Opinion
1-22-0711
09-29-2023
THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellee, v. CHRISTOPHER ALLEN, Petitioner-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. 93 CR 22103 Honorable Alfredo Maldonado, Judge Presiding.
PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justice Lavin concurred in the judgment. Justice Pucinski dissented.
ORDER
FITZGERALD SMITH, PRESIDING JUSTICE
¶ 1 Held: The circuit court's denial of the petitioner's motion for leave to file a successive postconviction petition is affirmed where the petitioner failed to allege sufficient cause and prejudice as to his improper jury instruction claim.
¶ 2 Following a 1996 jury trial in the circuit court of Cook County, the petitioner, Christopher Allen, was found guilty of two counts of attempted murder and one count of first degree murder, and sentenced to a total of 90 years' imprisonment. After unsuccessfully litigating his original postconviction petition, in 2021, the petitioner filed the instant motion for leave to file a successive petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)), alleging, inter alia, that the circuit court improperly instructed the jury regarding eyewitness identification testimony. The petitioner now appeals from the denial of that motion, contending that he sufficiently established cause and prejudice as to this claim so as to be able to proceed with his successive postconviction petition. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 The petitioner's convictions stem from the August 27, 1993, gang-related shooting of three victims, Venita Savage, Yvette Malone (also known as Maria Bennett), and Rosemary Lumpkin. Following the shooting, the petitioner, and codefendant Gordon Thorton were charged with the first-degree murder of Savage, the attempted first-degree murder of Malone and Lumpkin, and aggravated battery with a firearm. The case proceeded to a joint jury trial, which resulted in a hung jury, after which the circuit court declared a mistrial.
¶ 5 The petitioner subsequently proceeded with a second jury trial on his own. Because the evidence obtained at that jury trial is sufficiently set forth in our order affirming the petitioner's convictions, for purposes of brevity, we now only restate those facts necessary to an understanding of the issues raised in this appeal. See People v. Allen, No. 1-96-3831 (May 4, 2000) (unpublished order pursuant to Illinois Supreme Court Rul 23) (hereinafter Allen I).
¶ 6 The petitioner's convictions were premised on the eyewitness testimony of the two surviving victims, Malone and Lumpkin. Because Lumpkin was deceased (from unrelated causes) by the time of the petitioner's second trial, her testimony from the first trial was read into the record at the second trial. According to both victims' accounts, in the summer of 1993, for about two years, with the help of her cousin, Lumpkin, Malone had been running a drug operation, with approximately 10 employees selling crack cocaine in the area near Madison Street and Menard Avenue. Malone used a room at the nearby Grand Hotel to conduct business, package cocaine, store her money and keep a handgun for protection.
¶ 7 While Malone denied any gang membership, she testified that she was aware that the area in which she was conducting her drug operation was "turf' for the Four Corner Hustlers street gang. Prior to the summer of 1993, Malone had no problems with the gang. However, that summer, she learned that codefendant Gordon, whom she did not know, was trying to contact her.
¶ 8 Near the end of July 1993, Malone and Lumpkin were on the corner of Madison Street and Menard Avenue when several cars pulled up, and a group of about 20 to 30 men exited and proceeded to spread out across the street from them. A man, who introduced himself as Gordon, then approached Malone, together with the petitioner and another person whom Gordon introduced as Cinque. Gordon told Malone that he was a five-star elite, a position of rank in the Four Corner Hustlers gang and that she should "walk with him." Lumpkin, who wanted to follow Malone, was instructed by Gordon to remain behind.
¶ 9 Gordon and Cinque then walked next to Malone, while the petitioner followed about two feet behind, while Lumpkin remained on the corner. Malone stated that she was nervous and kept looking back at the petitioner. During their walk, Gordon told Malone that if she wished to continue selling drugs on the corner, she would have to pay the Four Corner Hustlers gang $3000. After Malone told Gordon that she needed a few days to get the money, Godon gave her a telephone number and told her to contact him when she could pay. Gordon then left with his entourage.
