People v. Velasco

2018 IL App (1st) 161683

127 N.E.3d 53

430 Ill.Dec. 817

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

v.Jose VELASCO, Defendant–Appellant.

No. 1–16–1683

Appellate Court of Illinois, First District, FIFTH DIVISION.

Opinion filed: June 15, 2018

Bluhm Legal Clinic of Northwestern Pritzker School of Law (Megan G. Crane, Laura H. Nirider, and Steven A. Drizin, of counsel, and Courtney Cronin, Kathryn Hogg, and Marco Minichiello, law students), and Valorem Law Group (Stuart Chanen, of counsel), both of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg and Iris G. Ferosie, Assistant State’s Attorneys, of counsel), for the People.

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

¶ 1 A jury convicted defendant, Jose Velasco, of first degree murder, and he was sentenced to 45 years' imprisonment. Defendant subsequently filed an amended postconviction petition, alleging actual innocence and ineffective assistance of trial counsel. The postconviction court entered two orders: (1) a July 1, 2014, order, dismissing his actual innocence claim at the second stage without an evidentiary hearing and (2) a May 16, 2016, order denying his ineffective assistance of counsel claim after a third-stage hearing. Defendant appeals the July 1, 2014, and May 16, 2016, orders. We reverse the second-stage dismissal of defendant's actual innocence claim and remand for a third-stage hearing. We affirm the third-stage denial of defendant's ineffective assistance claim.

¶ 2 Defendant was charged with the first degree murder of the 15–year–old victim, Juan Luna (the victim). At the jury trial, Andrea Thomas and Michelle Scott testified that, at about 2:30 p.m. on August 7, 1999, they drove Ms. Thomas's boyfriend, Jevon Ollins, to his job at Tito's Tacos, located at 1852 S. Blue Island Avenue in Chicago. Ms. Thomas and Ms. Scott saw defendant standing outside the restaurant. Defendant asked Ms. Scott whether she and Ms. Thomas wanted to buy some cocaine, and Ms. Scott declined. Ms. Scott testified she commented on defendant's hair, the style of which (short except in the back) she found unusual. Ms. Thomas and Ms. Scott eventually left the scene.

¶ 3 Meanwhile, the victim and his friend, Danny Garcia, were at the home of the victim's sister, Veronica Luna, and her husband, Javier Sepulveda. Ms. Luna testified that her home at 1916 S. Loomis Street was in the territory of a gang known as La Raza. However, the nearby intersection of 18th and Loomis Streets is in the territory of a gang known as the Ambrose, a rival of La Raza. Defendant was a member of La Raza, but the victim was not. Ms. Luna and Mr. Sepulveda testified that defendant and the victim were good friends. Mr. Sepulveda also testified that, while it was not safe for members of one gang to go into the territory of a rival gang, Tito's Tacos was considered a neutral zone.

¶ 4 At approximately 2:30 a.m. on August 8, 1999, the victim, Mr. Sepulveda, and Mr. Garcia decided to walk one block to Tito's Tacos to pick up some food and drinks. Ms. Luna testified that she waited outside for the three of them to return. Ms. Luna was concerned for the victim's safety because an Ambrose "chief" named Willie Perez was pressing charges against the victim for breaking Willie's car windows.¹ Mr. Sepulveda and Mr. Garcia went inside Tito's Tacos, while the victim waited outside.

¶ 5 During this same time period, Ms. Thomas and Ms. Scott returned to Tito's Tacos to pick up Mr. Ollins at the end of his shift. The area was lit by street lights and lights from Tito's Tacos. Ms. Scott testified that, after she exited the car, she saw defendant approach the victim and they argued. Ms. Scott and Ms. Thomas then saw defendant reach to his side, pull out a gun, and shoot the victim. The victim ran, but collapsed across the street, and subsequently died. Defendant ran away. Ms. Luna testified that she heard the shot and saw a man she could not identify running toward 18th and Loomis Streets (Ambrose territory).

¶ 6 Ms. Thomas testified that the police arrived almost instantly. Mr. Ollins closed up Tito's Tacos and left with Ms. Scott and Ms. Thomas, without speaking to the police.

¶ 7 Ms. Scott testified that, later that day, Mr. Ollins told her that the police wanted to speak with her. Ms. Scott went to the police station, where she gave two detectives a description of the shooter based on his clothing, haircut, bad acne, and a teardrop tattoo under his right eye. The police showed Ms. Scott a series of photographs, from which she identified defendant. Ms. Scott also returned to the police station that evening, where she identified defendant in a lineup. Ms. Scott testified to prior convictions for forgery and possession of cannabis with intent to deliver.

¶ 8 Ms. Thomas testified that, three days after the shooting, she also identified defendant from a photo array and subsequently identified him in a lineup. Ms. Thomas testified that she was placed on probation for a drug possession charge, but she denied receiving any favors for her testimony in this case.

