Opinion
5-22-0456
05-17-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RAFAEL D. KENNEDY, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Macon County. No. 14-CF-302 Honorable Thomas E. Griffith, Judge, presiding.
BARBERIS JUSTICE delivered the judgment of the court. Justices Welch and Moore concurred in the judgment.
ORDER
BARBERIS JUSTICE.
¶ 1 Held: Defendant not entitled to an evidentiary hearing on his postconviction petition, where affidavits of witnesses did not support claim of actual innocence, and defendant failed to make a substantial showing that he was denied a fair trial due to juror bias.
¶ 2 Following a jury trial in the circuit court of Macon County, defendant, Rafael D. Kennedy, was convicted and sentenced for attempted first degree murder based on the theory of accountability (720 ILCS 5/8-4(a), (c)(1)(B); 9-1 (a)(1) (West 2012)). This court affirmed defendant's conviction on direct appeal (People v. Kennedy, 2017 IL App (4th) 150372-U, ¶¶ 66, 69), and the Illinois Supreme Court denied defendant's petition for leave to appeal. People v. Kennedy, No. 122896 (Ill. Jan. 18, 2018).
¶ 3 Defendant filed a petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122 1 et seq. (West 2020)), which advanced to the second stage. Postconviction counsel filed a supplemental postconviction petition, claiming actual innocence and ineffective assistance of counsel. The State filed a motion to dismiss, which the circuit court granted.
¶ 4 Defendant appeals, arguing that the circuit court erred by dismissing his postconviction petition at the second stage of the proceedings, where he made a substantial showing that (1) newly discovered evidence demonstrated defendant's actual innocence, and (2) an evidentiary hearing was warranted, where a juror failed to disclose her fiance's recent death by gunfire, preventing the parties from intelligently evaluating whether the juror "was fit to serve." We affirm.
¶ 5 I. Background
¶ 6 A complete recitation of the facts of the case are contained in defendant's direct appeal. Kennedy, 2017 IL App (4th) 150372-U. As such, we limit our recitation to those facts relevant to our disposition of this appeal and include additional facts in the analysis section as needed to address defendant's specific arguments.
¶ 7 On March 19, 2014, the State charged defendant by information with attempted first degree murder based on the theory of accountability (720 ILCS 5/8-4(a), (c)(1)(B); 9-1(a)(1) (West 2012)), a Class X felony, alleging defendant shot Katari Smith with the intent to kill.
¶ 8 On March 2, 2015, the cause proceeded to a jury trial. The evidence presented showed that defendant drove a gray, four-door vehicle with tinted windows to the Moundford Terrace apartment complex in Decatur, Illinois, on March 16, 2014, with his codefendant, Rajiv Rice. After defendant and Rice arrived at the apartment complex, Rice fired a .45-caliber firearm multiple times in the direction of Smith, who stepped outside the apartment of his girlfriend, Kearstyn Collins, after he saw someone standing over his car. As Smith exited the apartment, he heard gunshots and dropped to the ground. Smith got up and attempted to run inside the apartment. Smith, however, noticed a gunshot wound in his upper left knee. Smith fell to the ground and crawled back to the apartment. Smith did not see who shot him. As police responded to a call for a shooting, police saw a car matching the description of the vehicle involved in the shooting driving at a high speed. As police pursued defendant's vehicle and activated emergency lights, defendant failed to stop. During the pursuit, police saw a clump of glass fall from the passenger-side window where Rice sat. Defendant eventually pulled over. Police recovered two spent .45-caliber shell casings in the rear seat of defendant's vehicle and two semiautomatic handguns (a loaded .40 caliber and an unloaded .45 caliber) near the area where police saw glass fall from the window of defendant's vehicle.
