Opinion
No. 1-10-2258
08-30-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CARLOS ESPINOZA, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 99 CR 8663
Honorable Thomas P. Fecarotta, Jr., Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Lampkin and Justice Reyes concurred in the judgment.
ORDER
¶ 1 Held: Where the affidavit in support of defendant's second-stage petition for post-conviction relief failed to exonerate defendant, he did not make a substantial showing of actual innocence and the trial court properly dismissed his petition. ¶ 2 Defendant Carlos Espinoza appeals from the second-stage dismissal of his petition for relief under the Post-Conviction Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2002). On appeal, defendant contends that his petition made a substantial showing of actual innocence through the affidavit of his codefendant Jonathan Bartlett. We affirm. ¶ 3 Defendant and codefendant, who were members of the Maniac Latin Disciples street gang, were charged with first degree murder, attempted murder, and aggravated discharge of a firearm stemming from a 1998 shooting in a parking lot in Elgin. Following a bench trial, defendant was convicted of the above charges on a theory of accountability and sentenced to 30 years' imprisonment for murder and two 10-year terms of imprisonment for attempted murder and aggravated discharge of a firearm, to be served concurrently. Codefendant, who is not a party to this appeal, was tried simultaneously with defendant in a separate jury trial and was also found guilty of the same offenses. ¶ 4 As relevant to this appeal, the evidence at trial showed that Jose Flores testified that he and the victim Cesar Benitez were members of the Norteno 14 street gang. On July 17, 1998, Flores and some other individuals were drinking beer in a parking lot in Elgin when defendant and another individual drove up in a Blazer. After establishing that Flores and the other individuals were members of the "14's," defendant stated that he had no problem with them, but wanted to talk to avoid any fighting. They agreed to discuss the situation the next day. ¶ 5 Flores further testified that the following day he spoke with defendant and codefendant about uniting their gangs. After the victim arrived by car, Flores told defendant not to say that he was in the Maniacs because the victim was "a true 14 and crazy." However, when the victim asked defendant if he was a member of the Maniacs, defendant replied affirmatively. The meeting broke up momentarily when a police car approached, but resumed when defendant and codefendant returned to the parking lot. Defendant and the victim spoke near the Blazer, which was parked like "it was *** ready to leave, to go out." Flores turned away momentarily and then heard gunshots. The victim fell and Flores saw that defendant and codefendant were already sitting in the Blazer. Codefendant was pointing a gun at him through the driver's side window. Flores could not remember how many times codefendant fired the gun, nor could he recall what defendant was doing because Flores fell to the ground on top of the victim. Defendant drove away with codefendant in the passenger seat. ¶ 6 Reynaldo Morales testified that on July 18, he was living in an apartment building at 1133 Ash Drive in Elgin. At about 5:30 p.m., he went behind the building to barbeque. The picnic area was about 10 to 20 feet away from a parking lot, which was next to the building. Morales observed codefendant exit a Cadillac, which also had a woman inside, and defendant exit a Blazer. Defendant waved over two men who were across Ash Drive, the two men crossed the street, and defendant started arguing with them. Codefendant walked back to the Cadillac, and then returned to the Blazer with his arms crossed. Defendant stated twice that they would settle the matter the next day. ¶ 7 Morales then observed codefendant unfold his hands and start shooting. He shot the victim in the head and chest with a silver semiautomatic weapon while the other man, apparently referring to Flores, was moving around to avoid getting shot. After the second gunshot, defendant got into the Blazer and codefendant ran and shot about four more times. Codefendant entered the passenger's side of the Blazer and defendant pulled away. While on his way out of the parking lot, defendant slowed down and "pulled towards the steering wheel" so that codefendant could shoot two more times toward the other two men in the parking lot. Codefendant was shooting behind defendant through the driver's side window. Defendant and codefendant then quickly left the scene, and Morales called an ambulance for the victim. ¶ 8 Elgin police officer Mark Brictson testified that on July 18, he showed Morales a series of photographs. Morales identified codefendant as the shooter and defendant as the driver of the Blazer from the photo array. Defendant and