People v. Reyes

Nos. 1-04-1047 & 1-04-1150 Consolidated

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 98 CR 12440
)
ARTURO REYES, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 98 CR 12440
)
GABRIEL SOLACHE, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the opinion of the court:

The central issue in these consolidated appeals is whether the confessions of defendants

Arturo Reyes and Gabriel Solache were coerced. In June 2000, following simultaneous trials before

separate juries, defendants were each found guilty of two counts of first degree murder, two counts

of aggravated kidnaping, and home invasion. There was no physical evidence linking either defendant

to the crimes. Solache received a sentence of death for the murder convictions, and Reyes was

sentenced to natural life in prison without possibility of parole. On January 10, 2003, while Solache’s

direct appeal was pending before the Illinois Supreme Court, then-Governor George Ryan commuted

Solache’s death sentence to natural life imprisonment. The supreme court then transferred Solache’s
Nos. 1-04-1047 & 1-04-1150 Cons.

direct appeal to this court. On August 19, 2003, the appellate court affirmed Solache’s convictions

and sentences. People v. Solache, No. 1-03-1149 (2003) (unpublished order under Supreme Court

Rule 23). A few weeks later, on September 30, the appellate court came to the same conclusion

regarding Reyes’ convictions and sentences. People v. Reyes, No. 1-01-2875 (2003) (unpublished

order under Supreme Court Rule 23).1 In December 2003, each defendant filed a petition for

postconviction relief pursuant to section 122-1 of the Post-Conviction Hearing Act (725 ILCS 5/122-

1 (West 2002)). In their petitions, defendants claimed, inter alia, that their confessions were the

result of physical coercion by Detective Reynaldo Guevara of the Chicago police department. In

March 2004, within the requisite 90 days, the trial court summarily dismissed each petition as

frivolous and patently without merit. Defendants appealed the summary dismissal of their petitions,

and their appeals (Reyes, No. 1-04-1047, and Solache, No. 1-04-1150) were consolidated. For the

reasons set forth below, we reverse the judgments of the circuit court dismissing defendants’

postconviction petitions.

BACKGROUND

Defendants were convicted of the murders of Mariano and Jacinta Soto, who were found

stabbed to death in their apartment in Chicago on April 1, 1998. A third defendant, Adriana Mejia,

pleaded guilty and was sentenced to natural life imprisonment.

According to testimony at trial, including defendants’ inculpatory statements, which were read

to the jury by the assistant State’s Attorneys who took the statements, the murders took place as

1
Defendants’ petitions for leave to appeal these appellate court decisions to the Illinois
Supreme Court were denied on October 6, 2004.

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follows. In March 1998, defendants were living in an apartment with Adriana Mejia and her husband,

Rosauro. Adriana had been feigning pregnancy, and she needed a baby to claim as her own. On

Thursday, March 26, Adriana told Reyes she had found a friend with "a very pretty baby." Early in

the morning of Saturday, March 28, Solache drove Reyes to the University of Illinois Hospital and

picked up Adriana, who apparently had gone there under the pretext that she was about to give birth.

Solache, Reyes and Adriana then drove to the Sotos’ residence. While they were en route, Adriana

told them that Reyes’ assignment was to pick up the baby from the crib, and Solache’s assignment

was "to take care of Mr. Soto." Adriana said she would "take care of Mrs. Soto." When they arrived

at the Sotos’ apartment, Adriana knocked and, when Jacinta came to the door, Adriana asked Jacinta

to let her in because she had no place else to go. Adriana, Reyes and Solache then entered the

apartment. Reyes stabbed Jacinta and then ran to the bedroom and picked up the Sotos’ two-month-

old daughter, Maria. Reyes also took Santiago, the couple’s three-year-old son, who was lying next

to his father in the bed. Meanwhile, Solache picked up a knife from the kitchen table and ran to the

bedroom, where he saw a man (Mariano Soto) lying face up, asleep on the bed. Solache stabbed the

man in the stomach, then ran out of the bedroom and threw the knife down just outside the bedroom

door. While Reyes was running out of the apartment with the children, he looked back and saw

Adriana "on top of" Jacinta "stabbing her in the back like an animal." Reyes took the children to the

car. Adriana and Solache then emerged from the apartment, and the three of them drove away. They

dropped Adriana and the two children off at the hospital, and Solache and Reyes went back to their

apartment and went to bed.

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Later in the morning of March 28, Rosauro, believing that Adriana had given birth, came to

the hospital to pick her up. When Rosauro arrived at the hospital, he saw that she had not only a

baby but a three-year-old boy as well. Adriana explained the presence of the boy by stating that

another woman, Norma Salazar, had asked Adriana to care for the boy while she, Salazar, was giving

birth at the hospital. Rosauro and Adriana then returned to their apartment with the two children.

