Opinion
No. 1-16-3170
08-17-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WYSINGO TURNER, 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. 10 CR 15960
Honorable Kevin M. Sheehan, Judge, presiding.
JUSTICE CONNORS delivered the judgment of the court.
Justices Cunningham and Delort concurred in the judgment.
ORDER
¶ 1 Held: The summary dismissal of the defendant's postconviction petition raising a claim of actual innocence is affirmed where the affidavits supporting the petition did not constitute newly discovered non-cumulative evidence and it was not arguable that they were of such conclusive character as to probably change the result on retrial.
¶ 2 Defendant Wysingo Turner appeals the circuit court's summary dismissal of his petition seeking relief under the Postconviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). On appeal, defendant contends his postconviction petition states an arguable claim of his actual innocence of first degree murder based on newly discovered evidence. Defendant, who claimed
at trial that he acted in self-defense, attached to his petition affidavits from four individuals who would have testified about the victim's reputation for violence. We affirm.
¶ 3 Krystal Rodney died on August 12, 2010, after she was shot by defendant. That shooting occurred outside of 7019 South Justine Street in Chicago, where Rodney and her son lived in the basement. Queen Spencer and Silvia Gandy, who is Rodney's half-sister, lived upstairs.
¶ 4 At defendant's 2012 jury trial, the State proceeded on two counts of first-degree murder: intentional or knowing murder (720 ILCS 5/9-1(a)(1) (West 2008)) or that defendant took actions that he knew created a strong probability of death or great bodily harm (720 ILCS 5/9-1(a)(2) (West 2008)). Defendant raised the affirmative defense of self-defense. He was convicted of first degree murder. The trial court sentenced defendant to 35 years for first degree murder and a consecutive term of 25 years in prison for personally discharging a firearm that proximately caused the victim's death. On direct appeal, this court affirmed defendant's conviction and sentence, holding in part that the defense was not entitled to a jury instruction on involuntary manslaughter where there was no evidence that defendant acted recklessly. People v. Turner, 2015 IL App (1st) 133649-U. Because we set forth the facts on direct appeal, we recount them here to the extent necessary to resolve the issue raised in this appeal.
¶ 5 Demar'J Bankston, Rodney's son, testified he was 12 years old in August 2010. On the day of the shooting, defendant arrived at the house in the early afternoon in a silver BMW and, before leaving, spoke to Rodney outside the house. Bankston could not hear their conversation.
¶ 6 Defendant returned later in his car and asked Bankston, who was outside, where Silvia was. Defendant was holding a beer bottle. Bankston said Silvia was not home. Defendant asked where Rodney was, and Bankston replied she was in the basement. Defendant walked to his car
and put the beer bottle in the trunk. Defendant knocked on the basement window, and Rodney came outside. She and defendant argued, but Bankston could not hear what they said.
¶ 7 Defendant retrieved a silver gun from the back of his pants and pointed it at Rodney. Rodney said, "I'm sorry." Defendant shot Rodney in the neck, and she fell to the ground. Defendant walked over to Bankston's cousin, who also stood nearby, and handed him some money. Defendant got in his car and drove away. On cross-examination, Bankston said Rodney was swearing at defendant.
¶ 8 Raymond Washington testified that he lived at 7021 South Justine at the time of these events. Washington was in his living room at about 3:15 p.m. when he saw defendant arrive in a silver BMW. A few minutes later, Washington heard a gunshot and walked to his front door. Washington saw defendant walk back to his car holding a weapon and saw Rodney on the ground with a bullet hole in her neck.
¶ 9 Spencer testified she lived at 7019 South Justine with her son Walter, her granddaughter Silvia, and Silvia's son, Ya'Shon. Spencer knew Rodney as Silvia's half-sister and saw defendant when he visited Ya'Shon several times a week.
¶ 10 On the day of the shooting, Spencer saw defendant standing in a gangway between her house and the house next door. Spencer heard defendant say, "What do you want to do now?" and heard Rodney reply, "Nothing, I was just playing." Spencer heard a gunshot and went to the front porch. Spencer saw defendant walk from the gangway to his car holding a gun. Defendant got in his car, placed his head on the steering wheel, and said, "Oh, my god," before driving away. Spencer called police.