codefendant were subsequently arrested. ¶ 9 Following closing arguments, the trial court found defendant guilty of first degree murder, attempted first degree murder, and aggravated discharge of a firearm based on a theory of accountability. In doing so, the court stated that "taken as a whole ***, [defendant] not only aided and abetted [codefendant] but actually was the reason that [codefendant] was there. And also was the reason why and how [codefendant] was allowed to escape that address on Ash Street." ¶ 10 Defendant appealed, and this court affirmed defendant's conviction and sentence. People v. Espinoza, No. 1-00-3375 (2002) (unpublished order under Supreme Court Rule 23). ¶ 11 On October 10, 2003, defendant filed a pro se petition under the Act, alleging, in pertinent part, that he was actually innocent based on newly discovered evidence. In support, defendant attached an affidavit from his codefendant. In the affidavit, codefendant attested that on the date of the shooting he and his fiancé and daughter went to an apartment complex at 1132 Birch Drive in Elgin to inquire about renting an apartment. At about 5 p.m., codefendant saw defendant across the street at 1108 Ash Drive talking to Flores. Codefendant did not know that defendant was going to be at the apartment complex, nor did he make any previous arrangement to meet him there. Codefendant walked across the street to ask defendant if he had seen Arturo Cuevas, the apartment manager, and defendant replied negatively. Defendant informed codefendant that Arturo's office was in the basement of 1132 Birch Drive, and codefendant realized that he had knocked on the wrong door. He returned to the address on Birch Drive, went to the manager's office and knocked, but received no response. Codefendant then walked back to defendant and told him that he could not locate Arturo. ¶ 12 While returning to his car, codefendant saw three men walking toward defendant, including the victim Cesar Benitez, who was belligerent and appeared to be intoxicated. Defendant then received a phone call and waved codefendant over because he said that the apartment manager's son, Henry Cuevas, was on the phone. After telling his fiancé to leave, codefendant walked over to defendant and took the phone. While speaking with Henry, codefendant noticed two more men who were with the victim, one of whom was holding onto an object codefendant assumed was a weapon. After rescheduling an appointment with Henry, co-defendant retrieved a gun from a nearby location in the complex. Codefendant returned to where the victim and defendant were talking, and, as he approached, he heard defendant tell the victim that they would settle the matter the next day. Defendant attempted to enter his Blazer, but the victim blocked him from doing so. ¶ 13 As the victim continued to yell and threaten defendant, codefendant noticed that the victim put his hands into his pocket. Codefendant thought that the victim was carrying a weapon. When the victim stated, "I don't care we can all kill each other," he began to pull his hand out of his pocket. In response, codefendant pulled out his gun and fired twice at the victim. Codefendant then got into defendant's Blazer, where defendant was already in the driver's seat. Just before defendant drove away, he shook his head at codefendant in anger. At that time, codefendant saw Flores approach defendant through the driver's side window. Codefendant pushed defendant forward in his seat, and then shot in the air in an attempt to get Flores away from the vehicle. Shortly thereafter, defendant pulled the Blazer over and told codefendant to exit, which he did. Codefendant emphasized in his affidavit that his actions were spontaneous and that defendant did not know codefendant had a gun, nor did he assist him in the shooting. ¶ 14 Defendant subsequently filed an amended pro se post-conviction petition, and, when post-conviction counsel was appointed to represent defendant, counsel filed a second amended petition. On May 25, 2007, post-conviction counsel filed a "final amended petition for post-conviction relief." All of these subsequent amended petitions reasserted defendant's actual innocence claim based on codefendant's affidavit. ¶ 15 On August 8, 2008, the State filed a motion to dismiss defendant's petitions, maintaining, in pertinent part, that codefendant's affidavit was not newly discovered, nor was it of such a conclusive character that it would probably change the result of the case. On February 20, 2009, post-conviction counsel filed an amendment to his actual innocence claim and his reply to the State's motion to dismiss. ¶ 16 On July 23, 2010, the circuit court granted the State's motion to dismiss defendant's petitions. In doing so, the court noted that the evidence raised in defendant's petitions was not newly discovered. ¶ 17 On appeal, defendant contends that his codefendant's affidavit