                                    2016 IL App (1st) 133493
                                         No. 1-13-3493

                                                             SECOND DIVISION
                                                                    June 7, 2016
______________________________________________________________________________

                                     IN THE
                         APPELLATE COURT OF ILLINOIS
                            FIRST JUDICIAL DISTRICT
_________________________________________________________________________________


THE PEOPLE OF THE STATE OF ILLINOIS,                 )       Appeal from the Circuit Court
                                                     )       of Cook County.
       Respondent-Appellee,                          )
                                                     )
v.                                                   )       No. 93 CR 18173
                                                     )
ARMANDO SERRANO,                                     )
                                                     )       Honorable Maura Slattery Boyle
       Petitioner-Appellant.                         )       Judge Presiding.


       JUSTICE SIMON delivered the judgment of the court, with opinion.
       Justices Neville and Hyman concurred in the judgment and opinion.

                                            OPINION

¶1     This appeal is taken from a directed finding that was entered in a postconviction

proceeding stemming from a murder case 22 years ago. The principal witness from the trial has

since submitted an affidavit that the trial testimony he gave was “false in all respects” and it was

coerced by the detectives investigating the murder. A number of other witnesses have provided

testimony that they were coerced to falsely implicate people in crimes by the same detectives. At
No. 1-13-3493


their joint evidentiary hearing, Serrano 1 and codefendant Montanez presented profoundly

alarming acts of misconduct in the underlying investigation and prosecution, all of which warrant

closer scrutiny by the appropriate authorities. Because we find that, after reviewing the evidence in

the light most favorable to petitioner, Serrano has met his burden to go forward on an actual

innocence claim, we reverse and remand. Any other result would work a palpable injustice.

¶2                                             BACKGROUND

¶3       On February 5, 1993, Rodrigo Vargas was found shot to death. Vargas was in his own

driveway sitting in his van with the motor running. Neighbors had heard shots fired about an hour

and a half earlier. Vargas’s body was examined by the Cook County medical examiner’s office,

which determined that his death was a homicide resulting from multiple gunshot wounds. The

victim had his wallet with $190. One neighbor, Gary Shoop, indicated that he was awakened by

the sound of several gunshots and looked out his window to see a car traveling away quickly. He

identified the car as a brown sedan, a General Motors’ make. The timeline of the investigation and

what occurred during the investigatory period is hotly disputed by the parties.

¶4       Wilda Vargas, the victim’s wife, originally told the investigators that she had no idea who

would want to kill her husband. At trial, Wilda testified that the night before the murder, she was

out running errands with her husband and children. They stopped at a bank and then proceeded to

a gas station. Wilda said that while they were parked at a gas station and her husband was inside

paying, a cream-colored four-door car with a brown top pulled in behind them, blocking them in.


         1
           The defendants in this case are Jose Montanez, Armando Serrano, and Jorge Pacheco. Jorge Pacheco was
acquitted. Serrano was convicted along with Montanez who has also filed a postconviction petition. The trial court
held a joint evidentiary hearing for Montanez and Serrano, but each filed a separate appeal. The opinion adjudicating
Montanez’s appeal, People v. Montanez, 2016 IL App (1st) 133726, overlaps almost entirely with this opinion and is
being filed concurrently.


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She testified at one point that an occupant of the vehicle entered the gas station while her husband

was inside. At another point, she testified that copetitioner Montanez entered the gas station after

her husband had already paid and exited the store. Because they had just left the bank, Rodrigo had

cash, about $350. When Rodrigo came back to his car and it was still blocked in, he was agitated

and honked the horn and cursed before the other car drove off. The subject car followed them for a

period after they left the station.

¶5      Wilda originally identified petitioner as the driver, but then switched her identification to

copetitioner Montanez. Wilda at one point testified that four days or so after the murder, February

8 or 9, she was accompanied by detectives Earnest Halvorsen and Reynaldo Guevara as they went

back to the subject gas station. She later testified that this took place four months after the murder.

Wilda and the detectives drove around the area to look for the vehicle she had seen the night before

the murder and she testified that she was able to identify the car parked at a residence in the

neighborhood. The car she supposedly identified belonged to copetitioner Montanez.