¶ 10 A few days later, Malone contacted Gordon by telephone and set up a meeting with him at a nearby gas station. Lumpkin accompanied Malone to the gas station. When they arrived, Gordon, the petitioner and another individual were already there. Gordon approached the women in their vehicle while the petitioner remained standing by a telephone booth about five feet away. Malone gave Gordon $1500 from the window of her car and told him this was all she had. Gordon instructed her to telephone him when she had the rest of the money and left.
¶ 11 Over the next few days, Malone was informed by her employees that Gordon was looking for her, but she did not contact him because she did not have the remaining money.
¶ 12 At about 11:30 p.m. on August 26, 1993, Malone, Lumpkin, and Savage were on the corner of Madison Street and Menard Avenue with Malone's four-year-old son, and several of Malone's employees, when Gordon and the petitioner arrived on a motorcycle. Gordon asked Malone to show him who was selling drugs for her that night to which Malone responded that everyone "out there" was. Gordon then told her that he would return and rode away with the petitioner on his motorcycle.
¶ 13 At that point, Malone "expected trouble" so she went to the Grand Hotel with Lumpkin and Savage to get her gun and inform her next shift not to sell any more drugs that night. She then dropped off her son at a relative's house and drove around with Lumpkin and Savage looking for more of her employees to warn. During this ride, Savage drove the vehicle, Malone sat in the front passenger seat and Lumpkin remained in the back.
¶ 14 Near Waller Street, Malone and Lumpkin saw Gordon on his motorcycle again. This time another individual, whom Malone and Lumpkin knew as Glenn from the Four Corner Hustlers gang, rode on the back of the motorcycle.
¶ 15 After Gordon motioned Savage to follow him, she complied. At Waller Street and Madison Avenue, the women saw a police car and considering stopping to get help, but Malone ultimately instructed Savage to keep driving. Malone and Lumpkin both explained that Malone was afraid to approach the police because she had a warrant out for her arrest, and a gun inside the car. After the women passed the police car and turned right onto Madison Avenue, Gordon and Glenn did not follow on the motorcycle but instead continued straight on Waller Street.
¶ 16 Malone and Lumpkin saw Gordon again a few minutes later at the corner of Waller Street and Washington Boulevard. They were stopped at a red light, when Gordon's motorcycle pulled up on the right side of their car, about five feet in front of the passenger side where Malone was sitting. Gordon was still driving the motorcycle, but now the petitioner was again riding on the back. Malone testified that she was scared and therefore looked Gordon and the petitioner straight in the face. At that point, Gordon turned to the petitioner and made an expression so as to say, "do it." The petitioner then reached between his legs, pulled out a gun, and shot repeatedly into the car.
¶ 17 Malone was struck twice in her arm and her chest. She yelled at Savage to drive, but Savage, who was also struck in the shooting, started the vehicle too fast and crashed into some nearby cars. When the car stopped, Malone saw Savage's body slump over the steering wheel, with two large holes in her neck and chest. Savage ultimately died from her gunshot wounds.
¶ 18 Malone and Lumpkin fled from the car and into the nearby home of Malone's grandmother where they called the police. When the police arrived, Malone identified herself to them as Marie Bennett because of the outstanding warrant for her arrest. She did not inform the police of her real name for months and used the name Bennett during her grand jury testimony. Lumpkin similarly referred to Malone as Bennett in order to protect her.
¶ 19 Chicago Police Sergeant David Naleway testified that he was the first to speak briefly to Malone and Lumpkin at the scene. According to the sergeant, together the women informed him that the shooter was riding as a passenger on a purple sport-type motorcycle with the word "Ninja" written on the side in pink letters. They described the shooter as having a baseball-style hat with a cartoon character on it and wearing a gray shirt and dark-colored pants.
