FIRST DIVISION SEPTEMBER 08, 2008
No. 1-06-1314
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 92 CR 21083 ) SALVADOR ORTIZ, ) Honorable ) Dennis Dernbach, Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE ROBERT E. GORDON delivered the opinion of the court:
Defendant Salvador Ortiz appeals the denial of his third postconviction petition. We
reverse the ruling of the trial court and remand for new trial. In February 1994, following a
bench trial, defendant was found guilty of first degree murder and sentenced to 47 years in
prison. Defendant’s conviction and sentence were affirmed on direct appeal.
BACKGROUND
The defendant was convicted of the murder of Francisco Ramos (victim), who was shot
and killed near Gill Park on Sheridan Road in Chicago on June 28, 1992.
Christopher Estavia testified for the State that he drove his friend, the defendant, one of
the leaders of the Latin Eagles, to Gill Park. Estavia testified that he has never been a member of No. 1-06-1314
the Latin Eagles or any other street gang. While sitting on the hood of his automobile, he saw
codefendants Oscar Chacon (Oscar) and Edwin Gomez in the park with the victim. He saw
Oscar and Gomez make gang signs with their hands to elicit a response from the victim relating
to his gang affiliation. After they determined that the victim was a rival gang member, Oscar and
Gomez walked with the victim to the west side of the park. Estavia saw Oscar and Gomez begin
to physically beat the victim and then saw other members of the codefendants’ gang, including
defendant, come from other locations in the park and join in the beating. Estavia then testified he
left the area. Estavia admitted telling police on August 22, 1992, and giving a written statement
that defendant was armed with a .22-caliber gun and that he saw defendant shoot the victim once.
Estavia went to the police because he was told that someone had implicated him in the murder.
However, during a deposition taken after his statement to police and prior to trial, Estavia
testified that he did not see defendant shoot the victim. Defendant used the deposition testimony
to impeach Estavia at trial. On cross-examination, Estavia testified that he was intoxicated from
alcohol and cocaine when he gave the police the statement. On redirect examination, Estavia
testified that he was under the influence of drugs and alcohol during his deposition, but was not
intoxicated from alcohol or drugs when he gave his statement to the police.
Estavia further testified that an unknown person had threatened his wife at work in
August 1992 and that his automobile windows were shot out sometime after he went to the
police. In addition, his niece had been threatened at school when she was told that there would
be problems if Estavia testified. Estavia was later placed under protective custody in 1993 after
he claimed an unknown person shot at him. On May 4, 1993, Estavia gave another statement in
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the presence of a court reporter to private investigators hired by defendant recanting the
statement he had previously given to police. He denied telling police that a high-ranking member
of the Latin Eagles was present when he gave the statement.
Estavia’s testimony was further tainted when he failed to appear in court at two earlier
trial dates, and a warrant was issued for his arrest. Estavia attempted to flee when police came to
his home, arrested him and brought him to court, where a petition for contempt was filed against
him. A police officer brought him to court when he testified on February 24, 1994. He testified
he was not offered any deals regarding his pending contempt charges at the time of his testimony.
Edwin Villariny, a former member of the Latin Eagles, also testified for the State. He
knew defendant from the Gill Park neighborhood and denied at trial being in the area on June 28,
1992. However, he provided a statement to the police that he was at Gill Park with defendant
and codefendants the night of the shooting. His statement further corroborated Estavia’s trial
testimony that defendant shot the victim once as he fled and that Oscar shot the victim an
additional four times. Villariny also told the police in his statement that he saw a third, unknown
man on a bicycle follow the victim and shoot him a sixth time. Villariny repeated the
information in his statement before the grand jury, but recanted everything at defendant’s trial,
testifying he was not at Gill Park on the night in question. He confirmed that he gave the police
the written statement, but testified it was coerced and untrue. He claimed that the police
interrogated him for two days while he was handcuffed to a wall, and he was struck by a police
officer. He further claimed that the police threatened to charge him with a narcotics offense and
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call the Department of Children and Family Services on his family.
