FIRST DIV ISION SEPTEMBER 08, 2008

No. 1-06-1314

THE PEOPL

E OF THE

STATE OF

IL LI NOI S, ) Appeal from the

) Circuit Court of Plaintiff-Appellee, ) Co ok Co un ty. ) v. ) No. 92 CR 21083 ) SALVADO R ORT IZ, ) Honorable ) Dennis Dernbach, Defend ant-App ellant. ) Judge Presi ding.

PRESID ING

JUSTICE

ROBERT E. GORDON d elivere d the opini on of the c ourt: Defe ndan t Salv ador

Ortiz appe als th

e den ial of his th ird po stcon

victi on pe titio n. We

revers e the ru ling o f the t rial c ourt a nd rem and fo r new t rial. In Februar y 1994, fo llow ing a bench tr ial, def endant w as found g

uilty of first d egree murder a nd sentenced to 47 y

ears in prison. D efenda

nt’s conviction an d sentenc e were affirme d 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 defe ndant, one of the leaders of the La

tin Eagles, to Gill Park. Estavia testified that he has never been a member ofNo. 1-06-1314

2

the Latin Eagles or

any other street gang. While sitting on the hood of his automobile, he saw codefendants Oscar Chacon (Osca r) 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 wal

ked with th

e victim to

the west s ide of the

park. Es tavia sa

w Oscar and Gome z begin to physically

beat the victim and then saw other members of the codef endants’ gang, including defendant, come from other locations in the park and join in the bea ting. Estavia then testified he left the area. Estavia admitted telling police on Aug ust 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. Howeve r, during a deposit ion taken after h is stateme nt to police

and prior to trial, E stavia 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 a nd coca ine when he gav e the poli ce the st

atement. On redir

ect examin ation, Est

avia testified that he was under the influence of drug s and alcohol during his deposition, but was not intoxicated from alcohol or drugs when he gave his statement to the police. Estavia f urther te stified th at an unknown pers on had thr eatene d his wife

at work in August 1992 and that his automobile windows were shot out sometime after he went to the police. I n addition , his niec e had be en threa tened at school wh

en she wa s told that t

here would be problems if Estavia testified. Estavia was later placed unde r protective custody

in 1993 after he claimed an unkno wn perso n shot at him. On May 4, 1993, Es tavia g ave ano ther stat ement inNo. 1-06-1314

3

the presence of a court repor ter to private investigators hired by defendant recanting the statement he had previously given to police. He denied telling police that a hig h-ranking member of the Latin Eagle s was present when he gave the statement. Estavia’s testimony was fur ther tainted when he failed to appear in cour t at two earlier trial dat es, and a warran t was issue d for his a

rrest. E stavia a

ttempted t

o flee wh en police came to his home, a

rrested him and br

ought him

to court, where a

petition f or conte mpt was fi led aga

inst him. A police officer brought him to court when he testified on F ebruary 24, 1994. He testified he was not offered any

deals regarding his pending contempt charges at the time of his testimony

.
Edwin Villariny, a for

mer member of the La

tin Eagles, also testified for the State. He knew defendant from the Gill Park neighborhood a nd denied at trial being in the area on June 28, 1992. However, he provided a statement to the police that he wa s at Gill Park with defendant and codefendants the night of the shooting. His stateme nt further corroborated Estavia’s trial testimony that defendant shot the victim once a s he fled and that Oscar shot the victim an additional four times. Villariny also told the police in his statement that he sa w a third, unknown man on a bicyc le follow the victim and shoot him a sixth time. Villariny repeated the informat ion in his sta

tement be fore the grand jury , but rec anted ev ery

thing at defenda nt’s tria l, testifying he

was not at Gill Park on the night in question. He confirmed that he ga ve the police the written statement, but testified it was coerced and untrue. He claimed that the police interrogated him for two day s while he was handcuffed to a wall, and he w as struck by a police officer. He further claimed that the police threatened to charge him with a nar cotics offense andNo. 1-06-1314

