People v. Ross ( 2015 )

Illinois Official Reports
Appellate Court
People v. Ross, 2015 IL App (1st) 120089
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption JERMAINE ROSS, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-12-0089
Filed May 8, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-3228; the
Review Hon. Vincent M. Gaughan, Judge, presiding.
Judgment Reversed and remanded with instructions.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Karl H. Mundt, all of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Peter D. Fischer, and Judy L. DeAngelis, Assistant State’s Attorneys,
of counsel), for the People.
Panel JUSTICE GORDON delivered the judgment of the court, with
opinion.
Justice McBride concurred in the judgment and opinion.
Presiding Justice Palmer specially concurred, with opinion.
OPINION
¶1 Following a bench trial, defendant Jermaine Ross was convicted of being an armed
habitual criminal and sentenced to 80 months’ in the Illinois Department of Corrections
(IDOC). We affirmed on direct appeal, where we found that the evidence was sufficient to
show that the defendant had constructive possession of a handgun found in plain view behind
the driver’s seat of a vehicle he had been driving which supported a conviction for being an
armed habitual criminal. People v. Ross, 407 Ill. App. 3d 931 (2011). Defendant now appeals
from the summary dismissal of his pro se postconviction petition at the first stage, contending
that he raised two claims of arguable merit.1 First, he contends that he was actually innocent
based on an affidavit from his son who claims that the son actually committed the offense, or
that trial counsel was ineffective for not properly presenting the son’s affidavit into evidence or
for not raising it. Second, he contends that IDOC increased his sentence without authority by
imposing a three-year term of mandatory supervised release (MSR) not imposed by the trial
court. For the reasons that follow, we reverse and remand with instructions.
¶2 BACKGROUND
¶3 I. State’s Case in Chief
¶4 Police officer Conray Jones, a 16-year veteran of the Chicago police department, testified
that he was with his partner, Officer Robert Seaberry, in uniform, in a marked police vehicle
when he observed Sylvester Tatum walking toward defendant’s vehicle stopped along the curb
on West End Avenue near Central Avenue. The police vehicle was 20 to 30 feet from the rear
of defendant’s parked vehicle in a traffic lane when Jones heard Tatum say “rocks and blows”
to defendant, who was stopped with his vehicle running, window opened, sitting in the driver’s
side of the vehicle with no passengers. The officer knew that “rocks and blows” was street talk
for cocaine and heroin. When Tatum noticed the police vehicle, he walked away from the
parked auto. Defendant then exited the vehicle, leaving the auto running. The officers detained
defendant and Tatum. Officer Jones testified to observing only the defendant and Tatum in the
area. Officer Seaberry walked to the stopped vehicle and returned with a .40-caliber handgun
with 10 live rounds. The officers then placed defendant under arrest.
¶5 Officer Jones’s partner, Officer Seaberry, a 14-year veteran policeman, also testified that
he heard Tatum say something like “rocks and blows” as they eased behind defendant’s
vehicle. Officer Seaberry’s testimony corroborated the testimony of Officer Jones. After the
police detained Tatum and defendant, Officer Seaberry walked over to defendant’s vehicle,
which was still running. While standing outside the vehicle, he observed the butt of a gun on
the floor of the backseat, behind the driver’s side, next to and partially under a black bag.
Officer Seaberry testified that he made this observation from outside the vehicle while the back
door was closed.
1
We originally affirmed the trial court’s dismissal in an opinion filed on March 21, 2014; however,
we subsequently granted defendant’s petition for rehearing and withdrew the previous opinion on April
20, 2015.
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¶6 Officer Seaberry testified that he had previously arrested defendant’s son Jemal and that, at
the time of the offense in the present case, Jemal was in the area. Officer Seaberry denied under
oath observing Jemal in the vehicle, but he was impeached by his testimony at the probable
cause hearing when he testified that he did observe him in the vehicle. The following testimony
occurred at the probable cause hearing:
“QUESTION: Did you see Jemal Ross on that day?
OFFICER SEABERRY: I did.
QUESTION: You saw him in the vehicle?
OFFICER SEABERRY: I did.”
However, Officer Seaberry indicated that he meant defendant, not Jemal.
¶7 After the State presented and offered in evidence certified copies of defendant’s
convictions for delivery of a controlled substance, it rested its case.