¶6      Another individual, Francisco Vicente, also testified against the defendants. Vicente is an

admitted heroin addict who had four felony cases pending against him at the time. He was also

concurrently a State’s witness in two other murder cases being investigated by Detective Guevara

in which the perpetrators supposedly confessed their crimes to him. While he was incarcerated on

other charges, Vicente reportedly told detectives Halvorsen and Guevara that the three defendants

in this case had confessed to him. His testimonial narrative was that around 8 or 9 the same

morning that Rodrigo Vargas was murdered, he came across defendants, whom he knew. Vicente

testified that he saw that defendants had a gun, and overheard their conversation which revealed

that defendants were upset because they had unsuccessfully attempted to rob someone and in the



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fallout they had to kill the person. Vicente testified that copetitioner Montanez said that defendants

had seen a Mexican guy at a gas station the night before who pulled out a big wad of money, so

they decided to rob him. Defendants, however, waited until the next day to attempt the robbery

since the guy’s wife and children were in the car that night.

¶7     Vicente ultimately received the mandatory minimum sentence of 9 years for his pending

felony cases despite facing up to 100 years in prison. While in prison, Vicente received perks like

cigarettes, a radio, home-cooked meals, and other things not generally available to inmates.

¶8     Detective Halvorsen also testified in the State’s case. Halvorsen stated that he was

questioning Vicente as a witness in another investigation when Vicente revealed that he had

information regarding the murder of Rodrigo Vargas. It was June 2, 1993, about four months after

the murder. It was just the two of them in the room. Halvorsen had heard unsubstantiated rumors

on the street that someone by the name of “Pistol Pete” was involved in the Vargas murder.

Vicente claimed that the rumored information was correct and that the “Pistol Pete” involved was

copetitioner Montanez and that the co-offenders in the murder were “Mando” and “Jordan.”

Halvorsen claimed that through his database he was able to identify Mando as petitioner and

Jordan as Jorge Pacheco. Those three individuals would later become the defendants in the case.

Halvorsen claimed that later that day he told Guevara about the information gleaned from Vicente.

Halvorsen’s testimony was that it was at this point that the detectives visited Wilda Vargas, drove

with her to the gas station, and then drove her around the area, where she identified Montanez’s car

as the one that had been behind them at the gas station the night before the murder.

¶9     Halvorsen testified that he also received a call around this time from Sergeant Minghey.

Minghey purportedly told Halvorsen that an individual being held by the police, Timothy Rankins,



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had claimed to be an eyewitness to Rodrigo Vargas’s murder. Halvorsen testified that he and

Guevara interviewed Rankins and, to verify his story, they drove in the direction of Vargas’s home

with Rankins accompanying them to test if Rankins could have really been an eyewitness. When

they approached, Halvorsen testified, Rankins pointed to Vargas’s home as the place that he had

witnessed the murder. Rankins testified before a grand jury about what he apparently witnessed,

but did not testify at trial.

¶ 10    No eyewitness testimony was presented at trial nor was there any physical evidence

admitted. When making his ruling, the trial judge remarked that “were it not for the testimony of

Vicente, there wouldn’t have been much evidence here. His testimony is crucial.” The trial judge

specifically noted that Wilda’s identification of petitioner was not reliable. The trial judge found

the three defendants guilty of murder, but later reversed his own decision as to Pacheco and

acquitted him only. The evidence against Pacheco is basically identical to the evidence against

petitioner.

¶ 11    On May 26, 2004, Vicente completed an affidavit in which he recanted his trial testimony.

He averred that his testimony against defendants at trial was “false in all respects.” Going point by

point, Vicente attested that the testimony he gave was supplied to him entirely by Detective

Guevara and that he agreed to give the testimony as a result of threats, physical coercion, and

promises of leniency for his own crimes. Vicente averred that he was also given money and

received special treatment in prison in return for supplying false information in this case and in

other cases, all at the behest of Guevara.

