People v. Snow

ILLINOIS OFFICIAL REPORTS

Appellate Court

People v. Snow, 2012 IL App (4th) 110415

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. Caption JAMES C. SNOW, Defendant-Appellant.

District & No. Fourth District

Docket No. 4-11-0415

Filed January 11, 2012 Supplemental opinion filed on denial of rehearing March 5, 2012 Held In postconviction proceedings arising from defendant’s 2001 conviction (Note: This syllabus for first degree murder, the appellate court affirmed the dismissal of constitutes no part of defendant’s amended postconviction petition and the denial of his motion the opinion of the court for ballistics testing, since his actual-innocence claim was almost entirely but has been prepared based on evidence that was not newly discovered, defendant failed to by the Reporter of prove his claims of ineffective assistance of counsel were not barred by Decisions for the res judicata, he forfeited the issues related to his motion to supplement convenience of the his petition and his motion for discovery, and his motion for ballistics reader.)

testing was properly denied without a hearing where defendant’s claim that testing could show that some unknown weapon used in another offense could identify the “true perpetrator” of his crime was wholly speculative.

Decision Under Appeal from the Circuit Court of McLean County, No. 99-CF-1016; the Review Hon. Alesia A. McMillen, Judge, presiding.

Judgment Affirmed.

Counsel on Jon Loevy, Russell Ainsworth, Gayle Horn, Tara Thompson (argued), Appeal and Elizabeth Wang, all of University of Chicago Law School, of

Chicago, for appellant.

William A. Yoder, State’s Attorney, of Bloomington (Patrick Delfino, Robert J. Biderman, and Anastacia R. Brooks (argued), all of State’s Attorneys Appellate Prosecutor’s Office, of counsel), for the People.

Panel PRESIDING JUSTICE TURNER delivered the judgment of the court,

with opinion.

Justices Appleton and Knecht concurred in the judgment and opinion.

OPINION

¶1 Defendant, James C. Snow, appeals the McLean County circuit court’s (1) dismissal of

his amended postconviction petition at the second-stage of the proceedings, (2) denial of his March 2011 motion to supplement the record, and (3) denial of his motion for ballistics testing. On appeal, defendant only challenges the court’s dismissal of the claims in his amended postconviction petition and the denial of his motion for ballistics testing. We affirm.

¶2 I. BACKGROUND ¶3 In September 1999, a grand jury charged defendant with three counts of first degree

murder (Ill. Rev. Stat. 1991, ch. 38, ¶¶ 9-1(a)(1), (a)(2), (a)(3 for the death of William Little on March 31, 1991. Defendant’s January 2001 trial took place over the course of nine days, and the parties presented testimony from 56 witnesses. Defendant was represented by Frank Picl and Patrick Riley and the State was represented by then McLean County State’s Attorney Charles Reynard and assistant Teena Griffin. The jury found defendant guilty of first degree murder on all three counts. Defendant filed a posttrial motion and a pro se motion asserting he was denied effective assistance of trial counsel. After an April 2001 hearing, the trial court concluded defendant received effective assistance of counsel and declined to appoint new counsel for defendant. In May 2001, the court denied defendant’s posttrial motion and sentenced defendant to natural life in prison. Defendant then filed a motion to reconsider his sentence, which the court denied. Defendant appealed his convictions and sentences.

¶4 On appeal, defendant argued (1) the trial court erred by not appointing him new counsel

for a hearing on his ineffective-assistance-of-counsel claims, (2) the court erred by not

allowing him to present expert testimony regarding eyewitness identification, (3) the court

erred in admitting several pieces of evidence, (4) the prosecutor made several improper

remarks during her closing arguments, (5) the court erred in giving an accountability

instruction, (6) the State failed to prove him guilty beyond a reasonable doubt, (7) he was

denied effective assistance of counsel, and (8) the court erred in sentencing him to natural

life in prison. This court vacated defendant’s convictions and sentences on the knowing-murder and felony-murder counts because defendant could only stand convicted of one murder for Little’s death (see People v. Cardona, 158 Ill. 2d 403, 412, 634 N.E.2d 720, 724

(1994 and affirmed defendant’s conviction and sentence for intentional murder in all other

respects. People v. Snow, No. 4-01-0435 (Aug. 20, 2004) (unpublished order under Supreme

Court Rule 23). The Supreme Court of Illinois denied defendant’s petition for leave to

appeal. People v. Snow, 212 Ill. 2d 549, 824 N.E.2d 290 (2004).

¶5 In May 2004, defendant filed his pro se postconviction petition. The next month, he filed

a pro se supplemental amendment to his petition. In February 2006, defendant filed a pro se

second supplemental amendment to his postconviction petition. The next month, defendant’s

counsel filed an amended postconviction petition. In January 2008, defendant again filed a

pro se amended postconviction petition. In April 2008, the Exoneration Project entered its

appearance on defendant’s behalf.

¶6 In January 2010, the Exoneration Project filed a motion for discovery and a 53-page

amended petition for postconviction relief. Attached to the amended petition were 32

exhibits. The amended motion did not indicate it incorporated or is a supplement to

defendant’s other postconviction petitions. The next month, defendant filed a motion to

transfer venue, noting former McLean County State’s Attorney Reynard had become a circuit

court judge and would likely be a witness at an evidentiary hearing. In April 2010, the State

filed a motion to dismiss defendant’s amended postconviction petition. Thereafter, in

response to defendant’s motion to transfer venue, Judge Alesia A. McMillen of Schuyler

County was assigned to hear this case. In August 2010, defendant filed (1) a response to the

State’s motion to dismiss and (2) a motion to supplement the record with two additional

exhibits. On November 5, 2010, the trial court held a hearing on the State’s motion to

dismiss. By agreement of the parties, the court allowed defendant’s August 2010 motion to

supplement. The court took the motion to dismiss under advisement. The parties both later

filed supplemental responses addressing the matters raised by the court at the hearing on the

State’s motion to dismiss. In March 2011, defendant filed another motion to supplement the

record with newly discovered evidence, consisting of three more exhibits. He also filed a

motion for postconviction ballistics testing under section 116-3 of the Code of Criminal

Procedure of 1963 (Procedure Code) (725 ILCS 5/116-3 (West 2010 . On April 21, 2011,

the trial court filed its order, granting the State’s motion to dismiss defendant’s amended

postconviction petition. The court’s dismissal mooted defendant’s motion for discovery,

which the court never heard. On May 9, 2011, the court filed an order, denying defendant’s

March 2011 motion to supplement the record and motion for ballistics testing.

