People v. Levi ( 2021 )

2021 IL App (1st) 160510-UB
No. 1-16-0510
Order filed February 3, 2021
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 08 CR 5529
)
RAPHAEL LEVI, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge, presiding.
JUSTICE BURKE delivered the judgment of the court.
Justices McBride and Reyes concurred in the judgment.
ORDER
¶1 Held: Where defendant presented a colorable claim of actual innocence, we reverse the
circuit court’s denial of his pro se motion for leave to file a successive
postconviction petition and remand for further proceedings under the Post-
Conviction Hearing Act.
¶2 Following a 2009 jury trial, defendant Raphael Levi was convicted of first degree murder
of Terrance Jackson and sentenced to 60 years’ imprisonment. We affirmed defendant’s conviction
on direct appeal. People v. Levi, 2012 IL App (1st) 100379-U (unpublished order under Supreme
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Court Rule 23). In 2015, defendant filed a pro se motion for leave to file a successive
postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et
seq. (West 2014)), alleging actual innocence based on newly discovered evidence that Caleb
Charlston, an eyewitness to Jackson’s murder, came forward and named someone other than
defendant as the shooter. The circuit court denied leave to file the successive petition. We affirmed,
finding that defendant failed to present a colorable claim of actual innocence because Charlston’s
affidavit did not constitute reliable new evidence that was so conclusive it would probably change
the result on retrial. People v. Levi, 2019 IL App (1st) 160510-U.
¶3 On September 30, 2020, our supreme court denied defendant’s petition for leave to appeal,
but directed this court to vacate our judgment and reconsider the matter in light of People v.
Robinson, 2020 IL 123849, to determine whether a different result was warranted. People v. Levi,
No. 124774 (Ill. Sept. 30, 2020) (supervisory order). After reconsideration in light of Robinson,
we find that defendant has presented a colorable claim of actual innocence, and we reverse the
circuit court’s judgment and remand for further proceedings under the Act. Because we set forth
the facts of the case in defendant’s direct appeal (Levi, 2012 IL App (1st) 100379-U (unpublished
order under Supreme Court Rule 23)), we recite them here to the extent necessary to our
disposition.
¶4 At trial, the State’s theory of the case was that a disagreement between defendant and
Jackson escalated and resulted in defendant shooting Jackson. The defense theory was that
defendant was asleep at his girlfriend’s residence at the time of the shooting.
¶5 Jackson’s wife, Joyce Jackson, testified she did not know defendant but had seen him “in
the neighborhood.” She knew defendant’s nickname was “Nudie Man” and identified him in court.
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Three days before the shooting, on August 6, 2007, at around 6 p.m., Jackson was in his car picking
Joyce up from his aunt’s residence on the 9200 block of South University Avenue. Joyce received
a call from Jackson, who was waiting in his car, telling her to “hurry up because Nudie Man and
his brother are going to get him with a bat.” As Joyce walked to Jackson’s car, she observed Nudie
Man holding a bat in his hands and standing with two other men across the street. On August 9,
2007, at around 6:45 a.m., Jackson’s aunt informed Joyce that Jackson had been shot.
¶6 On cross-examination, Joyce testified she spoke with Detective Eileen Heffernan the day
after Jackson was shot. She told Heffernan about the August 6, 2007 incident. However, she
acknowledged that she did not call the police on that date because “nothing happened.”
¶7 Curtis Moore testified that he lived on the 9200 block of South University across the street
from Jackson’s aunt. He owned a construction business and Jackson worked for him. Moore knew
defendant as Nudie Man from the neighborhood and identified him in court.
¶8 On August 9, 2007, around 7 a.m., Moore instructed Jackson to park in the alley at the back
of his residence before they drove to a job together. As Moore went to meet Jackson in the alley,
he heard three gunshots. Moore immediately called Jackson, who stated, “Man, this n*** just shot
me.” When Moore asked who shot him, Jackson responded, “Nudie Man.” Moore called 911 and
told them that Jackson was driving to the hospital. The police arrived shortly thereafter and Moore
spoke first with a plainclothes officer and later with two detectives. Moore was aware that
defendant and Jackson knew each other and were “[n]ot too friendly that week.”