substantially established his actual innocence. Defendant specifically maintains that the affidavit shows that he was actually innocent because codefendant attested that defendant had no prior knowledge of, nor did he participate in, the shooting. The dismissal of a post-conviction petition at the second stage is subject to de novo review (People v. Coleman, 183 Ill. 2d 366, 388-89 (1998)), and we may affirm the circuit court's judgment on any basis supported by the record regardless of the trial court's rationale for ordering dismissal (People v. Demitro, 406 Ill. App. 3d 954, 956 (2010)). ¶ 18 The dismissal of a post-conviction petition is warranted at the second-stage of proceedings only when the allegations in the petition, liberally construed in light of the trial record, fail to make a substantial showing of a constitutional violation. Coleman, 183 Ill. 2d at 382. At the second-stage, all well-pleaded facts that are not rebutted by the trial record are to be taken as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). Fact-finding and credibility determinations are made only in the third stage of proceedings, where an evidentiary hearing is held. Pendleton, 223 Ill. 2d at 473. ¶ 19 Actual innocence is the equivalent of total vindication or exoneration. People v. Anderson, 402 Ill. App. 3d 1017, 1037 (2010). A defendant arguing actual innocence must demonstrate that the evidence upon which the claim is based is "newly discovered," i.e., evidence not available at the time of trial and that could not have been discovered sooner through due diligence. People v. Ortiz, 235 Ill. 2d 319, 333-34 (2009). In addition, the evidence must be material and not merely cumulative, and also must be "of such conclusive character that it would probably change the result on retrial." Ortiz, 235 Ill. 2d at 333. ¶ 20 Here, even if we accept codefendant's statements as "new evidence," defendant's actual innocence claim still fails because he cannot show that codefendant's additional testimony would probably change the outcome of the trial. We agree with the State that instead of presenting evidence showing total vindication or exoneration, defendant's claim merely seeks to reassess the strength of the evidence at trial. In his affidavit, codefendant asserts that defendant never knew he was armed, nor did he assist him in the planning or actual shooting itself. Instead, codefendant claimed that the shooting was spontaneous, and that he acted in self-defense because he feared the victim had a gun and was about to shoot. ¶ 21 Significantly, however, codefendant fails to contend that defendant was absent when the shooting took place. Codefendant's averments that defendant was not the principal offender failed to show defendant was actually innocent where the evidence at trial revealed that he aided and abetted the shooting by arranging the second meeting, preparing for the escape, and driving codefendant away from the scene. Therefore, codefendant's statements fail to exonerate defendant where he was held accountable for codefendant's crimes. See People v. Edwards, 2012 IL 111711, ¶¶ 38-39 (affirming the circuit court's decision to deny the defendant leave to file successive petitions where the codefendant's averments did not deny that the defendant was present at the scene, and thus did little to exonerate him where he was convicted of murder under an accountability theory). ¶ 22 Defendant primarily relies on People v. Molstad, 101 Ill. 2d 128 (1984) and People v. Ortiz, 385 Ill. App. 3d 1 (2008), to persuade this court that his cause should be remanded for a third-stage evidentiary hearing. We find these cases factually distinguishable from the case at bar. In both cases, the reviewing courts found that the newly discovered evidence would have been likely to produce a different result on retrial. In Molstad, 101 Ill. 2d at 135-36, the reviewing court found that a different result would probably occur at trial if the trier of fact considered the testimony of Molstad's codefendant, who attested that defendant was not present at the crime scene. In Ortiz, 385 Ill. App. 3d at 12, the reviewing court found that at retrial the evidence of the defendant's innocence would be much stronger, in part, because the newly discovered evidence was corroborated by other evidence that would be relevant on retrial. Moreover, the defendant would be able to offer the testimony of a witness who would state that the defendant was not present at the crime scene. Ortiz, 385 Ill. App. 3d at 12. In this case, however, codefendant's affidavit placed defendant at the crime scene and the substantial evidence at trial, including the testimony of Morales, who the trial court found particularly credible, established that defendant aided and abetted codefendant in committing the shooting. ¶ 23 For the foregoing reasons, we affirm the judgment of the circuit court. ¶ 24 Affirmed.