Rule 23 order filed 2015 IL App (5th) 130189 April 3, 2015; Motion to publish granted NO. 5-13-0189 April 20, 2015. IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 05-CF-1784 ) GARY WINGATE, ) Honorable ) Michael N. Cook, Defendant-Appellant. ) Judge, presiding. ________________________________________________________________________
JUSTICE MOORE delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Stewart concurred in the judgment and opinion.
OPINION
¶1 The defendant, Gary Wingate, appeals the dismissal, by the circuit court of St.
Clair County and at the second stage of proceedings, of his petition for postconviction
relief. For the following reasons, we affirm.
¶2 FACTS
¶3 The facts necessary to our disposition of this appeal follow. They are derived
from this court's review of the record on appeal, as well as from our earlier disposition in
this case, in which, on direct appeal, we affirmed the defendant's convictions and his
sentence. People v. Wingate, No. 5-09-0267 (2010) (unpublished order under Supreme
1 Court Rule 23). As we explained therein, the defendant was charged with first-degree
murder, aggravated discharge of a firearm, and aggravated unlawful use of a weapon, all
in connection with the shooting death of Darlene Russell on November 1, 2005. The trial
court granted the defendant's motion to sever the aggravated-unlawful-use-of-a-weapon
charge, and the State elected to proceed on the remaining counts.
¶4 Andre Garrett testified at the defendant's jury trial as follows. On November 1,
2005, he was living with his wife, Darlene Russell, at 5204 Caseyville Avenue in
Washington Park, Illinois. Garrett saw the defendant, who lived nearby, walking down
52nd Street. Garrett approached the defendant, whom he had known for more than 20
years, to speak with the defendant about some money the defendant owed Russell. As
Garrett approached, the defendant raised his fists and began to talk "crazy." Fearing that
the defendant would strike him, Garrett punched the defendant, knocking him down.
Garrett testified that he was a former amateur boxing champion and that he "never owned
a gun, never carried a gun." After knocking down the defendant, Garrett went back into
his house. Russell then went to speak with the defendant. Garrett followed her, telling
her to come back inside. Garrett saw the defendant in a nearby yard and saw a person he
knew as "Torre" (Torrian Hopkins), who had been with the defendant when Garrett
punched him, across the street, walking across a field. Garrett urged Hopkins to stop and
talk with him, but Hopkins continued walking and said, "I ain't got nothing to do with it."
¶5 Garrett then heard a sound he described as "du-du-du-du-du." He turned and saw
the defendant on his knees and firing a weapon in Garrett's direction. At first, Garrett
thought the defendant was firing blanks, but when he heard gunfire strike his house, he 2 and Russell ran to the house. As Russell was standing on the porch reaching for the door,
she was struck and killed by gunfire. The shooting stopped, and when Garrett arrived at
the porch, he saw blood on it. Garrett turned and saw the defendant fleeing through an
alley carrying "a big rifle."
¶6 Keith McNeal testified that on November 1, 2005, he was at the home of his
cousin, Bryan Turner, at 1542 North 52nd Street, helping Turner repair an automobile.
Just to the south of Turner's house was the house where the defendant stayed. McNeal
saw Garrett and the defendant and heard them arguing about money. McNeal went inside
to get some tools, and when he came out, he saw the defendant lying on the ground. The
defendant got up and said that he was "going to get" Garrett. Turner then sent McNeal to
a nearby liquor store to purchase some soft drinks. As McNeal was walking back to
Turner's house, he heard the sound of gunfire. As he reached Turner's house, he saw
"somebody" walk down the alleyway and turn left onto 49th Street. McNeal could not
positively identify the man he saw in the alley, but his height and build were similar to
the defendant's.