4

call the Department of Children and Family Services on his family. Detective John Murray a

nd Assistant State’s Attorney Patrick McG uire both testified denying Villariny’s claims of coe rcion and brutality. The State also offered into evidence Osca r’s statement to the police admitting that he shot the victim and that a second person riding a bicy cle on Sheridan Road also shot the victim, but that they were

the only shooters. Osca

r refused to identify

the man on the bicyc le. 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 recove red from his body, including one .32-caliber and four .22-caliber bullets. The medical examiner testified that the patter n of gunshot wounds indicated that at least four bullets entered from the victim’s back a nd went through to the front of his body. He found no evide nce of close-range f

iring, which he defined as gunshots taken f rom 18 inches to 2 feet from the victim. Defend ant called his frie

nd Arthur Dunlam, w

ho was a V

ietnam War

vetera n 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 a nd heard what sounded like shots being fired but did not see any one shooting or fi ghting and did no t partici

pate in a ny e vents with

the victim

. The trial court found defendant guilty of first degree murder and se ntenced him to 47 years in prison. De

fendant’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). De fendantNo. 1-06-1314

5

filed a postconviction petition claiming actual innocence and inef fective assistance of counsel that was summarily dismissed. The dismissal was later a ffirmed 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 broug ht 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 Chac on on a bicycle shoot at the victim three times. He did not mention defendant in his affidavit. Ocasio, a former member of defendant’s g ang, said he did not come forward with this information sooner be ca us e h e f

ea re d f or hi s s af

et y. The trial court found the affidavits did not constitute newly discovered evidence and were cumulative of the evidence at trial. The trial court dismissed defe ndant’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 actua

l innocence based on affidavits by Sigfriedo Hernandez, Daniel Huertas and Victor Ocasio. The trial court held an evidentiar y hearing on the petition. Hernandez testifie d at the he aring t

hat he kne

w defen dant bec ause the

y w ere both

members o f the same street gang. Herna

ndez said he was at Gill Park on the night in question. When Hernandez entered the park, he saw Oscar , Efrain Chacon (Efrain) and Migue l Renteria beating the victim.No. 1-06-1314

6

Hernan dez said he

walked a way from the b eating

to meet a f

riend wh o gave

him mariju ana to sell. After obtaining the marijuana, Hernandez began walking out of the park. As he wa s leaving, Hernandez saw Oscar and Efrain on their bicycles, pursuing the victim on Sheridan Road. Hernandez saw Oscar and Efra in leave their bicy cles, pull out guns and point those guns at the victim. Hernandez said that he then heard gunshots. Her nandez denied seeing defendant at the pa rk. When a sked during cro ss-examina tion why he did not c ome forw ard with t his account sooner, Hernandez explained he and defe ndant were not close and had been in conflict. Hernandez and defendant had been da ting the same girl, and defendant became angry and often tried to have him arrested or beaten. Hernandez testified that he did not tell any one what happened that night because he was afraid that othe r member s of the L

atin Eag les would k

ill him if he

did. He mo ved to Wisc onsin 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 compe lled 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 beca use h e fel t bad for her. H erna

ndez s aid h e fin ally

came forw ard w ith the inf

orma tion “ [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 ey e-witnesses at the trial knew the defendant and sa id that the defendant was the shooter. This case did not deal with an identifica tion issue but rather a question of credibility and the court found the two ey e-No. 1-06-1314

7 witnesses to be credible. Therefore this court finds that *** He rnandez’s testimony was cumulative when w eighed against the other two eyewitnesses who testified during the trial.” The trial court denied defendant’s postconviction petition and this appeal followed.

