People v. Brooks ( 2021 )

Digitally signed
by Reporter of
Decisions
Reason: I attest to
Illinois Official Reports the accuracy and
integrity of this
document
Appellate Court Date: 2022.10.31
11:11:58 -05'00'
People v. Brooks, 2021 IL App (4th) 200573Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption NICHOLAS CARLOS BROOKS, Defendant-Appellant.
District & No. Fourth District
No. 4-20-0573
Filed September 28, 2021
Rehearing denied October 19, 2021
Decision Under Appeal from the Circuit Court of McLean County, No. 09-CF-801; the
Review Hon. Scott D. Drazewski, Judge, presiding.
Judgment Reversed and remanded with directions.
Counsel on James E. Chadd, Douglas R. Hoff, and Christofer R. Bendik, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Don Knapp, State’s Attorney, of Bloomington (Patrick Delfino, David
J. Robinson, and Allison Paige Brooks, of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Presiding Justice Knecht and Justice DeArmond concurred in the
judgment and opinion.
OPINION
¶1 In December 2010, a jury found defendant, Nicholas Carlos Brooks, guilty of first degree
murder of John Turnpaugh (720 ILCS 5/9-1 (West 2010)), and the trial court later sentenced
defendant to 60 years in prison. He appealed, and this court affirmed. People v. Brooks, 2012
IL App (4th) 110516-U, ¶ 48.
¶2 In August 2013, defendant filed pro se a postconviction petition under the Post-Conviction
Hearing Act (Act). 725 ILCS 5/122-1 et seq. (West 2012). The trial court advanced defendant’s
petition to the second stage and appointed counsel, as defendant requested. The State filed a
motion to dismiss, which the court granted. Defendant appealed, and this court reversed,
concluding that postconviction counsel provided defendant unreasonable assistance. We
remanded for further second-stage proceedings and the appointment of new counsel. People v.
Brooks, 2018 IL App (4th) 160010-U, ¶ 19.
¶3 On remand in January 2020, defendant’s newly appointed counsel filed an amended
postconviction petition, alleging that defendant’s trial counsel provided ineffective assistance
by failing, among other things, to investigate or call Alena Carsell as a witness. The petition
alleged (1) Carsell possessed a text message from Junior Snow in which Snow admitted to
having killed Turnpaugh and (2) no evidence existed that trial counsel investigated Carsell as
a witness.
¶4 In August 2020, the State filed a motion to dismiss defendant’s postconviction petition,
and in October 2020, the trial court granted that motion.
¶5 Defendant appeals, arguing that his postconviction petition made a substantial showing that
trial counsel provided ineffective assistance when counsel failed to investigate Carsell or call
her as a witness. Specifically, defendant alleges that (1) Carsell could have testified and
provided Snow’s text messages inculpating himself in Turnpaugh’s death and (2) no evidence
existed to show that trial counsel investigated her as a witness.
¶6 We conclude that the trial court erred by dismissing defendant’s postconviction petition
at the second stage, reverse that dismissal, and remand for third-stage proceedings.
¶7 I. BACKGROUND
¶8 A. The Evidence at Defendant’s Trial
¶9 To put defendant’s postconviction claims in context, we will briefly summarize the
evidence presented at defendant’s trial.
¶ 10 In July 2009, the McLean County Sheriff’s Department was informed that John Turnpaugh,
a white male, was missing. Later that month, the police discovered Turnpaugh’s decomposed
body in his mobile home. Turnpaugh’s death was caused by multiple injuries involving slash
and stab wounds to his body and a penetrating injury to the skull that went through his brain.
-2-
¶ 11 Turnpaugh was last seen with defendant, and Turnpaugh’s vehicle was located near
defendant’s sister’s residence. The police were able to determine that defendant used
Turnpaugh’s cell phone to call several of defendant’s family members and friends on the
morning of July 2, 2009.
¶ 12 In the early morning hours of July 2, 2009, Turnpaugh, defendant, and two other men were
“hanging out” at a Bloomington residence when Turnpaugh said he wanted to go back to his
trailer where he had some beer. The other two men left and went their own way, while
defendant and Turnpaugh went in a different direction in Turnpaugh’s van.
