People v. Bogan

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except
in the limited circumstances allowed under Rule 23(e)(1).

2023 IL App (3d) 210341-U

Order filed May 12, 2023
____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

2023

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court
ILLINOIS, ) of the 12th Judicial Circuit,
) Will County, Illinois,
Plaintiff-Appellee, )
) Appeal No. 3-21-0341
v. ) Circuit No. 13-CF-1631
)
ANTONIO M. BOGAN, ) Honorable
) David M. Carlson,
Defendant-Appellant. ) Judge, Presiding.
____________________________________________________________________________

JUSTICE BRENNAN delivered the judgment of the court.
Justices Hettel and Albrecht concurred in the judgment.
____________________________________________________________________________

ORDER

¶1 Held: We reverse the trial court’s first-stage dismissal of defendant’s postconviction
petition where defendant raised an arguable claim of actual innocence.

¶2 Following a bench trial, defendant Antonio M. Bogan was convicted of being an armed

habitual criminal, having previously been convicted two or more times of armed robbery (720

ILCS 5/24-1.7 (a)(1) (West 2012)), and defacing the identification marks of a firearm (720 ILCS

5/24-5(b) (West 2012)). The trial court sentenced defendant to concurrent prison terms of 30 years

and 5 years, respectively. On direct appeal, defendant argued that the evidence was insufficient to
 show the element of possession. People v. Bogan, 2017 IL App (3d) 150156, ¶ 1 (Bogan I). This

court, though disagreeing with the State’s assertion that the evidence was overwhelming,

nevertheless determined it was sufficient to affirm. Id. ¶¶ 35, 50. Defendant subsequently filed a

pro se postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-

1 et seq. (West 2020)), alleging actual innocence and attaching the affidavit of a witness previously

unknown to him who claimed to have placed the firearm in a vehicle titled to defendant, without

defendant’s knowledge, shortly before the firearm was discovered by police. The trial court

summarily dismissed the first-stage petition. For the reasons that follow, we reverse the dismissal

and remand for second-stage proceedings.

¶3 I. BACKGROUND

¶4 As set forth more fully in Bogan I, 2017 IL App (3d) 150156, the following evidence was

presented at trial. On July 27, 2013, members of the Joliet police department sought to apprehend

defendant for another crime. Initially, the police stopped a white Chevrolet Impala, which they

believed belonged to defendant near defendant’s apartment, but defendant was not in the vehicle.

Shortly thereafter, the police observed a green Oldsmobile Cutlass in defendant’s parking lot,

which was also registered to defendant. An officer noticed defendant sitting on the front porch of

his apartment. Defendant initially denied knowing who owned the Cutlass. When the police

informed him that they knew that he was the title owner, defendant responded that he had sold the

Cutlass to Micah Smith two weeks earlier.

¶5 The police arrested defendant for the other offense, defendant consented to a search of his

apartment, the police took defendant’s cell phone into evidence, and the police obtained a search

warrant for the Cutlass. The police obtained defendant’s key chain, which contained keys to the

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 Impala and his apartment but not the Cutlass. The Cutlass keys were not recovered in the

apartment search. The police used a slim jim tool to open the Cutlass.

¶6 In the Cutlass, the police found the firearm that defendant was charged with possessing: a

.40-caliber semi-automatic handgun with a scratched-off serial number. The .40-caliber handgun

was located in a stack of items on the back driver’s side floorboard. On top of the stack was a red

plastic bag containing, among other items, defendant’s insurance card. Beneath the red bag was

the .40-caliber handgun, as well as a .22-caliber revolver, both wrapped in a black sweatshirt.

Beneath the black sweatshirt was a zipped bag containing five empty rifle magazines and two

boxes of ammunition, one of which was for an AR-15 style rifle. Defendant’s fingerprints were

later found on the box of ammunition for the AR-15 style rifle. An AR-15 style rifle was found in

a garment bag laying across the back seat of the Cutlass. Two pictures of the AR-15 style rifle

were found on defendant’s phone, the more recent of which was taken 12 days earlier on July 15,

2013.