¶7 On May 16, 2011, defendant filed his notice of appeal in sufficient compliance with Illinois Supreme Court Rule 606 (eff. Mar. 20, 2009). See Ill. S. Ct. R. 651(d) (eff. Dec. 1,

1984) (providing the supreme court rules governing criminal appeals apply to appeals in postconviction proceedings). The notice of appeal stated defendant was appealing the “[w]ritten rulings of April 19, 2011 and May 9, 2011, denying [defendant]’s post-conviction petition, motions to supplement, and motions for ballistic testing.” Accordingly, this court has jurisdiction under Illinois Supreme Court Rule 651(a) (eff. Dec. 1, 1984).

¶8 II. ANALYSIS ¶9 A. Postconviction Petition ¶ 10 Defendant first asserts the trial court erred by dismissing his amended postconviction

petition without an evidentiary hearing. In support of his contention, defendant specifically contends the court applied the wrong standard of review and erred by dismissing his (1) actual-innocence claim; (2) ineffective-assistance-of-counsel claim; (3) claim under Brady v. Maryland, 373 U.S. 83 (1963); (4) other due-process claims; and (5) cumulative-error claim.

¶ 11 Initially, we remind defendant, the appellant in this case, of the briefing requirements on

appeal. As this court has noted in a second-stage dismissal case, Illinois Supreme Court Rule 341(h)(7) provides, “ ‘[p]oints not argued [in the appellant’s brief] are waived and shall not be raised in the reply brief, in oral argument, or on petition for rehearing.’ ” People v. Borello, 389 Ill. App. 3d 985, 998, 906 N.E.2d 1250, 1261 (2009) (quoting Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006 . Additionally, Rule 341(h)(7) requires the contentions raised in the argument section of the brief to be supported by citation to legal authority and the pages of the record relied on, not the appendix. Ill. S. Ct. R. 341(h)(7) (eff. Sept. 1, 2006). The failure to do so results in forfeiture of the argument. Byrd v. Hamer, 408 Ill. App. 3d 467, 487, 943 N.E.2d 115, 134 (2011). Moreover, this court is not a depository into which the appellant can dump his burden of argument and research. See Barth v. State Farm Fire & Casualty Co., 371 Ill. App. 3d 498, 507, 867 N.E.2d 1109, 1117 (2007). Accordingly, we only will address the issues and supporting evidence properly raised in defendant’s brief.

¶ 12 1. Standard of Review ¶ 13 The Post-Conviction Hearing Act (Postconviction Act) ( /art. 122 (West

2004 provides a remedy for defendants who have suffered a substantial violation of

constitutional rights at trial. People v. Pendleton, 223 Ill. 2d 458, 471, 861 N.E.2d 999, 1007

(2006). In cases not involving the death penalty, the Postconviction Act sets forth three

stages of proceedings. Pendleton, 223 Ill. 2d at 471-72, 861 N.E.2d at 1007.

¶ 14 At the first stage, the trial court independently reviews the defendant’s postconviction

petition and determines whether “the petition is frivolous or is patently without merit.” 725

ILCS 5/122-2.1(a)(2) (West 2004). If it finds the petition is frivolous or patently without

merit, the court must dismiss the petition. /122-2.1(a)(2) (West 2004). If the court

does not dismiss the petition, it proceeds to the second stage, where, if necessary, the court

appoints the defendant counsel. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Defense

counsel may amend the defendant’s petition to ensure his or her contentions are adequately presented. Pendleton, 223 Ill. 2d at 472, 861 N.E.2d at 1007. Also, at the second stage, the State may file a motion to dismiss the defendant’s petition or an answer to it. Pendleton, 223

Ill. 2d at 472, 861 N.E.2d at 1008. If the State does not file a motion to dismiss or the court

denies such a motion, the petition advances to the third stage, wherein the court holds a

hearing at which the defendant may present evidence in support of his or her petition.

Pendleton, 223 Ill. 2d at 472-73, 861 N.E.2d at 1008. In this case, the State did file a motion

to dismiss, and the court granted that motion.

¶ 15 With the second-stage of the postconviction proceedings, the trial court is concerned

merely with determining whether the petition’s allegations sufficiently demonstrate a

constitutional infirmity that would necessitate relief under the Postconviction Act. People

v. Coleman, 183 Ill. 2d 366, 380, 701 N.E.2d 1063, 1071 (1998). At this stage, “the

defendant bears the burden of making a substantial showing of a constitutional violation” and

“all well-pleaded facts that are not positively rebutted by the trial record are to be taken as

true.” Pendleton, 223 Ill. 2d at 473, 861 N.E.2d at 1008. The court reviews the petition’s

factual sufficiency as well as its legal sufficiency in light of the trial court record and

applicable law. People v. Alberts, 383 Ill. App. 3d 374, 377, 890 N.E.2d 1208, 1212 (2008).

However, our supreme court has emphasized that, when a petitioner’s claims are based upon

matters outside the record, the Postconviction Act does not intend such claims be adjudicated

on the pleadings. People v. Simms, 192 Ill. 2d 348, 360, 736 N.E.2d 1092, 1105 (2000). At

a dismissal hearing, the court is prohibited from engaging in any fact finding. Coleman, 183

Ill. 2d at 380-81, 701 N.E.2d at 1071. Thus, the dismissal of a postconviction petition at the

second stage is warranted only when the allegations in the petition, liberally construed in

light of the trial record, fail to make a substantial showing of a constitutional violation.

Coleman, 183 Ill. 2d at 382, 701 N.E.2d at 1072. We review de novo the trial court’s

dismissal of a postconviction petition at the second stage. Pendleton, 223 Ill. 2d at 473, 861

N.E.2d at 1008.