¶7 Bryan Turner testified that he saw Garrett strike the defendant and knock him to
the ground. After Garrett left, the defendant got up and walked away. Douglas Scott
testified that on November 1, 2005, he was at Turner's house helping Turner and McNeal
work on a car. The defendant was outside the house next door. Garrett walked up and
the two men began arguing about money. Garrett struck the defendant, knocking him to
the ground. Garrett walked away. After about 10 or 15 minutes, the defendant got up
and went into his house. Russell came over to Garrett and tried to calm him down. The 3 defendant came out of his house carrying an "AK-47" and went towards the alley. The
defendant then began shooting at Garrett. The defendant knelt as he fired. He stood up,
walked toward Garrett's house, knelt, and then fired some more. Garrett was running
from the defendant, toward his house. Scott saw Russell "laying [sic] there." The
defendant then ran away, still holding the rifle.
¶8 Willie T. Lee testified that on November 1, 2005, he was outside his automobile
repair business when he heard the sound of gunfire. Shortly thereafter, Lee saw "[a]
black guy" with a rifle coming up the alley towards him. The man turned down a street,
walked up three houses, and went into an abandoned building. Lee did not see the man's
face clearly but described him as being short, with a stocky build. Dennis Janis, a crime
scene investigator with the Illinois State Police, testified that on November 1, 2005, he
was directed to the vicinity of Caseyville Avenue and 52nd Street in Washington Park,
Illinois. Garrett's house had sustained damage that was "consistent with gunshot
damage." Janis recovered "a projectile" from the side door of the house and "a bullet
jacket" from a "porch post." Two vehicles near the house had also been damaged by
gunfire. Janis recovered "a projectile and a fragment" from one of the vehicles. Janis
searched the vicinity around Garrett's house and found a number of "discharged 7.62
cartridge cases." Janis also searched an abandoned house nearby, where he found an
"assault rifle" under a mattress. The following day Janis attended Russell's autopsy. The
pathologist removed a "jacket and fragment" from Russell's body, which Janis collected
and preserved. After the autopsy, Janis returned to the Garrett residence, where he found
further gunshot damage inside the kitchen. He also found several bullets and bullet 4 fragments inside the residence.
¶9 Benjamin Koch, a crime scene investigator with the Illinois State Police, testified
that when he arrived at the crime scene, a detective asked him to help search an
abandoned house nearby. In the living room, Koch lifted a mattress off the floor and
found an "assault rifle." Koch contacted Janis, who took possession of the rifle. James
Hall, a forensic scientist specializing in firearms and tool mark identification, testified
that his testing demonstrated that the cartridge cases and the bullet and bullet fragments
found at the scene, as well as the bullet fragments recovered from Russell's body, all
came from the rifle.
¶ 10 The defendant testified as well, stating that on November 1, 2005, he and his
nephew, Torrian Hopkins, were standing outside his house when they were approached
by Andre Garrett. The defendant had borrowed money from Russell and was late paying
it back. When Garrett asked the defendant if he had Russell's money, the defendant
replied that his check had not arrived and that the defendant would pay him as soon as it
did. When the defendant looked away briefly, Garrett struck him twice, knocking him
down. When he regained consciousness, he got up off the ground. Hopkins was gone
and no one else was around. The defendant then walked a few feet to the fence in his
yard and grabbed his "assault rifle." The defendant claimed that he retrieved his rifle
because Garrett was "a drug dealer" and "a loan shark" who was "known for carrying
guns," and the defendant assumed that Garrett "had gone home to get a gun." The
defendant had been in Garrett's house before and had seen guns there. As the defendant
stood by his fence holding the rifle, he saw Garrett emerge from his house and begin to 5 walk in the defendant's direction. The defendant stepped out into the street to show
Garrett that he was armed, but Garrett continued walking toward him. Although the
defendant did not see a weapon in Garrett's possession, he began firing at Garrett in order
to frighten him. He was not trying to hit Garrett. When the defendant started shooting,
Garrett stopped. The defendant then stopped shooting. He saw Garrett "reach[ ] down
his side like he was going in his pocket." Suspecting that Garrett was reaching for a
weapon and not wanting to wait until Garrett had the weapon in hand, the defendant
began firing again. Garrett turned and ran towards his house but stopped and knelt
between two vehicles in his driveway. Believing that Garrett was going to start shooting
at him, the defendant continued to fire in the direction of the vehicles. At that point, the
defendant was trying to hit Garrett but was acting out of fear for his own safety and a
desire to defend himself. The defendant did not see Russell at any point during the entire
episode. After he stopped shooting, the defendant ran down the alley and to a nearby
abandoned house, where he left the assault rifle. He then went to a friend's house in East
St. Louis, where police arrested him the following day.
