Opinion
No. 1-11-0067
03-29-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KIERE OVERSTREET, 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. 95 CR 17885
Honorable
Joseph M. Claps,
Judge Presiding.
JUSTICE delivered the judgment of the court.
Presiding Justice Lampkin and Justice Reyes concurred in the judgment.
ORDER
¶ 1 Held: Denial of post-conviction relief following a third-stage evidentiary hearing affirmed where the circuit court's finding that defendant failed to establish a free-standing claim of actual innocence was not manifestly erroneous. ¶ 2 Defendant Kiere Overstreet appeals from the denial of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)) following a third-stage evidentiary hearing. He contends that the circuit court erred in denying his petition where he presented a claim of actual innocence based on the testimony of four newly-discovered eyewitnesses. 2 ¶ 3 The record shows, in relevant part, that in 1996, a jury found defendant guilty of first degree murder in connection with the shooting death of Michael Neal on August 21, 1992. At trial, the State presented the eyewitness testimony of Antonio Finley, who was with Neal at the time of the shooting. He testified that about 11 p.m., he and Neal were walking to the house of Neal's girlfriend at 122nd and Green Streets. When they reached the area of 122nd Street and Parnell Avenue, four people on the corner, including defendant, asked them if they were "folks." They tried "to play it off and keep walking," but defendant continued to question them. Another individual eventually walked up and told defendant that "they all right, you know, let them go," then walked off followed by three of the people. Defendant remained, however, and continued to question Neal. Finley told Neal, "forget it, man, you know, let's go." As they turned their backs and walked away, defendant shot Neal in the back multiple times. Defendant then shot at Finley, who had run across the street, and fled down an alley when he ran out of bullets. Defendant was ultimately sentenced to 60 years' imprisonment, and this court affirmed that judgment on direct appeal. People v. Overstreet, No. 1-96-2935 (1999) (unpublished order under Supreme Court Rule 23). ¶ 4 On March 7, 2006, defendant filed a petition for relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)), alleging that the jury was improperly instructed on the issue of eyewitness identification in violation of the supreme court's holding in People v. Herron, 215 Ill. 2d 167 (2005). The trial court granted the State's motion to dismiss the petition, and this court subsequently affirmed that ruling after granting the motion of appellate counsel for leave to withdraw under Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Overstreet, No. 1-07-1848 (2008) (unpublished order under Supreme Court Rule 23). ¶ 5 On March 16, 2007, defendant filed a pro se petition for post-conviction relief alleging that trial counsel was ineffective for failing to investigate and present the testimony of Makeya 3 Norfleet and Jacobi Norfleet. In supporting affidavits, Makeya and Jacobi averred that they saw the person who shot Neal running away from the body, and that defendant was not that person. Makeya also averred that she made a statement to police "regarding [her] knowledge of the occurrence." The memorandum of orders shows that on June 7, 2007, the circuit court docketed defendant's petition and appointed counsel to represent him. ¶ 6 On July 17, 2009, post-conviction counsel filed a supplemental petition for post-conviction relief which "incorporate[d], and [wa]s to be considered in addition to Petitioner's pro-se pleading." In the petition, counsel raised a new claim of actual innocence based on newly discovered evidence, i.e., the affidavits of four eyewitnesses to the shooting, Jacobi Norfleet, Makeya Norfleet, Margaret Keaton, and DeAngelo Allen, who each claimed that defendant was not the shooter. ¶ 7 Counsel attached an affidavit from Keaton in which she averred that in the summer of 1992, she was sitting on her porch with someone named Gina at 12132 South Parnell Avenue and saw Marcus Wright and a heavy-set male across the street, sitting on the steps of 12141 South Parnell Avenue. Another male came around the corner of 122nd Street onto Parnell Avenue and spoke with Marcus, who hit him in the face, causing him to stumble down the steps. This male then went back around the corner from which he had arrived, and Marcus "pulled something from underneath his shirt" and followed him, accompanied