ANA LYSIS A postcon

viction pe titioner i s entitled

to an evid

entiary 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 manife stly erroneous. Coleman , 183 Ill. 2d at 384-85. A trial cou rt’s find ing is ma nifestly errone ous wher

e an oppo site conc lusion is cl early evident, plain and undisputable. People v. Morgan , 212 Ill. 2d 148, 155 (2004). Not every c onstitutional 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 a n earlier proceeding ar

e properly

raised and considered. Morgan , 212 Ill. 2d at 153. For this reason, the Post-Conviction Hearing Act (Act) (725 IL

CS 5/122-1 et seq . (West 2004)) contemplates the filing of only one postconviction petition. 725 IL CS 5/122-3 (West 2004) (“[a]ny claim of substantial denial of c onstitutional rights not raised in the original or an amended petition is waived”); see also Morgan , 212 I ll. 2d at 15 3. The sta

tutory bar toNo. 1-06-1314

8

successive postconviction petitions will be relaxed only in the intere st of fundamental fairness. Morgan , 212 Ill. 2d at 153. Befor e discuss ing the m

erits of d efenda nt’s postc onviction

petition, t

his court must consider the State’s argument that the trial court should not have a llowed a successive postconviction petition. The State argues that the Post-Conviction Hearing Act c ontemplates the filing of only one

petition per defendant, and that to qualify for a successive petition, the new petition mu st satisfy

the caus e-and- prejudic e test disc ussed by the I llinois Supr

eme Court

in People v. Pitsonbarger . 205 Ill. 2d 444, 459 (2002). The State arg ues that defendant did not satisfy this test, and thus, the trial court should have de nied the petition outright. We find that the State’s argument is not persuasive. The “cause-and-prejudice test as de fined 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 Gene ral 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 A ct. Subsection (f) states in full: “Only one petit ion may be filed by a petitione r under t his Article without leave of the court. L eave of court may

be granted only if a petit ioner de monstrate s cause f

or his or h

er failu re to bring the claim in his or her initial post-conviction proceedings a ndNo. 1-06-1314

9 prejudice results from that failure. For purposes of this subsection (f): (1) a prisoner shows cause by identifying a

n objective factor that imped

ed his or h

er abilit y to raise a specific claim dur

ing his or her initial post-conviction proceedings; and (2) a pr isoner shows prejudice by de

monstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting convicti on or sent

ence vio lated due

process .” 725 I

LCS 5/122-1 (West 2004). After the legislature adopted the Pitsonbarger cause- and-pre

judice te st, our sup

reme court decided People v. Morgan , 212 Ill. 2d 148 (2004). Although the Morgan decision analyzed ca

use and prejudice, it did not cite the newly enacted subsection (f). 725 I LCS 5/122-1 (West 2004). Presumably beca use 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 a nd prejudice under the statute, because the de finitions of cause and prejudice in these cases ar e 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 oc curs when the issue so infected the trial that the resulting conviction or sentence violated due process).No. 1-06-1314

1 In Morgan , the State

conced ed that the defendant had m et the ca use-and -prejud

ice test because of “ ‘the seriousness of an a ctual 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 c laim of actual innocence satisfied the cause- and10 In sum, under both statute and case la w, a petitioner seeking to establish fundamental fairne ss to bring

a succe ssive post

convicti on petition

must show: ( 1) good

cause f or failin g to raise the claimed error in an ear lier proceeding; and (2) actual prejudice resulting from the error. 725 I LCS 5/1 22-1(f) (West 2004 ); Morgan , 212 Ill. 2d at 153. “Cause” is “an objective factor that imped

ed [petitio ner’s] ab ility

to raise a specific claim dur

ing his or her initial postconvicti on proce edings. ” 725 I LCS 5/1 22-1(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 a n earlie r proce eding” ). Prejud

ice exists w

here the petitione r can sho w that “th

e claim not raised during his or her initial post-conviction proceeding s so infected the trial that the resulting convicti on or sent

ence vio lated due

process .” 725 I

LCS 5/1 22-1(f) (2) (West

2004); Morgan , 212 Ill. 2d at 154 (“‘Prejudice’ e xists where the defendant can show that the claimed constitutional error so infected his trial that the resulting conviction violated due proc ess”) . The State argue s on appe al that de

