People v. Evans

2017 IL App (1st) 143268

81 N.E.3d 534

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Shannon EVANS, Defendant-Appellant.

No. 1-14-3268

Appellate Court of Illinois, First District, SECOND DIVISION.

Filed June 6, 2017

Rehearing denied July 6, 2017

Michael J. Pelletier, Patricia Mysza, and Stephen Gentry, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Christine Cook, and Claire Wesolik Connolly, Assistant State's Attorneys, of counsel), for the People.

OPINION

JUSTICE MASON delivered the judgment of the court, with opinion.

¶ 1 Defendant Shannon Evans was convicted of first degree murder in the October 13, 2005, shooting death of Robert Duffy. He filed a postconviction petition asserting (1) actual innocence based on affidavits from two witnesses stating that Evans was not present when Duffy was shot and (2) ineffectiveness of trial counsel for failing to investigate witnesses who could have testified for Evans at trial. The trial court dismissed Evans's petition at the second stage of postconviction proceedings, finding that in light of the State's strong evidence of Evans's guilt, his "new" witnesses did not conclusively disprove the State's theory of the case nor was Evans prejudiced by the alleged mistakes of counsel. Evans now appeals. We agree with the trial court and affirm.

¶ 2 BACKGROUND

¶ 3 Because Evans purports to raise an actual innocence claim, it is necessary to set forth the trial testimony in some detail. Tina Mosley, Duffy's longtime girlfriend, testified that Duffy and Evans were friends and members of the Gangster Disciples street gang. They sold drugs together out of a house at 12210 South Parnell Avenue. One of their customers was Rashad Bethany, and Mosley frequently saw the three of them together.

¶ 4 The day after Duffy's death, Mosley met with Bethany and Evans. Evans had bloodshot eyes, was trembling, and appeared nervous. He told Mosley that he and Duffy had been conducting a drug deal at the Parnell house with members of another street gang. One of the other gang members pulled out a gun, and a fight ensued, during which Duffy was shot. Evans told Mosley he shot one of the other gang members and then fled to hide his gun. When he returned, he saw two bodies being placed in an ambulance. Mosley later learned that Duffy had been killed.

¶ 5 Eischa Toney testified that she lived about a block from the Parnell drug house. She had known Evans and Bethany since childhood. On the night of October 13, Evans, Bethany, and two other men known as Little Ricky and Peanut were drinking on her porch, as they often did. Shortly before Duffy was shot, all four left, heading in the direction of Parnell Avenue. Five to ten minutes later, Toney heard gunshots and saw the four men running away from Parnell Avenue, along with "everybody on the block." All of them ran in different directions.

¶ 6 Toney next saw Evans on the day of Duffy's funeral. Evans said that he was worried about being framed for Duffy's murder because the Parnell house was "his dope spot." He asked Toney whether she had heard anything about the shooting or if she knew people who were talking about it. Toney said she had not heard anything. A month or two later, when the four men returned to her home, Bethany bragged about robbing and shooting Duffy. Toney testified that she could not recall what, if anything, Evans said on that occasion. The State reminded Toney of her grand jury testimony, in which she stated that Evans admitted being "part of it" and also said that he helped to steal Duffy's money and drugs. Toney said, "I was asked those questions, and you say I answered that. Evidently, I answered that." After Toney's grand jury testimony, the State helped her relocate for her safety and paid her relocation expenses.

¶ 7 Patrick Fallie testified that he had known Evans since childhood. He claimed not to recall his whereabouts on the night of October 13, and he denied having any knowledge related to Duffy's murder. He was then impeached with his grand jury testimony, in which he testified that he was an eyewitness to the shooting and gave a detailed account of the murder.

¶ 8 In his grand jury testimony on April 12, 2006, Fallie stated that on the night of October 13, he was sitting in his car across the street from the Parnell house, waiting for two friends named Mike and Markina to purchase cigarettes from a neighboring house. As Fallie waited, he saw Duffy limp out of the front of the house, followed closely by Evans and another man. Both of the men following Duffy were holding handguns. Duffy turned to face Evans, holding his hands in front of his face as if to block a bullet and saying, "Don't shoot, don't shoot, it ain't worth it, don't kill me." Evans shot him four or five times, then picked up a bag that Duffy was carrying and ran away. Fallie told the grand jury that he did not tell this information to the police sooner because he was afraid for his life.