by his companion. Gina ran around the corner behind them to find out what was happening, and, as she turned the corner, Keaton heard gunshots. Gina then returned and said, "Marcus just shot that boy, he's around there laying on the ground!" ¶ 8 Counsel also attached the affidavit of DeAngelo Allen in which he averred that before the shooting of "Mike" on the evening of August 21, 1992, he was present when Mike and his cousin 4 approached an unnamed individual and asked to purchase some marijuana. They were told to go to "Rag Town," and a few minutes later, Allen heard gunshots, looked in that direction, and saw a man he knew as "Marcus" running from the scene and taking off his shirt. Allen recognized Marcus "as a troublemaker from the neighborhood" who was later involved in a robbery, and also, he believes, was "later shot and killed." Allen averred that he does not believe defendant shot "Mike" on the night in question. ¶ 9 On January 27, 2010, the State moved to dismiss defendant's post-conviction petitions. The State asserted, inter alia, that the affidavits submitted by defendant were not exculpatory in that none of the affiants witnessed the shooting, and that his ineffective assistance of counsel claim should be dismissed because defendant had not shown that counsel should have known to investigate "this area" or that he was prejudiced. Following a hearing, the circuit court denied the State's motion to dismiss. ¶ 10 An evidentiary hearing was held on September 22, 2010, where Jakoba Norfleet testified that on August 21, 1992, he lived at 12157 South Wallace Street with his parents and his sister, Makeya Norfleet. About 11 p.m. that night, he was going to visit a friend and left his house through the "rear side" entrance on 122nd Street. There, he saw two males, one of whom he recognized from the neighborhood as a man named Marcus, in a "confrontation where Marcus was pursuing the other gentleman." Jakoba walked west and turned the corner onto Wallace Street, and as he did so, he glanced back and saw the two men walking in his direction. Marcus had a dark-colored gun in his hand. 5 ¶ 11 By the time Jakoba arrived at his friend's house, he could no longer see the two men and rang the doorbell. His friend came out onto the porch, but they subsequently went inside after hearing about five gunshots. Makeya then arrived at the door in shock, telling Jakoba that he needed to go home. Jakoba walked back to his house and saw ambulances in the area. He also saw the man with whom Marcus had the confrontation lying on the ground in distress and recognized him as his old baseball coach, Michael Neal. The police never spoke with him about the incident, he never went to the police with any information, and he never saw defendant near the scene of the shooting on the night in question. ¶ 12 On cross-examination, Jakoba stated that he lives in the same neighborhood as defendant, that their houses share an alley, and that he knows defendant's family. He also stated that he drove to court that day with defendant's family and met them at their house beforehand. He acknowledged that his averment of seeing the shooter running away from the victim's body was incorrect. ¶ 13 Makeya Norfleet testified that in August 1992, she lived at 121st and Wallace Streets with her parents and her brother. About 11 p.m. on August 21, 1992, she was at her house and saw Jakoba exit the side door onto 122nd Street. Shortly thereafter, she heard about five gunshots very close by, then ran to the window facing south where she saw a man running towards her from the east "duck***" behind a parked car across the street to shield himself from gunfire. Makeya also saw a light-skinned, heavyset man with a gun. She knew the man with the gun as "China," and testified that she is sure he was not defendant. She then heard some conversation, after which "China" left her view and the individual who was hiding eventually ran south on Wallace Street. Makeya went outside and saw a man who appeared to have recently been shot lying on the ground, face-down and "choking up blood." She then went back into the 6 house and got her mother. Later, when people were gathered around the body, the man who had been crouching behind the car returned and told Makeya that: "two guys had asked him what they were on. They were looking for something. And he said something about we ain't on that, about being renegade or something. I think he also stated that they were - stayed in the vicinity, maybe across the park." ¶ 14 On cross-examination, Makeya