People v. Hauad ( 2017 )

2016 IL App (1st) 150583No. 1-15-0583
December 29, 2016
Modified February 28, 2017
SECOND DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) Of Cook County.
Plaintiff-Appellee, )
) No. 97 CR 16984
v. )
)
JAIME HAUAD, ) The Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.
JUSTICE NEVILLE delivered the judgment of the court, with opinion.
Justices Pierce and Mason concurred in the judgment and opinion.
OPINION
¶1 A jury found Jaime Hauad guilty of two murders and an aggravated battery with a
firearm. In a proposed supplement to a successive postconviction petition, Hauad alleged that
new evidence showed that (1) the trial court should have barred the prosecution from
presenting testimony about statements Hauad allegedly made while in police custody, (2) the
prosecution withheld evidence that would have substantially impeached a key prosecution
No. 1-15-0583
witness, and (3) Hauad did not commit the offenses. The trial court denied Hauad’s motion
for leave to supplement the successive postconviction petition. We hold that the report of the
Illinois Torture Inquiry and Relief Commission (Torture Commission) constitutes only a
reassessment of evidence available to Hauad before he filed his prior postconviction
petitions, and thus it does not qualify as new evidence. The new evidence about a key witness
does not show that she committed perjury. Because Hauad has not shown that the evidence
would probably have changed the result of the trial, he has not sufficiently shown prejudice
needed to add the allegation to the successive postconviction petition. Hauad has not
adequately explained his failure to present the evidence of actual innocence in support of his
prior postconviction petitions. Accordingly, we affirm the trial court’s judgment.
¶2 BACKGROUND
¶3 On May 21, 1997, Miguel Salgado, Jose Morales, and Jason Goral, members of the
Maniac Latin Disciples street gang, went to a bar at the corner of Kedzie Avenue and George
Street in Chicago. They left the bar together around 1 a.m. Someone shot them as they
walked on George Street. Morales and Goral died from the gunshot wounds. Salgado, shot in
the shoulder, walked south to a nearby convenience store, where he called his mother before
collapsing. A police officer found Salgado in the store and took him to a hospital.
¶4 Around 3 a.m. on May 22, 1997, about two hours after the shooting, Officer Julie
Wlezien arrested Hauad for a traffic offense committed not far from the scene of the
shooting. Later that morning, another officer spoke to a woman who lived very close to the
scene of the shooting. The woman, who identified herself as Luz Contreras, told police that
after she heard gunshots, she went to the window and saw a man walking away with a gun in
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his hand. Police showed her some books of photographs of known gang members. She could
not identify any of the men pictured as the man she saw after the shooting. On May 24, 1997,
police showed Contreras a photo lineup with only a few photos. Contreras picked Hauad’s
photo as a picture of the man she saw walking away from the scene of the shooting.
¶5 Police brought Hauad to the police station for questioning on May 26, 1997. Contreras
identified Hauad in a lineup on May 27. Salgado viewed a lineup and identified Hauad as a
person he had seen in the bar not long before the shootings occurred. Prosecutors charged
Hauad with two counts of first degree murder and one count of aggravated battery with a
firearm.
¶6 Trial
¶7 Hauad moved to bar the prosecution from presenting testimony about statements he
allegedly made to police after the police picked him up for questioning. At the hearing on the
motion, Hauad testified that Detective Daniel Engel and another officer hit him and
threatened him while he was in custody. The trial court denied Hauad’s motion.
¶8 At the trial, held in 1999, Officer Cesar Echeverria testified as a gang specialist, to help
establish the motive for the crime. Echeverria said that in 1997 the Maniac Latin Disciples
included several different factions, identified primarily by areas in which members lived. The
factions were struggling for power. According to Echeverria, Hauad and a man Echeverria
knew as Cave Man belonged to the Kedzie and Barry faction. David Ruiz and another man,
known as Little Bum, belonged to the Rockwell Potomac faction, which had a friendly
relationship with the Kedzie and Barry faction, but stood opposed to the Tallman Wabansia
faction and its ally, the Kenneth and Belden faction.