¶ 20 After speaking with Sergeant Naleway, Malone and Lumpkin were taken to two different hospitals for treatment. Later that evening, two Chicago police detectives spoke to Lumpkin and Malone separately. Both Lumpkin and Malone described the shooter as a black male around 21 to 23 years' old, 5' 10" to 6' tall, and weighing about 150-160 lbs. Malone added that the petitioner was "cross-eyed."
¶ 21 On August 27, 1993, Chicago police sergeant William Johnston separately showed Malone and Lumpkin photo arrays, from which they identified Gordon as the person driving the motorcycle during the shooting. At that time, Malone and Lumpkin told the sergeant that they had heard from people on the street that the shooter's name was "Chris" and that he was an enforcer for the Four Corner Hustlers gang. After help from the Chicago Police Gang Crime Specialist Unit, sergeant Johnston composed a second photo array from which Malone and Lumpkin separately identified the petitioner as the shooter. Both victims also subsequently identified the petitioner from a lineup.
¶ 22 At the petitioner's trial, Chicago police officer and gang expert, John Nee, testified that he had monitored the Four Corner Hustlers street gang for 18 years and that they operated on the west side of the city, including the area near Madison Street and Menard Avenue, where Malone sold her drugs. In the summer of 1993, the gang was attempting to expand its narcotics trade by having people who were not Four Corner Hustlers but who sold drugs in the area, pay a street tax. According to Officer Nee, the leader of the Four Corner Hustlers in the area was Cinque Bryant. The second in command, was Gordon, who drove a Ninja style Japanese motorcycle. The petitioner was the gang's "enforcer" or the person who "took care" of "street problems" by shooting or beating up those who did not do what they were told.
¶ 23 After the State rested, the petitioner presented no evidence in his defense. During the jury instruction conference, with no objection from defense counsel, the State offered, and the circuit court accepted Illinois Pattern Jury Instruction, Criminal, 3.15 (3d ed. 1992) (hereinafter IPI Criminal 3d No. 3.15). The jury was therefore instructed in the following manner regarding eyewitness identification testimony:
"When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including, but not limited to the following: The opportunity the witness had to view the offender at the time of the offense; or The witness's degree of attention at the time of the offense; or The witness's earlier description of the offender; or
The level of certainty shown by the witness when confronting the defendant; or The length of the time between the offense and the identification confrontation." Id.
¶ 24 After closing arguments, the jury found the petitioner guilty on all counts. The circuit court subsequently sentenced the petitioner to a total of 90 years' imprisonment (60 years for first degree murder plus two 30-year terms for each count of attempted first degree murder to be served concurrently with each other).
¶ 25 On direct appeal, among other things, the petitioner challenged the sufficiency of the evidence to convict him and the excessive nature of his sentence. In addition, he asserted that the circuit court erred in admitting expert gang testimony at his trial. On May 4, 2000, we affirmed the petitioner's convictions and sentence. See Allen 1, 1-96-3831 (May 4, 2000) (unpublished order pursuant to Illinois Supreme Court Rule 23), pet. for leave to appeal denied, 191 Ill.2d 536 (2000).
¶ 26 On September 15, 2006, the petitioner, represented by counsel, filed a postconviction petition alleging actual innocence on the basis of newly discovered evidence, namely an affidavit from Malone, recanting her identification of the petitioner and naming another individual as the shooter. The matter proceeded to an evidentiary hearing at which Malone testified. After the hearing, the circuit court denied the postconviction petition, finding Malone's recantation to be incredible, based, in part, on the fact that she had been pressured to change her testimony. We affirmed the circuit court's dismissal. People v. Allen, 2013 IL App (1st) 110967-U, pet.for leave to appeal denied 39 N.E.3d 563 (hereinafter Allen II).
¶ 27 On October 11, 2018, the petitioner filed a pleading titled "non-statutory post-judgment petition to invalidate the judgment resting on an indictment that fails to state an offense because it fails to aver an essential element of first-degree murder." This petition asserted that the petitioner's conviction should be vacated because count I of the indictment charging him with first-degree murder failed to allege "intent to do great bodily harm." The circuit court dismissed the claim. After the petitioner appealed, his appointed counsel filed a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). We grated counsel's request on December 1, 2020, and affirmed the court's dismissal of the petitioner's claim. See People v. Allen, Nos. 1-19-0802 and 1-19-0993 cons. (December 1, 2020) (unpublished order pursuant to Illinois Supreme Court Rule 23) (hereinafter Allen III).