¶8 II. Defense Case
¶9 The defense called Elizabeth Gomez, defendant’s girlfriend, who testified that the vehicle
belonged to her. On the morning of defendant’s arrest, defendant dropped her off at work at
about 9:50 a.m. and at that point in time the only item in the backseat of her vehicle was an
infant car seat.
¶ 10 Defendant also testified on his own behalf that when he drove Gomez’s vehicle, the only
item in the backseat was the infant car seat and he denied having a gun in his possession.
Defendant testified that, after he dropped off Gomez, he picked up his friend, Tyrone
Patterson, and then he observed his teenage son, Jemal, on Central Avenue. Defendant stopped
and told Jemal that he would be stopping a block away.
¶ 11 When defendant turned onto West End Avenue, he observed Tatum and another friend.
Defendant stopped and parked the vehicle and walked across the street to talk to Tatum. Then,
an unmarked police vehicle arrived, and a detective told defendant to move his vehicle because
it was parked illegally. The unmarked police vehicle then left the area. Defendant then asked
his friend Patterson to move the vehicle, as defendant’s son Jemal approached. Then, a marked
police vehicle arrived with Officers Jones and Seaberry.
¶ 12 Patterson also testified for the defense and corroborated most of defendant’s testimony.
However, he testified that, after he exited the vehicle after parking it, he was walking toward
defendant when Jemal arrived. He observed Jemal walk toward the vehicle, open the back door
and place a gun under the seat. As Patterson began to tell defendant what Jemal had done, the
police arrived and detained everyone, which included defendant, Tatum, Patterson, and Jemal,
and placed all of them into a police vehicle and drove them to the police station. Patterson had
three prior felony convictions and was on parole at the time of his testimony.
¶ 13 The defense also introduced 43 seconds of security camera footage that showed only
Officer Seaberry walking to the backseat of the parked vehicle. Defendant testified that the
video showed that the vehicle was not running.
¶ 14 III. State’s Rebuttal Case
¶ 15 In the State’s rebuttal case, Officer Jones testified that there were no people in the area
other than defendant and Tatum.
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¶ 16 Based on this evidence, defendant was found guilty of aggravated unlawful use of a
weapon and of being an armed habitual criminal. He was sentenced to 80 months on the armed
habitual criminal count, and no sentence was imposed or entered on the aggravated unlawful
use of a weapon count.
¶ 17 In his posttrial motion, defendant argued that his son Jemal was unavailable at trial,
because at that point in time he was hospitalized in a coma due to being shot, but since then he
had awoken and provided an affidavit admitting to placing the gun in the vehicle, so that a new
trial should be given to him. Attached to the motion was a document, signed by Jemal but not
notarized or dated, stating that he left the gun under the driver’s seat of the vehicle, that he and
defendant were taken to the police station, that he admitted at the station that it was his gun but
“the police” (not named or described) told him that they were going to charge defendant
regarding the gun nonetheless.
¶ 18 At argument on the posttrial motion, the court noted that Jemal’s statement was not
notarized and thus was not an affidavit. Trial counsel told the court that he had not spoken with
Jemal since his shooting, though Jemal gave a similar account earlier before being advised by
his mother to remain silent, and suggested that the court subpoena Jemal for an evidentiary
hearing. The court noted that, in such a hearing, it would have to advise Jemal of his right to
refrain from self-incrimination and provide him an attorney. The court also ascertained from
counsel that he had not witnessed Jemal sign the statement, he was not familiar with Jemal’s
writing, and his investigator who provided the statement was not present in court, so that there
was no foundation for admitting the statement into evidence. When the State noted that
defendant had demanded trial at arraignment and did not withdraw that demand or seek a
continuance, the defense argued that Jemal was available at arraignment but was shot in the
face at close range a few days before trial. The State further argued that, after conferring, the
defense had concluded as a matter of trial strategy that there was no reason to delay trial “on
the off chance that Jemal Ross, who was shot in the face [from] a few feet away, would come
out of a coma.” The court then denied the posttrial motion.
¶ 19 On direct appeal, we found the evidence sufficient to convict, concluding that the State and
defense evidence showed that defendant alone was in possession of the vehicle when the gun
was found. Ross, 407 Ill. App. 3d at 935-37. Gomez’s testimony established that there was no
gun or bag in the backseat of the vehicle when she left it, so that it was reasonable to infer that
the bag and gun were placed in the backseat after she left. The officers testified that they
observed no other person enter or exit the vehicle. The defense presented testimony from
defendant that Patterson had also been in the vehicle, but defendant did not testify to Jemal
being inside the vehicle. Patterson testified to being in the vehicle and later to observing Jemal
place the gun in the backseat. Lastly, the evidence that defendant walked away from the
vehicle after he and Tatum observed the police vehicle supports a reasonable inference that
defendant had knowledge of the gun’s presence. Defendant’s other contentions of error on
direct appeal did not include ineffective assistance of trial counsel or any other challenge to the
absence of Jemal’s testimony.
