People v. Moore , 2022 IL App (1st) 192290 ( 2022 )

2022 IL App (1st) 192290SECOND DIVISION
October 25, 2022
No. 1-19-2290
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 2581 03
)
CORTEZ MOORE, ) Honorable
) Diana L. Kenworthy,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE ELLIS delivered the judgment of the court, with opinion.
Justices Howse and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Petitioner Cortez Moore was convicted of home invasion, armed robbery, and aggravated
criminal sexual assault. The principal evidence linking him to the crimes was a wallet belonging
to one of the victims and a “Scream” mask worn by one of the four assailants. According to the
officers, these items were found in petitioner’s pocket when he fled the scene and was arrested
after a brief chase, less than two blocks from the victims’ apartment.
¶2 In his postconviction petition, he alleges that the police planted these items on him and
committed perjury when they testified otherwise at his trial. In support of this due-process claim,
petitioner refers to an alleged affidavit in which one of his codefendants, Rashawn Coleman, is
No. 1-19-2290
said to swear that the police found these items on him when they arrested him inside the victims’
apartment. But there is no trace of Coleman’s alleged affidavit in the record. Notably, the circuit
court’s summary dismissal order makes no mention of it.
¶3 On appeal, petitioner challenges the summary dismissal of his due-process claim on the
merits. In the alternative, he argues that Coleman’s affidavit must have been lost by the clerk’s
office, and that its absence from the record, through no fault of his own, denies him his right to
an appeal.
¶4 BACKGROUND
¶5 A brief summary of the underlying crimes and trial evidence will suffice for our limited
purposes here. For more detail, see our decision affirming petitioner’s convictions and sentences
on direct appeal. People v. Moore, 2017 IL App (1st) 150208-U, ¶¶ 7-40.
¶6 Around four o’clock in the morning on January 17, 2011, the four codefendants in this
case—petitioner, Coleman, Ned James, and Henry Sistrunk—broke into the second-floor unit of
a three-flat on the 5700 block of South Wentworth Avenue in Chicago. Three of the assailants
wore masks: two were described as “Halloween” type or “Scream” masks (a reference to the
horror film of that name); the other was a black ski mask. The unmasked man was identified as
Coleman.
¶7 Apparently, the assailants thought this was a drug house, though that belief did not hold
up. In their search for money and drugs, they ransacked the apartment and terrorized its
residents. They dragged everyone out of bed and herded them into the kitchen. They beat the two
male occupants, Isaac Andrews and Khalil Cromwell Sr., with a crowbar, among other
implements, and bound them with duct tape. Martitza Morales looked on in horror as she
clutched her (and Cromwell’s) infant son. While the other assailants went looking for the
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“white” or “stuff,” and repeatedly threatened to stab everyone if they did not hand it over,
Coleman stood guard over the victims with a rifle. He also forced the other female occupant,
A.W., to undress, so he could insert his finger into her vagina and make vulgar and demeaning
comments about her genitalia. In the end, all the assailants managed to take were the victims’
wallets and cell phones, a ring, and some video games.
¶8 The assailants were caught red-handed to varying degrees. When the responding officers
arrived, Coleman was in the kitchen, beating one of the victims. James was hiding in the rear
bedroom, pretending, however farcically, that he was one of the victims. The other two men,
whom the officers could not identify, barricaded themselves in the front bedroom and locked the
door. The officers waited for backup before forcing their way into the bedroom. When they did,
the men were gone, and the window—the only other egress in the room—was open.
¶9 Outside, more officers were setting up a perimeter around the building. One of them saw
Sistrunk hanging out of the front window and ordered him back inside. He complied, for the time
being; but in short order, Sistrunk evidently jumped from the window and was found crawling on
the ground, 20 or 30 feet from the building, with serious injuries. He died before the trial.
¶ 10 The building was surrounded by vacant lots, and the officers saw only one other person in
the vicinity: petitioner. He came running around the south side of the building, from the front,
where he came within feet of Officer Powell. He made eye contact, did an abrupt about-face, and
ran back toward Wentworth Avenue. Officer Polonio saw him there and chased him northbound
on Wentworth. Officers Griggs and Calhoun joined the chase in their squadrol. About a block
and a half north of the victims’ building, petitioner slipped and fell on a patch of ice in an empty
lot, where he was detained and searched. Officer Calhoun testified that she never lost sight of
petitioner, from the time she first saw him directly in front of the victims’ building, to the time he
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was detained in the vacant lot. Officer Griggs recovered A.W.’s wallet and a “Scream” mask
from petitioner’s right front pocket.