¶ 13 Later on July 2, 2009, defendant picked up a woman, Heidi Cummings, from a location
near the Salvation Army shelter. Defendant was driving Turnpaugh’s van. Defendant showed
Cummings a bag that contained a T-shirt, a hammer, and a knife. Defendant told Cummings
that the red substance on the items was blood and it got there because he had just killed
somebody.
¶ 14 The police recovered surveillance from July 2 depicting defendant picking up Cummings
in Turnpaugh’s van at 7:56 a.m.
¶ 15 Defendant’s brother, Jeremy Fields, testified to also seeing defendant that morning. Fields
testified that (1) defendant’s T-shirt was covered in blood and (2) he had a bloody hammer.
Defendant had a cell phone that he used to make several calls, and defendant told Fields that
he had killed someone in a fight.
¶ 16 B. Defendant’s Postconviction Petition
¶ 17 In January 2020, defendant filed an amended postconviction petition, alleging that trial
counsel was ineffective for failing to call Carsell because (1) Carsell possessed a text message
from Snow in which he admitted to having killed Turnpaugh and (2) no evidence existed that
trial counsel investigated her as a witness.
¶ 18 Defendant attached to the petition numerous exhibits, which included an affidavit from an
investigator, Nicholas Tripoli. That affidavit contained the following regarding Tripoli’s
contact with Carsell:
“I was initially able to contact Ms. Carsell by phone and had a conversation with her
regarding her knowledge of [defendant’s] case. She indicated that she had received text
messages from the actual murderer, Junior Snow, admitting to the crime and that Ms.
Carsell had been in possession of those text messages for quite some time after
[defendant’s] trial. However, Ms. Carsell stopped answering my phone calls[,] and I
was unable to obtain an affidavit from her. I have no information as to Ms. Carsell’s
whereabouts or any other contact information as she refused to give that information to
me.”
¶ 19 Defendant’s affidavit was also submitted in support of his petition, and among other
averments in that affidavit, defendant asserted the following:
“Another thing I told my attorneys before trial was that I had learned that an individual
by the name of Alena Carsell had received text messages from the actual murderer,
Junior Snow, admitting to the crime and that Ms. Carsell might still be in possession of
those text messages.
*** I personally spoke to Ms. Carsell on the phone in approximately August of
2012 while I was incarcerated in Stateville Correctional Center[,] and Ms. Carsell
-3-
corroborated the fact that she had the text messages from Junior Snow on her phone
that indicated that Junior Snow was the one who killed Turnpaugh.”
¶ 20 In defendant’s verified initial postconviction petition, he wrote the following:
“Ms. Carsell would’ve testified that she was in contact with defense counsel and spoke
to the defense investigator about her (Carsell) having a text message on her phone from
‘Jr’ Snow stating, ‘I gave that white boy what he deserved’ and that she told the
investigator she had no problem with coming in and testifying on behalf of the defense
that they (State) had the wrong guy.”
¶ 21 In August 2020, the State filed a motion to dismiss defendant’s amended postconviction
petition. In October 2020, the trial court conducted a hearing on the State’s motion and granted
it, explaining, in part, the court’s reasons for doing so, as follows:
“[T]here is an abundance of case law within the State of Illinois that failure to attach or
provide affidavits as required under the Post-Conviction Hearing Act, more specifically
725 ILCS 5/122-2, that failure to attach any such affidavit defeats any post-conviction
petition alleging what a witness could or may have testified to because then it’s just the
defendant’s own statements that had this witness been contacted he or she would have
testified to this.
This is maybe a little bit different because there is secondhand hearsay, that being
we have the affidavit from Mr. Tripoli, the private investigator, that he had a
conversation in particular with Miss Carsell. But that is insufficient because it would
not be admissible whether it be a third stage proceeding on a post-conviction petition
or certainly not at trial as to what any statement or statements that she would have
made. Also[,] I’ll doubt the argument made by the State which is that that information
would not have been admissible at trial due to the fact that there would have been no
foundation that could have been laid.
Lastly[,] on that particular issue even if—even if the testimony of Miss Carsell was
or would have been provided[,] the other evidence in the case—the other evidence in
the case was overwhelming[,] and there would have been no reasonable probability
from the court’s perspective here that had the jury heard such testimony[,] that the
outcome of the trial would have been any different.”
¶ 22 This appeal followed.