fendant failed to show cau se and pr

ejudice , and his

success ive postc onviction petition w as prope

rly denied under sec tion 122-3 of the Ac t (725 I LCS 5/122-3 (West 2004)). However, in Pitsonbarger , our supreme court stated that a showing of actual innocence 1 will excuse a failur e to show c ause and

prejudic e:No. 1-06-1314

prejudice test. 11

“We hold today that the ca use-and-prejudice test is the analy tical tool that isto be used

to deter mine whet

her fund amental f

airness require s that an e

xception be

made to section 122- 3 so that a claim rais ed in a suc cess ive p etiti on ma

y b e con sider

ed on its me rits. We reaffirm that even if the petitioner cannot show ca use and prejudice, his failure to raise a claim in an ear lier petition will be excused if necessary

to prevent a fundamental miscarriage of justice. To demonstrate such a miscarriage of justice, a petitioner

mu st sh ow ac tu al in no ce nc e o r, in th e c on te xt of th e d ea th pe na lt y, he must sho w that but f

or the cl aimed co nstitutiona l error h e would not have been found eligible for the dea th penalty.” Pitsonbarger , 205 Ill. 2d at 459. In other words, fundamenta l miscarriages of justice will not be tolerated in favor of finality. Morgan , 212 Ill. 2d at 154 (“The conviction of a n innocent person violates the due process clause of the I

llinois Constitution”). See also People v. Brown , 225 Ill. 2d 188, 206 (2007) (actual innocence was listed as an e xception 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 e ffect, its exception for actual innocence still applies. First, as noted before, its definitions of ca use and prejudice areNo. 1-06-1314

12

very similar to t

he defin itions ado pted by the leg islature

for the s ame term s, and thusits discussions of those terms are still instructive. Second, as noted before, the legislature adopted the caus e-and- prejudic e test fr om Pitsonbarger . Third, in appellate court cases involving postconviction petitions filed after January 1, 2004, whe n section (f) became effective, several districts of the appellate court have concluded that the ac tual innocence exception still applies. People v. Anderson , 375 Ill. App. 3d 121, 144-45 (1st Dist. 2007) (defenda nt’s failure to raise a claim in hi s earlie

r postcon viction pe tition will b e excused

if he ca n demonstr

ate eithe r “caus e and prej udice or

actual in nocenc e”); People v. Coleman , 381 Ill. App. 3d at 561 (3rd Dist. 2008) (if “a petitioner cannot meet the cause a nd prejudice test, the failure to bring a claim in a pr ior postconvi ction pet

ition will be

excused”if he ca

n “show a ctual inn ocence ”); People v. Daniel , 379 Ill. App. 3d 748, 750 ( 4th Dist. 2008) (in addition to a showing of ca use 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 c ourt affirmed dismissal of postconvi ction pet

ition of de

fendant who claim

ed actua l innocence, bec ause he h ad faile d to show cause and prejudice). Since the actual innocence exception still applies, and the defendant has made a showing of actual innocenc e, this court must now analyze the mer its of the petition in the case at bar. Defendant contends on appeal that he should be g ranted a new trial because the trial c ourt refused to consider ey

ewitness testimony as sufficient to support a c laim of actual innocence and because the trial court failed to consider the trial e vidence in light of the new testimony

