No. 1-17-1273 Order filed September 24, 2020 Fourth Division

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 92 CR 13556 ) TIMOTHY MOBLEY, ) Honorable ) Neera Lall Walsh, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court. Justices Lampkin and Reyes concurred in the judgment.

ORDER

¶1 Held: We affirm the denial of defendant’s motion for leave to file a successive postconviction petition where he failed to demonstrate the requisite prejudice to satisfy the cause and prejudice test.

¶2 Defendant Timothy Mobley appeals from the circuit court’s denial of his motion for leave

to file a successive postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2016)). On appeal, defendant argues that we should remand his

successive postconviction petition for second-stage proceedings where he sufficiently established No. 1-17-1273

the cause and prejudice required to excuse his failure to include that information in his first

postconviction petition, which was a non-frivolous claim that the State violated Brady v.

Maryland,

(1963), by failing to disclose that it did not charge a witness with possession

of cocaine because she cooperated in defendant’s case. For the following reasons, we affirm.

¶3 Defendant, Amotto Jackson, Chezeray Moore, and Henry Lovett were charged with

multiple offenses arising from the death of 19-year-old Kristin Ponquinette on April 17, 1992.

Defendant retained private counsel, and following a separate jury trial in 1994, was found guilty

of first degree murder, felony murder, aggravated kidnaping, and kidnapping, and sentenced to an

extended prison term of 90 years for first degree murder consecutive to 5 years’ imprisonment for

aggravated kidnaping. We recount the facts only to the extent necessary to resolve the issues raised

in this appeal.

¶4 At a hearing prior to jury selection, defense counsel asked the State if any offers were made

to its female witnesses in exchange for their testimony. The assistant State’s Attorney (ASA)

responded that one witness, Venus Becom, was charged in juvenile court with aggravated battery

and unlawful restraint in connection to the same incident, but that the charges had been nol-prossed

prior to any agreements. The ASA stated that the State subsequently entered into an agreement

with Becom that it would reinstate her charges in juvenile court and recommend she receive a

sentence of probation if she testified at the trials related to Ponquinette’s murder. Another witness,

Lashonda Wilson, was charged with aggravated battery and unlawful restraint, and the State

entered into an agreement with her that if she testified in the trials, it would recommend a sentence

of probation.

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¶5 At trial, Carin Smith testified that one evening in mid-April 1992, she and her friend Sharon

Burke went to Cassandra Butler’s house where Ponquinette was. When Smith and Burke arrived,

Ponquinette said she was leaving. Burke closed the door and said that Ponquinette “wasn’t going

anywhere.” Burke and Butler questioned Ponquinette about calling Burke a “b***” and asked

“who [Ponquinette] had been sleeping with,” and Burke repeatedly slapped Ponquinette. Then,

Burke and Butler cut Ponquinette’s hair, bound her hands behind her back, stuffed a sock in her

mouth, and placed her in a closet.

¶6 Later that night, Becom, Moore, and Terrence Mobley 1 arrived at Butler’s house.

Ponquinette was untied, the socks were removed from her mouth, and she left the house with

Moore and Terrence. Later, Sonya Richardson and Lashonda Wilson arrived, and then left with

Becom to look for Ponquinette.

¶7 Becom testified that she went with Richardson and Wilson to Moore’s garage where they

found Jackson, Moore, and Ponquinette. Richardson told them she would make Ponquinette “suck

all the brothers’ d***,” and told Becom to retrieve “the brothers,” which Becom went to do.

According to Becom, “the brothers” referred to male members of the Black Stone gang, including

defendant, Lovett, Moore, and Terrence. Becom returned to Moore’s garage with Jackson just as

Moore’s mother ordered the group to leave.

¶8 The group proceeded to a nearby school playground, where some “brothers” were located.

There, Becom asked Ponquinette if she had sexual relations with Becom’s boyfriend. Becom and

Richardson then hit and kicked Ponquinette. After approximately five minutes, defendant, who

1 Because Terrence Mobley and defendant share the same last name, we refer to Terrence by his first name.

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was also present, broke up the fight, and Jackson helped Ponquinette up off the ground and walked

away with her. Defendant, who was standing about five feet from Becom, told the group that

Ponquinette “knows too much already about one service, we have to get rid of her, kill her or

something, get her away from around here.” Becom then left the playground.

¶9 Becom testified that defendant was a higher-ranking member of the gang with authority to

issue orders to lower-ranking members, and that gang meetings, called “service[s],” were often

held at a place called the “black bridge.” Becom learned this information through her own

affiliation with the Black Stones.