¶9 On cross-examination, Moore acknowledged he could not recall whether he told a detective
that Jackson named Nudie Man as his shooter. However, he clarified that he knew he told the
police about his conversation with Jackson on the date of the shooting because they “went down
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the street” in search of the person Moore named as the shooter. Moore emphasized that he told the
police several times that Jackson said, “Man, this n*** just shot me.” He also told Detective
Heffernan on the date of the shooting that he spoke with Jackson on the phone and gave her the
details of the conversation, including that Nudie Man was the shooter. Moore did not tell Heffernan
again that Jackson named Nudie Man as the shooter because “it was clear the first time.”
¶ 10 Jeffrey Bloomingberg, Jackson’s cousin, testified that on the day in question, he and
Jackson were working for Moore. Bloomingberg and Jackson were in Jackson’s white truck that
morning. They drove to Moore’s house between 7 and 7:30 a.m. Jackson spoke with Moore on the
phone and then parked in the alley in the back of the residence. While sitting in the alley, Jackson
pointed out a “beat up,” “burgundy” car that drove past and said he was fighting with the driver.
Bloomingberg did not see the driver and did not know whom Jackson was talking about.
¶ 11 As the two men sat in the car, a man walked into the alley holding a silver “small
automatic” gun. He walked from the passenger side of the car to the driver’s side, where Jackson
was seated. Bloomingberg did not know the man, but it was daylight and he got a “good look” at
him. Bloomingberg identified defendant in court as the person holding the gun.
¶ 12 After approaching the driver’s side of the car, defendant and Jackson began discussing a
disagreement between the two of them, indicating that they knew each other. Bloomingberg did
not know what the men were talking about, but defendant reacted angrily. Defendant then asked
Jackson whether he had money, and Jackson responded that he had seven dollars. Defendant said
that Jackson had more than seven dollars, and Jackson took his wallet out to show defendant its
contents. Bloomingberg was seated in the passenger seat for the entire conversation and was
looking at defendant, hoping he would not shoot the gun. After arguing about the money, defendant
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“looked at [Jackson] real strangely and he shot.” The first bullet missed Jackson, but defendant
fired two more shots and hit Jackson in the chest. Defendant pointed his gun at Bloomingberg and
retreated back into the alley.
¶ 13 Jackson subsequently called Moore and told him he had been shot. Jackson gave Moore
the shooter’s “street name,” but Bloomingberg could not recall the nickname at the time of trial.
Jackson thereafter started driving out of the alley. At 92nd Street and University, Bloomingberg
switched to the driver’s seat and drove Jackson to the hospital.
¶ 14 Bloomingberg spoke with police officers and told them that Jackson had named the shooter
during the phone call with Moore. After speaking with the officers, Bloomingberg identified
defendant as the shooter in a photographic array at approximately 9:45 a.m. on the day of the
shooting. In the photograph, defendant had braided hair, but Bloomingberg clarified he did not
have braids in his hair when he shot Jackson. Despite the discrepancy in hairstyles, Bloomingberg
identified defendant’s photo because he recognized his face. In February 2008, while
Bloomingberg was in jail on a narcotics charge, he viewed a physical lineup and identified
defendant as the shooter “right away.” Bloomingberg acknowledged he had a prior drug
conviction.
¶ 15 On cross-examination, Bloomingberg reiterated both that Jackson called Moore after he
was shot, and Bloomingberg told the detectives that Jackson named his shooter during the phone
call to Moore. Bloomingberg acknowledged that he was on probation at the time of the shooting
and in jail when he identified defendant in a physical lineup.
¶ 16 Crystal Taylor testified she was friends with Ebony Buckley, who had a child with
defendant. Taylor knew defendant as Nudie Man and identified him in court. In February 2008,
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Taylor was at Buckley’s residence. Buckley and defendant got into a fight and Taylor overheard
Buckley say that defendant was wanted for murder. Defendant subsequently told Taylor that he
“shot the dude,” and Buckley threatened to turn him into the police whenever she was mad at him.
When Taylor asked defendant more about the murder, defendant said he “got into it” with a “dude”
and was not “gonna let the dude kill him” so he shot and killed him first. Defendant also stated he
was on the news and “America's Most Wanted.” He told Taylor that he planned on turning himself
in but his mother was dying, and he was “waiting for somebody to sign a notarized letter.”
¶ 17 At the end of February 2008, defendant called Taylor and asked her to meet him at a hotel
on 79th Street and Normal Avenue. Taylor declined, called the police, and gave them defendant’s
whereabouts. Taylor acknowledged she did not call the police on the day she found out defendant
shot someone.
