NO. 4-11-0415

IN THE

APPELLATE COURT OF ILLINOIS

FOURTH JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

vs.

JAMES SNOW,

Defendant-Appellant.

) Appeal from the Circuit Court of) the Eleventh Judicial Circuit) McLean County, Illinois)) No. 99-CF-1016)) Honorable) Alesia McMillen) Judge Presiding.

QBRIEF AND ARGUMENT FOR PLAINTIFF-APPELLEE

William A. YoderMcLean County State's AttorneyMcLean County Law & Justice CenterBloomington, Illinois 61701

Patrick DelfinoDirectorRobert J. BidermanDeputy DirectorAnastacia R. BrooksStaff AttorneyState's Attorneys Appellate

Prosecutor725 South Second StreetSpringfield, Illinois 62704(217) 782 - 8076

COUNSEL FOR PLAINTIFF-APPELLEE

ORAL ARGUMENT REQUESTED

PAGE

.,POINTS AND AUTHORITIES

I

THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS

TO RAISE A FREESTANDING CLAIM OF ACTUAL INNOCENCE . . . . 19

People v. Washington, 171 Ill.2d 475, 665 N.E.2d 1330

(1996) ..... . . 19

People v. Collier, 387 Ill.App.3d 630, 900 N.E.2d 396

(1st Dist. 2008) . . . . . . . . . . . . . · · 19, 23

People v. Morales, 339 Ill.App.3d 554, 791 N.E.2d 1122

(1st Dist. 2003) . . . . . . . . . . . . . . · · . . 19

People v. Steidl, 142 Ill.2d 204, 568 N.E.2d 837

(1991) .

People v. Brown, 371 Ill.App.3d 972, 864 N.E.2d 767

(1st Dist. 2007) .....

People v. Cleveland, 342 Ill.App.3d 912, 796 N.E.2d

201 (2d Dist. 2003)

People v. Reyes, 369 Ill.App.3d I, 860 N.E.2d 488

· . . 20

· .. 23

· .. 27

(1st Dist. 2006) . . . · . . . 27

II

THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS

TO SHOW THAT HE RECEIVED INEFFECTIVE ASSISTANCE . . . . . 28

i

People v. Albanese, 125 Ill.2d 100, 531 N.E.2d 17

'.. (1988) . 28

28

· 30

. .. 30

. . . . 30

29

· 30

Strickland v. Washington, 466 U.S. 668 (1984)

People v. Morales, 339 Ill.App.3d 554, 791 N.E.2d 1122

(1st Dist. 2003) .

People v. Thomas, 2011 IL App (4th) 100666 . . . ..

People v. Gabriel, 398 Ill.App.3d 332, 924 N.E.2d 1133

(1st Dist. 2010) .

People v. Love, 377 Ill.App.3d 306, 878 N.E.2d 789

(1st Dist. 2007) .

People v. Enis, 163 Ill.2d 367, 645 N.E.2d 856

(1994) .

People v. Smith, 195 Ill.2d 179, 745 N.E.2d 1194

(2000) . . . . . . . . . . . . . . . . . . . . . .. 31

People v. Snow, No. 4-01-0435 (August 20, 2004)

(unpublished order pursuant to Supreme Court

Rule 23) . . . . . . . .

Supreme Court Rule 341(h) (7)

34

· 30

III

THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS

TO SHOW THAT HIS DUE PROCESS RIGHTS WERE VIOLATED . . . . 35

United States v. Bagley, 473 U.S. 667 (1985) 35

ii

. 36

37

37

•

Kyles v. Whitley, 514 U.S. 419 (1995) 35

People v. Morales, 339 III.App.3d 554, 791 N.E.2d 1122

(1st Dist. 2003) .

Akrawi v. Booker, 572 F.3d 252 (6th Cir. 2009)

Matthews v. Ishee, 486 F.3d 883 (6th Cir. 2007)

People ex reI. Daley v. Fitzgerald, 123 III.2d 175,

526 N.E.2d 131 (1988) 38

People v. Rodriguez, 387 III.App.3d 812, 901 N.E.2d

927 (1st Dist. 2008) 39

People v. Love, 377 III.App.3d 306, 878 N.E.2d 789

(1st Dist. 2007) 39

People v. Enis, 163 III.2d 367, 645 N.E.2d 856

(1994) . . . . . . . . . . . . . . . . . . . . . . . 39

People v. Curtis, 113 III.2d 136, 497 N.E.2d 1004

(1986) . . . . . . . . . . . . . . . . . . . . . . . 40

Neil v. Biggers, 409 U.S. 188 (1972) 40

People v. Jones, 211 III.2d 140, 809 N.E.2d 1233

(2004) . . . . . . . . . . . . . . . . . . . . . . . 41

People v. Newman, 365 Ill.App.3d 285, 848 N.E.2d 262

(4th Dist. 2006) . . . . . . . . . . . . . . . . . . 41

People v. Borello, 389 III.App.3d 985, 906 N.E.2d 1250

(4th Dist. 2009) 41

People v. Robinson, 375 IIl.App.3d 320, 872 N.E.2d

1061 (2d Dist. 2007) . . . . . . . . . . . . . . . . 42

iii

210 III.2d R.341(h) (7) . . . . . . . . . . . . . 41

IV

THE TRIAL COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR

BALLISTICS DATABASE TESTING OF THE BULLETS THAT HAD BEEN

RECOVERED FROM THE VICTIM'S BODY 43

People v. Slover, 2011 IL App (4th) 100276 . . ..... 43

People v. Savory, 197 III.2d 203, 756 N.E.2d 804

(2001) . . . . . . . . . . . . . . . . . . . . . . . 44

People v. Pursley, 407 III.App.3d 526, 943 N.E.2d 98

(2d Dist. 2011) .. 44

725 ILCS 5/116-3 (c) (1) (West 2010) 43

V

DEFENDANT HAS FAILED TO PERSUADE THAT HE IS ENTITLED TO

POST-CONVICTION DISCOVERY AND/OR REMAND FOR FURTHER

PROCEEDINGS BEFORE A DIFFERENT JUDGE . . . . . . . . . . 45

People ex reI. Daley v. Fitzgerald, 123 III.2d 175,

526 N.E.2d 131 (1988) 45

Eychaner v. Gross, 202 III.2d 228, 779 N.E.2d 1115

(2002) . . . . . .

210 II1.2d R.341(h) (7)

iv

47

46

NATURE OF THE CASE

Following a jury trial, defendant was convicted of first

degree murder and was sentenced to natural life in prison.

This court affirmed on direct appeal. See People v. Snow, No.

4-01-0435 (August 20, 2004) (unpublished order pursuant to

Supreme Court Rule 23). Defendant now appeals from the trial

court's dismissal of his post-conviction petition and the

denial of his motions for ballistics testing, discovery, and

further supplementing the petition.

1

STATEMENT OF FACTS

In September 1999, defendant was indicted on first degree

murder charges arising from his March 31, 1991, shooting of

William Little. (R. Vol. I, C20-C22)

A. Tim Powell

Powell had a sister, Susan Claycomb, whose brother-in-law

was defendant. (R. Vol. XXV, 198) Weeks before the Clark

station shooting, defendant rode with Powell and commented

about going to rob the Freedom station. (R. Vol. XXV, 198-200)

Defendant then went into the Clark station. (R. Vol. XXV, 202)

B. Carlos Luna

Luna lived nearby the Clark station. (R. Vol. XXIII, 73-

75) Luna "kept looking" at someone who exited the station,

walked east, and then north. (R. Vol. XXIII, 80) Luna thought

that the suspect was carrying the cash register tray

underneath a coat. (R. Vol. XXIII, 82) At the time, Luna got

the impression that the station was robbed. (R. Vol. XXIII,

83) Police then arrived. (R. Vol. XXIII, 84) Weeks later,

Luna viewed an in-person six-person lineup and selected

defendant. (R. Vol. XXIII, 87-88) Luna testified that

defendant "fit the picture" in his mind. (R. Vol. XXIII, 89)

When police asked if Luna was "sure," Luna replied, "I think

he is the person." (R. Vol. XXIII, 108, 112)

2

pump at

158-159)

Defendant's petition contains a report of the lineup, and

Luna said that defendant "looked like the person" based on the

resemblance of his face shape and hair. (R. Vol. X, C2736)

Defendant also provided testimony that police did not think

that Luna "could provide enough information to complete an

effective composite." (R. Vol. X, C2750) In 2010, Luna

provided the defense an affidavit about the lineup to the

effect that defendant "best fit" but that Luna could not say

that he was "sure." (R. Vol. XII, C3232)

C. Danny Martinez

Martinez testified that he was using the air

Clark when he heard "two bangs." (R. Vol. XXII,

Martinez saw a man "coming out the door backwards," and

Martinez walked toward the station. (R. Vol. XXII, 159)

Martinez noticed the man's eyes when they were face-to-face.