¶ 9 A forensic investigator with the Chicago police department testified that he recovered casings from two different caliber weapons at the Parnell house.

¶ 10 Evans's sole witness was Markina Polk, who testified that she witnessed the murder. Together with a friend she referred to as "Mike Mike," she went to the house next to the Parnell drug house to purchase cigarettes. Fallie, whom Polk knew, was sitting across the street in his car and waved to her. As Polk approached the cigarette house, she saw Duffy on the lawn of the house next door, arguing with two men whom she did not recognize, one of whom was armed. Polk did not see Evans on the scene. One of the men pushed Duffy, and the other man began shooting Duffy, at which point Polk ran into the cigarette house. She heard around five shots in total.

¶ 11 Some time later, Polk learned that Evans had been arrested for Duffy's murder. She attempted to contact authorities to tell them what she knew, but she did not pursue the matter because she was afraid of the real murderers. Additionally, Polk admitted that shortly before trial, Fallie asked her to deny seeing him at the scene of the murder.

¶ 12 Evans was found guilty of first degree murder with a firearm. He was sentenced to 45 years' imprisonment, plus a consecutive 20-year add-on for personally discharging a firearm. On direct appeal to this court, he argued that he was denied his right to a speedy trial, the trial court improperly admitted hearsay evidence, and the State failed to prove him guilty beyond a reasonable doubt. We affirmed his conviction in People v. Evans , 2011 IL App (1st) 091389-U, and his petition for leave to appeal to the Illinois Supreme Court was denied on November 30, 2011 ( People v. Evans , No. 113097, 356 Ill.Dec. 799, 962 N.E.2d 484 (Ill. Nov. 30, 2011) ).

¶ 13 Nine months later, on August 30, 2012, Evans filed his pro se postconviction petition. After Evans obtained counsel, his amended petition raised (1) an actual innocence claim and (2) an ineffective assistance of counsel claim based on trial counsel's alleged failure to investigate and present available evidence of Evans's innocence. The petition also raised various other claims that Evans does not pursue on appeal.

¶ 14 Evans's actual innocence claim is based upon the affidavits of Mike Miles and Tiara Murph. In Miles's affidavit, he stated that on the night of October 13, 2005, he drove Polk to the cigarette house. While he was waiting outside, he saw Duffy limping out of the house next door, being chased by two men. Miles recognized one of the men as "Gutta." He saw Gutta shoot Duffy in the head, and then the two men both shot Duffy three or four more times. Afterwards, the two men ran away; one of them made eye contact with Miles while running. Miles stated that he did not see Evans at any time during the incident. He never contacted the police because he feared for his life. Nevertheless, he said that he was willing to testify for Evans at an evidentiary hearing and would have testified for him if called at trial.

¶ 15 In Murph's affidavit, she stated that she was walking home when she observed two men with guns chasing Duffy out of the house next to the cigarette house. She heard shooting and ran. Because she was scared for her life, she told nobody about the incident except for her grandmother, who moved Murph to Indiana for her safety. A few years ago, Murph moved back to Chicago because she thought "enough time had passed that it would be okay," although she was still afraid. Four months ago, she learned that Evans had been convicted of Duffy's murder. She knew Evans from the neighborhood and knew that she did not see him on the day of the murder, so she decided to come forward to tell what she had witnessed.

¶ 16 Regarding his ineffective assistance of counsel claim, Evans argued that his trial counsel should have called Miles to testify on his behalf. He stated that counsel should have been aware of Miles's existence because both Fallie and Polk named "Mike" as a witness to the crime.

¶ 17 Evans also argued that trial counsel was ineffective for failing to investigate Hosea West as a potential exculpatory witness. In pretrial discovery, the State disclosed a police report detailing an interview with West on October 23, 2005. West told police that he was in the area of the shooting on the evening of the murder. He saw Bethany and spoke briefly with him; then Bethany left, accompanied by Little Ricky and Peanut. Later, West heard gunshots. He saw Little Ricky and Peanut running toward him from the direction of Parnell Avenue, followed by Bethany, who glared at him. West did not see Evans on that day. According to West, word on the street was that Bethany "set up" Duffy to be killed, but Evans did the actual shooting.

¶ 18 The State filed a motion to dismiss Evans's postconviction petition, which the circuit court granted on August 5, 2014. The court found that Evans's petition was untimely,...