Detective John Murray and Assistant State’s Attorney Patrick McGuire both testified
denying Villariny’s claims of coercion and brutality.
The State also offered into evidence Oscar’s statement to the police admitting that he shot
the victim and that a second person riding a bicycle on Sheridan Road also shot the victim, but
that they were the only shooters. Oscar refused to identify the man on the bicycle. There is no
mention of defendant in his statement.
Forensic evidence showed the victim died of multiple gunshot wounds. The victim had
been shot six times, but only five bullets were recovered from his body, including one .32-caliber
and four .22-caliber bullets. The medical examiner testified that the pattern of gunshot wounds
indicated that at least four bullets entered from the victim’s back and went through to the front of
his body. He found no evidence of close-range firing, which he defined as gunshots taken from
18 inches to 2 feet from the victim.
Defendant called his friend Arthur Dunlam, who was a Vietnam War veteran and not a
member of the Latin Eagles or any other gang, to testify as an alibi witness. Dunlam testified
that he was at Gill Park with defendant on the night of June 28, 1992. At 9:45 p.m. they were
drinking beer with a group of men and heard what sounded like shots being fired but did not see
anyone shooting or fighting and did not participate in any events with the victim.
The trial court found defendant guilty of first degree murder and sentenced him to 47
years in prison. Defendant’s conviction and sentence were affirmed on direct appeal. See People
v. Ortiz, No. 1-94-2094 (1996) (unpublished order under Supreme Court Rule 23). Defendant
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filed a postconviction petition claiming actual innocence and ineffective assistance of counsel
that was summarily dismissed. The dismissal was later affirmed on appeal. See People v. Ortiz,
No. 1-98-1311 (1999) (unpublished order under Supreme Court Rule 23).
Defendant filed a second postconviction petition alleging actual innocence and ineffective
assistance of counsel based on affidavits by Victoria Khan and Victor Ocasio. Kahn said in her
affidavit she witnessed the shooting and was brought to the police station to view the lineup, but
Kahn could not identify the shooter. Ocasio said he saw Oscar chase the victim down Sheridan
Road and shoot the victim four times. The affidavit also stated that he saw Efrain Chacon on a
bicycle shoot at the victim three times. He did not mention defendant in his affidavit. Ocasio, a
former member of defendant’s gang, said he did not come forward with this information sooner
because he feared for his safety.
The trial court found the affidavits did not constitute newly discovered evidence and were
cumulative of the evidence at trial. The trial court dismissed defendant’s second postconviction
petition. This court affirmed. See People v. Ortiz, No. 1-01-0368 (2003) (unpublished order
under Supreme Court Rule 23).
Defendant filed a third postconviction petition, which is the subject of this appeal.
Defendant alleges actual innocence based on affidavits by Sigfriedo Hernandez, Daniel Huertas
and Victor Ocasio. The trial court held an evidentiary hearing on the petition. Hernandez
testified at the hearing that he knew defendant because they were both members of the same
street gang. Hernandez said he was at Gill Park on the night in question. When Hernandez
entered the park, he saw Oscar, Efrain Chacon (Efrain) and Miguel Renteria beating the victim.
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Hernandez said he walked away from the beating to meet a friend who gave him marijuana to
sell. After obtaining the marijuana, Hernandez began walking out of the park. As he was
leaving, Hernandez saw Oscar and Efrain on their bicycles, pursuing the victim on Sheridan
Road. Hernandez saw Oscar and Efrain leave their bicycles, pull out guns and point those guns
at the victim. Hernandez said that he then heard gunshots. Hernandez denied seeing defendant
at the park. When asked during cross-examination why he did not come forward with this
account sooner, Hernandez explained he and defendant were not close and had been in conflict.
Hernandez and defendant had been dating the same girl, and defendant became angry and often
tried to have him arrested or beaten.
