{ "id": 5384062, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant and Cross-Appellee, v. KURTIS WASHINGTON, Petitioner-Appellee and Cross-Appellant", "name_abbreviation": "People v. Washington", "decision_date": "1993-12-01", "docket_number": "No. 1-91-2607", "first_page": "445", "last_page": "450", "citations": [ { "type": "official", "cite": "256 Ill. App. 3d 445" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "536 N.E.2d 150", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "180 Ill. App. 3d 527", "category": "reporters:state", "reporter": "Ill. 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App. 3d 1160", "category": "reporters:state", "reporter": "Ill. App. 3d", "opinion_index": 0 } ], "analysis": { "cardinality": 728, "char_count": 14191, "ocr_confidence": 0.783, "pagerank": { "raw": 5.0738500954302994e-08, "percentile": 0.3199839063976317 }, "sha256": "79b64736b7f8dd107873c4d23eeb08843a3e8bea8d1d9a77bf7baa12b1015a35", "simhash": "1:bef3f47c7c07bc74", "word_count": 2295 }, "last_updated": "2023-07-14T16:39:51.292435+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant and Cross-Appellee, v. KURTIS WASHINGTON, Petitioner-Appellee and Cross-Appellant." ], "opinions": [ { "text": "JUSTICE GREIMAN\ndelivered the opinion of the court:\nIn a jury trial, defendant Kurtis Washington was convicted of the shooting death of Tony Hightie and received a 25-year sentence. Defendant unsuccessfully appealed his conviction. Defendant then filed a petition for post-conviction relief (petition) under the Illinois Post-Conviction Hearing Act (Act) (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.).\nAfter an evidentiary hearing, the trial court denied defendant any relief. Thereafter, defendant filed a post-hearing motion which sought leave to amend the petition to conform the pleadings to the proof offered at the evidentiary hearing by adding a claim for newly discovered evidence which would exonerate defendant.\nThe trial court allowed the amendment and granted post-conviction relief on the new evidence claim. The State now appeals the order granting a new trial, and defendant cross-appeals the order denying the post-conviction relief sought in the original petition.\nWe affirm both orders of the trial court.\nOn appeal, the State contends that the trial court erred in granting a new trial on allegedly newly discovered evidence on grounds that: (1) the Act does not grant relief for newly discovered evidence; (2) the testimony of Jackie Martin, a witness in hiding at the time of trial, failed to meet the standard for newly discovered evidence; and (3) the State was not given an opportunity to contest this issue because of defendant\u2019s change in the theory upon which he proceeded.\nDefendant was found guilty of the murder of Tony Hightie on July 1, 1982. At trial, defendant based his defense on the alibi that, at the time of Tony Hightie\u2019s murder, defendant was at his mother\u2019s home watching television, then en route to and from the grocery store, and then en route to his girl friend\u2019s home, where he would stay for the evening. We affirmed the conviction in an unreported order, People v. Washington (1983), 121 Ill. App. 3d 1160 (unpublished order under Supreme Court Rule 23).\nIn July 1990 defendant filed the petition which set forth nine grounds, essentially alleging that defendant was denied effective assistance of counsel and a fair trial, and, therefore, was denied his sixth amendment right to counsel.\nAt the evidentiary hearing on the petition, defendant introduced the testimony of Jackie Martin, the former girl friend of Marcus Halsey, whom Martin implicated as the true culprit in the murder of Tony Hightie. Defendant also presented testimony from additional witnesses who corroborated Martin\u2019s alternative explanation for Hightie\u2019s death.\nAt the conclusion of the evidentiary hearing, the trial court denied post-conviction relief on the ineffective assistance of counsel claims and deemed the remaining claims res judicata.\nIn June 1991 defendant filed a post-hearing \"Motion Directed Against The Judgment And For Leave to Conform the Petition To The Proof\u201d based on the testimony of Jackie Martin as newly discovered evidence. According to defendant, Martin could not be located until March 1991. Defendant also asked the trial court to reconsider its denial of relief under the original petition.\nIn July 1991, after hearing oral arguments by the parties, the court again denied relief under the original petition but allowed defendant to amend the petition with a claim of newly discovered evi- \u2019 dence. The court granted defendant a new trial on the basis of this evidence.\nThe State argues that the trial court erred in granting defendant\u2019s petition for a new trial based on the provisions of the Act. According to the State, the Act provides relief for constitutional errors occurring at trial, for which newly discovered evidence does not qualify. Since the Act does not provide relief for newly discovered evidence and defendant has failed to obtain relief under various alternative statutes within their respective time limitations (e.g., Ill. Rev. Stat. 1989, ch. 38, par. 116 \u2014 1(b) (motion for a new trial must be brought within 30 days of conviction); Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 1401 (relief from final orders and judgments, after 30 days from the entry thereof, must be brought within two years of conviction)), executive clemency represents defendant\u2019s remaining hope for relief.