¶ 11 Chicago police officer Richard Barber arrested defendant in his silver BMW about two miles from the scene after hearing a dispatch describing the shooter and his vehicle. A chrome handgun was on the floor, along with a full beer bottle, a liquor bottle, and a towel. Washington identified defendant in a lineup later that night.
¶ 12 Chicago police forensic investigator Zbigniew Niewdach testified that he recovered a revolver from defendant's car with one spent shell. Niewdach photographed Rodney at the hospital after learning she had died; Rodney had one gunshot wound in the right side of her neck. He did not perform a gunshot residue test on Rodney's body or clothing.
¶ 13 Robert Berk, an Illinois State police trace evidence analyst, testified defendant's hands tested negative for gunshot residue. Berk stated that gunshot residue could be removed from a person's skin by washing their hands or wiping their hands on their clothing or a towel.
¶ 14 Michael Cox, an Illinois State police latent fingerprint examiner, testified that no fingerprints, suitable for comparison, were found on the weapon recovered from defendant's car and he could not determine whether Rodney or defendant had touched the gun. Cox explained that it was possible to touch an item and not leave a fingerprint.
¶ 15 For the defense, Walter Gandy testified that during these events, he lived with Spencer at 7019 South Justine. Silvia is the daughter of his sister, Carolyn. Walter testified he knew Rodney and was familiar with her voice. At 10 or 11 a.m. on the day of the shooting, Walter heard Rodney speak in a tone that was "kind of violent." Walter was not present when the shooting occurred.
¶ 16 Defendant testified he had hernia surgery in early August 2010 and had a tooth extracted on August 8. On August 10, Silvia asked him to take Ya'Shon to the doctor. Defendant agreed
even though he still felt "a bit weak" from his surgery and dental procedure. Defendant and Ya'Shon are not related but defendant said he has a special bond with the child. Defendant dated Carolyn Gandy "on and off" for about 10 years.
¶ 17 When defendant arrived to pick up the child, Silvia and Rodney also got into defendant's car. As defendant drove, Silvia told him to drop Rodney off at another location, and he replied he did not feel like driving them around. Silvia and Rodney swore at defendant. Defendant drove to a police station and explained the situation to a desk sergeant, who made Silvia, Rodney and the child get out of the car.
¶ 18 On the day of the shooting, defendant went to 7019 South Justine between 10:30 and 11 a.m. Defendant saw Ya'Shon and told him why he and the women had to get out of the car two days earlier. As defendant crouched down to speak to the child, Rodney approached and kicked defendant in the shoulder, causing him to fall back. Defendant left.
¶ 19 Defendant testified he kept a gun in his car for protection. Defendant returned to the house at about 3 p.m. to see Spencer because he thought Spencer could "eradicate what was becoming a volatile situation." Defendant parked his car and brought his gun to the gangway, where Rodney approached him.
¶ 20 Defendant testified that, even though Rodney did not say anything and "appeared to be very calm," Rodney "snatched the gun" and pointed it at him. Defendant thought his life was in danger and that Rodney would kill him. He and Rodney struggled with the gun, and the gun went off. Defendant denied that he pulled the trigger or shot Rodney. On cross-examination, defendant acknowledged he did not help Rodney after she was shot even though he had emergency medical training.
¶ 21 The defense requested that the jury be instructed on self defense. The trial court granted that request over the State's objection.
¶ 22 Defendant was convicted of first degree murder. The trial court sentenced defendant to 35 years for first degree murder and a consecutive term of 25 years in prison for personally discharging a firearm that proximately caused the victim's death.
¶ 23 Among the contentions raised in defendant's motion for a new trial was that defense counsel was ineffective for failing to elicit testimony from Walter Gandy that at about 10 a.m. on the day of the shooting, he heard Rodney make statements regarding defendant. Attached to the posttrial motion was Walter's affidavit stating that he heard Rodney say, referring to defendant, that she was going to "kick that mother f***'s car" and "beat his ass." The trial court denied defendant's motion for a new trial.
