                                        2015 IL App (3d) 130091

                               Opinion filed January 13, 2015
     _____________________________________________________________________________

                                                 IN THE

                                   APPELLATE COURT OF ILLINOIS

                                           THIRD DISTRICT

                                                A.D., 2015

     THE PEOPLE OF THE STATE OF                      )       Appeal from the Circuit Court
     ILLINOIS,                                       )       of the 21st Judicial Circuit,
                                                     )       Kankakee County, Illinois,
            Plaintiff-Appellee,                      )
                                                     )       Appeal No. 3-13-0091
            v.                                       )       Circuit No. 99-CF-338
                                                     )
     TERRENCE D. HAYNES,                             )       The Honorable
                                                     )       Kathy Bradshaw-Elliott
            Defendant-Appellant.                     )       Judge, Presiding.
     _____________________________________________________________________________

           PRESIDING JUSTICE McDADE delivered the judgment of the court, with opinion.
           Justice Holdridge concurred in the judgment and opinion.
           Justice Lytton specially concurred, with opinion.
     _____________________________________________________________________________

                                                OPINION

¶1          Defendant, Terrence D. Haynes, filed a pro se petition for postconviction relief in which

     he claimed the prosecution suborned perjury of a proffered witness during his criminal trial. The

     petition was summarily dismissed, and defendant appeals. We reverse and remand for second-

     stage proceedings.

¶2                                               FACTS
¶3          The background facts of this case have previously been set out. See People v. Haynes,

     331 Ill. App. 3d 482 (2002). Accordingly, we will set forth only those facts necessary for the

     disposition of this particular appeal.

¶4          Following the shooting death of Cezaire Murrell, the State charged defendant with first

     degree murder (720 ILCS 5/9-1(a)(1), (2) (West 1998)). As part of its case, the State presented

     the testimony of two eyewitnesses. One of the eyewitnesses, 11-year-old Marcus Hammond,

     was examined by assistant State's Attorney Frank Astrella. Marcus testified that he saw Murrell

     and defendant standing about five feet apart near the front porch of a residence. As he watched,

     he saw defendant pull a gun from "the back of his body" and shoot Murrell. The following

     colloquy took place between Hammond and Astrella.

                            "Q. When you saw the defendant holding the gun like that,

                    what did [Murrell] do?

                            A. Came towards him.

                            Q. Okay. Did you see anything in [Murrell's] hands?

                            A. No.

                            Q. Did you see him holding a gun?

                            A. No."

¶5          The second occurrence witness, eight-year-old Penny Hammond, testified that she looked

     out the front door and saw defendant arguing with another man in front of the residence.

     Defendant yelled at her to go back in the house. Penny went to the back of the house. When she

     reached the back porch, she heard a gunshot.

¶6          Defendant testified that on the night of the incident, Murrell approached him and

     demanded money he thought defendant owed him. Defendant told Murrell that he did not know

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     what he was talking about. According to defendant, Murrell lifted his shirt, revealing a gun in

     his waistband. Defendant then picked up a gun that was on the porch underneath a shirt and put

     it in his back pocket. Murrell then ran up on the porch. Murrell had one hand on his gun and he

     was reaching for defendant with the other hand. Defendant pulled out the gun, closed his eyes

     and started shooting. Defendant then ran away, leaving both the gun he used in the shooting and

     Murrell's gun behind. No guns were recovered from the scene. Defendant testified that he was

     afraid Murrell was going to shoot and kill him.

¶7          At the conclusion of the trial, the jury found defendant guilty of first degree murder. The

     trial court sentenced defendant to 45 years in the Department of Corrections. Ultimately, we

     affirmed defendant's conviction and sentence (People v. Haynes, 2011 Ill App (3d) 090513-U).

¶8          Defendant filed a pro se petition for relief from judgment pursuant to section 2-1401 of

     the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). In the petition, defendant

     alleged that his due process rights were violated when the State failed to disclose in discovery

     that Marcus Hammond was the cousin of Michael Jeneary, an assistant State's Attorney who

     acted as co-counsel in prosecuting the case. Attached to the petition was a letter from Jeneary

     acknowledging that Marcus was his cousin and admitting that he did not disclose the

     relationship. The trial court dismissed the petition sua sponte. The court stated that Jeneary

     "probably should have" disclosed the relationship, but since it concerned only bias and witness

     credibility, the court would not order a new trial. In a 2-1 decision, we affirmed the dismissal of

     defendant's section 2-1401 petition. People v. Haynes, 2013 IL App (3d) 100758-U.