¶ 23 II. ANALYSIS
¶ 24 Defendant appeals, arguing that his postconviction petition made a substantial showing that
his trial counsel provided ineffective assistance when he failed to investigate Carsell or call
her as a witness. Specifically, defendant alleges that (1) Carsell could have testified and
provided text messages from Snow inculpating himself in Turnpaugh’s death and (2) no
evidence existed to show that trial counsel investigated her as a witness.
¶ 25 We conclude that the trial court erred by dismissing defendant’s postconviction petition at
the second stage, reverse that dismissal, and remand for third-stage proceedings.
¶ 26 A. The Law Regarding Claims of Ineffective Assistance of Counsel
¶ 27 All defendants enjoy the constitutional right to effective assistance of counsel. U.S. Const.,
amends. VI, XIV; Ill. Const. 1970, art. I, § 8. “To prevail on a claim of ineffective assistance
-4-
of counsel, a defendant must demonstrate that counsel’s performance was deficient and that
the deficient performance prejudiced the defendant.” People v. Pope, 2020 IL App (4th)
180773, ¶ 61, 157 N.E.3d 1055.
¶ 28 “To establish deficient performance, a defendant must show his counsel’s performance fell
below an objective standard of reasonableness.” Id. ¶ 62. It is not sufficient for a defendant to
show that counsel’s representation was imperfect because the constitution guarantees only a
reasonably competent counsel. Harrington v. Richter, 562 U.S. 86, 110 (2011) (citing
Strickland v. Washington, 466 U.S. 668, 687 (1984)). Instead, a defendant must show his
counsel’s representation undermined the proper functioning of the adversarial process to such
an extent that the defendant was denied a fair trial. Id. (citing Strickland, 466 U.S. at 686).
¶ 29 To show prejudice, a defendant must demonstrate “that there is a ‘reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different.’ ” People v. Domagala, 2013 IL 113688, ¶ 36, 987 N.E.2d 767 (quoting Strickland,
466 U.S. at 694). “The likelihood of a different result must be substantial, not just conceivable.”
Harrington, 562 U.S. at 112. “A defendant must satisfy both prongs of the Strickland test and
a failure to satisfy any one of the prongs precludes a finding of ineffectiveness.” People v.
Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 30 B. The Law Regarding Postconviction Petitions
¶ 31 “The Act provides a criminal defendant the means to redress substantial violations of his
constitutional rights that occurred in his original trial or sentencing.” People v. Fathauer, 2019
IL App (4th) 180241, ¶ 40, 146 N.E.3d 175; 725 ILCS 5/122-1 (West 2018). “The Act contains
a three-stage procedure for relief.” Fathauer, 2019 IL App (4th) 180241, ¶ 40 (citing People
v. Allen, 2015 IL 113135, ¶ 21, 32 N.E.3d 615); 725 ILCS 5/122-2.1 (West 2018).
¶ 32 At the second stage, the trial court appoints counsel (if requested by an indigent petitioner),
who must then investigate the defendant’s claims and make any amendments necessary for an
adequate presentation of the defendant’s contentions. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013).
The State may file a motion to dismiss the petition, and the petition advances to a third-stage
evidentiary hearing only if the defendant makes a “substantial showing of a constitutional
violation.” People v. Buffer, 2019 IL 122327, ¶ 45, 137 N.E.3d 763.
¶ 33 The Illinois Supreme Court has described proceedings at the second stage as follows:
“The second stage of postconviction review tests the legal sufficiency of the petition.
Unless the petitioner’s allegations are affirmatively refuted by the record, they are taken
as true, and the question is whether those allegations establish or ‘show’ a constitutional
violation. In other words, the ‘substantial showing’ of a constitutional violation that
must be made at the second stage [citation] is a measure of the legal sufficiency of the
petition’s well-pled allegations of a constitutional violation, which if proven at an
evidentiary hearing, would entitle petitioner to relief.” (Emphasis in original.)
Domagala, 2013 IL 113688, ¶ 35.
¶ 34 The appellate court reviews a trial court’s dismissal of a petition at the second stage
de novo. People v. Sanders, 2016 IL 118123, ¶ 31, 47 N.E.3d 237.
-5-
¶ 35 C. Applicability of Illinois Rule of Evidence 1101(b)(3)
to Postconviction Proceedings
¶ 36 Illinois Rule of Evidence 1101(b)(3) (eff. Apr. 8, 2013) specifically provides that the rules
of evidence do not apply to proceedings for “sentencing [and] postconviction hearings.”