¶7 At trial, defendant objected to evidence of the AR-15 style rifle, as he was not charged with

possessing that firearm. The trial court overruled the objection, agreeing with the State that the

AR-15 style rifle, when taken together with its picture and defendant’s fingerprints, were probative

of defendant’s control over the Cutlass and knowledge of what was inside it. Other items linking

defendant to the Cutlass included a set of bow and arrows (the target for which had been found in

defendant’s apartment); a March 3, 2013, towing receipt for the Cutlass signed by defendant; and

a March 18, 2013, store receipt bearing defendant’s name and address.

¶8 Defendant testified in his own defense that, although the Cutlass was titled to him, he

purchased it in March 2013 for his close friend, Anton Spencer, and Spencer’s girlfriend, Micah

Smith. Defendant believed the two to be unable to purchase their own car due to having suspended

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 licenses. Defendant admitted to being in the Cutlass in March 2013, when he picked up the car

from a towing facility for Spencer and when Spencer drove him to a store. He admitted to touching

Spencer’s ammunition box, saying that he saw no harm in looking at it. He did not see the AR-15

style rifle in person; Spencer only sent him a picture of it. Defendant guessed that Spencer put the

red bag with the insurance card in the Cutlass, as Spencer frequented defendant’s apartment.

¶9 On the date of the incident, defendant was getting ready to be picked up by his girlfriend

to visit her brother in the hospital. He allowed a friend, Timothy Potter, to take his Impala. Potter

was a mechanic who was going to fix the Impala’s brakes. Also in the Impala were Potter’s

girlfriend and Spencer. The trio was stopped by police upon their return to defendant’s apartment.

¶ 10 When the police saw and questioned defendant, defendant did not inform them that

Spencer, as well as Smith, owned the Cutlass. Defendant had not noticed the Cutlass when he

went outside the morning of the incident. He first noticed the Cutlass parked outside later in the

day. Although Spencer was standing in the vicinity, defendant did not want to “put my brother

out there. I don’t know what he has in that car.” At the time the police executed the search warrant

for the Cutlass, defendant was being processed at the police station for the other offense.

Following his arrest, defendant tried to locate Spencer but was unsuccessful (“He abandoned me”;

“We tried to get ahold of both of them” (referring to Spencer and Smith)).

¶ 11 The trial court convicted and sentenced defendant as stated. On appeal, defendant argued

that the State failed to prove that he constructively possessed the .40-caliber handgun. Bogan I,

2017 IL App (3d) 150156, ¶ 1. As defendant was not found in actual possession of the .40-caliber

handgun, the State was required to prove constructive possession by showing defendant’s: (1)

immediate and exclusive control over the area where the firearm was found; and (2) knowledge of

the presence of the firearm. Id. ¶ 27.

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¶ 12 This court determined that the evidence was sufficient to establish defendant’s control over

the Cutlass. Id. ¶ 42. Defendant purchased the Cutlass and was the legal owner. Id. ¶ 31.

Numerous items belonging to defendant were found in the Cutlass, and defendant’s phone had a

recent picture of what may have been the AR-15 style rifle located in the Cutlass. Id. ¶ 33. From

this evidence, a rationale trier of fact could conclude that defendant was a regular driver of the

vehicle. Id. ¶ 36. We acknowledged that defendant provided an innocent explanation for his

connection to the Cutlass and that the Cutlass keys were not on defendant’s key chain nor were

they ever recovered, but we reasoned that these discrepancies were for the trier of fact to resolve.

Id.

¶ 13 We also determined that the evidence was sufficient to establish defendant’s knowledge of

the firearm. Id. ¶ 46. We explained that knowledge may be inferred from a defendant’s regular,

ongoing control and concluded that the numerous connections between defendant and the Cutlass

could allow a trier of fact to infer that defendant would know what was in it. Id. ¶ 45. We further

explained that the “precise location of the evidence found in the [Cutlass] gives rise to an

independent inference of knowledge.” Id. ¶ 47. That is, because the items at the bottom and top

of the stack, i.e., ammunition box with defendant’s fingerprints and defendant’s insurance card,

could each be linked directly to defendant, it was highly unlikely that he was not aware of the .40-

caliber handgun in the middle of the stack. Id. “It would similarly undermine any inference that

the weapon was placed in the [Cutlass] by another person.” Id. Having determined that there was

sufficient evidence of defendant’s control and knowledge, we affirmed his convictions. Id. ¶ 48.