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¶9 Salgado testified that he belonged to the Kenneth and Belden faction, while Morales and
Goral belonged to the Tallman Wabansia faction. Salgado saw Hauad in the bar. Salgado saw
Morales get into an argument with Little Bum of Rockwell Potomac in the bar. After the
argument, Little Bum spoke with Hauad, a member of the Kedzie and Barry faction allied
with Rockwell Potomac and opposed to Tallman Wabansia. Hauad left the bar around 12:30
a.m. on May 22, 1997.
¶ 10 Salgado testified that around 1 a.m., as Salgado and his friends walked on George Street,
Salgado heard gunshots, and he and his friends hit the ground. Salgado saw that both of his
friends had been shot. Salgado went back to the bar first, but no one there would help him.
Salgado returned to the crime scene before heading to the convenience store. On cross-
examination, Salgado said he heard the shooter run north from the scene, across George
Street, before Salgado got off the ground.
¶ 11 The officer who came to the convenience store testified that Salgado first told him that he
did not see anything, and he had no idea who shot him and his friends. Salgado then told the
officer he saw several men dressed in black get out of a small maroon car and walk towards
the victims while shooting.
¶ 12 Ballistic evidence showed that all bullets at the scene, including the fatal bullets, came
from a single gun.
¶ 13 Contreras testified that she was watching television around 1 a.m. on May 22, 1997,
when she heard gunshots. She went to the window and saw a man she did not know standing
over the victims, then walking on George Street, carrying a gun. The man turned south. She
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saw his face and the tattoo on his arm clearly as he walked past her window. She identified
Hauad in court as the man she saw walk away from the crime scene.
¶ 14 Officer Wlezien testified that she responded to a call about the shooting. Around 1:30
a.m., she saw Hauad, whom she knew from the area, approach the crime scene. Later that
morning, around 3 a.m., she stopped Hauad after he drove past a stop sign without stopping.
She asked him why he had come to Kedzie and George at 1:30. Hauad answered that he
wanted “to see if any of his fellow gang bangers got shot.”
¶ 15 Detective Engel testified that, under questioning on May 27, 1997, Hauad said that an
officer arrested him on May 21, 1997, around noon, for a traffic violation. Hauad said that
because of an outstanding warrant, police kept Hauad in custody from May 21 until the
morning of May 24, 1997, and therefore he had been in police custody on May 22, 1997, at
the time of the shooting. An assistant State’s Attorney testified that Hauad gave her the same
alibi. Police records, especially Wlezien’s record of her arrest of Hauad at 3 a.m. on May 22,
1997, proved the alibi false.
¶ 16 Hauad did not testify. The jury found Hauad guilty on all three counts. The trial court
denied Hauad’s posttrial motion and sentenced him to two concurrent terms of life in prison
for the two murders, plus 15 years for aggravated battery with a firearm. The appellate court
affirmed the convictions and sentences. People v. Hauad, No. 1-99-2817 (2000)
(unpublished order under Supreme Court Rule 23).
¶ 17 First Postconviction Petition
¶ 18 Hauad filed a postconviction petition in 2001, arguing that he received ineffective
assistance of trial counsel and the prosecution did not present sufficient evidence to prove
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him guilty. He attached police reports showing that police spoke to a witness who did not
testify and the witness said that, after the shooting, he saw a white van and a small red car,
possibly a Toyota, driving north, away from the crime scene, at a high rate of speed. Another
police report said that Officer “Joseph MIEDZIANOWSKI had developed information from
an anonymous street source that a Latin Disciple by the nickname of ‘Red’ fit the description
of the offender. The source also related that there was internal strife between the various
faction[s] of Maniac Latin Disciples[,] and that the three victims could have been shot by
another member of the MLD street gang.” Hauad alleged:
“Joseph Miedzianowski is a corrupt cop that worked out of Area Five Violent
Crimes police station as far as the federal government is concerned as he was
indicted for allegedly committing various federal offenses.
*** A well-documented history of frame-ups happening at Area Five Violent
Crimes police station involving murder cases militates in favor of allowing the
petitioner to conduct discovery to further support this claim.” (Emphasis in
original.)
¶ 19 The trial court dismissed the postconviction petition as frivolous. The appellate court
affirmed the trial court’s judgment. People v. Hauad, No. 1-01-2070 (2002) (unpublished
order under Supreme Court Rule 23).
