dissenting:
I dissent. The testimony at trial established that defendant’s shoulder bag was sitting on and concealing one of the bags of cocaine. There was approximately 900 pounds of cocaine in the motor home. Defendant testified that he did not know about the cocaine in the motor home. In his first postconviction petition, defendant alleged ineffective assistance of counsel because of his attorney’s failure to call Montoya as a witness. After an evidentiary hearing, the trial court found that defendant did not receive ineffective assistance of counsel for failure to call Montoya.
In his second postconviction petition, defendant raises the same issue, that of Montoya’s testimony, only couched as a claim of actual innocence.
A successive postconviction petition may be dismissed at the first stage of review on the basis of waiver or res judicata. People v. Britt-El, 206 Ill. 2d 331, 794 N.E.2d 204 (2002); People v. Smith, 341 Ill. App. 3d 530, 794 N.E.2d 367 (2003).
I believe that the issues raised in defendant’s successive postconviction petition are the same issues he raised in the initial postconviction petition, simply couched in a different manner. Therefore, the claim is barred by res judicata. Even if it is not the identical issue, it is certainly an issue that could have been raised in the initial postconviction petition, and therefore, the successive petition is barred by waiver. Even the initial postconviction petition is not intended to provide the defendant with a retrial of issues that could have been raised during a previous proceeding. People v. Kitchen, 189 Ill. 2d 424, 727 N.E.2d 189 (1999). Certainly, a successive petition should not be used to relitigate those issues.
Moreover, the proposed evidence does not establish defendant’s actual innocence. Defendant claims that Montoya would testify that defendant had no knowledge of the cocaine. Montoya would not be able to give such testimony, only that he did not tell the defendant about the cocaine, since a lay witness may not express an opinion or draw inferences from the facts. See People v. Crump, 319 Ill. App. 3d 538, 745 N.E.2d 692 (2001).
Even if Montoya testifies that he did not tell defendant about the cocaine, this is a far cry from proving that defendant did not know about the cocaine. There were four other passengers in the van in addition to Montoya and defendant. Montoya previously reported to police that only he and two other passengers had knowledge of the drugs. Even if the jury believed Montoya’s testimony that he did not tell the defendant about the drugs, this would not rule out one of the other passengers telling defendant about the drugs. Montoya could not testify regarding any conversations between defendant and the other passengers.
Some factual background is also worth mentioning in determining whether this proposed testimony is likely to change the result of the trial. Defendant lived in Miami but often worked in New Jersey as a carpenter and asbestos remover. In mid-October 1995, defendant took a trip with Montoya, Miguel Londono (one of the other passengers in the motor home at the time of the arrest) and Londono’s wife in the motor home. They allegedly dropped defendant off at defendant’s temporary residence in New Jersey and then continued to drive west. The motor home broke down in Pennsylvania and defendant drove from New Jersey to Pennsylvania to arrange for the vehicle to be repaired. Subsequently, defendant bought a one-way ticket and traveled from New Jersey to Los Angeles. On November 3, defendant testified that he, by coincidence, ran into Montoya in a parking lot of a motel. Montoya invited defendant to join him and the others on a trip to Chicago or Niagra Falls with stops in Las Vegas, Salt Lake City and Aspen. Defendant accepted the invitation, although those stops never materialized. The motor home was stopped and defendant and the other passengers were arrested on Interstate 80 in Henry County, Illinois, on November 6, 1995.
Examining defendant’s own testimony, we have him meeting up with Montoya and others in Miami less than one month before his arrest and accepting a ride from Miami to New Jersey in the motor home. Montoya and the others left defendant in New Jersey, but when the motor home broke down in Pennsylvania, Montoya called defendant to drive to Pennsylvania to assist in making arrangements for the repair of the motor home. Defendant did so. Defendant returned to New Jersey while Montoya and the motor home headed west. Around the first of November, defendant decided to take a vacation to Los Angeles (without his wife and children) and bought a one-way ticket to Los Angeles, went to a motel where he just happened, by coincidence, to run into Montoya and the motor home, which is now, unknown to defendant, loaded with $62 million worth of cocaine. Having nothing else to do, defendant accepted Montoya’s invitation to drive back east with various planned stops at Las Vegas, Salt Lake City and Aspen. It was unclear whether the final destination for the motor home was Chicago or Niagra Falls. During the trip from Los Angeles to Illinois, the heater in the rear of the motor home did not work so defendant never went to the rear of the motor home.
Obviously, the jury did not buy this story the first time. I believe we have to suspend all credulity to believe that there is any chance the result will be different if Montoya takes the stand and testifies that he did not tell defendant about the presence of the 900 pounds of cocaine in the motor home.
The majority, labeling this argument as specious, ignores how defendant happened to be in the motor home. He was not a hitchhiker. The evidence is overwhelming that he flew from New Jersey to Los Angeles to meet with Montoya.
In conclusion, I believe that the proposed testimony of Montoya was neither new, noncumulative, nor likely to produce a different result upon retrial. Certainly, the defendant’s successive postconviction petition did not state the gist of a constitutional claim. To deny this successive petition would not result in a fundamental miscarriage of justice. See People v. Pitsonbarger, 205 Ill. 2d 444, 793 N.E.2d 609 (2002). I would affirm the trial court’s order dismissing defendant’s successive postconviction petition.