People v. Moore ( 2018 )

2018 IL App (3d) 160271
Opinion filed November 5, 2018
_____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2018
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 10th Judicial Circuit,
) Peoria County, Illinois.
Plaintiff-Appellee, )
) Appeal No. 3-16-0271
v. ) Circuit No. 11-CF-104
)
GORDON K. MOORE II, ) The Honorable
) Albert L. Purham Jr.,
Defendant-Appellant. ) Judge, presiding.
____________________________________________________________________________
PRESIDING JUSTICE CARTER delivered the judgment of the court, with opinion.
Justices McDade and O’Brien concurred in the judgment and opinion.
_____________________________________________________________________________
OPINION
¶1 After a stipulated bench trial, defendant, Gordon K. Moore II, was convicted of first
degree murder (720 ILCS 5/9-1(a)(1) (West 2010)) and sentenced to 45 years in prison.
Defendant’s conviction and sentence were affirmed on direct appeal. People v. Moore, 2013 IL
App (3d) 120275-U, ¶¶ 1, 19. Defendant filed a pro se postconviction petition, alleging actual
innocence based on newly discovered evidence. The trial court summarily dismissed the petition
in the first stage of proceedings. Defendant appeals, arguing that (1) the trial court erred in
summarily dismissing his postconviction petition, and (2) certain fines that were imposed upon
him as part of his sentence must be vacated because the fines were imposed by the circuit clerk
and not ordered by the trial court. We affirm the trial court’s summary dismissal of defendant’s
postconviction petition and dismiss the remainder of defendant’s appeal for lack of appellate
jurisdiction.
¶2 FACTS
¶3 In February 2011, defendant was charged with first degree murder for the stabbing death
of his estranged wife, Teresa Moore. In pretrial discovery, defendant notified the State that he
intended to assert at trial that “he suffered serious provocation, which when viewed in light of
[his] depressed mental state, caused him to act under a sudden and intense passion.” In other
words, defendant was going to try to raise at trial that the killing was second degree murder and
not first degree murder. To support that assertion, defendant planned to have two mental health
professionals who had seen defendant both before and after the offense testify as expert
witnesses at trial regarding defendant’s mental state at the time of the offense and the effect that
the pending divorce, the potential loss of his children, and defendant’s use of alcohol and
prescription medication had on his mental state. The State filed a motion in limine to exclude that
testimony. A hearing was later held on the motion.
¶4 At the hearing, the trial court reviewed a report from one of the proposed expert
witnesses and a letter from the other. Of relevance to this appeal is the report. The report
indicated that, about six months after the killing occurred, defendant talked to the doctor about
the events leading up to Teresa’s death. Defendant stated that he had been living with his parents
and that Teresa had told him that she did not love him anymore. On the day of the murder,
defendant agreed to meet Teresa at the couple’s home to discuss the terms of their divorce.
Defendant knew it would be difficult, so he drank 5 beers and took 12 Vicodin tablets before the
meeting. After an hour of discussion, Teresa told defendant that she was going to file for sole
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custody of the couple’s three children and move out of state to be with a man she met online. At
that point, defendant and Teresa were in the garage. Defendant became “hysterically blind” and
“blacked out.” He felt, enraged, lost, and hopeless. When defendant woke up, he had a knife in
his hand and blood was everywhere. Defendant noticed that Teresa was not breathing, and he
wanted to end his own life. He then stabbed himself and collapsed.
¶5 At the conclusion of the hearing, the trial court granted the State’s motion in limine. In so
doing, the trial court found that the proposed expert witness testimony was irrelevant because
there was no proof of any legally recognized form of provocation. The trial court indicated that
the form of provocation that was potentially applicable in this case was mutual combat but noted
that defendant had made no showing that mutual combat occurred between him and Teresa.