¶ 20 In his October 2011 pro se postconviction petition, defendant alleged that Jemal had been
previously arrested by Officer Seaberry contrary to Officer Seaberry’s preliminary hearing
testimony, that Jemal was unavailable to testify at trial because he had been shot a few days
earlier, and that Jemal’s posttrial affidavit to trial counsel’s investigator was not admitted into
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evidence by the trial court on the grounds that it was not notarized. Defendant also alleged that
he was not admonished at sentencing regarding the MSR.
¶ 21 Defendant attached a new, notarized affidavit from Jemal to his postconviction petition.2
In the new affidavit, dated August 1, 2011, Jemal averred that he is over 18 years old, that he
left the gun under the driver’s seat of the vehicle, that he and defendant were taken to the police
station, and that he admitted to officers that it was his gun but “the police” refused to test the
gun for fingerprints and told Jemal that they wanted defendant “off the streets” and were going
to charge him regardless of Jemal’s admission. Jemal further averred that he told the same
story to trial counsel’s staff and was interviewed by a defense investigator.
¶ 22 In November 2011, the court summarily dismissed the petition. In relevant part, the court
found that the substance of Jemal’s affidavit had been introduced at trial through Patterson’s
testimony, which was contradicted by Officer Jones’s testimony that no one other than
defendant and Tatum were in the area. However, it should be noted that Officer Seaberry
testified to observing Jemal in the area. The court also found that defendant’s action of leaving
the vehicle showed knowledge of the gun’s presence even if Jemal had placed the gun in the
vehicle, so that it was not evidence of actual innocence. The court found the MSR claim
meritless because defendant did not provide the entire transcript of his sentencing hearing.
This timely appeal followed.
¶ 23 ANALYSIS
¶ 24 On appeal, defendant contends that the summary dismissal of his pro se petition was
erroneous because he raised two claims of arguable merit: (1) that he was actually innocent
based on Jemal’s affidavit that he placed the gun in the vehicle just before the police arrived,
that trial counsel was ineffective for not presenting an affidavit from Jemal, or that appellate
counsel was ineffective for not contending on direct appeal that the trial court erred in not
granting a continuance to allow Jemal to testify on the posttrial motion, and (2) that IDOC
increased his sentence without authority by imposing an MSR term not imposed by the trial
court.
¶ 25 I. Whether Defendant’s Claim Is Barred by Res Judicata
¶ 26 As a preliminary matter, we first consider the State’s argument that defendant’s claim of
“newly discovered evidence” is barred by res judicata. The State argues that the most
“reasonable inference” that can be made from the record is that the trial court considered and
rejected Jemal’s written statement. The State argues that since Jemal’s written statement
contains “substantially the same evidence” as Jemal’s notarized affidavit, “this court should
consider defendant’s claim to be barred [by] res judicata.”
¶ 27 “In the context of a postconviction petition, res judicata bars consideration of claims that
were previously raised and decided on direct appeal.” People v. Wilborn, 2011 IL App (1st)
092802, ¶ 65 (citing People v. Blair, 215 Ill. 2d 427, 443 (2005)); see also People v. West, 187
2
Hereinafter, we refer to the first, non-notarized affidavit presented with defendant’s posttrial
motion as “Jemal’s written statement.” Conversely, we refer to the second, notarized affidavit
presented with defendant’s postconviction petition as “Jemal’s affidavit.”
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Ill. 2d 418, 425 (1999); Black’s Law Dictionary 1312 (7th ed. 1999) (res judicata concerns
“[a]n issue that has been definitively settled by judicial decision”).
¶ 28 We are not persuaded by the State’s argument that defendant’s claim of newly discovered
evidence is barred by res judicata. First, neither the defendant’s “newly discovered” evidence
claim nor the admissibility of Jemal’s written statement was raised or decided on direct appeal.