¶ 20 Habeas Corpus Petition
¶ 21 In 2003, Hauad filed a petition for writ of habeas corpus in federal court, again claiming
ineffective assistance of trial counsel, and adding claims for ineffective assistance of
appellate counsel, improper jury instructions, and actual innocence. Hauad supported his
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innocence claim with an affidavit from Salgado, who said he did not see Hauad at any time
on the night of the murders, and in particular he did not see Hauad in the bar. Thus, Salgado
admitted that he committed perjury in his testimony against Hauad. The federal court
dismissed the habeas petition without prejudice, so that Hauad could exhaust state remedies
for his actual innocence claim.
¶ 22 Second Postconviction Petition
¶ 23 In January 2005, Hauad sought leave to file a successive postconviction petition, again
alleging ineffective assistance of counsel and actual innocence based on Salgado’s
recantation. He added allegations that during questioning, police threatened to cut off his
toes. He supported the allegation with photographs of his sneakers, shown in the police
station intact, and later shown in photographs taken in the police station with the toes of the
sneakers cut off. Javier DeJesus, who was in custody at the police station at the time police
questioned Hauad, signed an affidavit stating that Hauad showed him the sneakers after
police cut them, and DeJesus took the cut sneakers to Hauad’s mother when police released
DeJesus. The trial court denied Hauad leave to file the successive postconviction petition and
the appellate court affirmed. People v. Hauad, No. 1-05-1287 (2006) (unpublished order
under Supreme Court Rule 23).
¶ 24 Third Postconviction Petition
¶ 25 Hauad filed a motion for leave to file another postconviction petition on August 17, 2005.
He claimed only that the trial court erred when it gave an improper instruction concerning
eyewitness identifications. The trial court denied the motion for leave to file the successive
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postconviction petition, finding the claim procedurally barred. The appellate court affirmed.
People v. Hauad, No. 1-05-3896 (2007) (unpublished order under Supreme Court Rule 23).
¶ 26 Fourth Postconviction Petition
¶ 27 Hauad later filed another motion for leave to file a successive postconviction petition,
arguing that the mandatory life sentences the trial court imposed violated the eighth
amendment because Hauad was only 17 years old at the time of the shooting. Hauad based
his argument on Miller v. Alabama, 567 U.S. ___, 132 S. Ct. 2455 (2012). We will refer to
this petition as the Miller petition.
¶ 28 On July 22, 2014, with the motion to file the Miller petition still before the court, Hauad
filed a motion for leave to file a supplement to the Miller petition. He attached the proposed
supplement to the motion for leave to file. In this appeal, we address the motion for leave to
supplement the Miller petition, and the proposed supplement to the Miller petition. The
appeal does not directly concern the Miller petition itself.
¶ 29 In the proposed supplement to the Miller petition, Hauad argued that the trial court
should have granted his motion to bar prosecution witnesses from testifying about any
statements Hauad allegedly made in custody; the prosecution denied him his right to confront
his accuser by failing to give him accurate and complete information about Luz Contreras;
and new evidence shows that Hauad did not commit the murders or the aggravated battery.
¶ 30 Hauad supported his proposed supplement with many documents. He presented the police
reports that showed (1) a witness told police that shortly after the shooting, he saw a white
van and a red car, moving fast, leaving the crime scene, and (2) Contreras initially told police
she saw two men lying on the ground and a third man standing over them, holding a gun,
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wearing a t-shirt with a Marlboro logo. Hauad’s proposed petition explained the significance
of the police reports. When police arrested Hauad at 3 a.m. on May 22, 1997, he had on a
shirt that did not have any markings similar to the Marlboro logo. Immediately after the
shooting, before the shooter left the area, three men lay on the ground. Salgado testified that
he got up only after he heard the shooter run off to the north. Contreras swore that the man
she saw walked off to the south. Hauad argued that the police report strongly suggests that
Contreras did not see the shooter at the scene. She probably saw Salgado walking south away
from the scene, somewhat after the shooter ran off to the north. The report of a witness who
saw a red car speeding off north further confirms Salgado’s testimony about the shooter’s
escape and casts further doubt on Contreras’s identification of Hauad as the man she saw
after the shooting. Hauad presented photographs of Hauad and Salgado, showing that they
resembled each other.
