Opinion
1-22-1588
02-15-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MIGUEL VAZQUEZ, 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 Cook County. No. 17 CR 17456 Honorable Kenneth J. Wadas, Judge, presiding.
PRESIDING JUSTICE ROCHFORD delivered the judgment of the court. Justice Hoffman concurred in the judgment. Justice Ocasio specially concurred.
ORDER
ROCHFORD PRESIDING JUSTICE
¶ 1 Held: First-stage dismissal of postconviction petition is reversed, and this matter is remanded for second-stage postconviction proceedings, where at least one of defendant's claims of ineffective assistance of trial counsel was not frivolous or patently without merit.
¶ 2 Defendant-appellant, Miguel Vazquez, appeals from the first-stage dismissal of the postconviction petition he filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)). For the following reasons, we reverse the summary dismissal of defendant's postconviction petition and remand for further proceedings.
¶ 3 The trial proceedings and the evidence presented at trial were fully set out in our prior order, entered upon defendant's direct appeal, and need not be fully restated here. See People v. Vazquez, 2021 IL App (1st) 190437-U. We therefore restate only those facts necessary to resolve this appeal, with portions of this order taken from our prior decision.
¶ 4 In September 2013, defendant was charged in a 172-count indictment in connection with a shooting that took place on June 21, 2013, in which four members of a family were shot in their front yard, one fatally. All but a single count of first degree murder and three counts of aggravated battery were dismissed on the State's motion.
¶ 5 Prior to trial, the State filed a written motion to admit gang evidence. In the motion, the State alleged that defendant was identified as the shooter by the three surviving victims and two eyewitnesses who were across the street at the time of the shooting. The motion also alleged that defendant was either a member of, or associated with, the Spanish Cobra street gang, while the victims were not gang-affiliated. At trial, the State would seek to admit evidence of a gang rivalry in the area of the shooting between the Spanish Cobra and Latin Brother street gangs. Notably, "the house that the Latin Brother gang members stayed at was two houses off the northeast corner in the 3000 block of North Kilpatrick, while the victim's home was two houses off the northeast corner of the 2900 block of North Kilpatrick." Two eyewitnesses located across the street had previously dated Latin Brother gang members, and they called the police after the shooting. The State's motion asserted that this evidence was relevant to "provide a motive for an otherwise inexplicable act." Over defendant's objection, the trial court granted the State's motion to admit this evidence at trial. The matter proceeded to a jury trial held in February 2018.
¶ 6 The State began by presenting testimony from the three surviving victims of the shooting: siblings Veronica, Uvaldo, and Marcos Blancas. The three consistently testified that at approximately 7:45 p.m. on June 21, 2013, they and other family members-including Uvaldo's wife, Marsiela, and a cousin, Rene Soto-were all gathered on the front steps and in the front lawn of their parents' house, located at 2903 North Kilpatrick in Chicago, Illinois. It was still light out, and they were enjoying a summer evening while awaiting the arrival of a street-food vendor. The home was located on the east side of the street and was the second house north of the intersection of Kilpatrick and George Streets.
¶ 7 At that time, the siblings heard gunshots and observed a man approaching from the yard of the house located immediately to the south on Kilpatrick. In a line-up presented separately to the siblings at a police station on August 12, 2013, and again in open court at trial, each of the siblings identified defendant as the shooter. As a result of the shooting, Rene suffered fatal injuries, Veronica was left blind in her left eye, Uvaldo is no longer able to walk, and Marcos can no longer lift heavy objects. In addition, Veronica testified that, just prior to the shooting, she saw two girls walking south on the west side of Kilpatrick, just south of George. She recognized one of them as Bianca, who was a classmate at school but was not a friend.
¶ 8 The State then presented the testimony of Bianca Munoz. She testified that at approximately 7:45 p.m. on that day, she was walking south with her friend, Jacqueline Miranda, along the west side of Kilpatrick. She then saw defendant, a man she had never seen before and whom she identified in open court, as he exited a van and watched him walk toward Kilpatrick with a gun in his hands. As he passed the first house, Bianca then saw defendant fire shots toward a group of people in the front of the second house north of George on the east side of Kilpatrick. Defendant then returned to the van and the van left the scene, driving north.