\nBy its terms, the Act provides relief to prisoners who suffered a substantial denial of Federal or State constitutional rights at trial. (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1.) However, contrary to the State\u2019s contention, Illinois courts interpret the Act to include claims for new trials based on newly discovered evidence. (People v. Molstad (1984), 101 Ill. 2d 128, 134, 461 N.E.2d 398 (affidavits presenting exculpatory defense regarding convicted murderer\u2019s absence from murder scene amounts to new evidence to warrant a new trial); cf. People v. Albanese (1988), 125 Ill. 2d 100, 111, 531 N.E.2d 17; People v. Silagy (1987), 116 Ill. 2d 357, 367-68, 507 N.E.2d 830.) Hence, the Act provides State prisoners with an alternative to Federal habeas corpus to secure post-conviction relief based on claims of newly discovered evidence. (Compare Townsend v. Sain (1963), 372 U.S. 293, 317, 9 L. Ed. 2d 770, 788, 83 S. Ct. 745, 759 (State prisoners may petition the Federal district courts for habeas corpus relief when a constitutional infirmity occurs at trial or newly discovered evidence is relevant to the constitutionality of the detention and not merely to the issue of guilt or innocence), with Coogan v. McCaughtry (1992), 958 F.2d 793, 801 (newly discovered evidence can be so compelling as to violate a defendant\u2019s right to due process by not affording him a new trial).) The Act further provides State prisoners with an alternative to executive clemency since the Act establishes review of convictions \"inconsistent with fundamental principals of liberty and justice.\u201d People v. Cihlar (1986), 111 Ill. 2d 212, 216, 489 N.E.2d 859.\nA new trial may be warranted when the new evidence: (1) is of such conclusive character to probably change the result on retrial; (2) is material but not cumulative; and (3) could not have been discovered prior to trial by the exercise of due diligence. (Albanese, 125 Ill. 2d at 111, citing Molstad, 101 Ill. 2d at 134.) Under this standard, the new evidence need not prove actual innocence (see Albanese, 125 Ill. 2d at 111), or directly implicate State conduct. See People v. Lovitz (1981), 101 Ill. App. 3d 704, 709, 428 N.E.2d 727 (expert\u2019s revised opinion regarding alleged murder weapon warrants evidentiary hearing to determine whether defendant\u2019s right to a fair trial was violated, and thus requires a new trial).\nDeterminations by the trial court will not be disturbed absent manifest error. (People v. Green (1991), 218 Ill. App. 3d 71, 75, 578 N.E.2d 169.) \"Manifest error\u201d means error which is \"clearly evident, plain and indisputable.\u201d Green, 218 Ill. App. 3d at 75, citing People v. Sanders (1991), 209 Ill. App. 3d 366, 373, 568 N.E.2d 200.\nThe trial court properly applied the three-pronged Molstad test to defendant\u2019s petition with regard to the testimony of Jackie Martin and the corroborating testimony. In opposition to the State\u2019s argument, the trial court was not required to make an initial determination of Martin\u2019s credibility before deciding whether her testimony was of such conclusive character to probably change the result on retrial. (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 6 (\"The court may receive proof by affidavits, depositions, oral testimony, or other evidence\u201d).) Nonetheless, it is clear that the court found Martin credible for several reasons, including Martin\u2019s lack of bias toward defendant. In granting the defendant a new trial, the court asked:\n\"[W]hy, would a person when it is all behind them and they are not involved decide to come forward eleven years later when if there was some motivation or inducement for them to do so it might further question their credibility?\u201d\nBesides finding Martin a credible witness, the trial court found a \"strong probability\u201d that Martin\u2019s testimony could change the outcome on retrial. The court further considered Martin\u2019s testimony material since it directly concerned the crime for which defendant was convicted (People v. Gray (1988), 166 Ill. App. 3d 586, 589, 520 N.E.2d 93), but not cumulative since it offered a unique explanation of the events leading up to Tony Hightie\u2019s death. In addition, the trial court determined on two separate occasions that Jackie Martin could not have been discovered prior to trial by the exercise of due diligence.\nThe primary explanation of why Martin was \"undiscoverable\u201d concerns her decision to move from Chicago to Mississippi in late September or early October 1980. Martin explained that she based her decision to relocate on the fear that Marcus Halsey would harm or even kill her if she told anyone about Halsey\u2019s activities the night Tony Hightie was murdered. For this reason, Martin instructed her mother, who still resided in Chicago, not to disclose her whereabouts. Martin lived with family members in Mississippi for approximately six years.\nThe Act thus applies to defendant\u2019s request for a new trial based on newly discovered evidence since Martin\u2019s testimony probably could change the result on retrial and was determined both material and undiscoverable before trial.