¶ 12    After accumulating some additional information, about a year after Vicente’s recantation,

petitioner filed a postconviction petition. Petitioner attached dozens of exhibits detailing other



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instances of threats, intimidation, and physical abuse by Detective Guevara. Petitioner also

asserted a claim for a violation of Brady v. Maryland, 373 U.S. 83 (1963). Under Brady, a

defendant’s right to due process is violated if the prosecution in a criminal case does not disclose

evidence to the defendant that is favorable to the defense. Serrano claimed that the police and

prosecutors knew at the time of trial that Guevara had used threats, intimidation, and violence to

coerce evidence in other cases.

¶ 13   A Cook County judge denied the State’s motion to dismiss the postconviction petitions and

advanced them to the third stage of postconviction proceedings for an evidentiary hearing. The

cases were transferred to a new judge on October 1, 2009. Prior to the evidentiary hearing, in

January 2012, petitioner sought additional discovery and requested leave to supplement his

postconviction petition. The trial court denied the discovery sought by petitioner and refused to

give him leave to supplement his petition, despite the fact that the evidentiary hearing would not be

held for another 18 months.

¶ 14   On May 15, 2013, the evidentiary hearing began. At the hearing, Detective Guevara

invoked his fifth amendment right, refusing to answer any questions on grounds that he might

incriminate himself. When questioned in detail about the allegations of misconduct in this

investigation, Guevara refused to answer each question, invoking his fifth amendment protections.

Similarly, Vicente invoked the fifth amendment and refused to give testimony to backup his sworn

recantation. There were several indications that he feared prosecution for having previously

perjured himself at defendants’ trial. Vicente did not take the opportunity to repudiate the content

of the affidavit. Vicente told the court that he feared for his safety and he was escorted from the

building.



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¶ 15   Petitioner offered into evidence the transcribed statement of Timothy Rankins. Rankins

described how Guevara used violence in an attempt to get him to incriminate the defendants in this

case. Rankins testified about his reluctance to give the false testimony against them and the beating

he suffered at the hands of Guevara and others. He swore that Guevara and Halvorsen gave him

photographs of the three defendants in this case and a written statement and told him to study the

material and, after some more beating, told him to sign the statement. Rankins claims that the

statement he signed was false in its entirety as was his testimony before the grand jury. Rankins

also corroborated claims made by Vicente, averring that the two of them were housed in the same

protected prison block, receiving cigarettes, money, and the option of privately hosting female

guests. Rankins swore that he and Vicente worked together to learn the false statements. Rankins

stated that he eventually refused to provide false testimony at trial, though the detectives tried

multiple times to persuade him to testify.

¶ 16   Valentin Gomez testified at the evidentiary hearing that he and Vicente were co-offenders

in a case in 1995 or 1996, a year or so after Vicente testified against defendants. While they were

incarcerated, Gomez was concerned that Vicente was in protective custody because he had flipped

in the case they had together. Gomez testified that Vicente assured him that, no, he had not flipped

in their case, but had falsely implicated these defendants in order to get a deal in his own pending

cases. According to Gomez’s testimony, three or four years later, he and Vicente came into contact

again and they again discussed that Vicente had lied in this case. Gomez testified that Vicente

expressed his desire to come clean about giving false testimony against defendants. Gomez,

however, never reported the content of his conversations with Vicente to anyone prior to him being

contacted in connection with these postconviction proceedings.



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¶ 17    Petitioner called witnesses and introduced other sworn testimony at the evidentiary hearing

in an attempt to establish Guevara’s pattern of police misconduct. William Dorsch, a retired

Chicago police department detective, testified about a case he worked on with Guevara a couple of

years before this case came about. In that case, the detectives were conducting a photographic

lineup with two supposed eyewitnesses. Dorsch testified that when one of the witnesses seemed

unable to make an identification, Guevara pointed to one of the pictures and said “that’s him.” The

witness then agreed with Guevara’s suggestion and went on to identify the person in a live lineup.

Dorsch conducted the lineup with the second witness by himself and the witness was unable to

make an identification. The witnesses later admitted that their statements were false and that they

were being paid by a third party. The charges against the accused were dropped. Dorsch, however,

did not remember many of the particulars of the case such as the names of those involved. Dorsch

also never reported the incident to his superiors and had since begun to work as an investigator

with the Innocence Project and received compensation for his work.