Second, the State’s argument relies on the premise that the trial court “considered” rather than
disregarded Jemal’s written statement. However, as the State concedes, we can infer from the
record only that the trial court mentioned the statement. Indeed, the transcript reveals only that
the trial court’s concerns about Jemal’s written statement were (1) that the statement was not
notarized and could not be called an affidavit; (2) that the attorney presenting the statement had
not witnessed Jemal sign the statement and was not familiar with Jemal’s writing; and (3) that
the investigator who provided the statement to the attorney was not present in court, so that
there was no foundation for admitting the statement into evidence. In other words, there is no
indication in the record that the trial court made a definitive judicial decision based on the
substance of the statement. As a result, defendant’s claim of newly discovered evidence is not
barred by res judicata.
¶ 29 II. Actual Innocence Claim
¶ 30 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2004)) enables
criminal defendants to initiate collateral proceedings to challenge prior convictions on grounds
of a substantial denial of constitutional rights. People v. Barrow, 195 Ill. 2d 506, 518-19
(2001). Proceedings pursuant to the Act that do not involve the death penalty can be viewed as
consisting of three stages. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). To survive the first
stage, a pro se litigant’s petition need only present the gist of a constitutional claim. 725 ILCS
5/122-2.1 (West 2004); People v. Jones, 213 Ill. 2d 498, 504 (2004). While this is a low
threshold (Jones, 213 Ill. 2d at 504), the Act allows the trial court to summarily dismiss any
petition it finds frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2004); People v.
Hodges, 234 Ill. 2d 1, 10 (2009). At the second stage, an indigent petitioner is appointed
counsel (725 ILCS 5/122-4 (West 2004)), the attorney reviews the petition, and an amended
petition may be filed, and the State is allowed to file responsive pleadings, including a motion
to dismiss (725 ILCS 5/122-5 (West 2004)). If the trial court determines that the petitioner has
made a substantial showing of a constitutional violation, then the petition passes to the third
stage, at which the trial court conducts an evidentiary hearing. 725 ILCS 5/122-6 (West 2004);
People v. Edwards, 197 Ill. 2d 239, 246 (2001).
¶ 31 As noted, a petition may be summarily dismissed if it is frivolous or patently without merit.
A petition is frivolous or patently without merit only if it has no arguable basis either in law or
in fact. People v. Tate, 2012 IL 112214, ¶ 9. A claim has no arguable basis when it is based on
an indisputably meritless legal theory (for example, one completely contradicted by the record)
or a fanciful factual allegation; that is, an allegation that is fantastic or delusional. Hodges, 234
Ill. 2d at 11-12; People v. Brown, 236 Ill. 2d 175, 185 (2010). Our review of a summary
dismissal is de novo. Tate, 2012 IL 112214, ¶ 10.
¶ 32 A petition may raise a freestanding claim of actual innocence based on newly discovered
evidence. People v. Ortiz, 235 Ill. 2d 319, 331 (2009). Newly discovered evidence warrants
retrial only when it is (1) discovered since trial and of such a nature that the defendant
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exercising due diligence could not have discovered it earlier, (2) material and not merely
cumulative, and (3) so conclusive that it will probably change the result on retrial. People v.
Carter, 2013 IL App (2d) 110703, ¶ 75. Evidence is cumulative when it adds nothing to what
was already presented to the trier of fact at trial. People v. Brown, 2013 IL App (1st) 091009,
¶ 50. While claims of newly discovered evidence on postconviction petitions are not looked
upon with favor and are closely scrutinized, the new evidence need not establish the
defendant’s innocence but only that all of the facts and circumstances, including the new
evidence, warrant closer scrutiny to determine his guilt or innocence. Carter, 2013 IL App (2d)
110703, ¶ 75.
¶ 33 First, Jemal’s affidavit is newly discovered. Evidence is newly discovered when (1) it has
been discovered since the trial and (2) the defendant could not have discovered the evidence
sooner through due diligence. Ortiz, 235 Ill. 2d at 334 (citing People v. Morgan, 212 Ill. 2d
148, 153 (2004)). In the case at bar, the State does not argue that Jemal’s affidavit was
available before defendant’s conviction, so the first part of the “newly discovered evidence”
definition would be satisfied. See People v. Parker, 2012 IL App (1st) 101809, ¶ 82 (“[T]he
State does not argue that the codefendant’s statements were actually discovered before trial, so
the first part of the ‘newly discovered’ definition is satisfied.”). Additionally, no amount of due
diligence on defendant’s part could have compelled Jemal to provide the evidence any sooner
than he did. Jemal was in a coma during defendant’s trial. Moreover, even if Jemal was not in a
coma, defendant could not have forced Jemal to provide self-incriminating statements that it
was Jemal, not defendant, who possessed the handgun and placed it in the vehicle. 3 See
Parker, 2012 IL App (1st) 101809, ¶¶ 83-84; see also People v. Molstad, 101 Ill. 2d 128, 135
(1984) (“[N]o amount of diligence could have forced the codefendants to violate their fifth
amendment right to avoid self-incrimination (U.S. Const., amend. V ***) if the codefendants
did not choose to do so.”).