stated that she does not recall talking to police, that she has known defendant for "[q]uite some time," and that she knows some of his family members. She also stated that she came to court that day in a van with members of defendant's family. In response to a question by the court, Makeya stated that she never saw "China" again after that day. ¶ 15 DeAngelo Allen testified that in August 1992, he lived at 12137 South Parnell Avenue. About 11 p.m. on August 21, 1992, he was on the front porch of his home when he heard several shots fired south of Parnell Avenue. He looked down the street and saw Marcus running towards him from Wallace Street and jumping over some bushes. He was taking off his shirt and holding up his pants because he had something heavy in his pocket, and ran into a gangway two doors down from Allen. Allen further testified that he is "not sure" who wrote the affidavit that he signed. ¶ 16 On cross-examination, Allen stated that he knows defendant, but that he is not a friend. Allen also stated that defendant's family lives about two houses over from him, and acknowledged that he drove to court with them, and ate lunch with them during the break. Allen further acknowledged that he did not see the shooting. ¶ 17 The court subsequently called Helen Norfleet as a witness. She testified that on August 21, 1992, she lived at 12157 South Wallace Street with her husband and three children, Peter, 7 Jakoba, and Makeya. That night, she heard gunshots. Makeya was in the house at the time, but she does not remember her whereabouts, and she does not know where Jakoba was. Helen went to the side door of the building, looked out through the glass, and saw a person on the ground whom she presumed had been shot. She never spoke with Makeya or Jakoba about how that person was shot. ¶ 18 In a written order denying post-conviction relief to defendant, the circuit court concluded that defendant failed to make a substantial showing that his constitutional rights were violated, or to prove actual innocence. The court found that defendant's actual innocence claim was "not freestanding because it relies on evidence that also supports his arguments of another constitutional violation - ineffective assistance of counsel," and that the evidence would probably not change the result on retrial because the jury had found Finley's eyewitness testimony credible and "[n]one of the evidence presented at the evidentiary hearing refutes Finley's version of events." The court also found that defendant's ineffective assistance of trial counsel claim failed for lack of prejudice. This appeal follows. ¶ 19 The Act provides a mechanism by which a criminal defendant may assert that his conviction was the result of a substantial denial of his constitutional rights. People v. Delton, 227 Ill. 2d 247, 253 (2008). Proceedings are initiated by the filing of a petition verified by affidavit in the circuit court in which the conviction took place (725 ILCS 5/122-1(b) (West 2010)), and may consist of up to three stages (People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006)). At the third stage of proceedings, defendant is entitled to a hearing where he may present evidence in support of his petition (Pendleton, 223 Ill. 2d at 472-73, citing 725 ILCS 5/122-6 (West 2000)), and where he continues to bear the burden of making a substantial showing of a constitutional violation (Pendleton, 223 Ill. 2d at 473). 8 ¶ 20 In this case, defendant solely contends that he established a claim of actual innocence based on newly discovered evidence, and that the circuit court thus erred in denying his post-conviction petition. He maintains that the court mistakenly found that his claim was "not freestanding," misapplied the standards governing actual innocence claims, and failed to consider the evidence presented by the defense at trial. ¶ 21 The State responds that the court properly found that defendant's actual innocence claim was not freestanding where it was based on the same evidence used to support his claim of ineffective assistance of counsel. The State also responds that the evidence presented by defendant would not have changed the result on retrial where none of the new witnesses saw the shooting. ¶ 22 The parties also dispute the proper standard of review. Defendant claims that the circuit court's ruling should be reviewed de novo because the court did not preside over defendant's original trial and its ruling was based on questions of law. The State responds that the court's ruling should not be disturbed