On April 1, 1998, police found the bodies of the Sotos in their apartment. Officer David

Valentin testified that, when he and his partner entered the apartment, they saw a "male Hispanic"

lying face up by the doorway with multiple stab wounds. In the bedroom, they saw a blanket in the

middle of the room. Under the blanket was a "female Hispanic" with multiple stab wounds. The

police also discovered that the Sotos’ two children were missing. A police bulletin describing the

children indicated that the baby had a wine-stain birthmark on her neck.

Late in the evening of the next day, April 2, Guadalupe Mejia, the sister-in-law of Adriana and

Rosauro, saw a picture of the Sotos’ three-year-old son on television, along with a news report about

the murders. Guadalupe, who lived with her husband, Jorge, in the same apartment building as

Adriana and Rosauro, recognized the boy as the same one that Adriana had brought home from the

hospital on March 28. Fearing that the woman (Norma Salazar) who had given the boy to Adriana

had murdered the child’s parents, Guadalupe told Adriana what she had seen and urged her to call

the police. Rosauro arrived home from work at 1:30 a.m. (April 3) and was told that the boy had

been reported missing and his parents had been murdered. Rosauro then took the boy to the 8th

district police station. Reyes and Solache went with him.

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Nos. 1-04-1047 & 1-04-1150 Cons.

Officers at the 8th district station verified that the boy was Santiago Soto. Rosauro, Solache

and Reyes were taken to the Area 5 station for further questioning. Detective William Kernan

testified that he called the hospital and learned that neither Norma Salazar nor Adriana Mejia had ever

been a patient there. Detectives were then sent to Adriana Mejia’s apartment. When they saw the

baby, they noticed that it was not a newborn (the child’s umbilical cord had healed). They identified

the baby as Maria Soto by the wine-stain birthmark on her neck. Adriana was then arrested. When

authorities at Area 5 (where Rosauro, Solache and Reyes were being questioned) were notified of

what occurred at the Mejia apartment, Rosauro, Solache and Reyes were also arrested.

Rosauro Mejia was held at Area 5 for two to three days and then released. He was never

charged. In addition, Norma Salazar was never charged in this case. Adriana Mejia, Reyes and

Solache were each charged with first degree murder, aggravated kidnaping and home invasion. As

previously noted, Adriana subsequently pleaded guilty and was sentenced to life imprisonment.

Prior to trial, defendants moved to suppress their statements on the ground, among others,

that the statements had been coerced. In his motion, Solache alleged that he was a Mexican national

and did not speak English and that he had difficulty understanding the Puerto Rican detective

(Guevara) who interviewed him. Solache also alleged that the detective slapped him and chipped his

tooth. Similar to Solache, Reyes alleged in his motion that he was a Mexican citizen and could not

read, write or speak English. According to Reyes, his statements were obtained "as a result of

physical, psychological and mental coercion." Specifically, Reyes alleged that a police officer

(Guevara) interviewed him repeatedly and, on several occasions, struck him. In one instance, the

officer allegedly asked Reyes why he had committed the crimes, and when Reyes denied any

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participation in the offenses, the officer allegedly hit him and told him he was lying. In another

instance, Reyes allegedly was told that if he persisted in his denials and failed to say anything against

Adriana or Solache, he would be allowing them to put the blame entirely on him, and he would get

the electric chair.

The trial court conducted a series of hearings on the motions to suppress. Numerous

witnesses testified, including Reyes, Solache and Guevara. According to the testimony of Guevara

and other witnesses, Adriana, Reyes and Solache were held at Area 5 for at least two days and were

questioned separately. Initially, all three denied any involvement in the murders. However, late in

the evening of April 3, the same day the three were arrested, Adriana implicated Reyes in the crimes.

This occurred at about 10:30 p.m. when Guevara, who was fluent in Spanish, confronted Adriana

with her shoes and a baby’s coat, both of which had blood on them. Adriana then stated that Reyes

was the one who had kidnaped the children and killed their parents. At that point, she did not indicate

that anyone else was involved. At 11:30 p.m., Guevara spoke to Reyes and told him that Adriana had

implicated him. Reyes denied any involvement in the crimes. Shortly thereafter, at 12:15 a.m. on

April 4, Guevara spoke to Solache, and he also denied any involvement.

Guevara further testified that at 3 p.m. on April 4, he again spoke to Reyes and confronted

him with Adriana’s accusation. At that point, according to Guevara, Reyes said: "Well, now I’m

going to tell you who was really there and what everybody did." Reyes told Guevara that he and

Adriana and Solache all were present at the scene of the crimes and that Solache was the one who

went into the bedroom and stabbed the husband. At 8 p.m. on April 4, Guevara again spoke with

Adriana and confronted her with Reyes’ statement that she and Solache also were involved in the

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murders. Adriana then conceded that Solache was involved as well. Shortly thereafter, at 9 p.m.,

Guevara spoke with Solache and told him that both Adriana and Reyes had implicated him in the

murders. According to Guevara, Solache said: "Okay. I’ll tell you. I’ll tell you what happened. I

was there and I’ll tell you what happened."