¶ 18    Petitioner offered into evidence statements from more than a dozen individuals. Each of

the statements details some type of coercion applied by Guevara to elicit a false statement. The

allegations span decades and have some common threads among them. The trial court also barred

the testimony of a significant number of other individuals who would have averred that they were

abused or otherwise witnessed misconduct by Guevara. The trial court’s reasoning for not

allowing the evidence was that the testimony was too temporally remote or not similar enough to

the allegations in this case.

¶ 19    The trial court also barred testimony from Wilda Vargas, the victim’s wife and an

important witness at trial. As an offer of proof, petitioner stated that if Wilda had been allowed to



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testify, she would have testified that she was actually unable to identify a vehicle when she drove

with the detectives, but that Guevara took her to the location of the vehicle and told her that it was

the car from the gas station. It was him, not her who identified the vehicle. Wilda would have also

testified that Guevara falsely told her that some bullet holes in the subject car matched the ballistic

testing done at the scene of her husband’s murder when they, in fact, did not. The court found that

the testimony that would have been offered by Wilda, as described by defense counsel, did not

warrant her testifying at the hearing.

¶ 20   At the close of the petitioner’s case, the State moved for a directed finding. The trial court

took the matter under advisement. About three months later, the court issued a 25-page written

ruling granting the State’s motion for a directed finding. In doing so, the trial court concluded that

“[t]he evidence presented by petitioners in the instant case, taken in [the] light most favorable to

the petitioners entirely fails to support their allegation that Detective Guevara forced Francisco

Vicente to falsely implicate petitioners in first degree murder and attempted armed robbery.” This

appeal followed.

¶ 21                                        ANALYSIS

¶ 22   To obtain postconviction relief on the basis of a claim of actual innocence, a petitioner

must present new, material, noncumulative evidence of such a conclusive character as would

probably change the result on retrial. People v. Coleman, 2013 IL 113307, ¶ 84. When we consider

whether the evidence is “conclusive” we look at whether the new evidence places the evidence

presented at trial in a different light and undercuts the court’s confidence in the factual correctness

of the guilty verdict. Id. ¶ 97. The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West

2014)) gives the postconviction court wide latitude to receive proof by affidavits, depositions, oral



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testimony or other evidence. People v. Ruiz, 177 Ill. 2d 368, 383 (1997).

¶ 23   Where, as here, the trial court grants a directed finding after petitioner’s case at a

third-stage evidentiary hearing, we review its decision de novo. People v. Andrews, 403 Ill. App.

3d 654, 659 (2010) (when no fact finding or credibility determinations are involved in a decision

regarding a third-stage postconviction petition, we review de novo); People v. Connolly, 322 Ill.

App. 3d 905, 918 (2001) (a ruling on a motion for a directed finding is a question of law subject to

de novo review). The parties agree that de novo review is appropriate. When presented with a

motion for a directed finding, the trial court is obliged to construe the evidence in the light most

favorable to the nonmovant and may only grant the motion when the evidence so favors the

nonmovant that a contrary ruling could never stand. People v. Hancock, 2014 IL App (4th)

131069, ¶ 136. Thus, the question here is: has the petitioner made a prima facie showing that the

new evidence presented, taken in a light most favorable to him, would probably change the result if

the case was retried. Id.; Coleman, 2013 IL 113307, ¶ 84.

¶ 24   To start, petitioner meets the situational requirement of presenting new, material,

noncumulative evidence. The State did not move for a directed finding on the absence of any of

those characteristics and the trial court’s ruling was not based on a lack of presenting the proper

type of evidence, but instead upon a supposed failure to meet the evidentiary burden. The State

maintains that position on appeal.

¶ 25   At trial, the only direct evidence of petitioner’s guilt was Vicente’s testimony. Vicente

supplied what amounted to a confession from defendants including details of the crime that

swayed the fact finder. The trial judge commented, “were it not for the testimony of Vicente, there

wouldn’t have been much evidence here. His testimony is crucial.” That “crucial” testimony is



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now entirely repudiated in a sworn statement by the person who gave it. The witness now claims

the testimony was “false in all respects.” Detail by detail Vicente averred that the testimony he

gave at trial was fed to him by Guevara, was coerced, and was not true.

