People v. Rivera-Martinez

2020 IL App (1st) 170573-UNo. 1-17-0573
SIXTH DIVISION
MARCH 13, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as
precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 04 CR 18747
)
EMANUEL RIVERA-MARTINEZ, ) Honorable
) Carol M. Howard,
Defendant-Appellant. ) Judge Presiding.
JUSTICE CUNNINGHAM delivered the judgment of the court.
Presiding Justice Mikva and Justice Connors concurred in the judgment.
ORDER
¶1 Held: Where the affidavit advanced by the defendant in support of his claim of actual
innocence is not of such conclusive character that it would probably change the
result on retrial, the trial court did not err in denying the defendant leave to file a
successive postconviction petition.
¶2 The defendant Emanuel Rivera-Martinez, who was convicted of the first-degree murders
of two victims and sentenced to natural life imprisonment, appeals from the trial court’s denial of
leave to file a successive pro se postconviction petition. On appeal, the defendant contends that
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the trial court erred in denying him leave to file his petition because he presented a colorable claim
of actual innocence based on the affidavit of a newly discovered eyewitness. Because we find that
the defendant’s proffered evidence is not of such conclusive character that it would probably
change the result on retrial, we affirm the judgment of the circuit court of Cook County.
¶3 BACKGROUND
¶4 The defendant’s conviction arose from the shooting deaths of Freddy Hurtado and Mario
Montanez on November 15, 2003, near the intersection of Lawndale and Fullerton Avenues in
Chicago. At the defendant’s 2008 bench trial, the defense theory of the case was that the defendant
fired his gun in self-defense, as a rival gang member had shot at him first. Due to the nature of the
defendant’s claim in this appeal, we will set forth the pertinent facts adduced at trial.
¶5 Ricardo Gomez testified that around 9 or 9:30 p.m. on the evening in question, he was
picked up by Renee Delgado and the two victims, Hurtado and Montanez. Gomez stated that all
four of them were unarmed. They drove in Delgado’s car to a bar on the corner of Lawndale and
Fullerton Avenues. After they parked on Lawndale Avenue, about a quarter of a block south of the
bar, they started crossing from the east side of the street to the west side, in a northerly direction.
Gomez noticed two men wearing hoodies on the corner across the street from the bar. He did not
recognize the men. The men were to Gomez’s right and said something to Gomez’s group, but
Gomez and his group did not answer and continued walking toward the bar. Gomez testified that
his group did not engage the two men in any way or make any movements like they were armed.
¶6 When Gomez and his group reached the sidewalk, Gomez heard gunshots coming from his
left. Hurtado ran but was shot. Montanez was also shot and fell on top of Gomez. Gomez lowered
Montanez onto the sidewalk. Gomez saw the shooter, who was a few feet to his left, put a gun into
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his pocket and run away. Gomez was able to catch “a glimpse” of the shooter’s face. Almost
immediately afterwards, Gomez saw a female police officer and pointed her in the direction that
the shooter was running. The officer ran after the shooter. Later that evening, Gomez identified
the defendant as the shooter in both a photographic and physical lineup at the police station. Gomez
also identified the defendant in court.
¶7 Amy Gonzales, who was a patron at the bar on the night in question, testified that at
approximately 10 p.m., she noticed she had missed some calls on her cell phone. She stepped
outside onto Lawndale Avenue so she could hear while she returned the calls. Gonzales noticed
two men on the same side of Fullerton Avenue where she stood, but on the other side of Lawndale
Avenue. Then Gonzales saw three men walk up. One of them, who was wearing a puffy coat with
a fur hood, pulled out a gun and shot three times in a northerly direction, at the two men on the
corner. Gonzales did not see anyone else with a gun or hear any other gunshots. She immediately
went back into the bar. Later, at the police station, she identified the defendant in a photograph
and in a physical lineup as the shooter. She also identified him in court.
¶8 On cross-examination, Gonzales specified that when she first saw the defendant, he was
walking on Lawndale Avenue, heading toward Fullerton Avenue; and that when he fired his gun,
he and the two men with him were standing in the street next to a car. Gonzales was asked to read
the police report of the officer who interviewed her at the scene of the shooting. The report
reflected that Gonzales had stated that she saw three men exit a gray vehicle, begin shooting, and
then flee southbound. Gonzales testified that she did not remember telling the police she saw the
men getting out of a car, but she did recall that the defendant was standing next to a gray car.