(R. Vol. XXII, 160) Martinez claimed, "I'll never forget

those eyes." (R. Vol. XXII, 160) The man walked around the

east corner and headed north. (R. Vol. XXII, 162) Martinez

then walked toward the station and heard an officer order him

to stop. (R. Vol. XXII, 161, 163) Martinez was unable to

identify defendant in photo books or an in-person lineup due

to distance and lighting. (R. Vol. XXII, 172-173) In July

2000, Martinez spotted defendant in a photograph of the

lineup. (R. Vol. XXII, 173-175) Martinez had seen defendant's

3

photograph in the newspaper after defendant's arrest. (R. Vol.

XXII, 176-177) Martinez identified defendant in court. (R.

Vol. XXII, 177-178) Martinez had been "85 percent sure" but

became "a hundred percent sure" at trial. (R. Vol. XXII, 178)

Defendant's petition contained affidavits claiming that

Martinez knew defendant growing up. (R. Vol. X, C2681-C2686)

Moreover, Martinez's police interviews showed that the man

left the area before police arrived. (R. Vol. X, C2713, C2716,

C2718, C2722, C2724)

D. Jeff Pelo and Paul Williams

Pelo took three minutes to respond to the holdup alarm at

Clark. (R. Vol. XXII, 99) Pelo parked in a concealed location

and approached on foot. (R. Vol. XXII, 100) Pelo saw Martinez

using the air pump. (R. Vol. XXII, 101) Martinez then walked

toward the station. (R. Vol. XXII, 103) Pelo did not see

anyone exit the station, and Martinez was the only other

person on foot at the time. (R. Vol. XXII, 103, 123) Martinez

told Pelo that Martinez had seen someone leave the station and

proceed north. (R. Vol. XXII, 133) Williams did not see

anyone else leave the station. (R. Vol. XXII, 152)

Defendant's petition contained Pelo's affidavit to the

effect that he saw no one leave the Clark station after he got

in position to view the door. (R. Vol. X, C2674) Pelo also

provided that conclusion in a taped interview from March 1999.

4

(R. Vol. X, C2701) Pelo disputed Martinez's claim about

speaking with Pelo before leaving the lot. (R. Vol. X, C2677)

E. Karen Strong

At the time of the shooting, Strong knew defendant

through her boyfriend, Mark "Stretch" McCowan. (R. Vol. XXVII,

5-6) A couple of hours later, McCowan asked Strong if

defendant could "stay for a few days." (R. Vol. XXVII, 8)

Strong saw defendant outside. (R. Vol. XXVII, 9) McCowan

later indicated that defendant had "needed a place to stay for

a few days because he was in trouble." (R. Vol. XXX, 6)

McCowan later added that defendant "had shot the Little kid in

the robbery." (R. Vol. XXX, 9)

Defendant's petition contained McCowan's affidavit

speculating that Strong was "working off" an arrest about

which McCowan had "heard." (R. Vol. XI, C2826) Moreover, Mark

Huffington's affidavit alleged that Strong disclaimed

knowledge about the case. (R. Vol. XI, C2831)

F. Bill Gaddis

Gaddis testified that he knew defendant most of his life.

(R. Vol. XXIV, 15) He visited an apartment the next day and

saw defendant and other people. (R. Vol. XXIV, 17-19)

Everyone seemed "down," and Gaddis asked, "who died." (R. Vol.

XXIV, 20) No one answered until "Frankie said Jamie shot a

boy at a gas station." (R. Vol. XXIV, 20) Defendant had his

5

head down and did not say anything. (R. Vol. XXIV, 21) Dennis

Hendricks' denial of that incident was impeached with his

grand jury testimony. (R. Vol. XXXVIII, 45-47)

G. Randall Howard

Howard had been "best friends" with defendant. (R. Vol.

XXV, 46-47) Howard took a bus back to Bloomington a day or

two after the shooting, and defendant picked up Howard. (R.

Vol. XXV, 48) Defendant asked, "did you hear what happened"

before saying, "Man, bro, I f***ed up. I shot this kid." (R.

XXV, 54)

Vol. XXV, 49-50)

loud. (R. Vol.

Defendant's demeanor was very excited and

After a minute of conversation,

defendant said, "no, I'm just joking." (R. Vol. XXV, 50)

Defendant remarked days later that the police composite

drawings looked "just like me." (R. Vol. XXV, 56) Howard

added, "the one does look just like him." (R. Vol. XXV, 56)

Defendant's petition contained Howard's affidavit to the

effect that police visited him "every week" for a few months

after the shooting, asking him "a lot" of questions about

defendant and whether Howard knew anything. (R. Vol. XI,

C2782) Howard claimed that he told police the truth during

those conversations. (R. Vol. XI, C2782)

H. Ed Palumbo and Shannon Wallace

Palumbo testified that he knew defendant for a "number of

years." (R. Vol. XXIII, 119) A few days after the shooting,

6

Palumbo was with Wallace when he encountered defendant. (R.

Vol. XXIII, 121-122) Defendant asked Palumbo to read about

defendant in the newspaper. (R. Vol. XXIII, 123) Defendant

added, "Boom boom. Gun goes off. Kid dies." (R. Vol. XXIII,

123) Weeks later, Palumbo asked about the gun, and defendant

replied that "he took care of it." (R. Vol. XXIII, 126)

Defendant added that he shot the attendant for being a "smart

ass," it was not as hard as he thought, and there was not a

lot of money. (R. Vol. XXIII, 126) Palumbo possibly hoped for

leniency when he spoke with police. (R. Vol. XXIII, 139-140)

Palumbo denied that the prosecution promised anything. (R.

Vol. XXIII, 147-148) Wallace heard only the word "Paper," but

Palumbo told her that same day that defendant admitted "that

the gun went off and the kid died." (R. Vol. XXV, 74-76)

Defendant's petition contained Palumbo's affidavit to the

effect that he informed on defendant while "trying to get a

deal" and that he was threatened with consequences if he did

not testify. (R. Vol. X, C2757) Palumbo also alleged that the

State's Attorney admitted to him that defendant "didn't do

this" and also offered before Palumbo's testimony to "see what

he could do" about a prison transfer. (R. Vol. X, C2758)

I. Steve Scheel and Molly Eades

Scheel knew defendant since childhood. (R. Vol. XXV, 132)

Weeks after the shooting, Scheel saw defendant at Eades' home.

7

(R. Vol. XXV, 133) During a discussion of defendant being Uon

the run," defendant admitted having robbed the Clark station

and shooting the attendant. (R. Vol. XXV, 139) Scheel denied

having sought any consideration for his information. (R. Vol.

XXV, lSI) Eades confirmed that defendant had been at the

gathering. (R. Vol. XXV, 94-9G)

Defendant's petition contained an investigator's

affidavit recounting Scheel's purported admission to perjury

and implied pressure to cooperate by police. (R. Vol. XI,

C2792-C2794) However, Scheel was Utoo scared" to sign an

affidavit for the defense because he could be charged with

perjury. (R. Vol. XI, C279S-C279G)

J. Steven Parker

Parker worked for police in Missouri. (R. Vol. XXVII, G3)

Weeks after the shooting, Parker received a warrant for

defendant's arrest, and he was wanted in connection with the

homicide. (R. Vol. XXVII, G4) A tactical team found defendant

hiding in the attic underneath insulation. (R. Vol. XXVII, Ga)

K. Russell Thomas and Mike Bernardini

Thomas then went to Missouri to bring defendant back for

Bloomington police. (R. Vol. XXVI, 117) Defendant was not

under arrest for the Clark shooting, but defendant asked why

police were looking at him for that crime. (R. Vol. XXVI, 120)

Defendant was Uvery nervous," and he asked Thomas uwhat would

a

happen to him if he knew something about the murder." (R. Vol.

XXVI, 121) Thomas kept telling defendant in the car to relax,

but defendant periodically asked about the murder. (R. Vol.

