People v. Amaya

2013 IL App (2d) 110305

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,

v.ARMANDO AMAYA, Defendant-Appellant.

No. 2-11-0305

APPELLATE COURT OF ILLINOIS SECOND DISTRICT

Order filed January 4, 2013

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 Kane County.

No. 98-CF-535

Honorable

Thomas E. Mueller,

Judge, Presiding.

JUSTICE McLAREN delivered the judgment of the court.

Presiding Justice Burke and Justice Birkett concurred in the judgment.

ORDER

¶ 1 Held: Defendant could not establish a Brady violation where State's failure to disclose a police report of a witness's tape recorded statement was not material to defendant's guilt; the trial court's dismissal of defendant successive postconviction petition is affirmed.

¶ 2 Defendant, Armando Amaya, appeals from the judgment of the trial court dismissing his amended successive postconviction petition after an evidentiary hearing. On appeal, defendant argues that: (1) the trial court erred by finding that the State did not commit a Brady violation (seeBrady v. Maryland, 373 U.S. 83 (1963)); and (2) defendant was denied effective assistance of postconviction counsel. We affirm.

¶ 3 I. BACKGROUND

¶ 4 In 1999, defendant was convicted of the first-degree murder (720 ILCS 5/9-1(a), (a)(2) (West 1996)) of Jermaine Lambert, two counts of the attempted murder (720 ILCS 5/8-4(a) (West 1996)) of Alonzo Matthews and Tara Harris, and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1996)). Defendant was sentenced to consecutive prison terms of 40 years for the first-degree murder conviction, 12 years and 10 years for the two attempted murder convictions, respectively, and a concurrent 9 year sentence for aggravated discharge of a firearm (720 ILCS 5/12-4.2(a)(1) (West 1996)). The court sentenced defendant to a total of 62 years' imprisonment.

¶ 5 This matter is now before this court for the fourth time. Other issues were addressed by this court in our decision on direct appeal in People v. Amaya, 321 Ill. App. 3d 923, 930, 931 (2001) (Amaya I) (this court vacated defendant's conviction of aggravated discharge of a firearm because it violated the one-act, one-crime doctrine and we affirmed defendant's convictions of first-degree murder and attempted murder). In the second appeal, we affirmed the trial court's denial of defendant's postconviction petition after an evidentiary hearing. People v. Amaya, No. 2-05-0706, (June 22, 2007) (unpublished order under Supreme Court Rule 23) (Amaya II) (we affirmed the trial court's denial of defendant's postconviction claim of ineffective assistance of trial counsel based on defense counsel's failure to present alibi witnesses at trial).

¶ 6 In the third appeal, we reversed the trial court's order denying defendant's motion for leave to file a successive postconviction petition and remanded the case for further proceedings. People v. Amaya, No. 2-07-0519, (July 2, 2009) (unpublished order under Supreme Court Rule 23) (AmayaIII). For this appeal, we will provide only those facts necessary for an understanding of the issues raised on appeal.

¶ 7 On October 29, 1997, two shootings occurred in Aurora at two separate locations within an hour and a half of each other. Defendant was charged for offenses related to both shootings in separate cases. The first shooting occurred at approximately 8:45 or 9 p.m. behind an apartment building at 309 East New York Street in Aurora near Lincoln Avenue. A man fired gunshots where a crowd had gathered to watch an argument between two women. Lambert, Matthews, and Harris were struck by the gunshots and Lambert died as a result. The second shooting occurred later that evening in Aurora at approximately 10:17 p.m.

¶ 8 About fifteen minutes later, defendant was arrested while riding in a white Chevy Celebrity with two other Hispanic men. At the time of the arrest defendant wore blue jeans a black T-shirt, a hooded coat and a black hooded sweatshirt. Defendant had a mustache, a sparse and closely trimmed beard and, perhaps, a soul patch. Romero Sandoval was also in the car and wore a dark hooded pullover and a black leather jacket. The third man in the car, George Gamboa, wore a Green Bay Packers jacket.

¶ 9 Immediately following his arrest, defendant was charged with attempt murder and other offenses relating to the second shooting in case number 97-CF-2326. Defendant was initially represented by the Kane County Public Defender's (KCPD) Office. However, on December 11, 1997, Kathleen Colton filed an appearance for defendant in case number 97-CF-2326 and the trial court granted KCPD leave to withdraw. Defendant's trial on the charges in case number 97-CF-2326 resulted in a hung jury in March 1998.