¶ 11 These items, along with petitioner’s flight, were the sum total of the evidence against
him. Petitioner did not testify or present any other evidence in his defense. Trial counsel argued
in closing that the fourth assailant must have slipped away from the officers, and hence they
grabbed petitioner, who happened to be walking in the area, and falsely claimed to find the
wallet and mask on him.
¶ 12 The postconviction petition returns to this theme and alleges, among other claims no
longer at issue, a due-process violation: specifically, the police planted evidence on petitioner
and committed perjury when they testified at trial that these items were in his pocket. In fact, the
petition claims, these items “were originally seized from Rashawn Coleman” and later falsely
associated with petitioner. Accompanying this particular allegation, made twice in the petition, is
the following citation: “(See Affidavit of Rashawn Coleman, attached and incorporated herein as
Defendant’s Exhibit ).” In both instances, a space has clearly been left between the word
“Exhibit” and the final parenthesis, as if to leave room for an identifying number or letter.
¶ 13 But there is no affidavit from Coleman in the record. Apart from the verification
affidavit, the only document attached is petitioner’s own substantive affidavit, captioned “sworn
statement of Cortez Moore,” labeled “Exhibit A” on a cover page, and cited as such in the
petition proper. We will refer to this document as “petitioner’s affidavit” from now on.
¶ 14 In his own affidavit, petitioner swore that he was at a friend’s birthday party on the night
in question, in an apartment complex at South Normal Avenue and Stewart Street. (He named a
few partygoers as potential alibi witnesses but did not provide an affidavit from any of them.) At
the party, petitioner consumed “a lot” of alcohol and cannabis, as did everyone else. He left
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between 3:15 and 3:30 a.m. and set out, on foot, for his brother’s place, where he stayed at the
time, on 59th Street and Michigan Avenue.
¶ 15 Rather than sobering up on the walk home, petitioner’s “high seemed to intensify.” So he
stopped at a gas station on Garfield Boulevard and Wells Street—only a couple of blocks away
from the victims’ apartment—for coffee and something to eat. After leaving, he was “swarmed”
by officers who beat him and drove him to a nearby residence, where he had never been, and
where he encountered two other men in handcuffs, whom he had “never seen before in [his]
life.” He denied running from the police when he first encountered them.
¶ 16 Petitioner claims he was taken to the hospital for treatment of his injuries—a recent
gunshot wound, and some fresh injuries inflicted by the police—and later to the station. There,
“the arresting officer” asked another officer, “Which evidence is his?” At that point, the second
officer picked up a “Scream” mask and a wallet that petitioner “had never possessed or seen in
[his] life.” The trial exhibits include a photo of these items sitting on a terrazzo floor, apparently
at the station. Petitioner categorically denied any involvement in, or knowledge of, these crimes.
¶ 17 The circuit court summarily dismissed the petition, finding that its claims were “waived”
because petitioner could have, but did not, raise them on direct appeal and that, waiver aside, the
allegations were “conclusory, unsupported and at times inaccurate.”
¶ 18 ANALYSIS
¶ 19 I
¶ 20 The lead issue on appeal is whether the petition and supporting evidence, liberally
construed and taken as true, present an arguable claim that petitioner’s right to due process was
violated by the State’s use of allegedly perjured testimony at trial. See, e.g., People v. Hodges,
234 Ill. 2d 1, 9-10 (2009) (standard for advancing petition to second stage). We review this legal
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question de novo. Id. at 9. Specifically, petitioner alleges that Officer Calhoun committed perjury
by falsely testifying that the “Scream” mask and A.W.’s wallet were found in petitioner’s pocket,
when in fact they were found on Rashawn Coleman and later falsely associated with petitioner at
the police station.
¶ 21 An affidavit from Coleman attesting that the “Scream” mask and A.W.’s wallet were
found in Coleman’s possession, if taken as true, would undoubtedly provide some objective
corroboration of petitioner’s allegations. And the petition does indeed cite a purported affidavit
from Coleman to this effect. But as noted, there is no trace of any such affidavit in the record.