¶ 28 On April 29, 2021, the petitioner filed the instant motion for leave to file a successive postconviction petition. In his petition, attached to the pleading, the petitioner alleged, inter alia, that he was deprived of his constitutional right to due process of law and a fair trial where the circuit court misstated the law in instructing the jury on eyewitness identification testimony. Specifically, the petitioner asserted that by using the word "or" after each of the five factors listed as necessary in evaluating the reliability of eyewitness identifications, Illinois Pattern Jury Instruction 3.15 erroneously permitted the jury to rely on a single factor in determining Malone's and Lumpkin's credibility. See IPI Criminal 3d No. 3.15. In support, the petitioner cited the decision in People v. Herron, 215 Ill.2d 167 (2005), which held that the use of the word "or" in Illinois Pattern Jury Instruction 3.15, constituted plain error.
¶ 29 Furthermore, in his motion for leave to file his successive petition, the petitioner argued that he could not have raised this claim earlier because the decision in Herron, 215 Ill.2d 167, upon which his claim was premised, was not issued until a year after he filed his original postconviction petition. In addition, as an objective impediment to raising his claim, the petitioner asserted that his postconviction counsel provided unreasonable assistance because he refused to raise this claim in his original postconviction petition despite the petitioner's repeated requests that he do so. The petitioner further asserted that he was prejudiced by the failure to raise this claim earlier because the evidence at his trial was premised entirely on eyewitness identification testimony and was therefore closely balanced.
¶ 30 In support of his motion for leave to file his successive postconviction petition, the petitioner attached an affidavit, in which, inter alia, he attested that prior to the evidentiary hearing on his original postconviction petition he asked his postconviction counsel to amend his petition to include the instant improper jury instruction claim. According to the affidavit, postconviction counsel told the petitioner that he would amend the petition but never did.
¶ 31 On April 13, 2022, the circuit court denied the petitioner's motion for leave to file his successive postconviction petition. The court found that the petitioner had not met the cause and prejudice test for leave to file his successive petition. Specifically, the court found that the petitioner did not establish cause because the improper jury instruction claim was available to him pursuant to the decision in People v. Gonzalez, 326 Ill.App.3d 629 (2001), which was decided five years before he filed his initial postconviction petition. The circuit court further found that the petitioner did not establish prejudice because the rule in Gonzalez has since been held not to apply retroactively to postconviction petitions. See People v. Oliver, 2023 IL App (1st) ¶ 24. Moreover, the circuit court noted that because the petitioner did not object to the instruction at trial or raise this claim in his posttrial motion he forfeited the issue for review. In addition, the court held that plain error review under Herron would not apply since the evidence at the petitioner's trial was not closely balanced.
¶ 32 The petitioner now appeals.
¶ 33 II. ANALYSIS
¶ 34 On appeal, the petitioner contends that the circuit court erred in denying him leave to file his successive postconviction petition because he sufficiently established cause and prejudice as to his claim that the circuit court misstated the law when instructing the jury on eyewitness identification by using IPI Criminal 3d No. 3.15. The State concedes that the use of this instruction constituted error, but nonetheless asserts that the petitioner has failed to establish the requisite cause and prejudice so as to be permitted to proceed on his claim. For the following reasons, we agree with the State.
¶ 35 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a means by which criminal defendants may address substantial violations of their constitutional rights at trial or at sentencing. People v. Edwards, 2012 IL 111711, ¶ 21. The Act is not a substitute for an appeal, but rather, is a collateral attack on a final judgment. Edwards, 2012 IL 111711, ¶ 21. Accordingly, issues not presented in an original or amended petition will be deemed waived, and issues that have previously been raised and addressed on appeal will be barred pursuant to the doctrine of res judicata. See Edwards, 2012 IL 111711, ¶ 21; see also People v. Sanders, 2016 IL 118123, ¶ 24 (citing 725 ILCS 5/122-3 (West 2014)).
