2024 IL App (1st) 211543 No. 1-21-1543 Opinion filed August 9, 2024 Sixth Division
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
) THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Circuit Court Plaintiff-Appellee, ) of Cook County. ) v. ) No. 04 CR 10345 ) ANGEL NAVARRO, ) The Honorable ) Stanley J. Sacks, Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Oden Johnson and Justice C.A. Walker concurred in the judgment and opinion. OPINION
¶1 Actual innocence claims are an indispensable mechanism against wrongful convictions,
one of the gravest injustices known in law. When faced with an actual innocence claim, courts
bear a solemn responsibility to ensure that justice emerges clad in the robes of rectitude.
¶2 Angel Navarro argues that his successive petition asserted newly discovered evidence that
bore on actual innocence. We agree. Navarro has raised the sliver of doubt necessary to establish
a “colorable claim” and advance to second-stage postconviction proceedings. His pleading
contains newly discovered evidence unavailable at the time of trial in the form of the investigating 1-21-1543
officer’s prior record of police misconduct, which is material to his guilt or innocence, is non-
cumulative in nature, and could potentially undermine the verdict.
¶3 Background
¶4 In April 2004, Josue Guerra was killed after being shot in the back. A short time later,
police arrested Navarro on a nearby parkway. Witnesses Artemio Magdaleno, Heber Garcia, and
Carlos Colon testified that Navarro shot at Guerra three times.
¶5 According to Magdaleno, that night, he, Guerra, and some friends were walking to a store
on Fullerton Avenue, when they encountered Navarro with a group of about five or six men.
Navarro asked them, “what [sic] you looking at?” According to Magdaleno, one of his friends
replied, “we ain’t [sic] looking at you.” After that, Magdaleno, Guerra, and the others continued
to the store. After they left, the group went through an alley to Leclaire Avenue and then proceeded
on Leclaire Avenue towards Montana Street. As they did, Magdaleno heard a gunshot and bent
down. Looking across Montana Street, Magdaleno saw Navarro’s face. Magdaleno ran home but
later returned as Guerra was placed into an ambulance.
¶6 On cross-examination, Magdaleno maintained that, although it was dark outside during the
shooting, he could see Navarro’s face lit from the gun firing. Magdaleno said some of his friends
stood between him and the shooter and ran towards him during the shooting but did not block his
view of Navarro.
¶7 Garcia and Colon were at home when they heard gunshots.
¶8 Garcia was unloading bicycles from his truck parked along Leclaire Avenue. He heard a
gunshot coming from around the intersection of Leclaire Avenue and Montana Street. He turned
and saw Navarro, standing alone on Leclaire Avenue, pointing a gun. Garcia and wife dashed
inside their apartment building. Garcia heard two more gunshots and saw Navarro walking along
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the opposite side of Leclaire Avenue. He could “completely” see Navarro’s face. Navarro had on
a white or light-colored short-sleeved shirt and white pants. Garcia saw Navarro put a gun
“somewhere in [his] clothes.” Police officers arrived and yelled to Navarro, who ran with the
officers in pursuit.
¶9 On cross-examination, Garcia conceded that he saw the shooter fire only the first shot and
could not see the shooter for about 10 seconds, during which he and his wife went inside. Garcia
estimated Navarro was about 30 feet away.
¶ 10 Colon was on the second floor of his apartment building, about 35 feet from Navarro. Just
before the shooting, Colon was looking through his window to check on his car parked on the
street. Colon heard a gunshot and saw the side and front of the face of someone holding a gun,
whom he later identified as Navarro. He had an unobstructed view of the shooter; at least two
streetlights lit the area. The shooter wore a white or light-colored shirt and cream-colored
sweatpants. Colon saw the shooter put the gun in his waist after the shooting. Police officers soon
arrived, and the shooter ran into an alley, at which point Colon lost sight of him. On cross-
examination, Colon testified that it was dark outside.
¶ 11 Chicago police officer John Meer testified that he and his partner, Kevin Murphy, had been
on routine patrol in a marked police squad car in the area of the shooting. Around 8:00 p.m., Meer
heard gunshots, and they responded. On reaching Leclaire Avenue, Meer saw Navarro running
north, away from Montana Street. During the State’s questioning, defense counsel stipulated that
Meer saw Navarro.
¶ 12 Meer stated that Navarro had on a white short-sleeved shirt and white or beige sweatpants.