Hernandez testified that he did not tell anyone what happened that night because he was
afraid that other members of the Latin Eagles would kill him if he did. He moved to Wisconsin
in late 1992 or early 1993, and he came back in June 2003 for the Puerto Rican parade, where he
ran into defendant’s mother. He testified that he felt compelled to tell her what he knew about
the events that put her son in jail, and he agreed to put down in writing what he had told her
because he felt bad for her. Hernandez said he finally came forward with the information “[t]o
get it off [his] chest.”
The trial court found Hernandez’s testimony cumulative and insufficient to warrant a new
trial. The court explained in its written opinion:
“The two eye-witnesses at the trial knew the defendant and said that the
defendant was the shooter. This case did not deal with an identification
issue but rather a question of credibility and the court found the two eye-
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witnesses to be credible. Therefore this court finds that *** Hernandez’s
testimony was cumulative when weighed against the other two eye-
witnesses who testified during the trial.”
The trial court denied defendant’s postconviction petition and this appeal followed.
ANALYSIS
A postconviction petitioner is entitled to an evidentiary hearing when he makes a
substantial showing that his constitutional rights were violated. People v. Coleman, 183 Ill. 2d
366, 381 (1998). Because the postconviction trial judge is in the best position to observe and
weigh the credibility of witnesses testifying at an evidentiary hearing, his findings of fact will not
be overturned unless those findings are manifestly erroneous. Coleman, 183 Ill. 2d at 384-85. A
trial court’s finding is manifestly erroneous where an opposite conclusion is clearly evident, plain
and undisputable. People v. Morgan, 212 Ill. 2d 148, 155 (2004).
Not every constitutional violation may be challenged through a postconviction
proceeding. Coleman, 183 Ill. 2d at 380. Only those violations that were not, nor could have
been, challenged during an earlier proceeding are properly raised and considered. Morgan, 212
Ill. 2d at 153. For this reason, the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2004)) contemplates the filing of only one postconviction petition. 725 ILCS 5/122-3
(West 2004) (“[a]ny claim of substantial denial of constitutional rights not raised in the original
or an amended petition is waived”); see also Morgan, 212 Ill. 2d at 153. The statutory bar to
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successive postconviction petitions will be relaxed only in the interest of fundamental fairness.
Morgan, 212 Ill. 2d at 153.
Before discussing the merits of defendant’s postconviction petition, this court must
consider the State’s argument that the trial court should not have allowed a successive
postconviction petition. The State argues that the Post-Conviction Hearing Act contemplates the
filing of only one petition per defendant, and that to qualify for a successive petition, the new
petition must satisfy the cause-and-prejudice test discussed by the Illinois Supreme Court in
People v. Pitsonbarger. 205 Ill. 2d 444, 459 (2002). The State argues that defendant did not
satisfy this test, and thus, the trial court should have denied the petition outright. We find that
the State’s argument is not persuasive.
The “cause-and-prejudice test as defined in Pitsonbarger” was “adopted” by our
legislature and made part of the Post-Conviction Hearing Act. People v. Anderson, 375 Ill. App.
3d 121, 135 (2007); People v. Brockman, 363 Ill. App. 3d 679, 688 (2006) (“Subsection (f) was
clearly intended by the General Assembly to codify the cause-and-prejudice test adopted by the
supreme court in Pitsonbarger.”). Effective January 1, 2004, our legislature adopted the test by
adding subsection (f) to Section 122-1 of the Post-Conviction Hearing Act. Subsection (f) states
in full:
“Only one petition may be filed by a petitioner under this
Article without leave of the court. Leave of court may be granted
only if a petitioner demonstrates cause for his or her failure to
bring the claim in his or her initial post-conviction proceedings and
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prejudice results from that failure. For purposes of this subsection
(f): (1) a prisoner shows cause by identifying an objective factor
that impeded his or her ability to raise a specific claim during his
or her initial post-conviction proceedings; and (2) a prisoner shows
prejudice by demonstrating that the claim not raised during his or
her initial post-conviction proceedings so infected the trial that the
resulting conviction or sentence violated due process.” 725 ILCS
5/122-1 (West 2004).