¶ 31 Next, Hauad included a letter dated January 17, 2013, from an assistant United States
attorney to Hauad’s attorney, concerning an FBI interview of a member of the Maniac Latin
Disciples in 2001. The assistant United States attorney said that, according to documents he
reviewed, David Hernandez told the FBI agent that Hernandez went to the bar at Kedzie and
George on May 21, 1997, and he saw Morales, Goral, and Salgado in the bar. Nick
Maropoulos came into the bar and showed Hernandez a gun. Maropoulos said to Hernandez,
“I’m going to take care of my business.” Hernandez left the bar and got into a car. He
reached the intersection of Kedzie and George, where he saw Maropoulos shoot Morales,
Goral, and Salgado.
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¶ 32 David Ruiz, also a member of the Maniac Latin Disciples, provided an affidavit dated
April 18, 2012, in which he said that a few weeks after the shooting, Slim Moralez, the chief
of the west side Maniac Latin Disciples, told Ruiz that he “ordered the shooting of Jose
Morales, Jason Goral, and Miguel Salgado.” Moralez told Ruiz that Nick Maropoulos carried
out the order, and Hauad did not participate.
¶ 33 Hauad also presented a towing record, which showed that as of 2005, Nicholas
Maropoulos owned a 1988 maroon Toyota, with vehicle identification number
JT2EL31D1J0296771. A document dated September 21, 2009, bearing a certification from
the Illinois Secretary of State, includes the following:
“VIN: JT2EL31D1J0296771 ***
*** 1988 TOYOTA TERCEL COUPE
***
CURR #: X7156091032 6 400 06-05-07
SURR #: LEGAL AO
PREV #: 7062079045 7 405 03-03-97”
¶ 34 Hauad claims that this document proves that Maropoulos owned the same maroon Toyota
since March 1997, two months before the murders. Hauad did not present any witness to
explain the document.
¶ 35 Hauad also attached three handwritten letters signed “Nickk” and “Nick Dog,” one dated
February 26, 1999, one from November 6, 2000, and one with no date. Hauad swore in an
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affidavit that the letters came from Maropoulos in 1999 and 2000. In the first letter,
Maropoulos said:
“I was su[r]prised *** that you wanted me to write you considering! *** I could
apologize for everything but I guess it wouldn’t help, any. I could imagine what
you think of me and I can’t change that.”
¶ 36 From the second letter:
“After that shit happened all the fellas told me not to go see you including Slim
and shit I practically got locked up not even 2 months after you. So all that shit
about why I didn’t look out for you and your family lets be real, I didn’t even
have the chance! It would be different if I was out there in the world but I’m not
so you have to be patient.”
¶ 37 From the undated letter:
“The other thing you said I was bogish about was that I was bragging about
‘_____’. *** I am never ever smiling about you being in your position. Another
thing you said is that I never looked out for you or your family. *** What it boils
down to is that a n*** took care of some nation business and you got caught up
for some shit you didn’t even do or know about.”
¶ 38 Hauad also again presented Salgado’s affidavit recanting his trial testimony. Hauad, in
his own affidavit, said that Officer Echeverria frequently harassed Hauad on the street, and
said “I’m coming to get you when you’re seventeen.” After the shooting, Echeverria said, “I
told you I would come get you when you’re 17, and now you’re going down for two
murders.” Hauad said that during the interrogation on May 26 and May 27, 1997, police beat
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him, slapped him, and “held [him] down while a paper cutter was used to cut off the edge of
his shoes, with threats to cut off his toes.” Hauad claimed that police and the assistant State’s
Attorney who testified fabricated the testimony about the false alibi, and he never said that
police had him in custody at the time of the shooting. Hauad added that Detective Engel and
Officers Hector Vergara and Joseph Miedzianowski “took turns smacking and choking [him],
and yelling that if [he] did not sign a confession they would continue to beat [him].”
¶ 39 Hauad had previously sent copies of the exhibits attached to the proposed supplement to
the Torture Commission. The Torture Commission sent a report to the Cook County State’s
Attorney and to the chief of the Conviction Integrity Unit of the State’s Attorney’s Office. In
the report, dated June 18, 2014, the Torture Commission summarized the evidence against
Hauad and Hauad’s evidence in support of his claims. The Torture Commission said:
“The photographic evidence of damage to Hauad’s shoes as of the time of the
second lineup is compelling. It is very unlikely that Hauad had access to a knife or
any other tool that could have cut the tips of his shoes.
(ii) The total evidence against Hauad was not strong.
