People v. Martinez

2020 IL App (1st) 182323-U

Opinion

2020 IL App (1st) 182323-U

FIFTH DIVISION Order filed: November 13, 2020

No. 1-18-2323

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. 96 CR 28407 03 ) LUIS MARTINEZ, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Delort and Justice Rochford concurred in the judgment.

ORDER

¶1 Held: The judgment of the circuit court is reversed because it improperly denied the defendant’s motion for leave to file a successive postconviction petition where he satisfied the cause and prejudice test.

¶2 The defendant, Luis Martinez, appeals from the denial of his pro se motion for leave to file

his second successive petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f)

(West 2016)). The defendant argues that the circuit court erred in denying him leave to file his

petition where he satisfied the cause and prejudice test. He also argues that the circuit court erred No. 1-18-2323

in sentencing him to 50 years’ imprisonment without first considering his capacity for

rehabilitation as well as his youth and its attendant circumstance because he was 17 years old at

the time that he committed the crime. For the reasons that follow, we reverse.

¶3 Following a jury trial, the defendant was convicted of first-degree murder stemming from

the September 7, 1996 gang-related shooting that caused the death of Juan Guajardo. The evidence

at trial was detailed in our prior Rule 23 Order (People v. Martinez, No. 1-98-0366 (1999)), but

we briefly summarize relevant facts and procedural history to assist in the resolution of this appeal.

¶4 Prior to trial, the defendant filed a motion to suppress his statement to the police, alleging

that he was physically and psychologically coerced into making that statement by law

enforcement. He specifically alleged that members of the Chicago Police Department threatened

him, swore at him, verbally abused him, struck him, and kicked him, thereby coercing him to admit

his involvement in the shooting.

¶5 At the hearing on the motion to suppress, the defendant did not testify, and the State called

two witnesses: Detective James O’Brien (one of the officers involved in the defendant’s

interrogation) and Assistant State’s Attorney Joe Cataldo. Detective O’Brien denied swearing,

verbally abusing, or engaging in any type of psychological coercion to obtain a confession from

the defendant. He also denied that he or anyone in his presence struck or kicked the defendant.

ASA Cataldo testified that he took a statement from the defendant on October 2, 1996, and that

the defendant stated he had been treated fine. The defendant’s signed statement stated the

following: “Luis Martinez states that he is giving this statement freely and voluntarily, that no

threats or promises have been made to him in exchange for this statement. Luis Martinez states

he’s been treated good by the police and the assistant state’s attorney, Joe Cataldo.” At the

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conclusion of the hearing, the circuit court denied the motion, finding that there was no basis to

suppress the statement and that it was given “freely and voluntarily without threat or compulsion.”

¶6 During trial, the defendant’s statement was published to the jury. In his statement, the

defendant explained that on September 7, 1996, he and codefendants Angel Ramos, Danny Martin,

and Israel Cobian were driving in Ramos’s red Chevette with black doors when they saw rival

gang members on a porch at 58th Street and California Avenue in Chicago. The defendant and

Cobian exchanged gang signs with the rival gang members and Cobian suggested getting a gun to

shoot them. The defendant protested and suggested beating them up instead, since they did not

have a gun. However, they all eventually agreed to the shooting. Ramos then drove to the hiding

place of the gun. Cobian retrieved the gun and Ramos drove back towards the porch where the

rival gang, the Latin Kings, was located. Ramos turned off his lights and stopped in a nearby alley.

Cobian exited the vehicle and approached the gangway with the gun, while the defendant stood

watch for any approaching police officers. The defendant heard seven shots, after which he saw

Cobian running back towards the vehicle claiming to have shot a man as well as a Chevrolet Blazer,

thinking the rest of the Latin Kings were inside. Ramos then drove back to the gun’s original hiding

place, and Cobian exited the vehicle to return the gun.

¶7 Eyewitnesses, Gil and Cesar Guajardo, testified that at the time of the shooting, they were

“partying” on Cesar’s porch, located at 5758 South California Avenue in Chicago, when around

2:00 a.m., they noticed a red Chevette with a black door slowly drive past. The four occupants

flashed anti-Latin King gang signs and yelled anti-Latin King slogans, which were returned by

someone on the porch giving them the finger. The vehicle drove away, but then soon returned with

its lights off in a nearby alley. Cesar went inside the house while the decedent left the porch and

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began walking north. Cesar heard gunshots from inside the house and ran outside to see the

decedent on the ground bleeding, but he did not see the shooter. According to Gil, he saw the

defendant shoot the decedent but could not identify the other individual nearby. He chased both

men through the gangway where they jumped a fence and drove away in the red vehicle. Gil

identified the defendant in a lineup as the shooter and identified the defendant in court.