¶ 22 Petitioner argues that his petition should advance even without the Coleman affidavit,
because he filed his own substantive affidavit, and that affidavit suffices. The State disagrees that
petitioner’s own affidavit suffices and goes further, arguing that, even if the Coleman affidavit
had been attached to the petition and contained the substantive information that petitioner claims
it contains, the Coleman affidavit would likewise be insufficient to advance the petition.
¶ 23 For the reasons we set out below, we disagree on both points. Petitioner’s own affidavit,
by itself, is insufficient to advance this petition. But the Coleman affidavit, if it exists and
contains the substantive information petitioner claims, would be enough to advance this petition
for second-stage proceedings.
¶ 24 A
¶ 25 We begin with the sufficiency of petitioner’s own substantive affidavit. Section 122-2 of
the Post-Conviction Hearing Act requires that “[t]he petition shall have attached thereto
affidavits, records, or other evidence supporting its allegations or shall state why the same are
not attached.” 725 ILCS 5/122-2 (West 2020). This purpose of this requirement is twofold: to
establish that the allegations are “capable of objective or independent corroboration,” or else
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explain why they are not, and to identify “the sources, character, and availability” of the alleged
supporting evidence. (Internal quotation marks omitted.) People v. Allen, 2015 IL 113135, ¶ 32;
People v. Delton, 227 Ill. 2d 247, 254-55 (2008); Hodges, 234 Ill. 2d at 10. Thus, “a pro se
petition *** must set forth some facts which can be corroborated and are objective in nature or
contain some explanation as to why those facts are absent.” Delton, 227 Ill. 2d at 254-55. The
failure to provide objective corroboration or explain its absence “by itself justifies the petition’s
summary dismissal.” People v. Collins, 202 Ill. 2d 59, 66 (2002).
¶ 26 Does a petitioner’s own evidentiary affidavit (as opposed to a verification affidavit (see
id. at 67)) satisfy the requirement and underlying purposes of section 122-2? Sometimes it does.
For example, when “the only affidavit that petitioner could possibly have furnished, other than
his own sworn statement, would have been that of his attorney,” whose ineffectiveness is being
alleged, then the petitioner’s affidavit, attesting to the private attorney-client communications at
issue, will suffice. (Internal quotation marks omitted.) Id. at 68; People v. Rogers, 372 Ill. App.
3d 859, 864 (2007). The point of this rule from Collins is obviously not that a petitioner’s own
affidavit generally provides “objective or independent corroboration” of the petition’s allegations
but rather that, in these particular circumstances, the petitioner has adequately explained why no
such corroboration is reasonably available to him, at least not until he can compel his attorney to
testify under oath at a hearing.
¶ 27 Petitioner asserts in his brief that “no authority” precludes the use of his own affidavit to
satisfy the requirements of section 122-2. But the rule from Collins effectively does just that, by
identifying specific, limited circumstances in which the absence of “objective or independent”
corroboration—that is, evidence from a source other than the petitioner—will be excused. A
perfectly general rule that a petitioner’s own affidavit satisfies section 122-2 would render that
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section all but meaningless. A petitioner could easily satisfy that requirement by transcribing the
allegations in his petition into another document called an affidavit. But this trivial exercise does
not demonstrate that the allegations are “capable of objective or independent corroboration.”
(Internal quotation marks omitted.) See Allen, 2015 IL 113135, ¶ 32.
¶ 28 As far as we know, our supreme court has not yet applied the rule from Collins to any
circumstances other than private attorney-client communications. There may very well be other
circumstances in which this rule should be applied, on the ground that the petitioner could not
reasonably be expected to obtain an affidavit from the only other party (or parties) who could
potentially provide one. (Certain allegations of police misconduct, occurring entirely behind
closed doors, would seem to be potential candidates.) But those circumstances are not present
here, so we need not explore the general point any further.
¶ 29 Far from supporting a reasonable inference that nobody could be expected to corroborate
petitioner’s allegations at this juncture (or more precisely, nobody except the officers who
allegedly framed him and committed perjury), the petition identifies a source of independent
corroboration: Coleman. (Though of course, Coleman’s affidavit is not in the record.) Thus, the
petition contains neither independently corroborating evidence nor an adequate explanation of
why no such evidence is available.
¶ 30 All of which is to say that, as things currently stand, the sole corroboration of petitioner’s
own affidavit is not sufficient to advance this petition to the second stage.
