People v. Ortiz

• Citation: 919 N.E.2d 941,235 Ill.2d 319
• Decision Date: 19 November 2009
• Docket Number: No. 107363.,107363.
• Parties: The PEOPLE of the State of Illinois, Appellant, v. Salvador ORTIZ, Appellee.
• Court: Supreme Court of Illinois

919 N.E.2d 941

235 Ill.2d 319

The PEOPLE of the State of Illinois, Appellant, v. Salvador ORTIZ, Appellee.

No. 107363.

Supreme Court of Illinois.

November 19, 2009.

Lisa Madigan, Attorney General, Springfield, Richard A. Devine and Anita Alvarez, State's Attorneys, Chicago (James E. Fitzgerald, Alan J. Spellberg, Michelle Katz, Tasha-Marie Kelly and Michele Grimaldi Stein, Assistant State's Attorneys, of counsel), for the People.

Douglas B. Sanders, Jenny A. Austin, Angela C. Vigil and Mark A. Oates, of Baker & McKenzie LLP, Chicago, for appellee.

Karen L. Daniel, Joshua A. Tepfer, Chicago, and John Christopher Bernard, Jeffrey Han, Amy Malinowski and Danya Resnick, law students, for amicus curiae Center on Wrongful Convictions.

OPINION

Justice BURKE delivered the judgment of the court, with opinion.

Defendant Salvador Ortiz was convicted of first degree murder after a bench trial and sentenced to 47 years in prison. On direct appeal, the appellate court affirmed defendant's conviction and sentence. People v. Ortiz, No. 1-94-2094, 281 Ill.App.3d 1131, 233 Ill.Dec. 771, 701 N.E.2d 836 (1996) (unpublished order under Supreme Court Rule 23). Defendant's first two postconviction petitions were summarily dismissed by the circuit court of Cook County. The third petition, at issue in this appeal, alleged actual innocence based on newly discovered eyewitness testimony. The trial court denied the third petition following an evidentiary hearing. The appellate court reversed the trial court's denial of the petition and remanded the cause for a new trial. 385 Ill.App.3d 1, 324 Ill.Dec. 715, 896 N.E.2d 791. On appeal to this court, the State contends: (1) that the appellate court erred in holding that a successive postconviction petition alleging actual innocence need not meet the cause-and-prejudice test; and (2) that the trial court's denial of defendant's third postconviction petition was not manifestly erroneous. For the reasons that follow, we affirm the decision of the appellate court and remand for a new trial.

BACKGROUND

The victim, Francisco Ramos, was shot and killed near Gill Park on Sheridan Road in Chicago on June 28, 1992. At defendant's trial, Christopher Estavia and Edwin Villariny testified as eyewitnesses for the State. Estavia testified that he was sitting on his car across the street from Gill Park when he saw Oscar Chacon and Edwin Gomez "false-flagging" Ramos by displaying rival gang signs in order to determine Ramos' gang affiliation. Estavia testified that Oscar, Gomez, and defendant were members of the Latin Eagles street gang; Estavia was not a member of a gang. When Ramos approached Oscar and Gomez, they began physically beating him. Estavia heard someone yell, "Eagle, Eagle." Approximately 8 to 10 persons, including defendant, began running from other areas of the park and joined in the beating. Estavia then left the area and did not witness anyone shoot Ramos.

At trial, Estavia admitted giving a written statement to police on August 22, 1992. In that statement, he said that he saw defendant pull a weapon from his body and fire it at Ramos. He then saw Oscar point a gun at Ramos. After that, Estavia fled the area.

Estavia further testified at trial that in August 1992, sometime after his statement to police, his car windows were shot out, and his wife was threatened at her workplace. The police later placed Estavia in protective custody in 1993 after he reported that an unknown person shot at him. Estavia admitted that on May 4, 1993, he gave a statement to people who worked for the defense, recanting his prior statement to police. On February 2, 1994, Estavia failed to appear in court, in violation of a subpoena, and a warrant was issued for his arrest.

On cross-examination, Estavia admitted that he testified in a deposition that he did not see defendant shoot Ramos. He also admitted on cross-examination that on the day of the incident, he was high on cocaine and had consumed six to eight beers.

At defendant's trial, Villariny testified that he was a former member of the Latin Eagles and knew defendant from the neighborhood. He denied being at Gill Park on June 28, 1992. He acknowledged giving a statement to police on August 24, 1992, but testified that he was beaten and threatened by police into giving a false statement. Villariny testified that, to his knowledge, defendant had nothing to do with the death of Ramos. Detective John Murray and Assistant State's Attorney Patrick McGuire both testified, denying Villariny's claims of coercion and brutality.