¶ 34 Second, Jemal’s affidavit is material, and not merely cumulative, to the evidence presented
at defendant’s trial. Evidence is cumulative when it adds nothing to what was already
presented to the trier of fact. People v. Brown, 2013 IL App (1st) 091009, ¶ 50. In the present
case, Patterson testified that he witnessed Jemal place the handgun in the vehicle, and Jemal’s
affidavit adds the first-person perspective to Patterson’s testimony. Undeniably, a first-hand
account is more credible than one witness blaming a third party not before the court. See Ortiz,
235 Ill. 2d at 335-36 (holding that “testimony [that] supplied a first-person account of the
incident” “added to what was before the fact finder”); see also Molstad, 101 Ill. 2d at 135
(holding that, although defendant presented alibi testimony at trial, the affidavits of convicted
codefendants stating that defendant was not present at the crime were not cumulative as they
raised “additional questions concerning the trial court’s verdict” and “[went] to an ultimate
issue in the case”). Therefore, we cannot conclude that Jemal’s affidavit “adds nothing” to
what was presented to the original trier of fact in defendant’s trial.
¶ 35 Lastly, Jemal’s affidavit, in which he admits to placing the firearm in the vehicle, is
evidence, if believed, that is “ ‘of such conclusive character that it would probably change the
While the record does not reveal exactly what criminal offense Jemal’s statements implicate, there
3
appears to be no dispute that his statements are “self-incriminating.” Technically, Jemal was not a
codefendant here.
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result on retrial.’ ” Ortiz, 235 Ill. 2d at 333 (quoting Morgan, 212 Ill. 2d at 154). As we noted
when we previously considered defendant’s conviction:
“A person commits the offense of being an armed habitual criminal if he ‘receives,
sells, possesses, or transfers any firearm’ after having been convicted of at least two
triggering offenses. 720 ILCS 5/24-1.7 (West 2008). To establish guilt on a theory of
constructive possession of a firearm, the State must prove: (1) that defendant had
knowledge of the presence of the weapon; and (2) that defendant exercised immediate
and exclusive control over the area when the weapon was found. People v. McCarter,
339 Ill. App. 3d 876, 879 (2003). A trier of fact is entitled to rely on reasonable
inferences of knowledge and possession.” Ross, 407 Ill. App. 3d at 935.
In effect, Jemal’s affidavit attests that defendant did not exercise “immediate and exclusive
control over the area when the weapon was found.” McCarter, 339 Ill. App. 3d at 879. Indeed,
if believed, Jemal’s affidavit could exculpate defendant under the State’s theory of
constructive possession.
¶ 36 We acknowledge that we previously found sufficient evidence to uphold defendant’s
conviction. See Ross, 407 Ill. App. 3d at 937. We found that “[d]efendant’s conduct in leaving
the vehicle provides a reasonable inference of flight to avoid the police and further supports a
reasonable inference that defendant possessed the gun.” Ross, 407 Ill. App. 3d at 937.
However, as Jemal’s affidavit directly rebuts the State’s theory of constructive possession, we
find that it is “ ‘of such conclusive character that it would probably change the result on
retrial.’ ” Ortiz, 235 Ill. 2d at 333 (quoting Morgan, 212 Ill. 2d at 154).
¶ 37 Given that (1) neither Jemal’s testimony nor his affidavit was available until after
defendant’s conviction, (2) Jemal’s affidavit adds a material first-person perspective to
Patterson’s testimony, and (3) Jemal’s affidavit, if believed, conclusively negates the State’s
theory of constructive possession, we cannot find that defendant’s petition has no arguable
basis either in law or in fact. See Tate, 2012 IL 112214, ¶ 9. Therefore, the trial court erred
when it summarily dismissed defendant’s pro se postconviction petition in the first stage. See
725 ILCS 5/122-2.1 (West 2004); see also Jones, 213 Ill. 2d at 504. Accordingly, we reverse
the trial court’s summary dismissal of defendant’s postconviction petition and do not reach
defendant’s alternative arguments.