¶8 Officer Jeff Zlotkowski testified that Gil told him that he saw one person running through

a gangway to a car containing three passengers. However, a stipulated police report reflected that

Gil stated he could not see the shooter’s face. Gil denied ever making this statement.

¶9 The defendant was arrested on October 2, 1996, and testified that he was interrogated by

Detectives O’Brien and Joe Fine. After denying his involvement in the shooting, Detective Fine

exited the room, leaving the defendant alone with Detective O’Brien for about 25-30 minutes while

he was handcuffed to a wall. Detective O’Brien accused him of lying, and began slapping him in

the mouth, hitting him the face, kicking him in the ribs, and punching him in the stomach. The

beating ceased and his handcuffs were removed only when he agreed to confess to the story

Detective O’Brien told him to tell. Detective O’Brien removed the handcuffs before Detective Fine

returned to the room. The defendant testified that he gave the statement to ASA Cataldo because

Detective O’Brien threatened him with worse treatment if he failed to confess. According to the

defendant, Detective O’Brien left a red mark on his face after hitting him; however, photographs

taken around the time the defendant gave his statement reveal no marks on his face. On cross-

examination, the defendant admitted that he was given a medical examination when he arrived at

the Cook County Jail on October 4, 1996, and that no marks were found on his face or body. He

also admitted that he did not report that he had been beaten.

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¶ 10 Detective O’Brien testified that he, along with Detective Fine, administered Miranda

warnings and interrogated the defendant on October 2, 1996. According to Detective O’Brien, the

defendant denied any involvement in the shooting, but later admitted his involvement once

Detective O’Brien presented him with incriminating witness statements. Detectives Fine and

O’Brien both denied handcuffing, mistreating, or telling the defendant what to say. ASA Cataldo

testified that the defendant never complained to him about the officers’ behavior and that the

defendant stated that he was “treated good by the police.”

¶ 11 After hearing all of the evidence, the jury found the defendant guilty of first degree murder.

The defendant filed a motion for a new trial, alleging, inter alia, that the circuit court erred in

failing to grant his motion to suppress his statement. The circuit court denied the motion and

sentenced the defendant to 50 years’ imprisonment.

¶ 12 The defendant filed a direct appeal, arguing that his sentence was excessive, and this court

affirmed. People v. Martinez, No. 1-98-0366 (1999).

¶ 13 In 2000, the defendant filed a pro se postconviction petition, alleging, inter alia, that his

counsel was ineffective for failing to attack the “inadmissible[,] involuntary[,] and coerced

statement.” In support of this argument, the defendant cited his trial testimony—that he was

handcuffed to a wall at police headquarters while he was interrogated and assaulted by police

officers. He specifically alleged that he was accused of lying, slapped in the face, punched, and

kicked until he confessed. The circuit court summarily dismissed the petition. The defendant

appealed and this court affirmed. People v. Martinez, No. 1-00-3052 (2002).

¶ 14 On January 23, 2006, the defendant filed his first successive pro se postconviction petition,

arguing that the 1992 Criminal Code was unconstitutional and that the charging instrument

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violated section 111-3 of the Code of Criminal Procedure (725 ILCS 5/111–5 (West 2004)). He

also alleged that the instructions given to the jury on how it should consider eyewitness testimony

were in error. The circuit court denied the defendant leave to file, reasoning that the petition was

meritless. The defendant appealed the denial and this court affirmed, finding that, with respect to

the jury instruction issue, the defendant failed the cause and prejudice test by neglecting to

challenge the jury instruction in his initial postconviction petition. People v. Martinez, No. 1-06-

1331 (2007).

