People v. Almendarez
| Decision Date | 15 March 2013 |
| Docket Number | No. 1-10-0306,1-10-0306 |
| Citation | 2013 IL App (1st) 100306 |
| Parties | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ARTHUR ALMENDAREZ, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
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 Cook County.
¶ 1 Held: The circuit court erred in granting the State's motion to reconsider the denial of its motion to dismiss defendant's postconviction petition where the original trial judge denied the State's motion to dismiss and ordered a third-stage evidentiary hearing and that ruling was not clearly erroneous.
¶ 2 Following a jury trial, defendant Arthur Almendarez was convicted of first degree murder and aggravated arson. He was sentenced to natural life imprisonment. This court affirmed that conviction on direct appeal. See People v. Almendarez, 266 Ill. App. 3d 639 (1994). Defendant subsequently filed a petition seeking relief under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2000)). After counsel was appointed to represent him, defendantfiled three supplemental petitions. The trial court denied the State's motion to dismiss and granted defendant a third-stage evidentiary hearing on his claims. However, the judge who granted the evidentiary hearing was transferred to another division before the hearing took place and the case was assigned to a new judge. That judge granted the State's motion to reconsider the denial of its motion to dismiss and ultimately granted the motion to dismiss. On appeal, defendant contends that the original ruling granting an evidentiary hearing was not clearly erroneous and that the trial court erred in granting the motion to reconsider that ruling. Defendant also contends that the court erred in dismissing his claim of actual innocence because he provided newly discovered evidence establishing that he did not commit the crimes. For the reasons that follow, we reverse.
¶ 3 On September 21, 1986, at approximately 4 a.m. there was a fire in a home on 24th Place in Chicago, Illinois. The fire resulted in the death of brothers Julio and Guadalupe Martinez. The police interviewed Jose Ramirez, who said that before the fire started he was in an alley near the Martinez home with friends Rene Rodriguez and Frank Partida. Rodriguez and Ramirez were admittedly drunk and were being helped home by Partida, who had coached many of the young men in the neighborhood in baseball and who was on his way home from work. Ramirez told the detectives that he saw John Galvan and Michael Almendarez (Michael), defendant's brother, walking with two other men down the alley behind the Martinez residence less than a minute before the fire began. The police interviewed Michael, who said that he heard Galvan and Francisco Nanez admit that they were responsible for the fire. After gathering those accounts, police questioned Galvan, who according to the police admitted to setting the fire with defendant and Nanez because they thought members of a rival gang lived in the house. Galvan stated that defendant and Nanez purchased gasoline and Nanez threw a bottle filled with gasoline at the house, after which Galvan threw a lit cigarette to ignite the fire.
¶ 4 The police arrested defendant based upon Galvan's statement. Detectives JamesHanrahan and Vic Switski interviewed defendant, who initially denied involvement in the crime but later gave a handwritten statement indicating he was with Nanez and Galvan on the night of the fire. According to defendant's statement, Galvan said he wanted to "go over and burn" a house on 24th Place to retaliate for an earlier shooting in which Galvan was targeted. Galvan asked defendant and Nanez to go with him to buy gasoline. The three went to a nearby service station, where Galvan held an empty container while defendant pumped gasoline into it. They drove back to 2603 W. 24th Place, where they walked to the alley and stopped by the garage about 20 feet away from that address. Defendant then waited while Nanez and Galvan walked around the garage and returned, telling him to run. Defendant said Nanez and Galvan told him they started the fire by throwing a bottle of gasoline at the house and lighting the liquid with a cigarette.
¶ 5 On September 13, 1988, defendant filed a motion to suppress his statement to police, asserting he was interrogated at the police station by four detectives, including Detectives Switski and Hanrahan, and an assistant State's Attorney. The motion stated that while defendant was in police custody, "he was kicked in the groin area and repeatedly struck in the back of the head" and was "told repeatedly that he was at the scene of the crime." The motion stated that defendant sought to suppress his statements because they were "obtained as a result of psychological and mental coercion." At a hearing on defendant's motion, both detectives testified that no physical abuse occurred and no promises were made to defendant to persuade him to give his written statement. The trial court denied defendant's motion to suppress.