Gonzales agreed that because she went into the bar immediately after the defendant fired his
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weapon and it was loud inside the bar, she would not have heard any additional gunshots that may
have been fired. She also stated that during the lineup, the defendant was not wearing the coat with
the furry hood, but the police did show her the coat later.
¶9 Chicago police detective Cathleen Iser was riding in a police vehicle in the vicinity with
two other police officers at the time of the shooting. Detective Iser testified that after she heard
“several” gunshots, she exited the police car, ran toward the sidewalk and jumped over a man who
had fallen down. She saw a man fire a gun, and then she chased him in a southerly direction on
Lawndale Avenue. The shooter turned west into the alley. Detective Iser identified herself as a
police officer and yelled for him to stop and drop the gun, but the shooter continued running at the
T-intersection southward down another alley. Detective Iser saw the shooter throw a gun into the
air by a garage. Detective Iser’s partners had continued driving the police vehicle and were able to
apprehend the shooter in the alley. In court, Detective Iser identified the defendant as the shooter
and identified a photograph depicting the garage roof where the gun was recovered. Detective Iser
testified that besides the defendant, she did not see anyone else discharge a weapon.
¶ 10 Alejandro Vega testified that he had been convicted in 2001 of possession of a controlled
substance with intent to deliver and was charged with two counts of first-degree murder as a co-
defendant in this case. Vega made an agreement with the Cook County State’s Attorney Office
that in exchange for his truthful testimony in the defendant’s trial, the State would recommend a
sentence of 20 years’ imprisonment for one of the murders and the other count of murder would
be dropped.
¶ 11 In November 2003, Vega had been a member of the YLO Cobras gang for approximately
11 or 12 years. Vega knew the defendant as a fellow gang member. Vega stated that on the date in
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question, he had been “chilling” with Eugenio Lasso and another man, known as Georgie, on
Shakespeare Avenue in Chicago. At approximately 10 p.m., the defendant approached Vega and
the other two men and requested a gun. The defendant stated that there were some members of a
rival gang, the Imperial Gangsters, on the corner of Fullerton and Lawndale Avenues and the
defendant said that he wanted to “[g]et rid of them.” Vega testified that the defendant asked him
to “[w]atch his back.” Vega stated that the defendant had been shot at in the past by a member of
the Imperial Gangsters.
¶ 12 Lasso went to his vehicle, retrieved a gun, and gave it to the defendant. The four of them
then started walking toward Lawndale and Fullerton Avenues. Vega and Lasso were on the east
side of Lawndale Avenue walking north and were planning to “[l]ook out for the police.” The
defendant was on the west side of Lawndale Avenue near the bar. Georgie had stopped at Lawndale
and Belden Avenues, south of Fullerton Avenue. Lasso walked all the way to Fullerton Avenue,
but Vega only walked to the alley before Fullerton Avenue when he saw some men exit a car and
signal a YLO Cobra gang sign directed at him. Vega testified that he did not know the men. He
did not recognize them as members of the YLO Cobra gang, so he thought they were actually
“false flagging” the Cobra sign. Vega then heard two or three gunshots and saw the defendant
firing the gun at the men who had just exited the car. Vega started running southward on Lawndale
Avenue. As he was running, Vega heard “a lot” of gunshots and he looked to see a man in all
black, someone he could not identify, in the corner of the alley shooting a gun. Vega could feel
bullets passing him.
¶ 13 During his testimony, Vega was shown a photograph of the gun recovered by the police
and identified it as the gun that Lasso had in his vehicle that night, which he explained belonged
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to the YLO Cobra gang. Vega also identified the coat that the defendant was wearing the night of
the shooting. Vega admitted that he was going to plead guilty to a possession of a controlled
substance with intent to deliver charge and he would receive a sentence of six years’ imprisonment
concurrent with his murder sentence. Further, he had been convicted of possession of a stolen
motor vehicle and aggravated discharge of a firearm in the past. On cross-examination, Vega
admitted that in his recorded statement, he did not mention that there were bullets whizzing by his
head or that someone was shooting at him.
