People v. Jones

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).
2022 IL App (3d) 190591-UOrder filed September 27, 2022
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
2022
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-19-0591
v. ) Circuit No. 90-CF-3013
)
RUSSELL L. JONES, ) Honorable
) Daniel L. Kennedy,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________
JUSTICE PETERSON delivered the judgment of the court.
Justices Hauptman and Hettel concurred in the judgment.
____________________________________________________________________________
ORDER
¶1 Held: The circuit court properly denied defendant leave to file a successive
postconviction petition.
¶2 Defendant, Russell L. Jones, appeals from the Will County circuit court’s denial of his
motion for leave to file a successive postconviction petition. Defendant argues the court
erroneously denied his motion because it established a colorable claim of actual innocence based
on new evidence. We affirm.
¶3 I. BACKGROUND
¶4 The State charged defendant by indictment with first degree murder (Ill. Rev. Stat. 1989,
ch. 38, ¶ 9-1(a)(2)). The matter proceeded to a jury trial on November 8, 1990.
¶5 Maurice Daniels testified on August 20, 1990, at approximately 12 p.m., he was standing
in front of Cynthia Wilder’s residence with Wilder, Adrienne Tripp, Dirk Jones, Martha Lee, and
Gregory Lee. At that time, Daniels observed a mustard-colored car drive slowly past the house.
Daniels knew defendant from prior interactions and identified defendant as the individual that sat
in the rear passenger side of the car. Defendant wore a gold shirt and something red around his
head. Defendant opened the door and yelled “something to do with the Vice Lords.” Daniels
recalled that Dirk was shocked and stated, “[t]hey could have shot me.” Approximately 10
minutes later, the car drove past Wilder’s residence again. Daniels observed defendant lying
down in the backseat hanging out of the open door and firing a gun. Following the gunfire,
Daniels observed that Dirk was injured and heard Dirk say, “[t]hey got me.” Daniels identified a
photograph of the car he saw defendant in that night.
¶6 Tripp testified that in the early morning hours of August 20, 1990, she was at Wilder’s
residence with Wilder, Gregory, Daniels, Dirk, and Martha. Tripp observed a light-colored four-
door car drive past the residence. Tripp could only identify defendant in the rear passenger side
seat as one of the three individuals in the vehicle. Tripp identified defendant from a photographic
lineup on November 2, 1990. Tripp identified a photograph of the yellow car and the black hat
that defendant wore the night of the shooting.
¶7 Gregory testified that while sitting on the porch of Wilder’s residence in the early
morning hours of August 20, 1990, he observed a yellow car with tinted windows drive by
slowly. The rear passenger side door opened, and an individual hung out the side of the car.
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Gregory could not identify the individual but saw that the shooter wore a yellow shirt and a black
hat with red detail. Gregory identified the black hat and yellow shirt collected from defendant the
night of the shooting as the clothing that he observed the individual wearing. A short time later,
the yellow car returned and drove slowly past the residence when someone began shooting a
firearm. Gregory heard Dirk say, “[t]hey got me.” Gregory identified a photograph of the car
involved in the shooting.
¶8 On cross-examination, Gregory stated that he knew defendant but did not see defendant
the night of the shooting.
¶9 Wilder testified that on August 20, 1990, at approximately 12:30 a.m. she was sitting in
front of her house with Dirk, Gregory, Martha, Tripp, and Daniels when she observed a mustard-
colored car slowly drive past the house. Wilder observed someone open the rear passenger side
door, lean out, and display a gang sign. The individual in the backseat wore a yellow shirt and a
red bandana on his head. Approximately 5 to 10 minutes later, Wilder saw the same car drive
past again. The rear passenger side door was open, and the same individual wearing a yellow
shirt leaned out. The individual had a firearm and began shooting. Wilder heard Dirk say, “[t]hey
got me.” Wilder observed that Dirk had been shot in the neck and died from his injury. When the
police arrived, they took Wilder to view the stopped car and two suspects. Initially, Wilder was
unsure if the two individuals were involved in the shooting. After Wilder identified the stopped
car as the yellow car involved in the shooting, she identified defendant as the shooter. At the
scene, defendant wore a yellow shirt and a black hat with a red design. Wilder identified a
photograph of the yellow car involved in the shooting and the black hat and yellow shirt that
defendant wore the night of the shooting.