\nThe remaining question concerns whether the trial court properly allowed defendant to amend his petition. The Act provides for a court, in its discretion, to allow amendment of petitions \"as shall be appropriate, just and reasonable and as is generally provided in civil cases.\u201d (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 5.) The Code of Civil Procedure provides for amendments \"at any time, before or after judgment, to conform the pleadings to the proofs, upon terms as to costs and continuance that may be just.\u201d (Ill. Rev. Stat. 1989, ch. 110, par. 2 \u2014 616(c).) This court will affirm a trial court\u2019s allowance of amendments absent a clear abuse of discretion. (Lawson v. Hill (1979), 77 Ill. App. 3d 835, 844-45, 396 N.E.2d 617.) The standard applicable to whether a trial court properly exercised its discretion in allowing an amendment to conform to the proof is whether the amendment furthered the ends of justice. Lawson, 77 Ill. App. 3d at 845.\nThe State argues that the trial court abused its discretion in allowing defendant to amend his petition since the newly discovered evidence claim raised a new theory against which the State did not have an opportunity to defend. The State contends that because defendant was aware of Martin prior to the evidentiary hearing, as evidenced by the date on Martin\u2019s signed affidavit, yet failed to mention Martin until the hearing, the subsequent amendment based on her testimony was unfair and took the State by surprise. Koplin v. Hinsdale Hospital (1990), 207 Ill. App. 3d 219, 238, 564 N.E.2d 1347 (amendment raising issue not material to original complaint deprived other party of \"due process right to prepare and offer a defense to a cause of action different from that stated in the original complaint\u201d).\nHowever, allowing an amendment which adds a new theory of recovery is not necessarily an abuse of discretion. A pleading may be amended after the close of evidence to add a new theory of recovery if the evidence supports the new cause of action and the other party is not unfairly taken by surprise. (Moore v. Roberts (1991), 217 Ill. App. 3d 446, 455, 577 N.E.2d 538 (new cause of action did not prejudice defendant since new cause concerned issue contested from the beginning); Grundy County National Bank v. Myre (1978), 65 Ill. App. 3d 368, 381 N.E.2d 1204 (no unfair surprise by amendment raising new theory of recovery even though other party prepared a defense to meet the original cause of action); cf. Deming v. Montgomery (1989), 180 Ill. App. 3d 527, 536 N.E.2d 150 (trial court abused its discretion in denying amendment which added a new theory of recovery after close of evidence).) Defendant based his amendment to the petition entirely on Martin\u2019s testimony which related to his original nine counts of ineffective assistance of counsel. (See Moore, 217 Ill. App. 3d at 455.) For example, the degree of diligence exercised by trial counsel to locate Martin would affect the issue as to whether defendant had ineffective counsel for sixth amendment purposes. See Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.\nMoreover, the State had the opportunity to cross-examine Martin with regard to all aspects of her testimony, and it took advantage of this opportunity in addition to reflecting upon Martin\u2019s lack of credibility and significance in closing argument. (Lawson, 77 Ill. App. 3d at 846 (defendants who cross-examined on issues of new claim could not claim unfair surprise).) The trial court also questioned Martin on issues concerning her flight from Chicago and found that \"the interest of fairness\u201d and the \"equities\u201d required that the amendment be allowed. Because the new evidence claim related to the claims in defendant\u2019s original petition and the State cross-examined Martin with regard to such new evidence, there was no abuse of discretion in allowing the amendment in the interest of justice.\nWe therefore find that the trial court did not abuse its discretion in allowing defendant to amend his petition to include Jackie Martin\u2019s testimony as a claim of newly discovered evidence and, therefore, affirm the order granting defendant a new trial under the Act.\nFor this reason, we need not address defendant\u2019s cross-appeal based upon the trial court\u2019s order denying him a new trial on grounds of ineffective assistance of counsel.\nAffirmed.\nTULLY, P.J., and CERDA, J., concur.", "type": "majority", "author": "JUSTICE GREIMAN" } ], "attorneys": [ "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Laurie N. Feldman, and Carol L. Gaines, Assistant State\u2019s Attorneys, of counsel), for the People.", "Joel T. Pelz and Ellen R. Kordik, both of Jenner & Block, of Chicago, for appellee." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Respondent-Appellant and Cross-Appellee, v. KURTIS WASHINGTON, Petitioner-Appellee and Cross-Appellant.\nFirst District (3rd Division)\nNo. 1 \u2014 91\u20142607\nOpinion filed December 1, 1993.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Laurie N. Feldman, and Carol L. Gaines, Assistant State\u2019s Attorneys, of counsel), for the People.\nJoel T. Pelz and Ellen R. Kordik, both of Jenner & Block, of Chicago, for appellee." }, "file_name": "0445-01", "first_page_order": 467, "last_page_order": 472 }