¶ 31 B
¶ 32 Ordinarily, that would take us to the next question—petitioner’s claim that the Coleman
affidavit must have been lost, presumably by the clerk’s office, thereby denying him his right to
an appeal. But the State tries to preempt that argument, claiming that, even if the petition had
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attached the Coleman affidavit, and even if that affidavit contained the substantive information
the petition claims it does, the postconviction petition would fail at the first stage, anyway.
¶ 33 In support, the State offers a slew of arguments, both procedural and substantive. The
procedural arguments—forfeiture (which the State incorrectly calls waiver) and res judicata—
have no merit, so we will be brief.
¶ 34 A postconviction claim is forfeited only if it could have been raised on direct appeal but
was not. People v. Tate, 2012 IL 112214, ¶ 8. There was no evidentiary basis for petitioner’s
claim in the trial record, and as a result, the claim is based on new evidence outside the trial
record that he could not have submitted on direct appeal. See id. ¶¶ 14-15. (It is no objection that
that his affidavit is insufficient under section 122-2; that is a substantive failure, not a procedural
bar arising from a prior proceeding.) Thus, petitioner could not have raised this claim on direct
appeal.
¶ 35 So it should come as no surprise that he did not. And that means the claim is not subject
to res judicata either, which bars only those claims that were “actually decided” on direct appeal.
See People v. Harris, 206 Ill. 2d 1, 42 (2002).
¶ 36 The State asserts that the “crux” of the claim was decided in the context of admittedly
other direct-appeal issues: namely, whether the State’s improper opening statement warranted a
new trial, and whether the trial court improperly penalized petitioner for professing his innocence
at sentencing. See Moore, 2017 IL App (1st) 150208-U, ¶¶ 59-64, 143-46. True, these issues
overlap, to some degree, with petitioner’s due-process claim. But claims that are merely
“similar,” yet distinct, are not barred by res judicata. Harris, 206 Ill. 2d at 42.
¶ 37 As for substance, the State does not (and cannot reasonably) dispute that the knowing use
of false testimony violates due process and that an officer’s perjury is imputed to the State,
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regardless of whether the prosecutor trying the case knew that the testimony was false. United
States v. Agurs, 427 U.S. 97, 103 (1976); People v. Olinger, 176 Ill. 2d 326, 345 (1997); People
v. Brown, 169 Ill. 2d 94, 103 (1995). Thus, if the officers falsely testified that A.W.’s wallet and
one of the “Scream” masks were found on petitioner at the time of his arrest—when in fact they
were found on Coleman, inside the victims’ apartment—the due-process violation would be clear
as day.
¶ 38 A due-process claim also requires a showing of prejudice—a reasonable likelihood that
the perjured testimony affected the jury’s verdict. Olinger, 176 Ill. 2d at 345. At the first stage,
petitioner need only show arguable prejudice. Hodges, 234 Ill. 2d at 16-17 (applying “arguable”
prejudice standard to Strickland claim at first stage). But an affidavit from Coleman, taken as
true at the first stage, would far exceed this low threshold standard and would undeniably require
a credibility assessment to be made after a third-stage hearing.
¶ 39 The evidence found in petitioner’s pocket was the lynchpin of the State’s case against
him; it was primarily this evidence that led us to say, on direct appeal, that he was caught “red-
handed.” Moore, 2017 IL App (1st) 150208-U, ¶ 59. Without this evidence, the State had
nothing more than his flight to link him to these crimes. Unlike the other codefendants, the police
never saw him inside (or hanging from a window of) the apartment; he was not identified by any
of the victims; and unlike James, there was no forensic evidence linking him to any of the masks
or stolen property. Id. ¶¶ 28, 32.
¶ 40 It may be true, as the State argues, that petitioner’s flight from the scene, in the particular
circumstances of this case, was “sufficient” evidence for a conviction. But that is not the
question. The question is whether our confidence in the verdict would be undermined if, in fact,
it were true that the police planted the mask and victim’s wallet on petitioner. And the answer to
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that question is obvious—of course our confidence would be undermined.
¶ 41 The State further asserts that “a clear reading of the record negates the factual premise of
petitioner’s claim.” In particular, Officer Randall testified that Coleman was wearing the black
ski mask, not one of the “Scream” masks, when the officer entered the apartment and saw
Coleman beating one of the victims in the kitchen. When Randall ordered Coleman to stop,
Coleman took off the black ski mask and threw it into one of the bedrooms. The State’s point, we
suppose, is that Coleman never had the “Scream” mask in his possession.