¶ 16 Defendant contends the trial court applied the wrong standard in reviewing his amended

postconviction petition as it found his evidence was not credible and asserts the court’s

dismissal should be reversed on that reason alone. However, with a first-stage dismissal, the

Second District has found a trial court’s utilization of the wrong standard is not a basis for

reversing the dismissal. People v. Dominguez, 366 Ill. App. 3d 468, 473, 851 N.E.2d 894,

900 (2006); but cf. People v. Newbolds, 364 Ill. App. 3d 672, 679, 847 N.E.2d 614, 621

(2006) (finding the court’s use of the improper standard at the first stage was a basis for

reversing its dismissal of the postconviction petition). The Dominguez court explained that,

since a reviewing court may affirm on any proper ground, a procedurally proper summary

dismissal based on an improper ground may still be affirmed. Dominguez, 366 Ill. App. 3d

at 473, 851 N.E.2d at 900. Thus, the reviewing court should apply the proper standard and

“affirm if, in accordance with that standard, the summary dismissal is justified.” Dominguez,

366 Ill. App. 3d at 473, 851 N.E.2d at 900.

¶ 17 We find the rationale of Dominguez well reasoned and also applicable to second-stage

dismissals since a reviewing court may affirm a trial court’s dismissal at the second stage on

any grounds substantiated by the record, regardless of the trial court’s reasoning. See People

v. Demitro, 406 Ill. App. 3d 954, 956, 942 N.E.2d 20, 22 (2010). Our de novo review utilizing the proper standard addresses the trial court’s use of an improper one if it did so. Thus, we conclude the use of an improper standard in analyzing a postconviction petition at

the second stage does not itself serve as a basis for reversal, and we need not address whether

the trial court used the wrong standard.

¶ 18 2. Actual Innocence ¶ 19 Defendant next argues the trial court improperly dismissed his actual-innocence claim.

The State disagrees.

¶ 20 A freestanding claim of actual innocence is cognizable under the Postconviction Act

because a wrongful conviction of an innocent person violates due process under the Illinois Constitution. People v. Barnslater, 373 Ill. App. 3d 512, 519, 869 N.E.2d 293, 299 (2007). Such a claim must be “based on newly discovered, material, and noncumulative evidence that the defendant is innocent of the crime for which he has been tried, convicted, and sentenced.” People v. Harris, 206 Ill. 2d 293, 301, 794 N.E.2d 181, 187 (2002). Moreover, an actual-innocence claim only entitles a defendant to relief when “the evidence is of such a conclusive character that it would probably change the result of retrial.” Harris, 206 Ill. 2d at 301, 794 N.E.2d at 188.

¶ 21 Since the trial court found almost all of defendant’s evidence supporting an actual-innocence claim was not newly discovered evidence, we begin our analysis there. With an

actual-innocence claim, newly discovered evidence is defined as “evidence that was unavailable at trial and could not have been discovered sooner through due diligence.” Harris, 206 Ill. 2d at 301, 794 N.E.2d at 187. The defendant bears the burden of showing no lack of due diligence on his or her part. See Barnslater, 373 Ill. App. 3d at 525, 869 N.E.2d at 304. Moreover, if the evidence was available at a prior posttrial proceeding, the evidence is also not newly discovered evidence. See People v. English, 403 Ill. App. 3d 121, 133, 933 N.E.2d 366, 379 (2010) (finding the evidence was not newly discovered evidence where the evidence was available at trial and when the initial postconviction petition was filed). Evidence is also not newly discovered when the evidence “presents facts already known to a defendant at or prior to trial, though the source of these facts may have been unknown, unavailable or uncooperative.” People v. Collier, 387 Ill. App. 3d 630, 637, 900 N.E.2d 396, 403 (2008).

¶ 22 Despite the requirement a defendant must show due diligence in the discovery of the

supporting evidence, defendant’s amended postconviction petition does not assert any due diligence in discovering the evidence supporting defendant’s actual-innocence claim. Defendant simply suggests the evidence is new because it was not made part of the record during his trial. On its face, most of defendant’s supporting evidence would have been available at defendant’s trial or direct appeal with the exercise of due diligence. The only supporting material clearly after defendant’s trial and direct appeal are the facts and rulings in People v. Beaman, 229 Ill. 2d 56, 890 N.E.2d 500 (2008), and People v. Drew, No. 4-08- 0011 (Dec. 4, 2008) (unpublished order under Illinois Supreme Court Rule 23). ¶ 23 In his appellate brief, defendant suggests recantations are an exception to the newly

discovered evidence requirement. See Barnslater, 373 Ill. App. 3d at 524, 869 N.E.2d at 304.

A defendant may present a witness’s recantation as newly discovered evidence, even though

the defendant knew the witness had perjured himself or herself. Barnslater, 373 Ill. App. 3d

at 524, 869 N.E.2d at 304. However, the exception will not apply “if the defendant had

evidence available at the time of trial to demonstrate that the witness was lying.” Barnslater,

373 Ill. App. 3d at 524, 869 N.E.2d at 304. Thus, the defendant has the burden of showing

other evidence of the lying could not have been discovered before trial with due diligence.

See Barnslater, 373 Ill. App. 3d at 525, 869 N.E.2d at 304. While defendant cites Barnslater,

he does not address the fact the recantation exception does not apply to all recantations.

Defendant also does not address the due-diligence requirement with regard to the

recantations in either his petition or his brief. Due to defendant’s failure to plead and argue

in his brief due diligence, defendant has failed to meet his burden of showing the recantations

were newly discovered evidence.

¶ 24 Besides the recantations, the only other evidence for which defendant attempts to meet

the newly discovered evidence requirement on appeal is Jeffery Pelo’s and Carlos Luna’s

affidavits. Thus, we specifically address those two affidavits.

¶ 25 Defendant contends Pelo’s affidavit supports his actual-innocence claim because it

demonstrates Danny Martinez could not have seen defendant exiting the gas station because,

given the time line described by Pelo and Martinez, Pelo would have also seen defendant exit

the gas station. Defendant argues it is “new” evidence because it is not clear from any of

Pelo’s prior statements what his testimony would be and the State told him to keep his

opinion out of the trial testimony. However, in a March 3, 1999, interview of Pelo, Pelo

makes no mention of anyone exiting the gas station after his arrival at the scene.

Additionally, in his affidavit, Pelo, a trial witness, stated he expected defense counsel to

bring out the fact he did not see anyone exit the gas station. Clearly, Pelo’s testimony about

not seeing anyone leave the gas station was available at trial. Accordingly, it is not newly

discovered evidence.

