People v. Gonzalez

2016 IL App (1st) 141660

70 N.E.3d 695

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

v.Tony GONZALEZ, Defendant-Appellant.

No. 1-14-1660

Appellate Court of Illinois, First District, SECOND DIVISION.

December 27, 2016

Rehearing Denied January 25, 2017

Bonjean Law Group, PLLC, of Brooklyn, New York (Jennifer Bonjean, of counsel), for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Mary P. Needham, and Clare Wesolik Connolly, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Petitioner Tony Gonzalez appeals from the trial court's second-stage dismissal of his amended petition for postconviction relief brought pursuant to the Post–Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq . (West 2010)). Gonzalez asks this court to reverse the dismissal of his amended postconviction petition asserting claims of actual innocence and a Brady violation and requesting remand for a third-stage evidentiary hearing.

¶ 2 BACKGROUND

¶ 3 Following a 1999 jury trial, Gonzalez was convicted of one count of first degree murder and two counts of attempted murder. Before trial, petitioner moved to suppress the identification testimony of two State witnesses, Luis Marrero and Yesenia Rodriguez, asserting that the lineup composition was suggestive. The trial court denied the motion. On appeal, this court reversed Gonzalez's convictions and remanded for a new trial based on the submission of an erroneous jury instruction regarding the evaluation of eyewitness identification testimony. People v. Gonzalez , 326 Ill.App.3d 629, 260 Ill.Dec. 354, 761 N.E.2d 198 (2001).

¶ 4 The following is a summary of the evidence outlined in our order affirming Gonzalez's conviction following his 2003 trial. People v. Gonzalez , No. 1–03–1286, 363 Ill.App.3d 1195, 334 Ill.Dec. 809, 917 N.E.2d 635 (2006) (unpublished order under Supreme Court Rule 23 ). On July 23, 1998, Marrero, Hector Rivera, and Waldemar Nieves spent the evening drinking at a bar in the Humboldt Park neighborhood in Chicago. In the early morning hours of July 24, they left the bar and went to Nieves' house a block away. Nieves went to bed but Marrero and Rivera stayed with Nieves' 15-year-old sister, Rodriguez, who had been dating Marrero for two months, and Illuminata Nieves, Rodriguez's mother. Marrero left the apartment twice to buy more alcohol. Rodriguez and Marrero left the apartment at 2 a.m., arguing about Marrero's excessive alcohol consumption. They were standing at the corner of the apartment building when a man with a gun came out of the alley and shot at them, hitting Marrero twice.

¶ 5 Marrero testified that when he and Rodriguez were arguing in the alley, he was facing Rodriguez and had his back to the gunman, who shouted "Jiver killer." Marrero turned around and faced the gunman who had a t-shirt on the top of his head. When Marrero was shot, he fell to the ground, facing the shooter, and was shot a second time. The man ran into the apartment building.

¶ 6 Inside the apartment, the gunman shot Rivera and Illuminata, then returned to the alley and shot Marrero a third time in the back as he lay on the ground. Marrero testified this gave him another opportunity to see the shooter's face. He then pointed the gun at Rodriguez but she begged him not to shoot. He struck Rodriguez in the head with the butt of his gun. Rivera later died from his injuries.

¶ 7 A couple of days after the shooting, Detective Reynaldo Guevara visited Marrero at the hospital and showed him a photographic array of six pictures of Hispanic men. Gonzalez's picture was the only one with numbers visible underneath his face and a white background. The other five pictures had dark backgrounds and no numbers visible. Marrero identified Gonzalez as the gunman. Marrero testified that he told police the gunman had a "spot" by his neck after he saw the photo array. He also told the officers that the shooter had a gold tooth. On cross-examination, Marrero denied that the arrest placard under petitioner's photo or the white background influenced his selection of petitioner's photo. About two weeks later, Marrero identified Gonzalez in a police lineup. Marrero testified he had seen Gonzalez in the neighborhood but did not know his name or if he belonged to a gang. Marrero stated no one in Nieves' apartment on the night of the shooting, including himself, was affiliated with a gang. The neighborhood store sold shiny wraps used to cover a tooth to resemble a gold tooth.

¶ 8 Rodriguez gave an account of the shooting that was consistent with Marrero's version including that the gunman had shouted "Jiver killer." She stated that police who responded to the scene interviewed her in Spanish. She told police the shooter was a male Hispanic and denied telling the police the shooter was a "black Hispanic" or that the shooter had obscured his face. She did not notice that the shooter had a gold tooth or a birthmark.