¶ 18 Chicago police detective Eileen Heffernan testified that on the morning of the shooting she
went to the alley where the shooting occurred and then to the hospital, where she learned Jackson
had died. She spoke with witnesses at the hospital and learned that Jackson had been shot inside
his car, which was parked at the hospital. Heffernan also spoke with officers at the hospital before
returning to the alley where the shooting occurred. By that time, she had information about a
possible suspect whose nickname was Nudie Man. She later learned Nudie Man was defendant
and put out an investigative alert with defendant’s name and description.
¶ 19 While attempting to locate defendant, Heffernan learned he lived at an address in Dolton,
approximately a 15-minute drive from the alley where Jackson was shot. She also learned Talania
Williams, defendant’s girlfriend, lived at the Dolton residence. Heffernan spoke with Williams on
August 10, 2007, and ascertained that she had kicked defendant out of the house on the day of the
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shooting. The police were unable to locate defendant until February 2008, when they received a
call from Buckley and Taylor. Following that phone call, defendant was arrested at a hotel on 79th
Street. Bloomingberg subsequently made an “immediate identification” of defendant as Jackson’s
shooter in a physical lineup.
¶ 20 On cross-examination, Heffernan testified that when she spoke with Moore on the day of
the shooting, he did not tell her that Jackson named Nudie Man as the shooter. Joyce informed her
of an incident three days prior to the shooting where three men were coming toward her and
Jackson with a bat, but she did not name Nudie Man as one of the men.
¶ 21 On redirect, Heffernan testified the suspect in Jackson’s shooting was immediately
identified after the shooting. The State then asked the following question:
“[ASSISTANT STATE’S ATTORNEY]: When you talked to [Joyce], she did tell
you that her husband said hurry up while in the car as the three men with bats approached
that Nudie Man was out to get him?
[WITNESS]: Yes.”
¶ 22 The medical examiner testified that Jackson died from a gunshot wound to the chest.
¶ 23 For the defense, Talania Williams, defendant’s girlfriend, testified that in August 2007
defendant was living with her in Dolton. He had a key to her apartment. On the day of the shooting,
she saw defendant sleeping between 3 and 4:30 a.m. when she woke up. Williams woke up again
around 8 a.m. and saw defendant sleeping. At some point that day, Williams woke defendant up
and told him to leave her house “because it was rumored that he had killed someone.” She
acknowledged that she was asleep at 7 a.m. and did not know where defendant was at that time.
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¶ 24 Rosie Swanigan, Williams’ neighbor, testified for the defense that when she left for work
between 8 and 8:30 a.m. on the morning of the shooting, she observed defendant’s car, which was
maroon and “really raggedy.” She did not see defendant.
¶ 25 The State called Heffernan in rebuttal. Heffernan testified that in October 2007, Williams
told her she woke up in her apartment between 4 and 5 a.m. and saw defendant, and woke again
later between 9:30 and 10 a.m. Williams never said that she woke up at 8 a.m.
¶ 26 The jury found defendant guilty of first degree murder in which he personally discharged
a firearm. The court sentenced defendant to a total of 60 years’ imprisonment, including a 25-year
firearm enhancement. We affirmed on direct appeal. Levi, 2012 IL App (1st) 100379-
U (unpublished order under Supreme Court Rule 23).
¶ 27 On August 15, 2013, defendant filed an initial pro se postconviction petition, raising claims
regarding hearsay testimony admitted at trial, jury instructions, the firearm enhancement included
in his sentence, and numerous claims of ineffective assistance of trial and appellate counsel. On
November 1, 2013, the circuit court summarily dismissed defendant’s petition. Defendant did not
appeal the dismissal.
¶ 28 On April 3, 2015, defendant mailed a pro se motion for leave to file a successive
postconviction petition and a motion for discovery. In his petition, defendant asserted, inter alia,
a claim of actual innocence based on newly discovered evidence. He alleged that Caleb Charlston,
an eyewitness to Jackson’s murder, came forward and claimed someone other than defendant shot
Jackson. Defendant claimed he could not raise this issue earlier because he was not at the scene of
the crime and did not know who witnessed the crime.
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¶ 29 In support of his petition, defendant attached a notarized affidavit from Charlston dated
February 24, 2015. 1 Charlston averred that, at around 7 or 7:30 a.m. on August 9, 2007, he was
leaving his girlfriend’s residence on the 9200 block of South University Avenue and witnessed
Mark Cooper fire a gun at two men in a white pickup truck in the alley. Charlston feared for his
life and ran to the front of the residence. He did not come forward sooner because he feared gang
retaliation.
