def. br., 29)
Defendant alleged that the stun belt was removed in favor of
leg shackles on the second day of jury selection and that the
shackles could have been viewed if any "potential jury member"
41
had entered the courtroom "from behind" him. (R. Vol. V,
C1214) Defendant initially agreed to wear the stun belt to
ensure that potential jurors would not see any restraints if
they were behind him. (R. Vol. XXI, 30-33) When courtrooms
were being changed prior to closing arguments, defense counsel
agreed that the leg shackling "problem" would be "fine" once
the tables in the new courtroom would be switched out for ones
with skirts on them. (R. Vol. XXX, 118-119) Defendant cannot
show the required prejudice because steps were taken to ensure
that jurors did not see restraints and it is questionable
whether any jurors actually saw them. See People v. Robinson,
375 Ill. App . 3d 32 0 , 333 , 872 N. E . 2d 1061 , 1073 (2d Dist .
2007) .
42
ARGUMENT
IV
THE TRIAL COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR
BALLISTICS DATABASE TESTING OF THE BULLETS THAT HAD BEEN
RECOVERED FROM THE VICTIM'S BODY.
Defendant contends that IBIS database testing of the
"bullets used to kill the victim" met the requirement of
having scientific potential to produce new, noncumulative
evidence materially relevant to actual innocence. (Def. br.,
46-49) See 725 ILCS 5/116-3 (c) (I) (West 2010). However,
defendant never set any hearing on his motion for ballistics
testing in the two months before it was denied. (R. Vol. XIV,
C3755-C3805, C3889)
Therefore, defendant never presented any expert testimony
concerning the suitability of the recovered bullets for IBIS
database testing. See People v. Slover, 2011 IL App (4th)
100276 ~ 22 (noting that if the fingerprint was of
insufficient quality for adequately controlled AFIS search,
the testing would be a "shot in the dark" lacking potential to
produce relevant evidence attributable to its "scientific
rigors") . Defendant's pleadings fail to substantiate his
ability to make such a showing. (R. Vol. XIV, C3755-C380S)
43
In any event, defendant cannot demonstrate that IBIS
testing would "significantly advance" his claim of actual
innocence. See People v. Savory, 197 III.2d 203, 213-216, 756
N. E. 2d 804, 811-812 (2001) (where the defendant had made
"inculpatory comments" to several friends and where the blood
evidence sought to be tested constituted only a "minor part"
of the case against him). Distinguishable is People v.
Pursley, 407 III.App.3d 526, 529-535, 943 N.E.2d 98, 102-106
(2d Dist. 2011), where the prosecution had "heavily relied" on
ballistics evidence at trial and where IBIS testing could
implicate "another possible weapon" in the crime besides the
defendant's gun.
Here, defendant's theory is that IBIS testing had
potential to exonerate him if the bullets that killed Little
could be connected to a firearm that also was used in other
identifiable crimes. (R. Vol. XIV, C3763) However, the
possibility of matching the bullets from this case to other
bullets matching any recovered firearm is highly speculative.
In any event, defendant fails to persuade that connecting his
firearm with another crime would be materially relevant to
proving who shot Little. Defendant's motion does not document
that Bloomington actually had "other strings of gas station
robberies" in which defendant had not been involved. (Def.
br., 48-49)
44
ARGUMENT
V
DEFENDANT HAS FAILED TO PERSUADE THAT HE IS ENTITLED TO POST
CONVICTION DISCOVERY AND/OR REMAND FOR FURTHER PROCEEDINGS
BEFORE A DIFFERENT JUDGE.
Defendant asks this court to remand for an evidentiary
hearing before a different judge, with the benefit of
discovery that he requested. (Def. br., 31, 49) The trial
court has discretion regarding the subject of post-conviction
discovery. See People ex reI. Daley v. Fitzgerald, 123 IIl.2d
175, 183-184, 526 N.E.2d 131, 135 (1988) (requiring "a
hearing, on motion of a party, for good cause shown").
The relevant factors include such matters as the issues
presented in the post-conviction petition, the scope of the
discovery sought, the length of time between the conviction
and the post-conviction proceeding, the burden that the
discovery would impose on the opposing party and on witnesses,
and the availability of the desired evidence through other
sources. Fitzgerald, 123 IIl.2d at 183-184, 526 N.E.2d at
135. Defendant's brief contains no analysis of these factors
but apparently treats discovery like it is a right of every
post-conviction petitioner who lacks evidentiary support for
45
his allegations. Defendant forfeits his claim by failing to
adequately brief it. See 210 III.2d R.341(h) (7).