¶ 26   There is not a large body of published case law in Illinois dealing with recantation

evidence. As in nearly every jurisdiction, our courts have stated that recantations of trial testimony

are to be viewed with suspicion. People v. Lawson, 65 Ill. App. 3d 755, 756 (1978). But a survey of

persuasive cases throughout the country reveals that recantation statements should not simply be

dismissed without further analysis. See, e.g., Lopez v. Miller, 915 F. Supp. 2d 373, 402-08

(E.D.N.Y. 2013) (analyzing at length the considerations federal courts have given to recantation

testimony); United States v. Ramsey, 726 F.2d 601, 604-05 (10th Cir. 1984) (where the witness

himself files an affidavit averring that his trial testimony was false, the trial court must at least

decide if the recantation is to be believed). That notion is especially valid in a case like this where

the trial court is obligated to assess the evidence in a light most favorable to petitioner.

¶ 27   Even at the time of trial there were reasons to be concerned about the veracity of Vicente’s

testimony. He is an admitted heroin addict. He had a lengthy criminal history. He received a

sentence of 9 years for four felony cases when he was facing 100 years in prison—a significant

incentive to give testimony favorable to the government. Now, looking at all of those concerns

with the additional sworn statement from the witness that the testimony was false, that previously

crucial testimony is undeniably called into question. The recantation contains significant

additional corroboration. Among other items discussed in more detail below, Timothy Rankins

testified that he was coerced by Guevara to give false testimony against the defendants in this case

and that he and Vicente rehearsed the testimony together and received special treatment in prison.



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Valentin Gomez’s sworn statement that Vicente admitted years before the recantation that he had

falsely testified in this case, aids to rebut any indication of a recent fabrication. The totality of the

corroboration evidence not only establishes the believability of the recantation, it demands that the

evidence be weighed to determine whether the result would be different if there was a new trial.

¶ 28    In directing a finding for the State, addressing Vicente’s recantation, the trial court found

that “Petitioners have failed to present any evidence that Detective Guevara engaged in

misconduct in their cases, and have been unable to present any evidence that Francisco Vicente

provided false testimony at the behest of Detective Guevara.” The trial court ignored Vicente’s

affidavit and Rankin’s transcribed statement, both of which provide direct evidence of misconduct

in this case and of Vicente providing false evidence at the behest of Guevara. Petitioner presented

sworn evidence from the very witness who claims to have been under the influence of Guevara’s

misconduct. In addition, Timothy Rankins supplied a statement that Guevara tried to coerce him

into giving false testimony in this case. He swore that the detectives gave him photographs of the

three defendants and a written statement to sign. Rankins testified that the statement he signed was

false in its entirety as was his testimony before the grand jury. Rankins also corroborated claims

made by Vicente, averring that the two of them were housed in the same protected prison block,

and that they received cigarettes, money, and other benefits in return for implicating these

defendants. When Rankins eventually decided he would not falsely implicate defendants at trial,

the detectives took away his special privileges and tried multiple times to solicit his false

testimony.

¶ 29    The trial court found it especially significant that Vicente was cross-examined for well

over 100 pages of the transcript, explaining that because petitioner failed to “show the very basis



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for [his] claim,” his claim is “meritless.” Then, finishing its assessment of the worthlessness of

Vicente’s recantation, the trial court stated that “the evidence in the present case so

overwhelmingly favors the State that no contrary verdict based on that evidence could ever stand.”

We profoundly disagree. Without Vicente’s trial testimony, even the judge that presided over the

trial would disagree with that characterization. That judge stated that without it, “there wouldn’t

have been much evidence here,” so it is completely unclear how the other evidence in the case

could now somehow be characterized as “overwhelming.” When Vicente’s recantation affidavit is

examined under the proper directed finding standard, it is impossible to say that it does not even

bolster petitioner’s claim.

¶ 30   The trial court also failed to draw an adverse inference from Detective Guevara’s

invocation of the fifth amendment. Proceedings under the Post-Conviction Hearing Act are civil in

nature. People v. Johnson, 191 Ill. 2d 257, 270 (2000). The privilege against self-incrimination

may be invoked in any proceeding, civil or criminal, in which the witness reasonably believes that

the information sought could be used in a subsequent criminal proceeding against him. People v.