¶ 11 At the conclusion of the trial, the jury was instructed on both self-defense and
second-degree murder, under both the serious-provocation prong and the unreasonable-
belief prong, as well as first-degree murder and aggravated discharge of a firearm, the
two charged offenses. The jury found the defendant guilty of first-degree murder and
aggravated discharge of a firearm.
¶ 12 On November 26, 2006, the defendant filed a posttrial motion for a new trial,
arguing, inter alia, that the State failed to prove him guilty beyond a reasonable doubt of 6 the charges. On April 13, 2007, he filed an amended posttrial motion arguing that trial
counsel, Karen Craig, had rendered ineffective assistance of counsel for failing to call
Torrian Hopkins as a witness because Hopkins could have testified that Garrett was
armed with a firearm when he approached the defendant. On March 7, 2008, the
defendant filed a second amended posttrial motion, adding an allegation that Craig had
rendered ineffective assistance by failing to argue that the defendant was unfit to stand
trial. The defendant also filed a petition pursuant to section 104-11 of the Code of
Criminal Procedure of 1963 (725 ILCS 5/104-11 (West 2006)) requesting the trial court
to appoint an expert to examine the defendant and to determine whether the defendant
had been fit to stand trial. The trial court appointed Dr. Daniel Cuneo to examine the
defendant.
¶ 13 On November 12, 2008, a hearing was held on the defendant's fitness petition and
on the ineffective-assistance allegations of his posttrial motion. The defendant testified
that he had told Craig that Hopkins had witnessed the incident but that she failed to
contact him. The defendant also testified that at the time of the trial he was "hearing
voices" and "seeing things" and that he did not understand the nature and purpose of the
proceedings against him. The defendant testified that he had asked Craig to request a
fitness hearing but that she had not done so. The defendant introduced into evidence the
August 31, 2003, reports of Drs. Patel and Bermani, which indicate that the defendant
suffers from major depression, and the July 8, 2004, and September 14, 2004, reports of
Dr. Katzman, which indicate that the defendant suffers from schizoaffective disorder.
¶ 14 Dr. Cuneo testified that he is a clinical psychologist and has performed between 7 4,000 and 5,000 fitness examinations. Dr. Cuneo examined the defendant's medical
records and interviewed him on several occasions. It was Dr. Cuneo's opinion that the
defendant was feigning his reported psychiatric symptoms to avoid prosecution. Dr.
Cuneo opined that at the time of his trial the defendant had been able to understand the
nature and purpose of the proceedings against him and was able to assist in his own
defense.
¶ 15 Defense counsel Karen Craig testified that when she first spoke with the
defendant, he had indicated that a person he knew as "Tori" (Torrian Hopkins) had been
present during his argument with Garrett but that he did not know "Tori's" last name or
address. The defendant also told Craig that Hopkins had already left the scene when the
defendant regained consciousness and went to retrieve his rifle. Shortly before trial Craig
again spoke with the defendant regarding Hopkins, but the defendant still could not
provide her with any more information regarding him. Craig explained that because the
defense strategy of self-defense turned on what happened after the defendant had
retrieved his rifle and was approached by Garrett the second time, any testimony Hopkins
could provide would be of limited value because he had already left the scene by then.
Craig further testified that at no time did she observe anything regarding the defendant's
demeanor that would lead her to suspect that there was a bona fide doubt regarding his
fitness to stand trial.