¶6 In January 2012, the case proceeded to a stipulated bench trial. The evidence adduced at
the stipulated bench trial showed that on the date in question, defendant went to the couple’s
home and had a conversation with Teresa. The couple’s 14-year-old daughter, E.M., was present
in the home at the time, as was their 3-year old son. An argument ensued between defendant and
Teresa, and defendant was cursing and yelling. Teresa and E.M. told defendant to leave several
times, but defendant refused. As E.M. was taking her little brother back to his room, she heard
the door to the garage open and heard a thud come from the garage. E.M. ran to the garage and
found defendant on top of Teresa. Defendant was grinding a knife back and forth into the front of
Teresa’s throat area. Teresa was on her back on the garage floor, was covered in blood, and was
barely breathing. E.M. jumped on defendant’s back and started hitting him with her fists to try to
save Teresa. Defendant continued to stab Teresa, stating over and over again that he loved
Teresa and the children. Realizing that she could not help Teresa, E.M. went back into the house,
grabbed her little brother, and started to run to a neighbor’s house for help. As she ran through
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the garage, she saw defendant use the same knife to cut himself in the neck area. When E.M. got
to the neighbor’s house, the neighbor called 911. Police officers arrived shortly thereafter and
found defendant and Teresa in the garage covered in blood. A police officer checked Teresa’s
vital signs but could not find a pulse. The officer could see that Teresa had a large laceration to
her throat. The officer checked defendant’s vital signs. Defendant had a pulse and was breathing.
Upon inquiry, defendant told police, fire, and ambulance personnel that he “did it,” that he was
sorry, and that he did not want or deserve to live. An autopsy showed that Teresa had suffered
nine stab wounds to her chest, including one that involved the right ventricle of her heart; two
large stab wounds to her neck that transected her upper airway and her right carotid artery; and
nine “defensive-type” stab wounds to her right and left hands, wrists, and fingers. The knife that
was used in the stabbing was identified as a knife that belonged to defendant that he always
carried on his person.
¶7 At the conclusion of the stipulated bench trial, the trial court found defendant guilty of
first degree murder. The trial court later sentenced defendant to 45 years in prison. As part of the
sentencing order, the trial court took a judgment against defendant for court costs and ordered
defendant to pay a $200 deoxyribonucleic acid (DNA) testing fee. No other fines, fees, or costs
were ordered by the trial court. The circuit clerk, however, subsequently imposed the following
financial assessments, among others, against defendant: (1) a $0.25 “Circuit Clerk Oper/Adm
Fund” assessment, (2) a $15 “State Police Operation Assistance Fund” assessment, (3) a $10
“State Police Services Fund” assessment, (4) a $7.50 lump sum surcharge, (5) a $3 “Violent
Crime Fund” assessment, (6) a $50 “Court Usage” assessment, (7) a $4.75 “Drug Court Fund”
assessment, (8) a $10 “Drug Court Operation” assessment, (9) a $10 “Medical Costs Fund”
assessment, and (10) a $10 “State’s Attorney Juvenile Expenses” assessment.
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¶8 Defendant filed a direct appeal and challenged the trial court’s grant of the State’s motion
in limine. This court affirmed the trial court’s judgment. Moore, 2013 IL App (3d) 120275-U,
¶¶ 1, 19.
¶9 In April 2016, defendant filed the instant pro se postconviction petition. In the petition,
defendant alleged a claim of actual innocence based on newly discovered evidence. More
specifically, defendant asserted that he could now remember what had happened during the
incident and remembered that prior to his stabbing Teresa, Teresa had struck him about the head
and face and had tried to stab defendant with his own pocket knife. According to defendant, he
grabbed Teresa’s hand that had the knife in it, pushed Teresa through the doorway into the
garage, and fell on top of her. Defendant snapped, grabbed the knife from Teresa, and began
stabbing her. Defendant did not come out of that enraged state until he felt his daughter jump on
his back. It was then that he attempted to take his own life.
¶ 10 Later that same month, the trial court summarily dismissed defendant’s postconviction
petition in the first stage of proceedings. Defendant appealed to challenge the trial court’s ruling.