In any event, the trial court did not abuse its
discretion. Defendant failed to request discovery following
his 2001 conviction until 2010. (R. Vol. X, C2598-C2607) The
defense then failed to obtain any hearing on its motion in the
10 months preceding the hearing on the prosecution's motion to
dismiss defendant's post-conviction petition. (R. Vol. X,
C2596, Vol. XXXV, 3, Vol. XIV, C3735) At that hearing, the
defense incorrectly claimed that its discovery motion was
"before" the court. (R. Vol. XXXV, 32) The prosecutor aptly
observed that the defense's motion for discovery "was not set
at this point." (R. Vol. XXXV, 36) The trial court remarked,
"Well, I believe the Motion for Supplemental Discovery
wouldn't be timely today anyway." (R. Vol. XXXV, 36)
The defense also failed to set any hearing on its motion
to further supplement the petition with affidavits from
Maureen Kevin and Leigh Dennison, as well as information about
Schaal's federal case. (R. Vol. XIV, C3806-C3874) The trial
court denied this motion to further supplement the petition.
(R. Vol. XIV, C3889) Defendant has not shown that this ruling
mattered to the ultimate disposition of his petition.
Defendant also fails to support his appellate request for
substituting out Judge Alesia A. McMillen in the event of a
46
remand. Defendant's only apparent basis is his assertion that
Judge McMillen's four-page written ruling "completely misses
the mark." (Def. br., 30) Defendant alleges that the ruling
lacks "significant analysis" and that it resulted because
Judge McMillen purportedly "did not fully understand" his
petition. (Def. br., 49)
However, defendant cites no recognized legal basis for
removing Judge McMillen from the case. Disqualifying a jUdge
over the presumption of impartiality is not a judgment to be
lightly made. Eychaner v. Gross, 202 Ill.2d 228, 280, 779
N. E. 2d 1115, 1146 (2002) (refusing a party's request to
reassign the case to a new judge on remand). "A judge's
rulings alone almost never constitute a valid basis for a
claim of judicial bias or partiality." 202 Ill.2d at 280, 779
N.E.2d at 1146. "Allegedly erroneous findings and rulings by
the trial court are insufficient reasons to believe that the
court has a personal bias for or against a litigant." 202
Ill.2d at 280, 779 N.E.2d at 1146.
47
CONCLUSION
WHEREFORE, the PEOPLE OF THE STATE OF ILLINOIS
respectfully request that the judgment of the circuit court be
affirmed, and that costs be assessed pursuant to 55 ILCS 5/4-
2002.
Respectfully Submitted,
THE PEOPLE OF THE STATE OF ILLINOIS
William A. YoderState's AttorneyMcLean County Law & Justice CenterBloomington, Illinois 61701
Patrick DelfinoDirectorRobert J. BidermanDeputy DirectorAnastacia R. BrooksStaff AttorneyState's Attorneys Appellate
Prosecutor725 South Second StreetSpringfield, Illinois 62704(217) 782 - 8076
COUNSEL FOR PLAINTIFF-APPELLEE
48
NO. 4-11-0415
IN THE
APPELLATE COURT OF ILLINOIS
FOURTH JUDICIAL DISTRICT
PEOPLE OF THE STATE OF ILLINOIS,
Plaintiff-Appellee,
vs.
JAMES SNOW,
Defendant-Appellant.
) Appeal from the Circuit Court of) the Eleventh Judicial Circuit) McLean County, Illinois)) No. 99-CF-1016)) Honorable) Alesia McMillen) Judge Presiding.
CERTIFICATE OF COMPLIANCE
I certify that this brief conforms to the requirements of
Rules 341 (a) and (b). The length of this brief, excluding the
pages containing the Rule 341{d) cover, the Rule 341{h) (1)
statement of points and authorities, the ·Rule 341{c)
certificate of compliance, the certificate of service, and
those matters to be appended to the brief under Rule 342{a),
is 48 pages.
hnastQ.u:q 1<... B~r:ai.AoL:()=--_
Anastacia R. Brooks, Staff AttorneyState's Attorneys Appellate
Prosecutor725 South Second StreetSpringfield, Illinois 62704(217) 782-8076
COUNSEL FOR PLAINTIFF-APPELLEE
•