After the legislature adopted the Pitsonbarger cause-and-prejudice test, our supreme
court decided People v. Morgan, 212 Ill. 2d 148 (2004). Although the Morgan decision
analyzed cause and prejudice, it did not cite the newly enacted subsection (f). 725 ILCS 5/122-1
(West 2004). Presumably because of the date when the postconviction petition before it was
filed, our supreme court in Morgan cited and discussed Pitsonbarger and other cases instead.
Morgan, 212 Ill. 2d at 153-54.
Even though Morgan did not discuss the newly enacted subsection (f) and Pistonbarger
was decided before it was enacted, both cases are instructive about what constitutes cause and
prejudice under the statute, because the definitions of cause and prejudice in these cases are
similar to the definitions contained in subsection (f). Morgan, 212 Ill. 2d at 153-54;
Pitsonbarger, 205 Ill. 2d at 460 (cause is an objective factor external to the defense that impeded
counsel’s efforts to raise the claim in an earlier proceeding), 473 (prejudice occurs when the issue
so infected the trial that the resulting conviction or sentence violated due process).
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In sum, under both statute and case law, a petitioner seeking to establish fundamental
fairness to bring a successive postconviction petition must show: (1) good cause for failing to
raise the claimed error in an earlier proceeding; and (2) actual prejudice resulting from the error.
725 ILCS 5/122-1(f) (West 2004); Morgan, 212 Ill. 2d at 153. “Cause” is “an objective factor
that impeded [petitioner’s] ability to raise a specific claim during his or her initial post-
conviction proceedings.” 725 ILCS 5/122-1(f)(1) (West 2004); Morgan, 212 Ill. 2d at 153 (
“cause” is “an objective factor external to the defense that impeded counsel’s efforts to raise the
claim in an earlier proceeding”). Prejudice exists where the petitioner can show that “the claim
not raised during his or her initial post-conviction proceedings so infected the trial that the
resulting conviction or sentence violated due process.” 725 ILCS 5/122-1(f)(2) (West 2004);
Morgan, 212 Ill. 2d at 154 (“‘Prejudice’ exists where the defendant can show that the claimed
constitutional error so infected his trial that the resulting conviction violated due process”) .
The State argues on appeal that defendant failed to show cause and prejudice, and his
successive postconviction petition was properly denied under section 122-3 of the Act (725 ILCS
5/122-3 (West 2004)). However, in Pitsonbarger, our supreme court stated that a showing of
actual innocence1 will excuse a failure to show cause and prejudice:
1 In Morgan, the State conceded that the defendant had met the cause-and-prejudice test
because of “ ‘the seriousness of an actual innocence claim in a potentially capital case.’ ”
Morgan, 212 Ill. 2d at 154. Since the State conceded the issue, our supreme court in Morgan did
not have the occasion to consider whether a claim of actual innocence satisfied the cause-and-
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“We hold today that the cause-and-prejudice test is the analytical
tool that is to be used to determine whether fundamental fairness
requires that an exception be made to section 122-3 so that a claim
raised in a successive petition may be considered on its merits. We
reaffirm that even if the petitioner cannot show cause and
prejudice, his failure to raise a claim in an earlier petition will be
excused if necessary to prevent a fundamental miscarriage of
justice. To demonstrate such a miscarriage of justice, a petitioner
must show actual innocence or, in the context of the death penalty,
he must show that but for the claimed constitutional error he would
not have been found eligible for the death penalty.” Pitsonbarger,
205 Ill. 2d at 459.
In other words, fundamental miscarriages of justice will not be tolerated in favor of
finality. Morgan, 212 Ill. 2d at 154 (“The conviction of an innocent person violates the due
process clause of the Illinois Constitution”). See also People v. Brown, 225 Ill. 2d 188, 206
(2007) (actual innocence was listed as an exception to the cause-and-prejudice test; however
postconviction petition at issue was filed before subsection (f) took effect).