(iii) There is some evidence that the crime may have been committed by Nick
Mar[o]poulos ***.
(iii) [sic] While it is possible that Hauad told police officers on May 26 that
he was in jail at the time of the shooting on May 22, it is an unlikely alibi since (a)
it was within the prior week, (b) Hauad would know there were records
disproving it, and (c) Hauad had been arrested on the morning of May 22, within
hours after the shooting, by an officer he knew.
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(iv) While there was ample evidence placing Hauad in the neighborhood
around the time of the shooting, Ms. Contreras, the only person who said Hauad
had a gun, did not cooperate with detectives the first time she was interviewed.
(v) The descriptions of the events surrounding the shooting by the surviving
victim, Miguel Salgado, have been wildly inconsistent.
(vi) One of the detectives who Hauad claims beat him was Joseph
Miedzianowski. Miedzianowski was arrested in December 1998 and convicted on
federal racketeering and drug charges. Information from Miedzianowski’s
prosecution reportedly included descriptions of Miedzianowski torturing suspects,
planting evidence, fixing cases, taking protection money from gang leaders, and
cooperating with leaders of certain gangs, including the Maniac Latin Disciples.
*** On balance, the Commission concludes that there is substantial evidence that
Hauad’s shoes were intentionally cut by police officers while he was in police
custody, in an attempt to coerce a confession, and that the case merits judicial
review.”
¶ 40 However, the Torture Commission also noted that none of the officers involved
previously served as a subordinate to Jon Burge, and therefore the Torture Commission
lacked statutory authority to refer the case to the circuit court. Instead, the Torture
Commission could only recommend that the State’s Attorney further review the case.
¶ 41 In addition to the evidence presented to the Torture Commission, Hauad attached to his
proposed supplement to the successive postconviction petition two additional affidavits.
Miguel Morales said in his affidavit, dated August 14, 2012, that he spoke with Salgado
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before Hauad’s trial in 1999, and Salgado said he “fear[ed] that he would be forced to testify
against Jaime Hauad, who Miguel Salgado knew to be innocent.” According to Morales,
Salgado said “he was only testifying under threat or pressure by the 25th District
police/detectives. Threatening to deport him back to Mexico since Miguel Salgado didn’t
have any papers to be in the U.S.”
¶ 42 The second affidavit came from Julie Pabarja, who worked as a researcher for a law firm.
A lawyer asked Pabarja to locate Luz Imelda Contreras, using a California state identification
card with her name, photograph, and date of birth. Pabarja said:
“Using the given information, I ran various searches on premium public records
databases including Accurint, TLO, and Westlaw ***.
*** Accurint and TLO reported that a person with this name lived in East
Chicago, IN, in 2013. The reports also reflected that there were other addresses
within this area associated with Contreras from 2003-2013. There were 2 social
security numbers found in these reports—[xxx-xx]-4336 which was issued in
Illinois between 4/2/1994 and 11/30/1995 and [xxx-xx]-9286.
*** When searching for ‘Contreras’ and ‘3151 W. George’ simultaneously,
Accurint brought up 2 reports with Luz I Contreras linked to them. There were 2
different social security numbers listed in these reports—[xxx-xx]-8973 and [xxx­
xx]-8975.
*** Using the Social Security Number Alert file on Westlaw which provides the
best known name and address associated with a social security number, I ran each
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social security number[ ] found in the Accurint and TLO reports. My results are
listed below:
[xxx-xx]-9286 was not found.
[xxx-xx]-4336 was not found.
[xxx-xx]-8975 was connected to Leslia Madrigal Lazaro.
[xxx-xx]-8973 was connected to Lara Perez.
*** I also searched these social security numbers on TLO and got the following
results:
[xxx-xx]-8975 was connected to Leslia Madrigal.
[xxx-xx]-4336 was not found.
[xxx-xx]-8973 was connected to Leslie Lara, Elaine Menke and Cesar Lima
Hernandez.
[xxx-xx]-9286 was connected to Luz Imelda Contreras. The report stated this
social security number was issued in South Carolina between 1934-1954.
***
*** TLOxp is an advanced product that is relatively new. [Pabarja’s law firm] did
not purchase access to TLOxp’s databases until 2012.
