People v. Harvell

1

2024 IL App (4th) 230152-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MARKUS HARVELL, Defendant-Appellant.

No. 4-23-0152

Court of Appeals of Illinois, Fourth District

January 23, 2024

This Order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Sangamon County No. 01CF775 Honorable Raylene D. Grischow, Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Presiding Justice Turner and Justice Steigmann concurred in the judgment.

ORDER

KNECHT, JUSTICE

¶ 1 Held: The appellate court reversed and remanded for further proceedings, concluding defendant set forth a colorable claim of actual innocence.

¶ 2 Defendant, Markus Harvell, appeals from the trial court's judgment denying him leave to file a successive postconviction petition. On appeal, defendant argues this court should reverse and remand for further proceedings because he sufficiently set forth a claim of actual innocence based upon newly discovered evidence. For the reasons that follow, we reverse and remand for further proceedings.

¶ 3 I. BACKGROUND

¶ 4 On August 9, 2001, 13-year-old Antonio McGrone was shot and killed at the Brandon Court housing complex (Brandon Court) in Springfield. Defendant was later arrested and charged with the first degree murder of McGrone.

¶ 5 Shortly before the shooting that resulted in McGrone's death, another shooting occurred at Brandon Court. Edwin Jones was later arrested and charged with aggravated discharge of a firearm for that shooting, a charge which was later dismissed on motion of the State due to insufficient evidence. The record indicates defendant and his trial counsel were aware of the charge brought against Edwin Jones prior to defendant's trial.

¶ 6 A. Jury Trial

¶ 7 At defendant's trial, the evidence showed defendant Andre Jones, and Nicholas Gates went together to Brandon Court on the evening of August 9, 2001. While at Brandon Court, a man wearing a wig, glasses, and white gloves approached a group of people, including defendant. When the group laughed at the man, the man, who was referred to as the "wig man," responded by firing a gun at defendant. The group dispersed. McGrone, who was also nearby, fled.

¶ 8 Defendant was later seen with a gun in his hand. A witness who saw defendant with the gun testified defendant told that witness not to run. Another witness, who was fleeing with McGrone following the shooting, testified he looked up and saw defendant with a gun immediately after hearing a man yell" 'who's that?'" That witness and McGrone continued to flee. Witnesses heard additional shots. McGrone was struck in the back by a bullet.

¶ 9 The witness who was with McGrone continued to flee, later coming upon defendant in a vehicle. Defendant pointed a gun out the window of the vehicle, to which the witness said "[I]t wasn't me." The vehicle then sped away. Later that evening, the witness who was with McGrone identified defendant as the person who shot McGrone.

¶ 10 Gates and Andre Jones left Brandon Court in defendant's vehicle. Gates testified defendant stopped the vehicle and pointed a gun at a man standing on the street and said," '[I]s it you, is it you.'" The man put up his hands and responded," 'Ain't me ain't me,'" and defendant drove away. Days later, Gates, who had been arrested on unrelated charges, gave a statement to police indicating defendant possessed a .22-caliber revolver when they left Brandon Court and stated, "Man, I done f*** around and killed a kid." Andre Jones testified he did not see defendant with a gun, nor did he hear a second set of gunshots. In a statement to police days after the incident, when arrested on unrelated charges, Andre Jones indicated he observed defendant open and remove six empty shells from a gun's cylinder and heard him say "he needed to get rid of the clothes he was wearing" and "needed to get some money up together and get him a good lawyer."

¶ 11 At the scene of the initial shooting, police recovered five 9-millimeter cartridge cases, all of which were later revealed to have originated from the same handgun. A .22-caliber projectile was recovered from McGrone's body.

¶ 12 In closing, the State argued defendant hunted down the "wig man" after the "wig man" shot at him, a pursuit which resulted in defendant discharging a firearm and killing McGrone. Conversely, the defense argued the State had not proven defendant was the perpetrator. Neither the State nor the defense tendered second degree murder instructions.

¶ 13 After deliberations, the jury found defendant guilty of first degree murder. He was later sentenced to 50 years' imprisonment. Defendant appealed.

¶ 14 B. Direct Appeal

¶ 15 In July 2005, this court, following a remand for proper admonishments, affirmed defendant's conviction on direct appeal. People v. Harvell, 4-04-0871 (July 13, 2005) (unpublished order under Supreme Court Rule 23).