Meer made eye contact with Navarro, who stopped. But when Meer gestured to Navarro to come
to the police car, Navarro ran through an alley. Meer went after him on foot. Meer estimated that
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he was 15-20 feet behind Navarro. Meer saw Navarro pull a handgun from the waistband of his
pants and hold it while running through the alley and then a gangway. Meer dashed through a
parallel gangway to Montana Street and spotted Navarro standing on the curb, wearing a black
hooded sweatshirt. Navarro took off again until Meer caught him in front of 5019 Montana Street.
¶ 13 Meer searched Navarro but denied that he recovered a cell phone. Navarro was sweating
profusely and rubbing his hands on his clothes and the seat of the police car. Meer drove Navarro
to the intersection of Leclaire Avenue and Montana Street for identification by Magdaleno, Garcia,
and Colon. Navarro stood outside the police car, illuminated by either police flood lights or
flashlights. He was wearing handcuffs and a black sweatshirt. All three identified Navarro.
¶ 14 On cross-examination, Meer testified that at no time did he see Navarro in possession of a
black sweatshirt. Meer did not see Navarro put on the black sweatshirt nor where Navarro might
have acquired it.
¶ 15 Chicago police officer Peter Larcher, a forensic investigator, arrived about 65 minutes after
the shooting. Larcher swabbed Navarro’s hands for gunshot residue and tested Navarro’s black
long-sleeved hoodie sweatshirt, white short-sleeved T-shirt, and sweatpants. Larcher testified that
both Navarro’s hands were “negative” for gunshot residue. Larcher stated, “If the person was in
the vicinity of a gun that was fired or held a gun that had been fired, the test would come back
positive.” The squad car was never tested for gunshot residue.
¶ 16 Illinois State Police forensic scientist Robert Berk testified to why the gunshot residue tests
could be negative. He said gunshot residue on a hand will transfer to everything an individual
touches. Negative results indicated that Navarro did not discharge a firearm or that the gunshot
residue particles were removed by some activity, not deposited, or not detected by the testing
instrument.
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¶ 17 Chicago police officer Roberto Serrano arrived to assist Meer and Murphy. Serrano
searched the area with a flashlight because it was dark. After “five to seven” minutes, Serrano
found a gun in the front yard of 5022 Montana Street and three spent 9-millimeter cartridges at the
corner of Leclaire Avenue and Montana Street.
¶ 18 Forensic testing determined that the recovered handgun fired the cartridges and neither the
handgun nor the cartridges contained fingerprints. The parties stipulated that DNA testing on the
recovered handgun was inconclusive.
¶ 19 Defense Witnesses
¶ 20 Sonia Lugardo testified that she lived with Navarro in the neighborhood where the shooting
took place. Around 8 p.m., Lugardo was leaving work when she received a cell phone call from
Navarro, who had been at home with her children. According to Lugardo, she talked to Navarro
for a few minutes and went home, arriving at about 8:15 p.m. Police were present throughout the
neighborhood, and the streets were cordoned off.
¶ 21 Chicago Police Detective Demosthenes Balodimas testified that he interviewed Colon
regarding his view of the shooting. Colon did not tell Balodimas that he was looking out his
window at the time of the first gunshot but said he looked outside after he heard a gunshot.
¶ 22 Detective Dino Amato testified that he interviewed Navarro at the police station and could
not recall if Navarro had a cell phone.
¶ 23 The jury convicted Navarro. The trial court sentenced him to 60 years’ imprisonment for
first degree murder, which included a sentencing enhancement of 20 years for personally
discharging a firearm. 720 ILCS 5/9-1(a)(1) (West 2004).
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¶ 24 Posttrial Proceedings
¶ 25 Navarro appealed, arguing ineffective assistance of counsel because trial counsel stipulated
that “responding police officers saw defendant running on a street near the scene of the underlying
fatal shooting shortly after that shooting.” People v. Navarro, 378 Ill. App. 3d 1123 (2008) (table)
(unpublished order under Illinois Supreme Court Rule 23) (Navarro I). Navarro also argued
improper rebuttal argument by the State and improper sentencing. The appellate court affirmed the
conviction and sentence and corrected the mittimus. Id. The Illinois Supreme Court denied
Navarro’s petition for leave to appeal.
¶ 26 In December 2008, Navarro filed his first postconviction petition.
¶ 27 Navarro claimed that his trial counsel was ineffective for failing to file a motion to quash
identification evidence because the show-up was overly suggestive, taking place near the scene
with witnesses who saw him get out of the back of a police car. Navarro contended that the police
should have conducted a line-up or photo array instead. Navarro also claimed that trial counsel
was ineffective for failing to present mitigating circumstances during sentencing. As to appellate
counsel, Navarro claimed his counsel’s decision to ignore those issues constituted incompetence.
