People v. Haynes, 2015 IL App (3d) 130091 (January 13, 2015) Kankakee Co. Reversed and remanded. Terrance Haynes was convicted at trial of murder in connection with a shooting death. The defendant was convicted based on the eye-witness testimony of an 11-year-old who claimed that Haynes shot an unarmed man and the testimony of an 8-year-old who claimed that she saw Haynes arguing with another man and then went inside her home and heard a gunshot. The defendant testified that he shot the victim in an act of self-defense after the victim was attempting to pull a gun on him. Haynes was sentenced to 45 years in prison.

Haynes filed a pro se 2-1401 petition, alleging that his due process rights were violated where the State failed to disclose that the 11-year-old witness—the only actual occurrence witness in the case—was the cousin of the Assistant State’s Attorney who acted as co-counsel in the prosecution of the defendant. The trial court dismissed Haynes’ 2-1401 petition sua sponte, stating “that Jeneary [the ASA] ‘probably should have’ disclosed the relationship, but since it concerned only bias and witness credibility, the court would not order a new trial.” ¶ 8. The appellate court affirmed the sua sponte dismissal of the defendant’s petition on appeal.

Haynes, much to the credit of his persistence, filed a pro se post-conviction petition alleging that he “was denied due process where Jeneary suborned perjury when Hammond testified that the victim, Murrell, was not armed with a gun at the time of the shooting. Attached to the petition was an affidavit from Hammond stating, in its entirety: “I was the eye witness in the case People v. Haynes case # 99-CF-338[.] [I]n this case my cousin Michael Todd Jeneary was the State’s Attorney. I testified in open court that there was only one gun but it really was two, the guy that got shot also had a gun when he got shot but I was told not to say that he had a gun.” ¶ 9.

The trial court dismissed the defendant’s petition at the first stage, finding “that Hammond’s affidavit did not say that Murrell was holding a gun, nor did defendant testify Murrell was holding a gun. Instead, defendant stated that he saw a gun in Murrell’s waistband. The court concluded that there was no reasonable probability that the outcome of defendant’s trial would have been different had Hammond testified to seeing Murrell with a gun.” ¶10. Summary dismissal at the first stage of proceedings is appropriate only where the “petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2012). To survive summary dismissal, the petition must state merely the “gist” of a constitutional claim. People v. Collins, 202 Ill. 2d 59, 66 (2002). The trial court in this case found that Haynes’ petition, which, as they so rarely do, actually included an affidavit of this type from the State’s main witness and a cousin of the ASA, did not meet the gist of a constitutional claim necessary to proceed to second-stage under the PCHA.

The appellate court rightfully disagreed with the trial court that defendant’s allegations, taken as true (as the court must during first-stage review), did not present the gist of a constitutional claim necessary to avoid summary dismissal (“Because Hammond was the only eyewitness to the actual shooting, other than defendant, we find his sworn allegation that he ‘was told not to say that he (Murrell) had a gun’ establishes the gist of a constitutional claim.”). ¶ 13. The Court explained that “Defendant’s entire defense at trial revolved around the theory of self-defense and his testimony that Murrell had a gun on his person. Hammond, however, testified at trial that he did not see Murrell holding a gun or anything in Murrell’s hands. This testimony was extremely damaging to defendant’s defense. Hammond’s affidavit establishes, at least for purposes of first- stage proceedings, that this damaging testimony was untrue. Hammond, as the sole witness to the shooting, was the key witness in this case and thus there is a reasonable likelihood that his curtailed testimony affected the verdict.”). ¶ 14.

I agree with the appellate court’s original decision as to the 2-1401 petition that the existence of a family relationship between the State’s witness and the ASA, while it should have been disclosed to the State, would not necessitate a new trial because the defendant was unable to prove how that relationship impacted the witness’ trial testimony. However, when the defendant was somehow able to obtain the affidavit that he obtained from the same witness, who defendant had already established in a prior proceeding was related to the ASA (through a letter from the ASA conceding this), indicating that the only eye-witness in the case had committed perjury when testifying about key facts in the case, that pro se post-conviction should have absolutely survived first-stage dismissal, and the appellate court in this case was correct for deciding so. These are exactly the type of claims that the PCHA is designed for. The defendant should have, at minimum, received counsel to develop these claims and conduct an evidentiary hearing on them. The case was correctly reversed and remanded for this purpose.