¶ 9 Following all the evidence, the jury convicted defendant of the first degree murder of the victim, and he was sentenced to 45 years' imprisonment. On direct appeal, this court affirmed defendant's conviction. See People v. Velasco , No. 1–02–1793, 347 Ill.App.3d 1110, 310 Ill.Dec. 807, 867 N.E.2d 120 (2003) (unpublished order under Illinois Supreme Court Rule 23 ).

¶ 10 On January 18, 2013, defendant filed an amended postconviction petition, claiming actual innocence based on newly discovered evidence and ineffective assistance of trial counsel based on counsel's failure to call alibi witnesses.

¶ 11 I. Actual Innocence

¶ 12 In support of his claim of actual innocence, defendant attached (1) the unnotarized statement of Andrea Thomas, (2) the unnotarized statement of Claudia Cruz, (3) the affidavit of Jevon Ollins, (4) the affidavit of Jonathan Meskauskas, (5) the affidavit of Lynda Tricarico, (6) the affidavit of Max Hernandez, and (7) the affidavit of Erica Vargas.

¶ 13 A. The Unnotarized Statements

¶ 14 1. Andrea Thomas

¶ 15 In her statement, dated April 19, 2010, Andrea Thomas stated that both she and Ms. Scott were drunk and high when they dropped off Mr. Ollins at Tito's Tacos on August 7, 1999. There were many Hispanic teenage boys standing outside Tito's Tacos, and most of them had the same "strange haircut" in which "their heads were shaved except for long tails in the back."

¶ 16 Ms. Thomas and Ms. Scott were still drunk and high when they drove back to Tito's Tacos several hours later to pick up Mr. Ollins. Ms. Thomas and Ms. Scott were having a conversation outside Tito's Tacos when they heard a gunshot. Ms. Thomas ducked down beneath the car's dashboard and yelled to Ms. Scott to get down. Ms. Thomas never got a clear look at the person who fired the gun, and she does not know whether defendant was the shooter.

¶ 17 After the shooting, Ms. Thomas initially avoided the police because she previously had been arrested for selling and possessing drugs and had missed a court date, and she believed there was a warrant out for her arrest. Mr. Ollins told her, though, that the State would "quash" her arrest if she would cooperate and identify the shooter. Ms. Thomas went to the police station, where the police took her to a room in which Ms. Scott was sitting, and they were left alone together. Ms. Scott had previously identified defendant's photograph, and she described the photograph so that Ms. Thomas would be able to identify the same person.

¶ 18 After speaking with Ms. Scott, the police questioned Ms. Thomas alone. Initially, Ms. Thomas told them that she had not seen the shooter, but the police told her she would be locked up and would "lose" her child if she did not cooperate. The police showed her some photographs, "indicated" to her the one she should pick, and she picked out the photograph of defendant. Ms. Thomas had "no idea whether the boy [she] selected was the actual shooter."

¶ 19 After the identification, Ms. Thomas's arrest warrant was quashed and she was allowed to go home with the understanding that she was being released in exchange for her cooperation and testimony against defendant. Ms. Thomas's charges were reduced to possession of a controlled substance, and she ultimately received one year of probation.

¶ 20 At defendant's trial, Ms. Thomas identified defendant as the shooter. Her testimony was untrue, but she felt that she had to identify defendant so as to avoid "more probation, prison time, or other negative consequences."

¶ 21 In 2010, someone from the Northwestern University Pritzker School of Law (Northwestern) met with her in prison and asked her about the shooting. She agreed to recant her statement because her trial testimony has "haunted [her] conscience for the last 10 years" and she wanted "to set the record straight."

¶ 22 2. Claudia Cruz

¶ 23 In her statement, dated November 30, 2007, Claudia Cruz stated that she was walking toward Tito's Tacos on the night of August 8, 1999, when she saw her cousin, Miguelito (Miguel) Perez, and another cousin, Arturo, walking in an alley. Ms. Cruz yelled: "Miguelito," and he looked in her direction. As she approached Tito's Tacos, Ms. Cruz saw Miguel and Arturo come from behind Church's Chicken toward the victim. Arturo brought his hands up from his waistband and he fired two shots at the victim. Ms. Cruz ran away and told her sister that "they just shot [the victim]." To avoid getting into trouble with her mother for being out late near Tito's Tacos, Ms. Cruz and her sister made up a story that they had been together the whole night.

¶ 24 Ms. Cruz was now coming forward to make this statement because she feels "bad" that defendant is locked up for a crime he did not commit.

¶ 25 B. The Affidavits

¶ 26 1. Jevon Ollins

¶ 27 In his affidavit dated June 19, 2007, Jevon Ollins attested that he was inside Tito's Tacos at the time of the...