¶ 9 Bianca and Jacqueline ran toward the group of people, and Bianca realized that one of the shooting victims was Veronica, with whom she had been a classmate but not a friend. Jacqueline called 911, and then Bianca and Jacqueline ran north to check on Bianca's boyfriend. As Bianca, explained, she was concerned because the boyfriends of both Bianca and Jacqueline were members of the Latin Brothers street gang.
¶ 10 The next day, Bianca and Jacqueline were in Kelvyn Park, located southeast of the location of the shooting. There, they encountered defendant, who asked them if any "LBs," or Latin Brothers, had been shot. Bianca also noticed the same van she observed the night before was parked nearby. After the encounter, Bianca and Jacqueline called the police. Two days later, Bianca identified defendant as the shooter in a photo array, and she also identified him as the shooter in a lineup on August 12, 2013.
¶ 11 Chicago police officer Ronald Rodriguez, who was qualified as a gang expert, testified regarding the 2013 geographical boundaries of the territory of the Latin Brothers street gang and the Spanish Cobras gang in the area surrounding the shooting. At the time, these two gangs were rivals and would fight each other. FBI Special Agent Joseph Raschke testified as an expert in cell phone technology. Raschke conducted an analysis of defendant's cell phone for June 21, 2013, between 7:20 p.m. and 8:45 p.m. There was a record of five calls to and from defendant's phone during this time, the first four of which took place at 7:40, 7:57, 8:07, and 8:12 p.m. The last call took place at 8:35 p.m. All five calls connected to the tower closest to 2903 North Kilpatrick, which was located a couple of blocks southeast of the shooting.
¶ 12 Chicago Police Detective Greg Swiderek testified that he was assigned to investigate this case on June 21, 2013, just before 8:00 p.m. Swiderek processed the scene and spoke with Bianca, Jacqueline and Marisela. On July 22, 2013, Bianca viewed the photo array and identified defendant as the shooter. Defendant was arrested on August 12, 2013, next to Kelvyn Park. The detectives then interviewed defendant at the police station, and a portion of defendant's recorded interview was admitted into evidence and published to the jury. In the interview, defendant admitted that he was previously a Spanish Cobra, but in a different neighborhood. Defendant admitted that Spanish Cobras are active in Kelvyn Park.
¶ 13 A lineup was then assembled that included defendant, and the lineup was viewed separately by Bianca, Veronica, Marcos, Uvaldo and Marisela. All but Marisela identified defendant as the shooter, with Marisela being unable to make a positive identification. The State rested its case, and defendant's motion for a directed verdict was denied.
¶ 14 The defense presented evidence from Rosalynn Hererra who lived at 2824 North Kilpatrick Avenue on the date of the shooting. She testified that she saw a man running to the alley north of George and east of Kilpatrick after the shooting. Rosalynn testified that she was "positive" that defendant was not the person she observed running from the scene. Rosalynn also did not observe a vehicle in the alley. The defense also presented testimony from two witnesses who testified that they did not believe defendant was a member of the Spanish Cobras gang, and that defendant attended a party at an apartment at the time of the shooting.
¶ 15 In rebuttal, the State first called State's Attorney's office Investigator Rosendo Suarez Del Real. The investigator received an assignment to photograph 2824 North Kilpatrick Avenue. When he stood on the steps of 2824 North Kilpatrick, he could not see the alley to the east of Kilpatrick and north of George. Photographs supportive of his testimony were admitted into evidence and published to the jury. In addition, Del Real testified that 2824 North Kilpatrick is the twelfth house south of George on the west side of the street. When Del Real stood on the steps of 2824 North Kilpatrick and looked north toward the intersection of Kilpatrick and George where his partner was standing, he could not make out any distinguishing features.