.No. 1-06-1314

13

Defend ant arg

ues that th

ese act ions amoun

ted to man

ifest er rors on th e part of the trial court, theref ore entitling him t

o a new tr ial. “In I llinois, newly discovered evide nce warrants a new trial when: (1) it has been discovered since the trial; (2) it is of such a chara cter that it could not have been discovered prior to the tria l by the exerc ise of due

diligence; (3) it is mater

ial to the i ssue but not merely cumulative; and (4) it is of such a conclusive characte r that it will probably chang e the result on retrial.” People v. Williams , 295 Ill . App. 3d 456 , 462 ( 1998) , citi ng People v. Molstad , 101 I ll. 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 a rgument that Hernandez’s testimony warranted a new trial and that the trial court committed manifest error in deny ing a new trial. Hernandez’s testimony is newly

discovered, material, and noncumulative, and probably would have changed the result on retr

ial. Her nandez no t only

testifie d that Osc ar shot the victim, h e was the only witness who identif

ied the ot her shoot er as Ef rain, Osc ar’s br

other. Th e trial c ourt err

ed when it found tha t the testi mony

was cumulative and when it f ailed to c onsider its effect on the re sult 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 cou rt did not sp ecifica

lly s tate whe

ther it co nsidere d Herna

ndez’s te stimony

to be new lyNo. 1-06-1314

14

discovered, but the fact that the court gra nted an evidentiary

hearing following a review of the affidavit indicates that the trial court did consider the testimony to be newly discover

ed. Defendant discovered Hernandez’s testimony when Hernandez spoke with defendant’s mother over 10 yea

rs after the trial. Given defendant’s alibi that he wa s drinking beer on the other side of the fie ldhouse w

here he could not h ave see

n Herna ndez or the

crime, th ere is no reason t o sugg est th at de fend ant k

new H erna

ndez h ad wi tness ed th e crime. A ccor ding to He rnan dez, Oscar a nd Efrain Chacon s aw him the re, but th e two men w ere not g oing to di vulge th is knowledge since Hernandez would be testify ing 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. Defend ant 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 ca se was convicted based large ly on the testimony

of an eye witness to the crime. Molstad , 101 Ill. 2d at 134. The defendant ha d presented alibi testimony at trial. Molstad , 101 Ill. 2d at 134. I

n a postrial motion prior to sentencing, the defendant prese nted the affidavits of five codefendants, all of which stated that the defe ndant 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 cumulativ e becau se it would create new ques tions in the

mind of the

trier of fact, sin ce it wen t to an ultimate issue in the case: “Who was present at the time of the attack[?]” Molstad , 101 Ill. 2d at 135.No. 1-06-1314

15

In the case at bar, He rnandez’ s testimony

was mate rial and not cumula

tive. Evid

ence is considered cumulative where it “adds nothing to wha t [was] already befor

e the jury.” Molstad , 101 Ill. 2d at 135. The trial court determined tha t Hernandez’s testimony did not warr ant a new trial because the testimony was “cumulative when weighed ag ainst the other two eye witnesses who testified during the trial.” Seemingly , the trial court’s logic was that because the fact finder had alre ady

heard th e testimon

y of two ey ewitness es, the te stimony of anothe r eyewitnesswould not add anything

to what was already

before the fact finder. Howeve r, as in Molstad , this new eyewitness testimony

was not cumulative because it would create new que stions in the mind of the trier of fact , since it a

lso went to

an ultimat

e issue in the case : “Who was p

resent a t the time of the [shooting?]” Molstad , 101 Ill. 2d at 135. I n addition, the claimed two eye witnesses to the shooting recanted their testimony at trial, and the new eyewitnesses implicated the codefendant’s brother, which explains why the c odefendant did not identify the other shooter. Based on our supreme court’s decision in Molstad that the e yewitness te stimony

before it was not c umulative

of other ey ewitnesstestimony , this cour t finds tha t Hernandez’s test

imony is not cumulative. Like the defenda nt in Molstad , the defendant in the instant case offered a libi evidence at trial and attacked the cr edibility of the State’s ey

ewitnesses. Also like the defendant in Molstad , the instant defendant presented ey ewitness affidavits claiming that defendant was not present at the sc ene of th

e crime. Hernan dez’s test imony goes even furt

her by naming a n entirely new offender, Efrain Chacon. I t is difficult to see how this new testimony would not add anything to wha