Houar, 365 Ill. App. 3d 682, 688 (2006). However, when the privilege is invoked in a civil

proceeding, the trial court may sometimes draw an adverse inference that, had the questions been

answered truthfully, the answers would have been damaging to the person invoking the privilege.

See id. at 689. The issue is not addressed in the trial court’s order.

¶ 31   While we need not expressly decide whether an adverse inference is ultimately warranted

in this case, it is something the trial court should have at least considered at the directed finding

stage. People v. Whirl, 2015 IL App (1st) 111483, ¶ 107. Guevara refused to answer probative,

detailed questions about his misconduct in this very case.



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¶ 32   The trial court then moved to the evidence offered by petitioner in his attempt to establish a

pattern of misconduct by Guevara, going one by one through the statements offered by the other

individuals. The trial court separately held that each of the individual’s allegations against

Guevara “fails to support petitioners’ claim,” typically because the evidence was either too remote

in time or did not describe misconduct similar enough to that alleged in this case. Thus, the trial

court held, none of the evidence supported petitioner’s claim.

¶ 33   Petitioner offered or was prepared to offer evidence of Guevara’s misconduct and witness

coercion from more than 20 people, all from within a 10-year period. The trial court gave no

compelling reason to entirely write off that evidence as either not admissible or not persuasive

because of when the misconduct was said to have occurred. Although the specific allegations are

not, nor would they be expected to be, 100% the same in every claim of misconduct, all of the

allegations are that Guevara used coercion to get witnesses to make false statements. Many of the

purported occurrences are actually quite similar. Almost all of the purported victims are Hispanic

and many did not speak fluent English, giving Guevara the opportunity to coerce them more easily.

The types of deception, the physical abuse described, and the other methods employed are not so

disparate to convincingly demonstrate some sort of widespread fabrication of accusations against

Guevara. There was even evidence from a Chicago police detective that worked alongside

Guevara who testified about Guevara’s willingness to procure false identifications in a manner

corroborative of the other allegations made by the proposed witnesses here. As we stated in

another case concerning Guevara’s misconduct, “In our view, any allegation that Guevara coerced

a person to provide evidence is relevant to whether defendants in the case at bar were similarly

coerced.” People v. Reyes, 369 Ill. App. 3d 1, 21 (2006). For the trial court to find the



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aforementioned evidence totally unworthy of any credit when it was required to view the evidence

in a light most favorable to petitioner is truly puzzling.

¶ 34   Certainly the proffered pattern of misconduct at least somewhat supports and corroborates

petitioner’s claim of misconduct as it relates to Vicente’s sworn statement. The temporal

connection to the evidence that Guevara coerced Vicente in this case and the similarity of the

various allegations may go to the weight or credibility of the evidence, but it is still supporting

evidence. In its order, the trial court states that “[i]n ruling on directed verdict, ‘a court does not

weigh the evidence, nor is it concerned with the credibility of witnesses.’ ” However, the trial court

did just that. The purpose of all of this evidence about Guevara’s purported misconduct was to

support the sworn recantation by Vicente. As we observed in another case dealing with Guevara’s

history “it is at least arguable that, if the [fact finder] had known about Detective Guevara’s history

of improperly influencing witnesses, they might have [weighed testimony differently].” People v.

Almodovar, 2013 IL App (1st) 101476, ¶ 79. If the evidence offered here does not meet the

postconviction evidentiary threshold at the directed finding stage, then it is hard to imagine the

threshold ever being met.

¶ 35   The State argues that the trial court’s ruling should stand because petitioner did not meet

his burden of going forward on a claim of actual innocence. In support of that argument, the State

contends that there was evidence at trial that rebuts Vicente’s false recantation and the false

allegations leveled against Guevara. In particular, the State points to the trial testimony of

Detective Halvorsen in which Halvorsen states that he was alone with Vicente when Vicente first

implicated the defendants here. According to Halvorsen’s testimony, it was only after Vicente

gave evidence against defendants to him that Guevara even got involved. Therefore, the State



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claims, Vicente’s affidavit is totally refuted. We do not find this argument persuasive.