¶ 16 The trial court denied the petition for a fitness determination, finding that the
defendant had been fit to stand trial. The trial court also denied the defendant's second
amended posttrial motion with respect to the allegations of ineffective assistance of 8 counsel, finding that Craig had not been ineffective for having failed to pursue the
Hopkins matter further, given the defendant's inability to demonstrate that Hopkins could
have provided any pertinent information.
¶ 17 On February 19, 2009, the defendant filed a third amended posttrial motion,
arguing, inter alia, that subsequent to his trial and to the filing of his original posttrial
motion, he learned of "newly discovered evidence" which would support his claim of
self-defense. Specifically, the defendant alleged that Torrian Hopkins would testify that
the defendant saw Garrett with a gun prior to shooting at him. Attached to the motion
was an affidavit from Hopkins wherein Hopkins averred that after Garrett knocked the
defendant to the ground, he went into his house and came back out with a gun in his
hand. It was after the defendant saw the gun that he went and got his own rifle and began
shooting at Garrett.
¶ 18 A hearing on the defendant's third amended posttrial motion was held on March
12, 2009. Torrian Hopkins testified that on November 1, 2005, he was talking to the
defendant when Garrett approached and asked the defendant for the money he owed
Russell. The defendant said he did not have it because his check had not arrived. Garrett
became angry and told the defendant that he then owed double the amount. When the
defendant stated that he would not pay double, Garrett punched him, knocking him down.
As Hopkins helped the defendant up, Garrett walked away and went into his house.
Hopkins then started walking towards the middle of the street. He saw Garrett coming
back out of his house carrying something that appeared to be a gun. As Hopkins
continued walking, he heard some gunshots. He then "struck off" across the street. On 9 cross-examination, however, Hopkins stated that he had not seen a gun but had
"assumed" that Garrett had a gun and that other people had said that Garrett had a gun.
The trial court denied the defendant's third amended posttrial motion, finding that
Hopkins's testimony would not lead to a different verdict on a retrial and that the
remaining claims did not warrant a new trial.
¶ 19 A sentencing hearing was held on April 20, 2009. The defendant was sentenced to
50 years' imprisonment. The defendant subsequently filed a motion to reconsider his
sentence, arguing that for a 46-year-old man, a 50-year sentence was tantamount to a life
sentence. The trial court denied the motion, finding that while the possibility of
rehabilitation was an important consideration, a 50-year sentence was appropriate given
the defendant's criminal history.
¶ 20 After this court affirmed the defendant's convictions and sentence on direct appeal,
the defendant, on October 20, 2011, filed pro se a petition for postconviction relief.
Therein, the defendant claimed that, based upon "newly discovered evidence," he was
"actually innocent" of the crimes of which he was convicted. Attached to the petition
was the affidavit of one Jeff Mosley, dated April 29, 2011, who averred that he too
witnessed the events of November 1, 2005. Mosley averred that he had been conversing
with Garrett, that he watched the first encounter between Garrett and the defendant from
"about 25 feet away," and that Garrett twice struck the defendant in the face with a silver
handgun, knocking the defendant down. Mosley averred that Garrett then walked past
Mosley and into Garrett's home. Mosley averred that Mosley "stayed standing there and
waiting on him to come back out," and that when Garrett did come back outside, "[a]bout 10 two minutes" later, Garrett did so "with his gun in his hand." Mosley averred that he
observed the defendant "grab a big gun *** and point it in [Garrett's] direction," and
that because both men now had guns, Mosley "took cover and continued to watch." He
averred that during this second encounter with the defendant, Garrett raised "his gun in
the direction of" the defendant, and that when the defendant then opened fire, Garrett
"took off running back towards his house and when he got there he ducked in between his
trucks in the driveway." Mosley did not describe what happened next, nor did he
describe the killing of Russell by the defendant. Mosley further averred that he waited
several years to come forward because he was a "close friend" of Garrett and Russell and
had "mixed emotions about coming forward." He also averred, "During all the
commotion between [the defendant] and [Garrett] it was impossible for [the defendant] to
know I was out there or I had witness [sic] what [Garrett] did and attempted to do to [the
defendant]."