¶ 24 On direct appeal, this court affirmed defendant's conviction and sentence, holding in part that the defense was not entitled to a jury instruction on involuntary manslaughter where there was no evidence that defendant acted recklessly. People v. Turner, 2015 IL App (1st) 133649-U. ¶ 24. This court also concluded defense counsel was not ineffective for failing to present Walter's testimony to support defendant's claim that he was acting in self-defense. Id. ¶ 40. This court found Walter's proferred testimony as to the contents of Rodney's statement several hours before the shooting would not have been reasonably reliable or adequate proof of Rodney's violent and aggressive nature. Id. In addition, this court affirmed the trial court's ruling that excluded from evidence a statement by Rodney on the morning of the shooting that she would kill defendant. Id. ¶¶ 42-46. The court held that any words Rodney said to defendant were "not crucial to his defense" because defendant claimed he and Rodney struggled over the gun but he
did not fire it. Id. ¶ 45. The Illinois Supreme Court denied defendant's petition for leave to appeal. People v. Turner, No. 119778 (Jan. 20, 2016).
¶ 25 On September 14, 2016, defendant, represented by counsel, filed a postconviction petition asserting he could present newly discovered evidence to support a claim of his actual innocence. Defendant's petition was accompanied by affidavits of Spencer, Walter Gandy, Caroline Gandy and Tina Williams, each of whom offered accounts of prior violent acts by Rodney. All four affiants averred that in their opinion, Rodney was a violent person and they were aware of her "reputation for violence and aggressiveness."
¶ 26 Attached to the petition were affidavits of Spencer and Walter Gandy, who testified at defendant's trial. Those two affidavits were both dated June 16, 2016. Spencer attested that several days before Rodney's death, Rodney threatened defendant and also threatened her. Spencer stated she was "now willing to testify" to those facts. Walter attested that several days before Rodney's death, Rodney made a threatening comment to him. He averred he would now testify to those facts, which he was "not willing to tell anyone prior to trial."
¶ 27 Defendant also offered in support of his postconviction petition the affidavits of Caroline Gandy and Tina Williams. Caroline attested in her affidavit, which was dated June 16, 2016, that she was at the home of Rodney's mother in 2009 or 2010 and saw Rodney shove her mother. She also attested that on the day of the shooting, she asked defendant to pick up Ya'Shon, and defendant told her Rodney had "swung on him and hit him in the eye." Caroline averred she was "not willing to tell anyone [those facts] prior to trial."
¶ 28 In Williams' affidavit, dated September 2, 2016, she attested she met Rodney in 2009 through a friend. In the late summer of 2009, a fight took place between a group of people that
Williams was with and a group that included Rodney. During that fight, Williams tried to separate one of her friends from Rodney. Rodney pushed her, and Williams pushed back. Rodney stabbed Williams in the arm with a pocket knife, leaving a scar.
¶ 29 On October 26, 2016, the circuit court dismissed defendant's petition, finding he had not presented a cognizable claim of actual innocence. Defendant now appeals that ruling.
¶ 30 On appeal, defendant contends his petition should not have been dismissed at the first stage of postconviction review because he has presented an arguable claim of his actual innocence based on newly discovered evidence. He argues the four affidavits that describe Rodney's prior violent acts would exonerate him by supporting his claim that he acted in self-defense.
¶ 31 The State responds that defendant's petition was properly dismissed because the affidavits of the four individuals, two of whom testified at trial, do not meet any requirement of an actual innocence claim. The State also asserts that although the jury was instructed on self-defense in this case, the defense did not properly raise that theory; rather, defendant claimed he did not shoot Rodney.
¶ 32 At this first stage of postconviction proceedings, the defendant must set forth only an arguable constitutional claim. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The circuit court may dismiss the petition if the allegations therein, taken as true, render the petition "frivolous or patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2014). A petition is frivolous or patently without merit if it has no arguable basis either in law or in fact. Hodges, 234 Ill. 2d at 12. This court conducts de novo review of the circuit court's dismissal of a postconviction petition at this first stage. Id. at 9.