In the early morning hours of the next day, April 5, Adriana, Reyes and Solache each gave

a written inculpatory statement. Reyes’ statement was given to Assistant State’s Attorney (ASA)

Thomas O’Malley, with Officer Daniel Trevino interpreting. O’Malley testified that at no time in his

presence did any police officer hit or strike Reyes or tell him he was lying. Photographs were taken

of Reyes at the time of his statement. Solache’s statement was taken by ASA Heather Brualdi, with

Guevara interpreting. According to Brualdi, when she finished writing the statement in English, she

gave it to Guevara, and he translated it to Solache. Brualdi testified further that she saw no marks

on Solache’s face. She observed that he had a chipped tooth and an "old scar" on his skull.

Photographs also were taken of Solache. Adriana’s statement was given to ASA David Navarro,

who spoke Spanish.

At about 8:30 a.m. the same day, April 5, Officer Saul Basurto processed Solache and Reyes

when they were brought to the lockup. Basurto testified that when he processed Reyes, he observed

no obvious evidence of pain or injury. According to Basurto, who spoke Spanish, Reyes did not

complain of being hit by a police officer while in custody, nor did he complain that he was screamed

at or interrogated in a loud fashion. Basurto gave essentially the same report regarding Solache.

According to Basurto, Solache did not complain to him of any mistreatment or maltreatment.

Photographs were taken of both Reyes and Solache at the time that they were processed. The next

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day, April 6, John Musa, a medical intake officer at the Cook County jail, processed Solache and

Reyes. Musa, who spoke Spanish, testified that he observed no injuries or bruises on Reyes and that

Reyes made no complaints of any injuries. With regard to Solache, Musa testified that he observed

a scar on Solache’s head which was "an old injury," but he saw no other injuries. Musa asked

Solache if he had any recent head injuries, and Solache answered in the negative.

In his testimony, Reyes stated that he could neither read nor write English and that when he

signed the written statement, which was in English, he had no idea what it said. Reyes denied telling

Guevara that he was involved in the murders of the Sotos. Instead, Reyes told Guevara that he

"wasn’t involved" and that he "didn’t know what had happened." Reyes also testified that Guevara

physically abused him while Reyes was in custody. According to Reyes, when Guevara first

interviewed him, he took a cap off Reyes’ head and slapped him "very hard" in the face. Guevara

then asked Reyes why he had "do[ne] it." Reyes told Guevara that he did not know what he was

talking about. Reyes testified further that on another occasion, Guevara told Reyes that he was not

helping himself and was "letting other people blame [him]," and that if he did not say something,

"most likely [he would] get the electric chair." Subsequently, Guevara interviewed Reyes again and

asked him a series of questions, in a loud voice, regarding whether Reyes had murdered Jacinta and

Mariano Soto and whether he had kidnaped their children. According to Reyes, every time he

answered "no," Guevara would tell him to stop lying and slap him in the face with an open hand.

Reyes also testified that Guevara never advised him of his Miranda rights.

Solache’s testimony was similar to that of Reyes. Solache stated that he could neither read

nor speak English and that he wrote his name on his statement, which was in English, because

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Guevara told him to do it. Solache denied that Guevara read the statement to him. Solache also

testified, as did Reyes, that Guevara physically abused him. According to Solache, when Guevara

first spoke to him, Guevara told Solache what he had been accused of, and Solache told Guevara that

he "wasn’t involved." Solache testified that Guevara then started "beating" him. Solache explained

that Guevara hit him "many times" with an open hand on the left side of his face. Solache testified

that he was handcuffed to a ring in the wall on his right side, and this was the reason he was hit on

the left side of his face. Solache testified further that Guevara left the interview room and returned

with Adriana, who stated that Solache had "helped her" in committing the murders. Solache told

Adriana that this "wasn’t true," and he told Guevara that he "hadn’t done anything." According to

Solache, Guevara then hit him with an open hand in front of Adriana. Guevara and Adriana then left

the room, and Guevara returned and allegedly began beating Solache in the stomach. Solache

testified that he then "pled guilty because [he] couldn’t *** stand the beating anymore."

Solache also testified that, prior to April 3, 1998, when he was arrested in this case, he could

hear in his left ear, but now he could hear in that ear only with a hearing aid. Without the hearing aid,

Solache maintained, he could hear "nothing" with his left ear. On cross-examination, Solache

acknowledged that the scar on his head was from an auto accident in 1997. Solache denied that there

was any injury to his ear in the accident.

Adriana testified in support of defendants’ claims of physical abuse. According to Adriana,

Guevara physically abused her while she was being questioned in his office at Area 5. Adriana stated

that Guevara told her he was tired of her lies, and he pulled her hair three times and hit her "very

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hard" on her back. Adriana also testified, as had Solache, that Guevara took her to the room where

Solache was being held, and he slapped Solache in front of her.

The defense called Maria Rivera to testify in support of defendants’ claims that their

statements were coerced. Rivera testified that in August 1996 she spoke to Guevara about a shooting

that occurred near her house in which two young men were killed. Rivera testified further that she

did not see the individuals who did the shooting. However, on October 18, 1996, she identified a

person in a lineup as one of the individuals who had committed the shooting. According to Rivera,

Guevara told her to identify this person. Rivera also testified that she subsequently told the assistant

State’s Attorney that Guevara had told her to identify the person but that she had not seen that person

commit the shooting.