¶ 14 The parties stipulated to the photographs taken at the scene, the forensics done on the
recovered gun, and the bullets, casings, and metal fragments recovered from the area. Six shell
casings were found from the street on Lawndale Avenue south of Fullerton Avenue, four shell
casings were found on the sidewalk on Lawndale Avenue south of Fullerton Avenue, and three
bullet fragments were recovered in front of 3700 and 3702 Fullerton Avenue, on the northwest
corner of the intersection with Lawndale Avenue. Two of the shell casings and one of the bullet
fragments were determined to have been fired from the recovered gun. The six shell casings found
in the street were all fired from the same firearm and could not be identified or eliminated as having
been fired from the recovered gun. The gun contained seven 9 millimeter rounds in its magazine
and one 9 millimeter round in its chamber when it was found, and its magazine had a capacity for
12 rounds. A post-mortem examination report stated that Montanez’s cause of death was a gunshot
wound, that one bullet entered and exited his body, and that one bullet was recovered from his
body. The bullet found in Montanez’s body was tested and found to have been fired by the
recovered gun. Hurtado’s autopsy revealed an entrance and exit bullet wound, which caused his
death. Only a calcified bullet from a previous wound was recovered from Hurtado’s body.
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¶ 15 The defendant testified that on the date in question, he took the bus from his mother’s
residence to go see his girlfriend and newborn son, who lived on Lawndale Avenue, two blocks
south of Fullerton Avenue. The defendant got off the bus on the southwest corner of Fullerton and
Lawndale Avenues and started walking south on Lawndale Avenue. On his left, he saw two men,
one of whom he recognized from the streets and later learned was nicknamed Puppet G. Puppet
G. yelled out, “Security, bust out that bitch ass n*gger G. He a Cobra.” The defendant, who was
in the gang YLO Cobras, knew Puppet G. as a rival Imperial Gangster. The defendant took Puppet
G.’s statement to mean that Puppet G. had asked someone to shoot him. The defendant looked
around and saw some men exit a gray vehicle that was parked on the corner. When one of the men
started shooting at him, the defendant took cover behind a different car parked on the street, took
out his gun, and returned fire northbound on Lawndale Avenue “in self-defense.” The defendant
stated that he did not shoot at the gray car, but rather, “at the guy that was shooting at me.” And
that although there were “a lot” of bullets coming his direction, he only fired his own gun two or
three times. The defendant testified that he had received the gun from his brother as a gift, and that
he had not seen Vega or Lasso at all that day. The defendant acknowledged that he had three felony
convictions and often carried a gun for protection.
¶ 16 After the defendant stopped shooting, he noticed a female police officer exiting a police
vehicle. He started running down the street into an alley where she pursued him and yelled to him
to drop his gun. He threw the gun onto the roof of a garage, kept running, and put his hands into
the air. He was then apprehended by the police. The defendant stated that he had no intention of
killing anyone that day and was merely defending himself. On cross-examination, the defendant
stated he did not know how many men exited the gray car before the shooting started.
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¶ 17 At the conclusion of the trial, the trial court found the defendant guilty of two counts of
first-degree murder. It found the testimony of Gonzales, Gomez, and Detective Iser credible in that
their version of the facts suggested it was the defendant who fired first. Further, the trial court
noted that the ballistics showed one victim was killed with a bullet from the defendant’s gun and
that the other victim suffered a through and through bullet wound. The court commented that
although Vega was not necessarily the most credible of witnesses because of his background, he
was credible when he testified that he, the defendant, and Lasso were looking for rival gang
members to seek retaliation. The court admitted there were some questions raised regarding the
number of shell casings found at the scene but found that the State had nonetheless proved the
defendant guilty beyond a reasonable doubt.
¶ 18 The defendant filed a motion for a new trial, which the trial court denied. The trial court
subsequently sentenced the defendant to a term of natural life imprisonment.
¶ 19 On direct appeal, the defendant contended that: (1) the State failed to prove beyond a
reasonable doubt that he was not justified in shooting the victims in self-defense; and (2) his
conviction should be reduced to second-degree murder based upon his belief that he needed to use
deadly force in self-defense. We rejected the defendant’s contentions and affirmed. People v.
Rivera-Martinez, No. 1-08-3583 (2011) (unpublished order under Supreme Court Rule 23).
¶ 20 In 2013, the defendant filed a pro se petition seeking relief under the Postconviction
Hearing Act (the Act) (725 ILCS 5/122-1 et seq. (West 2012)). The defendant alleged in the
petition that his trial counsel was ineffective for failing to interview and call a witness, Jorge
Gonzalez, to refute testimony that was used to convict him. The trial court summarily dismissed
that petition, and this court affirmed. People v. Rivera-Martinez, 2016 IL App (1st) 133642-U.