¶ 42 This testimony, and the State’s argument, is irrelevant at the first stage. We are required
to take the allegations and supporting evidence as true. Hodges, 234 Ill. 2d at 10. Granted, they
contradict the trial evidence in various ways, as the State points out. But that’s the whole point:
new exculpatory evidence—whether it is presented under the rubric of actual innocence or a due-
process violation based on the use of false evidence at trial—will always contradict at least some
of the apparent evidence of guilt. People v. Robinson, 2020 IL 123849, ¶ 57. The State would
have us assume that the trial evidence was correct, and thus that the new evidence is false. That
is exactly the reverse of how first-stage postconviction proceedings are supposed to work. And it
would render such proceedings “pointless.” Id.¶ 43 We will take the trial evidence as true only when it “positively rebut[s]” the new
evidence. Id. ¶ 59. But it bears emphasis that “recognizing the existence of a conflict with the
trial evidence is not the same as finding that the new evidence is positively rebutted,” which
requires it to “be clear from the trial record that no fact finder could ever accept the truth of that
evidence, such as where it is affirmatively and incontestably demonstrated to be false or
impossible,” for instance, by clear forensic or other scientific evidence. Id. ¶ 60.
¶ 44 So to the extent that the State argues that the trial evidence “negates the factual premise
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of petitioner’s claim,” which is merely another way of saying that the trial record “positively
rebuts” the petition’s allegations, the State is misapplying this standard. Testimony from an
eyewitness, be it a police officer or a civilian, generally fails to meet the requirements for a
positive rebuttal. And that is especially true when the testimony in question contradicts the
testimony of other eyewitnesses—never mind the new evidence on collateral review. Notably,
here, while Officer Randall testified that he saw Coleman with the ski mask, the victims testified
that Coleman was the one assailant who did not wear any mask. Did the assailants, for whatever
reason, switch up their masks? Was Officer Randall simply mistaken? The point is that these are
the kinds of questions, arising from conflicting evidence, that can only be resolved after a
hearing. Officer Randall’s trial testimony does not “positively rebut” anything for purposes of
first-stage consideration.
¶ 45 In sum, petitioner’s own affidavit, by itself, is insufficient to warrant second-stage
proceedings. But the addition of the Coleman affidavit, if it exists, and if it contains the promised
substantive information, would almost surely be sufficient to advance this petition beyond the
first stage. But because the affidavit is absent from the record, and because it almost certainly
was not before the circuit court—given that the summary dismissal order makes no mention of
it—we cannot fault the circuit court for deeming the allegations “unsupported.” Thus, we cannot
reverse the summary dismissal order on the merits.
¶ 46 But because petitioner would undoubtedly be prejudiced if the affidavit was, in fact, lost
through no fault of his own, we must take a closer look at the circumstances surrounding its
absence. This brings us to petitioner’s second appellate argument.
¶ 47 II
¶ 48 In the alternative, petitioner argues that the absence of Coleman’s alleged affidavit from
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the record denies him an opportunity for meaningful review of his claim and thus denies him his
right to an appeal. See Ill. S. Ct. R. 651(c) (eff. July 1, 2017). Petitioner acknowledges that, as
the appellant, it is generally his burden to present a record adequate to support his claim of error.
People v. Sims, 403 Ill. App. 3d 9, 15 (2010).
¶ 49 But as he notes, this rule may be relaxed if he can show that the record is incomplete
through no fault of his own, and that there is a “colorable need” for the missing portion of the
record in order to obtain appellate review. People v. Appelgren, 377 Ill. App. 3d 137, 142-43
(2007). Petitioner fails to satisfy the first requirement. He has not shown that Coleman’s affidavit
was in fact attached to his petition, and that it was lost, through no fault of his own, by someone
in the circuit court clerk’s office.
¶ 50 We begin with what we know, with any measure of certainty, about Coleman’s purported
affidavit. First, the petition includes two citations of the following form: “(See Affidavit of
Rashawn Coleman, attached and incorporated herein as Defendant’s Exhibit).” Second, there is
no such affidavit in the record. Third, the purported affidavit was never seen by the judge. We
are confident of this, because the summary dismissal order makes no mention of the affidavit;
rather, it simply says that petitioner “failed to support his allegation [that the mask and wallet
were found on Coleman and planted on petitioner] with evidence.” It is all but impossible to
believe that an affidavit from Coleman, attesting to these very facts, would go unremarked in this
context, had it actually made its way to the judge’s desk.