¶ 30 In his own affidavit, defendant averred that he was actually innocent and could not have
discovered the eyewitness evidence sooner because he did not know Charlston and had “no way
of knowing” that Charlston witnessed the crime until he contacted defendant in 2015. He further
averred that he “wore long braids” at the time of the shooting and was unfairly arrested because
his wife lied to police.
¶ 31 On December 17, 2015, the court denied defendant leave to file a successive postconviction
petition and his motion for discovery. With respect to defendant’s actual innocence claim, the court
found that, even assuming the evidence in Charlston’s affidavit was newly discovered and not
cumulative, it was not material nor “so conclusive that it would overcome the evidence presented
at trial.” Specifically, the court noted that, while the testimony inculpated Mark Cooper, it did not
exculpate defendant.
¶ 32 We affirmed the circuit court’s denial, finding that defendant failed to present a colorable
claim of actual innocence because Charlston’s affidavit did not constitute reliable new evidence
and was not so conclusive that it would probably change the result on retrial. Levi, 2019 IL App
1
The first part of the affidavit uses the spelling “Charlston,” but the signature on the affidavit is
spelled “Charleston.”
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(1st) 160510-U, ¶¶ 36-37. On September 30, 2020, our supreme court denied defendant’s petition
for leave to appeal, but directed this court to vacate our judgment and reconsider the matter in light
of Robinson, 2020 IL 123849, to determine whether a different result was warranted. See Levi, No.
124774 (Ill. Sept. 30, 2020) (supervisory order).
¶ 33 On appeal, defendant contends the circuit court erred in denying him leave to file a
successive postconviction petition based on Charlston’s affidavit.
¶ 34 The Act permits criminal defendants to challenge their convictions or sentences on grounds
of constitutional violations. People v. Beaman, 229 Ill. 2d 56, 71 (2008). However, the Act
generally contemplates the filing of only one petition. People v. Ortiz, 235 Ill. 2d 319, 328 (2009);
725 ILCS 5/122-3 (West 2014). In order to file a successive postconviction petition, a defendant
must first obtain “leave of court.” See 725 ILCS 5/122-1(f) (West 2014); People v. Tidwell, 236
Ill. 2d 150, 157 (2010).
¶ 35 The bar against successive proceedings is relaxed only where the defendant can satisfy (1)
the cause and prejudice test of the Act for failing to raise the claim earlier; or (2) the “fundamental
miscarriage of justice” exception, set forth as a claim of actual innocence. 725 ILCS 5/122-1(f)
(West 2014); People v. Edwards, 2012 IL 111711, ¶¶ 22, 23. It is the defendant’s burden to obtain
leave of court before further proceedings on his successive postconviction claims can follow. Id.,
¶ 24.
¶ 36 Where, as in this case, a defendant seeks to relax the bar against successive postconviction
petitions on the basis of actual innocence, the court should deny such leave only when it is “clear
from a review of the petition and supporting documentation that, as a matter of law, the petition
cannot set forth a colorable claim of actual innocence.” Robinson, 2020 IL 123849, ¶ 44. In other
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words, the court should grant leave to file a successive petition based on actual innocence where
the successive petition and supporting documentation “raises the probability that ‘it is more likely
than not that no reasonable juror would have convicted him in the light of the new evidence.’ ”
Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup v. Delo, 513 U.S. 298, 327 (1995)). At the
pleading stage, “all well-pleaded allegations in the petition and supporting affidavits that are not
positively rebutted by the trial record are to be taken as true.” Robinson, 2020 IL 123849, ¶ 45. We
review the circuit court’s denial of leave to file a successive petition de novo. Id. ¶ 40.
¶ 37 To succeed on a claim of actual innocence, a petitioner must present evidence that is (1)
newly discovered, (2) material and noncumulative, and (3) of such a conclusive character that it
would probably change the result on retrial. People v. Coleman, 2013 IL 113307, ¶ 96 (citing
People v. Washington, 171 Ill. 2d 475, 489 (1996)).
¶ 38 Newly discovered evidence is evidence that was discovered after trial that could not have
been discovered sooner through the exercise of due diligence. Robinson, 2020 IL 123849, ¶
47. Material evidence is evidence which is relevant and probative of the defendant’s innocence.
Id. Noncumulative evidence adds to the information that was presented to the fact finder at trial.