Even though Pitsonbarger was decided before section (f) took effect, its exception for
actual innocence still applies. First, as noted before, its definitions of cause and prejudice are
prejudice test.
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very similar to the definitions adopted by the legislature for the same terms, and thus its
discussions of those terms are still instructive. Second, as noted before, the legislature adopted
the cause-and-prejudice test from Pitsonbarger. Third, in appellate court cases involving
postconviction petitions filed after January 1, 2004, when section (f) became effective, several
districts of the appellate court have concluded that the actual innocence exception still applies.
People v. Anderson, 375 Ill. App. 3d 121, 144-45 (1st Dist. 2007) (defendant’s failure to raise a
claim in his earlier postconviction petition will be excused if he can demonstrate either “cause
and prejudice or actual innocence”); People v. Coleman, 381 Ill. App. 3d at 561 (3rd Dist. 2008)
(if “a petitioner cannot meet the cause and prejudice test, the failure to bring a claim in a prior
postconviction petition will be excused” if he can “show actual innocence”); People v. Daniel,
379 Ill. App. 3d 748, 750 ( 4th Dist. 2008) (in addition to a showing of cause and prejudice, “a
showing of actual innocence may also relax the statutory bar”). But see People v. Brockman,
363 Ill. App. 3d 679, 689-690 (5th Dist. 2006) (appellate court affirmed dismissal of
postconviction petition of defendant who claimed actual innocence, because he had failed to
show cause and prejudice). Since the actual innocence exception still applies, and the defendant
has made a showing of actual innocence, this court must now analyze the merits of the petition
in the case at bar.
Defendant contends on appeal that he should be granted a new trial because the trial court
refused to consider eyewitness testimony as sufficient to support a claim of actual innocence and
because the trial court failed to consider the trial evidence in light of the new testimony.
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Defendant argues that these actions amounted to manifest errors on the part of the trial court,
therefore entitling him to a new trial.
“In Illinois, newly discovered evidence warrants a new trial when: (1) it has been
discovered since the trial; (2) it is of such a character that it could not have been discovered prior
to the trial by the exercise of due diligence; (3) it is material to the issue but not merely
cumulative; and (4) it is of such a conclusive character that it will probably change the result on
retrial.” People v. Williams, 295 Ill. App. 3d 456, 462 (1998), citing People v. Molstad, 101 Ill.
2d 128, 134 (1984). “Motions for new trial on grounds of newly discovered evidence are not
looked upon favorably by the courts and should be subject to the closest scrutiny.” Williams, 295
Ill. App. 3d at 462.
This court agrees with defendant’s argument that Hernandez’s testimony warranted a new
trial and that the trial court committed manifest error in denying a new trial. Hernandez’s
testimony is newly discovered, material, and noncumulative, and probably would have changed
the result on retrial. Hernandez not only testified that Oscar shot the victim, he was the only
witness who identified the other shooter as Efrain, Oscar’s brother. The trial court erred when it
found that the testimony was cumulative and when it failed to consider its effect on the result at a
retrial.
Hernandez’s testimony is newly discovered evidence. Evidence is newly discovered
when it has been discovered since the trial and is of such a character that it could not have been
discovered prior to the trial by the exercise of due diligence. Molstad, 101 Ill. 2d at 134. The
trial court did not specifically state whether it considered Hernandez’s testimony to be newly
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discovered, but the fact that the court granted an evidentiary hearing following a review of the
affidavit indicates that the trial court did consider the testimony to be newly discovered.
Defendant discovered Hernandez’s testimony when Hernandez spoke with defendant’s mother
over 10 years after the trial. Given defendant’s alibi that he was drinking beer on the other side
of the fieldhouse where he could not have seen Hernandez or the crime, there is no reason to
suggest that defendant knew Hernandez had witnessed the crime. According to Hernandez,
Oscar and Efrain Chacon saw him there, but the two men were not going to divulge this
knowledge since Hernandez would be testifying against them. Additionally, Hernandez fled the
state a few months after the crime, making the discovery of his testimony all the more difficult.