¶ 21 Counsel was appointed for the defendant and an amended petition for
postconviction relief was filed on September 28, 2012. A second amended petition for
postconviction relief was filed by counsel on December 21, 2012 (the petition). It alleged
ineffective assistance of trial counsel, including on the basis of the failure of counsel to
locate witness Jeff Mosley prior to trial, and it alleged actual innocence on the basis of
Mosley's affidavit, which was again attached to the petition as an exhibit. The State
moved to dismiss the petition, and a hearing was held on the State's motion on March 20,
2013. At the conclusion of the hearing, the trial court dismissed the petition, and this
11 timely appeal followed.
¶ 22 ANALYSIS
¶ 23 On appeal, the defendant contends the petition should have advanced to a third-
stage evidentiary hearing because the petition "made a substantial showing that [the
defendant] was actually innocent based on Jeff Mosley's affidavit." He claims "Mosley's
affidavit constitute[s] newly discovered evidence because neither [the defendant], nor his
attorney, could have discovered that Mosley" was a witness to the events of November 1,
2005. He also claims that had the jury heard Mosley's version of events, "the result of the
trial would have likely been different." The State counters that the defendant's claim, as
supported by Mosley's affidavit: (1) is positively rebutted by the record; (2) does not
establish that the defendant is actually innocent; (3) cannot be construed to be newly
discovered evidence; and (4) would not probably change the outcome of a new trial.
¶ 24 We begin by noting our standard of review. When a trial court dismisses a
petition for postconviction relief at the second stage of proceedings, we review that
dismissal de novo, taking as true all well-pleaded facts that are not positively rebutted by
the trial record. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). To be entitled to a
third-stage evidentiary hearing, a petition for postconviction relief must make "a
substantial showing of a violation of constitutional rights." People v. Coleman, 183 Ill.
2d 366, 381 (1998). In Illinois, petitioners may "assert a freestanding claim of actual
innocence based on newly discovered evidence." People v. Ortiz, 235 Ill. 2d 319, 333
(2009). The evidence that supports such a claim "must be newly discovered; material and
not merely cumulative; and 'of such conclusive character that it would probably change 12 the result on retrial.' " Id. (quoting People v. Morgan, 212 Ill. 2d 148, 154 (2004)).
"Newly discovered" evidence is "evidence that has been discovered since the trial and
that the defendant could not have discovered sooner through due diligence." Id. at 334.
"The focus of a freestanding claim of actual innocence is on the new evidence itself and
whether it would totally vindicate or exonerate the defendant." People v. Flowers, 2015
IL App (1st) 113259, ¶ 33. Where, as in the case before us, a claim of actual innocence is
dismissed at the second stage of proceedings, "the relevant question is 'whether the
petitioner has made a substantial showing of actual innocence such that an evidentiary
hearing is warranted.' " Id. (quoting People v. Lofton, 2011 IL App (1st) 100118, ¶ 34).
Moreover, "newly discovered evidence 'which merely impeaches a witness' will typically
not be of such conclusive character as to justify postconviction relief." People v.
Barnslater, 373 Ill. App. 3d 512, 523 (2007) (quoting People v. Chew, 160 Ill. App. 3d
1082, 1086 (1987)); see also People v. Harris, 154 Ill. App. 3d 308, 319 (1987) ("Newly
discovered evidence which merely has the effect of impeaching, discrediting, or
contradicting a witness does not afford a basis for a new trial.").