¶ 16 Detective Swiderek was recalled to testify in rebuttal. He interviewed defendant four times after he was placed in custody and each was recorded. Defendant never gave a party at an apartment as an alibi, nor did he provide any names of possible alibi witnesses. Portions of defendant's recorded interviews were played for the jury.
¶ 17 The State rested in rebuttal, and the parties presented closing arguments. Thereafter, the jury found defendant guilty of one count of first degree murder and three counts of aggravated battery. The jury also found that defendant personally discharged a firearm that proximately caused death. Defendant's motion for a new trial was denied, and he was subsequently sentenced to a total of 70-years' imprisonment, comprised of a 50-year sentence for murder, two consecutive 10 year sentences for aggravated battery and one concurrent sentence of 10 years for aggravated battery.
¶ 18 Defendant filed a direct appeal, asserting that the trial court erred by: (1) allowing the State to introduce irrelevant, highly prejudicial gang evidence at trial, and (2) allowing the State to introduce certain portions of his recorded interview with police as rebuttal evidence, where those portions contained irrelevant and prejudicial gang evidence, some of which came in the form of inadmissible hearsay. Defendant also contended that his trial counsel provided ineffective assistance, where during the cross-examination of Bianca counsel improperly elicited inadmissible hearsay evidence that Bianca's friend, Jacqueline, also identified defendant as the shooter. Finally, defendant contended that he was denied a fair trial due to improper and prejudicial remarks made by the State during closing arguments. Vazquez, 2021 IL App (1st) 190437-U.
¶ 19 We affirmed defendant's conviction on appeal. Id. In our ruling, we repeatedly relied upon the fact that "the State presented evidence that four witnesses positively and consistently identified defendant as the shooter in both a line up and in open court, with Bianca having also previously identified defendant as the shooter in a photo array." (Emphasis in original.) Id. ¶¶ 66, 88. We also specifically noted that trial counsel's theory of the case was that that Bianca and Jacqueline together conspired to initially" 'put this case on'" defendant because their boyfriends were members of the Latin Brothers and defendant was from Spanish Cobra territory. Id. 78.
¶ 20 On June 29, 2022, defendant filed a 40-page postconviction petition, attached to which were over 200 pages of exhibits. Therein, defendant asserted numerous claims of ineffectiveness of trial counsel. Defendant's petition also included a claim that he was denied his constitutional right to due process by the State's failure to disclose "impeaching and/or exculpatory evidence" prior to trial, as well as a claim that this undisclosed evidence constituted newly discovered evidence of defendant's actual innocence.
¶ 21 As relevant to our resolution of this appeal, among the claims of ineffective assistance of trial counsel included in the petition was an assertion that defendant's trial counsel was ineffective for failing to consult with and call as a trial witness an expert on eyewitness memory and identification. Petitioner specifically asserted that his "conviction was based entirely on eyewitness identifications," and that "[u]nder the circumstances of this case, Petitioner's trial attorney's performance in failing to investigate and call such an expert was deficient." This assertion was supported by defendant's affidavit, wherein he averred:
"Prior to trial, I met with [counsel] to discuss my case, the investigation [counsel] was performing, and the strategy for our defense.
* * *
[T[o the best of my knowledge, information, and belief, based on those conversations with [counsel], my understanding is that [counsel] never consulted with an expert on eyewitness identification or memory. My family had the ability to pay for such an expert and would have paid for such an expert had [counsel] consulted with one."
¶ 22 Also attached in support of this claim was the curriculum vitae and the 14-page written report of Dr. Jeffery Neuschatz, who had been "qualified as an expert on eyewitness memory in approximately 100 criminal cases in seven states, federal courts, and military courts." In his written report, Dr. Neuschatz summarized the research bearing on the many variables affecting eyewitness memory including exposure time, retention interval, stress, weapon focus, disguise, unconscious transference, expectation, confidence, stranger identification, commitment effect, police suggestion and misconduct, post-identification feedback, and lineup procedures. He then specifically indicated and explained how these variables were relevant to the facts of this case and how they may have negatively impacted the accuracy and reliability of the eyewitness identifications presented by the State at trial. Based on his affidavit and this report, defendant asserted in his petition that he "was thus prejudiced by his attorney's deficient performance. Had the foregoing expert testimony been presented, there is a reasonable probability that the jury would have found reasonable doubt of Petitioner's guilt."