¶ 51 Thus, petitioner’s theory must be that the affidavit was lost by the clerk’s office before
the petition was given to the judge to review. (Indeed, petitioner seems to acknowledge this in
his reply brief, referencing “the clerk’s mishandling of the petition.”) Petitioner argues that this
inference is supported by the citations in the petition, the petition’s state of “disarray” in the
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record prepared for appeal, and appellate counsel’s own representations to this court about his
efforts to obtain a duplicate copy of Coleman’s affidavit.
¶ 52 The citations, reproduced above, are oddly incomplete. In both instances, petitioner left a
conspicuous space after the word “Exhibit,” where one would expect an exhibit label, like “A,”
or “B,” or “1,” or “2,” etc., to appear. The petition refers to the only exhibit we know for sure to
be attached—petitioner’s own affidavit—as “Exhibit A,” and that affidavit comes complete with
a cover page labelling it “Exhibit A.” Why not just refer to the Coleman affidavit as “Exhibit B?”
¶ 53 That is what we would expect if petitioner actually had Coleman’s affidavit. The State
thus argues that petitioner may have been expecting an affidavit from Coleman, as he was
drafting his petition, but never actually received one. That is certainly possible, even plausible,
but we cannot know for sure. We do know that petitioner would have no reason to leave these
blank spaces if he actually had Coleman’s affidavit in hand. While that is not grounds for a firm
conclusion one way or another, it is, at least, grounds for skepticism that petitioner received an
affidavit from Coleman. And that alone is a problem for petitioner, since it is his burden to show
that the affidavit was attached and has gone missing through no fault of his own. Id. at 143.
¶ 54 Next, petitioner notes that, in the electronic record prepared for this appeal, the scanned
copy of the petition is in “disarray.” Specifically, some pages appear in duplicate, some are out
of order, and others are sideways or upside down. This, he says, “suggest[s] carelessness in
handling the petition” and thus supports an inference that the petition, as it appears in the record,
is “incomplete.”
¶ 55 That inference would be stronger if anything (else) was actually missing, but the petition
proper, along with petitioner’s verification and substantive affidavits, are complete. Granted, the
scanning of the petition was not as orderly as it could have been. But that does not show that key
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evidence was lost.
¶ 56 For the reasons we have noted, it is exceedingly difficult to believe that an affidavit from
Coleman was ever put before the circuit court; thus, if the affidavit was lost by the clerk’s office,
it must have been lost before the judge ruled on the petition. But the “disarray” in the electronic
record reflects, at most, “mishandling” of the petition later on, when the record was prepared for
appeal. Petitioner fails to explain how that could account for the absence of the affidavit at the
point of the review by the judge. Thus, the “disarray” in the electronic record provides little or no
basis for inferring that an affidavit from Coleman was attached when the petition was originally
filed in the circuit court.
¶ 57 Lastly, in the opening brief, appellate counsel details the steps he has taken to obtain a
duplicate copy of Coleman’s affidavit. We accept that appellate counsel has made these
representations in good faith. All the same, they fall short of establishing that an affidavit from
Coleman was attached to the petition when it was sent to the circuit court.
¶ 58 For example, appellate counsel informs us that “[a] check of the trial court’s file also
shows the affidavit missing.” That is obviously not proof that the affidavit was ever submitted to
the court to begin with. Appellate counsel contacted Coleman’s sister, “who helped prepare the
affidavit, but she has no copy of the document.” Coleman’s sister may well have helped him
draft an affidavit, but what she did not confirm is that an affidavit was actually turned over to
petitioner.
¶ 59 Particularly telling in this regard is the fact that appellate counsel “contacted Coleman’s
lawyer on a pending postconviction petition, in the hopes of locating or recreating the affidavit,
without success.” One wonders why Coleman’s attorney (or sister) couldn’t have him resend or
recreate the affidavit. Was it, perhaps, because the attorney advised Coleman not to incriminate
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himself in a sworn affidavit while his own petition was pending? And was that advice dispensed
to Coleman before he ever sent an affidavit in the first place? If the answer to these questions is
yes—and appellate counsel’s representations do not establish otherwise—then for all practical
purposes, there is not, and never has been, any Coleman affidavit to speak of. To be clear, we do
not put this forward as established fact; we note only that appellate counsel’s representations so
far leave open various possibilities and thus fall short of carrying petitioner’s burden.