¶ 25 For the reasons that follow, we affirm the ruling of the trial court. The first reason
we affirm is that with regard to the requirement that the newly discovered evidence be of
such conclusive character that it would probably change the result on retrial (see People
v. Ortiz, 235 Ill. 2d 319, 333 (2009)), we agree with the reasoning of the Barnslater and
Harris courts, and conclude that any evidence Mosley might offer, which we take as true
for purposes of this appeal, would merely impeach Garrett's testimony that he "never
owned a gun, never carried a gun," and thus would not justify postconviction relief. See 13 People v. Barnslater, 373 Ill. App. 3d 512, 523 (2007) ("newly discovered evidence
'which merely impeaches a witness' will typically not be of such conclusive character as
to justify postconviction relief" (quoting People v. Chew, 160 Ill. App. 3d 1082, 1086
(1987))); see also People v. Harris, 154 Ill. App. 3d 308, 319 (1987) ("Newly discovered
evidence which merely has the effect of impeaching, discrediting, or contradicting a
witness does not afford a basis for a new trial."). Therefore, we decline to conclude that
Mosley's proffered impeachment testimony is of such conclusive character that it would
probably change the result on retrial. It simply is not.
¶ 26 A second, and independent, reason that we affirm the ruling of the trial court is
that we do not agree with the defendant's claim that Mosley's affidavit meets the criteria
to be construed as "newly discovered" evidence on the basis of the defendant's bald
assertions, in his brief on appeal, that "[t]here was no reason to know of Mosley's
presence at the scene *** before Mosley stepped forward several years later" and that
"neither [the defendant], nor his attorney, could have discovered that Mosley" was a
witness to the events of November 1, 2005. The appellate court has previously ruled that
a defendant seeking relief on the basis of newly discovered evidence bears the burden of
demonstrating "that there has been no lack of due diligence on his [or her] part." People
v. Harris, 154 Ill. App. 3d 308, 318 (1987). The appellate court's ruling in Harris is
consistent with the requirement, discussed above, that for purposes of seeking
postconviction relief, "newly discovered" evidence must be "evidence that has been
discovered since the trial and that the defendant could not have discovered sooner
through due diligence." People v. Ortiz, 235 Ill. 2d 319, 334 (2009). In People v. 14 Barnslater, 373 Ill. App. 3d 512, 525-27 (2007), the appellate court held that a defendant
was not entitled to an evidentiary hearing where his petition and accompanying
documents, even when taken as true and liberally construed in the defendant's favor at the
second stage of proceedings, failed to make a substantial showing that the defendant
could not have discovered the purportedly "newly discovered" evidence sooner through
due diligence on the defendant's part.
¶ 27 In his affidavit, Mosley claims he waited several years to come forward because
he was a "close friend" of Garrett and Russell and had "mixed emotions about coming
forward." Even if this assertion is treated as a statement of fact, and therefore is taken at
this point in the proceedings as true, it merely excuses Mosley's failure to come forward
sooner on his own accord, and it does not address the question of the due diligence of the
defendant in independently discovering Mosley as a witness. Mosley does not aver that
he was unavailable at any time prior to coming forward, and makes no other averment
that would allow us to conclude that he would not have offered his affidavit or testimony,
if asked, prior to the defendant's trial. Nor does Mosley make any other averment that
would allow us to conclude that he "essentially made himself unavailable as a witness,"
as did the witness in Ortiz. See 235 Ill. 2d at 334. Although Mosley speculates in his
affidavit, "During all the commotion between [the defendant] and [Garrett] it was
impossible for [the defendant] to know I was out there or I had witness [sic] what
[Garrett] did and attempted to do to [the defendant]," such speculation does not amount to
a statement of fact. To the contrary, it is a nonfactual and nonspecific assertion that
amounts to a conclusion; therefore, this court need not treat it as a well-pleaded fact that 15 must be taken as true at this stage of the proceedings and that is sufficient to require an
evidentiary hearing in this case. See, e.g., People v. Rissley, 206 Ill. 2d 403, 412 (2003).