In answer to a question from the trial court, defense counsel explained the relevance of

Rivera’s testimony to defendants’ claims that their statements were coerced. According to counsel,

Rivera’s testimony showed that Guevara used the same technique in the past to coerce a witness in

another murder case to make a false identification. Counsel added that, after Rivera told the state’s

attorney what had happened, the State nol-prossed the murder charges against the defendants in that

case.

On cross-examination, Rivera conceded that Guevara did not hit her or give her money to

persuade her to make the identification. However, she insisted that Guevara "forced" her to do it.

She stated: "I know a lot of things about that detective."

The trial court denied defendants’ motions to suppress based on "so-called physical abuse."

The court stated:

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"The police in my opinion *** based on the *** credible evidence did not do anything

at all to mistreat either Arturo DeLeon [Reyes] or Gabriel Solache. Everybody [who] came

into contact with them, the booking officers, the jailers, whoever came into contact with those

two men indicated they never expressed anything about being mistreated by the police, about

any injuries supposedly obtained as a result of police misconduct regarding them."

According to the trial court, the evidence clearly established that "neither m[a]n [was] abused in any

fashion by Detective Guevara." The court noted that Reyes and Solache gave inculpatory statements

only after "they were confronted with respect to the statements of other defendants."

The testimony at trial was essentially the same as the testimony at the suppression hearings,

with a few notable additions. Barbara Wilson, a biochemist with the Illinois State Police, testified that

she performed DNA analysis in this case on a number of items with bloodstains, including knives,

shoes and other articles of clothing. Wilson found that DNA samples taken from bloodstains on

Adriana’s shoes and trousers matched the DNA profile of Mariano Soto, one of the murder victims.

Wilson found, in addition, that DNA from a bloodstain on a knife taken from the Sotos’ apartment

matched Adriana’s DNA profile. However, Wilson’s tests uncovered no DNA matching the profile

of either Reyes or Solache.

As previously indicated, the written inculpatory statements given by Reyes and Solache were

read to their respective juries. Solache’s statement was read to the jury by the ASA who took the

statement, Heather Brualdi. Reyes’ statement was read to the jury by the ASA who took his

statement, Thomas O’Malley.

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Adriana’s husband, Rosauro2, who was never charged in this case, testified in support of

defendants’ claims of physical abuse. Rosauro stated that Guevara questioned him while he, Rosauro,

was being held at Area 5 along with Reyes and Solache shortly after their arrest. According to

Rosauro, Guevara asked him how much he had paid for the little girl. When Rosauro answered that

he did not pay anything for a girl, Guevara hit him. Rosauro stated: "He kept hitting me because he

did not believe me." Rosauro testified that he was being held down by another person while Guevara

hit him two or three times.

In their testimony at trial, defendants repeated their allegations of abuse by Guevara. Each

defendant also expressly denied any involvement in the murders. For his part, Guevara denied hitting,

striking, or slapping either defendant. According to Guevara, he saw no injuries on Solache’s or

Reyes’ face, and neither of them ever complained to Guevara that he had been struck by a police

officer.

In his instructions to the jury, the trial court included the following instruction regarding

defendants’ statements:

"You have before you evidence that the defendant made statements relating to the

offenses charged in the indictment. It is for you to determine whether the defendant made the

statements, and, if so, what weight should be given to the statements. In determining the

weight to be given to a statement, you should consider all of the circumstances under which

it was made."

2
On June 19, 2000, the date of Rosauro’s testimony, he stated that he was no longer
married to Adriana.

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On June 20, 2000, each defendant was found guilty by his respective jury of two counts of

first degree murder, two counts of aggravated kidnaping, and home invasion. In his motion for a new

trial, Solache alleged, inter alia, that the trial court erred in denying his motion to suppress statements

"based on the conduct of Detective Reynaldo Guevara." Reyes filed a similar posttrial motion

alleging, inter alia, that the trial court erred in denying his motion to suppress statements based on

coercion. Included as an attachment to each motion was a copy of the same article from The Chicago

Reporter (R. Anderson, Eyewitnesses Confuse, Convict in Humboldt Park Murder Cases, The

Chicago Reporter, June 2000, at 3). The article examined what it termed "questionable police

practices" at Area 5 regarding several murder cases. Guevara was involved in each of these cases.

In August 2000, the trial court denied defendants’ motions for a new trial. With regard to

defendants’ claims that their statements were coerced, the court concluded that "[t]here was no

credible evidence whatever that Solach[e] and Reyes were injured in police custody at all." The court

noted defendants’ testimony that their statements were coerced, but stated: "I don’t believe any of

that testimony. I did not believe it then [during the pretrial suppression hearings] and nothing has

happened to change my mind." The court added that defendants’ inculpatory statements were given

only after they were confronted with statements implicating them in the kidnaping and double murder.