However, that rule applies differently at the second stage of postconviction proceedings than
it does at the third stage.
¶ 37 1. Applicability of Illinois Rule of Evidence 1101(b)(3)
to Second-Stage Postconviction Proceedings
¶ 38 In People v. Robinson, 2020 IL 123849, ¶ 45, the Supreme Court of Illinois recently
discussed the pleading stages of postconviction proceedings, which includes second-stage
proceedings, as follows:
“At the pleading stage of postconviction proceedings, 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. [Citations.] In deciding the legal sufficiency of a
postconviction petition, the court is precluded from making factual and credibility
determinations.”
¶ 39 In Robinson, the trial court denied the defendant leave to file a successive postconviction
petition, and the appellate court affirmed that denial, concluding that the defendant failed to
raise a colorable claim of actual innocence because his proffered affidavits were not of such a
conclusive nature as to probably change the result of the case on retrial. Id. ¶¶ 30-33.
¶ 40 In Robinson, as in the present case, one of the items at issue was one person’s alleged
confession that was set forth in another person’s affidavit. Id. ¶ 80. The State contended in
Robinson that the alleged confession was not sufficiently reliable and trustworthy to be
admissible under the criteria set forth by the United States Supreme Court in Chambers v.
Mississippi, 410 U.S. 284, 300-01 (1973). Robinson, 2020 IL 123849, ¶ 81. In Chambers, the
Court set forth four factors that are relevant in determining whether sufficient indicia of
trustworthiness are present to admit an extra-judicial confession. Id. (citing Chambers, 410
U.S. at 300-01). However, in Robinson, the Illinois Supreme Court deemed the State’s
contentions premature regarding the reliability of the Chambers statement at issue, noting that
in Sanders, 2016 IL 118123, ¶¶ 33, 42, the supreme court held “that credibility determinations
are made at a third-stage evidentiary hearing,” not at the second stage. Robinson, 2020 IL
123849, ¶ 81.
¶ 41 Regarding the applicability of Rule 1101(b)(3) to second-stage proceedings, the Robinson
court approvingly cited People v. Velasco, 2018 IL App (1st) 161683, ¶¶ 119, 123, 127 N.E.3d
53, in which the First District took as true, pursuant to Rule 1101(b)(3), hearsay allegations
that another gang member bragged to the affiant about committing the murder at issue in that
case; accordingly, the First District in Velasco advanced the actual innocence petition to the
third stage. Id. ¶ 78. In doing so, the Velasco court (1) discussed how Rule 1101(b)(3) applied
to postconviction proceedings and (2) noted that Rule 1101(b)(3) “does not specify that the
rules of evidence are inapplicable only during second-stage hearings, or only during third-stage
hearings. Instead, Rule 1101(b)(3) provides that the rules of evidence are inapplicable to
‘postconviction hearings’ generally and makes no distinction between second and third-stage
hearings.” Id. ¶ 116.
-6-
¶ 42 The Velasco court further discussed how hearsay evidence should be treated at the second
stage and the third stage of postconviction proceedings, writing as follows:
“[H]earsay evidence may be treated differently at the second stage than at the third
stage. At the second stage, the well-pleaded facts in the petition and accompanying
affidavits, including any affidavits containing hearsay, which do not conflict with the
record, are taken as true when determining whether a defendant has made a substantial
showing of his innocence so as to advance the petition to a third-stage evidentiary
hearing; no credibility determinations are made.” Id. ¶ 117.
¶ 43 In June 2020, shortly before the supreme court rendered its decision in Robinson, 2020 IL
123849, First District Appellate Court Justice David Ellis wrote a lengthy dissent in People v.
Simms, 2020 IL App (1st) 161067, ¶¶ 52-77, that expanded upon the First District’s Velasco
analysis regarding the admissibility of evidence at second- and third-stage postconviction
hearings. (We note that the supreme court subsequently entered a supervisory order directing
the First District to vacate its judgment in Simms and to consider Robinson on remand to see if
Robinson would affect the First District’s decision in Simms. People v. Simms, No. 126080 (Ill.
Sept. 30, 2020) (supervisory order). The First District later vacated that decision and—
following Justice Ellis’s analysis—reversed the trial court’s denial of the defendant’s motion
for leave to file successive postconviction petitions. See People v. Simms, 2021 IL App (1st)
161067-B, ¶¶ 35-38.