¶ 6 In 1990, defendant and Nanez were tried simultaneously by separate juries.1 At defendant's trial, Socco Flores, a neighbor of the Martinez family, testified that from her kitchen window she saw someone throw a bottle with a handkerchief stuffed in it at the Martinez houseand that immediately thereafter she saw a fire erupt on the house's porch. Flores could not see the face of the person who threw the bottle and she was unable to identify anyone in a lineup at the police station. The parties stipulated that if called to testify, a detective would state that Flores told him that she saw three Hispanic men standing at the rear of the building that was on fire and that Flores picked Isaac Galvan out of a photo array, saying he resembled the person who threw something at the Martinez residence. Jose Ramirez testified that on the night of the fire he was out drinking with Rene Rodriguez and that on their way home they ran into Frank Partida in the alley by the Martinez residence. Ramirez saw four men walking down the alley at approximately 4 a.m. and Ramirez recognized two of the men as "Michael" and Galvan. He did not see the faces of the other two men. After the fire department arrived, Ramirez saw Isaac Galvan standing near the burning house.
¶ 7 Defendant was found guilty of two counts of first degree murder and aggravated arson. Nanez and Galvan were also convicted of the same offenses by their juries. All three defendants were sentenced to natural life imprisonment. The direct appeals of defendant and Nanez were consolidated, and this court affirmed their convictions and sentences. People v. Almendarez, 266 Ill. App. 3d 639 (1994). In a separate appeal, Galvan's conviction and sentence were affirmed. People v. Galvan, 244 Ill. App. 3d 298 (1993).
¶ 8 In March 2001, defendant filed a pro se postconviction petition claiming that his sentence of natural life imprisonment was unconstitutional and therefore void under Apprendi v. New Jersey, 530 U.S. 466 (2000). Galvan filed a similar petition and both cases were assigned to Judge Epstein, who appointed the same public defender to represent both defendants. On March 13, 2003, counsel for defendant filed a first supplemental postconviction petition, arguing that defendant's jury instructions and verdict forms were flawed because they did not include the necessary mental state.
¶ 9 In January 2004, the State filed a special motion to dismiss the petition based ontimeliness. Defendant's counsel filed a second supplemental petition in February 2004. The petition specifically asserted that defense counsel was ineffective in failing to present defendant's wife as an alibi witness, for failing to have defendant testify that his confession was the product of police abuse and coercion and for failing to interview Frank Partida and call him as an eyewitness to refute the testimony of the State's witnesses. The petition also described inconsistencies in the statements of defendant, Nanez and Galvan and asserted those differences should have been presented at trial "to support the contention that the statements were the products of police abuse." Finally, the petition alleged that the State had interviewed Partida but failed to turn over to defendant the notes from that interview, which would have been evidence of defendant's innocence.
¶ 10 Attached to the second supplemental petition were affidavits of defendant and Partida. Defendant's affidavit stated he had expected to testify at his trial and expected his attorneys to call his wife and Partida as witnesses. Defendant further stated that both his wife and Partida would have testified on defendant's behalf if they had been called as witnesses.
¶ 11 In Partida's affidavit, dated February 13, 2004, he stated that when he saw Ramirez and Rodriguez in the alley, Rodriguez was drunk and Ramirez and Rodriguez said that they had just smoked a joint laced with other drugs. Partida saw three kids walking into the alley but he did not recognize them. When he asked the others who they were, Rodriguez mumbled something and Ramirez said that he did not know. Partida further stated that he knew defendant and would have recognized him had he been in the alley that night. Partida stated he was questioned by police in May and June 1987 and told them he saw three men in the alley before the fire. Partida said he was shown photos of defendant and Galvan and told the police they "were not there the night of the fire." Partida was also told by an assistant State's Attorney that he would be subpoenaed to testify at trial but he never was and did not learn of the...
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