¶ 28 Indeed, unlike the affidavit in question in Ortiz, which demonstrated that the
newly discovered witness was standing in a location "where he would not have been seen
by [the] defendant" (235 Ill. 2d at 334), Mosley's affidavit contains no such statement of
fact. To the contrary, the facts contained within Mosley's affidavit, taken as true, are that
he and Garrett were conversing just prior to Garrett's first encounter with the defendant,
which Mosley watched from "about 25 feet away." There are no facts in Mosley's
narrative that suggest he was in a location where he could not be seen by the
defendant−or for that matter by the other witnesses who were interviewed by police and
who testified at the defendant's trial−before, during, or after the defendant's first
encounter with Garrett, or during the early stages of the defendant's second encounter
with Garrett. Moreover, there are no facts that suggest that even when Mosley "took
cover and continued to watch" the escalation of the second encounter, he was in a
location where he could not be seen by the defendant. Because Mosley's affidavit, even
when taken as true and liberally construed in favor of the defendant, contains no
statements of fact that would support the contention that the failure to discover Mosley as
a witness prior to the defendant's previous trial was not due to a lack of due diligence on
the part of the defendant−and therefore because it does not support the contention that its
contents constitute newly discovered evidence that warrants an evidentiary hearing−the
defendant's argument that the petition should have advanced to an evidentiary hearing
because the petition "made a substantial showing that [the defendant] was actually 16 innocent based on Jeff Mosley's affidavit" necessarily fails.
¶ 29 Nevertheless, in the interests of justice, we will consider if any other evidence was
presented to the trial court that would demonstrate that the defendant had met his burden
of demonstrating due diligence so that Mosley's affidavit could be construed as newly
discovered evidence that would constitute a substantial showing of actual innocence
sufficient to warrant an evidentiary hearing. The defendant, in his sworn verification of
the petition, swore only that "the facts in this petition are true and correct in substance
and in fact." However, the petition itself, although filed by counsel, contains no facts
regarding the defendant's knowledge or lack of knowledge of Mosley's purported
witnessing of the shooting, and contains no other facts related to due diligence on the part
of the defendant to discover Mosley. It does not allege, for example, that the defendant
did not see Mosley at the scene of the crime, or that for some reason he could not have
seen Mosley at the scene of the crime, despite Mosley's averments as to his location as
the events unfolded; it does not allege that the defendant did not in fact know that Mosley
was at the scene of the crime; it does not allege that none of the other witnesses who were
interviewed by police failed to tell the police that Mosley was also at the scene of the
crime, and that therefore he could not have learned of Mosley's existence from those
witnesses or the police; it does not allege that the defendant did not learn of Mosley's
alleged witnessing of the shooting until Mosley came forward with his affidavit.
¶ 30 This is not to imply that all of the foregoing would be necessary to make a
substantial showing that the defendant's failure to discover Mosley prior to the
defendant's previous trial was not due to a lack of due diligence on the defendant's part. 17 The problem is that neither the petition nor its verification contains any facts that would,
if taken as true, validate the proposition that the defendant exercised due diligence in this
case with regard to discovering Mosley. On the basis of the record before us, we
conclude that this is not a case wherein well-pleaded facts, taken as true, merit the
proving ground of an evidentiary hearing; to the contrary, this is a case in which there are
no facts alleged that, even if true, would entitle the defendant to the relief he seeks.
Clearly, even the most liberal construction of an affidavit, petition, or sworn verification
cannot create from whole cloth facts that in no way exist therein. Accordingly, we hold
that the defendant has not met his burden of demonstrating that Mosley's affidavit is
newly discovered evidence that could not have been discovered earlier through due
diligence on the part of the defendant; therefore, the defendant did not make a substantial
showing of actual innocence sufficient to warrant an evidentiary hearing in this case.
¶ 31 A third, and again independent, reason that we affirm the ruling of the trial court is
that to the extent it could potentially reduce the defendant's liability from first-degree
murder to second-degree murder, the defendant's proffered evidence does not
demonstrate his actual innocence. At oral argument, we asked the parties to thereafter
provide supplemental argument and support therefor with regard to the question of
whether an actual innocence claim can encompass a situation in which the newly
discovered evidence might make the defendant guilty of a lesser offense, but not make
the defendant guilty of no crime at all. We have now received the supplemental materials
of the parties. The defendant reiterates that it is his position that on retrial, the newly
discovered evidence could lead to his complete acquittal, on the basis of self-defense, or 18 to his conviction for the lesser offense of second-degree murder. The defendant posits
that with regard to the latter situation, the relevant inquiry is whether a conviction for a
lesser offense is a "different outcome" than that of the first trial, and proposes to us that it
is. However, we conclude that the relevant inquiry with regard to the latter situation is
found within People v. Barnslater, 373 Ill. App. 3d 512 (2007).