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¶ 21 In 2015, during the pendency of the appeal of his initial postconviction petition, the
defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of Civil
Procedure. 735 ILCS 5/2-1401 (West 2014). In the petition, the defendant argued that the State
did not disclose to the defense that the judge who presided at his trial was a defendant in a civil
proceeding alleging the coercion of a false confession in another individual’s criminal case. The
defendant contended that the trial judge should have recused himself in the defendant’s case and
that, had he known of the allegations against the trial judge, he would not have waived his right to
a jury trial. The trial court dismissed the defendant’s petition and denied reconsideration. On
appeal, we granted counsel’s motion to withdraw and affirmed. People v. Rivera-Martinez, No. 1-
16-1675 (2018) (unpublished summary order under Supreme Court Rule 23(c)).
¶ 22 On November 22, 2016, while the appeal from his section 2-1401 petition was pending,
the defendant filed the operative pro se pleading at issue, titled, “Petition for Leave to File Petition
for Successive Post-Conviction Relief,” which was accompanied by a successive petition raising
six issues. Relevant here, the defendant made a claim of actual innocence based on newly
discovered evidence, i.e., an attached notarized affidavit from Jesus Rodriguez. According to the
defendant, Rodriguez’s affidavit exonerated him of first-degree murder and supported his claim of
self-defense.
¶ 23 In his affidavit, Rodriguez averred that around 10:15 p.m. on the night of the shooting, he
was walking on Fullerton Avenue near the intersection with Lawndale Avenue. He heard multiple
gunshots, looked in the direction of the sound, and saw a man in a white hoodie “standing in the
middle of the street shooting southbound on Lawndale.” Rodriguez stated that the shooter then ran
north on Lawndale Avenue, turned west onto Fullerton Avenue, and went into a banquet hall.
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Rodriguez then saw a female police officer get out of a police vehicle and run southbound on
Lawndale Avenue. He quickly walked away from the scene. Years later, Rodriguez met the
defendant “while in the yard” in prison and found out he was “the guy who got imprisoned for the
shooting” that he saw. Rodriguez told the defendant what he saw that night and agreed to provide
a sworn affidavit.
¶ 24 The trial court denied the defendant leave to file the successive petition. This appeal
followed.
¶ 25 ANALYSIS
¶ 26 We note that we have jurisdiction to hear this appeal, as the defendant filed a timely notice
of appeal. Ill. S. Ct. R. 603 (eff. Feb. 6, 2013); R. 606 (eff. July 1, 2017).
¶ 27 On appeal, the defendant contends that his petition sufficiently stated a colorable claim of
actual innocence based on newly discovered evidence. He argues that the evidence showing that
he intentionally shot the victims was not overwhelming, and that Rodriguez’s affidavit bolsters his
self-defense claim in that it supports his own trial testimony and helps explain the “confusing”
ballistics evidence. The defendant maintains that Rodriguez’s testimony could have tipped the
balance in his favor, “either through an acquittal or a finding of second-degree murder.” He argues
that Rodriguez’s affidavit: is newly discovered because he could not have discovered Rodriguez’s
existence any earlier; is material because it corroborates his testimony that a man shot at him first;
is noncumulative because it would “provide the jury with evidence of a completely different
character” than his own testimony and would contradict the State’s theory of the case; and is
sufficiently conclusive to warrant a new trial because it provides evidence of a second shooter and
thus is “corroborative evidence of [his] innocence” and his self-defense claim.
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¶ 28 The Act contemplates the filing of only one postconviction proceeding. People v. Edwards,
2012 IL 111711, ¶ 22. However, our supreme court has provided two bases upon which the bar
against successive proceedings may be relaxed. Id. The first basis is when a defendant establishes
“cause and prejudice” for failing to raise the claim earlier. Id. The second is the “fundamental
miscarriage of justice” exception, under which the defendant must show actual innocence. Id. ¶
23. When a defendant claims actual innocence, the question is whether his petition and supporting
documentation set forth a colorable claim; that is, whether they raise the probability that it is more
likely than not that no reasonable juror would have convicted him in light of the new evidence. Id.