XXVI, 121) During questioning at the station, defendant

became most agitated when talking about the murder. (R. Vol.

XXVI, 126) Defendant even asked "why could he be charged with

murder if he didn't have the gun." (R. Vol. XXVI, 128) After

Thomas and Bernardini explained accountability, defendant

wanted to know "what would happen to him if he knew

something." (R. Vol. XXVI, 128) Thomas and Bernardini were

unable to make deals and wanted the truth. (R. Vol. XXVI, 129­

130) Defendant indicated that if he told the truth about his

involvement, he would have to incriminate himself. (R. Vol.

XXVI, 130) Thomas concluded that defendant implicated himself

in the murder. (R. Vol. XXVI, 153) Bernardini corroborated

Thomas's account. (R. Vol. XXVII, 37-47)

L. Charles Crowe

In June 1991, Crowe organized an in-person lineup at the

jail. (R. Vol. XXX, 18) Defendant indicated that he talked to

his attorney, whom he wanted to fire, and that he was not

going to stand in any lineup. (R. Vol. XXX, 19) Defendant

still refused to participate after additional consultation

with his lawyer and being told that he would be "cuffed to the

bars or held up by people." (R. Vol. XXX, 20) After more

9

consultation with the attorney, defendant still refused until

two officers approached him after being directed to assist

defendant to a place in the lineup. (R. Vol. XXX, 21)

M. Dawn Roberts

Roberts heard defendant direct her to bring him

composites that were on display around town. (R. Vol. XXVI,

33) Roberts saw composites on defendant's table. (R. Vol.

XXVI, 34) Defendant admitted that the composite "was of him,"

and defendant told McCowan "not to worry" because "It is me

not you." (R. Vol. XXVI, 35) Roberts also saw defendant pour

out beer as a toast to people who suffered and heard defendant

say, "This is to Billy Little." (R. Vol. XXVI, 36)

Defendant's petition contained Roberts' affidavit to deny

that defendant gave a last name when toasting a "Billy" that

could have been someone else who had died. (R. Vol. XI, C2774)

Roberts admitted having taken down some composites of the

suspect because defendant was her friend. (R. Vol. XI, C2776)

N. Bill Moffitt

Moffitt and defendant shared a prison cell. (R. Vol.

XXIV, 100-101) Defendant expressed concern about having

committed an armed robbery "that had went wrong." (R. Vol.

XXIV, 102) Defendant admitted to shooting a "B.L." during the

robbery. (R. Vol. XXIV, 103) Moffitt denied having been

promised anything for his testimony. (R. Vol. XXIV, 117)

10

Defendant's petition contained Dennis Hendricks'

affidavit to the effect that Moffitt admitted getting a "time

cut in exchange." (R. Vol. X, C2685)

O. Bruce Roland

Roland made contact with defendant in prison. (R. Vol.

XXVI, 83) Defendant admitted to Roland that he shot Little.

(R. Vol. XXVI, 85) After Roland was arrested for DUI, his

attorney suggested that he should come forward. (R. Vol. XXVI,

89) Roland denied that anyone made any "promises or

guarantees" about "receiving anything in return" for his

statement. (R. Vol. XXVI, 90)

Defendant's petition had a report that the state's

Attorney had directed police to inform Roland's attorney that

"if his client was totally truthful and his information was

correct that his office had a history of taking the persons

cooperation into consideration at sentencing time." (R. Vol.

XI, C2837) In November 2001, Roland pleaded guilty to three

felony traffic offenses and received two consecutive 30-month

prison terms. (R. Vol. XI, C3009)

P. Ed Hammond

Hammond knew defendant for 25 years. (R. Vol. XXIV, 131)

Hammond met defendant in prison in 1995. (R. Vol. XXIV, 134)

Defendant said, "I shot the kid." (R. Vol. XXIV, 136) Hammond

thought that defendant said that a .22 caliber weapon was

11

involved. (R. Vol. XXIV, 136) Defendant knocked something

over as he left, and defendant encountered someone in the

parking lot. (R. Vol. XXIV, 136)

Q. Kevin Schaal

Schaal was in the same prison cell as defendant in 1996.

(R. Vol. XXV, 155-156) Schaal later had contact with

defendant in Florida. (R. Vol. XXV, 166) Defendant discussed

the escalating pressure from the investigation. (R. Vol. XXV,

170) Schaal said that if defendant was not involved, he had

nothing to worry about. (R. Vol. XXV, 170; Vol. XXVI, 50)

Defendant replied, uwell, I was. I was there." (R. Vol. XXVI,

50) .

Schaal was convicted of a federal crime in 2000. (R. Vol.

XXV, 155) At trial, Schaal admitted that an ATF agent offered

to help if Schaal cooperated. (R. Vol. XXVI, 54-55) Schaal

provided information because he was awaiting federal

sentencing and because his attorney told him it would serve

him to cooperate. (R. Vol. XXVI, 55-56) Schaal agreed that

the prosecutor indicated that Uthere were no promises or

guarantees about what good" cooperating would do for him. (R.

Vol. XXVI, 62)

Defendant's petition contains a publicly filed motion by

the United States for a downward departure. (R. Vol. XII,

C3034) The July 2000 request for a two-level reduction cited

12

Schaal's cooperation as to other crimes, plus the information

that he provided in this case. (R. Vol. XII, C3034-C3035) The

departure was allowed, and Schaal received a federal sentence

of 110 months for possessing a firearm as a felon. (R. Vol.

XII, C3039)

R. Dan Tanasz

Tanasz worked in Florida with defendant. (R. Vol. XXIV,

79-80) Defendant said that he could not return to Illinois

because he was "involved in a robbery." (R. Vol. XXIV, 82)

Another time, defendant said that "he had shot somebody." (R.

Vol. XXIV, 86)

Defendant's petition contained Tanasz's affidavit to the

effect that defendant said that police were accusing him of a

robbery and that defendant never said that he was involved in

this offense. (R. Vol. XI, C2804, C2807)

S. Ronnie Wright

Wright knew defendant over 20 years. (R. Vol. XXV, 175)

Wright claimed that he got angry and provided information to

police because he and defendant "got into a little spat" in

the jail. (R. Vol. XXV, 176) Defendant told Wright that he

killed someone in an armed robbery, got out because of

insufficient evidence, and moved to Florida. (R. Vol. XXV,

177-178) Defendant had known about the arrest warrant when he

left Florida for Ohio. (R. Vol. XXV, 178)

13

Wright admitted

that defendant had shown him certain discovery papers. (R.

Vol. XXV, 180, 187) Defendant smoked crack cocaine in

Florida, and defendant wanted Wright to lie about it to avoid

bringing back what happened in 1991. (R. Vol. XXV, 181-182)

Defendant supplemented his petition with an affidavit

from Wright to the effect that defendant never told him about

any involvement in the crime. (R. Vol. XIII, C3304) Wright

also claimed that he read Uall" of the discovery. (R. Vol.

XIII, C330S) Wright claimed that he lied to police, telling

them what they wanted to hear from the discovery, to get back

at defendant for an incident in the jail. (R. Vol. XIII,

C330s-C3308) The police never threatened Wright, and the

prosecution never offered him any deal. (R. Vol. XIII, C3307­

C3308)

T. Jody Winkler

Winkler lived with defendant in Florida. (R. Vol. XXV,

112) Defendant disclosed that he committed this crime. (R.

Vol. XXV, 115) At trial, Winkler noted that he did not get

anything for his cooperation, although at first he tried

asking authorities what he could get. (R. Vol. XXV, 119, 127,

130)

Defendant's petition contained a January 2000 plea

agreement in which Winkler received a four-year prison

sentence for forgery. (R. Vol. XI, C2814-C2824)

14

u. Robert Ondecker

Ondecker worked for police in Ohio who looked for

defendant in September 1999. (R. Vol. XXIV, 54-55) Defendant

claimed that he was uDavid Arison" and also presented Arison's

birth certificate. (R. Vol. XXIV, 57) Defendant denied being

uJamie Snow" and ran from police who tried to check his

tattoos. (R. Vol. XXIV, 58-60)

V. Mary Burns

Burns met defendant while employed at the jail. (R. Vol.

XXVII, 17-20) Defendant said that he knew who committed the

murder. (R. Vol. XXVII, 23) Defendant said that he was in a

car with Claycomb, as well as a man and a woman whose

identities he did not disclose. (R. Vol. XXVII, 23, 25)

Defendant claimed to have been in the alley behind the Clark

station, and he figured that the other man committed the

crime. (R. Vol. XXVII, 24)

Defendant's petition contained Burns' statement that

Darren Smart was present during the conversation. (R. Vol.