¶ 9 The parties stipulated that two hours after the shooting Marrero's blood alcohol level was 88 milligrams per deciliter; a normal range is less than 10 milligrams per deciliter.

¶ 10 Detective Guevara, who also testified at Gonzalez's first trial, stated he was a gang crimes specialist assigned to a violent crime unit. He stated the Latin Jivers and the Spanish Cobras were rival gangs in the area where the shooting occurred. The day after the shooting, Guevara interviewed Rodriguez at her apartment. She told him that the shooter had a white t-shirt tied around his head that did not conceal his face. Rodriguez also told him that the gunman had shouted "Jiver killer." Knowing the two gangs were at war, Guevara brought Rodriguez to the police station and showed her a book of photographs of members of the Spanish Cobras gang. She identified Gonzalez's photograph on page 36 of the 37-page Spanish Cobras book.

¶ 11 Guevara interviewed Marrero while he was in the hospital and showed him an array of about six photos from which Marrero selected Gonzalez as the gunman. Guevara stated Marrero told him the shooter had a birthmark, but Guevara did not include this statement in his police report.

¶ 12 Gonzalez was arrested two weeks later. Guevara arranged a lineup where Rodriguez and Marrero separately identified Gonzalez. Guevara testified Rodriguez and Marrero were together for about ten minutes before looking at the lineup but did not interact during their separate viewings of the lineup. Guevara admitted this was not good police procedure, although he did not "see anything wrong with that." Gonzalez was the only individual who was in the lineup whose picture was in the photographic array.

¶ 13 For the defense, a dentist testified she reviewed Gonzalez's dental records and examined his mouth; he had not had any front teeth prepared for a crown. People v. Gonzalez , 2011 IL App (1st) 093016–U, ¶ 9, 2011 WL 10065514.

¶ 14 The jury convicted Gonzalez of first degree murder of Rivera and attempted murder of Marrero and Illuminata. He was sentenced to consecutive terms of 30 years' incarceration for murder and six years' incarceration on each of the attempt murder convictions, for a total of 42 years.

¶ 15 On direct review, this court affirmed. See People v. Gonzalez , No. 1–03–1286, 363 Ill.App.3d 1195, 334 Ill.Dec. 809, 917 N.E.2d 635 (2006) (unpublished order under Supreme Court Rule 23 ). In rejecting petitioner's argument that the evidence was legally insufficient to sustain his conviction, we found Marrero and Rodriguez "confidently and independently" identified petitioner one to two days after the shooting. Each made multiple identifications of petitioner after having "multiple opportunities to observe the face of the shooter from just a few feet away," and gave a description of the shooter that described the petitioner. Although there were differences, "their testimonies were corroborative in several ways." We further noted that defense counsel "made sure the jury was aware of the discrepancies between the eyewitnesses' testimonies and various police reports, the purported suggestiveness of the photographic and lineup identifications, and the fact Marrero had been drinking before the shooting." Finally, we concluded that "given the fact that Rodriguez reliably testified that Gonzalez was the shooter and that Marrero corroborated most of the details of her testimony, the evidence against petitioner was not closely balanced." People v. Gonzalez , No. 1–03–1286, 363 Ill.App.3d 1195, 334 Ill.Dec. 809, 917 N.E.2d 635 (2006) (unpublished order under Supreme Court Rule 23 ).

¶ 16 On August 2, 2009, Gonzalez filed a pro se postconviction petition pursuant to section 122-1 of the Act (725 ILCS 5/122-1 et seq . (West 2010)) asserting his innocence. In the petition, Gonzalez stated that on June 26, 2009, he obtained newly discovered evidence rising to the level of actual innocence when he read a news report of a federal wrongful conviction case won by Juan Johnson on June 23, 2009, against the City of Chicago involving witness intimidation by Chicago police detective Reynaldo Guevara. Attached to Gonzalez's petition were a photocopy of the photographic lineup viewed by Marrero and a transcript of Guevara's testimony at his trial.

¶ 17 In October 2009, the trial court dismissed the petition at the first stage as frivolous and patently without merit. Gonzalez appealed, contending his petition stated the gist of a claim of actual innocence based on newly discovered evidence sufficient to survive the first stage of postconviction review. In July 2012, this court reversed the summary dismissal, finding that Gonzalez's postconviction petition should proceed to the second stage of review because his claim of actual innocence was "not based on a fanciful factual allegation or an indisputably meritless legal theory." Gonzalez , 2011 IL App (1st) 093016–U, ¶ 19, 2011 WL 10065514.

¶ 18 Through counsel, Gonzalez filed an ...