¶ 9 At the Moundford Terrace apartment complex, police discovered a .45-caliber shell casing in the roadway and 12 .380-caliber shell casings on the opposite side of a privacy fence. Police also found an empty box of .380-caliber ammunition inside Collins's apartment and two .380-caliber handguns in the attic. Evidence demonstrated that two groups of people fired at each other. Moreover, evidence revealed that the .45-caliber shell casings were fired from the .45-caliber handgun recovered from the area where defendant and Rice had recently driven. Additionally, evidence demonstrated that the .380-caliber shell casings were fired by two .380-caliber handguns found in Collins's apartment.
¶ 10 During defendant's jury trial, the circuit court allowed, over defendant's objection, the State's introduction of defendant's gang affiliation. Testimonial evidence revealed that defendant and Rice led the west-side gang in Decatur, while Smith led a rival gang on Decatur's east side. Testimony revealed that defendant and Rice retaliated against Smith in response to the gang-related shooting of Tyheim Johnson, a west-side gang member, that occurred at 11 a.m. on March 16, 2014. Evidence revealed that shell casings in the street near Johnson's body were fired from one of the .380-caliber guns found in Collins's apartment.
¶ 11 Following jury deliberations, the jury returned a verdict finding defendant guilty of attempted first degree murder based on the theory of accountability. Following a sentencing hearing on May 4, 2015, the circuit court sentenced defendant to 27 years in prison.
¶ 12 On May 5, 2015, defendant filed a timely notice of appeal (Appeal No. 4-15-0372). Appellate counsel was appointed to represent defendant on appeal. Our colleagues in the Fourth District affirmed defendant's conviction on direct appeal. See Kennedy, 2017 IL App (4th) 150372-U.
We note that the jury trial proceedings took place under the jurisdiction of the Fourth District. Well after the Fourth District issued its decision on direct appeal, Macon County was redistricted from the Fourth District to the Fifth District. Ill. S.Ct., M.R. 30858 (eff. Dec. 8, 2021).
¶ 13 On June 22, 2015, defendant filed a pro se motion for reduction of sentence. Defendant's motion included allegations that trial counsel misled him by failing to argue that defendant "should have received credit for *** assisting the State in [an]other serious case." Defendant, who believed he "had little to none [ sic ] responsibility," argued his sentence was excessive because "this is [his] first felony conviction." Defendant requested that the circuit court weigh his rehabilitative potential and review the strong evidence demonstrating that Smith initiated the confrontation.
¶ 14 On July 9, 2015, the circuit court, on its own motion, dismissed defendant's pro se motion for reduction of sentence for defendant's failure to timely file the motion within 30 days of the defendant's sentencing date.
¶ 15 On December 11, 2015, defendant filed a pro se "Petition For Relief From Judgment." Defendant argued that the circuit court (1) erred by violating his right to a speedy trial; (2) erred and abused its discretion by failing to properly conduct voir dire regarding gang-related juror bias; and (3) erred by imposing a 15-year firearm enhancement sentence. Shortly thereafter, on March 9, 2016, the circuit court sua sponte dismissed defendant's pro se petition, finding no basis existed to grant defendant's request for relief from judgment. Defendant filed a timely pro se motion to reconsider on April 7, 2016, and a pro se notice of appeal on April 11, 2016.
¶ 16 On May 11, 2016, the circuit court entered an order denying defendant's pro se motion to reconsider "for the reasons set forth in the Court's written Order dated March 9, 2016 ***." Defendant filed a pro se notice of appeal on May 27, 2016, from the circuit court's March 9, 2016, and May 11, 2016, orders. On June 22, 2018, the Fourth District, on motion by defendant, dismissed defendant's appeal (Appeal No. 4-16-0411). On July 27, 2018, the appellate court issued its mandate.
¶ 17 On October 22, 2018, defendant, represented by counsel, filed a petition for postconviction relief, claiming appellate counsel rendered ineffective assistance of counsel by failing to argue for the dismissal of defendant's case due to a speedy trial violation and that the circuit court erred in admitting gang-related evidence. Defendant also argued that trial counsel rendered ineffective assistance of counsel by failing to address gang evidence prior to trial and properly inform defendant about the mandatory firearm enhancement prior to rejecting the State's plea offer. In addition, defendant argued that a juror, Chantel Lewis, failed to disclose during voir dire that her fiance had recently died by gunfire, denying him a fair trial.