¶ 16 C. Initial Postconviction Petition

¶ 17 In June 2006, defendant filed a pro se postconviction petition. In his petition, defendant alleged (1) "he fired the shot that resulted in the unfortunate death of a young boy" and (2) there was "never any intent to kill Antonio McGrone." Defendant asserted, amongst other claims, ineffective assistance based upon trial counsel's failure to seek second degree murder instructions. The trial court summarily dismissed the petition, and defendant appealed.

¶ 18 In July 2008, this court reversed the summary dismissal of defendant's postconviction petition and remanded for further proceedings. People v. Harvell, 4-06-0741 (July 14, 2008) (unpublished order under Supreme Court Rule 23).

¶ 19 In April 2010, defendant, through appointed counsel, filed an amended postconviction petition.

¶ 20 In January 2011, the trial court conducted an evidentiary hearing on defendant's amended postconviction petition, where it heard from both defendant and his trial counsel. Based upon the evidence presented, the court denied the petition, and defendant appealed.

¶ 21 In October 2012, this court affirmed the denial of defendant's amended postconviction petition. People v. Harvell, 2012 IL App (4th) 110079-U.

¶ 22 D. Petition for Relief From Judgment

¶ 23 In June 2017, defendant filed a pro se petition for relief from judgment. In his petition, defendant alleged he had discovered through a freedom of information request new evidence material to his innocence, which had been wrongfully concealed from him. Defendant attached the new evidence, a redacted police statement, to his petition. The typed statement indicated it was taken on October 18, 2001, from an inmate in the Sangamon County jail. Identifying information not redacted from the statement included the inmate's date of birth, the charge for which the inmate was incarcerated, and the block where the inmate was housed. The inmate stated he had spoken with another inmate about a "shooting over at Brandon." That inmate disclosed "he got into a shootout" with another individual and the other individual was "the one who shot the boy in Brandon right after he and [redacted] was shooting at each other." Defendant alleged the redacted police statement set forth a confession by Edwin Jones to another inmate.

¶ 24 In July 2017, the trial court denied defendant's petition for relief from judgment, finding he "state[d] no new credible evidence to support his motion." Defendant appealed.

¶ 25 In February 2020, this court affirmed the denial of defendant's petition for relief from judgment, rejecting his argument that the denial was procedurally flawed. People v. Harvell, 2020 IL App (4th) 170582-U.

¶ 26 E. First Motion for Leave to File a Successive Postconviction Petition

¶ 27 In November 2017, defendant, while his appeal from the denial of his petition for relief from judgment was pending, filed a pro se motion for leave to file a successive postconviction petition. In his motion, defendant asserted a claim of actual innocence based upon newly discovered evidence. In support of his claim, defendant relied upon the redacted police statement.

¶ 28 In February 2018, the trial court denied defendant leave to file a successive postconviction petition, finding he presented "no new arguments from the previously denied petition."

¶ 29 In October 2018, defendant moved to file a late notice of appeal, which this court denied.

¶ 30 F. Second Motion for Leave to File a Successive Postconviction Petition

¶ 31 In October 2022, defendant filed a second pro se motion for leave to file a successive postconviction, which is the subject of this appeal. In his motion, defendant asserted a claim of actual innocence based upon newly discovered evidence. Specifically, defendant alleged he was actually innocent of the charge upon which he was convicted because he acted in self- defense. In support of his claim, defendant attached an affidavit of Andre Jones, the redacted police statement, and his own affidavit. As to his own affidavit, defendant averred his account of how the shootings transpired. With respect to the affidavit of Andre Jones, Andre Jones averred he was approached by Marcus Dale in late 2021. They spoke about defendant's imprisonment for the murder of McGrone. During that conversation, Dale stated, while he was incarcerated in 2001, Edwin Jones "told him everything regarding the shooting in Brandon Drive." Dale then told Andre Jones about the specifics of Edwin Jones's account. Amongst other things, Edwin Jones allegedly told Dale "that he then saw [defendant] trying to climb a gate that enclosed Brandon Drive so he raised his gun to fire shots towards [defendant], but [defendant] saw him and returned fire back...