¶9          Defendant filed a pro se postconviction petition alleging that defendant was denied due

     process where Jeneary suborned perjury when Hammond testified that the victim, Murrell, was




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       not armed with a gun at the time of the shooting. Attached to the petition was an affidavit from

       Hammond stating, in its entirety:

                               "I was the eye witness in the case People v. Haynes case #

                       99-CF-338[.] [I]n this case my cousin Michael Todd Jeneary was

                       the State's Attorney. I testified in open court that there was only

                       one gun but it really was two, the guy that got shot also had a gun

                       when he got shot but I was told not to say that he had a gun."

¶ 10            The trial court summarily dismissed defendant's petition.           The court found that

       Hammond's affidavit did not say that Murrell was holding a gun, nor did defendant testify

       Murrell was holding a gun. Instead, defendant stated that he saw a gun in Murrell's waistband.

       The court concluded that there was no reasonable probability that the outcome of defendant's

       trial would have been different had Hammond testified to seeing Murrell with a gun. Defendant

       appeals.

¶ 11                                               ANALYSIS

¶ 12            Summary dismissal is appropriate only where the "petition is frivolous or is patently

       without merit." 725 ILCS 5/122-2.1(a)(2) (West 2012). To survive summary dismissal, the

       petition must state merely the "gist" of a constitutional claim. People v. Collins, 202 Ill. 2d 59,

       66 (2002). Defendant claims that he was denied his constitutional right to due process where

       Jeneary suborned perjury when Hammond testified that Murrell was not armed with a gun at the

       time of the shooting. At the first stage, the petition's facts are taken as true. Collins, 202 Ill. 2d

       at 66.

¶ 13            "A conviction obtained by the knowing use of false testimony will be set aside if there is

       a reasonable likelihood that the false testimony could have affected the verdict." (Internal


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       quotation marks omitted.)      People v. Wright, 2013 IL App (1st) 103232, ¶ 47.             Because

       Hammond was the only eyewitness to the actual shooting, other than defendant, we find his

       sworn allegation that he "was told not to say that he (Murrell) had a gun" establishes the gist of a

       constitutional claim.

¶ 14          Defendant's entire defense at trial revolved around the theory of self-defense and his

       testimony that Murrell had a gun on his person. Hammond, however, testified at trial that he did

       not see Murrell holding a gun or anything in Murrell's hands. This testimony was extremely

       damaging to defendant's defense. Hammond's affidavit establishes, at least for purposes of first-

       stage proceedings, that this damaging testimony was untrue. Hammond, as the sole witness to

       the shooting, was the key witness in this case and thus there is a reasonable likelihood that his

       curtailed testimony affected the verdict.

¶ 15          The State would have us believe that summary dismissal was appropriate because the

       affidavit reveals only that someone instructed Hammond not to testify that Murrell had a gun.

       Specifically, the State notes that the affidavit does not expressly assert that it was the prosecution

       that instructed Hammond to lie. We reject this reasoning. Read as a whole, we believe the

       affidavit clearly implies that Jeneary was the one who instructed Hammond. There is no reason

       for Hammond to even mention Jeneary or their relationship if it was someone else who had

       instructed him.    Moreover, we note that Hammond's identification of Jeneary and their

       relationship is found in the sentence directly preceding his claim that he was instructed to lie.

       Most significantly, however, we note that the instant case involves first-stage proceedings and

       thus the affidavit was not drafted by a lawyer. Courts are to give liberal construction to pro se

       petitions at the first stage, reviewing them "with a lenient eye, allowing borderline cases to

       proceed." (Internal quotation marks omitted.) People v. Hodges, 234 Ill. 2d 1, 21 (2009).


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¶ 16              The State would also have us believe that summary dismissal was appropriate because

       Hammond did not specifically testify at trial that "Murrell did not have a gun." We disagree.

       Omitting facts due to instruction from a prosecuting entity renders any remaining testimony

       unreliable just as much as expressly lying due to instruction from a prosecuting entity. Both

       situations impugn the integrity of the judicial system and do not comport with the standards of

       justice.

¶ 17              Moreover, the issue is not whether any of Hammond's specific testimony is contradicted.