Defendants waived a jury trial for sentencing. Following first- and second-stage capital

sentencing hearings, the trial court found, with regard to Reyes, that there were sufficient mitigating

factors to preclude the sentence of death. With regard to Solache, the court found no such mitigating

factors. The court sentenced Reyes to life imprisonment without possibility of parole for the murder

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convictions. Reyes was also sentenced to 30 years< imprisonment for his kidnaping and home

invasion convictions, to run concurrently with the life sentences. Solache received death sentences

for the murder convictions, and the same 30-year sentences as Reyes for the other convictions.

Under Supreme Court Rule 603 (134 Ill. 2d R. 603), because Solache was sentenced to death,

his appeal lay directly to the Illinois Supreme Court. As previously noted, on January 10, 2003, while

Solache’s appeal was pending, then-Governor George Ryan commuted Solache’s death sentence to

natural life imprisonment. Because Solache was no longer sentenced to death, the supreme court

transferred his direct appeal to the appellate court.

On August 10, 2003, the appellate court affirmed Solache’s convictions and sentences.

People v. Solache, No. 1-03-1149 (unpublished order under Supreme Court Rule 23). A few weeks

later, on September 30, the appellate court reached the same conclusion with regard to Reyes’

convictions and sentences. People v. Reyes, No. 1-01-2875 (unpublished order under Supreme Court

Rule 23). The court expressly rejected defendants’ claims that their inculpatory statements were

coerced. In Reyes’ case, the court stated:

"Ultimately, the instant case hinges almost entirely on credibility. As detailed above,

this determination was for the trial court to make, which it did, against defendant.

Specifically, the trial court did not find defendant’s claim of abuse/beatings credible. *** It

is not for this court to second guess the trial court’s decision, particularly given that it was

specifically based on the demeanor of the witnesses during their testimony. Moreover, as

noted above, the trial court was not required to give more credence to defendant’s claim over

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that of Detective Guevara, who denied striking defendant." People v. Reyes, slip op. at 27-

28.

In Solache’s case, the court employed similar language with regard to this issue.

On December 17, 2003, Reyes filed a pro se petition for postconviction relief asserting,

among other claims, that his trial counsel was ineffective for failing to investigate the abuse inflicted

on Reyes by Guevara. According to Reyes, this physical coercion rendered his inculpatory statement

involuntary. Reyes also claimed that he was the victim of prosecutorial misconduct, that he was

subjected to an illegal search and seizure, and that he was not proven guilty beyond a reasonable

doubt.

The next day, December 18, Solache filed a petition for postconviction relief. Solache’s

petition, which contained 14 claims, was filed with the assistance of counsel. Chief among Solache’s

claims was the allegation, similar to Reyes’, that Solache’s confession was the product of a beating

by Guevara. In support of this claim, Solache presented what he termed "substantial new evidence

that Detective Guevara has systematically used improper techniques, including excessive physical

force, to coerce false statements from suspects and civilians." This "new evidence" consisted of 23

allegations that, in Solache’s view, "establish a clear pattern and practice of misconduct and abuse

by Detective Reynaldo Guevara." Four of these allegations were not new. They included the

complaints made against Guevara in this case by Maria Rivera, Adriana, and Reyes at the suppression

hearings, and by Rosauro Mejia at trial. An additional item of allegedly new evidence attached to

Solache’s petition was an FBI report regarding an interview with Mohamed Omar, who was

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convicted in April 2001 on racketeering and drug conspiracy charges. In this interview, which took

place on June 20 and 21, 2001, at the United State’s Attorney’s office in Chicago, Omar alleged that

Guevara had a reputation for taking bribes to fix cases.

Solache’s petition also claimed, in the alternative, that if it were found that the allegedly new

evidence was not newly discovered, then his trial counsel had a duty to investigate and present this

evidence, and her failure to do so constituted ineffective assistance of counsel. The remainder of the

claims in Solache’s petition consisted of additional allegations of ineffective assistance of counsel and

allegations of Brady violations for failure to disclose materially favorable evidence.

On March 2, 2004, the trial court summarily dismissed Reyes’ postconviction petition as

frivolous and patently without merit. Ten days later, on March 12, the trial court reached the same

conclusion regarding Solache’s petition. Each defendant filed a notice of appeal, and their appeals

were consolidated.