¶ 28 The postconviction court (Judge Stanley Sacks) summarily dismissed the petition on
January 6, 2009, finding that the issues presented were “frivolous and patently without merit.”
Navarro appealed, and this court affirmed. People v. Navarro, 405 Ill. App. 3d 1201 (2011) (table)
(unpublished order under Illinois Supreme Court Rule 23) (Navarro II). The Navarro II court held
that in dismissing the petition,
“the [postconviction judge] found that trial counsel did not err in deciding not to file a
motion to suppress the identification evidence because defendant failed to demonstrate that
the show-up conducted by Officer Meer was overly suggestive. The [postconviction judge]
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further held that even if counsel had filed a successful motion to suppress, the outcome at
trial would have been the same because defendant could not escape the fact that the State
presented three eyewitnesses who unequivocally identified him as the shooter.” Navarro
II, slip order at 4.
¶ 29 In 2013, Navarro moved for additional ballistics testing. Judge Sacks denied the motion.
Navarro appealed, and in March 2016, this court affirmed because “IBIS testing of the bullet shells
would not materially advance Navarro’s claim of actual innocence.” People v. Navarro, 2015 IL
App (1st) 131550, ¶ 16 (Navarro III) (ballistics testing immaterial where several eyewitnesses
identified Navarro as shooter).
¶ 30 In the meantime, Navarro filed a Freedom of Information Act (FOIA) request with the
Chicago Police Department, seeking “records, reports, and statements pertaining to his case.” See
5 ILCS 140/1 et seq. (West 2014). The Chicago Police Department did not produce the sought-
after records until August 2017.
¶ 31 In November 2019, Navarro moved pro se for leave to file a successive postconviction
petition. He alleged as cause that the FOIA request he filed in 2015 and the documents produced
in 2017 created a reason that the claims he would raise could not be asserted in his initial petition.
He alleged prejudice in that, had these documents been produced before trial and used, he would
not have been convicted.
¶ 32 In the proposed petition filed with the motion, Navarro raised several claims based on the
14 documents he received: (a) a Brady claim that the documents contained favorable evidence
improperly withheld (see Brady v. Maryland, 373 U.S. 83 (1963)), (b) a claim that the State
knowingly used perjured testimony to obtain his conviction, relying on the documents which he
alleged contradicted the State’s trial evidence, and (c) ineffective assistance of trial counsel claim,
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asserting that if the documents had been tendered, they were not shared with him nor were the
contradictions with the State’s trial evidence contained in them exploited by counsel. He also
asserted actual innocence.
¶ 33 The postconviction court (Judge Sacks) summarized the exhibits attached to the petition as
a “laundry list of claimed errors *** none of which adds anything of consequence to his
allegations.” The court denied leave to file the petition, finding that most of the documents were
repetitious of matters raised at trial and, thus, could have been asserted on direct appeal and barred
by forfeiture. The court also found Navarro failed to meet the cause-and-prejudice standard
required to initiate a successive petition. Regarding the actual innocence claim, the court stated:
“Navarro claims that he is ‘actually innocent’ based on alleged inconsistencies in
written statements, (perjured testimony); that the weapon that he used in the murder was
used in another crime and that he was not identified in that murder; that the arresting officer
in his case supposedly lied in an unrelated case; that he was belatedly provided with the
Freedom of Information Act materials. Navarro comes woefully short of establishing
‘actual innocence.’[citing] People v. Coleman (2013), IL 113307 (2013).”
¶ 34 Standard of Review
¶ 35 We review the sufficiency of a postconviction petition de novo because it poses a legal
question. People v. Robinson, 2020 IL 123849, ¶ 39.
¶ 36 Analysis
¶ 37 Each claim in a successive postconviction petition “must meet the applicable standard in
order to advance to second-stage postconviction proceedings.” People v. Griffin, 2024 IL 128587,
¶ 2; see 725 ILCS 5/122-1(f) (West 2018) (Post-Conviction Hearing Act (Act)). An actual
innocence claim, as here, “does not depend on—and is separate from—a challenge to the
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sufficiency of the evidence or an allegation of error in the court below.” People v. Reed, 2020 IL
124940, ¶ 29.
¶ 38 Griffin recognized that the bar to successive postconviction petitions may be relaxed in two
situations: (i) “if a petitioner can establish cause and prejudice for not raising the claim in an initial
postconviction petition” (Griffin, 2024 IL 128587, ¶ 32 (citing People v. Pitsonbarger, 205 Ill. 2d
444, 459 (2002))) and (ii) when the petitioner shows “actual innocence,” an exception not codified
in the Act, but “well established under Illinois law” (id. ¶ 33 (citing Robinson, 2020 IL 123849,
¶ 42)). The pivotal inquiry is whether the evidence supporting the postconviction petition casts
“the trial evidence in a different light and undermines the court’s confidence in the judgment of
guilt.” Robinson, 2020 IL 123849, ¶ 48 (citing People v. Coleman, 2013 IL 113307, ¶ 97).