*** [The law firm] first obtained access to Accurint in 2002.”
¶ 43 Also, Hauad attached to the proposed supplement a request for information sent to the
California Department of Motor Vehicles in March 2014, seeking the driver’s license record
for the license number a police officer wrote in the police report about his meeting with
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Contreras. The California DMV returned a “Notice of Incomplete or Invalid Information
Request,” noting that the person requesting the driver’s license record had not supplied
sufficient information, and adding “The subject’s driver license number came back not on
file.”
¶ 44 On January 6, 2015, the trial court read to the parties its ruling, denying the motion for
leave to supplement the successive postconviction petition. At the conclusion of the ruling,
Hauad’s counsel pointed out that the court failed to address the Miller issue, which formed
the basis for the successive postconviction petition. The court noted:
“[Hauad] was given mandatory life for the murders. The Illinois Supreme Court
said you can’t do that. *** So come back for resentencing. It’s not an issue
whether [the motion to file the successive postconviction petition and the
successive postconviction petition] has to be granted or not.”
¶ 45 The court entered a written order denying Hauad leave to supplement the Miller petition,
but no written order concerning the Miller petition itself. Hauad filed a notice of appeal on
January 30, 2015.
¶ 46 ANALYSIS
¶ 47 Jurisdiction
¶ 48 After the hearing on January 6, 2015, the trial court entered a written order denying the
motion for leave to supplement the Miller petition, but no written order concerning the Miller
petition itself. The clerk entered into the record a notation, “Motion to file Successive PC pet.
Denied BA 2/10/15.” We find in the record no explicit notation concerning the Miller
petition. However, Hauad’s counsel provided a certified court record showing that the trial
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court treated the case as though it granted Hauad leave to file the Miller petition, summarily
granted the Miller petition on January 6, 2015, and continued the case for resentencing. Thus,
the court finally disposed of the Miller petition orally (see People v. Allen, 71 Ill. 2d 378(1978); People v. Fikara, 345 Ill. App. 3d 144, 151-52 (2003)), and finally disposed of the
motion for leave to supplement the Miller petition by written order, on January 6, 2015. We
find that the timely notice of appeal confers jurisdiction on this court. Ill. S. Ct. R. 606(b)
(eff. Dec. 11, 2014).
¶ 49 Standard of Review
¶ 50 On appeal from a trial court’s denial of leave to file a successive postconviction petition,
this court evaluates each individual claim separately. People v. Pitsonbarger, 205 Ill. 2d 444,
463 (2002). Each claim must either meet the cause and prejudice test or, if the petitioner
makes a claim of actual innocence, he must show that newly discovered evidence would
probably change the result on retrial. People v. Adams, 2013 IL App (1st) 111081, ¶ 30. We
review de novo the trial court’s denial of leave to file each separate claim in the proposed
supplement to the Miller petition. People v. Edwards, 2012 IL App (1st) 091651, ¶ 25.
¶ 51 Hauad argues that the trial court should have allowed him to file his claims that (1) the
use of an alleged false alibi made to police and an assistant State’s Attorney violated his
rights against self-incrimination; (2) the failure to provide relevant information about
Contreras violated his right to confront his accusers; and (3) new evidence shows Hauad did
not commit the offenses charged.
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¶ 52 False Alibi
¶ 53 Hauad contends that the Torture Commission’s report constitutes new evidence, showing
that the trial court erred when it allowed the prosecution to present evidence that Hauad gave
a false alibi during questioning at the police station. He had cause for not presenting the
report at trial, and for not appending it to prior postconviction petitions because the Torture
Commission had not made the report until June 2014. He also claims that he suffered
prejudice due to the unavailability of the report.
¶ 54 The Torture Commission concluded, “there is substantial evidence that Hauad’s shoes
were intentionally cut by police officers while he was in police custody, in an attempt to
coerce a confession, and *** the case merits judicial review.” However, the Torture
Commission based its conclusion on evidence Hauad presented to the trial court either in
pretrial proceedings or in postconviction proceedings, and on evidence available to Hauad
before 2005. The Torture Commission did not refer to any evidence from other sources.
Thus, the Torture Commission provides only a new assessment of previously available
evidence.
¶ 55 “[I]f the evidence was available at a prior posttrial proceeding, the evidence is *** not
newly discovered evidence.” People v. Snow, 2012 IL App (4th) 110415, ¶ 21. In People v.