¶ 33 Applying that standard here, defendant must set forth an arguable claim of actual innocence. People v. Mabrey, 2016 IL App (1st) 141359, ¶ 23. To obtain second-stage review of an actual innocence claim, the evidence presented by the defendant arguably must be: (1) newly discovered; (2) material and noncumulative; and (3) of such conclusive character that it would probably change the result on retrial. People v. Coleman, 2013 IL 113307, ¶ 96. Actual innocence involves the defendant's exoneration, not the sufficiency of the evidence or reasonable doubt. People v. House, 2015 IL App (1st) 110580, ¶ 41, 46.
¶ 34 First, to be "newly discovered," the evidence offered in support of the claim of actual innocence must not have been available at the defendant's trial or discoverable sooner through the exercise of due diligence. People v. Ortiz, 235 Ill. 2d 319, 334 (2009). Evidence is "not newly discovered when it presents facts already known to a defendant at or prior to trial, though the source of these facts may have been unknown, unavailable or uncooperative." People v. Collier 387 Ill. App. 3d 630, 637 (2008); see also People v. Jones, 399 Ill. App. 3d 341, 364 (2010) (and cases cited therein). Here, Tina Williams offers no explanation in her affidavit why her account of an event in 2009 could not have been offered sooner. Caroline Gandy, Spencer and Walter Gandy each attested they were not "willing" to previously share their accounts of Rodney's behavior.
¶ 35 Defendant contends their attestations represent newly discovered evidence because "none of the facts with respect to Krystal Rodney's violence" were known to him. Spencer's affidavit states only that Rodney threatened her and defendant a few days before the shooting. Caroline's affidavit recounts, in part, defendant telling her that Rodney struck him on the day of the shooting. Defendant cannot logically argue that threats made to him in his presence or actions
that involved him can constitute information that was unknown to him previously. See People v. Jarrett, 399 Ill. App. 3d 715, 724 (2010) (facts known to the defendant prior to trial do not constitute "newly discovered evidence" simply because the defendant was not aware of potential witnesses or those witnesses may have been uncooperative).
¶ 36 Furthermore, this is Walter's second affidavit as to Rodney's history of violence. Despite Walter's representation that he was previously not "willing" to attest to Rodney's behavior, he provided an affidavit in 2013, in support of defendant's posttrial motion, describing threats that Rodney made to defendant. Defendant asserted his trial counsel was ineffective for failing to present Walter's testimony that on the day of the shooting, Rodney threatened defendant by stating she would "kick that mother f___'s car" and "beat his ass." Even though that was a different incident than the one described in Walter's current affidavit, in which he avers Rodney threatened him, Walter previously offered evidence on the subject of Rodney's violent acts. Defendant has not shown the four affidavits attached to his postconviction petition contain newly discovered evidence.
¶ 37 Second, the evidence must be both material, or relevant and probative of the defendant's innocence, and non-cumulative, meaning it would create new questions in the mind of the trier of fact. Coleman, 2013 IL 113307, ¶ 21; People v. Williams, 392 Ill. App. 3d 359, 369 (2009). As to materiality, the State suggests the evidence in the four affidavits was not reliable because it only involved verbal threats, as opposed to arrests or convictions for violent crimes. We disagree with the State's position.
¶ 38 Pursuant to People v. Lynch, 104 Ill. 2d 194, 199-200 (1984), where a defendant raises a claim of self-defense, evidence pertaining to the victim's character can be offered either to: (1)
show that the defendant's knowledge of the victim's violent tendencies affected his perception and reaction to the victim; or (2) support the defendant's version of events where conflicting accounts were offered as to what took place, even if the defendant had no prior knowledge of the victim's violent acts. Defendant maintains he did not know about Rodney's reputation for violence; thus, in this case, the Lynch evidence was admitted under the second alternative.
¶ 39 In presenting evidence pertaining to the victim's character, evidence of a reputation for violence and of specific violent acts and threats made by the victim may be admissible even when the acts or threats were not directed at the defendant. People v. Florey, 153 Ill. App. 3d 530, 538-39 (1987). A prior altercation or other behavior that falls short of an arrest or conviction can be adequate proof of violent character when it is supported by firsthand testimony as to the victim's behavior. People v. Cook, 352 Ill. App. 3d 108, 128 (2004). Moreover, a victim's threats against the defendant are admissible even if they were not communicated to the defendant. Lynch, 104 Ill. 2d at 201. By those standards, the accounts contained in the four affidavits that Rodney had threatened those affiants and threatened defendant, and that the affiants observed violent acts by Rodney, could have been offered as proof of Rodney's character under Lynch. Thus, the evidence in the affidavits may have been admissible and arguably relevant to defendant's case.