¶ 14 On July 16, 2021, defendant filed the instant pro se postconviction petition, alleging actual

innocence based on newly discovered evidence. Defendant attached the affidavit of Johnnie

Bankston, and argued that the affidavit negated the State’s theory at trial and corroborated

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 defendant’s trial testimony. Defendant further argued that he did not know Bankston prior to trial,

he discovered the evidence after his trial, and the evidence was not previously available to him

through the exercise of diligence.

¶ 15 In his affidavit, Bankston attested that the .40-caliber handgun was his. Spencer, an

acquaintance of his, had agreed to help sell the handgun. Spencer picked up Bankston in Chicago

Heights in a green Cutlass. Bankston gave Spencer the handgun, Spencer “check[ed] it out,” and

Spencer then put it, together with a .22-caliber handgun, inside a black sweatshirt and behind the

seat. They drove toward Joliet to make the sale. During the drive, Spencer explained that he was

going to sell the .40-caliber handgun, the .22-caliber handgun, and an AR-15 rifle (which Bankston

never saw) to the same person. When they arrived in Joliet, the buyer was not ready. As such,

they drove to an apartment complex where two of Spencer’s female friends lived. Spencer parked

the Cutlass outside the apartment and left the firearms in the Cutlass. They had been in the

apartment for about an hour when Spencer got a call. Spencer left, saying he would be right back,

and Bankston stayed in the apartment. About 90 minutes later, Spencer returned, telling Bankston

that he had been detained by the police, his car was surrounded by police, and his friend “Tone”

had been arrested for reasons unknown to him. Spencer and Bankston stayed in the apartment

until the police left. At that point, they saw the Cutlass was gone. At 11 p.m., Spencer drove

Bankston back to Chicago Heights in the Impala.

¶ 16 Bankston lost contact with Spencer and was later arrested for an unrelated crime. For years,

Bankston thought Spencer stole his gun or the buyer set him up. “[I]t didn’t make sense to me for

the police to show up out of the blue and mess with a car parked in a lot with many other vehicles.”

However, in 2019, while in the Lawrence Correctional Center, Bankston overheard defendant

“talking about being sentenced to 30 years at 85% in Joliet for constructive possession of a defaced

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 Hi-Point .40-caliber found in a [C]utlass registered in his name but actually owned and driven by

somebody he thought was a friend.” Bankston approached defendant, spoke with him further, and

realized that defendant had been Spencer’s friend “Tone.” Bankston told defendant that the .40-

caliber handgun had been his. Defendant immediately asked Bankston to so attest in an affidavit.

Bankston initially declined, fearing it would negatively impact his pending appeal or result in

additional charges. However, his conscience started “messing” with him to the point that he could

no longer sleep. Bankston’s affidavit provided in conclusion:

“So, I declare, without any threats or promises being made, that on July 27, 2013,

I put the defaced Hi-Pointed .40 caliber handgun in the green Cutlass when I agreed to ride

with Anton Spencer to Joliet to sell the gun. I also declare that Antonio Bogan was not

present when I put the gun in the car and he didn’t give me permission to do so.”

¶ 17 On July 20, 2021, the trial court summarily dismissed defendant’s first-stage petition,

providing in a written order that the issues raised “do not merit further post-conviction review.”

This timely appeal followed.

¶ 18 II. ANALYSIS

¶ 19 Defendant argues that the trial court erred in dismissing his pro se postconviction petition

at the first stage. The Act provides a mechanism by which criminal defendants may assert that

their convictions or sentences were the result of a substantial violation of their constitutional rights.

People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A freestanding claim of actual innocence is

cognizable under the Act. People v. Washington, 171 Ill. 2d 475, 489 (1996). The Act provides

for a three-stage proceeding. People v. Pendleton, 223 Ill. 2d 458, 471-72 (2006) (non-death

penalty cases). At the first stage, the trial court has 90 days to review the petition without input

from the State. 725 ILCS 5/122-2.1(a)(2) (West 2020). At the second stage, the trial court may

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 appoint counsel for the defendant, if the defendant is indigent. Id. § 122-4 (West 2020). After

counsel has had the opportunity to make any necessary amendments to the petition, the State may

answer or move to dismiss. Id. § 122-5. Finally, at the third stage, the trial court conducts an

evidentiary hearing to determine whether a new trial is warranted. Id. § 122-6.

