People v. Navarro , 2021 IL App (1st) 190483 ( 2021 )

2021 IL App (1st) 190483FIFTH DIVISION
MAY 28, 2021
No. 1-19-0483
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 05 CR 12045
)
MAURICIO NAVARRO, ) Honorable
) William G. Gamboney,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion.
Justices Hoffman and Rochford concurred in the judgment and opinion.
OPINION
¶1 Defendant-appellant Mauricio Navarro—convicted of first degree murder, attempted
murder, and aggravated discharge of a firearm—appeals the denial of leave to file his successive
postconviction petition. On appeal, the defendant argues that he established cause and prejudice
sufficient to require consideration of his successive postconviction petition alleging that trial
counsel was ineffective for failing to call an expert witness to testify about the reliability of
eyewitness identifications. For the reasons that follow, we affirm the judgment of the circuit court
of Cook County.
¶2 BACKGROUND
¶3 On March 15, 2005, the defendant shot and killed Israel Lucena and shot at Fernando
Escobedo near Diversey Avenue and Laramie Avenue in Chicago. 1 The evidence at trial revealed
1
The facts of this case were set forth in detail in our prior order (People v. Navarro, 389
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that two eyewitnesses identified the same person (not the defendant) as resembling the shooter in
a photo array, before later identifying the defendant as the shooter in a photo array and lineup.
Adam Garcia, who was with the defendant at the time of the shooting, also implicated the
defendant in the shooting. At trial, the defendant did not present any evidence. The jury ultimately
found the defendant guilty of first degree murder, attempted murder, and aggravated discharge of
a firearm. The defendant was sentenced to an aggregate term of 80 years’ imprisonment.
¶4 The defendant’s direct appeal was unsuccessful and his 2010 postconviction petition was
summarily dismissed. That dismissal was affirmed on appeal.
¶5 On August 27, 2018, the defendant sought leave to file a pro se successive postconviction
petition alleging that trial counsel was ineffective for failing to call an expert to testify regarding
the reliability of eyewitness identifications.
¶6 On January 18, 2019, the trial court denied the defendant leave to file his successive
petition in a written ruling. 2 The defendant appealed.
¶7 ANALYSIS
¶8 We note that we have jurisdiction to review this matter, as the defendant timely appealed.
Ill. S. Ct. R. 301 (eff. Feb. 1, 1994); Ill. S. Ct. R. 303 (eff. July 1, 2017).
¶9 The Post-Conviction Hearing Act (Act) allows a defendant who is imprisoned in a
penitentiary to challenge his conviction or sentence on the grounds that it was the result of a denial
Ill. App. 3d 1146 (table) (unpublished order under Illinois Supreme Court Rule 23)), and we repeat only
those necessary to resolve the issues on appeal.
2
On the same date, the court also denied the defendant’s pro se section 2-1401 petition for
relief from judgment filed in October 2018. The defendant appealed this denial in his notice of appeal, but
makes no argument for reversal in his brief. As such, it is forfeited. See Ill. S. Ct. R. 341(h)(7) (eff. May
25, 2018).
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of his constitutional rights. 725 ILCS 5/122-1 (West 2016). The Act ordinarily contemplates the
filing of a single postconviction petition (People v. Brown, 2017 IL App (1st) 150132, ¶ 35) and
explicitly states that “any claim of substantial denial of constitutional rights not raised in the
original or an amended petition is waived” (725 ILCS 5/122-3 (West 2016)). This is because
successive postconviction petitions “ ‘plague the finality of criminal litigation.’ ” Brown, 2017 IL
App (1st) 150132, ¶ 36 (quoting People v. Tenner, 206 Ill. 2d 381, 392 (2002)).
¶ 10 Because successive postconviction petitions are so disfavored, a defendant must obtain
leave of court prior to filing such a petition. 725 ILCS 5/122-1(f) (West 2018). And a court should
only grant leave where a defendant can show either (1) cause and prejudice for failure to raise the
claim earlier or (2) a “fundamental miscarriage of justice,” also known as a claim of actual
innocence. See People v. Edwards, 2012 IL 111711, ¶¶ 22-23. “Cause” is an objective factor that
impeded the defendant’s ability to raise the claim earlier (People v. Guerrero, 2012 IL 112020,
¶ 17), while “prejudice” occurs when the alleged constitutional error so infected the entire trial that
the resulting conviction or sentence violates due process (People v. Ortiz, 235 Ill. 2d 319, 329
(2009)). We review de novo a trial court’s denial of leave to file a successive postconviction
petition. People v. Bailey, 2017 IL 121450, ¶ 15.
¶ 11 In the defendant’s successive postconviction petition, he contends that his trial counsel was
ineffective for failing to call an expert to testify regarding the reliability of eyewitness
identifications. To establish cause for failure to raise this claim earlier, the defendant points to the
relationship between two cases addressing the use of expert testimony on eyewitness identification.