¶ 15 In 2009, the defendant filed a section 2-1401 petition for relief from judgment

(735 ILCS 5/2–1401 (West 2008)), arguing that the jury was improperly instructed on two theories

of murder, thereby confusing the jury. He also argued that his conviction for two counts of first

degree murder for a single act violates the one-act-one-crime rule. The circuit court dismissed the

petition and the defendant appealed. On appeal, this court affirmed, but also corrected the mittimus

to reflect the conviction of one count of first degree murder. People v. Martinez, No. 1-09-3402

(2011).

¶ 16 On February 14, 2018, the defendant filed his second successive postconviction petition,

alleging that his statement was the result of coercion by Detective O’Brien. He attached six

complaints from the July 2006 Report of Special State’s Attorney Edward J. Egan (2006 Report),

which he maintains corroborates his claim that his confession was coerced and documents

Detective O’Brien’s pattern of misbehavior when interrogating suspects. He argued that the 2006

Report demonstrates a pattern of excessive force by officers under Commander Jon Burge,

including Detective O’Brien. He also argues that he filed a complaint with the Office of

Professional Standards (OPS) in 1997 and that the complaints attached to his petition from the

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2006 Report are similar to the complaint he filed. The circuit court denied the petition, and this

appeal followed.

¶ 17 On appeal, the defendant argues that the circuit court erred when it denied him leave to file

his second successive pro se postconviction petition, because his allegations of physical coercion

satisfied the cause and prejudice test. The Act allows a defendant to collaterally attack a prior

conviction and sentence where there was a substantial violation of his constitutional rights. People

v. Gosier, 205 Ill. 2d 198, 203 (2001). The Act contemplates the filing of only one postconviction

petition. People v. Evans, 186 Ill. 2d 83, 89 (1999); 725 ILCS 5/122-1(f) (West 2016). As a result,

all issues decided on direct appeal or in an original postconviction petition are barred by the

doctrine of res judicata and all issues that could have been raised on direct appeal or in an original

postconviction petition, but were not, are forfeited. People v. Blair, 215 Ill. 2d 427, 443 (2005).

¶ 18 Successive postconviction petitions are only permitted when fundamental fairness so

requires or when a defendant can establish cause and prejudice for his failure to raise the issue in

an earlier proceeding. People v. Lee, 207 Ill. 2d 1, 4-5 (2003). Under the cause and prejudice test,

the petitioner must show good cause for failing to raise the claimed errors in a prior proceeding

and actual prejudice resulting from the claimed errors. People v. Pitsonbarger, 205 Ill. 2d 444,

460, (2002); 725 ILCS 5/122–1(f) (West 2016). “Cause” is defined as “any objective factor,

external to the defense, which impeded the defendant’s ability to raise a specific claim at the initial

postconviction proceeding.” Pitsonbarger, 205 Ill. 2d at 462; 725 ILCS 5/122-1(f) (West 2016).

“Prejudice” is an error so infectious to the proceedings that the resulting conviction violates due

process. Pitsonbarger, 205 Ill. 2d at 464; 725 ILCS 5/122-1(f) (West 2016). A defendant must

establish cause and prejudice as to each individual claim asserted in a successive postconviction

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petition to escape dismissal under res judicata and forfeiture principles. Pitsonbarger, 205 Ill. 2d

at 463; 725 ILCS 5/122–1(f) (West 2016). We review the circuit court’s denial of a motion to file

a successive postconviction petition de novo. People v. LaPointe, 365 Ill. App. 3d 914, 923 (2006).

¶ 19 The defendant first contends that his allegation of physical coercion in his petition

establishes “cause” under the cause and prejudice test. The State asserts that the defendant cannot

establish “cause” for his failure to raise this argument sooner. We agree with the defendant.

¶ 20 In his February 14, 2018 petition, the defendant raised the argument that the 2006 Report

of the Special State’s Attorney significantly corroborates his physical coercion claims. Although

the defendant raised claims of coercion in his motion to suppress, at trial, and in his initial 2000

postconviction petition, it would have been impossible for him to have raised the 2006 Report in

his initial 2000 postconviction petition or in his successive petition in January 2006 because the

Special State’s Attorney did not release the Report until July 19, 2006. Therefore, we find that the

defendant has satisfied the “cause” prong of the cause and prejudice test by identifying an objective

factor that prevented him from raising the 2006 Report in an earlier postconviction proceeding—

the release date of the 2006 Report. See People v. Wrice, 406 Ill. App. 3d 43, 52 (2010) (where

“cause” was established when new documentation—Special State’s Attorney’s Report— became

available and supported a previous claim of coercion).