¶ 26 Defendant contends Luna’s affidavit shows Luna was unsure he identified the right

person, unsure he could identify the face of the person he saw, and identified defendant

because (1) he “best fit the description” and (2) “[a]s a 14 year old I thought the police had

caught the right person.” Defendant argues it is new evidence because it provides new

information about the strength of Luna’s identification. However, the information in the

affidavit is similar to Luna’s trial testimony and thus is not newly discovered evidence. At

trial, Luna, who was then 24 years old, testified that, at the lineup, he picked number six

(defendant) because he imagined every one of the men in the lineup “doing it” and “he was

the one that fit the image” of the man he saw on the night of the murder. Luna told the

officer, “I think he is the person.” Thus, Luna’s statement defendant “best fit the description”

and Luna’s doubt in making the identification is not different from his trial testimony.

Moreover, at trial, Luna described the man’s race, height, and clothing but was unsure as to

his hair color. In his testimony, Luna never described any distinct facial features of the man

he saw. Accordingly, Luna’s statement he was unsure he could identify the face of the person

is similar to his trial testimony. As to Luna’s statement regarding his thoughts as a 14-yearold boy about the police catching the right person, that statement is contradicted by the record. In the June 1991 lineup, Luna identified number six (defendant) as the man he saw leaving the gas station. The record contains no evidence the police informed Luna number six had been arrested for Little’s murder or was the prime suspect for the murder. In fact,

defendant was not charged with the murder until eight years after the lineup, and the other

eyewitnesses did not identify defendant in the lineup. Further, Luna did not identify

defendant in court when he testified as a 24-year-old man. Additionally, defense counsel

questioned Luna about his age and his distance from the man he saw the night of the murder.

Thus, Luna’s affidavit is also not newly discovered evidence.

¶ 27 Accordingly, since due diligence was not addressed at all in defendant’s amended

postconviction petition and in his brief, the only supporting materials meeting the newly

discovered evidence requirement are Beaman and Drew because those rulings were clearly

not available until after defendant’s trial and direct appeal. However, defendant does not cite

those cases in the argument section of his brief, and the cases standing alone are not material

to defendant’s case. Thus, we find the trial court properly dismissed defendant’s actual-innocence claim.

¶ 28 3. Ineffective Assistance of Counsel ¶ 29 On appeal, defendant asserts 12 reasons why he was denied effective assistance of trial

counsel. The State asserted in its motion to dismiss this issue was barred by the doctrine of

res judicata, and the trial court agreed.

¶ 30 Under the doctrine of res judicata, any issues the court considered on direct appeal are

barred from being addressed in a postconviction proceeding. People v. Ligon, 239 Ill. 2d 94,

103, 940 N.E.2d 1067, 1073 (2010). With ineffective-assistance-of-counsel claims, our

supreme court has also applied res judicata when the issue of ineffectiveness of trial counsel

has already been addressed on direct appeal and the postconviction petition added “somewhat

different allegations of incompetence.” People v. Albanese, 125 Ill. 2d 100, 105, 531 N.E.2d

17, 19 (1988); see also People v. Kokoraleis, 159 Ill. 2d 325, 328, 637 N.E.2d 1015, 1017

(1994) (citing the aforementioned language from Albanese). Moreover, issues that the court

could have considered on direct appeal are deemed waived. Ligon, 239 Ill. 2d at 103, 940

N.E.2d at 1073. Our supreme court has found the following three exceptions to the doctrines

of res judicata and waiver: “ ‘where fundamental fairness so requires; where the alleged

waiver stems from the incompetence of appellate counsel; or where facts relating to the claim

do not appear on the face of the original appellate record.’ ” People v. Pitsonbarger, 205 Ill.

2d 444, 458, 793 N.E.2d 609, 620 (2002) (quoting People v. Mahaffey, 194 Ill. 2d 154, 171,

742 N.E.2d 251, 261 (2000 . Additionally, to the extent defendant suggests res judicata is

an issue that needs to be addressed at the third stage of the proceedings, our supreme court

has held trial courts may summarily dismiss postconviction petitions at the first stage of the

proceedings based on both res judicata and waiver because, inter alia, they are inherently

legal determinations. People v. Blair, 215 Ill. 2d 427, 442, 445, 831 N.E.2d 604, 614-15

(2005).

¶ 31 In his appellate brief, defendant argues the “bulk” of his ineffective-assistance-of-counsel

claims were not raised on direct appeal, and thus res judicata does not apply to them. He

further argues claims based on evidence outside the trial record are not barred by res judicata, and if he waived any claims, he was denied ineffective assistance of appellate counsel. However, he does not explain which of the 12 claims of ineffective assistance of

counsel survive res judicata. Further, defendant asserts that, while he raised issues regarding

witnesses in his posttrial motions, he did not receive a hearing under People v. Krankel, 102

Ill. 2d 181, 464 N.E.2d 1045 (1984), and had no opportunity to put on the record evidence

from these witnesses that supported his ineffective-assistance-of-counsel claim. That

assertion is completely contradicted by the record and our order on direct appeal. See Snow,

slip order at 7-11. On April 5, 2001, the trial court held a hearing on defendant’s request to

have his trial attorneys discharged before sentencing. As we stated in our prior order, “the

trial court thoroughly questioned defendant, his two trial attorneys, and the prosecutor as to

each allegation, including almost all of the 20 plus alleged impeachment witnesses.” Snow,

slip order at 9-10. Defendant’s attorneys explained their trial strategy as to impeachment

witnesses, and Picl’s alcohol consumption was addressed. Defendant was allowed to state

the testimony his alleged impeachment witnesses would have given. Those issues were again

raised on direct appeal and addressed by this court. See Snow, slip order at 7-11.

¶ 32 Due to the fact ineffective assistance of counsel has already been addressed by this court

and a record on the issue established, res judicata is not an issue that can be summarily

addressed as defendant attempts to do in his brief. Defendant fails to provide any real

analysis on this issue, and it is not the job of this court to bear defendant’s burden of

argument. Accordingly, we find defendant failed to prove his claims were not barred by res

judicata due to his lack of argument, and thus the trial court properly dismissed this issue as

well.

¶ 33 4. Brady Claim ¶ 34 In his brief, defendant asserts Brady violations occurred with respect to the following

trial witnesses: Pelo, Jody Winkler, Kevin Schaal, Bruce Roland, and Steven Scheel.