XII, C3048) Smart's affidavit claimed that defendant never

made the statements to Burns. (R. Vol. XII, C3235)

X. Jamie Snow

Defendant testified that he never had been in that Clark

station and he spent all day with his wife. (R. Vol. XXIX, 53,

141-142) Defendant encountered Palumbo but said only that he

15

read about Palumbo in the newspaper because Palumbo committed

armed robberies. (R. Vol. XXIX, 57) Defendant denied having

ever seen Gaddis. (R. Vol. XXIX, 60) Defendant denied

confessing to Howard and did not recall talking about

composites. (R. Vol. XXIX, 61-62) Defendant never attended a

party with Scheel and did not confess to him. (R. Vol. XXIX,

63) Defendant never asked to stay at Strong's residence. (R.

Vol. XXIX, 64)

Defendant claimed that Thomas and Bernardini confused him

because he never had information about this crime. (R. Vol.

XXIX, 70) Defendant insisted that he was only concerned about

having his attorney witness the lineup. (R. Vol. XXIX, 72)

Defendant denied talking around Roberts or obtaining

composites. (R. Vol. XXIX, 75-76) Defendant denied confessing

to Moffitt, Hammond, Schaal, or Roland in prison. (R. Vol.

XXIX, 80, 93-94, 101) When defendant told Schaal that he had

been "there," he meant Bloomington, not the crime scene. (R.

Vol. XXIX, 99) Defendant told Tanasz only that was not going

back to Illinois because he was a suspect, and defendant never

said that he shot anyone. (R. Vol. XXIX, 105-106) Defendant

denied confessing to Winkler or Wright in Florida. (R. Vol.

XXIX, 109, 118) Defendant ran because he was afraid. (R. Vol.

XXIX, 116) Defendant absolutely denied ever showing Wright

any discovery. (R. Vol. XXIX, 120-121) Defendant claimed that

16

Burns misunderstood him. (R. Vol. XXIX, 127) Defendant denied

committing this crime. (R. Vol. XXIX, 129)

The jury found defendant guilty. (R. Vol. XXXII, 5) The

trial court heard defendant's post-trial complaints about his

attorney's assistance. (R. Vol. XXXII, 41-141) The trial

court concluded that defendant's lawyers were prepared and not

impaired and that their performance was "excellent." (R. Vol.

IV, C762, C767-C768)

On direct appeal, this court had affirmed defendant's

first degree murder conviction and sentence of natural life in

prison. See People v. Snow, No. 4-01-0435 (August 20, 2004)

(unpublished order pursuant to Supreme Court Rule 23). (R.

Vol. V, C1127-C1159) This court noted that Luna's

identification was "stronger" than Martinez's "questionable"

identification. See Snow, slip order at 27. (R. Vol. V,

C1154) Moreover, the identifications were corroborated by

defendant's admissions to "about a dozen other witnesses" and

evidence of flight. See Snow, slip order at 27-28. (R. Vol.

V, C1154-C1155) This court also rejected defendant's

ineffective-assistance claims, including issues about Riley's

stroke and Picl's alcohol consumption. See Snow, slip order

at 9-11, 29-30. (R. Vol. V, C1136-C1138, C1156-C1157)

Defendant filed an amended post-conviction petition with

exhibits in January 2010. (R. Vol. X, C2610-C2758; Vol. XI,

17

C2759-C3029; Vol. XII, C3030-C3250} In April 2011, the trial

court allowed the prosecution's motion to dismiss defendant's

amended post-conviction petition. (R. Vol. XII, C3256-C3262;

Vol. XIV, C3875-C3878)

18

ARGUMENT

I

THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS TO

RAISE A FREESTANDING CLAIM OF ACTUAL INNOCENCE.

To make a compelling showing of actual innocence that

requires relief, the supporting evidence must be (1) new, (2)

material, (3) noncumulative, and (4) of such conclusive

character as would probable change the result on retrial. See

People v. Washington, 171 Ill.2d 475, 489, 665 N.E.2d 1330,

1337 (1996). Evidence is not newly discovered when it

presents facts already known to a defendant at or prior to

trial, though the source of these facts may have been unknown,

unavailable or uncooperative. People v. Collier, 387

Ill.App.3d 630, 637, 900 N.E.2d 396, 403 (1st Dist. 2008).

"Evidence that merely impeaches a witness will typically

not be of such conclusive character as to justify

postconviction relief." Collier, 387 Ill.App.3d at 637, 900

N.E.2d at 403 (where allegations merely impeached or

contradicted trial testimony). "As a general rule, hearsay

affidavits are insufficient." People v. Morales, 339

Ill.App.3d 554, 565, 791 N.E.2d 1122, 1132 (1st Dist. 2003)

(noting that affidavits containing inadmissible hearsay were

"not sufficiently conclusive"). Recantations have been deemed

19

very unreliable, especially where given by unrepresented

witnesses outside the presence of the prosecution. See People

v. Steidl, 142 III.2d 204, 254-255, 568 N.E.2d 837, 858-859

(1991) .

Defendant's actual innocence claim depends most on his

mistaken efforts to portray Martinez as the "star witness"

before vainly trying to discredit him. (Def. br., 3, 30)

Defendant erroneously characterizes the "centerpiece" of the

prosecution's case as the "critical" testimony that Martinez

could not forget defendant's eyes. (Def. br., 3, 32-33)

However, the prosecution told jurors that this was "not

an eyewitness identification case" and did not hinge on any

"single piece of evidence." (R. Vol. XXII, 16, 27) The

defense pointed out after trial that Martinez left the witness

stand "very badly damaged." (R. Vol. XXXII, 54) Luna's

superior performance at the lineup made the prosecution rely

more on Luna as an eyewitness. (R. Vol. XXXII, 38)

Defendant now asserts that Pelo "makes clear" that

Martinez "could not have seen" defendant. (Def. br., 33)

However, defendant fails to establish his key assumption that

if Martinez saw defendant leaving the Clark station, then Pelo

would have seen him as well. (Def. br., 33) Defendant did not

reply to the fact that "defendant left the scene prior to the

officers arriving." (R. Vol. XII, C3258; XIII, C3282-C3283)

20

At trial, Pelo testified that he did not see anyone leave

the station. (R. Vol. XXII, 103) Martinez was already on the

Clark lot before Pelo finally parked and walked into position

at least three minutes after receiving the dispatch. (R. Vol.

XXII, 99-101) Martinez was on the lot when he heard "two

bangs," and police did not arrive until after Martinez lost

sight of defendant. (R. Vol. XXII, 159-163) Someone had to

exit the station after shooting the attendant, and it is

frivolous for defendant to suggest that Martinez is

discredited simply because Pelo reiterates that he saw no one

leave once he "was on the scene." (R. Vol. X, C2677)

Martinez was cross-examined at trial about telling police

that two photos in their book "resembled the suspect." (R.

Vol. X, C2712; XXII, 207) Also old information was "Mrs.

Little" calling Martinez in 1999. (R. Vol. X, C2733) Pelo's

affidavit created a conflict on the collateral matter of

whether Pelo spoke to Martinez before Martinez backed out of

the lot. (R. Vol. X, C2677) Also inconclusive were the two

Hendricks affidavits containing potential material with which

to impeach Martinez. (R. Vol. X, C2681-C2686) Defendant would

have known if Martinez had played sports with him when they

were children. (Def. br., 33)

The trial result would not have changed even if Luna's

"new" information had been available. Luna has not retracted

21

or "eviscerated" his identification of defendant in the

lineup. (Def. br., 17, 34) Defendant grossly mischaracterizes

the affidavit as meaning that Luna "cannot identify" him.

(Def. br., 30)

Instead, Luna now says merely that defendant "best fit"

the suspect and that he was not "sure." (R. Vol. XII, C3232)

However, the trial already revealed Luna's inability to say

that he was sure, as Luna could only answer, "I think he is

the person." (R. Vol. XXIII, 108, 112). Luna's inability to

"provide enough information to complete an effective

composite" was previously available. (R. Vol. X, C2750) Luna

cited defendant's face shape and hair at the lineup. (R. Vol.