Coleman, 2013 IL 113307, ¶ 96 (citing People v. Molstad, 101 Ill. 2d 128, 135 (1984)).
¶ 39 Taking the pleadings and supporting documents as true, as we must, we find Charlston’s
affidavit provides new, material, noncumulative evidence in support of defendant’s actual
innocence claim. Defendant averred he was not present at the shooting and was unaware of any
witnesses until 2015 when Charlston contacted him. Charlston averred he did not come forward
initially out of fear of gang retailiation. Defendant, therefore, could not have discovered him sooner
through the use of due diligence.
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¶ 40 Further, Charlston’s affidavit identifies someone other than defendant as the shooter, which
is probative of defendant’s innocence and adds to the information that was before the jury.
Charlston averred he observed Mark Cooper shoot into a white truck at the relevant date and time
in the alley behind his girlfriend’s residence on the 9200 block of South University Avenue. Such
evidence is material to the central issue in the case, namely, the identity of the shooter. Although
defendant argued at trial that he was elsewhere at the time of the shooting, the jury did not hear
testimony that another witness to the shooting identified Mark Cooper, rather than defendant, as
the shooter.
¶ 41 The conclusive character element of actual innocence claims refers to evidence that, when
considered along with the trial evidence, would probably lead to a different result on
retrial. Coleman, 2013 IL 113307, ¶ 96 (citing Ortiz, 235 Ill. 2d at 336-37). The conclusive
character of the new evidence is the most important element of an actual innocence claim.
Robinson, 2020 IL 123849, ¶ 47 (citing Washington, 171 Ill. 2d at 489). With regard to the
conclusive character element, ultimately, we must determine “whether the evidence supporting the
postconviction petition places the trial evidence in a different light and undermines the court’s
confidence in the judgment of guilt.” Robinson, 2020 IL 123849, ¶ 48 (citing Coleman, 2013 IL
113307, ¶ 97). The new evidence is not required to be “entirely dispositive to be likely to alter the
result on retrial.” Id. “Probability, rather than certainty, is the key in considering whether the fact
finder would reach a different result after considering the prior evidence along with the new
evidence.” Id.¶ 42 Here, we find Charlston’s affidavit places the trial evidence in a different light. The State’s
evidence at trial showed Bloomingberg identified defendant as the shooter in a photo array on the
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date of the shooting and in a physical lineup after defendant was arrested several months later.
Several witnesses testified they knew defendant as “Nudie Man,” and Moore testified that Jackson
named Nudie Man as his shooter following the shooting. However, Detective Heffernan denied
that Moore informed her that Jackson identified Nudie Man as the shooter. Defendant presented
an alibi defense, arguing he was at his girlfriend’s house at the time of the shooting. In his affidavit,
Charlston names a different individual as the shooter, supporting defendant’s theory of the case.
Where, as here, newly discovered evidence is both exonerating and contradicts a State’s witness,
it is capable of producing a different outcome on retrial. Ortiz, 235 Ill. 2d at 336-37 (identification
of different offender presents evidence that facts should be analyzed more closely to determine
defendant’s guilt or innocence); see also People v. Harper, 2013 IL App (1st) 102181, ¶ 49 (same).
¶ 43 Moreover, although Charlston’s affidavit conflicts with the State’s witnesses, “the
existence of a conflict with the trial evidence is not the same as finding that the new evidence is
positively rebutted.” Robinson, 2020 IL 123849, ¶ 60. To be positively rebutted, it must be “clear
from the trial record that no fact finder could ever accept the truth of that evidence, such as where
it is affirmatively and incontestably demonstrated to be false or impossible.” Id. In this case, the
record does not affirmatively demonstrate that a trier of fact could never accept the veracity of
Charlston’s statements.
¶ 44 Accordingly, because we find defendant has satisfied the pleading requirements for
obtaining leave to file a successive postconviction petition, his claim of actual innocence must be
advanced to second stage proceedings under the Act. See id. ¶ 85 (“the only issue presented in this
case is whether [the defendant] may file his successive postconviction petition that alleges he is
actually innocent of the crimes for which he has been convicted and sentenced”). We therefore
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reverse the judgment of the circuit court and remand the cause for further proceedings under the
Act.
¶ 45 Reversed and remanded.
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