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¶ 10 On cross-examination, Wilder stated that she did not see the shooter’s face but identified
defendant as the shooter by his clothing. Initially, Wilder thought that defendant wore a red
bandana, but later realized that the angle of defendant’s hat made the red details look like a
bandana.
¶ 11 Joliet Police Officer Michael Trafton testified that after 1 a.m., he observed a gold-
colored car that matched the description of the car involved in the shooting parked near the
scene. Trafton observed an individual, Joel Scott, walking approximately 10 feet from the
vehicle and conducted a stop. Trafton searched Scott and found two .38-caliber bullet casings on
his person. Trafton observed defendant approximately 15 feet away from the car and took
defendant into custody.
¶ 12 Joliet Police Officer William Smith testified that he collected evidence from the yellow
car near the scene that witnesses identified as the car from the shooting. Smith located a .38-
caliber revolver under the driver’s seat. Smith also collected several prints from the exterior of
the rear passenger door of the car. The prints were on the door handle, above the window, and
below the window.
¶ 13 Reginald Lashley, an evidence technician, testified that he recovered two bullets from
Wilder’s residence. He described the bullets as .38-caliber.
¶ 14 Walter Sherk, a forensic scientist, testified that the .38-caliber casing recovered from
Scott and bullets from the interior of Wilder’s residence were fired from the revolver found in
the car.
¶ 15 Joseph Ambrozich, a forensic scientist, testified that the latent prints lifted from the
exterior of the rear passenger door from the top of the frame and below the window matched
defendant’s fingerprints.
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¶ 16 Alvia Garcia testified that she was in a relationship with defendant on August 20, 1990.
Defendant was at Garcia’s house at approximately 9 p.m. the night before the shooting and left in
a yellow car at approximately 10:30 p.m.
¶ 17 On cross-examination, Garcia testified that on August 19, defendant wore a gold shirt and
a black hat. Garcia identified the yellow shirt and black hat defendant wore the night of the
shooting. Garcia saw defendant leave with Scott.
¶ 18 Sheila Backstrom testified that defendant was at her residence with her sister, Gail
Backstrom, at approximately 10 p.m. on August 19, 1990. At one point, defendant left the
residence to purchase liquor.
¶ 19 Gail testified that defendant came to her house at approximately 10:45 p.m. on
August 19. Gail and defendant drank alcohol on her front porch. At some point, defendant left to
purchase liquor and returned approximately 10 minutes later.
¶ 20 The jury found defendant guilty of first degree murder. The court sentenced defendant to
80 years’ imprisonment. On direct appeal, this court affirmed defendant’s conviction and
sentence. People v. Jones, 226 Ill. App. 3d 1054, 1055 (1992).
¶ 21 On March 18, 1994, defendant filed a postconviction petition alleging, inter alia, (1) a
claim of actual innocence based on an alibi defense that defendant was at a bar in a location
away from the murder scene committing another crime at approximately the same time as the
murder, (2) ineffective assistance of trial counsel for failing to call alibi witness, Devi Austin,
pertaining to the new alibi defense, and (3) ineffective assistance of trial counsel for failing to
raise an issue with Tripp’s delayed identification of defendant as the shooter following her
appearance in court pursuant to a subpoena on October 29, 1990. The circuit court denied
defendant’s petition at the second stage, and we affirmed on appeal. People v. Jones, No. 3-95-
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0625 (1996) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
Specifically, we found that defendant was not prejudiced by counsel’s failure to move to
suppress Tripp’s testimony, given the other witnesses who identified defendant as the shooter.
¶ 22 On March 20, 1997, defendant filed a successive postconviction petition alleging,
inter alia, ineffective assistance of trial counsel for failing to (1) move to suppress Tripp’s faulty
identification, and (2) adequately cross-examine Wilder, Daniels, and Gregory, on their
descriptions of the shooter and the identification of defendant. Defendant also alleged claims of
ineffective assistance of appellate counsel for failing to raise the stated claims on appeal and
unreasonable assistance of postconviction counsel for failing to raise the claims in his initial
postconviction petition. The court summarily dismissed defendant’s petition, and we affirmed on
appeal and allowed counsel to withdraw. People v. Jones, No. 3-97-0443 (1999) (unpublished
dispositional order).