unless it is manifestly erroneous because the question is whether defendant made a substantial showing of his claims based on the witnesses he presented at the evidentiary hearing, whom the court had an opportunity to assess. ¶ 23 Where, as here, a petition is advanced to a third-stage evidentiary hearing involving fact-finding and credibility determinations, a reviewing court will not reverse the circuit court's decision unless it is manifestly erroneous (Pendleton, 223 Ill. 2d at 473), i.e., error that is clearly evident, plain, and indisputable (People v. Morgan, 212 Ill. 2d 148, 155 (2004); accord People v. Ortiz, 235 Ill. 2d 319, 333 (2009)). Given the procedural posture of this case, we find that to be the appropriate standard of review. People v. English, 2013 IL 112890, ¶ 23 (not released). ¶ 24 We initially find that the circuit court's determination that defendant failed to present a "freestanding" claim of actual innocence with respect to Makeya and Jacobi Norfleet was not 9 manifestly erroneous. The record shows that defendant raised a claim of ineffective assistance of counsel in his pro se post-conviction petition alleging that trial counsel was ineffective for failing to present the testimony of Makeya and Jacobi, whose affidavits were attached to the petition. Post-conviction counsel then filed a supplemental petition expressly incorporating defendant's pro se petition, and alleging an additional claim of actual innocence that also relied, in part, on the affidavits of Jacobi and Makeya. Thereafter, an evidentiary hearing was held wherein Jacobi and Makeya testified, and the court ultimately rejected defendant's claims, finding, inter alia, that his actual innocence claim was "not freestanding because it relies on evidence that also supports his arguments of another constitutional violation - ineffective assistance of counsel." ¶ 25 A freestanding claim of actual innocence contemplates that newly discovered evidence is not also being used to supplement the assertion of another constitutional violation with respect to trial. People v. Collier, 387 Ill. App. 3d 630, 637 (2008), citing People v. Washington, 171 Ill. 2d 475, 479 (1996). Here, defendant clearly used the affidavits and testimony of Makeya and Jacobi Norfleet to support a claim of ineffective assistance of trial counsel. He therefore cannot also use their affidavits and testimony to support a freestanding claim of actual innocence. People v. Brown, 371 Ill. App. 3d 972, 984 (2007), citing People v. Hobley, 182 Ill. 2d 404, 443-44 (1998). We note that, contrary to defendant's claim, this conclusion is entirely consistent with Hobley and People v. Orange, 195 Ill. 2d 437 (2001), where the supreme court found that defendants failed to present a freestanding claim of actual innocence because the same evidence was being used to supplement other claims. Orange, 195 Ill. 2d at 460; Hobley, 182 Ill. 2d at 444. ¶ 26 Although defendant points out that this court reached a contrary result in People v. Munoz, 406 Ill. App. 3d 844 (2010), we question the continuing viability of that decision given the subsequent ruling of the supreme court regarding successive post-conviction petitions. In 10 Munoz, 406 Ill. App. 3d at 850, 854-55, this court provided no analysis as to whether defendant's claim of actual innocence was free-standing and reversed the circuit court's denial of defendant's motion for leave to file a successive post-conviction petition finding that defendant's actual innocence claim had an "arguable basis in law and fact" and should not have been dismissed as frivolous and without merit, thus applying the first-stage "gist" standard to defendant's successive post-conviction claim. The supreme court has since made it clear that such a "first-stage" analysis is improper when evaluating whether leave to file a successive post-conviction petition should be granted. People v. Edwards, 2012 IL 111711, ¶¶ 25-28. As a result, we find defendant's reliance on Munoz unpersuasive. ¶ 27 Having determined that the affidavits of Jacobi and Makeya cannot be used to support a claim of actual innocence, we consider whether the affidavits and/or testimony of defendant's two additional witnesses, i.e., Margaret Keaton and DeAngelo Allen, support his claim of actual innocence. For the reasons set forth below, we conclude that they do not. ¶ 28 The record shows that Margaret Keaton averred that in the summer of 1992, she and "Gina" were on her porch at 12132 South Parnell Avenue when she saw an individual named Marcus Wright hit a