¶ 36 Consistent with these principles, the Act contemplates the filing of only one petition without leave of court. See People v. Lusby, 2020 IL 124046, ¶ 27; Edwards, 2012 IL 111711, ¶ 23; see also 725 ILCS 5/122-1(f) (West 2018). To obtain leave of court, the petitioner must demonstrate cause for his failure to raise the claim in the initial petition and prejudice from that failure. Id. To show cause the petitioner must identify an objective factor that impeded his ability to raise a specific claim during his initial postconviction proceedings. Id.; see also People v. Pitsonbarger, 205 Ill.2d 444, 462 (2002). To show prejudice the petitioner must demonstrate that the claim not raised during his initial postconviction proceedings so infected the resulting conviction or sentence that it violated due process. Id. It is the petitioner's burden to make a primafacie showing of cause and prejudice before any further proceedings on his claim can occur. People v. Bailey, 2017 IL 121450, ¶ 24; People v. Smith, 2014 IL 115946, ¶ 30. Failure to state either cause or prejudice will be detrimental to a motion seeking leave to file a successive petition. Id.
¶ 37 Accordingly, a motion for leave of court to file a successive petition will be denied "when it is clear, from a review of the successive petition and the documentation submitted by the petitioner, that the claims alleged by the petitioner fail as a matter of law or where the successive petition with supporting documentation is insufficient to justify further proceedings." People v. Smith, 2014 IL 115946, ¶ 35. Our review of the trial court's denial of a motion for leave to file a successive postconviction petition is de novo. See Bailey, 2017 IL 121450, ¶ 13.
¶ 38 In the present case, for the following reasons, we find that the petitioner's claim fails as a matter of law, and that he has therefore failed to establish the requisite prejudice of the cause-and-prejudice test so as to be able to proceed with his claim. Consequently, we need not evaluate whether he has sufficiently pleaded cause for his failure to raise this issue in an earlier proceeding. See People v. Smith, 2014 IL 115946, ¶ 37 (in considering issue of whether the defendant was properly denied leave to file a successive postconviction petition, declining to address cause where the defendant failed to show prejudice).
¶ 39 With respect to prejudice, at the outset, we note that it is undisputed that pursuant to the decisions in Gonzales and Herron, the circuit court improperly instructed the jury with IPI Criminal 3d No. 3.15. at the petitioner' second trial. See Gonzalez, 326 Ill.App.2d at 640; Herron, 215 Ill.2d at 191. In Gonzalez, we explicitly held that the use of the word "or" between the listed factors in IPI 3.15 constitutes error because it implies that an eyewitness' identification testimony can be considered reliable even if only one of the factors weighs in favor of reliability. Id. Subsequently, in Herron, we further held that this specific instructional error may constitute plain error under the second prong of the plain error analysis if the evidence at the petitioner's trial is closely balanced. Herron, 215 Ill.2d at 191.
¶ 40 Nonetheless, because the instructional error in the present case occurred after Gonzalez was decided, the petitioner is foreclosed from raising his claim in a postconviction proceeding. In Oliver, 2023 IL App (1st) ¶ 24, we explicitly held that "the improper use of the word 'or' between the listed factors in IPI *** 3.15 occurring before November 26, 2001," when Gonzalez was decided "may not be raised in postconviction petitions" because that would require us to retroactively apply a new rule to a case on collateral review, something that appellate courts are not permitted to do. Id. (quoting People v. Chatman, 357 Ill.App.3d 695, 700 (2005)); see also People v. Brunt, 2014 IL App (1st) 120576-U; People v. Tyler, No. 1-14-1897, 2017 WL 2602633; People v. McGowan, 2015 IL App (1st) 1121909-U, ¶ 30; People v. Jackson, 2015 IL App (1st) 123237-U, ¶ 25.