In his prior statement to police, Villariny said that he was at the park at around 9:45 p.m., that defendant and Oscar "false flagged" Ramos, beat him, and that several others joined in the beating. Defendant then fired a single shot at Ramos, who then ran away. Oscar chased after Ramos and shot him four more times. A third, unknown man on a bicycle followed Ramos and shot him a sixth time.

The forensic evidence introduced at trial showed that Ramos died as the result of multiple gunshot wounds. Ramos sustained six gunshot wounds, with no evidence of close-range firing. Five bullets were recovered from his body, including one .32-caliber and four .22-caliber bullets. The medical examiner testified that the pattern of wounds indicated that at least three bullets entered from the back and went through to the front of his body. Ramos also sustained multiple other injuries, including blunt trauma injuries consistent with being kicked in the face.

The defense called Arthur Dunlam, who testified that he was with defendant and a group of others in Gill Park on June 28, 1992. At around 9:45 p.m., they were drinking beer in the southwest part of the park when they heard sounds like shots or firecrackers. They then left the park when someone told them there had been a fight and the police were coming.

The trial judge found there was "little, if any believability" to Dunlam's testimony. He found that Estavia's and Villariny's recantations of their prior statements to police carried "little weight for believability." Furthermore, there was corroboration between the witnesses' prior statements under circumstances that were not a basis for fabrication, and the forensic and ballistics evidence corroborated those statements. The trial court found defendant guilty of first degree murder and sentenced him to 47 years in prison. Defendant's conviction and sentence were affirmed on direct appeal. People v. Ortiz, No. 1-94-2094, 281 Ill.App.3d 1131, 233 Ill.Dec. 771, 701 N.E.2d 836 (1996) (unpublished order under Supreme Court Rule 23).

In defendant's initial postconviction petition, he alleged actual innocence and ineffective assistance of counsel for failing to call three witnesses who would have supported his alibi defense. The trial court summarily dismissed the petition. The appellate court affirmed, holding that the witnesses were known to defendant at the time of trial and did not constitute newly discovered evidence. People v. Ortiz, No. 1-98-1311, 307 Ill.App.3d 1073, 260 Ill.Dec. 289, 760 N.E.2d 1062 (1999) (unpublished order under Supreme Court Rule 23). This court denied leave to appeal. People v. Ortiz, 187 Ill.2d 585, 244 Ill.Dec. 189, 724 N.E.2d 1273 (2000) (table).

In his second postconviction petition, defendant again claimed actual innocence based on affidavits from Victoria Kahn and Victor Ocasio. Kahn alleged in her affidavit that she witnessed the shooting and was unable to identify defendant as the shooter at a subsequent lineup. Ocasio alleged in his affidavit that on June 28, 1992, he was at a pay phone on the northwest corner of Sheridan Road and Fremont Street when he saw the victim running westbound on Sheridan. He then saw Oscar Chacon chasing the victim on a mountain bike. Oscar was wearing a black hooded sweatshirt and carrying a handgun. He got off the bike and shot four times at the victim. Ocasio then saw Efrain Chacon, Oscar's cousin, also wearing a hooded sweatshirt and riding a mountain bike. Efrain shot at the victim three times. Ocasio did not mention defendant in his affidavit. He stated that he did not come forward with the information sooner because he feared for his safety.

The trial court summarily dismissed the second petition, finding defendant's claims were barred by res judicata and were untimely, and that the affidavits did not constitute newly discovered evidence and were cumulative of the evidence at trial. The appellate court affirmed. People v. Ortiz, No. 1-01-0368, 337 Ill.App.3d 1159, 300 Ill.Dec. 255, 843 N.E.2d 513 (2003) (unpublished order under Supreme Court Rule 23). As to Ocasio's affidavit, the appellate court held that the evidence was cumulative because it only corroborated the testimony of Estavia and Villariny. It further held that the evidence did not exonerate defendant, since Ocasio did not witness the entire incident. This court denied leave to appeal. People v. Ortiz, 205 Ill.2d 625, 281 Ill.Dec. 90, 803 N.E.2d 494 (2003) (table).

Defendant filed his third pro se postconviction petition on February 17, 2004. His new postconviction counsel substituted a different petition on August 10, 2004. In the petition, defendant again claimed actual innocence based on affidavits from Sigfredo Hernandez, Daniel Huertas, and Victor Ocasio. Ocasio's affidavit was the same affidavit previously submitted as part of defendant's second postconviction petition. Hernandez and Huertas alleged that they saw Oscar, Efrain, and Miguel Renteria beating and kicking the victim in front of Gill Park, and that Oscar and Efrain then chased the victim on bicycles and shot the victim on Sheridan Road near Fremont Street. Both witnesses denied seeing defendant anywhere in the area.

Following a hearing, the trial court issued a written order finding that defendant was entitled to a third-stage evidentiary hearing regarding the testimony of Hernandez and Huertas, but that Ocasio's testimony was barred by ...