¶ 44 Although the issue in Simms was how the courts should evaluate a claim of actual
innocence at the leave-to-file stage of a successive postconviction petition (Simms, 2020 IL
App (1st) 161067, ¶ 18), we believe Justice Ellis’s analysis applies to the issue before this court
regarding the second-stage dismissal of defendant’s postconviction petition. Justice Ellis wrote
the following in his Simms dissent:
“What does it mean to take an affidavit as true? Do we merely assume that the affiant
would testify consistently with the affidavit at a new trial? Or must we assume that a
reasonable juror, hearing the affiant’s testimony at a new trial, would believe it—which
is just to say, take it as true?
On the majority’s approach, we simply assume that the affiant would testify at a
new trial as he did in his affidavit. We then weigh that new evidence (of innocence)
against the contrary evidence (of guilt) presented at the original trial and decide which
evidence a reasonable juror would likely believe. Weighing the evidence here, the
majority finds that the evidence of guilt offered at trial was ‘overwhelming,’ and thus
the new evidence presented in Niles’s affidavit [(the affidavit at issue)] probably would
not have changed the verdict. It is in this sense that the majority says Niles’s affidavit
is not ‘conclusive.’
*** [T]his procedure of weighing the evidence is inappropriate at the initial stage
of a postconviction proceeding. ***
***
At this initial stage, we are required to accept ‘[a]ll well-pleaded factual
allegations’—including those set forth in Niles’s affidavit—as true. People v. Sanders,
2016 IL 118123, ¶ 42[, 47 N.E.3d 237]. If taking Niles’s affidavit testimony as true
means anything at all, it must mean that a juror, hearing from Niles at a hypothetical
retrial, would believe his testimony. (To ‘believe’ just means ‘to accept something as
-7-
true, genuine, or real.’ Merriam-Webster Online Dictionary, https://www.merriam-
webster.com/dictionary/believe (last visited June 3, 2019)). *** We then ask whether
it is more likely than not that no reasonable juror, hearing and believing this evidence,
alongside all the other evidence presented at trial, could convict defendant.” (Emphases
in original.) Simms, 2020 IL App (1st) 161067, ¶¶ 53-57 (Ellis, J., dissenting).
¶ 45 We have quoted Justice Ellis’s analysis in Simms and the First District’s analysis in Velasco
because it seems to us that these analyses reflect what the supreme court later said in Robinson.
¶ 46 2. Applicability of Illinois Rule of Evidence 1101(b)(3) to
Third-Stage Postconviction Proceedings
¶ 47 At the third stage, a defendant has the burden of proving a substantial constitutional
violation. People v. Pendleton, 223 Ill. 2d 458, 473, 861 N.E.2d 999, 1008 (2006). The “court
must determine whether the evidence introduced demonstrates that the petitioner is, in fact,
entitled to relief.” Domagala, 2013 IL 113688, ¶ 34. At a third-stage hearing, “the trial court
acts as a fact-finder, making credibility determinations and weighing the evidence. [Citation.]
Accordingly, we review the court’s decision to deny relief for manifest error.” People v. Reed,
2020 IL 124940, ¶ 51. “Manifest error is ‘clearly evident, plain, and indisputable.’ [People v.
Morgan, 212 Ill. 2d 148, 155, 817 N.E.2d 524, 528 (2004).] Thus, a decision is manifestly
erroneous when the opposite conclusion is clearly evident.” People v. Coleman, 2013 IL
113307, ¶ 98, 996 N.E.2d 617.
¶ 48 Reviewing courts apply the manifestly erroneous standard in recognition of “the
understanding that the postconviction trial judge is able to observe and hear the witnesses at
the evidentiary hearing and, therefore, occupies a position of advantage in a search for the truth
which is infinitely superior to that of a tribunal where the sole guide is the printed record.”
(Internal quotation marks omitted.) People v. Coleman, 183 Ill. 2d 366, 384, 701 N.E.2d 1063,
1073 (1998).