¶ 41 Because, in the instant case, the petitioner's jury was erroneously instructed with IPI 3.15 on August 22, 1996, nearly five years before the court decided Gonzalez, pursuant to Oliver, the new rule established by Gonzalez is not retroactively applicable, and the petitioner cannot establish that he suffered prejudice by failing to raise the instructional error in his original postconviction petition filed on September 15, 2006. Id.
¶ 42 The petitioner acknowledges the decision in Oliver but argues that it was wrongly decided. He therefore urges us not to follow Oliver and instead to hold that Gonzalez did not establish a new rule.
¶ 43 We decline the petitioner's invitation because we find that regardless of the retroactive applicability of the holding of Gonzalez, the petitioner cannot establish that his claim would have succeeded on the merits, so as to establish prejudice.
¶ 44 In this respect, on appeal, the parties agree that because the petitioner did not object to the jury instruction at the circuit court level, his claim must be analyzed under the plain error doctrine. As already noted above, in Herron, our supreme court held that improperly instructing the jury by using the word "or" to distinguish between the eyewitness reliability factors listed in IPI 3.15 constitutes plain error, but only where the evidence offered at a defendant's trial is so closely balanced that the error itself threatened to tip the scales of justice against him. Herron, 215 Ill.2d at 191.
¶ 45 Accordingly, the central issue we are faced with on appeal is determining whether the evidence at the petitioner's trial was closely balanced. Contrary to the petitioner's contention, we find that it was not.
¶ 46 At trial, both Malone and Lumpkin testified consistently about what transpired immediately prior to and during the shooting. Both eyewitnesses separately provided the same description of the shooter to the police immediately after the incident. In addition, both independently identified the petitioner as the shooter three times, from a photo array, from a lineup and at trial. In addition, both victims were familiar with the petitioner as they had met him twice before the shooting: first, when Malone was approached by Gordon and the petitioner about her drug sales on Four Corner Hustlers' "turf," and second, at the gas station where Malone paid Gordon half of the money he had demanded from her. Both witnesses also had ample opportunity to observe the petitioner riding on the back of Gordon's motorcycle prior to the shooting, as they were both seated on the passenger side of the vehicle from which the motorcycle approached. Moreover, Malone stated that immediately before the petitioner pulled out his gun, she was staring at him right in the face.
¶ 47 In addition to these eyewitness accounts, the State presented testimony from a gang expert that the petitioner was a known enforcer for the Four Corner Hustlers gang, and that he was responsible for "shooting" those who did not follow the gang's orders. On the other hand, at trial, the petitioner presented no evidence whatsoever in his own defense. Accordingly, contrary to the petitioner's position, we find that the evidence at the petitioner's trial was far from closely balanced, and in fact, overwhelmingly established the petitioner's guilt. As such, he cannot demonstrate that giving the jury instruction in the conjunctive ("and") rather than the disjunctive ("or") would have had an impact on the jury's deliberations. See e.g., People v. Furdge, 332 Ill.App.3d 1019, 1032 (2002) (holding that erroneously instructing the jury by using "or" between each identification reliability factor did not prejudice the defendant because the evidence at his trial was not closely balanced where the victim knew the attacker from the neighborhood and identified him from a lineup); People v. Brookins, 333 Ill.App.3d 1076, 1084 (2002) (holding that erroneously instructing the jury constituted harmless error because the evidence at the defendant's trial was not closely balanced given the uncontradicted testimony of the sole eyewitness, which was corroborated by the arresting officer); see also People v. James, 348 Ill.App.3d 498, 505, 511 (2004) (holding that any error in the trial court's jury instruction on weighing identification testimony, which used "or" between each of the factors to be considered, was harmless, where the evidence was not closely balanced, since three eyewitnesses identified the defendant and testified that they knew him from the neighborhood); People v. Smith, 341 Ill.App.3d 530, 546 (2003) (holding that the defendant could not satisfy the cause and prejudice test necessary to raise his claim of an improper jury instruction under IPI 3.15 in a successive postconviction petition where the evidence against him was overwhelming and included, inter alia, an eyewitness identification, and two occurrence witnesses who corroborated the eyewitness' version of events).