¶ 10 Becom was later arrested and charged in juvenile court with aggravated battery and

unlawful restraint for her involvement in the incident. That case was dismissed in January 1993,

but it was her understanding that in exchange for her testimony, the charges would be reinstated

in juvenile court rather than adult court, and the State would recommend a period of probation for

her guilty plea.

¶ 11 On cross-examination, Becom testified that the State did not charge her for soliciting men

to have oral sex performed on them by Ponquinette. Becom was not present when Ponquinette was

murdered and did not know whether defendant was present. Becom’s father was a police officer,

who did not know she was a gang member.

¶ 12 On redirect examination, Becom testified she did not know why her charges were

dismissed in January 1993, but she agreed to have them reinstated in February 1994. When the

police first questioned Becom on May 5, 1992, she denied knowing anything about what happened

because she was afraid of her father’s reaction, but the following day, she told the police the same

story she testified to at trial.

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¶ 13 Charles Carpenter, a Black Stones gang member, was at the playground on the evening of

April 17, 1992, and testified at trial. On May 14, 1992, police interviewed Carpenter at his home,

and he signed a statement that, at the playground, he heard defendant tell a group of young men to

“Kill the b***.” At trial, Carpenter denied hearing defendant say those words and testified that he

just told the police what they wanted to hear so they would leave him alone.

¶ 14 Lloyd Bryant, another Black Stones gang member, testified that he was driving his motor

vehicle near the playground on a Friday evening in April 1992 and stopped to talk with defendant.

Bryant drove defendant to a liquor store, where they picked up Lovett. Defendant directed Bryant

to drive to places near the Cal Sag Channel, and eventually, defendant and Lovett exited Bryant’s

vehicle and walked towards the “black bridge.” Bryant testified before a grand jury that at some

point during the drive, defendant stated that he was up to “nation business,” which Bryant

understood to mean gang business. At trial, Bryant testified he could not recall that conversation.

On cross-examination, Bryant testified that he made some of his statements before the grand jury

but only at the specific instruction of the prosecutor.

¶ 15 ASA Michael Baumel testified that in April 1992, he interviewed Carpenter at his home.

Carpenter provided a verbal statement, which Baumel reduced to writing. Carpenter then signed

the written statement. Baumel denied telling Bryant what to say in his testimony before the grand

jury.

¶ 16 Lashonda Wilson testified that she observed Jackson intervene between Becom and

Ponquinette at the playground and walk away with Ponquinette. Around 30 minutes later, Jackson

walked by Wilson laughing and said that he was going to retrieve a sewer cover. Wilson then

observed Moore, who stated, “We hit the b*** in the head with bricks and she still wouldn’t die.”

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At that point, Ponquinette was lying on a railing by the bridge with her hands and feet bound.

Lovett warned Wilson that she should leave if she did not want to see “that.” As she walked away,

Wilson passed Jackson, who was carrying a sewer cover. On cross-examination, Wilson testified

that in exchange for her testimony, the State offered to recommend a sentence of probation for the

charges of aggravated battery and unlawful restraint of Ponquinette.

¶ 17 Gary Kmetty, a petty officer in the United States Coast Guard, testified that on April 26,

1992, he removed Ponquinette’s body from the Cal Sag Channel. Her feet were bound with green

electrical wire.

¶ 18 Detective Tasso Kachiroubas of the Illinois State Police testified that he discovered green

electrical wire tied to a sewer cover that he fished out of the Cal Sag Channel near the “black

bridge.”

¶ 19 The jury found defendant guilty of first degree murder, felony murder, aggravated

kidnaping, and kidnapping. Defendant filed a motion for a new trial, which the trial court denied.

The trial court merged the findings for felony murder into first degree murder and the findings for

kidnapping into aggravated kidnaping. Following a sentencing hearing, the court described

Ponquinette’s murder as exceptionally brutal, heinous, and indicative of wanton cruelty, and

imposed an extended term of 90 years’ imprisonment for first degree murder consecutive to 5

years’ imprisonment for aggravated kidnaping. We affirmed defendant’s convictions and

sentences on direct appeal. People v. Mobley, No. 1-94-4206 (1997) (unpublished order under

Supreme Court Rule 23).

¶ 20 On September 8, 1998, defendant filed a postconviction petition alleging that his trial

counsel was ineffective for failing to investigate and call individuals named at trial who would

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have impeached the State’s main witnesses by stating they were at the playground on the night of

the incident and did not hear defendant order the victim’s murder. On November 2, 1998, the

circuit court summarily dismissed defendant’s petition as both untimely and frivolous and patently

without merit. Defendant appealed, and we reversed and remanded for an “evidentiary hearing.”