¶ 20 Where the trial court dismisses the petition at the first stage, our review is de novo. People

v. Tate, 2012 IL 112214, ¶ 10. A postconviction petition should survive the first stage so long as

it presents the gist of a constitutional claim and is not frivolous or patently without merit. People

v. Hodges, 234 Ill. 2d 1, 16 (2009). A petition is frivolous or patently without merit if it has no

arguable basis in law (such as an indisputably meritless legal theory) or in fact (such as a claim

that is completely contradicted by the record, fantastic, or delusional). Id. at 16-17. The “gist”

standard is a low threshold that is easy to satisfy. People v. Edwards, 197 Ill. 2d 239, 244 (2001).

Courts should review first-stage petitions with “ ‘a lenient eye, allowing borderline cases to

proceed.’ ” Hodges, 234 Ill. 2d at 22 (quoting Williams v. Kullman, 722 F. 2d 1048, 1050 (1983)).

The factual allegations should be liberally construed in the petitioner’s favor and a petitioner need

not allege facts supporting all of the elements of a constitutional claim (People v. Brown, 236 Ill.

2d 174, 188-89 (2010)), as higher standards await the petitioner in the later stages of the

proceedings.

¶ 21 Relevant here, for a freestanding claim of actual innocence to survive the first stage, the

petition and supporting documents need only make an arguable showing that the evidence

supporting actual innocence is: (1) newly discovered, (2) material and not merely cumulative, and

(3) of a conclusive character. People v. White, 2014 IL App (1st) 130007, ¶ 19. As we explain,

the petition and supporting documents here make an arguable showing as to each of the three

prongs.

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¶ 22 A. Newly Discovered

¶ 23 Newly discovered evidence is evidence that was unavailable at the original trial and could

not have been discovered sooner through the exercise of diligence. People v. Burrows, 172 Ill. 2d

169, 180 (1996). The question of Bankston’s unavailability turns on defendant’s diligence in

locating him and in Bankston’s fifth amendment right against self-incrimination. Bankston

attested that he did not know defendant prior to 2019. Even then, it took defendant two years to

convince Bankston to share his version of events in an affidavit. Bankston further attested that,

initially, he was not ready to share his version of events, because he did not want to jeopardize his

pending appeal or be charged with additional offenses. Indeed, it has been held that no amount of

diligence can force a witness to violate his fifth amendment right to self-incrimination if he does

not choose to do so. People v. Molstad, 101 Ill. 2d 128, 135 (1984).

¶ 24 The State does not address defendant’s diligence in locating and procuring Bankston’s

testimony. Rather, the State’s sole diligence argument concerns Spencer. We observe that

Spencer, like Bankston, would have been reluctant to incriminate himself. Per Bankston, the two

hid in an apartment until the police left the scene. The State nevertheless reasons that, had

defendant gotten Spencer to cooperate, Spencer would have informed defendant of Bankston: “[I]f

defendant had exercised due diligence, he could have discovered the information about Bankston

simply by discussing the matter with Spencer.” The State does not acknowledge that defendant

testified at trial that he tried to locate Spencer but could not find him. Nor does the State

acknowledge Spencer’s own fifth amendment concerns were he to implicate Bankston. More

significantly, we note that defendant’s diligence in procuring Spencer was ancillary to his diligence

in procuring Bankston. Bankston’s revelations to defendant are at least arguably newly discovered

evidence.

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¶ 25 B. Material and Not Merely Cumulative

¶ 26 Evidence is material if it is probative of the petitioner’s innocence. People v. Coleman,

2013 IL 113307, ¶ 96. Defendant urges that Bankston’s affidavit is probative of his innocence in

that it “focuses centrally on the knowledge element of constructive possession, illustrating that

defendant did not know the firearm was in the Cutlass.” We agree.