¶ 21 Next, the defendant maintains that he established the “prejudice” prong of the cause and

prejudice test. Again, “prejudice” is defined as an error so infectious to the proceedings that the

resulting conviction violates due process. Pitsonbarger, 205 Ill. 2d at 464. The use of a physically

coerced confession undermines truth seeking and renders a trial fundamentally unfair. People v.

Wrice, 2012 IL 111860, ¶ 70.

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¶ 22 Our supreme court has held that a defendant has presented sufficient evidence at the

pleading stage to entitle him to a postconviction, evidentiary hearing when: (1) he has consistently

claimed that he was tortured; (2) his claims are “strikingly similar” to other torture claims; (3) the

officers who were allegedly involved in his torture are identified in other torture allegations; and

(4) the defendant’s allegations are consistent with OPS findings of systemic and methodical torture

under Commander Jon Burge. See People v. Patterson, 192 Ill. 2d 93, 145 (2000).

¶ 23 In the present case: (1) the defendant consistently claimed, during his motion to suppress,

during trial, in his initial postconviction petition and now in his second successive postconviction

petition, that he was coerced into confessing; (2) the defendant’s claims of physical coercion are

strikingly similar to five of the six complaints he attached to his petition from the 2006 Report

with many alleging, inter alia, that they were threatened, slapped, punched, kicked, or some other

form of physical abuse; (3) the officer involved, Detective O’Brien, is identified in the other

allegations of physical coercion; and (4) the defendant’s allegations are consistent with OPS

findings of systemic and methodical torture/coercion under Commander Burge, as well as

consistent with allegations of torture/coercion by other prisoners in the 2006 Report, which found

that torture occurred under a standard of proof beyond a reasonable doubt. See also People v.

Nicholas, 2013 IL App (1st) 103202, ¶ 40 (where this court found “prejudice” under the cause and

prejudice test when the defendant consistently claimed he was tortured/coerced; the alleged

beating was strikingly similar to the physical abuse documented in the 2006 Report of the Special

State’s Attorney; and Detective O’Brien and three others were identified by the defendant and in

other allegations of torture in the 2006 Report, which found torture occurred under the standard of

proof beyond a reasonable doubt.)

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¶ 24 Accordingly, we find that the defendant established the “prejudice” prong of the cause and

prejudice test. Therefore, we reverse the denial of his motion for leave to file his second successive

postconviction petition, we remand the cause to the circuit court for second-stage proceedings, and

we direct the circuit court to appoint counsel.

¶ 25 Lastly, the defendant argues that his 50-year sentence is a de facto life sentence and the

circuit court erred by failing to first consider his rehabilitation potential and his youth and its

attendant circumstances prior to imposing sentence. The State argues that by failing to raise this

issue in his petition, it is forfeited. We agree with the State.

¶ 26 Generally, arguments not raised in a petition cannot be argued for the first time on appeal.

People v. Jones, 213 Ill. 2d 498, 505 (2004). The defendant relies, in part, on the ruling in Miller

v. Alabama, 567 U.S. 460 (2012), to support his claim that his 50-year sentence is a de facto life

sentence, is unconstitutional, and that there is “no procedural bar” to our review of this issue.

However, we addressed this very issue in People v. Merriweather, 2017 IL App (4th) 150407, ¶

18. In Merriweather, a defendant who was 17 years old at the time he committed the offense

raised, for the first time on appeal from a denial of a successive postconviction petition, that his

sentence was an unconstitutional de facto life sentence. This court held that the Merriweather

defendant’s challenge to his sentence did not fall under the exception to the forfeiture rule and

found that his challenge was forfeited because it is an as-applied constitutional challenge, which

is subject to forfeiture if raised for the first time on appeal. Id. ¶ 18. Therefore, following our

holding in Merriweather, we find that the defendant forfeited his challenge to his sentence by

raising it for the first time on appeal.

¶ 27 While we recognize that our supreme court has, in the exercise of its supervisory authority,

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the power to consider an issue raised for the first time on appeal, we cannot similarly act as we do

not share the supervisory powers enjoyed by the supreme court. See People v. Jones, 213 Ill. 2d

498, 507 (2004).

¶ 28 Reversed and remanded with instructions.

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