People v. Mobley, No. 1-98-4360 (2000) (unpublished order under Supreme Court Rule 23).

¶ 21 On remand, the circuit court appointed counsel for defendant and allowed counsel to file

an amended postconviction petition raising additional issues over the State’s objection that the

amendments constituted a subsequent postconviction petition. The State filed a motion to dismiss,

and the cause proceeded to an evidentiary hearing held between April 4, 2005, and June 30, 2005. 2

On October 19, 2005, the circuit court entered a written order explaining that this court had

“reversed [the] first stage dismissal and ordered a third stage hearing.” The circuit court concluded

that defendant failed to make a “substantial showing that his constitutional rights were violated”

at trial or during appellate proceedings. Defendant appealed, and we affirmed. People v. Mobley,

No. 1-06-0349 (2008) (unpublished order under Supreme Court Rule 23).

¶ 22 On January 15, 2009, defendant filed a petition for a writ of habeas corpus in federal court

alleging that trial counsel was ineffective, the trial court made erroneous evidentiary rulings, the

evidence was insufficient to prove his guilt, and his sentence was excessive. On February 12, 2012,

the district court denied the petition on the merits. United States ex rel. Mobley v. Atchison, 9 C

0516 (N.D. Ill. Feb. 27, 2012).

2 The record does not show that the circuit court ruled on the State’s motion to dismiss.

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¶ 23 On September 19, 2014, defendant mailed a pro se motion for leave to file a successive

postconviction petition. On April 7, 2015, the circuit court stated that the court clerk could not

locate the filing and removed the case from the call.

¶ 24 On September 8, 2016, defendant refiled his pro se motion for leave to file a successive

postconviction petition. The petition alleged that (1) the State knowingly used Becom’s false

testimony to obtain his conviction, (2) the State failed to disclose impeachment evidence in

violation of Brady, and (3) trial counsel had a per se conflict of interest where he also represented

a State witness in criminal matters in 1990 and 1992. In support of the Brady allegation, defendant

attached his own affidavit averring that he met former Riverdale police officer Charles Hill in

prison in March 2013. Defendant also attached Hill’s affidavit, dated July 11, 2013, wherein Hill

averred that in September 1993, he observed Becom in possession of a substance that he believed

to be cocaine and engage in an apparent drug transaction. Hill arrested Becom, but was later

informed that the State would not pursue charges against her, that she was a cooperating witness

in another case with a plea deal in place, and that her father was a Chicago police officer whom

the ASA knew personally. Becom was released and, to Hill’s knowledge, the arrest and report

number were never logged. Based on the foregoing, defendant argued that Becom provided false

testimony, without which he would not have been found guilty.

¶ 25 On April 7, 2017, the circuit court denied defendant leave to file his successive petition,

finding that he failed to satisfy the cause and prejudice test. Specifically, the circuit court noted

that the information regarding Becom’s drug arrest was available years prior to defendant’s initial

postconviction petition, and that defendant was not prejudiced by the State’s failure to tender such

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information because it had no exculpatory or impeachment value, there was no evidence that

defendant requested it, and that it was immaterial to his guilt or punishment.

¶ 26 On appeal, defendant argues that we should remand his successive postconviction petition

for second-stage proceedings where he established the cause and prejudice required to excuse his

failure to include, in his original postconviction petition, a non-frivolous claim that the State

violated Brady by failing to disclose that it did not charge Becom with possession of cocaine

because she was cooperating in his case.

¶ 27 The Act provides a statutory remedy to criminal defendants who claim that substantial

violations of their constitutional rights occurred at trial. People v. Eddmonds,

(1991). The Act contemplates the filing of only one postconviction petition and “expressly

provides that any claim of substantial denial of constitutional rights not raised in the original or

amended petition is waived.” People v. Guerrero,

; 725 ILCS 5/122-3 (West

2016). Still, a defendant may file a successive postconviction petition where the proceedings on

the initial petition were fundamentally deficient. People v. Flores,

(1992).

In filing a successive postconviction petition, a defendant “faces immense procedural default

hurdles” (People v. Davis,

, ¶ 14), and must first obtain leave of court (People v.

Tidwell,

(2010); 725 ILCS 5/122-1(f) (West 2016)).