¶ 60 Petitioner, we are told, had a copy of the affidavit in his legal files, but those files were
“discarded” by the Department of Corrections. This assertion is not an allegation made in the
postconviction petition. Nor is it an averment in an affidavit. It is a statement that petitioner
reportedly made to his appellate lawyer, and one that appellate counsel was not likely in a
position to verify, apart from his client’s say-so. So we are not bound to take this assertion as
true. (Though we do not question appellate counsel’s representation that petitioner said this.)
And this assertion alone, with no presumption of truth, does not establish that an affidavit from
Coleman was attached to the petition, particularly when all the pieces of the puzzle, as they have
been presented to us, are put together.
¶ 61 To put those pieces together, petitioner’s claim amounts to this: petitioner attached
Coleman’s affidavit to his petition but left conspicuous blanks in his citations to it for
unexplained reasons; someone in the circuit court clerk’s office lost this one key piece of
evidence before the otherwise complete petition made its way to the judge’s desk, leaving no
trace of it anywhere in the record; the Department of Corrections threw away petitioner’s legal
files sometime between then and now; and though the matter has been discussed with Coleman’s
sister and attorney, there is an unexplained barrier to obtaining a new copy of an affidavit that
Coleman, for his part, has been perfectly willing to provide.
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¶ 62 In short, there is no evidence clearly establishing that Coleman’s alleged affidavit was
attached to the petition filed in the circuit court. For all we have been told, we cannot confidently
conclude that Coleman ever provided petitioner with an affidavit or that he would be willing to
provide one—or testify at a hearing—now. And because the burden lies with petitioner on this
issue, as we noted above, this means that his claim must fail.
¶ 63 These circumstances clearly distinguish petitioner’s case from the authorities he cites, in
which the records were found to be incomplete through no fault of the appellants. In Appelgren,
377 Ill. App. 3d at 143, a key exhibit was lost, but there was no dispute that the exhibit had been
admitted at trial; not only is a fact like that evident from the trial transcript, the clerk of the court
also conceded it in an affidavit. In People v. Stark, 33 Ill. 2d 616, 621-22 (1966), a transcript of a
preliminary hearing was lost, but there was no question that the preliminary hearing had in fact
been held. And in People v. Ramos, 295 Ill. App. 3d 522, 525-27 (1998), the court reporter’s
stenographic notes from the bench trial were lost, making it impossible to generate a transcript.
But nobody was left to wonder on appeal whether a trial had actually taken place. Here, the very
existence of Coleman’s alleged affidavit remains an open question.
¶ 64 Because petitioner has failed to carry his burden, and because his claim does not warrant
second-stage proceedings without an affidavit from Coleman, we affirm the summary dismissal
order.
¶ 65 III
¶ 66 Obviously, we cannot definitively rule out the possibility, however remote it may seem at
this juncture, that Coleman’s alleged affidavit existed and was attached to the postconviction
petition but was lost through no fault of petitioner.
¶ 67 If petitioner can actually show this to be the case—by producing a fresh affidavit in
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No. 1-19-2290
which Coleman repeats his claims about the mask and wallet and further states that he previously
gave petitioner an affidavit to this effect—then petitioner’s due-process claim,
raised in a subsequent postconviction petition, will still warrant second-stage proceedings, for the
same reasons we have given here. Which is just to say that petitioner will not be left empty-
handed if he can secure such an affidavit from Coleman. Until that time, his due-process claim
remains uncorroborated.
¶ 68 CONCLUSION
¶ 69 The judgment of the circuit court is affirmed.
¶ 70 Affirmed.
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No. 1-19-2290
People v. Moore, 2022 IL App (1st) 192290Decision Under Review: Appeal from the Circuit Court of Cook County, No. 11-CR-
2581(03); the Hon. Diana L. Kenworthy, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Jonathan Krieger, of State
for Appellate Defender’s Office, of Chicago, for appellant.
Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique
for Abraham, Douglas P. Harvath, Hareena Meghani-Wakely, and
Appellee: Andrew D. Yassan, Assistant State’s Attorneys, of counsel), for
the People.
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