DISCUSSION

The Post-Conviction Hearing Act (Act) provides a remedy for defendants who have suffered

a substantial violation of their constitutional rights at trial. A proceeding under the Act is not an

appeal of a defendant’s underlying judgment. Rather, it is a collateral attack on the judgment. People

v. Evans, 186 Ill. 2d 83, 89 (1999). Consequently, any issues that were decided on direct appeal are

res judicata, and any issues that could have been presented on direct appeal, but were not, are

forfeited. People v. Rogers, 197 Ill. 2d 216, 221 (2001). Under the Act, a postconviction proceeding

not involving the death penalty contains three stages. People v. Edwards, 197 Ill. 2d 239, 244

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(2001). At the first stage, the defendant files a petition and the circuit court determines whether it

is frivolous or patently without merit. People v. Gaultney, 174 Ill. 2d 410, 418 (1996). At this stage,

the Act does not permit any motions or responsive pleadings from the State. Gaultney, 174 Ill. 2d

at 418. If the court determines that the petition is either frivolous or patently without merit, the court

must dismiss the petition in a written order. Edwards, 197 Ill. 2d at 244; 725 ILCS 5/122-2.1(a)(2)

(West 2002). A postconviction petition is considered frivolous or patently without merit only if the

allegations in the petition, taken as true and liberally construed, fail to present the gist of a

constitutional claim. Edwards, 197 Ill. 2d at 244; Gaultney, 174 Ill. 2d at 418. The "gist" standard

is a low threshold, and a defendant need only present a limited amount of detail in the petition.

Edwards, 197 Ill. 2d at 244. The claim need not be set forth in its entirety. Further, the petition need

not include legal arguments or citation to legal authority. Edwards, 197 Ill. 2d at 244; Gaultney, 174

Ill. 2d at 418. The circuit court may summarily dismiss a postconviction petition if the defendant’s

allegations are contradicted by the record from the original trial proceedings. Rogers, 197 Ill. 2d at

222.

If the petition is not dismissed as frivolous or patently without merit, it advances to the second

stage. Counsel is appointed to represent the defendant, if necessary (725 ILCS 5/122-4 (West

2002)), and the State is allowed to file responsive pleadings (725 ILCS 5/122-5 (West 2002)). At

this stage, the circuit court must determine whether the petition and any accompanying

documentation make a substantial showing of a constitutional violation. Edwards, 197 Ill. 2d at 246.

"If no such showing is made, the petition is dismissed. If, however, a substantial showing of a

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Nos. 1-04-1047 & 1-04-1150 Cons.

constitutional violation is set forth, then the petition is advanced to the third stage, where the circuit

court conducts an evidentiary hearing." Edwards, 197 Ill. 2d at 246.

In the case at bar, defendants’ petitions were dismissed as frivolous and patently without

merit. Because this was a first-stage dismissal, the question before us is not whether defendants’

petitions made a substantial showing of a constitutional violation. "[T]hat is a second-stage inquiry."

Edwards, 197 Ill. 2d at 246. Rather, the question we must address is whether defendants’ petitions

were frivolous or patently without merit, i.e., whether they presented the gist of a constitutional

claim. Our review of the circuit court’s dismissals of defendants’ postconviction petitions is de novo.

Edwards, 197 Ill. 2d at 247; People v. Coleman, 183 Ill. 2d 366, 388-89 (1998).

Solache argues before this court, as he did in his postconviction petition, that his confession

was coerced and that the "substantial new evidence" he presented in his petition demonstrated that

"Detective Guevara has systematically used improper techniques, including excessive physical force,

to coerce false statements from suspects and witnesses." In Solache’s view, this evidence "would

have had a dramatic effect on the credibility of those who testified at the suppression hearing."

Solache argues that he has met his burden of alleging the gist of a constitutional claim, and his

petition should have been advanced to the second stage.

In his brief to this court, Reyes makes essentially the same argument. He points to the

allegedly newly discovered evidence included in Solache’s petition, and argues that this evidence

establishes a pattern of abuse and misconduct by Guevara "beginning in 1983 and continuing through

the time of Reyes’ arrest." According to Reyes, this evidence lends support to a similar claim in his

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Nos. 1-04-1047 & 1-04-1150 Cons.

pro se petition that other claims of abuse existed (Adriana and Solache) to substantiate his claims of

abuse by Guevara.

However, in his pro se petition, Reyes did not raise newly discovered evidence. His claim in

his petition was that his trial counsel was ineffective for failing to investigate "the abuse inflicted upon

[him] at the hands of Det. Reynaldo Guevara." Reyes stated:

"[Counsel] should have asked and filed a complaint asking that Det. Reynaldo Guevara be

investigated because the allegations that I put forth about being Slapped by Det. Reynaldo

Guevara are true and factual. Not only did I bring this up but Gabriel Solache and Adriana

Mejia also said they were abused in the same fashion and testified to this as well. *** My

Attorney *** should have fought this issue harder. *** This was a really big issue in My

Defense and had this been investigated thoroughly it would have shown this Statement

[Reyes’ confession] was involuntary and was given because of physical coercion by Det.

Reynaldo Guevara."

The State argues that because Reyes’ claim in his petition was for ineffective assistance of

counsel, rather than newly discovered evidence, he has waived his right to raise the newly-discovered-

evidence claim on appeal. The State contends that Reyes has simply adopted Solache’s claims as his

own, even though "none of it was before the trial judge when he ruled on Reyes’ petition," and this

issue (newly discovered allegations of abuse by Guevara) is being improperly raised for the first time

on appeal. We disagree with the State.