¶ 36    Even though this is the State’s principal argument on appeal, the trial court’s lengthy

written order does not in any way rely on Halvorsen’s testimony. The State does not even attempt

to argue the trial court’s analysis was sound. The trial court had no reason to disbelieve Vicente’s

recantation in favor of Halvorsen’s trial testimony at the directed finding stage under the particular

circumstances. In many of the cases where an individual has accused Guevara of misconduct,

Halvorsen is accused of participating or at least being involved in the case. He is not some

disinterested witness, especially after the myriad allegations of misconduct have been brought to

light. Halvorsen’s trial testimony about his one meeting with Vicente does not discredit all the

postconviction evidence to the contrary when the postconviction evidence is viewed in the light

most favorable to petitioner. If all of the evidence submitted in connection with this postconviction

proceeding is proved to be true, including the accusations against Guevara, Halvorsen’s trial

testimony may well be consigned to oblivion.

¶ 37    The State then goes on to spend an extraordinary amount of its argument interposing

reasons that the evidence offered by petitioner should not be believed, thereby falling into the same

hole that the trial court did concerning itself with the veracity of the affidavit. The State is free to

explore the veracity of the affidavit in its rebuttal of the evidence, but that has no bearing on

whether petitioner met his burden to defeat a motion for a directed finding. See supra ¶ 28. The

State uses several pages of its brief to describe why the narrative of petitioner’s case is “illogical.”

But far from that, the evidence, when taken in a light most favorable to petitioner, is compelling.

¶ 38    The trial evidence that is not directly called into question by the postconviction evidence is

extremely flimsy. The motive evidence is questionable, because Wilda Vargas’s trial testimony



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about whether petitioner had an opportunity to see the victim and his money while in the gas

station was less than solid. The State’s theory was that copetitioner Montanez was in the store

while her husband was paying. But Wilda also at one point testified that her husband had already

paid and exited the store before Montanez supposedly entered, which would vitiate the narrative

that petitioner saw the money and decided to commit a robbery. Also, her husband was left with

nearly $200 in his pocket when he was killed.

¶ 39    Wilda’s testimony about observing petitioner’s car when she was with the detectives is

now all but refuted by her proferred testimony that the information was fed to her by Guevara. He

supposedly told her which car to identify and then misled her about nonexistent ballistic evidence.

The timing of when Wilda drove around with the detectives is also open to question. She originally

testified that she drove around with the detectives and identified petitioner’s car four days after her

husband was killed, while the detectives’ narrative was that she drove around with them several

months after the murder. Wilda’s identification testimony is also dubious. At the police station and

in court, she made misidentifications of the defendants before settling on whom she saw and where

she saw them. At trial, the judge commented that he found the majority of Wilda’s identification

testimony to be unreliable, and explicitly stated that her identification of petitioner was not

reliable.

¶ 40    There were no eyewitnesses to the crime, and no physical evidence tied the defendants to

the crime. No weapon was ever recovered. Vicente was Guevara’s key witness in two additional

murder cases at the same time this case was pending. In all three cases, the perpetrators supposedly

confessed their murders to this same heroin addict. At the risk of belaboring the point, in making

his ruling at trial, the judge acknowledged that “were it not for the testimony of Vicente, there



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wouldn’t have been much evidence here.” Now, with everything presented at the postconviction

evidentiary hearing, construed in the light most favorable to petitioner and with all inferences

being drawn in his favor, the lack of evidence is distinctly concerning.

¶ 41   The corroboration of the new evidence and its consistency on key details, properly

construed, is compelling. We have before us a recantation from the principal trial witness saying

he was coerced by detectives, a partial recantation from the secondary witness (the victim’s wife)

saying she was misled by investigators, sworn statements from at least 20 individuals claiming that

the investigators coerced them in a similar manner, and then the detective under suspicion coming

to the hearing and invoking the fifth amendment in response to all of the pointed questions. At this

stage in the proceedings, petitioner was required to make out merely a prima facie case that would

cause the court to view the “evidence presented at trial in a different light and undercut[ ] the

court’s confidence in the factual correctness of the guilty verdict.” People v. Coleman, 2013 IL

113307, ¶ 97. That has clearly occurred here. When all of the postconviction evidence is viewed in

a light most favorable to petitioner, the trial court erred when it said that no contrary ruling could

ever stand.