¶ 23 On September 15, 2022, the circuit court summarily dismissed defendant's petition in a 26-page written order. Defendant filed a timely notice of appeal from that decision on October 14, 2022.
¶ 24 The Act provides a procedural mechanism through which a defendant may assert a substantial denial of his constitutional rights in the proceedings which resulted in his conviction. 725 ILCS 5/122-1 (West 2020). At the first stage of a postconviction proceeding, the circuit court independently reviews the defendant's petition, taking the allegations as true, and determines if it is frivolous or patently without merit. People v. Hodges, 234 Ill.2d 1, 10 (2009). A petition should be summarily dismissed as frivolous or patently without merit only when it "has no arguable basis in either fact or law." Id. at 11-12; see also People v. Tate, 2012 IL 112214, ¶ 9 ("the threshold for survival [is] low"). A petition lacks an arguable basis in fact or law when it "is based on an indisputably meritless legal theory or a fanciful factual allegation." Hodges, 234 Ill.2d at 16. Fanciful factual allegations are those which are "fantastic or delusional" and an indisputably meritless legal theory is one that is "completely contradicted by the record." Id. at 16-17.
¶ 25 To state a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-prong, deficiency and prejudice test set forth in Strickland v. Washington, 466 U.S. 668, 687 (1984). At the first stage of postconviction proceedings, a defendant alleging ineffective assistance of counsel must only show that it is arguable trial counsel's performance fell below an objective standard of reasonableness, and arguable that defendant was prejudiced by such deficient performance. Tate, 2012 IL 112214, ¶ 19 (citing Hodges, 234 Ill.2d at 17).
¶ 26 We review the summary dismissal of a postconviction petition de novo. Tate, 2012 IL 112214, ¶ 10. Notably, partial summary dismissals are not permitted under the Act. People v. Cathey, 2012 IL 111746, ¶ 34. Where a defendant's petition sets forth a single claim surviving summary dismissal, the entire petition must be remanded for further proceedings regardless of the merits of any other claim. Id.
¶ 27 As noted above, defendant's petition included a claim that his trial counsel was ineffective for failing to consult with and call as a trial witness an expert on eyewitness memory and identification, and that defendant was prejudiced by this failure. On appeal, defendant contends that that the circuit court improperly dismissed this claim at the first stage. For the following reasons, we agree and therefore reverse and remand for second-stage proceedings on defendant's entire petition.
¶ 28 In dismissing this claim, the circuit court first concluded that defendant did not show that it was even arguable that trial counsel's performance in this regard fell below an objective standard of reasonableness. First, the circuit court concluded that deference must be given to trial counsel's chosen trial strategy, and that the expert testimony proposed by defendant in his petition would "not fit the defense theory" at trial. The circuit court noted that the theory at trial "was not that there were mistaken identifications but that [Bianca and Jacqueline] manipulated the case to implicate Petitioner." The circuit court went on to find that it "would not make sense to argue that [Bianca and Jacqueline] may have been mistaken in their identification of someone they knew did not commit this offense and were lying about being the shooter."
¶ 29 It is certainly true that to ultimately establish deficient performance, a defendant must overcome the strong presumption that the challenged action or inaction of trial counsel may have been the product of sound trial strategy, and matters of trial strategy are generally immune from claims of ineffective assistance of counsel. People v. Manning, 241 Ill.2d 319, 327 (2011). However, our supreme court has recognized that consideration of trial strategy "is inappropriate for the first stage, where the test is whether it is arguable that counsel's performance fell below an objective standard of reasonableness and whether it is arguable that the defendant was prejudiced." Tate, 2012 IL 112214, ¶ 22. Defendant's "burden to address a claim of trial strategy does not attach until the second stage of postconviction proceedings" (People v. Hayes, 2022 IL App (1st) 190881B, ¶ 28), and therefore predicating the summary dismissal of a postconviction claim on this basis is improper (People v. Burns, 2015 IL App (1st) 121928, ¶ 32).