¶ 11 ANALYSIS
¶ 12 I. Dismissal of Defendant’s Postconviction Petition
¶ 13 On appeal, defendant argues that the trial court erred in summarily dismissing
defendant’s pro se postconviction petition in the first stage of proceedings. Defendant asserts that
his petition was sufficient to state the gist of a constitutional claim of actual innocence of first
degree murder based upon newly discovered evidence in the form of defendant’s recovered
memory regarding the events leading up to his wife’s death. More specifically, defendant
contends that since trial, he has recovered enough of his memory to assert that he was acting in
self-defense when his wife’s death occurred or, alternatively, to assert that at the time of his
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wife’s death, he was acting under serious provocation as a result of mutual combat or based upon
an unreasonable belief in the need for self-defense. Defendant asserts further that the newly
discovered evidence, as set forth in his postconviction affidavit, is material and noncumulative;
that it places the evidence presented at trial in a different light; and that it is sufficient to undercut
the court’s confidence in the factual correctness of the guilty verdict because it creates, at the
very least, a second degree murder claim, and at most, a claim for complete exoneration. In
making those assertions, defendant maintains that his affidavit is not materially contradicted by
other evidence and that his affidavit is the only evidence of the events leading up to his wife’s
death. Defendant also asserts that under Illinois Supreme Court precedent and contrary to the
Fifth District Appellate Court’s decision in People v. Wingate, 2015 IL App (5th) 130189, ¶ 24,
a case upon which defendant expects the State to rely, defendant is not required to establish that
he would be entitled to complete exoneration of all crimes to establish a claim of actual
innocence. For those reasons, defendant asks that we reverse the trial court’s summary dismissal
of defendant’s postconviction petition and that we remand this case for second-stage
proceedings, including the appointment of postconviction counsel for defendant.
¶ 14 The State argues that the trial court properly dismissed defendant’s postconviction
petition in the first stage of proceedings as being frivolous and patently without merit and that
the trial court’s ruling, therefore, should be upheld. In support of that argument, the State makes
two primary assertions. First, the State asserts that defendant’s recovered memory does not
constitute newly discovered evidence under the law. As support for that assertion, the State cites
one case from Illinois (People v. Williams, 242 Ill. 197, 204-08 (1909) (finding that the
defendant’s recovery memory that he was at home when the larceny at issue occurred was not
newly discovered evidence so as to warrant a new trial but, rather, was evidence of facts that
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were known to the defendant, were forgotten, and were not diligently presented)) and a few
additional cases from some other states (United States v. Wapnick, 202 F. Supp. 716, 717-18
(E.D.N.Y. 1962) (concluding that the defendant’s revived memory of when he went to a
basketball game and met a certain car thief, which was contrary to the testimony of the
government’s rebuttal witness, was not newly discovered evidence so as to require a new trial);
State v. Pittman, 221 S.W.2d 163, 164-65 (Mo. 1949) (holding that the defendant’s recovered
memory that a certain person had telephoned the defendant’s home and had spoken to the
defendant at the time of the rape, which could be offered to corroborate the defendant’s alibi
defense, was not newly discovered evidence so as to warrant a new trial); State v. Jiron, 882 P.2d
685, 688-89 (Utah Ct. App. 1994) (finding that although recovered memory, such as from
amnesia, could constitute newly discovered evidence, the defendant’s recovered memory in that
case of the events leading up to the alleged automobile accident that resulted in murder and arson
convictions against the defendant was not newly discovered evidence warranting a new trial
because the defendant failed to establish that the evidence could not, with reasonable diligence,
have been discovered and produced at trial)). Second, and in the alternative, the State asserts that
even if defendant’s recovered memory was considered newly discovered evidence, defendant’s
petition was still properly dismissed because defendant failed to establish the gist of a
constitutional claim since his claim of self-defense was positively rebutted by the record and
since his claim of second degree murder does not qualify as a claim of actual innocence under
the law. As anticipated by defendant, the State relies upon the Wingate decision in support of the
latter contention (see Wingate, 2015 IL App (5th) 130189, ¶ 24). For all of the reasons set forth,
the State asks that we affirm the trial court’s summary dismissal of defendant’s postconviction
petition.
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¶ 15 The Post-Conviction Hearing Act (Act) establishes a procedure for an imprisoned
criminal defendant to collaterally attack his conviction or sentence based upon a substantial
violation of federal or state constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2016); People v.
Collins, 202 Ill. 2d 59, 65 (2002). In the first stage of proceedings under the Act, the trial court
has 90 days to independently review the postconviction petition, taking the allegations as true,
and to determine whether the petition is frivolous or patently without merit in that it fails to state
the gist of a constitutional claim. 725 ILCS 5/122-2.1(a)(2) (West 2016); People v. Hodges, 234
Ill. 2d 1, 9-10 (2009). If the trial court finds in the first stage of proceedings that the petition is
frivolous or patently without merit, it shall summarily dismiss the petition in a written order. See
725 ILCS 5/122B2.1(a)(2) (West 2016); Hodges, 234 Ill. 2d at 10. Such a dismissal is subject to
de novo review on appeal (Hodges, 234 Ill. 2d at 9) and may be affirmed on any basis supported
by the record (see People v. Little, 335 Ill. App. 3d 1046, 1051 (2003)).