¶ 42   As for the trial court’s evidentiary rulings about pattern and practice evidence, that

evidence should have been allowed, consistent with our explanation in Reyes that “any allegation

that Guevara coerced a person to provide evidence is relevant to whether defendants in the case at

bar were similarly coerced.” Reyes, 369 Ill. App. 3d at 21. Of course, there are some limitations

attendant to the preceding statement, but, based on the offers of proof made by petitioner, all of the

proffered testimony about Guevara’s purported misconduct should have been admitted.

Furthermore, the trial court erred in its ruling concerning the proffered postconviction testimony of



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Wilda Vargas. It is immensely relevant and she should be able to testify about being manipulated

by Guevara in this case. It might very well be the most important testimony in the case.

¶ 43   Petitioner acknowledges that the ordinary remedy here would be to remand the case for

additional proceedings, but he asks that we skip that step and vacate his conviction outright. While

we are sympathetic to petitioner receiving the wrong result in the trial court, we decline to

disregard the strictures of the Post-Conviction Hearing Act and grant him the extraordinary relief

requested. At this stage, we cannot consider the evidence offered to have proved anything. We

cannot say, as petitioner suggests, that he has proved “total vindication.” Petitioner tacitly

acknowledges this fact a number of times in his argument but asks that we order a new trial despite

not providing any authority for his request. The State has argued that it indeed has evidence to

rebut and impeach the evidence offered at the evidentiary hearing. As stated in addressing the

State’s arguments, it believes Halvorsen’s testimony is more credible than Vicente’s recantation.

The State also argues at great length why the recantation should not be credited at all, and why

petitioner’s theory of the case is far-fetched. The State is entitled to the opportunity to probe those

supposed weaknesses.

¶ 44   Petitioner also argues that he is entitled to a new trial based on its Brady claim. Again,

petitioner acknowledges that, in the ordinary course, the relief to which he would be entitled would

be a remand to the trial court for a continuation of the proceedings. The Brady claim was not

addressed at the evidentiary hearing—petitioner did not even mention it. Certainly the elements of

a Brady claim cannot at this juncture be considered proved. There is nothing substantive in the

record that compels us to take a claim not argued in the trial court and go so far as to order a new

trial on its merits. The State is entitled to an opportunity to rebut that claim as well, and it argues



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that it can.

¶ 45    The final issue in this appeal is that petitioner suggests we should remove the

postconviction judge from the case and assign the case to a different judge on remand. Petitioner

argues that since the postconviction judge has already ruled that no contrary verdict could ever

stand and since the judge has expressed a disregard for the evidence presented, it would be

essentially worthless to send the case back to the same judge. We agree. Illinois Supreme Court

Rule 366(a)(5) (eff. Feb. 1, 1994) gives a reviewing court, in its discretion, the power to reassign a

matter to a new judge on remand. People v. Tally, 2014 IL App (5th) 120349, ¶ 43. Petitioner

offered up an abundance of evidence to support his claim of actual innocence. The trial court

turned a blind eye to much of the evidence, and also refused to admit probative, admissible

evidence that, when evaluated under the proper standard, is damning. Even where the court gave

lip service to the standard it was supposed to apply, the court clearly did not adhere to that

standard. The postconviction court gave the impression that it was flatly unwilling to consider the

evidence offered by petitioner. See Reyes, 369 Ill. App. 3d at 25. Petitioner would be prejudiced

were we not to assign the case to a new judge on remand. Therefore, pursuant to the discretion

conferred on this court by the supreme court rules, we find that the interests of justice would be

best and most efficiently served by the case being assigned to a different judge on remand.

¶ 46                                       CONCLUSION

¶ 47    Accordingly, the trial court’s judgment is reversed and its directed finding is vacated.

Petitioner is entitled to supplement his petition on remand and to submit evidence supporting his

Brady claim. The case is remanded to the presiding judge of the criminal division of the circuit

court with instructions to assign the case to a different judge to adjudicate the reinstated third-stage



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postconviction proceedings.

¶ 48   Reversed and remanded.




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