¶ 30 Second, in evaluating trial counsel's performance in this regard the circuit court properly recognized that every effort must be made to evaluate counsel's performance from his perspective at the time, rather than through the lens of hindsight. See People v. Perry, 224 Ill.2d 312, 344 (2007). The court also correctly recognized that "[Representation based on the law prevailing at the time of trial is adequate, and counsel is not incompetent for failing to accurately predict that existing law will change." People v. Weninger, 292 Ill.App.3d 340, 345 (1997). The circuit court then noted that it was not until our supreme court issued its decision in People v. Lerma, 2016 IL 118496, ¶ 24, that it conclusively recognized that research concerning eyewitness identifications was "well settled, well supported, and in appropriate cases a perfectly proper subject for expert testimony." Asserting that defendant was tried before the decision in Lerma was issued, the circuit court concluded as follows:
"Petitioner's trial concluded over two years before Lerma was decided and, at that time, this type of expert testimony was being routinely excluded. In light of the law at the time of Petitioner's trial and the deference owed to trial counsel on matters of trial strategy, there is no arguable basis for concluding that counsel's decision not to present expert testimony on the reliability of eyewitness identifications-but to rely instead on cross-examination and closing argument to highlight potential weaknesses in the identifications as well as an allegation of an intentional false identification due to a gang rivalry-fell below an objective standard of reasonableness."
¶ 31 This conclusion was improper for two reasons. First, and as discussed above, it relied upon a consideration of and deference to trial strategy that is improper at the first stage. Moreover, the Lerma decision was issued in January 2016 (id.), while defendant's trial was not held until February 2018. Trial counsel therefore had the full benefit of that decision well before trial, and it was improper to rely upon the Lerma decision's unavailability to conclude that trial counsel was not ineffective for failing to consult with and call as a trial witness an expert on eyewitness memory and identification.
¶ 32 Ultimately, we find that defendant's petition showed that his conviction was based largely upon the testimony of four eyewitnesses, and that expert testimony was both admissible at trial and could have been presented to call that testimony into question. We reiterate that a petition should be summarily dismissed at the first stage as frivolous or patently without merit only when it "has no arguable basis in either fact or law" (Hodges, 234 Ill.2d at 12), and "the threshold for survival [is] low" (Tate, 2012 IL 112214, ¶ 9). On this record, we conclude that defendant's petition adequately showed that it is arguable that trial counsel's failure to consult with and call as a trial witness an expert on eyewitness memory and identification performance fell below an objective standard of reasonableness. Id. ¶ 19; Hayes, 2022 IL App (1st) 190881-B, ¶ 36-37 (coming to same conclusion in similar circumstances).
¶ 33 We now turn to the question of whether it is arguable that defendant was prejudiced by such arguably deficient performance. "In the context of first-stage postconviction proceedings, it need only be arguable that, had counsel performed adequately, a significantly less than 50% chance exists of a different outcome." Hayes, 2022 IL App (1st) 190881-B, ¶ 39. We find that defendant's petition met this low standard.
¶ 34 In reaching an opposite conclusion, the circuit court first relied upon its finding that "four witnesses independently identified Petitioner," and that therefore any question Dr. Neushatz's testimony might have raised with respect to any single identification would not have changed the outcome at trial. First, we find this conclusion to be premised upon fact-finding and credibility determinations, which are inappropriate at the first stage. People v. Coleman, 183 Ill.2d 366, 385 (1998). Moreover, Dr. Neuschatz's report specifically summarized the research bearing on the many variables affecting eyewitness memory and specifically indicated and explained how these variables may have negatively impacted the accuracy and reliability of each of the four eyewitness identifications presented by the State at trial. We reiterate that at the first stage defendant's allegations must be taken as true, and a petition should be summarily dismissed as frivolous or patently without merit only when it "has no arguable basis in either fact or law." Hodges, 234 Ill.2d at 10-12.