¶ 16 Because the conviction of an innocent person violates the due process clause of the
Illinois Constitution, an imprisoned criminal defendant has a right in a postconviction petition to
assert a claim of actual innocence based upon newly discovered evidence. People v. Morgan,
212 Ill. 2d 148, 154 (2004). From a procedural standpoint, a claim of newly discovered evidence
is resolved in the same manner as any other claim brought under the Act. People v. Ortiz, 235 Ill.
2d 319, 333 (2009). To prevail on such a claim, a defendant must show that the evidence is
“newly discovered,” material and not cumulative of other evidence presented at trial, and of such
a conclusive character that it would probably change the result upon retrial. Morgan, 212 Ill. 2d
at 154. For evidence to be considered “newly discovered,” it must be evidence that was not
available at the defendant’s original trial and that the defendant could not have discovered sooner
by the exercise of due diligence. Id.
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¶ 17 In the present case, to determine whether defendant’s recovered memory constitutes
newly discovered evidence under Illinois law, we need only look to our supreme court’s decision
in Williams. In that decision, which was made over 100 years ago, our supreme court rejected a
similar argument made by a defendant in a motion for a new trial in a criminal case. See
Williams, 242 Ill. at 204-08. In so doing, our supreme court stated:
“It would be a dangerous rule to grant a new trial upon an ex parte statement
that certain material facts which had previously been known had been forgotten. It
may be that in a sense a forgotten fact is practically the same as if it had never
been known, but the liability to fraud and the temptation to perjury in such cases
forbid that a new trial should be granted because the party against whom a verdict
has gone makes oath that he has forgotten material parts of his evidence. In order
to prevent, so far as possible, fraud and imposition which defeated parties may be
tempted to practice as a last resort to escape the consequence of an adverse
verdict, applications for new trial on account of newly discovered evidence should
always be subjected to the closest scrutiny by the court. The rules of law which
govern in such cases, if carefully observed, will generally accomplish justice.
There is, of course, a bare possibility that a rigid adherence to these rules may in
exceptional cases work an injustice; but this is unavoidable. Neither the law nor
the means of enforcing it are infallible, nor are the methods appointed by the law
for the discovery of truth and the detection of error immune from mistakes; but it
is far better that a single person should suffer mischief than that the rules be so
relaxed that every litigant will have it within his power, by keeping back part of
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his evidence and then swearing that it was forgotten, to destroy a verdict and
obtain a new trial at his pleasure.” Id. at 207-08.
¶ 18 The rationale stated in Williams is equally applicable under the facts of the present case
and, indeed, is the same position that has been adopted by a majority of other jurisdictions, albeit
in the context of motions for new trial. See A. Petry, Annot., Facts or Evidence Forgotten at
Trial as Newly Discovered Evidence Which Will Warrant Grant of New Trial in Criminal Case,
92 A.L.R. 2d 992 (1963) (“[i]t is a well-settled rule of law, established both by judicial decision
and by statute, that forgotten facts do not ordinarily constitute such newly discovered evidence as
will justify a new trial, and that the want of recollection of a fact which by due diligence and
attention might have been remembered, is not ground for a new trial in a criminal case”). We
believe that the same rule would also apply to claims of recovered memory in a postconviction
proceeding, such as in the instant case. We find, therefore, that defendant’s recovered memory of
the events leading up to his wife’s death did not constitute newly discovered evidence under the
law. See Williams, 242 Ill. at 204-08.