t is already in fr

ont of the fact finder. Just as our supreme court in Molstad foundNo. 1-06-1314

16

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 c ase against the defendant in Molstad was wea ker than the case against the instant defendant. The streng th of the evidence against the defe ndant’s claim of innocence play ed 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 whethe r the new evidence would probably change the result on retrial was c onsidered as an entirely separate issue from whether the new evidence wa s cumulative. Molstad , 101 Ill. 2d at 135. While examining the cumulativeness issue, our supreme court looked at the type of evide nce pre sented a

t trial, while considering the outcome-at-retria l issue, our supreme court looked at the weight of the evidence presented at trial. Molstad , 101 Ill. 2d at 135. Molstad and the in stant ca se both involve the same type of evidence, namely eyewitness testimony . Thus, on the issue of lack of cumulativeness, these cases are substantially similar. Also, Her nandez’stestimony

probably would hav e chang ed the re sult on re trial. I n its order deny

ing defendant’s petition for a new trial, the trial c ourt found that the additional eyewitness testimony

was cumulative, but it did not specifically r ule on whether the new testimony would have probably changed the result on retrial. Since we find that Hernandez’s testimony is not cumulative, th

is court mu st decide

whether the testim

ony would pro

bably change the result on retrial. This court finds that the r esult on retrial probably

would change.No. 1-06-1314

17

At retrial, the evidence of defenda nt’s innocence would be much stronger. De fendant 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 c rime. He would also have Ocasio’s testimony that Efra in Chacon shot the victim, corroborating Hernandez’s testimony

. This evidence was never viewed in conjunction with Her nandez’s testimony. Although Oc asio’s statement was not relevant previously because he did not see the whole event, the statement becomes relevant when viewed in conjunction with Herna ndez’s testimony because both men name Efrain Chacon as the second shooter. All of this evidenc e corroborates Oscar Chacon’ s original statement to the police, which states that there wer e only two shooters. The State a rgues that this statement was only part of the c ase against Oscar Chacon bec ause the cases were severed; however, this contention is not supported any where in the record. Also, at retrial, the evidence of defenda nt’s guilt would be weaker. The only evidence offere d again st defen dant was the ey ewitnesstestimony

of Estavi a and Vill ariny . 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 reg arding the lack of evidence ofcloserange shooting and the likelihood that the victim was shot four times in the back r efutes Hernan dez’s ver sion of sho oting. T his court is not per suaded b y th

is argu ment. Her

nandez did not state that there was any close-range shooting or that the victim was not shot from be hind. Also, as d efenda nt points ou

t, Dr. Kir schner w as not ca lled to tes tify

as a rebuttal witne ss; thus,No. 1-06-1314

18

his testimo ny c annot be u sed to show that Her nandez’sversion o f the shoo ting wa s “virtua lly im po ss ib le .” He rn an de z’ s t es ti mo ny i s a ct ua ll y co ns is te nt wi th Dr . K ir sc hn er ’s te st im on y. The shift in strength of each side’s case would probably cr

eate a reasonable doubt of defendant’s guilt at retrial. Defe ndant no longer relies solely on alibi testimony. At retrial defendant would be able to attack the cre dibility of the State’s ey ewitnesses directly

with his own eyewitnesse s. In addition, there was no phy sical evidence pointing to defendant. The we ight of the evide nce in fa vor of defendant ’s innoce nce woul d be much s tronge r and would probab ly chang e the re sult upon r

etrial. T herefo re, def endant mu st be gr

anted a new trial

.