¶ 35 The circuit court also found fault with the sufficiency of the evidence supporting Dr. Neushatz's claims contained in the petition, and the court speculated as to defendant's motives in failing to provide additional evidence. Again, these fact-finding and credibility determinations are inappropriate at the first stage. Coleman, 183 Ill.2d at 385. Moreover, at this stage "all well-pleaded allegations in the petition and supporting affidavits that are not positively rebutted by the trial record are to be taken as true." People v. Robinson, 2020 IL 123849, ¶ 45. Dr. Neushatz's assertions are not positively rebutted by the trial record and therefore must be taken as true.
¶ 36 As defendant, the State, the circuit court, and even this court in our decision on direct appeal have all recognized, defendant's conviction was supported in significant part upon the testimony of the four eyewitness. And again, the required showing of arguable prejudice at the first stage is low, "as it need only be arguable that, had counsel performed adequately, a significantly less than 50% chance exists of a different outcome." Hayes, 2022 IL App (1st) 190881-B, ¶ 39. On the record before us, we conclude that defendant has met this low standard with respect to his claim that his trial counsel was ineffective for failing to consult with and call as a trial witness an expert on eyewitness memory and identification.
¶ 37 Considering our finding that at least one of defendant's claims of ineffective assistance of trial counsel has arguable merit, the entire petition must be remanded for second-stage proceedings. Cathey, 2012 IL 111746, ¶ 34. Thus, we need not-and indeed should not-address defendant's remaining arguments as to why his petition sufficiently set forth other claims. Id.; People v. Montgomery, 327 Ill.App.3d 180, 187-88 (2001). Our finding in no way expresses an opinion on the ultimate merits of the assertions contained in defendant's postconviction petition, or on whether defendant will ultimately prevail on his postconviction claims. See Hodges, 234 Ill.2d at 22.
¶ 38 Finally, defendant has also requested that this matter be reassigned to a different judge upon remand. We decline defendant's request to reassign the circuit court judge, who presided over both defendant's trial and these postconviction proceedings.
¶ 39 "There is no absolute right to a substitution of judge at a postconviction proceeding. [Citations.] Rather, the same judge who presided over the defendant's trial should hear his postconviction petition, unless it is shown that the defendant would be substantially prejudiced." People v. Hall, 157 Ill.2d 324, 331 (1993). To obtain a substitution of judge at a postconviction proceeding, the defendant must show that allowing the same judge to preside over the case would result in substantial prejudice. People v. Reyes, 369 Ill.App.3d 1, 25 (2006). To establish prejudice, the defendant "must establish animosity, hostility, ill will, or distrust towards [the] defendant." (Internal quotation marks omitted.) People v. Patterson, 192 Ill.2d 93, 131 (2000). Neither erroneous rulings (People v. Tally, 2014 IL App (5th) 120349, ¶ 44), nor adverse rulings (People v. Vance, 76 Ill.2d 171, 178 (1979)) provide sufficient reasons to believe that the court has a prejudice against the defendant. Finding judicial bias is a decision that should not be made lightly. Eychaner v. Gross, 202 Ill.2d 228, 279-80 (2002).
¶ 40 Here, defendant's request is premised upon his contention that in summarily dismissing his postconviction petition, the circuit court repeatedly failed to apply the standard applicable to petitions at the first stage, repeatedly misapprehended the record to defendant's detriment and, in doing so, demonstrated improper animosity, distrust, and arbitrariness. Defendant thus relies upon nothing but claims of adverse and erroneous rulings by the circuit court, which are insufficient to establish the animosity, hostility, ill will, or distrust that will justify a finding of judicial bias. We therefore find no cause to assign the case to a new judge on remand.
¶ 41 For the foregoing reasons, we reverse the dismissal of defendant's postconviction petition and remand for second-stage proceedings.