¶ 19 We note, however, that even if we were to find that defendant’s recovered memory
constituted newly discovered evidence, we would still have to conclude that defendant’s
postconviction petition failed to state the gist of a constitution claim and was properly dismissed
for two reasons. First, as to defendant’s claim of self-defense, the record in this case clearly
rebutted that claim. Defendant’s own affidavit established that he was not acting in self-defense
at the time of Teresa’s death since defendant averred that Teresa was on the ground, that he was
on top of her, that he had taken the knife away from her, that he had the knife in his hand, and
that he went into a rage and started stabbing her. Even in a light most favorable to defendant, we
cannot find that those statements would establish the gist of a claim of self-defense. See People
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v. Belpedio, 212 Ill. App. 3d 155, 160-61 (1991) (recognizing that the use of self-defense must,
among other things, be reasonable and necessary and not for the purpose of retaliation). In
addition, the evidence presented at the stipulated bench trial clearly negated any possible claim
of self-defense as Teresa had been stabbed nine times in the chest, two times in the neck, and had
nine stab wounds of a defensive nature to her hands. See id. at 161 (indicating that if a person
responds to a confrontation with such excessive force that he is no longer acting in self-defense
but in retaliation, the excessive use of force makes that person the aggressor).
¶ 20 Second, we agree with the appellate court in Wingate that a defendant’s claim of second
degree murder does not constitute a claim of actual innocence under Illinois law. See Wingate,
2015 IL App (5th) 130189, ¶ 24. Rather, to constitute a claim of actual innocence, a defendant’s
claim has to be able to completely exonerate defendant of the offense in question and all related
offenses. See id. Thus, defendant’s claim of second degree murder in the instant case does not
establish the gist of a constitutional claim. See id.
¶ 21 In reaching that conclusion, we note that contrary to defendant’s assertion on appeal, the
decision in Wingate does not run afoul of the decisions of our supreme court on cases of actual
innocence. See, e.g., People v. Washington, 171 Ill. 2d 475, 489 (1996) (stating that for a
defendant to be entitled to relief on a postconviction claim of actual innocence based on newly
discovered evidence, the supporting evidence must be new, material, noncumulative, and of such
a conclusive character as would probably change the result on retrial); Morgan, 212 Ill. 2d at 154
(same); People v. Coleman, 2013 IL 113307, ¶ 96 (reaffirming the standard set forth in
Washington for postconviction claims of actual innocence based on newly discovered evidence).
Rather, the appellate court in Wingate applied a more specific rule under the particular facts of
that case—where a defendant was raising in a postconviction petition a claim that newly
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discovered evidence could reduce his first degree murder conviction to second degree murder.
See Wingate, 2015 IL App (5th) 130189, ¶ 24. That is the exact same claim that defendant raised
in the instant case. We find, therefore, that the Wingate decision is applicable here and that
defendant’s claim did not constitute a claim of actual innocence. See id.
¶ 22 II. Imposition of Certain Fines Upon Defendant
¶ 23 As his second point of contention on appeal, defendant argues, and the State agrees, that
certain fines imposed upon defendant in the trial court must be vacated because the fines were
imposed by the circuit clerk and were not ordered by the trial court. See People v. Strong, 2016
IL App (3d) 140418, ¶ 8 (the imposition of a fine is a judicial act; the circuit clerk has no
authority to impose fines not ordered by the trial court); People v. Johnson, 2015 IL App (3d)
140364, ¶¶ 9-12 (recognizing that certain assessments imposed on the defendant were fines that
could not be imposed by the circuit clerk); People v. Burnett, 2016 IL App (3d) 140837, ¶ 8
(same). However, pursuant to our supreme court’s recent ruling in People v. Vara, we have no
jurisdiction to rule upon this issue and must dismiss that portion of defendant’s appeal. See
People v. Vara, 2018 IL 121823, ¶¶ 23, 30 (finding that the appellate court had no jurisdiction to
review fines that were imposed upon the defendant by the circuit clerk, and not by the trial court,
because the entry of the fines by the clerk was a ministerial function and not a judgment—void
or otherwise). Any questions as to the accuracy of the financial assessments imposed upon
defendant as recorded in the circuit clerk’s records must be resolved through the cooperation of
the parties and the circuit clerk or by the circuit court in a mandamus proceeding. See id. ¶ 31.
¶ 24 CONCLUSION
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¶ 25 For the foregoing reasons, we affirm the trial court’s summary dismissal of defendant’s
pro se postconviction petition in the first stage of proceedings and dismiss the remainder of
defendant’s appeal for lack of appellate jurisdiction.
¶ 26 Affirmed in part and dismissed in part.
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