¶¶ 24, 31, 33. The evidence supporting the claim of actual innocence must be (1) newly discovered;
(2) material and not merely cumulative; and (3) of such conclusive character that it would probably
change the result on retrial. Id. ¶ 32. The conclusiveness of the evidence is the most important
element of an actual innocence claim. People v. Sanders, 2016 IL 118123, ¶ 47. We review the
denial of leave to file a successive postconviction petition de novo. People v. Bailey, 2017 IL
121450, ¶ 13.
¶ 29 As an initial matter, we reject the defendant’s assertion that he should have been allowed
to file a successive petition because Rodriguez’s potential testimony could have tipped or shifted
the balance of evidence in his favor toward a finding of second-degree murder. In the context of a
postconviction claim of actual innocence based on newly discovered evidence, “actual innocence”
means “ ‘total vindication, or exoneration *** [and] requires that a defendant be free of liability
not only for the crime of conviction, but also of any related offenses.’ ” People v. Wingate, 2015
IL App (5th) 130189, ¶ 32 (quoting People v. Barnslater, 373 Ill. App. 3d 512, 520, 521 (2007)).
A claim of second-degree murder does not constitute a claim of actual innocence. People v. Moore,
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2018 IL App (3d) 160271, ¶ 20. Thus, to the extent that Rodriguez’s proffered testimony could
potentially reduce the defendant’s liability from first-degree murder to second-degree murder, it
would not support a claim of actual innocence. Id.; Wingate, 2015 IL App (5th) 130189, ¶ 34.
¶ 30 With regard to the defendant’s claim that Rodriguez’s affidavit could potentially lead to a
complete acquittal on the basis of self-defense, we find that the affidavit is not of such conclusive
character that it would probably change the result on retrial. To establish the affirmative defense
of self-defense, the defendant would be required to show, inter alia, that he was not the initial
aggressor. People v. Lee, 213 Ill. 2d 218, 225 (2004) (elements of self-defense are “(1) that
unlawful force was threatened against a person; (2) that the person threatened was not the
aggressor; (3) that the danger of harm was imminent; (4) that the use of force was necessary; (5)
that the person threatened actually and subjectively believed a danger existed that required the use
of the force applied; and (6) the beliefs of the person threatened were objectively reasonable”).
¶ 31 In his affidavit, Rodriguez stated that he heard multiple gunshots, looked in the direction
of the sound, and saw a man in a white hoodie “standing in the middle of the street shooting
southbound on Lawndale.” Given the undisputed evidence at trial that the defendant was wearing
a puffy coat with a fur hood and fired shots in a northerly direction, at best, Rodriguez’s averments
would show that the defendant was not the only shooter at the intersection that night. However,
Rodriguez’s statements have no bearing on whether the defendant was the initial aggressor.
¶ 32 Gomez and Gonzales, who were both at the scene prior to the shooting, did not see anyone
other than the defendant shooting a gun, much less shooting before the defendant opened fire.
Vega testified that the defendant went to the corner in question to “[g]et rid of” rival gang members
and fired the first shots in what ended up being an exchange of gunfire. The defendant was the
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only witness to identify a different person as the initial shooter that night. The trial court chose to
believe the State’s witnesses over the defendant with regard to who was the aggressor. Rodriguez’s
proffered testimony would do nothing to change that determination. Under these facts and
circumstances, we find that Rodriguez’s potential testimony is not of such conclusive character
that it would probably change the result on retrial. See People v. Jarrett, 399 Ill. App. 3d 715, 724
(2010) (where affidavits did not dispute that codefendant fired the first shots, they did not support
successive postconviction claim of self-defense and were not of conclusive character).
¶ 33 Rodriguez’s affidavit does not raise the probability that, if his testimony had been presented
at trial, it is more likely than not that no reasonable trier of fact would have convicted the defendant.
See Edwards, 2012 IL 111711, ¶ 40. Because the affidavit is not of such conclusive character that
it would probably change the result on retrial, the defendant has failed to assert a colorable claim
of actual innocence. See id. ¶¶ 40-41. In light of our determination regarding the conclusiveness
of the evidence provided in Rodriguez’s affidavit, we need not determine whether it was newly
discovered or material. Sanders, 2016 IL 118123, ¶ 47. Accordingly, the trial court did not err in
denying the defendant leave to file his successive postconviction petition.
¶ 34 CONCLUSION
¶ 35 For the reasons explained above, we affirm the judgment of the circuit court of Cook
County.
¶ 36 Affirmed.
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