¶ 49 In Velasco, the First District also discussed how Rule of Evidence 1101(b)(3) affects third-
stage postconviction proceedings and wrote the following:
“By contrast [with a second-stage hearing], if a petition advances to a third-stage
evidentiary hearing, a defendant will no longer enjoy[ ] the presumption that the
allegations in his petition and accompanying affidavits are true. [Citation.] Instead, as
to a claim of actual innocence, the postconviction court at the third stage is to decide
the weight to be given the testimony and evidence, make credibility determinations,
and resolve any evidentiary conflicts. [Citation.] In determining the weight to be given
the new evidence and whether all the evidence, new and old, is so conclusive that it is
more likely than not that no reasonable juror would find defendant guilty beyond a
reasonable doubt on retrial, the court at the third stage must necessarily consider
whether the new evidence would ultimately be admissible at a retrial. Thus, in this case,
at the third stage, the hearsay affidavits [at issue] would be subjected to credibility,
reliability, and weight-testing, and the court in making its determination would consider
the possibility of their admissibility at a new trial.” (Internal quotation marks omitted.)
Velasco, 2018 IL App (1st) 161683, ¶ 118.
¶ 50 In People v. Wilson, 2019 IL App (1st) 181486, ¶ 1, 158 N.E.3d 1067, at issue was evidence
being offered at an evidentiary hearing under the Illinois Torture Inquiry and Relief
-8-
Commission Act (Torture Act) (775 ILCS 40/1 et seq. (West 2010)). In Wilson, the First
District noted that “[a]n evidentiary hearing under the Torture Act has been likened to a
third-stage evidentiary hearing under the Post-Conviction Hearing Act” (Wilson, 2019 IL App
(1st) 181486, ¶ 51), and then wrote the following:
“The trial court’s evidentiary rulings, which involved the court’s oversight of the
courtroom and maintenance of a case’s progress, will not be reversed absent an abuse
of discretion. [Citation.] *** Additionally, a trial court may reject offered evidence on
grounds of irrelevancy if it has little probative value due to its remoteness, uncertainty,
or possibly unfair prejudicial nature.” (Internal quotation marks omitted.) Id. ¶ 58.
¶ 51 We agree and conclude that the above-quoted analysis in Wilson fully applies to third-stage
postconviction hearings, including a trial court’s “oversight of the courtroom and maintenance
of a case’s progress.” Id.
¶ 52 As we earlier noted, Rule 1101(b)(3) uses the same language in reference to postconviction
hearings and sentencing hearings—namely, that the Illinois Rules of Evidence do not apply to
either of those hearings. Thus, when determining what evidence is admissible at a third-stage
evidentiary hearing and how the trial court should evaluate that evidence, the rules governing
how trial courts have handled such questions at sentencing hearings can be helpful. For
instance, in People v. Varghese, 391 Ill. App. 3d 866, 873, 909 N.E.2d 939, 945 (2009), the
Second District wrote that (1) the ordinary rules of evidence are relaxed during sentencing
hearings and (2) evidence may be admitted if it is both relevant and reliable. Indeed, “[t]he
source and type of admissible information is virtually without limits.” Id.¶ 53 In People v. Gibson, 2018 IL App (1st) 162177, ¶ 139, 105 N.E.3d 47, Justice Ellis also
wrote about the similarity between sentencing hearings and third-stage hearings, as follows:
“There are many *** types of hearings at which the general prohibition against hearsay
does not apply. See Ill. R. Evid. 1101(b)(3) (eff. Apr. 8, 2013). For example, sentencing
hearings have long been exempt from the rules of evidence—in lowercase, since the
exemption predates not only the 2013 amendment but the original codification of the
Rules. [Citations.] We have always left it to the sound discretion of the trial court to
determine whether hearsay is reliable enough to weigh in sentencing. [Citation.] If the
trial court finds hearsay evidence relevant and reliable, the fact that it is hearsay affects
its weight, rather than its admissibility.” (Internal quotation marks omitted.)
¶ 54 Similarly, in People v. Cunningham, 2018 IL App (4th) 150395, ¶ 31, 115 N.E.3d 423, this
court wrote, “ ‘[H]earsay testimony is not per se inadmissible at a sentencing hearing as
unreliable or as denying a defendant’s right to confront accusers.’ ” Id. (quoting People v.
