People v. Smith
| Decision Date | 30 June 2021 |
| Docket Number | 1-18-1728 |
| Citation | 2021 IL App (1st) 181728,186 N.E.3d 415,452 Ill.Dec. 691 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gregory SMITH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
James E. Chadd, Douglas R. Hoff, and David T. Harris, of State Appellate Defender's Office, of Chicago, for appellant.
Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Tasha-Marie Kelly, and Janet C. Mahoney, Assistant State's Attorneys, of counsel), for the People.
¶ 1 Defendant, Gregory Smith, was convicted of two counts of attempted first degree murder and two counts of aggravated battery with a firearm. Defendant was found guilty of shooting two individuals and was sentenced to 21 years in prison. One of the shooting victims testified at trial that defendant was the shooter. The other victim did not testify.
¶ 2 The victim that did not testify at trial came forward years later and submitted an affidavit swearing that defendant was not the shooter. In his affidavit, the victim avers that he was speaking with defendant just before the shooting when someone other than defendant shot him. The victim further avers that he told the detectives investigating the shooting that defendant was not the shooter and that he only recently learned defendant was convicted. The victim states that he was unaware of defendant's trial and that he would have testified that defendant was not the person who shot him if he had known about the trial.
¶ 3 Defendant filed a postconviction petition asserting a claim of actual innocence. Defendant attached the victim's affidavit to his postconviction petition. In his petition, defendant states that the victim's affidavit "is new evidence which would have changed the result of [defendant's] trial." The trial court dismissed defendant's postconviction petition at the second stage. Defendant now appeals the dismissal of his postconviction petition. We conclude that defendant has made the requisite showing to have his petition advanced to the third stage of postconviction proceedings and, accordingly, we reverse. Defendant is entitled to an evidentiary hearing on his postconviction claims, so we remand the case for further proceedings.
¶ 5 On June 30, 2006, Cruse Caldwell and Maurice McDonald were walking south on South Ingleside Avenue from 52nd Street toward 53rd Street. McDonald stopped to talk to someone, and Caldwell continued walking. On the other side of the street and traveling in the opposite direction, Caldwell saw a boy walking alongside another young male who was on a bike. After Caldwell and the two individuals on the other side of the street had passed each other, Caldwell looked back and saw the boy crossing the street behind him near the area where McDonald had stopped to talk to someone. The boy pointed a gun at McDonald and shot at him. Caldwell began to run in the same direction he was already traveling, south, away from the shooter. Caldwell was also shot.
¶ 6 While Caldwell was being treated in an ambulance, he lost consciousness. Caldwell fell into a coma and did not regain consciousness for more than a month after the shooting. Caldwell identified defendant as the shooter during the trial. Caldwell testified that he was never asked to view a photo array or a lineup at any time prior to trial, so the first time he had an opportunity to identify who shot him was at trial.
¶ 7 Eddie Mastin, a retired Cook County Sheriff's officer, was sitting on a bench in the area of the shooting waiting to meet a friend. Mastin saw McDonald walk past him. When McDonald was halfway up the block, Mastin heard gunshots. Mastin saw a man on a bicycle and then saw another man jump on the back of the same bike. The person who jumped on the back of the bike had something in his hand that he put into his pocket and that individual told the person on the front of the bike to "go."
¶ 8 After hearing the gunshots and seeing the suspicious individuals flee, Mastin walked down the street to see what happened. Mastin found McDonald on the ground with a gunshot wound. Mastin did not see the shooting occur, but he saw who he believed to be the perpetrators from about a half block away. A month after the shooting, detectives showed Mastin a photo array and Mastin identified defendant as the person that jumped onto the back of the bike and who he believed to be the shooter. Mastin also identified defendant in a physical lineup.
¶ 9 Officer John Thornton testified that he originally named two other individuals, Jonathan and Joshua McClellan, as suspects in this shooting. Thornton testified that he went to the McClellans’ house and saw them in front of the residence. When the McClellans saw Officer Thornton, they fled into the residence. Jonathan jumped out of a window and escaped. Officer Thornton caught Joshua. A gunshot residue test was administered to Joshua, and it was negative. Joshua was then released and was no longer considered a suspect. Mastin identified a photo of Jonathan as the person riding the bike that the shooter jumped onto after the shooting.