¶ 35 In Brady, 373 U.S. at 87, the United States Supreme Court held an accused’s due-process

rights are violated when the prosecution suppresses evidence that is both favorable to the

accused and material either to guilt or punishment. Thus, for defendant to obtain a new trial

under Brady, he must show (1) the State suppressed evidence and that evidence was (2)

favorable to him and (3) material to his guilt or punishment. A Brady claim may arise in the

following three circumstances: (1) where previously undisclosed evidence reveals the

prosecution introduced trial testimony it knew or should have known was perjured, (2) where

the State fails to comply with a defense request for disclosure of some specific exculpatory

evidence, and (3) where the State fails to voluntarily give the defense exculpatory evidence

never requested or requested only in a general manner. Kyles v. Whitley, 514 U.S. 419, 433

(1995). In addition to exculpatory evidence, impeachment evidence falls within the Brady

rule. United States v. Bagley, 473 U.S. 667, 676 (1985).

¶ 36 In the first circumstance, the conviction must be set aside if any reasonable likelihood

exists that the false testimony could have affected the jury’s judgment. Kyles, 514 U.S. at 433

n.7. In the last two circumstances, favorable evidence is material “ ‘if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.’ ” Kyles, 514 U.S. at 433-34 (quoting Bagley, 473 U.S. at 682 (opinion of Blackmun, J., joined by O’Connor, J. . A “reasonable probability” of a different

result exists when the State’s evidentiary suppression “ ‘undermines confidence in the

outcome of the trial.’ ” Kyles, 514 U.S. at 434 (quoting Bagley, 473 U.S. at 678).

¶ 37 In assessing materiality, we must keep in mind (1) it does not require a demonstration by

a preponderance of the evidence that disclosure of the suppressed evidence would have

resulted ultimately in the defendant’s acquittal; (2) the focus is on whether, in the absence

of the undisclosed information, the defendant received a fair trial, which is a trial resulting

in a verdict worthy of confidence; (3) it does not require the defendant to demonstrate that,

“after discounting the inculpatory evidence in light of the undisclosed evidence, there would

not have been enough left to convict”; and (4) it is defined “in terms of suppressed evidence

considered collectively, not item by item.” Kyles, 514 U.S. at 434-36.

¶ 38 As to Pelo, defendant misrepresents what Pelo stated in his affidavit. The prosecutor

stated she was not asking Pelo to lie but asking him only to answer the questions she asked.

Pelo further stated that, if defense counsel had asked him additional questions about what

happened that night, he would have testified he did not see anyone leave the gas station. That

information is consistent with Pelo’s statement in the 1999 police interview, which defendant

does not allege was not part of pretrial discovery. Pelo’s not seeing anyone leave the gas

station after his arrival did not come out due to defense counsel’s cross-examination, not the

State’s failure to disclose exculpatory evidence. Accordingly, a Brady violation did not occur

in relation to Pelo.

¶ 39 Defendant alleges Winkler received a deal from the State despite his testimony to the

contrary. Defendant attached sentencing documents to his postconviction petition. Those

documents show Winkler pleaded guilty to forgery on January 28, 2000, pursuant to a plea

agreement. Winkler received a 4-year sentence when he was eligible for a sentence of up to

10 years. Defendant only questions the length of Winkler’s sentence and cites nothing

connecting Winkler’s sentence to his testimony in this case. Moreover, defendant does not

refute the State’s argument Winkler’s plea agreement was public information. “[W]hen the

information is readily available to the defense from another source, there simply is nothing

for the government to ‘disclose.’ ” Matthews v. Ishee, 486 F.3d 883, 891 (6th Cir. 2007).

Accordingly, defendant has not shown the State failed to disclose any information related to

Winkler.

¶ 40 The same is true for the July 2000 motion for a downward sentencing departure in

Schaal’s federal prosecution. The State argues it was public information, and thus the

information contained in it did not have to be disclosed. Defendant again does not respond

to this argument in his reply brief. Thus, defendant has again failed to demonstrate a Brady

violation.

¶ 41 In his brief, defendant simply notes that, at the time of defendant’s trial, sentencing

records for Roland show he had several pending felony considerations, for which he seemed

to receive “light sentences and special considerations.” However, “ ‘ “[t]he government is

free to reward witnesses for their cooperation with favorable treatment in pending criminal

cases without disclosing to the defendant its intention to do so, provided that it does not promise anything to the witness prior to the testimony.” ’ [Citation.]” (Emphasis in original.) Akrawi v. Booker, 572 F.3d 252, 263 (6th Cir. 2009). On appeal, defendant just highlights

favorable considerations and does not allege a promise by the State before Roland testified.

Defendant has again not shown a Brady violation.

¶ 42 Regarding Scheel, defendant asserts the State failed to disclose it coached Scheel’s

testimony by giving him details. Those details concern what defendant was wearing at the

party where defendant confessed to Scheel he killed Little. The State argues Larry Biela’s

affidavit, which is the only evidence of the State’s coaching Scheel, is improper hearsay. See

People v. Morales, 339 Ill. App. 3d 554, 565, 791 N.E.2d 1122, 1132 (2003). Defendant

argues that is the best evidence he has at this point. Our supreme court has yet to decide this

issue. See People v. Mitchell, 189 Ill. 2d 312, 341, 727 N.E.2d 254, 271 (2000) (“Assuming,

without deciding, that one can obtain an evidentiary hearing based upon inadmissable

hearsay evidence, we find defendant’s argument to be meritless.”). Thus, we decline to find

defendant failed to properly allege a nondisclosure related to Scheel because the allegation

was based on a hearsay affidavit. The fact the State coached one of its witnesses is favorable

to defendant, and thus we address whether the evidence was material to defendant’s guilt.