¶ 38 III. MSR Claim
¶ 39 Finally, we dispose of the MSR claim by noting that our supreme court recently rejected
such a claim, holding that MSR was not imposed by IDOC but by the trial court by operation of
law when it imposed a sentence of imprisonment. People v. McChriston, 2014 IL 115310.
¶ 40 In McChriston, the supreme court rejected the defendant’s separation-of-powers argument,
raised in a petition under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2010)), that IDOC impermissibly added a three-year MSR term to his 25-year sentence
because the trial court did not refer to the mandatory MSR term. McChriston, 2014 IL 115310,
¶ 3. The supreme court reasoned that the General Assembly may enact legislation that includes
a MSR term in a sentence by operation of law. McChriston, 2014 IL 115310. Construing the
plain language of section 5-8-1(d) of the Unified Code of Corrections (730 ILCS 5/5-8-1(d)
(West 2004)), the court held that a sentence includes a period of MSR “as if it were written
within the sentence,” even if the court did not mention the MSR period at the sentencing
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hearing or include it in the sentencing order. McChriston, 2014 IL 115310, ¶¶ 16-17.
Therefore, the supreme court noted IDOC did not in fact add the MSR term to defendant’s
sentence but, instead, it was added by operation of law. McChriston, 2014 IL 115310,
¶¶ 16-17. Accordingly, we must also reject defendant’s identical separation-of-powers
argument in the instant appeal. McChriston, 2014 IL 115310, ¶ 23.
¶ 41 In addition, McChriston held that the imposition of MSR did not violate federal due
process, rejecting the defendant’s argument that the imposition of the three-year term of MSR
impermissibly increased his sentence because only the court retained the authority to increase
his sentence. McChriston, 2014 IL 115310, ¶¶ 25-31. The supreme court noted that “the
enforcement of the mandatory MSR term in this case was not an increase in sentencing, as the
MSR term attached automatically as though written into defendant’s sentence.” McChriston,
2014 IL 115310, ¶ 31. In accordance with the holding in McChriston, we also must reject
defendant’s identical argument based on federal due process.
¶ 42 CONCLUSION
¶ 43 In conclusion, (1) the trial court erred when it summarily dismissed defendant’s pro se
postconviction petition in the first stage because Jemal’s affidavit is newly discovered
evidence, and (2) defendant’s due process rights were not violated since defendant’s term of
MSR was imposed by operation of law.
¶ 44 Reversed and remanded with instructions.
¶ 45 PRESIDING JUSTICE PALMER, specially concurring.
¶ 46 I concur in the judgment of this court. I write separately to expand the discussion of what I
consider to be some of the unique aspects of this case and the main reasons I feel it must be
remanded for further proceedings.
¶ 47 In its analysis of the issue of newly discovered evidence, the majority states that, “Jemal’s
affidavit is newly discovered,” and “the State does not argue that Jemal’s affidavit was
available before defendant’s conviction, so the first part of the ‘newly discovered evidence’
definition would be satisfied.” Supra ¶ 33. While I agree with the ultimate conclusion that
Jemal’s potential testimony constitutes newly discovered evidence, I come to that conclusion
in a slightly different way.
¶ 48 I agree with the State that the initial focus here should not be on when the affidavit became
available but, rather, when the evidence contained in the affidavit became known. Then, the
next question should be whether that was evidence available at trial. The affidavit is not the
evidence; the testimony contained within the affidavit is the evidence. The appropriate inquiry,
I believe, is whether, at the time of trial, the defendant was aware of the potential testimony
that Jemal had to offer and was that potential testimony available at trial.
¶ 49 In People v. Edwards, 2012 IL 111711, ¶¶ 10-12, our supreme court analyzed third and
fourth successive postconviction petitions which had attached the affidavits of two alibi
witnesses as well as an affidavit from a codefendant that indicated that the defendant was not
involved. As to the alibi witnesses, even though the affidavits were later obtained, the court
cited with approval the appellate court’s finding that the defendant necessarily knew of the
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existence of the evidence at the time of trial. Id. ¶ 34. The supreme court cited with approval
the appellate court’s holding in this regard:
“ ‘It is illogical for defendant to claim that this evidence of his alibi is new, where he
obviously knew of his alibi at the time of trial, on appeal and during initial
postconviction proceedings.’ ” Id. (quoting People v. Edwards, Nos. 1-07-0714,
1-08-1089 cons. (2010) (unpublished order under Supreme Court Rule 23)).