¶ 18 On January 18, 2019, the circuit court determined defendant's petition for postconviction relief stated the gist of a constitutional claim. Defendant's petition advanced to the second stage of the proceedings.
¶ 19 On January 24, 2020, defendant filed a supplemental petition for postconviction relief. Defendant argued two additional issues, claiming that (1) trial counsel rendered ineffective assistance of counsel by failing to object to the State's use of text messages without proper authentication and (2) newly discovered evidence of an affidavit obtained from Smith supported defendant's claim of actual innocence under the theory of self-defense. Defendant attached the affidavit of Smith, dated October 2, 2019, to his petition.
¶ 20 In Smith's affidavit, Smith attested that a man named "LaRon" asked to "lay lo" at Collins's apartment because LaRon recently shot someone. While at Collins's apartment, LaRon and two unidentified men concocted a plan to rob defendant during a drug deal. After defendant agreed to buy marijuana from LaRon, defendant pulled up in a gray car outside Collins's apartment. Defendant exited his vehicle but stood close to the car, while LaRon attempted to convince defendant to finalize the drug transaction inside the apartment. The men inside the apartment noticed that defendant was not alone, at which time LaRon started to shoot at the car. Smith indicated that defendant and Rice shot in self-defense. Although Smith testified at Rice's trial, he claimed police instructed him that he would "get a good deal on [his] pending case" if he "ke[pt] it simple and don't [ sic ] say anything about the setup." Smith complied in Rice's trial. Smith later testified in defendant's trial but "le[ft] out the events that led up to the shooting."
¶ 21 On October 15, 2020, the State filed a motion to dismiss defendant's supplemental petition for postconviction relief. Following multiple continuances, defendant filed a response to the State's motion to dismiss on February 14, 2022, and the State filed a response to defendant's response on March 1, 2022.
¶ 22 On April 22, 2022, the circuit court held a second stage hearing on the State's motion to dismiss defendant's petition for postconviction relief, including defendant's supplemental petition for postconviction relief. After hearing argument by the parties, the court granted the State's motion to dismiss.
¶ 23 On May 23, 2022, defendant filed a motion to reconsider. Defendant's motion argued that new evidence, including the affidavit of Kronterial Bond, dated August 12, 2021, undermined confidence in defendant's conviction. Counsel argued that Bond's affidavit, which counsel received after the April 22, 2022, hearing on the State's motion to dismiss, showed Rice acted in self-defense.
¶ 24 In Bond's affidavit, Bond attested that he heard "Lil Ron" discuss "a[n] easy robbery" that he planned through a fake drug deal. While at Collins's apartment, Bond and others went to Smith's car to smoke weed, while Lil Ron talked to defendant on the phone, providing defendant directions for the drug deal. As Bond saw a gray car pull up, he and Smith walked back inside Collins's apartment. Rice rolled down his window to spit, while defendant stood outside the car. Lil Ron and another individual identified as "Black" shot at defendant and Rice. As Smith ran back to the apartment building, Black shot Smith. Bond attested to the following: "I never seen [ sic ] *** Rice with a gun nor shoot a gun. And even if [Rice] did, [h]e wasn't the person who shot [Smith] and *** Rice did not initiate no [ sic ] gun fire. It was Lil Ron and Black." As Lil Ron helped injured Smith back into the apartment, Bond recalled Lil Ron saying that he meant to kill defendant because defendant had sex with his girlfriend. Smith apparently stated that Lil Ron shot him on accident. Bond referred to defendant and Rice as "victims." Bond stated that he called Rice's attorney, but his calls went unanswered.
Smith's affidavit refers to a man named "LaRon," while Bond's affidavit refers to "Lil Ron." It appears Smith and Bond are referring to the same person.