¶ 32 Like the present case, Barnslater involves the dismissal of a defendant's petition
for postconviction relief at the second stage of proceedings. Id. at 513. In Barnslater,
our colleagues in the First District discussed claims of actual innocence based on newly
discovered evidence. They pointed out that previous decisions of the appellate court
make it clear that "actual innocence" refers not to whether a defendant has been proven
guilty beyond a reasonable doubt, but instead means "total vindication, or exoneration."
(Internal quotation marks omitted.) Id. at 520. Accordingly, "actual innocence requires
that a defendant be free of liability not only for the crime of conviction, but also of any
related offenses." Id. at 521.
¶ 33 After reviewing the materials submitted with the defendant's petition for
postconviction relief, and construing those materials liberally in the defendant's favor, the
Barnslater court held that because the purported newly discovered evidence in that case
did not demonstrate that the defendant, "even if 'not guilty' of aggravated criminal sexual
assault predicated on aggravated kidnaping, is 'actually innocent' of any crime against
Y.B., including lesser included offenses of aggravated criminal sexual assault such as
simple criminal sexual assault or criminal sexual abuse," the defendant was not entitled to
postconviction relief. Id. at 526-27. In the case at bar, the defendant argues that 19 Mosley's testimony, if consistent with his affidavit, "would support the claim of self-
defense and would also assist the jury in resolving whether [the defendant] should be
found guilty of second degree murder."
¶ 34 To the extent Mosley's proffered testimony could potentially reduce the
defendant's liability from first-degree murder to second-degree murder, we conclude that
pursuant to Barnslater, even if it did so, it would not support a claim of actual innocence.
See id. at 521 ("actual innocence requires that a defendant be free of liability not only for
the crime of conviction, but also of any related offenses"). Accordingly, the defendant
has not made a substantial showing of actual innocence on this basis.
¶ 35 To the extent Mosley's proffered testimony could potentially lead to the
defendant's complete acquittal, on the basis of self-defense, we conclude that even if we
assume, arguendo, that the testimony would under those circumstances be exonerating to
the extent it could support a claim of actual innocence, that would not assist the defendant
in overcoming the infirmities that justify us in affirming the trial court's ruling for the two
other independent reasons discussed above.
¶ 36 CONCLUSION
¶ 37 For the foregoing reasons, we affirm the dismissal of the defendant's petition for
postconviction relief.
¶ 38 Affirmed.
20 2015 IL App (5th) 130189
NO. 5-13-0189
IN THE
FIFTH DISTRICT _____________________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) St. Clair County. ) v. ) No. 05-CF-1784 ) GARY WINGATE, ) Honorable ) Michael N. Cook, Defendant-Appellant. ) Judge, presiding. _____________________________________________________________________________________
Rule 23 Order Filed: April 3, 2015 Motion to Publish Granted: April 20, 2015 Opinion Filed: April 20, 2015 _____________________________________________________________________________________
Justices: Honorable James R. Moore, J.
Honorable Judy L. Cates, P.J., and Honorable Bruce D. Stewart, J., Concur _____________________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, for Dan W. Evers, Assistant Appellate Defender, Fifth Judicial District, 909 Appellant Water Tower Circle, Mt. Vernon, IL 62864 _____________________________________________________________________________________
Attorneys Hon. Brendan F. Kelly, State's Attorney, St. Clair County, 10 Public Square, for Belleville, IL 62220; Patrick Delfino, Director, Stephen E. Norris, Deputy Appellee Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, 730 E. Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864 _____________________________________________________________________________________