Thus, Hernandez’s testimony is newly discovered.
Defendant cites Molstad in support of his contention that eyewitness testimony is not
cumulative. Molstad, 101 Ill. 2d at 134. We agree. In Molstad, the defendant in a criminal
battery case was convicted based largely on the testimony of an eyewitness to the crime.
Molstad, 101 Ill. 2d at 134. The defendant had presented alibi testimony at trial. Molstad, 101
Ill. 2d at 134. In a postrial motion prior to sentencing, the defendant presented the affidavits of
five codefendants, all of which stated that the defendant was not present during the time of the
attack. Molstad, 101 Ill. 2d at 134. The Molstad court held that this new testimony was not
cumulative because it would create new questions in the mind of the trier of fact, since it went to
an ultimate issue in the case: “Who was present at the time of the attack[?]” Molstad, 101 Ill. 2d
at 135.
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In the case at bar, Hernandez’s testimony was material and not cumulative. Evidence is
considered cumulative where it “adds nothing to what [was] already before the jury.” Molstad,
101 Ill. 2d at 135. The trial court determined that Hernandez’s testimony did not warrant a new
trial because the testimony was “cumulative when weighed against the other two eyewitnesses
who testified during the trial.” Seemingly, the trial court’s logic was that because the fact finder
had already heard the testimony of two eyewitnesses, the testimony of another eyewitness would
not add anything to what was already before the fact finder. However, as in Molstad, this new
eyewitness testimony was not cumulative because it would create new questions in the mind of
the trier of fact, since it also went to an ultimate issue in the case: “Who was present at the time
of the [shooting?]” Molstad, 101 Ill. 2d at 135. In addition, the claimed two eyewitnesses to the
shooting recanted their testimony at trial, and the new eyewitnesses implicated the codefendant’s
brother, which explains why the codefendant did not identify the other shooter.
Based on our supreme court’s decision in Molstad that the eyewitness testimony before it
was not cumulative of other eyewitness testimony, this court finds that Hernandez’s testimony is
not cumulative. Like the defendant in Molstad, the defendant in the instant case offered alibi
evidence at trial and attacked the credibility of the State’s eyewitnesses. Also like the defendant
in Molstad, the instant defendant presented eyewitness affidavits claiming that defendant was not
present at the scene of the crime. Hernandez’s testimony goes even further by naming an entirely
new offender, Efrain Chacon. It is difficult to see how this new testimony would not add
anything to what is already in front of the fact finder. Just as our supreme court in Molstad found
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that the eyewitness testimony is not cumulative, this court must find that Hernandez’s testimony
before it was not cumulative.
This court is not persuaded by the State’s attempt to differentiate Molstad from the instant
case. The State argues that the case against the defendant in Molstad was weaker than the case
against the instant defendant. The strength of the evidence against the defendant’s claim of
innocence played no role in our supreme court’s determination of whether the new evidence
before it was cumulative. Molstad, 101 Ill. 2d at 135. The determination of whether the new
evidence would probably change the result on retrial was considered as an entirely separate issue
from whether the new evidence was cumulative. Molstad, 101 Ill. 2d at 135. While examining
the cumulativeness issue, our supreme court looked at the type of evidence presented at trial,
while considering the outcome-at-retrial issue, our supreme court looked at the weight of the
evidence presented at trial. Molstad, 101 Ill. 2d at 135. Molstad and the instant case both
involve the same type of evidence, namely eyewitness testimony. Thus, on the issue of lack of
cumulativeness, these cases are substantially similar.
Also, Hernandez’s testimony probably would have changed the result on retrial. In its
order denying defendant’s petition for a new trial, the trial court found that the additional
eyewitness testimony was cumulative, but it did not specifically rule on whether the new
testimony would have probably changed the result on retrial. Since we find that Hernandez’s
testimony is not cumulative, this court must decide whether the testimony would probably
change the result on retrial. This court finds that the result on retrial probably would change.