X, C2736) Therefore, the Martinez and Luna observations

remain as important corroboration of defendant's admissions

and the circumstantial evidence. The conviction has not

become "based solely" on defendant's confessions. (Def. br.,

34)

Defendant's other affidavits fail to demonstrate any

"totality of the evidence" favoring innocence. (Def. br., 35)

As explained below, defendant erroneously claims that

"numerous" witnesses recanted, claimed "pressure," or accepted

"deals." (Def. br., 30) In any event, a freestanding claim of

innocence contemplates that the newly discovered evidence "is

not also being used to supplement the assertion of another

22

constitutional violation with respect to the trial." Collier,

387 Ill.App.3d at 637, 900 N.E.2d at 404. Defendant complains

about defense counsel's failure to obtain "available" evidence

about deals and pressure. (Def. br., 39)

Defendant claims that Roberts, Tanasz, Wright, and Scheel

recanted. (Def. br., 35) Scheel's purported recantation is

worthless hearsay without an affidavit from him and an

indication that he will testify. See Morales, 339 Ill.App.3d

at 565, 791 N.E.2d at 1132. Scheel did not "affirmatively

aver" that he would have testified differently, so his alleged

evidence remains unavailable. See People v. Brown, 371

Ill. App . 3d 972 , 982 , 864 N. E . 2d 767, 776 (1s t Dis t . 2007 )

(requiring an affidavit to identify the availability of

alleged evidence) .

Roberts' recantation of the toasting incident, even if

believed, would not affect any significant aspect of the

prosecution's case. (R. Vol. XI, C2774) In contrast, Robert's

continuing admission to taking down composites to help

defendant is inconsistent with his theory of innocence. (R.

Vol. XI, C2776)

Tanasz's recantation of defendant's admission of

involvement in a robbery did not explain why he testified

differently at trial. (R. Vol. XI, C2803-C2807) Tanasz's

affidavit was only cumulative because the trial already

23

contained defendant's testimony that he told Tanasz only that

he was a suspect in a shooting. (R. Vol. XXIX, 105) In any

event, Tanasz did not recant defendant's admission that he had

"shot somebody." (R. Vol. XXIV, 86)

Wright's recantation was grounded in the notion that

defendant had "confided" in him "all" of the discovery, which

Wright read and used to lie. (R. Vol. XIII, C330S) That

recantation is directly rebutted by defendant's own testimony.

When asked if defendant showed "any" discovery to Wright,

defendant replied, "Absolutely not. I have showed him

nothing." (R. Vol. XXIX, 120-121) In addition, Wright points

out that police and prosecutors never threatened him, offered

any deal, or told him what to say. (R. Vol. XIII, C3307-C3308)

Without any conclusive recantations, defendant cites

purported evidence of consideration for cooperation.

Palumbo's affidavit showed that he sought a benefit for his

information. (R. Vol. X, C27S7) However, Palumbo's trial

testimony disclosed that he hoped for leniency when he spoke

with police. (R. Vol. XXIII, 139-140) He received no

promises. (R. Vol. XXIII, 147-148)

Similarly, nothing new affects Winkler's trial testimony,

which disclosed an unsuccessful attempt to seek a benefit. (R.

Vol. XXV, 119, 127, 130) Evidence of Winkler'S plea agreement

24

contained no link to this case, so Winkler never obtained

anything for his cooperation. (R. Vol. XI, C28l4-C2824)

Nothing rebuts Roland's lack of any promises for

information following his DUI arrest. (R. Vol. XXVI, 89-90)

Instead, prosecutors said only that they had a "history" of

taking truthful cooperation into consideration at sentencing.

(R. Vol. XI, C2837)

Defendant cites only a vague rumor that Strong might have

being "working off" an arrest. (R. Vol. XI, C2826) Moreover,

defendant relies on only hearsay to claim that Moffitt

received a "time cut." (R. Vol. X, C2685) At trial, Schaal

admitted that when he cooperated, he lacked promised benefits

but he knew that federal authorities might help him with his

pending sentencing in federal court. (R. Vol. XXVI, 54-56, 62)

By the time he testified, he did benefit from a downward

departure that resulted primarily from his cooperation with

other cases but still received a llO-month for possessing a

firearm as a felon. (R. Vol. XII, C3034-C3035, C3039)

Therefore, defendant still has nothing to substantiate his

claim that police or prosecutors had promised any deal for

information from even one witness who testified.

Further, no trial witness signed an affidavit that cited

undue pressure. Howard claimed only persistent questioning

but asserted that he told the police the truth. (R. Vol. XI,

25

C2782) Defendant's petition fails to challenge Powell,

Gaddis, Hammond, Parker, Crowe, and Ondecker. Their testimony

included three important admissions, two incidents of flight

from authorities, and defendant's desperation to avoid being

in the Clark shooting lineup. (R. Vol. Vol. XXIV, 20-21, 57­

60, 136; Vol. XXV, 198-202; Vol. XXVII, 68; Vol. XXX, 18-21)

Defendant produces only one inmate affidavit to rebut

Burns. (R. Vol. XII, C3235) However, defendant claimed at

trial that Burns misunderstood what he said. (R. Vol. XXIX,

127) Defendant tries to challenge Thomas and Bernardini by

citing grand jury testimony about defendant seeking assurances

before discussing his involvement in the Freedom Oil robbery.

(R. Vol. XII, C3068) However, defendant still implied his

involvement in the Clark shooting. (R. Vol. XXVI, 121, 128­

130, 153; Vol. XXVII, 37-47) No contradiction necessarily

occurred regarding the crimes being discussed. (Def. br., 22)

To recap, the vast majority of the prosecution's case

remains unscathed by defendant's post-conviction attempts to

whittle it down. Nothing new significantly impacted the

incrimination arising from Powell, Luna, Gaddis, Howard,

Palumbo, Parker, Thomas, Bernardini, Crowe, Moffitt, Roland,

Hammond, Schaal, Winkler, and Ondecker. Defendant has tried

to (1) present rebuttal or impeachment material against

Martinez, Strong, and Burns; (2) offer partial recantations

26

from Roberts and Tanasz, (3) provide a dubious recantation

from Wright, and (40 suggest a recantation from Scheel.

In light of the survival of the prosecution's strong case

against defendant, this court should conclude de novo that

defendant fails to meet the standard for obtaining a new

trial. Nothing new presented was so conclusive that the

result likely would change on retrial. Because this court

reviews the judgment, the contents of the trial court's

reasoning does not provide an independent ground for

reversing. (Def. br., 31) See People v. Cleveland, 342

III.App.3d 912, 915, 796 N.E.2d 201, 204 (2d Dist. 2003).

Defendant fails to show any relevance to actual innocence

of two reversed McLean County convictions. (Def. br., 36)

Defendant fails to connect this case with situations in which

"other acts" of police misconduct have been admitted. See

People v. Reyes, 369 III.App.3d 1, 18-19, 860 N.E.2d 488, 505

(1st Dist. 2006) (where the same officer was accused of using

similar methods of brutality as part of a pattern of coercing

false statements from suspects). Defendant fails to cite any

case in which "other acts" of prosecutorial misconduct have

been deemed relevant to actual innocence. Defendant has not

shown that the prosecutor in this case had been responsible

for the cited reversals. Regardless, defendant still lacks

any new, conclusive evidence likely to succeed on any retrial.

27

ARGUMENT

II

THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS TO

SHOW THAT HE RECEIVED INEFFECTIVE ASSISTANCE.

Defendant argues that Unumerous trial errors" umade a

difference." (Def. br., 38) Defendant asserts that this issue

should not be barred by res judicata despite its rejection on

direct appeal. (Def. br., 41) Defendant notes that his

petition raised new issues. (Def. br., 41) However, res

judicata bars the relitigation of counsel's effectiveness even

if different allegations of incompetence are added. See

People v. Albanese, 125 Ill.2d 100, 105, 531 N.E.2d 17, 19

(1988). On the merits, defendant has the burden of showing

deficient performance that prejudiced the defense. See

Strickland v. Washington, 466 U.S. 668, 687 (1984).

Defendant did receive a post-trial hearing. (Def. br.,

41) (R. Vol. XXXII, 41-141) The trial court then held that

defendant's trial lawyers were prepared and not impaired and

that their performance was uexcellent." (R. Vol. IV, C762,

C767-C768) As explained below, defendant offers no new

compelling complaints to rebut those findings.

With respect to impeaching Martinez, defense counsel

already noted that Martinez was Uvery badly damaged" and that

28

Hendricks would not have "done much" for the defense. (R. Vol.