¶ 27 Bankston attested that defendant was not present when he brought the .40-caliber handgun

into the Cutlass. Bankston did not tell defendant that the handgun was in the Cutlass. Bankston

did not even know defendant. Bankston explained that he left the handgun in the Cutlass shortly

before the Cutlass was searched by the police. Thus, Bankston offered a plausible explanation as

to why defendant was unaware of the firearm found in a vehicle that he frequented.

¶ 28 The State counters that “Bankston’s affidavit does nothing to negate a finding of

knowledge as Bankston has no information as to whether Spencer shared information about the

gun with defendant.” However, that Bankston’s affidavit is silent as to whether Spencer shared

information about the firearm with defendant does not mean that Bankston’s affidavit lacks

probative value on the element of knowledge for the reasons stated above.

¶ 29 Evidence is cumulative when it adds nothing to what the fact finder heard during trial.

People v. Ortiz, 235 Ill. 2d 319, 335 (2009); People v. Ross, 2015 IL App (1st) 120089, ¶ 34. Ross,

also a constructive possession case, is instructive. There, a witness named Patterson testified at

trial that he saw the defendant’s son, not the defendant, place the firearm in the back seat of the

vehicle. Ross, 2015 IL App (1st) 120089, ¶ 12. After the defendant’s conviction was affirmed on

direct appeal, defendant filed a pro se postconviction petition, attaching his son’s affidavit. Id.

¶ 20. The son had been unavailable to testify at trial because he had been in a coma. Id. ¶¶ 17, 20.

The trial court nevertheless dismissed the petition at the first stage, finding, in part, that the

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 evidence in the son’s affidavit was cumulative of Patterson’s trial testimony. Id. ¶ 22. The

appellate court disagreed, explaining that the son’s affidavit “adds [a] first-person perspective to

Patterson’s testimony. Undeniably, a first-hand account is more credible than one witness blaming

a third-party not before the court.” Id. ¶ 34 (citing Molstad, 101 Ill. 2d at 135 (holding that,

although defendant testified at trial that he was not present at the crime and his parents corroborated

his testimony, the affidavits of the convicted codefendants stating that defendant was not present

were not cumulative as they raised additional questions regarding the trial court’s verdict)).

¶ 30 Here, as in Ross, the affidavit adds a first-person account as to how the firearm was placed

in the Cutlass. This testimony is more probative than a self-interested party (defendant)

speculatively blaming another party (Spencer) who was not before the court. The State’s

arguments that the affidavit is cumulative because it is consistent with defendant’s trial testimony

that the .40-caliber firearm was not his are not well-taken. The affidavit provides numerous details

not introduced at trial, including who owned the firearm, how it was placed in the Cutlass, and

how long it had been in the Cutlass before the police discovered it.

¶ 31 C. Conclusive Character

¶ 32 Evidence is of a conclusive character if, when considered along with the trial evidence, it

would probably lead to a different result. Coleman, 2013 IL 113307, ¶ 96. The new evidence

need not be completely dispositive. Id. ¶ 97. Rather, the court should consider whether the

evidence supporting the petition places the trial evidence in a different light such that it undermines

the court’s confidence in the judgment of guilt. Id.

¶ 33 Here, at trial, defendant’s version of events was uncorroborated and his connection to the

Cutlass, not to mention items in the Cutlass connected to defendant and proximate to the gun,

proved constructive possession. Bankston’s affidavit arguably places this evidence in a different

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 light as it relates to defendant’s knowledge. Indeed, in Bogan I, we noted that it was unlikely

defendant would not have known about a firearm located in the middle of a stack of items linked

to him. However, Bankston explained how Spencer put the firearm there shortly before it was

discovered by police. Taking this evidence as true and considering it alongside an evidentiary

weakness noted in Bogan I, i.e., that the keys to the Cutlass were not on defendant’s key chain and

were never recovered, persuades us that it is at least arguable that the trial court would have reached

a different result if it had had the benefit of the new evidence. We noted on direct appeal that the

State’s evidence was not overwhelming and defendant has now offered evidence to explain what

we previously identified as weaknesses in his case. Thus, we cannot say that defendant has not

made at least an arguable showing of actual innocence such that his petition should advance to the

second stage.

¶ 34 III. CONCLUSION

¶ 35 The judgment of the circuit court of Will County is reversed and remanded.

¶ 36 Reversed and remanded.

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