¶ 43 In his brief, defendant cites the materiality test for the last two circumstances, i.e., “ ‘if

there is a reasonable probability that, had the evidence been disclosed to the defense, the

result of the proceeding would have been different.’ ” Kyles, 514 U.S. at 433-34 (quoting

Bagley, 473 U.S. at 682) (opinion of Blackmun, J., joined by O’Connor, J.). He argues that

credibility was the key issue for every one of the State’s witnesses, and thus he made a

substantial showing of a reasonable probability that if the evidence had been disclosed the

outcome of his trial would have been different. In support of his argument, he cites Giglio

v. United States, 405 U.S. 150 (1972). There, the United States Supreme Court found

material an undisclosed agreement or understanding between the government and its witness

because the agreement or understanding was relevant to the witness’s credibility and the

government’s case depended almost entirely on the witness’s testimony. Giglio, 405 U.S. at

154-55. In this case, defendant has failed to allege how Scheel’s coaching alone undermines

confidence in his trial’s outcome. Moreover, unlike Giglio, Scheel was one of the State’s 43

witnesses that testified at defendant’s trial. He was also one of the many witnesses that

testified defendant in some way acknowledged killing Little. Unlike Martinez and Luna,

defendant has not alleged Scheel was a main witness. Thus, defendant has failed to meet his

burden of pleading a substantial showing of a constitutional violation with regard to Scheel.

¶ 44 Accordingly, we find the trial court did not err by dismissing defendant’s Brady claim.

¶ 45 5. Other Due-Process Claims ¶ 46 Defendant also asserts his due-process rights were violated because defendant had

committed a crime against two of the jurors in the past and Martinez’s identification was inherently unreliable and suggestive.

¶ 47 a. Jurors ¶ 48 Defendant cites People v. Holmes, 69 Ill. 2d 507, 514, 372 N.E.2d 656, 659 (1978), where our supreme court recognized outside influences exerted on a jury during deliberations

may have such a probability that prejudice will result that the trial inherently lacked due process. The Holmes court emphasized that not “every instance in which extraneous or unauthorized information reaches the jury results in error so prejudicial as to require reversal.” Holmes, 69 Ill. 2d at 519, 372 N.E.2d at 661. There, some of the jurors did an independent investigation, which resulted in reversible error because the information discovered was crucial to the question of the defendant’s identification and he had neither been confronted at trial with the information nor given the opportunity to refute it. Holmes, 69 Ill. 2d at 519, 372 N.E.2d at 662.

¶ 49 Here, defendant alleges the jurors believed defendant had committed a crime against one

of the jurors in the past. However, Randall Howard’s affidavit only indicates a tall bailiff opined defendant was “gonna fry this time” because defendant had previously robbed the homes of two of the jurors. Howard’s affidavit does not indicate the jurors were aware defendant had robbed two of their homes in the past. Moreover, defendant does not allege prejudice requiring reversal, despite Holmes emphasizing not every extraneous information received by the jury requires reversal. Holmes, 69 Ill. 2d at 519, 372 N.E.2d at 661. Last, this speculative claim is refuted by the voir dire transcripts, which show the trial court questioned the jurors about (1) knowing defendant and (2) being the victim of a crime, and none of them revealed being defendant’s crime victim. In response to the questions, only one of the jurors stated she was a victim of a crime about seven years earlier. The crime involved a man and woman trying to enter her home. The people were later caught when they tried to enter another home, and the juror heard the people “served time.” The juror did not know the people’s names and did not testify against them. A potential juror did state defendant and a trial witness broke into his home when defendant and his friend were juveniles. However, that potential juror was struck for cause.

¶ 50 Accordingly, the trial court properly dismissed this claim as well.

¶ 51 b. Identification ¶ 52 Defendant also argues his due-process right was violated because Martinez’s testimony

about defendant’s identification was inherently unreliable and suggestive. In support of his argument, he cites People v. Rodriguez, 387 Ill. App. 3d 812, 829, 901 N.E.2d 927, 943 (2008), which dealt with showup identifications. Martinez did not identify defendant at a show-up, and thus that case is irrelevant. To the extent defendant is arguing the same legal analysis regarding unnecessarily suggestive showups should apply to Martinez’s identification, he does not even conduct the two steps of the due-process analysis for showups in his brief. See People v. Ramos, 339 Ill. App. 3d 891, 897, 791 N.E.2d 592, 597 (2003). Accordingly, defendant has forfeited this issue by failing to develop his argument. ¶ 53 For the aforementioned reasons, we find the trial court properly dismissed defendant’s

claim of other due-process violations.

¶ 54 6. Cumulative-Error Claim ¶ 55 Defendant also argues numerous trial errors occurred cumulatively resulting in the denial of his due-process rights but only notes his claim in his pro se postconviction pleadings that

he was visibly shackled during trial and was forced to wear a stun belt. However, defendant did not generally incorporate his prior postconviction pleadings in his final amended postconviction petition and did not retain that issue in his amended petition. Accordingly, that issue is not before us. See People v. Jones, 211 Ill. 2d 140, 148, 809 N.E.2d 1233, 1239 (2004) (holding a defendant may not raise an issue for the first time while on appeal in a postconviction proceeding).

¶ 56 Moreover, the only “error” we have found that was properly pleaded in the amended

postconviction petition and then argued on appeal was the Brady violation related to Scheel. However, we found defendant had not explained how that evidence alone was material, and thus it did not warrant an evidentiary hearing. Accordingly, we find the trial court did not err by dismissing defendant’s cumulative-error claim.

¶ 57 7. March 2011 Motion To Supplement ¶ 58 On appeal, defendant does not provide any analysis in his argument section regarding

why the trial court erred in denying his March 2011 motion to supplement his amended postconviction petition. Thus, defendant has forfeited this issue.

¶ 59 8. Discovery Motion ¶ 60 While defendant notes in his brief the trial court denied his motion for discovery filed

with his amended postconviction petition, he does not provide any argument in his analysis section as to why the trial court’s denial was erroneous. Moreover, the record shows the motion simply became moot when the court dismissed the postconviction petition as the discovery motion was never called for a hearing. Accordingly, defendant forfeited any issues related to his motion for discovery.

¶ 61 B. Ballistics Testing ¶ 62 Defendant last addresses his March 2011 motion for ballistics testing, which sought the

opportunity to test bullets recovered from the scene against the Integrated Ballistics

Identification System (IBIS) database to determine if that database can provide evidence of

the true perpetrator of the murder in this case. In May 2011, the trial court denied the motion

without a hearing.