Critically, the new evidence does not have to be “entirely dispositive to be likely to alter the result
on retrial.” Id. “Probability, rather than certainty, is the key in considering whether the fact finder
would reach a different result after considering the prior evidence along with the new evidence.”
Id. The new evidence raised need not totally “vindicat[e]” or “exonerat[e]” the petitioner. Id. ¶ 55.
¶ 39 Navarro first argues that the court mistakenly applied the cause-and-prejudice test instead
of the colorable claim test, and the proposed successive petition asserted newly discovered
evidence that bore on actual innocence. Because our review is de novo, we undertake the same
analysis as the postconviction court without deferring to its reasoning.
¶ 40 The State asserts that even if cognizable as a freestanding claim of actual innocence,
Navarro still failed to make a colorable showing of actual innocence. The State also complains that
“[Navarro] did not include a claim of actual innocence in his proposed successive postconviction
petition, but instead included a section ‘addressing’ actual innocence in his motion for leave to
file.” Navarro counters that additional documentation attached to the proposed successive petition,
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particularly the record of professional complaints against officers Meer and Amato, sufficed to
warrant the initiation of successive postconviction proceedings.
¶ 41 We find the motion for leave to file and accompanying petition with documentation
compelling. See People v. Edwards, 2012 IL 111711, ¶ 24 (“[L]eave of court should be denied
only where it is clear, from a review of the successive petition and the documentation provided by
the petitioner that, as a matter of law, the petitioner cannot set forth a colorable claim of actual
innocence.”).
¶ 42 Courts must not elevate form above substance in reviewing a pro se petitioner’s inartful
presentation. At this stage, our supreme court has established a low threshold for the survival of
pro se petitions, like here, drafted by an individual without legal knowledge or training. See People
v. Hodges, 234 Ill. 2d 1, 9, 11-12 (2009) (“pro se petition seeking postconviction relief under the
Act for a denial of constitutional rights may be summarily dismissed as frivolous or patently
without merit only if the petition has no arguable basis either in law or in fact”). “Petitions filed
pro se must be given a liberal construction and are to be viewed with a lenient eye, allowing
borderline cases to proceed.” People v. Thomas, 2014 IL App (2d) 121001, ¶ 48.
¶ 43 This court’s opinion in People v. Plummer, 344 Ill. App. 3d 1016 (2003), provides guidance
in evaluating the State’s argument. See id. at 1020 (factual disputes raised by pleadings cannot be
resolved by motion to dismiss at either first or second stage of postconviction proceedings—they
only can be determined by evidentiary hearing). A pro se petitioner is not required to allege facts
supporting all elements of a constitutional claim. People v. Mars, 2012 IL App (2d) 110695, ¶ 32.
In Hodges—albeit an appeal from a summary dismissal of a first postconviction petition—the court
relied on the standard established in Anders v. California, 386 U.S. 738 (1967), that “legal points
arguable on their merits” are “not frivolous.” Id. at 744; see People v. Boclair, 202 Ill. 2d 89, 101
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(2002) (defining “ ‘[f]rivolous’ ” as “ ‘of little weight or importance: having no basis in law or
fact’ ”; defining “ ‘[p]atently’ ” as “ ‘clearly, obviously, plainly’ ”; and defining “ ‘[m]erit’ ” as
“ ‘legal significance, standing, or importance’ ” (quoting Webster’s Third New International
Dictionary 913, 1654, 1414 (1993); Black’s Law Dictionary 677, 1147, 1003 (7th ed. 1999))).
¶ 44 We agree with Navarro that we must decide whether, as a matter of pleading, he has set
forth enough to warrant an opportunity to present his claims with the assistance of counsel.
¶ 45 The weakness of the State’s case involves (i) the arresting officer’s testimony that he
chased a man in a white T-shirt but arrested a man in a black sweatshirt and (ii) the inherently
suggestive and unreliable show-up procedure substituted for a line-up or photo array. The police
brought Navarro before the witnesses (two of them simultaneously) while handcuffed, illuminating
him with flashlights and possibly a spotlight and asking if this was the shooter. Navarro maintains
that recently acquired evidence of misconduct by Meer raised a colorable claim of actual
innocence.