¶ 28 A court may grant a defendant leave to file a successive postconviction petition if he

“demonstrates cause for his failure to bring the claim in his or her initial postconviction

proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2016); Tidwell,

. Cause is demonstrated if a defendant identifies “an objective factor that impeded

his *** ability to raise a specific claim during his *** initial post-conviction proceedings.” 725

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ILCS 5/122-1(f) (West 2016). Prejudice can be demonstrated if “the claim not raised during ***

initial post-conviction proceedings so infected the trial that the resulting conviction or sentence

violated due process.” 725 ILCS 5/122-1(f) (West 2016). A defendant bears the burden of

establishing both cause and prejudice. People v. Sutherland,

. We

review the circuit court’s order denying defendant leave to file

his successive postconviction petition under the de novo standard. People v. Gillespie,

(2010).

¶ 29 Here, the circuit court found that defendant did not demonstrate cause for failing to include

the Brady claim in his initial postconviction petition. However, we need not discuss cause to affirm

because our decision is not dependent on the circuit court’s reasoning (see People v. Thompson,

(2008)), and in this case, it is clear that defendant cannot establish

prejudice from the State’s purported Brady violation.

¶ 30 Brady provides that the State must disclose evidence “favorable to the accused and material

either to guilt or to punishment.” (Internal quotation marks omitted.) People v. Jarrett,

(2010). “A Brady claim requires a showing that: (1) the undisclosed evidence is

favorable to the accused because it is either exculpatory or impeaching; (2) the evidence was

suppressed by the State either willfully or inadvertently; and (3) the accused was prejudiced

because the evidence is material to guilt or punishment.”

. In turn,

“[e]vidence is material if there is a reasonable probability that the result of the proceeding would

have been different had the evidence been disclosed.”

. To establish

materiality, a defendant “must show the favorable evidence could reasonably be taken to put the

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whole case in such a different light as to undermine confidence in the verdict.” (Internal quotation

marks omitted.)

.

¶ 31 We find that the circuit court properly denied defendant’s motion for leave to file his

successive petition where he failed to satisfy the cause and prejudice test. In this case, the

purported exculpatory evidence, Becom’s drug arrest, is not material because the jury was made

aware that Becom benefitted from testifying against defendant. Becom testified that, in exchange

for her testimony, she would be charged with aggravated battery and unlawful restraint in juvenile

court, and the State would recommend probation. She also testified that the State did not charge

her for soliciting men to have oral sex performed on them by Ponquinette. Additionally, Becom

testified that she did not initially provide information about the offense to police. Despite hearing

all of her testimony, the jury found Becom’s identification of defendant credible. Defendant has

not established prejudice simply because more impeachment information existed in addition to

that which was presented at trial. The additional impeachment would not have changed the verdict

in the case at bar.

¶ 32 Further, Becom testified that police questioned her on May 5 and 6, 1992, while Hill’s

affidavit asserts he arrested her in September 1993. Thus, Becom had already come forward with

information regarding defendant’s involvement in Ponquinette’s murder well before she was

arrested by Hill. In defendant’s reply brief, he adds that police reports contained in the record on

appeal show that no witnesses implicated him prior to Becom. However, a defendant cannot

introduce new evidence on a postconviction appeal, and since defendant did not include this

information in his proposed successive postconviction petition, it is not properly before this court.

See People v. Anderson,

(2007) (appellate court cannot consider

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evidence “for the first time on appeal without it first being attached to defendant’s postconviction

petition for initial scrutiny and evaluation at the trial court level”).

¶ 33 Moreover, Becom was not the only witness to identify defendant as having given the order

to kill Ponquinette. Carpenter provided a written statement to police in which he stated that

defendant said, “Kill the b***” in reference to Ponquinette. Although Carpenter recanted his

written statement at trial, “recanted prior inconsistent statements can be sufficient to support a

conviction, even without corroborating evidence.” (Internal quotation marks omitted.) People v.

Ealy,

. Therefore, even if the additional evidence in Hill’s affidavit

were presented at trial to discredit Becom, the jury could still have found defendant guilty based

on Carpenter’s written statement. See Ealy,

.

¶ 34 Since the evidence the State purportedly withheld was not material, it did not prejudice the

defendant. As a result, defendant’s Brady claim is without merit. As such, defendant cannot

demonstrate that the alleged Brady violation “so infected the trial that the resulting conviction or

sentence violated due process” (725 ILCS 5/122-1(f) (West 2016)), and, therefore, the defendant

cannot demonstrate the requisite prejudice to bring a successive postconviction petition.

Accordingly, the circuit court properly denied defendant leave to file a successive postconviction

petition.

¶ 35 For the forgoing reasons, we affirm the judgment of the circuit court.

¶ 36 Affirmed.

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