¶ 23 On June 12, 2001, defendant filed a successive postconviction petition alleging,
inter alia, an actual innocence claim supported by newly discovered evidence that would have
changed the outcome of his trial. Specifically, defendant alleged that Gregory induced Wilder,
Daniels, and Tripp to commit perjury by identifying defendant as the shooter. Defendant also
realleged an alibi defense in that defendant was at another location committing a different crime
at the time of the murder. Further, defendant provided an affidavit from Marshallow Britton, who
averred that he observed the shooting committed by a light-skinned individual but could not
identify the shooter. Britton also contended that Gregory told the witnesses to report to police
that defendant was the shooter.
¶ 24 The court granted the State’s motion to dismiss. On appeal, we affirmed. People v. Jones,
No. 3-06-0004 (2008) (unpublished order under Illinois Supreme Court Rule 23). We found that,
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assuming the affidavits provided newly discovered evidence, the evidence was not likely to
change the result on retrial where the witnesses identified: the car involved in the shooting,
defendant’s proximity to the car, and defendant’s clothing as the clothing worn by the shooter.
¶ 25 On December 7, 2011, defendant filed a petition for leave to file a successive
postconviction petition. The petition alleged a claim of actual innocence in that Wilder recanted
her testimony identifying defendant as the shooter and contended that she based her
identification on officers informing her that defendant was in the car she identified. Defendant
supported these allegations with an affidavit from Wilder. Defendant also realleged an issue with
Tripp’s identification of defendant and cross-examination of Tripp regarding her inability to
identify defendant as the shooter, Tripp’s statement that she “believe[d] that she would be able to
identify the subject if she viewed him again,” Tripp’s appearance in court pursuant to a subpoena
on October 29, 1990, where defendant was also present, and her eventual identification of
defendant in a photographic lineup on November 2, 1990, and after viewing defendant on the
prior court date.
¶ 26 The circuit court denied defendant’s motion for leave to file, finding that defendant was
unable to establish cause for failing to raise these claims earlier. On appeal, we affirmed. People
v. Jones, No. 3-12-0027 (2013) (unpublished dispositional order). We found that Wilder’s
affidavit did not establish a colorable claim of actual innocence in light of Daniels, Tripp, and
Gregory’s testimony. We relied on Daniels’s identification of defendant as the shooter,
description of defendant’s clothing, and identification of the car that defendant rode in. Tripp
identified defendant as the person in the rear passenger seat of the yellow car that drove by
Wilder’s residence before the shooting. Further, Gregory did not identify defendant as the
shooter, but was able to identify defendant’s clothing as the clothing the shooter wore.
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¶ 27 On August 21, 2019, defendant filed a motion for leave to file a successive
postconviction petition. Relevant to this appeal, defendant alleged a claim of actual innocence
based on an affidavit from Oniiwa Wilson, who averred that he conspired with Gregory to
convince Wilder and Tripp to lie at trial and frame defendant for the shooting. Wilson was in
prison at the time of the shooting. Following his release in early October 1990, Wilson had
conversations with Gregory, Wilder, and Tripp several days before defendant’s trial began.
Wilson indicated that defendant was a “known enemy” and that Gregory “hated [defendant].”
Wilson told Gregory that to ensure defendant’s conviction for the murder, Gregory, Wilder, and
Tripp “had to *** testify in court that it was [defendant] that they saw shooting from the car.”
Wilson told Wilder and Tripp “to lie and say that they seen [sic] [defendant] shooting from the
car.” Wilson stated that while in court with Tripp and Wilder, he had to point defendant out to
them when defendant entered the room. A few days later, Tripp identified defendant as the
shooter in a photographic lineup.
¶ 28 The court denied defendant’s motion for leave to file his successive postconviction
petition. Defendant appealed.
¶ 29 II. ANALYSIS
¶ 30 Defendant argues that the circuit court erred by denying his motion for leave to file a
successive postconviction petition where he set forth a colorable claim of actual innocence.
Specifically, Wilson’s affidavit established that three of the State’s witnesses conspired to frame
defendant for the murder.