¶ 46 The State next contends that even if as newly discovered evidence of a pattern of
misconduct, the petitioner’s claim fails because that evidence is immaterial and cumulative. We
reject the State’s argument as contrary to the law. “Evidence is material if it is relevant and
probative of the petitioner’s innocence.” Robinson, 2020 IL 123849, ¶ 47. Moreover, evidence is
noncumulative when it “adds to the information that the fact finder heard at trial.” Id.
¶ 47 The issue of Meer’s credibility is material. Meer claimed to have seen Navarro pull a gun
out during a foot chase, but he could not explain how Navarro emerged from the alleyway wearing
a black sweatshirt just 10-15 seconds after Meer lost sight of him. Meer did not see a black
sweatshirt before the abrupt change of clothing, during which Navarro was running. And evidence
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of Meer’s background was noncumulative—the jury had no basis to know about or evaluate his
credibility in light of the Office of Professional Standards files.
¶ 48 As in People v. Tyler, 2015 IL App (1st) 123470, ¶ 186, where evidence of police
misconduct was newly discovered and had the potential to alter the outcome, “[e]ven one incident
of similar misconduct by the same detectives can be sufficient to show intent, plan, motive, and
could impeach the officers’ credibility.” We find that Navarro’s motion for leave to file a
successive postconviction petition should have been allowed and the petition advanced to the
second stage.
¶ 49 On Remand
¶ 50 Finally, in our review of postconviction dismissals, we must be mindful of the
postconviction judge’s predisposition resulting from years of presiding over a particular
defendant’s proceedings and later in postconviction proceedings. Navarro’s trial concluded in
2004, followed by sentencing shortly after. Over the next 20 years, as Navarro appealed his
conviction and sentence, the same judge issued orders that denied every petition with generally
similar content indicative of nominal consideration.
¶ 51 Under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994), a reviewing court may,
at its discretion, order any relief that a particular case may require, including “reassign[ing] a
matter to a new judge on remand.” Eychaner v. Gross, 202 Ill. 2d 228, 279 (2002).
¶ 52 Our supreme court instructs that “ordinarily the fact that a judge has ruled adversely to a
defendant in either a civil or a criminal case does not disqualify that judge from sitting in
subsequent civil or criminal cases in which the same person is a party.” People v. Vance, 76 Ill. 2d
171, 178 (1979). But a new judge can be assigned if there is “[s]omething more” than a previous
adverse ruling. Id. at 181; see People v. Reyes, 369 Ill. App. 3d 1, 26 (2006) (trial judge replaced
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on remand for second stage postconviction proceedings because addressing merits of new evidence
regarding coerced confessions was inappropriate).
¶ 53 “ ‘[S]omething more’ ” includes a display of “ ‘animosity, hostility, ill will, or distrust’
[citation], or ‘prejudice, predilections, or arbitrariness’ [citation].” Reyes, 369 Ill. App. 3d at 25;
see People v. Serrano, 2016 IL App (1st) 133493, ¶ 45 (“Even where the court gave lip service to
the standard it was supposed to apply, the court clearly did not adhere to that standard.”).
¶ 54 This burden of “something more” was recently met in a case involving Judge Sacks. In
People v. Morris, 2023 IL App (1st) 220035, ¶¶ 1-2, Judge Sacks initially sentenced a 16-year-old
to 100 years in prison and, on remand from this court, reimposed the same sentence. Id. This court
found Judge Sacks was “preoccupied” with whether he could reimpose the same sentence on
remand. Id. ¶ 63. This “results-driven approach” to the new sentencing statute was “not what the
statute contemplates and was an abuse of discretion.” Id.; see also People v. Scullark, 2024 IL App
(1st) 220676-U, ¶ 99 (innocence claim before Judge Stanley Sacks remanded for second-stage
proceedings before different judge).
¶ 55 Judge Sacks’s 2021 order gives short shrift to Navarro’s arguments. The order’s analysis
begins with the conclusion that “[a]ll of the claims asserted in the successive petition were either
raised or could have been raised in the initial petition.” As we have explained, this conclusion is
incorrect. The order reflects a lack of close review indicative of prejudice, predilections, or
arbitrariness, thereby constituting “something more.”
¶ 56 In the interests of fairness and justice, this case is reassigned to a different circuit court
judge on remand. The Office of the State Appellate Defender is appointed to represent Navarro.
¶ 57 Reversed and remanded for second stage proceedings with instructions.
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People v. Navarro, 2024 IL App (1st) 211543
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 04-CR- 10345; the Hon. Stanley J. Sacks, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Robert Hirschhorn, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Brian A. Levitsky, and Sara McGann, Assistant Appellee: State’s Attorneys, of counsel), for the People.
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