Patterson, 192 Ill. 2d 93 (2000), Patterson filed a postconviction petition in which he sought
to present the opinion of an expert who found that the evidence at trial supported Patterson’s
claim that police coerced him to confess. Our supreme court said, “the expert’s conclusions
do not rest on any evidence that was not available before defendant’s trial. Consequently, we
are unable to conclude that the expert’s opinion constitutes new evidence.” Patterson, 192 Ill.
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2d at 140. In accord with Patterson, we find that the Commission’s conclusion does not
qualify as new evidence that police tortured Hauad in an effort to coerce him to confess.
Because Hauad has not presented new evidence to support his claim of coercion, the trial
court correctly denied his request for leave to add the claim to his Miller petition.
¶ 56 Contreras
¶ 57 In 2014, Julie Pabarja requested public records to help her locate Contreras. Her search
showed her that a person or persons using that name may have used several social security
numbers that belonged to persons not named Luz Contreras. Hauad claims that Pabarja’s
affidavit shows:
“[T]he State either knew o[r] should have known that Contreras supplied them
with false information, and was required to disclose this to Mr. Hauad. ***
Additionally, because Mr. Hauad was unaware that Contreras had provided false
information about her identity, he could not question her about what this
suggested in terms of her legal status and her susceptibility to police coercion. ***
***
*** Mr. Hauad was prejudiced by the State’s failure to disclose that she lied about
her identity and was potentially in the U.S. without proper authorization. ***
Even if the State was completely unaware of Contreras’ false identity, the fact that
Contreras gave false testimony about her identity under oath at trial violates Mr.
Hauad’s Sixth Amendment rights.”
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¶ 58 In his reply brief, Hauad asserts that “the identification card presented by this witness to
the police in this case is now known to have been false or doctored.”
¶ 59 We have searched the extensive record in this case and find only that the witness
identified herself consistently as “Luz Contreras,” and she said she lived at 3151 George
Street. We find nothing in Pabarja’s affidavit or other evidence that contradicts Contreras’s
testimony regarding her identity. We have not seen the identification card to which Hauad
refers. We cannot conclude from the cited pages of the record, referring to an insufficient
request for information sent to the California Department of Motor Vehicles, that Contreras
used a doctored identification card or that she perjured herself when she gave her name and
address.
¶ 60 Moreover, for new evidence to show prejudice for purposes of making the claim in a
successive postconviction petition, “the evidence *** must be of such conclusive character
that it will probably change the result on retrial.” People v. Orange, 195 Ill. 2d 437, 450-51
(2001). Hauad argues that the evidence concerning Contreras shows that she came to the
United States without proper authorization and that police used her vulnerability to pressure
her to give the identification evidence that would allow them to clear the case. Hauad relies
on innuendo, without any testimony that Contreras came to the United States illegally or that
police threatened to deport her. Hauad has not even shown that the person who testified
against him used the multiple social security numbers associated in some databases with her
name. We cannot say that Pabarja’s finding of multiple social security numbers has such
conclusive character that it would probably change the result on retrial. We find that the
claim as to evidence of Contreras’s identity does not meet the cause and prejudice test, and
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therefore the trial court correctly denied Hauad’s request for leave to add the claim to his
Miller petition.
¶ 61 Actual Innocence
¶ 62 “When a defendant claims actual innocence, the question is whether his motion and
supporting documentation set forth a colorable claim; that is, whether they raise the
probability that it is more likely than not that no reasonable juror would have convicted him
in light of the new evidence. [Citation.] The evidence supporting the claim of actual
innocence must be (1) newly discovered; (2) material and not merely cumulative; and (3) of
such conclusive character that it would probably change the result on retrial.” Adams, 2013
IL App (1st) 111081, ¶ 30. Evidence counts as newly discovered only if the petitioner, acting
with due diligence, could not have discovered it before he filed his previous postconviction
petitions. People v. Wideman, 2016 IL App (1st) 123092, ¶¶ 57-59.