¶ 10 On March 12, 1998, the State charged defendant for the first shooting in case number 98- CF-535, the case now before us. On April 16, 1998, the trial court appointed the KCPD to represent defendant. David Kliment appeared in court on defendant's behalf. On April 30, 1998, Kliment filed a discovery motion.

¶ 11 On May 7, 1998, the State filed a discovery answer listing both case numbers, 98-CF-535 and 97-CF-2326, on the caption. Paragraph 15 of the State's discovery answer states:

"Attached is Aurora Police report number 97-24441 (Homicide investigation) labeled SAO-1 to SAO-177. Also enclosed is Aurora Police report number 97-24443 labeled SAO-1 to SAO-111 and JG-1 to JG-111."

¶ 12 Also on May 7, Kliment appeared in court on behalf of defendant on case number 98-CF-535 and an attorney from Colton's office appeared in court on behalf of defendant on case number 97-CF-2326. In open court, the assistant State's Attorney stated, "I tendered discovery to both parties today." Kliment then stated, "That's correct."

¶ 13 A jury trial in case number 98-CF-535 began on January 25, 1999. Tracy Johnson testified that at about at about 8:30 p.m. on the night of the shooting, he saw a white Chevy Celebrity sedan drive around the apartment building on New York Street and Lincoln Avenue. The car had three Hispanics in it who were making gang signs that Tracy recognized as being insulting to members of the Gangster Disciples. Shayla Johnson and Nicole Pearson testified that sometime before 9 p.m. on the night of the shooting, defendant was an occupant in a white four-door Celebrity that drove past the apartment building. Shayla and Pearson also testified that the occupants of the car shouted slogans such as "King Love" and "Kings Rule." Shayla, Pearson, Harris and Matthews testified thatsometime before 9 p.m. they were watching an argument between two or three women outside of the apartment building. There was a crowd of about 15 to 20 people gathered to watch the argument.

¶ 14 Shayla also testified that she was at the apartment building watching the argument when she saw a "Hispanic" man "walk up from the Lincoln side." He was wearing black or navy clothing. The man moved a girl out of the way and "started shooting." Shayla testified that she saw the shooter's face. Although the lighting was dim, Shayla recognized the shooter from her previous contacts with him. In the courtroom Shayla identified defendant as the shooter. She testified that she had seen the defendant five or six times before the night of the shooting with friends around the neighborhood. Shayla also testified that she had identified defendant as the shooter in a police lineup.

¶ 15 Pearson testified that she was involved in an argument with some girls outside the apartment building on New York Street. After the argument ended, a "Mexican man" approached the crowd from Lincoln and "just started shooting." The shooter wore a black hoodie, black jacket and a black hat. He looked like he was in his teens. Pearson testified that she had a good look at the shooter's face. In the courtroom Pearson identified defendant as the shooter. Pearson testified that she saw defendant before the night of the shooting near a local restaurant. Pearson also testified that she had identified defendant as the shooter in a police lineup.

¶ 16 Harris, one of the surviving victims, testified that, as she went outside of her apartment to throw away a diaper, she stopped to watch an argument between two girls. A "Mexican" or "Spanish" man came into the area from the Lincoln side of the apartment. The man was about five-feet-six inches tall, in his late teens or early twenties and he was wearing a hoodie covering his head and a jacket. It was dark outside and not very bright where the shooting occurred. Harris testifiedthat she heard two gunshots and realized that she was shot. She went back into her apartment and then to the hospital.

¶ 17 Matthews, the other surviving victim, testified that, as he was watching some girls argue outside the apartment building, a "Hispanic" or "Mexican" man came into the crowd of onlookers from the Lincoln Street side of the building. The man then crept up behind him and shot him in the stomach. The shooter wore all black, including a black hoodie covering his head. The shooter was about five-foot-eight inches tall. Matthews was taken to the hospital.

¶ 18 William McCallister testified that, as he was watching the women argue, he saw a "Hispanic" man cross New York Street and stand behind him. The man was five-feet-ten or -eleven inches tall, "sort of thin maybe, maybe a light goatee a little bit, with a [sic] dark hooded clothing on." McCallister did not see whether the man had gun. After about five to eight minutes, McCallister heard gunshots from the area where the girls were arguing and McCallister ran. McCallister did not see the man shoot anyone, did not see the man walk toward the area where the argument was occurring, and did not see where the man went after the shooting.

¶ 19 Tracy also testified that he stayed in the same place after he saw the three Hispanic men in the white Chevy Celebrity making gang...