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At retrial, the evidence of defendant’s innocence would be much stronger. Defendant
would be able to offer the testimony of Hernandez, the only witness to the entire event other than
Oscar, who would testify that defendant was never present at the crime. He would also have
Ocasio’s testimony that Efrain Chacon shot the victim, corroborating Hernandez’s testimony.
This evidence was never viewed in conjunction with Hernandez’s testimony. Although Ocasio’s
statement was not relevant previously because he did not see the whole event, the statement
becomes relevant when viewed in conjunction with Hernandez’s testimony because both men
name Efrain Chacon as the second shooter. All of this evidence corroborates Oscar Chacon’s
original statement to the police, which states that there were only two shooters. The State argues
that this statement was only part of the case against Oscar Chacon because the cases were
severed; however, this contention is not supported anywhere in the record.
Also, at retrial, the evidence of defendant’s guilt would be weaker. The only evidence
offered against defendant was the eyewitness testimony of Estavia and Villariny. Both of these
men recanted their statements at some point, but the trial court found that these recantations were
not credible. However, Hernandez’s testimony and the Ocasio affidavit would cast a shadow on
Estavia’s and Villariny’s original statements and corroborate their recantations at retrial.
The State argues that Dr. Kirschner’s testimony regarding the lack of evidence of close-
range shooting and the likelihood that the victim was shot four times in the back refutes
Hernandez’s version of shooting. This court is not persuaded by this argument. Hernandez did
not state that there was any close-range shooting or that the victim was not shot from behind.
Also, as defendant points out, Dr. Kirschner was not called to testify as a rebuttal witness; thus,
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his testimony cannot be used to show that Hernandez’s version of the shooting was “virtually
impossible.” Hernandez’s testimony is actually consistent with Dr. Kirschner’s testimony.
The shift in strength of each side’s case would probably create a reasonable doubt of
defendant’s guilt at retrial. Defendant no longer relies solely on alibi testimony. At retrial
defendant would be able to attack the credibility of the State’s eyewitnesses directly with his own
eyewitnesses. In addition, there was no physical evidence pointing to defendant. The weight of
the evidence in favor of defendant’s innocence would be much stronger and would probably
change the result upon retrial. Therefore, defendant must be granted a new trial.
CONCLUSION
For the foregoing reasons we reverse the judgment of the circuit court and grant
defendant a new trial.
Reversed.
CAHILL, P.J., dissents.
McBRIDE, J., specially concurs.
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JUSTICE CAHILL, dissenting:
I respectfully disagree with the conclusion that Hernandez's testimony is noncumulative and
of such a conclusive nature that it would probably change the result on retrial.
The majority compares Hernandez's testimony to that of Christopher Estavia and Edwin
Villariny, both of whom testified that defendant shot the victim. The majority concludes, correctly,
that this evidence is not cumulative. But the majority does not address Oscar Chacon's statement
and Arthur Dunlam's testimony that defendant was not involved in the shooting. Oscar said in a
statement admitted at defendant's trial that he and the bicyclist were the only shooters. Dunlam
testified as an alibi witness and said defendant was with him at the time of the shooting. With the
exception of the bicyclist's identity, Hernandez's testimony does not offer anything that was not
already before the trier of fact. See People v. Molstad, 101 Ill. 2d 128, 135, 461 N.E.2d 398 (1984)
(evidence that adds nothing to what is already before the trier of fact is cumulative). The identity
of the bicyclist is not material to defendant's guilt and alone is not sufficient to warrant a new trial.
The majority concludes that under Molstad, Hernandez's testimony must be found not
cumulative. Slip op. at 15-16. Like this case, the defendant in Molstad maintained his innocence
by denying involvement in the crime. Molstad, 101 Ill. 2d at 132. Although the defendant offered
alibi evidence, the testimony of his codefendants that he was not present for the crime was not
available at trial. Molstad, 101 Ill. 2d at 132-33. Our supreme court granted the defendant a new
trial, holding the testimony was not cumulative of the alibi evidence and was material to whether the
defendant was involved in the crime. Molstad, 101 Ill. 2d at 135. Here, Oscar's statement that
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defendant was not a shooter was offered into evidence at trial. Hernandez's testimony differed only
with respect to the identity of the bicyclist.