In 1990, the supreme court decided People v. Enis, 139 Ill. 2d 264 (1990). In Enis, the court
considered whether the trial court abused its discretion in refusing to allow a defense expert in
eyewitness identification to testify at trial. Id. at 285. The court held that eyewitness identification
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was an appropriate subject for expert testimony, but cautioned against its overuse, and concluded
that the trial judge in that case did not abuse its discretion in barring the expert from testifying. Id.
at 287-90.
¶ 12 Over 25 years later, our supreme court decided People v. Lerma, 2016 IL 118476, where
the defendant also argued that the trial court erred in barring the defense expert in eyewitness
identification from testifying. In Lerma, the court noted that in the years since Enis was decided,
research had revealed serious problems with the reliability of eyewitness identifications and
explained: “[W]hereas Enis expressed caution toward the developing research concerning
eyewitness identifications, today we are able to recognize that such research is well settled, well
supported, and in appropriate cases a perfectly proper subject for expert testimony.” Id. ¶ 24. The
court in Lerma concluded that it was an abuse of discretion for the trial court to refuse to admit
expert testimony on eyewitness identification. Id. ¶ 27.
¶ 13 The defendant in this case maintains that Lerma marked a “massive shift” in the law
regarding the reliability of eyewitness identification, justifying the defendant’s failure to raise the
issue of counsel’s ineffectiveness earlier. In Lerma, the court urged more liberal admission on
expert testimony in the area of eyewitness identification. Id. ¶ 24. In this case, the defendant does
not argue that the trial court erred in failing to admit expert testimony in eyewitness identification.
Instead, he argues that his counsel was ineffective for failing to offer expert testimony on
eyewitness identification. This was not what Lerma established. Enis, which was decided in 1990,
held that expert testimony on the issue of eyewitness identification was admissible in certain
circumstances. Thus, the claim that the defendant’s counsel was ineffective for failing to offer
expert testimony on the subject of eyewitness identification was available to the defendant at the
time of direct appeal in 2007, and he should, and could, have raised the issue in that appeal.
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¶ 14 In support of his position, the defendant relies heavily on People v. Wrice, 2012 IL 111860.
But Wrice is inapposite. There, the Illinois Supreme Court reversed the trial court’s denial of the
defendant’s motion for leave to file a second successive postconviction petition where the
defendant alleged that his confession was the result of torture. Id. ¶¶ 41, 90. While the defendant
had made this allegation of torture at trial and in his previous postconviction petitions filed in 1991
and 2000, he supported his second successive postconviction petition with the newly released
Report of the Special State’s Attorney that was not available to him until 2006. Id. ¶¶ 29-31, 39-
42. That report corroborated the defendant’s specific allegations of torture. Id. ¶ 41.
¶ 15 Here, however, Lerma does not provide additional support for the defendant’s claim that
his counsel was ineffective for failing to offer expert testimony regarding eyewitness
identification. Lerma only emphasized that expert testimony on this issue was “perfectly proper”
“in appropriate cases.” Lerma, 2016 IL 118496, ¶ 24. Further, unlike in Wrice, where the State
conceded that the defendant established cause (Wrice, 2012 IL 111860, ¶ 49), in this case, the
State makes no such concession.
¶ 16 We further note that the defendant’s position is both substantively and facially inconsistent.
On one hand, he argues that, prior to Lerma, the law did not favor the use of expert testimony
regarding eyewitness identifications, On the other hand, he argues that his counsel was ineffective
for failing to offer expert testimony on the issue at his trial that took place years before Lerma was
decided. The defendant cannot have it both ways. Either Lerma marked a “massive shift” on the
issue of expert testimony and eyewitness identification, such that counsel could not have been
ineffective for failing to offer such expert testimony at trial, or it did not, and therefore, the
defendant could, and should, have raised the issue of counsel’s ineffectiveness on that basis on
direct appeal.
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¶ 17 Accordingly, we conclude that the defendant has not established cause for failure to raise
his ineffective assistance of counsel claim earlier; thus, we need not determine if he was
prejudiced.
¶ 18 CONCLUSION
¶ 19 For the reasons stated, we affirm the ruling of the circuit court of Cook County denying
the defendant’s leave to file a second, successive postconviction petition.
¶ 20 Affirmed.
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No. 1-19-0483
Cite as: People v. Navarro, 2021 IL App (1st) 190483Decision Under Review: Appeal from the Circuit Court of Cook County, No. 05-CR-
12045; the Hon. William G. Gamboney, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and David T. Harris, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Janet C. Mahoney, and Margaret M. Smith, Assistant
Appellee: State’s Attorneys, of counsel), for the People.
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