man in the face, then "pull*** something from underneath his shirt" and follow him around the corner. Keaton subsequently heard gunshots, and Gina, who had gone around the corner to find out what was happening, returned, saying, "Marcus just shot that boy, he's around there laying on the ground!" ¶ 29 DeAngelo Allen testified that about 11 p.m. on August 21, 1992, he was on his front porch at 12137 South Parnell Avenue when he heard several shots fired to the south, looked down the street, and saw Marcus running towards him from Wallace Street. Marcus was taking 11 off his shirt and holding up his pants because he had something heavy in his pocket, and he ran into a gangway two doors away from Allen. ¶ 30 Our supreme court has recognized the right of a post-conviction petitioner to raise a freestanding claim of actual innocence based on newly discovered evidence pursuant to the due process clause of the Illinois Constitution. People v. Ortiz, 235 Ill. 2d 319, 333 (2009). The evidence in support of such a claim must be new, material, non-cumulative, and of such conclusive character that it would probably change the result on retrial. Ortiz, 235 Ill. 2d at 333. The hallmark of actual innocence is "total vindication" or "exoneration." People v. Anderson, 401 Ill. App. 3d 134, 141 (2010). ¶ 31 Here, the affidavit of Keaton refers to an incident that occurred sometime in the summer of 1992, and includes a hearsay identification from a woman named "Gina" that "Marcus just shot that boy, he's around there laying on the ground." However, it contains no precise date of occurrence, and neither "Gina" nor "that boy" are ever identified; thus, there is no ostensible connection between the events to which Keaton averred and the incident in question. In addition, defendant's assertion that Gina's hearsay identification is "a classic excited utterance," i.e., an exception to the hearsay rule, is overly simplistic. To the contrary, we find that it is not possible to make that determination on the basis of Keaton's sparse affidavit, alone (see People v. Dobbey, 2011 IL App (1st) 091518, ¶ 44 (setting out the totality of circumstances to be considered in determining whether a hearsay statement qualifies as an excited utterance)), and, thus, consider Gina's statement to be nothing more than inadmissible hearsay. ¶ 32 We likewise find that Allen's testimony fails to support defendant's claim of actual innocence. Allen testified that on the night in question, he heard gunshots and subsequently saw a man named Marcus running from the direction of Wallace Street, taking off his shirt, and holding up his pants because he had something heavy in his pocket, and that Marcus ran into a 12 gangway two doors down from him. However, Allen did not see the shooting, did not see a weapon, and did not see any interaction between Marcus and the victim. As with the affidavit of Keaton, Allen's testimony provides absolutely no connection between the man named "Marcus" and either the shooting or the victim. We therefore find that the evidence presented by defendant was neither of such conclusive character that it would probably change the result on retrial (Ortiz, 235 Ill. 2d at 333), nor of an exonerating nature (Anderson, 401 Ill. App. 3d at 141); and, accordingly, we cannot say that the circuit court's denial of defendant's post-conviction petition was manifestly erroneous (Pendleton, 223 Ill. 2d at 473). ¶ 33 In reaching this conclusion, we note that defendant takes issue with the circuit court's alleged failure to consider "the defense case at trial in evaluating whether a retrial would likely have a different result" and, further, that "[t]he State's case depended almost exclusively on a single eyewitness who identified [him] as his friend[']s[] assailant under circumstances prone to misidentification." However, defendant's claim that the court failed to consider the defense case at trial is inaccurate, as the court set out the defense case in its written order, but had no need to consider it where the evidence properly presented by defendant in support of his actual innocence claim had no bearing on the issue of his guilt. Furthermore, defendant's challenge to the State's eyewitness at trial is essentially a reasonable doubt argument, and, as such, is not a proper issue for a post-conviction proceeding. Collier, 387 Ill. App. 3d at 638. ¶ 34 Accordingly, we conclude that the circuit court did not err in denying post-conviction relief to defendant following an evidentiary hearing, and affirm its judgment. ¶ 35 Affirmed.