XXXII, 54) Defense counsel's tactics included refraining from

"pounding away" at a damaged witness. (R. Vol. XXXII, 54)

Cumulative impeachment would be counterproductive. (R. Vol.

XXXII, 53) Moreover, it would have been pointless to hinge

the defense on Pelo's failure to see anyone leave the Clark

station door once he arrived on the scene.

With respect to Luna, defense counsel made an extensive

cross-examination. (R. Vol. XXIII, 90-110) Defendant was not

prejudiced by the failure to elicit Luna's inability to create

an "effective" composite. (R. Vol. X, C2750) Moreover, trying

to damage Luna in that way only would have emphasized the

corroboration arising from Luna's belief in the resemblance of

defendant's face shape and hair. (R. Vol. X, C2736)

with respect to the claim of not interviewing Scheel,

defendant has provided only an insufficient hearsay affidavit.

(R. Vol. XI, C2791-C2797) See People v. Morales, 339

Ill.App.3d 554, 565, 791 N.E.2d 1122, 1132 (1st Dist. 2003).

Defendant has not shown that prevailing professional norms

required interviewing every prosecution witness before trial.

Even if Scheel were not any witness to an admission from

defendant, the prosecution's case would have remained very

strong without him, as discussed above. Defendant cannot show

any prej udice from speculation that Scheel might not have

29

incriminated defendant at trial if the defense had contacted

him beforehand. (R. Vol. XI, C2795)

With respect to Martinez's identification testimony,

defendant's brief fails to provide any analysis or citation to

authority regarding the merits of a suppression motion. (Def.

br., 39) Defendant forfeits this issue by failing to comply

with the briefing requirements of Supreme Court Rule

341(h) (7). See People v. Thomas, 2011 IL App (4th) 100666, "

36, 38 (noting that defendant "must make his argument and

support it with authority"). Defendant "bears the burden of

showing that the motion would have been granted and that the

trial outcome would have been different if the evidence had

been suppressed." People v. Gabriel, 398 Ill.App.3d 332, 348,

924 N.E.2d 1133, 1148 (1st Dist. 2010).

That burden includes proof that "a pretrial

identification was impermissibly suggestive." People v. Love,

377 Ill.App.3d 306, 311, 878 N.E.2d 789, 794 (1st Dist. 2007).

Even then, an identification remains admissible if "the

witness is identifying the defendant based on his independent

recollection of the incident." People v. Enis, 163 Ill.2d

367, 398, 645 N.E.2d 856, 870 (1994).

With respect to Howard's tip about hearing a bailiff's

remark, defendant's petition presented no proof that any juror

had been biased. Defendant has failed to show any prejudice

30

because he has not demonstrated that had counsel investigated,

any reversible error would have been uncovered. Speculation

is insufficient to meet defendant's burden. See People v.

Smith, 195 III.2d 179, 203, 745 N.E.2d 1194, 1208 (2000).

For that same reason, defendant cannot show prejudice

from counsel's alleged failure to investigate rumors about

Strong "working off" an arrest. Defendant's petition presents

no proof that Strong received any consideration for her

information.

Defense counsel also was not ineffective because Roland

and Schaal were sufficiently impeached about their desires for

benefitting from their information. Trial evidence connected

Roland's decision to cooperate with his DUI arrest, and Roland

truthfully denied having had any guarantee of consideration.

(R. Vol. XXVI, 89-90) Trial evidence also connected Schaal's

cooperation with his pending federal case, and Schaal

truthfully denied having had any guarantee about benefits. (R.

Vol. XXVI, 55-56, 62)

with respect to the relatively unimportant toasting

incident, Roberts' recantation indicates that Roberts would

have told the defense that the "toast could have been for

Billy McWhorter." (R. Vol. XI, C2776) However, Roberts

testified at trial that she recalled defendant saying, "This

is to Billy Little." (R. Vol. XXVI, 36) Defendant could not

31

have been acquitted had defense counsel suggested that

McWhorter could have been the subject of a toast.

Wi th respect to impeaching Martinez, defense counsel

elicited that Martinez failed to identify defendant, who had

been in the lineup. (R. Vol. XXII, 191) However, Martinez

disagreed with defense counsel's suggestion that Martinez

upicked out the wrong person altogether." (R. Vol. XXII, 191)

Martinez admitted that he could have said that Uit looks like"

number three or four ubut it wasn't them." (R. Vol. XXII, 192)

Martinez also acknowledged that he could have told police that

two mug shots uresembled" the suspect. (R. Vol. XXII, 207)

Defendant cannot show any prejudice because the record

fails to support his claim that uMartinez actually identified

other individuals as being the person he saw at the scene"

before he identif ied defendant. (Def. br., 33) Moreover,

defendant fails to explain what could have been gained by

exposing that the victim's mother had called Martinez, except

to speculate that police had been involved. (Def. br., 40)

Defendant also has shown no prejudice from defense

counsel's failure to attempt to impeach Thomas with his grand

jury testimony. The prosecutor asked Thomas, uwhat

information did [defendant] give you about . . . his

involvement in the Freedom Oil robbery?" (R. Vol. XII, C3068)

Thomas told the grand jury that defendant said that he did not

32

"actually do" that armed robbery but that he "would be able to

explain everything" if he had assurances. (R. Vol. XII, C3038)

Defendant fails to explain how that reply proves that Thomas

and Bernardini "falsely" indicated that defendant implicated

himself in the Clark shooting at some other point during the

same interrogation. (Def. br., 22-23, 40)

With respect to defense counsel's failure to rebut

correctional officer Burns with inmate Smart, defendant fails

to overcome the presumption of sound trial strategy. At

trial, defendant claimed that Burns misunderstood him. (R.

Vol. XXIX, 127) During the defense's case, no guarantee

existed that Smart's testimony would have supported that

position. Moreover, presenting Smart would have risked

highlighting the importance of defendant's admissions to

Burns. At the same time, the defense would have lost much

force in accusing the prosecution of relying on testimony from

inmates and convicts. (R. Vol. XXXI, 122-124) In any event,

no reasonable probability existed that Smart's testimony would

have acquitted defendant.

Finally, defendant fails to persuade that the defense had

been impaired by co-counsel Picl's alcoholism. (Def. br., 42)

Defendant does not really complain about picl' s performance in

court. (R. Vol. XIII, C3299) At the same time, defendant

33

fails to acknowledge that his primary attorney, Riley, and the

retained investigators also prepared the defense for trial.

The trial court cited its observations of "excellent"

performance and the record of paYment of fees to Riley as

demonstrating "without any question" that the defense had been

prepared. (R. Vol. IV, C762, C773) The trial court also

noticed "no impairment of Mr. Picl" during the course of the

trial. (R. Vol. IV, C767) Riley never saw Picl consume

alcohol during trial. (R. Vol. XXXII, 91) Picl admitted

drinking one time when the trial was essentially over. (R.

Vol. XXXII, 92-93)

Picl did not necessarily admit to drinking four to ten

hours on non-court days during the pendency of defendant's

murder prosecution. (R. Vol. XIV, C3709-C3710) The only new

item in Kevin's affidavit is Picl having two to three

alcoholic drinks during lunches "before the trial." (R. Vol.

XIV, C3821-C3822) Therefore, defendant fails to persuade that

Picl's alcohol consumption warrants any presumption of

prejudice. (Def. br., 42) This court should adhere to its

prior ruling rejecting defendant's meritless allegations of

impairment and unpreparedness. See People v. Snow, No. 4-01­

0435, slip order at 10 (August 20, 2004) (unpublished order

pursuant to Supreme Court Rule 23). (R. Vol. V, Cl137)

34

ARGUMENT

III

THE TRIAL COURT PROPERLY DISMISSED DEFENDANT'S ATTEMPTS TO

SHOW THAT HIS DUE PROCESS RIGHTS WERE VIOLATED.

Defendant asserts that material exculpatory information

had been withheld from him. (Def. br., 43) Withheld evidence

is deemed Umaterial" only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different. United

States v. Bagley, 473 U.S. 667, 682 (1985). The Constitution

does not require disclosure until the collective effect of

suppressed helpful evidence becomes such that it puts the

whole case in such a different light as to undermine

confidence in the verdict. See Kyles v. Whitley, 514 U.S.

419, 435-437 (1995).

Defendant relies on Pelo's belief that no one could have

left the Clark station while he was on the scene. (Def. br.,

44) Pelo's affidavit refers to what he told Barkes. (R. Vol.