CONCLUSIO N For the foregoing r

easons we reverse the judgment of the circuit court and grant defenda nt a new tr

ial. Reversed. CAHI LL , P.J., dissen

ts. McBRI DE, J., spec ially

concurs .1-06-1314

19

JUS TICE CAH ILL, dissent ing: I respec tfully

disagr ee with the conclusion that Hernandez's testimony is noncumulative and of such a conclusi ve natur

e that it w ould proba

bly chang e the re sult on re

trial. The majority

compare s Herna

ndez's te stimony

to that of C h ri stopher E stavia a nd Edwin Vi ll ar in y, bo th of

wh om te st if

ie d t ha t d ef

en da nt sh ot th e v ic ti m. Th e m aj or it y co nc lu de s, co rr ec tl y, that th is evidence is not cumulative. But the majority does not address Oscar Chacon's statem en t and Arthur D unla m's testimony that defe ndant was not involved in the shooting. Oscar said in a statement ad mi tt ed at de fe nd an t' s t ri al th at he an d t he bi cyc li st we re th e o nl y s hoot ers. Dunlam testified as an alibi w itness an d said def endant w as with

him at the time of the shooting. With the exception of the bicyclist' s identity, Hernande z's testimony does no t offer anything tha

t was not already before the trier of fact. See People v. Molstad , 101 Ill. 2d 128, 135, 461 N.E.2d 398 (1984) (evidencethat adds nothing to what is already before the trier of fact is cumulative). The identity of the bicy clist is not

materia l to defendant's guilt and

alone is n ot suffic ient to wa rrant a new tria l. The majority concludes that unde r Molstad , Hernand ez's tes ti mony must be found not cumulative. Slip op. at 15-16. Like this case, the defe ndant in Molstad maintained his innocence by denying involvement in the crime. Molstad , 101 Ill. 2d at 132. Alth ough the defendant offered alibi ev id en ce , t he te st im on y of his codef endants that he was not present for the crime was not availab le at trial. Molstad , 101 I ll. 2d at 132-33. Our supreme court grante d the defendant a new trial, holding the testimony was not c umulative

of the alibi evide

nce and was mate rial to whether the defendant was i nvolved in the crime. Molstad , 101 Ill. 2d at 135. Here, Osca r's statement that1-06-1314

20

defendant was not a shooter

was offe red into e vidence at trial. Hernan dez's te stimony differed only with resp ect to the

identity of the bic yc list. The majority

also conc ludes tha

t Hernandez's te st im ony

is enoug h to crea te a rea sonable doubt of defend ant's g

uilt on ret rial. Slip o

p. at 17-1 8. This co nclusion r esults in pa

rt from th e major ity's fail ure to addres s the c umul ative impac t of He rnand ez's t estim ony on Osc ar's statement and Dunlam' s accoun

t of defe ndant' s where abouts. B ut more tr oublin g is that Hernandez--in an affida vit executed more than 11 ye ars after the shooting and the only predicate for a third postconviction petition--said he was engaged in a dr ug transaction at the

time defe

ndant all egedly shotthe victim. Hernandez testified he saw Oscar, Efrain Chacon and Mig uel Renteria beating the vict imas he entered the park. Herna ndez then met with Peter Reyes, a f ellow gan g member wh o supplied marijuana for Hernandez to sell. According to Hernandez's affidavit, four minutes transpiredbetweenthe time he saw the f ight and the time he

saw Osca r and Efr ainchasing

the victim

on Sheridan Road. Hernandez does not account for the peri od between the fight and the chase, which, a ccordin g to Esta

via and Villariny , was the time when

defenda nt shot the

victim. I would affirm t

he trial c ourt orde

r deny ing def endant po stconvic tion relie f under t h es e circumst ances.1-06-1314

21

McBrid e, J. , spec iall y concurri ng, I write to specially c oncur 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 a

n exceptio n to the ca

use and prejudice requirement

necessary

for the filing of successive petitions is unnecessary . I agree with the a naly sis in all other respects therefore I specially conc

ur.

### REPORTER OF DECISIONS - ILLI NOIS APPELLATE COURT (Front Sheet to be att

ached to each Opinion)

_________________

_________________

_________________

______________ Please use the ] following form:] ]

] THE PEOP

LE OF THE STAT E OF ILLINO IS, ] ] Plaintiff-Appellee, ] v. ] ] SALVADOR O RTIZ, ] ] 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 Pr e siding ] 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

23

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___________________