¶ 25 On June 24, 2022, following a hearing, the circuit court denied defendant's motion to reconsider. Defendant filed a timely notice of appeal.
¶ 26 II. Analysis
¶ 27 On appeal, defendant argues that the circuit court erred by dismissing his postconviction petition at the second stage of the proceedings. First, defendant argues that newly discovered evidence, including affidavits from Smith and Bond, demonstrate defendant's actual innocence. Second, defendant argues that Lewis failed to disclose that her fiance died by gunfire, preventing the court and parties from intelligently evaluating whether Lewis "was fit to serve as a juror." We address defendant's contentions in turn.
¶ 28 The Post-Conviction Hearing Act provides a means by which a defendant may challenge his conviction or sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill.2d 458, 471 (2006). "To be entitled to postconviction relief, a defendant must show that he has suffered a substantial deprivation of his federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged." Id. A postconviction proceeding does not substitute for a direct appeal but instead "offers a mechanism for a criminal defendant to assert a collateral attack on a final judgment." People v. Robinson, 2020 IL 123849, ¶ 42.
¶ 29 Proceedings under the Post-Conviction Hearing Act are divided into three stages. People v. Gaultney, 174 Ill.2d 410, 418 (1996). At the first stage, the circuit court may dismiss a postconviction petition that is "frivolous or *** patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2020). If the circuit court does not dismiss the petition at the first stage, it advances to the second stage where the court may appoint counsel to represent the defendant. Id. § 122-2.1(b); People v. Bailey, 2017 IL 121450, ¶ 18.
¶ 30 At the second stage, the defendant must make a substantial showing of a constitutional violation. People v. Domagala, 2013 IL 113688, ¶¶ 33, 35. Such a showing is made when the petition's well-pled allegations, if proven at an evidentiary hearing, would entitle the defendant to relief. Id. ¶ 35. The circuit court does not engage in fact-finding or credibility determinations at this stage. Id. Unless the petitioner's allegations are affirmatively refuted by the record, they are taken as true. Id. The State may file a motion to dismiss or answer the petition. 725 ILCS 5/122-5 (West 2020). "If the State moves to dismiss, the [circuit] court may hold a dismissal hearing, which is still part of the second stage." People v. Wheeler, 392 Ill.App.3d 303, 308 (2009) (citing People v. Coleman, 183 Ill.2d 366, 380-81 (1998)). If the petition fails to make a substantial showing of a constitutional violation, it is dismissed. People v. Edwards, 197 Ill.2d 239, 246 (2001). "If not dismissed, however, the petition advances to the third stage, where the circuit court conducts an evidentiary hearing before deciding whether to grant relief." Bailey, 2017 IL 121450, ¶ 18. At the third stage, the court functions as the fact finder by determining witness credibility and resolving conflicts in the evidence. Domagala, 2013 IL 113688, ¶ 34.
¶ 31 This court reviews the circuit court's determination at the second stage de novo. Pendleton, 223 Ill.2d at 473. "We may affirm the dismissal based on any reason supported by the record because we review the judgment, not the [circuit] court's reasoning." People v. Gonzalez, 2016 IL App (1st) 141660, ¶ 25 (citing People v. Anderson, 401 Ill.App.3d 134, 138 (2010)).
¶ 32 In the present case, defendant's postconviction petition advanced to the second stage and the circuit court held a hearing on the State's motion to dismiss. At the second stage hearing, postconviction counsel argued that newly discovered evidence, including affidavits of Smith and Bond, demonstrated defendant's actual innocence based on self-defense.