The majority also concludes that Hernandez's testimony is enough to create a reasonable
doubt of defendant's guilt on retrial. Slip op. at 17-18. This conclusion results in part from the
majority's failure to address the cumulative impact of Hernandez's testimony on Oscar's statement
and Dunlam's account of defendant's whereabouts. But more troubling is that Hernandez--in an
affidavit executed more than 11 years after the shooting and the only predicate for a third
postconviction petition--said he was engaged in a drug transaction at the time defendant allegedly
shot the victim. Hernandez testified he saw Oscar, Efrain Chacon and Miguel Renteria beating the
victim as he entered the park. Hernandez then met with Peter Reyes, a fellow gang member who
supplied marijuana for Hernandez to sell. According to Hernandez's affidavit, four minutes
transpired between the time he saw the fight and the time he saw Oscar and Efrain chasing the victim
on Sheridan Road. Hernandez does not account for the period between the fight and the chase,
which, according to Estavia and Villariny, was the time when defendant shot the victim.
I would affirm the trial court order denying defendant postconviction relief under these
circumstances.
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McBride, J., specially concurring,
I write to specially concur because I agree that defendant should be given a new trial based
upon the evidence presented to the trial court which, in my opinion, meets the cause and prejudice
test outlined in 725 ILCS 5/122-1(f). Therefore, the majority discussion about case precedent since
the 2004 enactment as to whether actual innocence remains an exception to the cause and prejudice
requirement necessary for the filing of successive petitions is unnecessary. I agree with the analysis
in all other respects therefore I specially concur.
21 REPORTER OF DECISIONS - ILLINOIS APPELLATE COURT (Front Sheet to be attached to each Opinion) _________________________________________________________________ Please use the ] following form:] ] ] THE PEOPLE OF THE STATE OF ILLINOIS, ] ] Plaintiff-Appellee, ] v. ] ] SALVADOR ORTIZ, ] ] Defendant-Appellant. Complete ] TITLE ] of Case. ] _________________________________________________________________ Docket No. ] No. 1-06-1314 ] Appellate Court of Illinois COURT ] First District, First Division ] ] SEPTEMBER 08, 2008 Opinion Filed ] (Month, Day and Year) _________________________________________________________________ ] JUSTICES ] PRESIDING JUSTICE ROBERT E. GORDON delivered ] the opinion of the court. ] CAHILL, J., dissents. ] McBRIDE, J., specially concurring. _________________________________________________________________ APPEAL from the] Lower Court and Trial Judge(s) in form indicated Circuit Court ] in margin: of Cook County;] Appeal from the Circuit Court of Cook County. the Hon:______ ] Judge Presiding] Honorable Dennis Dernbach, Judge Presiding.
_________________________________________________________________ For APPELLANTS ]Indicate if attorney represents APPELLANTS or John Doe of ]APPELLEES and include attorneys of counsel. Chicago. ]Indicate the word NONE if not represented. 1-06-1314
For APPELLEES, ]_________________________________________________ Smith and ] Smith, of ] Baker & McKenzie, LLP Chicago. ] Chicago, Illinois 60601 Brown, ] Attorneys for Appellant of Counsel. ] Attn: Mark A. Oates, Angela C. Vigil and ] Jenny A. Austin ] OF COUNSEL ] ] ] ] Richard A. Devine - State’s Attorney - ] County of Cook ] Chicago, Illinois 60602 Also add atty. ] Attorneys for Appellee for third party] Attn: James E. Fitzgerald, Michelle Katz, and appellants ] Tasha Marie Kelly or appellees. ] OF COUNSEL ] ___________________(USE REVERSE SIDE IF NEEDED___________________