¶ 63 Section 116-3 of the Procedure Code ( /116-3 (West 2010 provides, in part,

as follows:

“(a) A defendant may make a motion before the trial court that entered the judgment

of conviction in his or her case for the performance of fingerprint, Integrated Ballistic Identification System, or forensic DNA testing, including comparison analysis of genetic marker groupings of the evidence collected by criminal justice agencies pursuant to the

alleged offense, to those of the defendant, to those of other forensic evidence, and to

those maintained under subsection (f) of Section 5-4-3 of the Unified Code of

Corrections, on evidence that was secured in relation to the trial which resulted in his or her conviction, and:

(1) was not subject to the testing which is now requested at the time of trial; or (2) although previously subjected to testing, can be subjected to additional testing

utilizing a method that was not scientifically available at the time of trial that provides a reasonable likelihood of more probative results. Reasonable notice of the motion shall be served upon the State.

(b) The defendant must present a prima facie case that:

(1) identity was the issue in the trial which resulted in his or her conviction; and (2) the evidence to be tested has been subject to a chain of custody sufficient to

establish that it has not been substituted, tampered with, replaced, or altered in any material aspect.

(c) The trial court shall allow the testing under reasonable conditions designed to

protect the State’s interests in the integrity of the evidence and the testing process upon a determination that:

(1) the result of the testing has the scientific potential to produce new,

noncumulative evidence materially relevant to the defendant’s assertion of actual innocence even though the results may not completely exonerate the defendant;

(2) the testing employs a scientific method generally accepted within the relevant

scientific community.”

Thus, to establish a prima facie case for forensic testing under section 116-3, “the defendant

must show that identity was the central issue at trial and that the evidence to be tested was

subject to a sufficiently secure chain of custody.” People v. Johnson, 205 Ill. 2d 381, 393,

793 N.E.2d 591, 599 (2002). Thereafter, the trial court “must determine whether this testing

will potentially produce new, noncumulative evidence that is materially relevant to the

defendant’s actual-innocence claim.” Johnson, 205 Ill. 2d at 393, 793 N.E.2d at 599. On

appeal, a trial court’s ruling on a motion for testing under section 116-3 without an

evidentiary hearing is reviewed de novo. People v. Pursley, 407 Ill. App. 3d 526, 529, 943

N.E.2d 98, 102 (2011).

¶ 64 In this case, defendant argues the bullets used to kill Little were collected as part of the

police investigation and no comparison has been made with ballistics evidence within the

IBIS database. Moreover, identity was the issue at defendant’s trial, and chain of custody is

not disputed. Also not disputed is the fact that IBIS testing employs a generally accepted

scientific method. See Pursley, 407 Ill. App. 3d at 532, 943 N.E.2d at 104; /116-

3(a) (West 2010).

¶ 65 Thus, the pertinent issue here centers on whether “the testing has the scientific potential

to produce new, noncumulative evidence that is materially relevant, though not necessarily

exonerating, to defendant’s claim of actual innocence.” Pursley, 407 Ill. App. 3d at 532, 943

N.E.2d at 104. Our supreme court has stated “evidence which is ‘materially relevant’ to a

defendant’s claim of actual innocence is simply evidence which tends to significantly

advance that claim.” People v. Savory, 197 Ill. 2d 203, 213, 756 N.E.2d 804, 810-11 (2001).

The determination of whether evidence is materially relevant to defendant’s claim “requires an evaluation of the evidence introduced at trial, as well as the evidence the defendant seeks to test.” Johnson, 205 Ill. 2d at 396, 793 N.E.2d at 601.

¶ 66 In Savory, 197 Ill. 2d at 205, 756 N.E.2d at 806, the defendant was convicted of two

murders in 1977. On appeal, the appellate court reversed his convictions, finding his

confession was inadmissible. Savory, 197 Ill. 2d at 205-06, 756 N.E.2d at 806. At the

defendant’s second trial, the State’s evidence included admissions the defendant made to

friends, statements he made to police prior to confessing, and other physical evidence

connecting the defendant to the offenses, including a bloodstain found on a pair of trousers

recovered from his home that was of the same blood type as one of the victim’s. Savory, 197

Ill. 2d at 206-07, 756 N.E.2d at 807. The defendant presented testimony from his father, who

claimed the trousers belonged to him and the bloodstain occurred after he cut his leg. Savory,

197 Ill. 2d at 208, 756 N.E.2d at 807. A jury found the defendant guilty, and his convictions

and sentences were affirmed on appeal. Savory, 197 Ill. 2d at 208, 756 N.E.2d at 808.

¶ 67 The defendant’s postconviction and habeas corpus petitions were denied, and he then

filed a motion pursuant to section 116-3 of the Procedure Code, requesting DNA testing of

the bloodstained trousers. Savory, 197 Ill. 2d at 208-09, 756 N.E.2d at 808. The defendant

claimed he was innocent of the murders, and he alleged the test results would show the blood

did not match the victim and would eliminate one of the pieces of physical evidence

introduced by the State. Savory, 197 Ill. 2d at 209, 756 N.E.2d at 808. The trial court denied

the defendant’s motion, and the appellate court affirmed with one justice dissenting. Savory,

197 Ill. 2d at 209, 756 N.E.2d at 808.

¶ 68 On appeal, the supreme court considered the evidence introduced at trial and assessed the

evidence the defendant sought to test. Savory, 197 Ill. 2d at 214, 756 N.E.2d at 811. The

court found the testimony regarding the possible source of the bloodstain amounted to only

a minor part of the State’s strong evidence against the defendant, including his knowledge

of certain features of the crime scene and his statements and admission to others. Savory, 197

Ill. 2d at 214-15, 756 N.E.2d at 811. The court concluded “a test result favorable to defendant

would not significantly advance his claim of actual innocence, but would only exclude one

relatively minor item from the evidence of guilt marshaled against him by the State.” Savory,

197 Ill. 2d at 215, 756 N.E.2d at 811-12.

¶ 69 In Pursley, 407 Ill. App. 3d at 527, 943 N.E.2d at 100, a jury found the defendant guilty

of first degree murder, and the trial court sentenced him to natural life in prison. The

appellate court affirmed his conviction and sentence. Pursley, 407 Ill. App. 3d at 527, 943

N.E.2d at 100. The defendant later filed two postconviction petitions, and the trial court’s

dismissal of both petitions was affirmed on appeal. Pursley, 407 Ill. App. 3d at 527-28, 943

N.E.2d at 100. The defendant then filed a motion for ballistics testing pursuant to section

116-3 of the Procedure Code, which the trial court denied. Pursley, 407 Ill. App. 3d at 528,