¶ 50 The supreme court further concluded that, with regard to the alibi witnesses, not only was
this not new evidence, but it was not shown that it was unavailable at trial. Id. ¶¶ 36-37.
¶ 51 As to the codefendant’s affidavit, the court noted that, “petitioner obviously knew of [the
codefendant] at the time of trial.” Id. ¶ 38. However, the court held that, as a result of the
codefendant’s fifth amendment rights, “the evidence in [the codefendant’s] affidavit
apparently was nevertheless ‘unavailable at trial.’ ” Id. See also People v. Molstad, 101 Ill. 2d
128 (1984) (evidence contained in affidavits of five codefendants presented at motion for new
trial constituted newly discovered evidence as, although known at trial, unavailable due to their
fifth amendment rights).
¶ 52 Similarly, in the case at bar, there is no question that the testimony that Jemal could offer
was known to defendant prior to trial. Jemal was on defendant’s witness list. Defendant
testified that Jemal was present on the scene. Tyrone Patterson, defendant’s witness, testified
at trial that Jemal put the gun in the car. Jemal’s potential testimony, the evidence, was known
to defendant at the time of trial.
¶ 53 That, however, does not win the day for the State on the question of whether this evidence
is considered “newly discovered evidence” for the purposes of this proceeding. There is no
question that this evidence, while known to defendant, was unavailable to him at trial. Just as
the codefendant’s testimony was unavailable to the defendant in Edwards due to his fifth
amendment rights, the testimony here was unavailable due to the fact that Jemal was in a coma
at the time of trial as a result of being shot immediately before the start of this trial. As a result,
for the purposes of this postconviction petition, I believe that Jemal’s potential testimony
should be considered to be newly discovered evidence.
¶ 54 I am of course aware of, and I am troubled by, the fact that defendant answered ready for
and demanded trial while this potential witness was unavailable. The State claims defendant
strategically chose not to present a witness at trial and that, having lost, he is now trying to get
“a second bite at the apple in the form of an opportunity to look back, with hindsight, at a
strategy that did not succeed at trial and try again by using a different route.” The State calls
this gamesmanship.
¶ 55 As noted, I find the trial demand to be troubling. However, this case presents a very unique
factual situation, and as a result of those facts, I do not find the State’s argument here
persuasive. The common law record reveals that defendant demanded trial in a branch court on
February 5, 2009, and that he maintained that trial demand through arraignment and up until
the day of trial. Starting with his arrest date, that was a period of almost three months.
According to the defense attorney’s arguments before the trial court, Jemal was shot only three
or four days before the trial date. Jemal’s shooting and subsequent coma were obviously
unforeseen events that occurred while defendant was pursuing a strategy of maintaining a trial
demand throughout the entire proceeding, which he had a right to do. It is undisputed, and must
be taken as true at this point, that Jemal was in a coma on the date of trial and that no one knew
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when or if he would regain consciousness. Under these unique facts, I do not find that the trial
demand should negate the conclusion that Jemal was unavailable at trial.
¶ 56 Next, I agree with the majority that Jemal’s potential evidence is not cumulative. As the
majority noted, a confession to a crime carries more weight than a third-party witness accusing
someone other than the defendant. I would also posit another reason why this is not cumulative
evidence. The only witness that put the gun in the hands of Jemal was Patterson. However,
Patterson was impeached by his three felony convictions, two for drugs and one for possession
of a weapon by a felon. It is easy to see why his testimony was not given much weight. Should
Jemal come to the witness stand and not suffer the same impeachment, his testimony may be
more persuasive. Of course, Jemal’s testimony will presumably be attacked on other grounds,
such as his failure to come forward earlier, his self-interest in saving his father, as well as the
effect of the passage of the statute of limitations. However, those are matters for the trier of
fact.
¶ 57 Lastly, I find it necessary to discuss what occurred at the hearing on the motion for new
trial. By the time of the hearing, Jemal was no longer comatose. Thus, prior to entry of final
judgment in this matter, his testimony became available. Inexplicably, defense counsel failed
to present him to the court to testify at the hearing. Further, he failed to even present an
affidavit from Jemal such as the one attached to this postconviction petition. Instead, defense
counsel only provided the court with an unsworn statement which even he admitted he could
not authenticate.