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At the first stage of the proceedings, a post-conviction petition need not set forth a claim in

its entirety, and need only present a limited amount of detail. Edwards, 197 Ill. 2d at 244. Moreover,

the allegations in the petition are to be liberally construed. Edwards, 197 Ill. 2d at 244. These

principles apply with special force where the petition is pro se and the petitioner is likely a person of

limited education. People v. Dredge, 148 Ill. App. 3d 911, 913 (1986). In the case at bar, Reyes’

petition, as did Solache’s, alleged physical abuse by Guevara. Reyes mentioned that Solache and

Adriana had complained of similar abuse, and Reyes further alleged that if the issue of physical abuse

had been thoroughly investigated, such an investigation would have shown that Reyes’ statement was,

in fact, the result of physical coercion by Guevara. Interpreting Reyes’ allegations liberally, we

conclude that Reyes’ petition sufficiently included a claim of newly discovered evidence, and Reyes

therefore did not forfeit his right to raise this issue on appeal.

In reaching this conclusion, we reject the State’s argument that none of the claims of newly

discovered evidence that were included in Solache’s petition were before the trial judge when he ruled

on Reyes’ petition. As previously indicated, Reyes’ pro se petition was filed on December 17, 2003,

and Solache’s petition was filed one day later, on December 18. The trial judge ruled on Reyes’

petition on March 2, 2004, and on Solache’s petition 10 days later, on March 12. Solache’s and

Reyes’ trials were before separate juries, but the trials were conducted simultaneously before the same

trial judge. The two cases were intertwined. In our view, it would elevate form over substance to

conclude, as the State contends, that Solache’s claims of newly discovered evidence were not before

the judge when he ruled on Reyes’ petition.

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Nos. 1-04-1047 & 1-04-1150 Cons.

We turn next to the issue of whether defendants’ claims of coercion by Guevara are barred

by the doctrine of res judicata. In the case at bar, the issue of the voluntariness of defendants’

confessions was litigated and decided on direct appeal. Issues that were decided on direct appeal are

barred by res judicata. Rogers, 197 Ill. 2d at 221; Evans, 186 Ill. 2d at 89. However, our supreme

court has recognized that, "in the interests of fundamental fairness, the doctrine of res judicata can

be relaxed if the defendant presents substantial new evidence." People v. Patterson, 192 Ill. 2d 93,

139 (2000). In order for new evidence to be sufficient to warrant a new trial, (1) it must be material

and not merely cumulative, (2) it must be of such conclusive character that it will probably change

the result on retrial, and (3) the evidence must not have been discovered or discoverable through the

defense’s due diligence prior to the original trial. Patterson, 192 Ill. 2d at 139.

The question before us is whether the allegedly new evidence at issue qualifies as "substantial

new evidence" and therefore warrants relaxation of the doctrine of res judicata. As previously noted,

4 of the 23 allegations included in Solache’s petition are not new. At least one other allegation makes

no mention of Guevara, and another is an allegation of physical abuse against Guevara’s partner

rather than Guevara. Of the remaining allegations, at least six allege the use of physical force against

suspects and witnesses, and six others involve the improper influencing of witnesses to identify

suspects.

An example of the physical force allegations is that of Armando Serrano. Solache’s petition

included as an exhibit a copy of Serrano’s petition for postconviction relief, dated August 6, 1999.

In this petition, which indicated Serrano was sentenced in March 1995 for murder and armed robbery,

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Nos. 1-04-1047 & 1-04-1150 Cons.

Serrano alleged that Guevara and his partner took Serrano from his home on June 11, 1993, and

transported him to the Area 5 police station for interrogation. During this interrogation, Guevara

allegedly hit Serrano in the face, called him a liar, and struck Serrano on his body "in hopes of

obtaining a confession." Another exhibit included in Solache’s petition is a copy of the opinion in

People v. Pena, 174 Ill. App. 3d 281 (1988). Defendant Daniel Pena was convicted of murder,

conspiracy to commit murder, and armed violence. On appeal, Pena argued, among other things, that

his confession was involuntary. According to Pena, during his interrogation at Area 5 in January

1986, Guevara "repeatedly struck defendant in the face, ribs and on the legs from the groin to his

knees with a flashlight." Pena, 174 Ill. App. 3d at 282. Guevara testified that Pena was not abused

but there was a struggle when he was arrested. The appellate court concluded that Pena’s confession

was voluntary and affirmed his convictions and sentence. An additional exhibit attached to Solache’s

petition was a summary report of a complaint filed by Melvin Warren with the Chicago Police

Department’s Office of Professional Standards (OPS). Warren complained that, on April 16, 1986,

Guevara (1) hit Warren with his fist on the right side of his face, (2) pushed Warren down in Warren’s

car, grabbed him around the neck, and choked him, (3) verbally abused him by calling him a "nigger

dog" several times, and (4) verbally threatened Warren by stating that he (Guevara) would tear

Warren’s head off. According to the summary report (page 5 of which is missing from the record),

the complaint arose from a traffic incident that took place while Guevara was off duty. Warren

apparently cut Guevara off while Guevara was driving. Guevara then motioned for Warren to pull

over. Warren alleged that, when he (Warren) emerged from his car, Guevara called him a "nigger