Foster, 119 Ill. 2d 69, 98, 518 N.E.2d 82, 94 (1987)). This court also wrote that an objection
to such evidence goes to the weight of the evidence and not its admissibility. Id. Further, double
hearsay is generally admissible if at least some parts of it have been corroborated by other
evidence. Id. In addition, uncorroborated hearsay is not inherently unreliable, particularly when
(1) the information was compiled during an official investigation or (2) the evidence was never
directly challenged. Id.¶ 55 We believe the same rules regarding the admissibility of evidence at sentencing hearings
should apply to the admissibility of evidence at third-stage postconviction hearings. That
means, for instance, that hearsay evidence—like the alleged statement by a third party to other
persons that the third party actually committed the murder for which the defendant was
convicted (as in the present case and in Robinson)—is not per se inadmissible because it fails
-9-
to meet the reliability criteria that would be required for admissibility at trial. However, the
trial court, as trier of fact at the third-stage postconviction evidentiary hearing, would be
entirely free, after having admitted such hearsay evidence, to conclude that, in the court’s
judgment, the admitted evidence is not worth very much.
¶ 56 Given that the trial court is serving as trier of fact, as opposed to a jury, an even stronger
argument exists to reduce the threshold for the admissibility of evidence at third-stage hearings.
The court may admit the evidence in question and then mostly—or perhaps even entirely—
disregard it, deeming it unreliable or simply not believable. And in making that determination,
the trial court is free to consider all of the other evidence presented at the third-stage
proceeding, including all of the evidence that was originally presented at the defendant’s trial
at which he was convicted.
¶ 57 Last, we note that Gino L. DiVito, a former justice on the First District Appellate Court
and a distinguished expert on Illinois evidence law who also served as a member of the Special
Supreme Court Committee on Illinois Evidence, has done the Illinois judiciary and bar a great
service by providing an analysis of the Illinois Rules of Evidence. In his publication on that
subject, revised January 1, 2017, Justice DiVito analyzes Rule 1101(b)(3), writing as follows:
“The addition of ‘postconviction hearings’ in IRE 1101(b)(3), eff. Apr. 8, 2013,
occurred to assure consistency with section 122-6 of the Code of Criminal Procedure
of 1963 (725 ILCS 5/122-6), a section of article 122, which is the Post-Conviction
[Hearing] Act. The relevant portion of section 122-6 reads: ‘The court may receive
proof by affidavits, depositions, oral testimony, or other evidence.’ Thus, that section
grants discretion to the trial court to accept in Post-Conviction Act hearings, testimony
that does not comply with the codified rules of evidence.” (Emphasis added.) Gino L.
DiVito, The Illinois Rules of Evidence: A Color-Coded Guide 230 (2017).
¶ 58 We agree with Justice DiVito’s assessment and note that his analysis further informs the
trial courts that they have discretion to accept testimony that does not comply with the codified
rules of evidence. In our opinion, part of a trial court’s discretion at a third-stage evidentiary
hearing includes the authority to admit questionable evidence and then to disregard it because,
in the court’s judgment, it is unreliable.
¶ 59 D. This Case
¶ 60 In this case, the trial court dismissed defendant’s petition at the second stage because the
court did not believe that the evidence—namely, the text message in which Snow supposedly
implicated himself in Turnpaugh’s death—was admissible. Defendant argues that such an
evidentiary determination at the second stage was inappropriate, and we agree.
¶ 61 As we explained earlier, the rules of evidence simply do not apply to the second stage of
postconviction proceedings. Therefore, any disagreement about the admissibility of the text
message should have been reserved for the third-stage evidentiary hearing. Following the
admission of the test message at the evidentiary hearing, the trial court then could determine
whether it could be admissible at retrial. If the trial court determined that the text message
would not be admissible, then the court could determine that the text message should be given
no weight.
¶ 62 On the other hand, it is possible that Carsell could testify at the evidentiary hearing, lay a
sufficient foundation to admit the text message, and provide the relevant context to assess the
- 10 -
inculpatory statement under Chambers. It is possible that the trial court could find Carsell, and
Snow’s text message, very persuasive and credible. And it is possible then that the
postconviction petition could be granted. Such is the point of an evidentiary hearing at which
live testimony can be presented and credibility determinations can be made.
¶ 63 III. CONCLUSION
¶ 64 For the reasons stated, we reverse the trial court’s dismissal of defendant’s postconviction
petition at the second stage and remand for third-stage proceedings.
¶ 65 Reversed and remanded with directions.
- 11 -