                               Illinois Official Reports

                                      Appellate Court



                          People v. Haynes, 2015 IL App (3d) 130091



Appellate Court          THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                  TERRENCE D. HAYNES, Defendant-Appellant.



District & No.           Third District
                         Docket No. 3-13-0091



Filed                    January 13, 2015
Rehearing denied         February 26, 2015



Held                       The summary dismissal of defendant’s pro se postconviction petition
(Note: This syllabus alleging that the prosecution suborned perjury of a proffered witness
constitutes no part of the during his murder trial was reversed and the cause was remanded for
opinion of the court but second-stage proceedings, since defendant admitted shooting the
has been prepared by the victim but testified that he feared for his life and evidence that the
Reporter of Decisions victim had a gun on his person was relevant to defendant’s defense;
for the convenience of furthermore, defendant alleged in his petition that an assistant State’s
the reader.)               Attorney who assisted in defendant’s case was related to a prosecution
                           witness who was the only eyewitness to the shooting and the witness
                           provided defendant with an affidavit stating that he was told by his
                           cousin not to mention that the victim had a gun.



Decision Under           Appeal from the Circuit Court of Kankakee County, No. 99-CF-338;
Review                   the Hon. Kathy Bradshaw-Elliott, Judge, presiding.



Judgment                 Reversed and remanded.
     Counsel on               Kerry J. Bryson (argued), of State Appellate Defender’s Office, of
     Appeal                   Ottawa, for appellant.

                              Lisa Madigan, Attorney General, of Chicago (Sameena Mohammed
                              (argued), Assistant Attorney General, of counsel), for the People.



     Panel                    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.



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¶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 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 IL 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 to 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
       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 eyewitness 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


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       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
       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).
¶ 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

           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.

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