22
Nos. 1-04-1047 & 1-04-1150 Cons.

dog" and threatened to tear his head off. Warren further alleged that when he (Warren) walked back

to his car, Guevara hit him on the right side of his face with his fist, pushed Warren down in his car,

grabbed him around the neck, and choked him. Warren stated that he then grabbed Guevara’s wrist

and bit Guevara until Guevara released Warren’s neck. Two eyewitnesses confirmed that Guevara

initiated this beating. The OPS report cited the arrest report in this case as indicating that Warren

was arrested for simple battery, resisting arrest, and negligent driving. The OPS conducted an

investigation of Warren’s complaint and sustained Warren’s allegations that Guevara hit Warren in

the face with his fist; pushed Warren in his car, grabbed him by the neck, and choked him; and

verbally abused Warren by calling him a "nigger."

An example of the improper-influencing allegations is that of David Velasquez. Solache’s

petition included as an exhibit Velasquez’s testimony recanting an identification he made on May 10,

1991, in the murder case of Daniel Rodriguez. According to Velasquez, he falsely identified the

accused after being questioned at Area 5 by Guevara and his partner, Detective Halvorsen.

Velasquez testified that he was chained to a wall at Area 5, he was hit with a flashlight, and that

Guevara told him what to say and threatened to "pin" the murder on him if he did not sign the false

identification. Another exhibit attached to Solache’s petition was the testimony of Luis Figueroa,

who recanted his previous identification of Angel Diaz in a murder case. Figueroa, who was

incarcerated at the time of his recantation testimony, stated that he viewed a lineup on February 6,

1995, and falsely identified Diaz as the shooter after Officer "Ray Cavera" "told [Figueroa] to pick

him out." Figueroa further testified that "Cavera" told him Diaz "was the one that did it and he wants

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Nos. 1-04-1047 & 1-04-1150 Cons.

to take him down *** when I got there he was asking me *** what did you see, you know, I told him

I could not see anything, and he told me [']I found out who did it and his name is Angel Diaz.[’]" Also

attached as an exhibit to Solache’s petition was the testimony of Jose Melendez, who stated that on

May 30, 1995, he falsely identified the accused in a murder case. According to Melendez, he was at

Area 5 when Guevara showed him a photo array consisting of six photographs. Melendez testified

that he indicated he had not seen the shooter, but Guevara separated out one of the photos from the

rest and told Melendez he had reason to believe this was the killer. Melendez testified: "I think that

day I was mad, I was angry. My friend got shot, and [Guevara] told me to point [the accused] out

because he had reason to believe this was the guy."

Before applying the Patterson test to determine if defendants’ allegedly new evidence is

sufficient to warrant relaxation of res judicata, we note the difference in procedural posture between

Patterson and the case at bar. Patterson was a capital case, and such cases are handled differently

under the Act than are noncapital cases. There is no provision authorizing the circuit court to dismiss

a capital defendant’s petition if it is frivolous or patently without merit. People v. Thomas, 195 Ill.

2d 37, 40 (2001). Instead, where the petitioner is under sentence of death, the circuit court must first

determine whether the petitioner, if indigent, wants to be represented by counsel. After the petitioner

makes that choice, the matter is docketed for further proceedings. At that point, the State may either

answer the petition or move to dismiss it. Thomas, 195 Ill. 2d at 40. Accordingly, there is no "first

stage" proceeding for a capital postconviction petition. Instead, such a petition moves automatically

to the second stage, where counsel is appointed to represent the defendant, if necessary, and the State

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Nos. 1-04-1047 & 1-04-1150 Cons.

is allowed to file responsive pleadings (Edwards, 197 Ill. 2d at 245-46). In Patterson, pursuant to

this procedure, the defendant’s petition was dismissed only after the State had moved to dismiss it.

Because this dismissal came at the second stage, the defendant’s burden was greater than in the first

stage, where he is required only to present the gist of a constitutional claim. At the second stage, as

noted, the question is whether the petition and any accompanying documentation make a substantial

showing of a constitutional violation.

This greater, second-stage burden is apparent in the language used in Patterson to introduce

the three-tier test for determining whether allegedly new evidence constitutes "substantial new

evidence" such that res judicata may be relaxed. The court states: "For new evidence to be sufficient

to warrant a new trial ***." (Emphasis added.) Patterson, 192 Ill. 2d at 139. However, at the first

stage, as in the case at bar, the petitioner is not seeking a new trial. Rather, he is seeking only to

advance to the second stage of the proceeding, where he may have the assistance of counsel, if

necessary, and the State may file responsive pleadings. Because the dismissal of the petition in the

instant case came in the first stage rather than the second stage, the burden on defendants to establish

that their allegedly new evidence was "substantial new evidence" is necessarily lighter than was the

burden on the petitioner in Patterson. In order to set forth the gist of a constitutional claim, which

our supreme court has described as "