¶ 48 Contrary to the petitioner's position, any inconsistencies in the testimony of Lumpkin and Malone, regarding where they were and who they were with on the night of the shooting prior to encountering Gordon and the petitioner on their motorcycle at the corner of Menard and Madison, had no bearing whatsoever on the women's ability to reliably identify the petitioner as their shooter. The same is true for the fact that the women were involved in drug sales and admitted at the petitioner's trial that they used a false name for Malone when speaking with the police and testifying at the grand jury hearing, for fear of getting Malone into trouble.
¶ 49 Accordingly, because we conclude that the evidence of the petitioner's guilt was overwhelming, such that he cannot demonstrate that the use of the erroneous jury instruction impacted the outcome of his trial, we hold that the circuit court properly denied his motion for leave to file his successive postconviction petition.
¶ 51 Accordingly, we affirm the judgment of the circuit court.
¶ 52 Affirmed.
¶ 53 JUSTICE PUCINSKI, dissenting:
¶ 54 The majority holds that the defendant's appeal of the denial of his Motion for Leave to File a Successive Postconviction Petition based on an improper jury instruction is too little and too late.
¶ 55 Petitioner's postconviction petition is based on the trial court's erroneous insertion of the word "or" between the five specific factors for eyewitness identification.
¶ 56 This Court has found that to be error. In Gonzales we held: "The trial court's incorporation of the term 'or' between each factor implies, as a matter of law, that the identification testimony of an eyewitness may be deemed reliable if just one of the five factors listed weighs in favor of reliability." People v. Gonzales, 326 Ill.App.3d 629, 640 (1st Dist. 2001).
¶ 57 Finding that Gonzales was decided in 2001 and that Petitioner's trial was in 1996, the majority finds that Petitioner cannot rely on the improper instruction because in Oliver, decided after Gonzalez, this Court held that "the improper use of the word 'or' between the listed factors in IPI *** 3.15 occurring before November 26, 2001 could not be used in postconviction petitions because the new rule cannot be used retroactively." People v. Oliver, 2013 IL App (1st) 120793, ¶ 24.
¶ 58 Oliver appealed without raising the instruction issue; however, he did raise it in his pro se postconviction petition. His petition advanced to the second stage, the State moved to dismiss, and the trial court dismissed the petition. Oliver appealed that dismissal. On appeal from the dismissal of his postconviction petition, our court affirmed the trial court (Hon. Matthew Coghlan) relying on Gonzalez and Chatman. In Oliver, this Court, quoting Chatman, "determined that a claim of ineffective assistance of trial counsel could not be based on counsel's failure to invoke a ruling that had not yet occurred *** Illinois courts generally will not apply new rules retroactively to cases on collateral review *** [W]e hold that the improper use of the word 'or' between the listed factors in IPI criminal 4th 3.15 occurring before November 26, 2001 may not be raised in postconviction petition." Oliver, 2013 IL App (1st) 120793 at ¶ 24 (quoting People v. Chatman, 357 Ill.App. 695, 700 (1st Dist. 2005) (relying on People v. De La Paz, 204 Ill.2d, 426, 433 (2003))).
¶ 59 The Chatman, De La Paz and Oliver courts depended on their understanding that the use of "or" instead of "and" is error but were all new rules that could not be used retroactively.
¶ 60 I believe all were wrongly decided.
¶ 61 The actual list of factors was repeated by the U.S. Supreme Court in Manson v Brathwaite, 432 U.S. 98, 97 (1977). That is, in Manson in 1977, and in Biggers in 1972, well before the Allen trial, the U.S. Supreme Court outlined the five factors and their importance in witness identification reliability. In Manson the U.S. Supreme Court wrote: "We therefore conclude that reliability is the linchpin in determining the admissibility of identification testimony for both pre- and post-Stovall confrontations. The factors to be considered are set out in Biggers, 409 U.S. at 199-200 (Neil v. Biggers, 409 U.S. 188 (1972). These include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation. Against these factors is to be weighed the corrupting effect of the suggestive identification itself." Manson v. Brathwaite, 432 U.S. 98, at 114-15.