¶ 31 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) permits a
criminal defendant to challenge the proceedings which resulted in his conviction by asserting
that “there was a substantial denial of his or her rights under the Constitution of the United States
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or of the State of Illinois or both.” Id. § 122-1(a)(1). The Act contemplates the filing of a single
postconviction petition. People v. Robinson, 2020 IL 123849, ¶ 42. A defendant must obtain
leave of court to file a successive postconviction petition. People v. Wrice, 2012 IL 111860, ¶ 47;
Robinson, 2020 IL 123849, ¶ 43; 725 ILCS 5/122-1(f) (West 2018). To obtain leave, the
defendant must allege either (1) “cause and prejudice for the failure to assert a postconviction
claim in an earlier proceeding” or (2) “a fundamental miscarriage of justice based on actual
innocence.” Robinson, 2020 IL 123849, ¶ 42. “A request to file a successive petition based on
actual innocence is reviewed under a higher standard than that applicable to the first stage for an
initial petition, which only requires that the petition is not frivolous or patently without merit.”
Id. ¶ 43.
¶ 32 To establish a claim of actual innocence, the defendant must present “ ‘new, material,
noncumulative’ ” evidence that is so conclusive it would “ ‘ “probably change the result on
retrial.” ’ ” People v. Coleman, 2013 IL 113307, ¶ 84 (quoting People v. Washington, 171 Ill. 2d
475, 489 (1996), quoting People v. Silagy, 116 Ill. 2d 357, 368 (1987)). “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.” Robinson, 2020 IL 123849, ¶ 48.
“A request for leave to file a successive petition should be denied only where 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.” Id. ¶ 44. That is, a defendant is entitled to leave
when the “documentation [supporting the petition] raises the probability that it is more likely
than not that no reasonable juror would have convicted the petitioner in light of the new
evidence.” Id.
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¶ 33 “Newly discovered evidence is evidence that was discovered after trial and that the
[defendant] could not have discovered earlier through the exercise of due diligence.” Id. ¶ 47.
“Evidence is material if it is relevant and probative to the [defendant’s] innocence.” Id.
“Noncumulative evidence adds to the information that the fact finder heard at trial.” Id. “[T]he
conclusive character element refers to evidence that, when considered along with the trial
evidence, would probably lead to a different result.” Id. In other words, the question is “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.” Id. ¶ 48. “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. We review the court’s
second-stage dismissal of a postconviction petition de novo. People v. Pendleton, 223 Ill. 2d 458,
473 (2006).
¶ 34 Here, defendant’s claim derives from a new witness who allegedly persuaded the State’s
witnesses to lie and identified defendant for Tripp prior to the photographic lineup. In a prior
appeal, we considered the claim that the State’s witnesses perjured themselves and lied about
defendant’s involvement in the shooting. See Jones, No. 3-06-0004. In another appeal, we
considered defendant’s claim regarding Tripp’s identification of defendant as the shooter after
having observed defendant in court. See Jones, No. 3-95-0625. Thus, Wilson’s affidavit is not
newly discovered evidence, as it presents the same claim and relies on similar information as that
presented during a prior postconviction proceedings. See People v. Davis, 2014 IL 115595, ¶ 55
(“A defendant is not permitted to develop the evidentiary basis for a claim in a piecemeal fashion
in successive postconviction petitions.”).
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¶ 35 Even assuming, arguendo, that all the information in Wilson’s affidavit is newly
discovered, material, and not cumulative; the affidavit is not of such a conclusive nature that it
would probably change the result on retrial. Here, Daniels identified defendant as the shooter.
Defendant was found near the yellow car identified by Daniels, Wilder, and Gregory as the car
involved in the shooting, wearing the clothing that the witnesses identified the shooter to be
wearing. Defendant’s fingerprints were located in several locations on the rear passenger door
where the shooter was observed sitting. Moreover, the gun located under the driver’s seat
matched the bullets recovered from Wilder’s residence. In light of this evidence, Wilson’s new
statement that he coerced the State’s witnesses to identify defendant as the shooter days before
trial would not change the result on retrial. In other words, if Wilson’s statement undermined the
testimony of Wilder, Gregory, and Tripp, the remaining evidence still established that defendant
committed the murder. Therefore, the court did not err in denying defendant leave to file a
successive postconviction petition.
¶ 36 III. CONCLUSION
¶ 37 The judgment of the circuit court of Will County is affirmed.
¶ 38 Affirmed.
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