¶ 63 Hauad relies on seven pieces of evidence, mostly ones he presented to the Torture
Commission, to support his claim of innocence. Hauad cites the letter from the assistant
United States Attorney to Hauad’s attorney. The assistant United States Attorney said he read
documents summarizing an interview of David Hernandez, who, according to the documents,
told an FBI agent that he saw Maropoulos shoot the victims. However, the FBI agent
conducted the interview in 2001 and, according to the assistant United States Attorney, told
Hauad’s attorney in 2001 that Hernandez named Maropoulos as the shooter. Hauad does not
explain how the statement can qualify as newly discovered evidence. Moreover, even if the
FBI agent could testify about Hernandez’s statement, the assistant United States Attorney’s
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letter does not qualify for admission into evidence under any exception to the hearsay rule.
See Ill. R. Evid. 801 (eff. Oct. 15, 2015) Ill. Rs. Evid. 802, 804, 805 (eff. Jan. 1, 2011).
¶ 64 Hauad had received the letters from Maropoulos by 2001, so they do not qualify as newly
discovered evidence. Hauad also has not explained why he could not have presented to the
court with his 2005 postconviction petitions the towing document showing that, in 2005,
Maropoulos owned a 1988 maroon Toyota. Because of the long gap between the time of the
tow and the time of the offense, the document does not strongly support the inference that
Maropoulos owned the red car some witnesses may have seen near the crime scene. This
court would need a certified record naming Maropoulos as the vehicle’s owner, and a witness
to explain the document from the Secretary of State, before confidently concluding that
Maropoulos owned a 1988 maroon Toyota in 1997.
¶ 65 Hauad has also failed to explain why he could not previously have obtained an affidavit
from David Ruiz concerning the conversation Ruiz had with Slim Moralez in 1997, a few
weeks after the shooting. Hauad does not explain why he could not have obtained the
affidavit of Miguel Morales, concerning a conversation Miguel had with Salgado in 1999,
before Hauad filed his prior postconviction petitions. Finally, the evidence casting doubt on
Contreras’s immigration status does not qualify as evidence that would likely change the
result on retrial.
¶ 66 Applying the standards for assessing whether a court should grant a motion for leave to
file a successive postconviction petition based on a claim of actual innocence and reviewing
the record before us de novo, we find that the trial court correctly denied Hauad’s motion.
Accordingly, we affirm the trial court’s judgment.
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No. 1-15-0583
¶ 67 CONCLUSION
¶ 68 Hauad presented to the Torture Commission evidence he had previously presented in
pretrial proceedings, at trial, and in support of prior postconviction petitions, along with
evidence apparently available before Hauad filed his prior successive postconviction petition
in 2005. The Torture Commission’s reassessment of the previously available evidence does
not constitute new evidence. The trial court correctly denied Hauad’s request for leave to file
a claim in a successive postconviction petition based on the Torture Commission’s finding.
The evidence that Contreras may have used several different social security numbers,
numbers associated with names other than Luz Contreras, does not disprove any of her trial
testimony, and it does not qualify as evidence that would probably change the result on
retrial. Therefore, the trial court correctly denied Hauad’s request for leave to file a claim in a
successive postconviction petition based on evidence of the multiple social security numbers
associated with the name Luz Contreras, and the multiple other names also associated with
those social security numbers. Hauad based his claim of actual innocence primarily on
evidence available before 2005, without explaining why he could not have presented the
evidence to the court when he filed his successive postconviction petition in 2005.
Accordingly, we affirm the trial court’s judgment denying Hauad leave to file his proposed
supplement to his successive postconviction petition.
¶ 69 We recognize that we can no longer dismiss as fanciful allegations of police misconduct
and, in particular, allegations of the torture of suspects in custody. See Curtis Black, How
Chicago Tried To Cover Up a Police Execution, Chicago Reporter (Nov. 24, 2015),
http://chicagoreporter.com/how-chicago-tried-to-cover-up-a-police-execution/ (last visited
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Nov. 1, 2016); Andrew Schroedter, BGA Public Eye: City Pays a Price for Police
Misconduct—$642 Million Since 2004, Chicago Sun Times (Jan. 30, 2016, 6:45 p.m.),
http://chicago.suntimes.com/news/bga-public-eye-city-pays-a-price-for-police-misconduct­
642-million-since-2004/ (last visited Nov. 1, 2016). We have carefully examined the record
in this case and conclude that it precludes the relief Hauad seeks. We encourage the State’s
Attorney and the Conviction Integrity Unit to heed the recommendation of the Torture
Commission to further investigate the case and Hauad’s claim that he was tortured while in
police custody.
¶ 70 Affirmed.
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