¶ 33 To establish a colorable claim of actual innocence, the evidence in support of the claim must be newly discovered, material and not merely cumulative, and of such a conclusive character that it will probably change the result of retrial. People v. Edwards, 2012 IL 111711, ¶ 32. Claims of actual innocence "must be supported 'with new reliable evidence-whether it be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial.'" Id. (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)). "New means the evidence was discovered after trial and could not have been discovered earlier through the exercise of due diligence." People v. Coleman, 2013 IL 113307, ¶ 96 (citing People v. Burrows, 172 Ill.2d 169, 180 (1996)). Material means the evidence is relevant and probative of the defendant's innocence. People v. Coleman, 2013 IL 113307, ¶ 96. Evidence is noncumulative if it would add to information heard by the jury at trial. Id. Whether the evidence is conclusive refers to whether the new evidence, considered with trial evidence, would probably cause a different result than occurred at the trial. Id. With a claim of actual innocence, the defendant "must raise the probability that it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence." Edwards, 2012 IL 111711, ¶ 33. Whether the evidence is of such a conclusive nature that it would probably change the result on retrial, is the most important piece of analysis. People v. Sanders, 2016 IL 118123, ¶ 47 (citing People v. Washington, 171 Ill.2d 475, 489 (1996)).
¶ 34 We affirm the circuit court's dismissal of defendant's claim of actual innocence without an evidentiary hearing. The circuit court determined that Smith's affidavit was not new evidence, given that trial counsel could have interviewed Smith prior to trial and that the issue of self-defense could have been raised at trial. The court also determined that Smith's affidavit was clearly and affirmatively rebutted by the record and evidence presented at trial. Similarly, the circuit court determined that Bond's affidavit was not new evidence, was cumulative, and "most importantly[,] *** rebutted by the entire circuit court proceeding," where the evidence demonstrated the shooting was retaliatory in nature. Moreover, the court determined that the affidavits of Smith and Bond contradicted Smith's trial testimony and defendant's statement to police on March 16, 2014. Additionally, the court found it important that defendant provided no facts at trial to support a theory of self-defense. Instead, defendant argued he was not involved in the shooting and that the "entire shooting was a mystery to [him]." We agree.
¶ 35 Taking the allegations of defendant's postconviction petition as true, as we must, we cannot find that defendant set forth a substantial showing of actual innocence. The court did not engage in a credibility finding of either Smith or Bond but determined that the affidavits of Smith and Bond did not contain newly discovered evidence. We agree with the circuit court that this evidence could have been discovered before trial with the exercise of due diligence. Despite defendant's contention that the evidence is newly discovered because the affidavits were disclosed after defendant's trial, this does not render the evidence contained within new evidence. Clearly, if defendant acted in self-defense, he would have been armed with this information and raised the issue of self-defense at trial, allowing trial counsel an opportunity to interview Smith and discover if other individuals present at the shooting, including Bond, had information to support such a theory.
¶ 36 Even if the affidavits of Smith and Bond could be considered new evidence, the affidavits do not raise the probability that, in light of the new evidence, it is more likely than not that no reasonable juror would have convicted defendant. Sanders, 2016 IL 118123, ¶ 47 (stating "conclusive character" requirement as "most important" element of an actual-innocence claim (citing Washington, 171 Ill.2d at 489)). The affidavits of Bond and Smith are positively rebutted by the original trial record. See Domagala, 2013 IL 113688, ¶ 35. An audio and video recorded interview of defendant taken on March 16, 2014, revealed that defendant left the apartment complex with Rice after visiting a friend. After defendant heard the front window on the passenger side shatter, defendant told police that he drove away as fast as possible and could not tell whether Rice fired any shots when he started taking fire. Defendant stated that he did not fire a gun. Defendant also stated to police that he did not know Johnson, was unaware of a shooting that took place earlier that day, and did not know why anyone would shoot at him. The State, however, rebutted defendant's statement by introducing text messages from defendant's cell phone, which demonstrated that defendant, prior to the shooting at Collins's apartment, was aware that Johnson had been shot and killed due to gang-related retaliation. Thus, as the Fourth District observed in defendant's direct appeal, the evidence tended to show that Rice fired several shots at Smith and that one of those shots hit Smith in the knee. Kennedy, 2017 IL App (4th) 150372-U, ¶ 69. Proceeding on the theory of accountability for the actions of Rice, the Fourth District determined that the evidence demonstrated defendant committed attempted first degree murder under the theory of accountability. Id. ¶ 71. Thus, our de novo review reveals that because the affidavits of Smith and Bond would not change the result on retrial, we conclude that defendant failed to make a substantial showing of actual innocence.