¶ 10 Detective John Foster testified that he did not know McDonald's whereabouts at the time of the trial, but Foster testified that he had been looking for McDonald for at least 30 to 45 days leading up to the trial. The State planned to call McDonald as a witness, but because McDonald could not be located, the State went forward with Caldwell and Mastin as the occurrence witnesses.
¶ 11 After a trial, a jury found defendant guilty of two counts of attempted murder and two counts of aggravated battery with a firearm. The trial court sentenced defendant to 21 years in prison. Defendant filed an appeal of his conviction and his sentence. We affirmed. See People v. Smith , No. 1-09-2256, 2011 WL 9717461 (2011) (unpublished order under Illinois Supreme Court Rule 23 ).
¶ 12 Defendant filed a pro se postconviction petition and then subsequently filed a supplemental postconviction petition with the assistance of counsel. Attached to defendant's supplemental postconviction petition is an affidavit from McDonald. In his affidavit, McDonald avers that he was shot on June 30, 2006 on South Ingleside Avenue. McDonald avers that he viewed a lineup after the shooting and identified defendant in that lineup as "the last person I spoke to before the shooting." McDonald swears that he "made it clear to the detectives, Gregory Smith was not the shooter." McDonald states that he was not in town when defendant was tried for the shooting and that he only learned that defendant was convicted years after the trial. McDonald avers that he would have testified for defendant had he known about the trial. McDonald reiterates in his affidavit that "Gregory Smith did not shoot me or Cruse Caldwell."
¶ 13 The trial court dismissed defendant's postconviction petition at the second stage. In addressing whether McDonald's affidavit constituted newly discovered evidence, the trial court explained that if McDonald told the officers that defendant was not the shooter, "presumably the State disclosed this to the defense to comply with its obligations under Brady ." See Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). The trial court also found that "the petition and affidavit do not explain why McDonald was unavailable to [defendant] at trial or why [defendant] only obtained an affidavit from [McDonald] nearly seven years after." The trial court concluded that McDonald's statement "could have been and likely was discovered before trial."
¶ 14 As to the merit of defendant's actual innocence claim, the trial court stated that even if McDonald's affidavit was considered newly discovered evidence, it "does not convey a trustworthy eyewitness account." The trial court found the affidavit untrustworthy on the basis that it is "noticeably scant on details and conclusory" and because "McDonald does not say who did shoot him and Caldwell if [defendant] didn't." The trial court stated that "presumably" McDonald would know and be able to identify the shooter by name or description if defendant was not the shooter. The trial court found that, even if the statements in the affidavit were accepted and defendant was not the shooter, defendant might have acted in concert with the shooter. Finally, the trial court noted that McDonald did not explain in his affidavit the nature of the conversation that he was having with defendant when he was shot, and the court found that "[i]f it was unfriendly, that would further implicate defendant's involvement."
¶ 16 This appeal concerns the trial court's dismissal of a postconviction petition at the second stage of proceedings under the postconviction Hearing Act (Act) ( 725 ILCS 5/122–1 et seq. (West 2018)). The Act provides a criminal defendant the right to challenge his conviction by filing a petition in the circuit court. Id. § 122–1. The Act sets forth a process by which a defendant can assert that, in the proceedings that resulted in his conviction, there was a substantial denial of his federal or state constitutional rights. People v. Hodges , 234 Ill. 2d 1, 9, 332 Ill.Dec. 318, 912 N.E.2d 1204 (2009).
¶ 17 The Act provides for a three-stage process for adjudicating postconviction petitions. People v. Harris, 224 Ill. 2d 115, 125, 308 Ill.Dec. 757, 862 N.E.2d 960 (2007). At the first stage, the circuit court independently assesses the merit of the petition and may dismiss the petition if it is frivolous or patently without merit. 725 ILCS 5/122–2.1 (West 2018). At the second stage, the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. People v. Edwards , 197 Ill. 2d 239, 246, 258 Ill.Dec. 753, 757 N.E.2d 442 (2001).
¶ 18 The petition in this case contains a claim of actual innocence. At the...
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