¶ 42 Reversed and remanded.
¶ 43 JUSTICE OCASIO, specially concurring:
¶ 44 I concur in the court's decision to reverse and remand, but I would do so with directions to assign the case to a new judge. In declining to afford that remedy, the majority finds that Vazquez's request for reassignment on remand "relies upon nothing but claims of adverse and erroneous rulings by the circuit court." Supra ¶ 40. I respectfully, but emphatically, disagree.
¶ 45 The requirement of a fair, impartial, and unbiased judge in any proceeding is so basic a principle of our legal system that it should not require any citation to authority. Nevertheless, the Illinois Supreme Court has specifically held that due process guarantees a fair hearing by a fair and unbiased tribunal in postconviction proceedings. People v. Wright, 189 Ill.2d 1, 17 (1999) (citing Ill. Const. 1970, art. I, § 2), overruled on other grounds by People v. Boclair, 202 Ill.2d 89, 99 (2002); see also U.S. Const., amend. XIV, § 1 (guaranteeing due process of law). Under the rules, we are empowered to enforce this axiomatic principle by ordering a case to be assigned to a different judge on remand when the circumstances call for it. People v. Campbell, 2023 IL App (1st) 220373, ¶ 67 (citing Eychaner v. Gross, 202 Ill.2d 228, 279 (2002)); see Ill. S.Ct. R. 615(b)(2) (eff. Jan. 1, 1967). That power is appropriately exercised not only when the judge demonstrates "overt bias" that would "justif[y] a for-cause substitution of judge" but also" 'to avoid the appearance of any impropriety[]' and 'out of an abundance of caution.'" (Alteration marks omitted.) Campbell, 2023 IL App (1st) 220373, ¶¶ 68-69 (quoting People v. Robinson, 2021 IL App (1st) 171371, ¶ 61). I believe that the circumstances of this case justify reassignment.
¶ 46 One recognized basis for requiring reassignment is when there is "a showing of *** distrust towards [the] defendant." People v. Vance, 76 Ill.2d 171, 182 (1979). Vazquez has made that showing here. In its dismissal order, the circuit court repeatedly insinuated that Vazquez was attempting to deceive the court by supporting his petition with excerpts from, as opposed to full versions of, two transcripts. The first was a transcript of Jacklyn Miranda's discovery deposition from her civil-rights lawsuit against the City of Chicago. Vazquez's petition only cites 34 pages of that transcript, and all of those pages were attached to the petition. Nevertheless, the circuit court took Vazquez to task for not providing it with the whole 277-page transcript, accusing him of submitting a "tailored copy" or "a part and parcel version" of the Miranda transcript that "omits over 100 pages of the deposition transcript" and "leaves out more pages than it includes." It also asserted that he "intentionally omitted" a page that was cited by the proposed eyewitnessidentification expert but not in the petition itself. The second was a transcript of Veronica Blancas's August 13, 2013 electronically recorded interview. The petition cited only one passage from that transcript, which included her statement that her identification of Vazquez as the shooter occurred after she was taken out of the lineup room to "calm down." That entire passage was attached to the petition. Once again, circuit court accused Vazquez of providing a "tailored" transcript.
¶ 47 The circuit court's insinuations of dishonesty or deceit are especially remarkable given that only attaching relevant portions of lengthy documents to a postconviction pleading is a perfectly ordinary practice that helps avoid overwhelming the court with information not material to the postconviction claims. That the court viewed that courtesy with palpable suspicion is baffling. The idea that Vazquez could get away with hiding relevant information by not attaching full transcripts is ridiculous. There is no reason to think that the State would have been unable to obtain a complete copy of the Miranda deposition from Vazquez's attorneys or the City of Chicago, and it certainly had full access to the Blancas interview, which was conducted by an assistant state's attorney. The majority acknowledges that the circuit court "speculated" when it attributed malicious intent to Vazquez. Supra ¶ 35. I would put it more bluntly: the court's belief that Vazquez was being dishonest was baseless. In other words, even though there was no valid reason for it, the court assumed from the start that Vazquez was acting in bad faith. If that is not "distrust," then what is?