¶ 58 Upon presentation of this unsworn statement, a lengthy discussion ensued between the
court and counsel concerning the requirements for a document to qualify as an affidavit, the
fact that the statement did not qualify as an affidavit, and whether it should suffice in lieu of an
affidavit. During the course of this discussion, the court inquired of defense counsel as to why
he had not brought Jemal to court to testify under oath at the hearing now that he had regained
consciousness. It was at this point that defense counsel asked to continue the hearing so that he
could bring Jemal to court so that he could so testify. Unfortunately, this request was never
ruled upon, but, in effect, it was denied, as the next ruling was the denial of the motion for new
trial.
¶ 59 Defendant claims that as a result of Jemal’s testimony not being considered by the trial
court at this posttrial hearing, he received ineffective assistance of counsel. The State responds
that these claims are forfeited as they were not raised on direct appeal and that they were also
not raised in defendant’s pro se postconviction petition. I have come to the conclusion that
these claims have not been forfeited. First, for the same reason the majority finds that
res judicata does not apply, I find that these issues could not have been raised on direct appeal
because the trial court did not allow the unsworn and unauthenticated written statement to be
admitted into evidence and it is clear that it was not considered. Second, I find that these claims
were sufficiently set forth in the pro se postconviction petition. In his pro se postconviction
petition, defendant states the following:
“Petitioner contends that evidence of [a] conclusive nature that was not available at
the time of trial & sentence hearing, [d]ue to the fact that a key witness (Jemal Ross)
was shot a few days before the trial and was in a coma unable to appear before the court
and testify on behalf of the defendant (Jermaine Ross)[.] At the time of the sentence
hearing[,] defendant’s counsel had his investigator to [sic] obtain a written statement
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from Jemal Ross, who was in recovery on bed-rest at home. The written statement
corroborated & supported defendant[’]s innocence. The court could not allow the
written statement without being notarized[ ] as a[n] affidavit [sic]. But since then[,] the
written statement has been notarized and signed by Jemal Ross.” (Emphasis added.)
¶ 60 Our supreme court has repeatedly held that a pro se petitioner need only provide “a limited
amount of detail” and need not include “legal arguments or [citations] to legal authority.”
(Internal quotation marks omitted.) People v. Edwards, 197 Ill. 2d 239, 244 (2001). Further,
“[w]hile in a given case the pro se defendant may be aware of all the facts pertaining to his
claim, he will, in all likelihood, be unaware of the precise legal basis for his claim or all the
legal elements of that claim.” Id. at 245. Keeping in mind these tenets of liberal construction, I
find that these claims were sufficiently set forth in the pro se post conviction petition to avoid
forfeiture. While not using the phrase, “ineffective assistance of counsel,” defendant has
clearly attempted to communicate to the court that his counsel’s failure to provide Jemal’s
testimony to the court in an acceptable manner prevented it from being considered.
¶ 61 Taking into consideration all of the above facts, I believe that it is at least arguable that
defense counsel’s performance at this hearing was objectively unreasonable to the prejudice of
defendant for several reasons. First, defense counsel failed to provide the court with a
sufficient affidavit of Jemal setting forth his proposed testimony. In the alternative, he failed to
produce Jemal at the hearing so that he could testify. In the event that Jemal was not
immediately available, counsel also did not at the outset properly request a continuance for that
purpose. Further, once it became clear that the trial court was not satisfied with the unsworn
statement, defense counsel did request a continuance. However, the court never ruled upon that
motion and simply denied the motion for new trial. At the very least, defense counsel should
have secured a ruling on his motion for a continuance.
¶ 62 During the hearing on the motion for new trial, defense counsel expressed some vague
concerns regarding the legitimacy of the unsworn statement. It may have been questionable.
On the other hand, as we are now confronted with an actual sworn affidavit of Jemal
confessing to possessing the gun, it may not have been. Had a continuance been granted, there
would have been several potential outcomes. Defense counsel may have failed to produce
Jemal on the continuance date and the matter would have been resolved. Jemal may have
appeared, testified, and been found not credible, and the motion would have been denied.
Lastly, Jemal may have appeared, testified, and been found credible, resulting in the grant of a
new trial. In any event, had defense counsel secured a continuance for the purpose of
presenting this newly available testimony, this issue would have been resolved, as well as
foreclosed, on collateral review.
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