       Instead, the issue is that the affidavit, if true, in effect renders Hammond's entire testimony

       unreliable. 1 Instructions to not mention that Murrell also had a gun essentially created a false

       backdrop or foundation for all of Hammond's testimony. For example, had Hammond been free

       to testify truthfully when asked if Murrell had anything in his hands Hammond might have

       replied: No, Murrell was not holding a gun, but Murrell did have a hand on a gun.                    Or,

       Hammond could have said: Yes, Murrell was holding a gun. 2 At trial, however, Hammond

       1
           We acknowledge the principle discussed in the special concurrence – credibility determinations

       are to be made by the trier of fact. Infra ¶ 24. We believe, however, that a witness's omission of

       certain facts due to prosecutorial instruction renders the witness's entire testimony inherently not

       credible. Thus, the pertinent question during further postconviction proceedings is not whether

       Hammond's testimony is credible (infra ¶ 25), but instead, whether Hammond's allegations

       contained within his affidavit are actually true. Again, because we are at first stage, we accept

       the affidavit as true. Collins, 202 Ill. 2d at 66.
       2
           Again, we remind the State that Hammond's failure to specifically articulate what exactly he

       would have testified to at trial does not justify dismissal at first stage. Hammond's affidavit is

       sufficient to survive first stage due to the fact it contains an allegation that he was under


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       simply replied: "No." This response was consistent with the overarching theme "not to say that

       he (Murrell) had a gun." Viewing the totality of the circumstances, we hold Hammond's entire

       trial testimony is unreliable. We also hold more broadly that a witness's testimony is entirely

       unreliable if he is under instructions from a prosecuting entity to lie or to omit certain facts while

       testifying.

¶ 18           In coming to this conclusion, we reject the trial court's reasoning that summary dismissal

       was warranted due to the fact that defendant did not expressly testify at trial that Murrell was

       holding a gun. Initially, we note that defendant at one point did testify that Murrell had one hand

       on his gun and he was reaching for defendant with the other hand. While holding a gun may

       arguably be factually different than having one hand on a gun, the same legal question remains

       when confronted with either factual situation -- whether an individual reasonably believes that

       his conduct is necessary to defend himself against another's imminent use of unlawful force (720

       ILCS 5/7-1(a) (West 2012)).

¶ 19           Defendant admitted to shooting Murrell, however, he testified that he feared for his life.

       Thus, the above legal question was the sole issue at trial. Corroborating evidence that Murrell

       did in fact have a gun, even if only on his person, is highly relevant to defendant's defense.

       Likewise, the prosecution's purported act of depriving defendant of such testimony is highly

       prejudicial. The weight to be given to any factual distinction between Murrell holding a gun or

       alternatively having a hand on a gun is best left for the trier of fact to decide. People v. Felella,




       instruction, inferentially by a prosecuting entity, to omit certain highly relevant facts. Omission

       of said facts was extremely prejudicial to defendant's claim of justification or a finding of murder

       in a lesser degree at trial.


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       131 Ill. 2d 525, 534 (1989) (the issue of self-defense is always a question of fact determined by

       the trier of fact).

¶ 20           For the reasons stated, we reverse the trial court's summary dismissal of defendant's pro

       se postconviction petition. The matter is remanded for appointment of postconviction counsel

       and second stage postconviction proceedings.

¶ 21           Reversed and remanded.

¶ 22           JUSTICE LYTTON, specially concurring.

¶ 23           I agree with the majority’s reversal of the trial court’s summary dismissal of defendant’s

       pro se postconviction petition. However, I believe that the majority has gone too far in holding

       that “Hammond’s entire trial testimony is unreliable.” Supra ¶ 17.

¶ 24           In reviewing a postconviction petition, it is the role of the trial court to act as the trier of

       fact, making credibility determinations, deciding the weight to give testimony and evidence, and

       resolving evidentiary conflicts. See People v. Domagala, 2013 IL 113688, ¶ 34; People v.

       Hernandez, 298 Ill. App. 3d 36, 40 (1998). Additionally, questions concerning the reliability of

       a witness’ testimony are not to be decided at the first stage of postconviction proceedings, but at

       the second stage if the judge ruling on the postconviction petition presided over the defendant’s

       trial, or at the third stage if someone other than the trial judge rules on the petition. See

       Hernandez, 298 Ill. App. 3d at 40.

¶ 25           While I agree with the majority that defendant’s postconviction petition is sufficient to

       survive the first stage of postconviction proceedings, I disagree with the majority’s

       characterization of Hammond’s testimony as “unreliable.” The reliability or unreliability of

       Hammond’s testimony is to be determined by the trial court, acting as the trier of fact, at the

       second or third stage of postconviction proceedings. Domagala, 2013 IL 113688, ¶ 34;


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Hernandez, 298 Ill. App. 3d at 40. It was premature and inappropriate for the majority to reach

such a conclusion in this case.




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