943 N.E.2d at 100-01.

¶ 70 The defendant appealed, arguing “IBIS testing could reveal that ballistics evidence from

the crime scene might match a weapon that was used in a crime after defendant was

incarcerated, which could be exonerating evidence as the State heavily relied upon the

ballistics evidence produced at trial.” (Emphasis in original.) Pursley, 407 Ill. App. 3d at 529, 943 N.E.2d at 102. In determining whether the evidence was “materially relevant,” the Second District evaluated the evidence presented at trial and the evidence the defendant

sought to acquire through testing. The court stated, in part, as follows:

“The best outcome that defendant could obtain from IBIS testing is that the crime scene evidence could be ‘matched’ to the evidence of another crime that occurred after police confiscated defendant’s Taurus gun, thus implicating another possible weapon besides defendant’s gun. *** Such evidence would impeach the State’s evidence that the crime scene bullets and casings came from defendant’s Taurus to the exclusion of all other guns.” Pursley, 407 Ill. App. 3d at 535, 943 N.E.2d at 106.

The court noted the evidence included a Taurus gun and magazine, fired bullet slugs, spent

bullet casings, and fired bullet fragments. Pursley, 407 Ill. App. 3d at 535-36, 943 N.E.2d

at 107. The State presented forensic toolmark and firearms experts, one of whom testified

the discharged cartridge cases in evidence were fired from the Taurus gun to the exclusion

of all other firearms. Pursley, 407 Ill. App. 3d at 536, 943 N.E.2d at 107. The defense also

presented a firearms and toolmark expert, who opined the crime scene bullets were probably

fired by a Taurus gun but not the one retrieved from the defendant’s apartment. Pursley, 407

Ill. App. 3d at 537, 943 N.E.2d at 108.

¶ 71 The Second District found the State and the defense both relied upon the ballistics

evidence, and much of the State’s remaining evidence was circumstantial. Pursley, 407 Ill.

App. 3d at 538-39, 943 N.E.2d at 109. The court concluded the defendant met the

requirements of section 116-3, since using the IBIS database to search for additional matches

had the potential to produce new evidence to significantly advance his claim. Pursley, 407

Ill. App. 3d at 539, 943 N.E.2d at 109-10.

¶ 72 We find this case before us more in line with Savory than Pursley. Here, the State did not

rely on ballistics evidence to support defendant’s guilt. Thus, as in Savory, any test results

would not eliminate a major part of the State’s case against defendant. In contrast to Pursley,

where a gun from the defendant’s apartment was recovered and bullet casings and fragments

were tested and compared, no gun was recovered in this case. Any new evidence would not

disprove a gun used by defendant to shoot Little was not the murder weapon. Thus, any test

result would not significantly advance defendant’s claim of actual innocence. Moreover,

defendant’s claim that ballistics testing could show some unknown gun was used in some

undocumented Bloomington gas station robberies occurring after he was convicted and

thereby identify the “true perpetrator of this crime” is wholly speculative. Accordingly, we

find the trial court did not err in denying defendant’s section 116-3 motion.

¶ 73 III. CONCLUSION ¶ 74 For the reasons stated, we affirm the McLean County circuit court’s judgment. As part

of our judgment, we award the State its $75 statutory assessment against defendant as costs of this appeal.

¶ 75 Affirmed.

¶ 76 SUPPLEMENTAL OPINION UPON DENIAL OF REHEARING ¶ 77 In his petition for rehearing, defendant notes, inter alia, the State bore the burden of

proving res judicata barred defendant’s ineffective-assistance-of-counsel claims. While defendant is correct the State had the burden in the trial court, defendant, as the appellant, had the burden of argument and research on appeal. See Timothy Whelan Law Associates, Ltd. v. Kruppe, 409 Ill. App. 3d 359, 365, 947 N.E.2d 366, 373 (2011) (quoting Obert v. Saville, 253 Ill. App. 3d 677, 682, 624 N.E.2d 928, 931 (1993 . This court was entitled to an appellant brief in which the “ ‘issues [were] clearly defined with pertinent authority cited and cohesive arguments presented.’ ” Kruppe, 409 Ill. App. 3d at 365, 947 N.E.2d at 373 (quoting Obert, 253 Ill. App. 3d at 682, 624 N.E.2d at 931). As previously stated, “this court is not a depository into which the appellant can dump his burden of argument and research.” Supra ¶ 11 (citing Barth, 371 Ill. App. 3d at 507, 867 N.E.2d at 1117). Despite the fact the issue of ineffective assistance of counsel was raised in the trial court and on direct appeal, defendant presented less than a page of argument on the issue of res judicata. The argument he did present was conclusory and even misrepresented the proceedings in the trial court. Such an argument does not meet defendant’s burden of argument and research. Accordingly, defendant’s ineffective-assistance-of-counsel claim was not properly presented and argued on appeal, and thus we did not address the issue on the merits, i.e., it was forfeited. Ironically, defendant’s argument on the issue in his petition for rehearing is much longer and more in depth.

¶ 78 In addition to defendant’s ineffective-assistance-of-counsel claim, we also did not

address on the merits the majority of defendant’s other issues because defendant (1) either did not properly plead the issue in his postconviction petition, i.e., he failed to plead due diligence in discovering the “new” evidence in support of his actual-innocence claim or (2) failed to argue the issue in his appellant brief, i.e., defendant’s Brady claim based on the State’s alleged deals with Dennis Hendricks and Bill Moffit. Also, as noted in the opinion, defendant sometimes failed to reply to the State’s argument in his reply brief. See, e.g., supra ¶ 39.

¶ 79 In this supplemental opinion, we emphasize this court does not have the function or the

obligation to act as an advocate for defendant or search the record for error. See Obert, 253 Ill. App. 3d at 682, 624 N.E.2d at 931. De novo review does not mean this court examines anew every issue presented in the postconviction petition and determines if the issue should have survived the State’s motion to dismiss. See People v. Wilborn, 2011 IL App (1st) 092802, ¶ 45, 2011 WL 4469515, at *6 (noting that, while the defendant’s postconviction petition raised 15 claims of ineffective assistance of trial and appellate counsel, the reviewing court would only consider those claims that the defendant raised in his appeal). Rather, the appellate court considers, without deference to the trial court’s decision, those issues the appellant has clearly defined and supported with cohesive arguments and citation to pertinent authority.