¶ 37 Next, defendant argues that Lewis, a biased juror, failed to disclose that her fiance died by gunfire, preventing the circuit court and parties from intelligently evaluating whether Lewis "was fit to serve." Defendant argues that had Lewis mentioned her fiance's death by gunfire two years before defendant's trial, "and, further perhaps, that the suspect's trial had ended in an acquittal, she no doubt would have been removed from the jury for cause or by a defense peremptory challenge." As such, defendant contends that an evidentiary hearing is necessary to determine if Lewis's failure to inform the court of her fiance's shooting death "was rooted in some form of bias." We cannot agree.
¶ 38 The right to a jury trial is a fundamental right that guarantees a defendant a trial by a panel of impartial jurors. People v. Peeples, 155 Ill.2d 422, 462 (1993). The failure to afford a defendant a fair trial "violates even the minimal standards of due process" and requires reversal. People v. Cole, 54 Ill.2d 401, 411 (1973). Where a defendant does not learn of facts which might support a finding of partiality by a juror until after a verdict, a posttrial evidentiary hearing may be necessary. People v. Towns, 157 Ill.2d 90, 102 (1993). The defendant, however, bears the burden to introduce and offer "specific, detailed and nonconjectural evidence in support of his position." Id. In the absence of such evidence, an evidentiary hearing is not warranted. Id. (citing People v. Witte, 115 Ill.App.3d 20, 30 (1983)).
¶ 39 In the instant case, defendant has provided no evidence of juror bias other than the fact that Lewis's fiance died by gunfire two years before defendant's trial. This evidence, by itself, adds nothing in the way of establishing juror bias or confirms, without a doubt, that the circuit court or trial counsel would have removed Lewis as a juror. The record indicates that the circuit court admonished Lewis and all fellow prospective jurors of the following questions:
"THE COURT: *** Is there anything about the nature of this case or the charge, and, again, we're dealing with one count of attempt[ed] murder, that would affect anyone's ability to be fair and impartial in this particular case? Anyone?
THE PROSPECTIVE JURORS: No.
THE COURT: Okay-Not trying to talk you into anything but sometimes people will say to me, you know, Judge Griffith, my brother was the victim of something like this and I'm not sure I can be fair and impartial. Anybody in that situation?
THE PROSPECTIVE JURORS: No.
THE COURT: Okay. Thank you. Again, turning to the jurors in the pews, is there anything about the nature of the case and, again, we're dealing with one count of attempt[ed] murder, that would affect anyone's ability to be fair and impartial. If so, please put up your hand."
¶ 40 In response, one juror raised her hand and informed the court that three of her friends had been murdered. When the court asked her if she could try to base her decision in defendant's case solely on the evidence presented in the courtroom, the juror responded: "I could try." Following this discussion, Lewis and her fellow prospective jurors answered "no" to the court's question of whether anything about the nature of the case would affect one's ability to be fair and impartial.
¶ 41 Based on our review of the record, we cannot conclude that Lewis's traumatic life event of losing her fiance affected her ability to be fair and impartial in this particular case. Rather, all of Lewis's responses suggest that she could in fact be fair and impartial, despite her past experiences. Thus, it is our view that defendant's petition failed to make a substantial showing that he was denied a fair trial and that Lewis was biased when Lewis failed to disclose the recent death of her fiance.
¶ 42 Therefore, defendant is not entitled to an evidentiary hearing on these issues. Accordingly, we conclude that the circuit court properly dismissed defendant's claims at the second stage of the proceedings.
¶ 43 III. Conclusion
¶ 44 For the reasons stated, we affirm the order of the circuit court of Macon County granting the State's motion to dismiss defendant's petition for postconviction relief at the second stage of proceedings.
¶ 45 Affirmed.