¶ 48 Another recognized basis for requiring reassignment is when the record shows that the circuit court has "improperly prejudged a central issue in [the] postconviction case." People v. Reyes, 369 Ill.App.3d 1, 26 (2006). Again, that showing has been made here. The majority correctly holds that, in rejecting the claim that counsel was ineffective for not presenting expert testimony on eyewitness identification, the circuit court ignored settled first-stage standards by considering questions of trial strategy (contra People v. Tate, 2012 IL 112214 , ¶ 24) and engaged in improper fact-finding and credibility determinations (contra People v. Coleman, 183 Ill.2d 366, 385 (1998)). Supra ¶¶ 29, 34-35. But it fails to recognize that, as a consequence of flouting basic postconviction law, the circuit court reached and decided ultimate issues of law and fact-and not only on the eyewitness-expert claim. If we send this case back without instructions to reassign it, Vazquez will be forced to litigate his claims before a tribunal that has already rejected them on the merits-without even waiting to hear from the other side! Under these circumstances, I am hard-pressed to see how Vazquez would not "be 'substantially prejudiced' [citation] if this case were remanded to the same trial judge." Reyes, 369 Ill.App.3d at 26 (quoting People v. Hall, 157 Ill.2d 324, 331 (1993)).
¶ 49 One more observation. It is clear from the court's dismissal order that, rather than undertaking a neutral evaluation of the petition's possible merit, the court actively sought out reasons to dismiss it. The most obvious example is the order's treatment of Vazquez's claim that trial counsel was ineffective for not obtaining and presenting expert testimony on the reliability of eyewitness identifications. In rejecting that claim, the circuit court found that counsel was not arguably deficient because the "trial concluded over two years before Lerma was decided," and it found that Vazquez had not arguably been prejudiced because the proposed expert's testimony implicated only two of the four identification witnesses. As the majority notes, both of those propositions are flat-out wrong: Lerma was decided in 2016, two years before Vazquez's 2018 trial, and the proposed expert's report addressed the identifications of all four identification witnesses. Supra ¶¶ 31, 34. These are not subtle details, nor are they only marginally relevant to the issues at hand. They are basic and easy-to-verify matters of record that, in the circuit court's judgment, were dispositive of the claim before it-and the court still got them wrong. What should we make of that? I am at a loss to explain how the circuit court could have made these specific errors unless it was actively looking for reasons to dismiss the petition. At the end of the day, no matter the stage and legal standard, postconviction proceedings are adversarial, not inquisitorial. Scouring the record and the pleadings for weaknesses, defects, or other reasons to deny relief is a job for a party opponent. It is not an appropriate role for the court to take on. See, e.g., People v Jackson, 409 Ill.App.3d 631, 647 (2011) (finding plain error because "the trial court abandoned its role as a neutral and impartial arbiter" and "adopt[ed] a prosecutorial role" while questioning a defense expert).
¶ 50 A finding that another judge not only erred but breached his duty to be fair, impartial, and unbiased is certainly not "a judgment to be lightly made." Vance, 202 Ill.2d at 280. But a fair hearing before a fair judge is a fundamental constitutional right. Ensuring that every litigant is afforded that right matters a great deal more than a judge's feelings do. Courts should not hesitate to protect that right when it is threatened. The record shows that the judge in this case did not give Vasquez's petition a fair hearing. The dismissal order was not just legally erroneous. It revealed the judge's clear distrust of Vazquez, showed that he had already made up his mind about the merits of the claims, and demonstrated that he was willing to disregard basic facts in pursuit of achieving that preordained result. Is that not enough? Are we helpless to act because the judge did not declare his biases for the record?
¶ 51 Like all litigants, Miguel Vazquez is owed a fair hearing in front of an impartial judge. Based on the dismissal order in this case, he did not receive one at the first stage, and I do not have confidence that he will get one at the second or third stages, either. For that reason, I would order reassignment on remand.