¶ 62 Allen was tried twice, the first trial ending in a hung jury. In the first trial the defense withdrew its version of the IPI and the court used the State's more inclusive version of IPI -Criminal 3.15:
"When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including but not limited to, the following:
The opportunity of the witness had to view the offender at the time of the offense; The witness's degree of attention at the time of the offense; The witness's earlier description of the offender; The level of certainty shown by the witness when confronting the defendant; The length of time between the offense and the identification confrontation." The word "or" does not appear in these instructions, and the five factors track Manson and Biggers.
¶ 63 The instructions given to the jury at the second trial were offered by the State, which should have known better. The defense neither offered its own instructions nor objected to the State's:
"When you weigh the identification testimony of a witness, you should consider all the facts and circumstances in evidence, including but not limited to, the following:
The opportunity the witness had to view the offender at the time of the offense; or The witness's degree of attention at the time of the offense; or The witness's earlier description of the offender; or The level of certainty shown by the witness when confronting the defendant; or The length of the time between the offense and the identification confrontation." (Emphasis added.)
¶ 64 It is clear, then, that trial counsel was well on notice (since 1972 and again in 1977) that the U.S. Supreme Court had held that the word "or" did not belong in the second trial, and that when counsel failed to object, he was not effectively representing his client. It is also clear that the same attorney representing Petitioner in his direct appeal was on notice that there is no "or" in this instruction, and counsel failed to add that ground to the direct appeal. He was not effectively representing his client. It is further clear that since counsel did not do his job either at trial or on appeal, the postconviction counsel ("PCP counsel") had some work to do and failed, especially since Petitioner filed an affidavit stating that he told PCP counsel about the "or" issue, that PCP counsel agreed to amend the Petition and that PCP counsel did not file an amendment. The Petitioner did raise this constitutional issue in his pro se Petition for Leave to File a Successive Petition, but the attorney assigned to that case also left it out.
¶ 65 The Petitioner and the State agree that the trial judge, by erroneously inserting the word "or" in the instruction gave the jury the impression that only one of the listed criteria is sufficient, when, in fact, the rule is plain-and has been since 1972-that the jury must consider all five of the criteria.
¶ 66 I believe that the Petitioner should be allowed to move onto the second stage.
¶ 67 Good grief! What more can a Petitioner do? He relies on his trial attorney. He relies on his appellate counsel. He relies on his PCP counsel. To fault him at this point is beyond ridiculous.
¶ 68 This Petitioner was charged with and tried for a horrible, serious crime: first degree murder. No amount of time will ease the pain of the victim's family and friends. But "even bad guys have rights" as the late, great professor and attorney Elmer Gertz used to say.
¶ 69 Every defendant is entitled to:
1) effective representation at trial by his defense attorney; this attorney did not even object to the erroneous instruction.;
2) effective representation by his appellate counsel, who also did not raise this issue;
3) adequate representation by his postconviction counsel; and
4) clear and correct jury instructions.
¶ 70 If we are to continue to have faith in juries in criminal trials, we must insist that the instructions to the jury are correct.
¶ 71 In this case the Petitioner's rights were trampled by the judge, the trial attorney, the appellate attorney and the postconviction attorney. This Court should say: "Enough! Do your job or open a cafe and serve cappuccino."
¶ 72 This case might have gone the other way if the jury knew that it had to consider all five of the eyewitness factors. We will never know unless this Petition proceeds to the next stage.
¶ 73 Because we will never know, we cannot say with any certainty that this Petitioner has not shown prejudice, or that the error was harmless, or even that it was a close case.
¶ 74 This matter should be reversed and remanded for further proceedings.