X, C2676) Barkes taped his March 1999 interview with Pelo in

which Pelo denied having seen anyone leave the Clark station

from the time that he first observed it. (R. Vol. X, C2701)

Defendant implies that this information had been disclosed in

35

discovery because defendant complains about defense counsel's

purported failure to capitalize on it. (R. Vol. X, C2659)

At trial, Scheel described his observations of

defendant's appearance and clothing at a party in the weeks

after the shooting. (R. Vol. XXV, 134-135) Defendant alleges

that Scheel was coached with those details, but defendant

failed to provide any affidavit signed by Scheel. (R. Vol. XI,

C2795) The hearsay affidavit is insufficient to support the

claim. See People v. Morales, 339 IIl.App.3d 554, 565, 791

N.E.2d 1122, 1132 (1st Dist. 2003).

Defendant argues that the prosecution failed to disclose

Udeals" purportedly given to witnesses. (Def. br., 44)

Defendant erroneously alleges that the prosecution had a modus

operandi of uvisiting witnesses and offering deals." (Def.

br., 44) Winkler, Schaal, and Roland all came forward hoping

to benefit, but none of them received any promise of

consideration for their information. (R. Vol. XXV, 119, 127,

130; Vol. XXVI, 55-56, 62, 89-90)

At trial, Winkler insisted that he was unsuccessful

getting anything for his information. (R. Vol. XXV, 119, 127,

130) In January 2000, Winkler had obtained an agreement to

serve a four-year prison sentence for forgery. (R. Vol. XI,

C2814-C2824) Winkler acknowledged that conviction in his

trial testimony. (R. Vol. XXV, 111)

36

Defendant has nothing that would reveal any perjury by

Winkler by connecting the plea agreement with his decision to

cooperate against defendant. See Akrawi v. Booker, 572 F.3d

252, 263 (6th Cir. 2009) ("the mere fact of favorable

treatment received by a witness following cooperation is also

insufficient to substantiate the existence of an agreement") .

Moreover, Winkler's plea agreement was public information. (R.

Vol. XI, C2814) See Matthews v. Ishee, 486 F.3d 883, 890-891

(6th Cir. 2007) (noting that "there simply is nothing for the

government to 'disclose' where a jailhouse informant's plea

was public information available to the defense) .

Similarly, the United States' July 2000 motion for a

downward departure in Schaal's federal prosecution had been

public information. (R. Vol. XII, C3034) At trial, Schaal

acknowledged the federal conviction. (R. Vol. XXV, 155)

Schaal also admitted having known that it would serve him to

cooperate. (R. Vol. XXVI, 55-56) However, nothing reveals any

perjury in Schaal's denial of having been promised any benefit

for providing information. (R. Vol. XXVI, 62)

Defendant's petition fails to allege that a specific

police report about Roland's cooperation had not been tendered

in discovery. (R. Vol. X, C2663j Vol. XI, C2837-C2838)

Defendant does not explain where he obtained a copy of that

report, if not from pretrial discovery. The prosecution

37

certified the completeness of discovery relating to Roland.

(R. Vol. I, C70) In any event, the information about the

prosecution's history of taking cooperation into account at

sentencing does not mean that Roland testified falsely when he

denied any "promises or guarantees" for his statement. (R.

Vol. XI, C2837; Vol. XXVI, 90)

Defendant cites an admittedly "speculative" rumor that

defendant had robbed jurors' homes. (Def. br., 45 ) Defendant

believes that an evidentiary hearing will enable him to

discover and prove his claim. (Def. br., 4S) However,

defendant cites no authority that making any showing "as best

as he can" automatically entitles him to discovery and an

evidentiary hearing. (Def. br., 4S)

Defendant sought to identify jurors and subpoena

"Bloomington Police" to determine if any jurors "reported

crimes." (R. Vol. X, C260S) Defendant assumes that "two" of

the McLean County "jurors' homes" that he may have "robbed"

would have been in Bloomington. (R. Vol. X, C260S; Vol. XI,

C2784) However, the defense never asked first to identify the

"tall bailiff" whom Howard allegedly overheard so that a

discovery deposition could be requested. (R. Vol. XI, C2784)

The trial court would have had discretion to deny defendant's

discovery motion, even if the defense had brought it to a

hearing. (R. Vol. XXXV, 36) See People ex reI. Daley v.

38

Fitzgerald, 123 Ill.2d 175, 183-184, 526 N.E.2d 131, 135

(1988) (noting that post-conviction proceedings "afford only

limited review" and a "potential for abuse of the discovery

process" exists).

As argued above, defendant incorrectly believes that

Martinez's identification was "the most critical part of his

conviction." (Def. br., 46) In any event, defendant fails to

adequately brief his conclusive claim that Martinez's

identification was "inherently unreliable and suggestive."

(Def. br., 45-46) Defendant fails to cite the record or

provide any analysis to explain why the identification

"violated his right to due process." (Def. br., 46) Defendant

also cites only an inapposite opinion dealing with a "show­

up," when defendant had been included in a lineup in this

case. See People v. Rodriguez, 387 Ill.App.3d 812, 829-832,

901 N.E.2d 927, 943-946 (1st Dist. 2008).

Defendant's burden includes proving impermissible

suggestiveness that causes a "very substantial likelihood of

irreparable misidentification." People v. Love, 377

Ill.App . 3d 3 06 , 311 , 8 78 N. E . 2d 789, 794 (1s t Dis t . 2007).

Even then, an identification remains admissible if "the

witness is identifying the defendant based on his independent

recollection of the incident." People v. Enis, 163 Ill.2d

367, 398, 645 N.E.2d 856, 870 (1994).

39

Here, Martinez had sufficient opportunity to notice

defendant's eyes when they were face-to-face only three feet

apart. (R. Vol. XXII, 159-160) Martinez added, "I'll never

forget those eyes." (R. Vol. XXII, 160) Martinez admitted

that he saw defendant's photograph in the newspaper prior to

identifying him in the lineup photograph. (R. Vol. XXII, 173­

177) Defendant's eyes caught Martinez's attention when he

viewed the newspaper photograph. (R. Vol. XXII, 177)

In People v. Curtis, 113 Ill. 2d 136, 151, 497 N. E. 2d

1004, 1011 (1986), Harris's eyewitness identification "was

properly considered" even though Harris identified Curtis from

a lineup photograph several days after seeing a newspaper

story concerning the robbery that included Curtis's picture.

Therefore, Martinez's identification of defendant's eyes was

reliable enough to avoid a likelihood of misidentification

that would violate due process. See Neil v. Biggers, 409 U.S.

188, 198-200 (1972) (citing factors such as the witness's

opportunity to view during the crime, degree of attention,

accuracy of prior description, and level of certainty

demonstrated at the confrontation).

Defendant also cites his "cumulative error" claim, which

referred to "all of the matters alleged in this petition." (R.

Vol. x, C2666) Defendant's brief then complains that his

shackling during trial violated due process. (Def. br., 46)

40

However, the defense did not retain the shackling issue when

it amended defendant's pro se petition. (R. Vol. X, C2610­

C2668) By its own terms, defendant's cumulative error claim

did not encompass the issue of shackling during trial. (R.

Vol. X, C2666) See People v. Jones, 211 Ill.2d 140, 148, 809

N.E.2d 1233, 1239 (2004) (new issues may not be raised on

review) .

Considered independently, the shackling issue is

forfeited because it could have been raised on direct appeal.

(R. Vol. V, C1214) See People v. Newman, 365 Ill.App.3d 285,

848 N.E.2d 262 (4th Dist. 2006) ("issues are not amenable to

postconviction review when they could have been raised on

direct appeal but were not"). Defendant's brief forfeits

ineffective assistance of trial counsel and appellate counsel

related to shackling by failing to argue those issues in this

appeal. See People v. Borello, 389 Ill.App.3d 985, 998, 906

N. E . 2d 1250, 1261 (4th Dis t . 2 009) i 210 Ill. 2dR. 341 (h) (7)

(points not argued are waived and shall not be raised in the

reply brief) .