¶ 40 However, even if admissible, the evidence fails to meet the requirement of being non-cumulative. Evidence is considered cumulative when it adds nothing to what was already before the jury. People v. Jones, 2017 IL App (1st) 123371, ¶ 43 (citing Ortiz, 235 Ill. 2d at 335). The jury was presented with evidence of Rodney's prior statements and violent acts. Walter testified that on the morning of the shooting, he heard Rodney speak in a tone that was "kind of violent."
Defendant testified Rodney kicked him in the shoulder that morning, and defendant said he brought a gun to the house that afternoon because he anticipated a "volatile situation." The evidence in the affidavits now presented by defendant to show Rodney had threatened him and others before and was involved in altercations would not have created a new question in the mind of the jury.
¶ 41 Lastly, and most importantly in an actual innocence analysis, the evidence must be of such conclusive character that it would likely change the outcome on retrial. Coleman, 2013 IL 113307, ¶ 96. To meet that requirement, the new evidence presented in support of the defendant's claim must place the trial evidence in a different light and undermine the court's confidence in the factual correctness of the guilty verdict. Id. ¶ 97.
¶ 42 At trial, defendant relied on a self-defense theory as to the acts that preceded the shooting while also maintaining that the fatal injury was accidental. People v. Bedoya, 288 Ill. App. 3d 226, 237 (1997); People v. Crum, 183 Ill. App. 3d 473, 487 (1989). See also People v. Lee, 213 Ill. 2d 218, 224 (2004) (a defendant is entitled to a jury instruction on self-defense even if very slight or only some evidence exists to support that theory). Specifically, defendant testified that, when he met with Rodney in the gangway, she "snatched the gun" and pointed at him. Defendant thought his life was in danger and that Rodney would kill him. He and Rodney struggled with the gun, and the gun discharged, but he did not pull the trigger.
¶ 43 However, the jury also heard testimony as to Rodney's behavior on the day of the shooting. Bankston testified he saw defendant point the gun at Rodney and pull the trigger. The jury was instructed on self defense and found defendant guilty of first degree murder. Given its
verdict, the jury found the State's account more credible than defendat's account i.e., that his actions were committed in self-defense or were accidental.
¶ 44 The allegedly new evidence regarding Rodney's reputation for violence in no way undermines the jury's verdict. Self-defense exists when: (1) force is threatened against a person; (2) the person threated is not the aggressor; (3) the danger of harm is imminent; (4) the threatened force is unlawful; (5) the person threatened actually and subjectively believed a danger existed that required the use of force applied; and (6) the beliefs of the person threatened were objectively reasonable. People v. Jeffries, 164 Ill. 2d 104, 127-28 (1995).
¶ 45 In this case, the alleged evidence that Rodney had previously threatened the affiants and defendant, and that the affiants observed violent acts by Rodney, would have little or no bearing on any of the six elements of self-defense. Defendant's testimony indicates that the imminent danger of harm came from Rodney pointing the gun at him. Under those circumstances, notwithstanding Rodney's reputation for violence, there is no question that defendant would have believed a danger existed that required the use of force, and that his beliefs were objectively reasonable. The jury nevertheless found the State's account—that defendant himself retrieved the gun from his waistband and intentionally shot Rodney—to be more credible than defendant's version of events i.e., that his actions were committed in self-defense or were accidental. It is not arguable that additional evidence as to Rodney's reputation for violence would have exonerated defendant.
¶ 46 In sum, where defendant's claim of actual innocence was not supported by newly discovered, non-cumulative evidence of such conclusive character that as to probably change the result on retrial, the trial court properly dismissed the petition at the first stage.
¶ 47 Accordingly, the circuit court's summary dismissal of defendant's postconviction petition is affirmed.
¶ 48 Affirmed.