In any event, the record rebuts defendant's allegation

that the jury saw his stun belt and shackles. (Def. br., 29)

Defendant alleged that the stun belt was removed in favor of

leg shackles on the second day of jury selection and that the

shackles could have been viewed if any "potential jury member"

41

had entered the courtroom "from behind" him. (R. Vol. V,

C1214) Defendant initially agreed to wear the stun belt to

ensure that potential jurors would not see any restraints if

they were behind him. (R. Vol. XXI, 30-33) When courtrooms

were being changed prior to closing arguments, defense counsel

agreed that the leg shackling "problem" would be "fine" once

the tables in the new courtroom would be switched out for ones

with skirts on them. (R. Vol. XXX, 118-119) Defendant cannot

show the required prejudice because steps were taken to ensure

that jurors did not see restraints and it is questionable

whether any jurors actually saw them. See People v. Robinson,

375 Ill. App . 3d 32 0 , 333 , 872 N. E . 2d 1061 , 1073 (2d Dist .

2007) .

42

ARGUMENT

IV

THE TRIAL COURT PROPERLY DENIED DEFENDANT'S REQUEST FOR

BALLISTICS DATABASE TESTING OF THE BULLETS THAT HAD BEEN

RECOVERED FROM THE VICTIM'S BODY.

Defendant contends that IBIS database testing of the

"bullets used to kill the victim" met the requirement of

having scientific potential to produce new, noncumulative

evidence materially relevant to actual innocence. (Def. br.,

46-49) See 725 ILCS 5/116-3 (c) (I) (West 2010). However,

defendant never set any hearing on his motion for ballistics

testing in the two months before it was denied. (R. Vol. XIV,

C3755-C3805, C3889)

Therefore, defendant never presented any expert testimony

concerning the suitability of the recovered bullets for IBIS

database testing. See People v. Slover, 2011 IL App (4th)

100276 ~ 22 (noting that if the fingerprint was of

insufficient quality for adequately controlled AFIS search,

the testing would be a "shot in the dark" lacking potential to

produce relevant evidence attributable to its "scientific

rigors") . Defendant's pleadings fail to substantiate his

ability to make such a showing. (R. Vol. XIV, C3755-C380S)

43

In any event, defendant cannot demonstrate that IBIS

testing would "significantly advance" his claim of actual

innocence. See People v. Savory, 197 III.2d 203, 213-216, 756

N. E. 2d 804, 811-812 (2001) (where the defendant had made

"inculpatory comments" to several friends and where the blood

evidence sought to be tested constituted only a "minor part"

of the case against him). Distinguishable is People v.

Pursley, 407 III.App.3d 526, 529-535, 943 N.E.2d 98, 102-106

(2d Dist. 2011), where the prosecution had "heavily relied" on

ballistics evidence at trial and where IBIS testing could

implicate "another possible weapon" in the crime besides the

defendant's gun.

Here, defendant's theory is that IBIS testing had

potential to exonerate him if the bullets that killed Little

could be connected to a firearm that also was used in other

identifiable crimes. (R. Vol. XIV, C3763) However, the

possibility of matching the bullets from this case to other

bullets matching any recovered firearm is highly speculative.

In any event, defendant fails to persuade that connecting his

firearm with another crime would be materially relevant to

proving who shot Little. Defendant's motion does not document

that Bloomington actually had "other strings of gas station

robberies" in which defendant had not been involved. (Def.

br., 48-49)

44

ARGUMENT

V

DEFENDANT HAS FAILED TO PERSUADE THAT HE IS ENTITLED TO POST­

CONVICTION DISCOVERY AND/OR REMAND FOR FURTHER PROCEEDINGS

BEFORE A DIFFERENT JUDGE.

Defendant asks this court to remand for an evidentiary

hearing before a different judge, with the benefit of

discovery that he requested. (Def. br., 31, 49) The trial

court has discretion regarding the subject of post-conviction

discovery. See People ex reI. Daley v. Fitzgerald, 123 IIl.2d

175, 183-184, 526 N.E.2d 131, 135 (1988) (requiring "a

hearing, on motion of a party, for good cause shown").

The relevant factors include such matters as the issues

presented in the post-conviction petition, the scope of the

discovery sought, the length of time between the conviction

and the post-conviction proceeding, the burden that the

discovery would impose on the opposing party and on witnesses,

and the availability of the desired evidence through other

sources. Fitzgerald, 123 IIl.2d at 183-184, 526 N.E.2d at

135. Defendant's brief contains no analysis of these factors

but apparently treats discovery like it is a right of every

post-conviction petitioner who lacks evidentiary support for

45

his allegations. Defendant forfeits his claim by failing to

adequately brief it. See 210 III.2d R.341(h) (7).

In any event, the trial court did not abuse its

discretion. Defendant failed to request discovery following

his 2001 conviction until 2010. (R. Vol. X, C2598-C2607) The

defense then failed to obtain any hearing on its motion in the

10 months preceding the hearing on the prosecution's motion to

dismiss defendant's post-conviction petition. (R. Vol. X,

C2596, Vol. XXXV, 3, Vol. XIV, C3735) At that hearing, the

defense incorrectly claimed that its discovery motion was

"before" the court. (R. Vol. XXXV, 32) The prosecutor aptly

observed that the defense's motion for discovery "was not set

at this point." (R. Vol. XXXV, 36) The trial court remarked,

"Well, I believe the Motion for Supplemental Discovery

wouldn't be timely today anyway." (R. Vol. XXXV, 36)

The defense also failed to set any hearing on its motion

to further supplement the petition with affidavits from

Maureen Kevin and Leigh Dennison, as well as information about

Schaal's federal case. (R. Vol. XIV, C3806-C3874) The trial

court denied this motion to further supplement the petition.

(R. Vol. XIV, C3889) Defendant has not shown that this ruling

mattered to the ultimate disposition of his petition.

Defendant also fails to support his appellate request for

substituting out Judge Alesia A. McMillen in the event of a

46

remand. Defendant's only apparent basis is his assertion that

Judge McMillen's four-page written ruling "completely misses

the mark." (Def. br., 30) Defendant alleges that the ruling

lacks "significant analysis" and that it resulted because

Judge McMillen purportedly "did not fully understand" his

petition. (Def. br., 49)

However, defendant cites no recognized legal basis for

removing Judge McMillen from the case. Disqualifying a jUdge

over the presumption of impartiality is not a judgment to be

lightly made. Eychaner v. Gross, 202 Ill.2d 228, 280, 779

N. E. 2d 1115, 1146 (2002) (refusing a party's request to

reassign the case to a new judge on remand). "A judge's

rulings alone almost never constitute a valid basis for a

claim of judicial bias or partiality." 202 Ill.2d at 280, 779

N.E.2d at 1146. "Allegedly erroneous findings and rulings by

the trial court are insufficient reasons to believe that the

court has a personal bias for or against a litigant." 202

Ill.2d at 280, 779 N.E.2d at 1146.

47

CONCLUSION

WHEREFORE, the PEOPLE OF THE STATE OF ILLINOIS

respectfully request that the judgment of the circuit court be

affirmed, and that costs be assessed pursuant to 55 ILCS 5/4-

2002.

Respectfully Submitted,

THE PEOPLE OF THE STATE OF ILLINOIS

William A. YoderState's AttorneyMcLean County Law & Justice CenterBloomington, Illinois 61701

Patrick DelfinoDirectorRobert J. BidermanDeputy DirectorAnastacia R. BrooksStaff AttorneyState's Attorneys Appellate

Prosecutor725 South Second StreetSpringfield, Illinois 62704(217) 782 - 8076

COUNSEL FOR PLAINTIFF-APPELLEE

48

NO. 4-11-0415

IN THE

APPELLATE COURT OF ILLINOIS

FOURTH JUDICIAL DISTRICT

PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

vs.

JAMES SNOW,

Defendant-Appellant.

) Appeal from the Circuit Court of) the Eleventh Judicial Circuit) McLean County, Illinois)) No. 99-CF-1016)) Honorable) Alesia McMillen) Judge Presiding.

CERTIFICATE OF COMPLIANCE

I certify that this brief conforms to the requirements of

Rules 341 (a) and (b). The length of this brief, excluding the

pages containing the Rule 341{d) cover, the Rule 341{h) (1)

statement of points and authorities, the ·Rule 341{c)

certificate of compliance, the certificate of service, and

those matters to be appended to the brief under Rule 342{a),

is 48 pages.

hnastQ.u:q 1<... B~r:ai.AoL:()=--_

Anastacia R. Brooks, Staff AttorneyState's Attorneys Appellate

Prosecutor725 South Second StreetSpringfield, Illinois 62704(217) 782-8076

COUNSEL FOR PLAINTIFF-APPELLEE

•