# People v. Ortiz

> Appellate Court of Illinois · September 8, 2008 · 385 Ill. App. 3d 1

URL: https://www.frixlaw.com/law-library/cases/9730002

## Case

- **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. SALVADOR ORTIZ, Defendant-Appellant
- **Court:** Appellate Court of Illinois
- **Decided:** September 8, 2008
- **Citations:** 385 Ill. App. 3d 1; 324 Ill. Dec. 715; 896 N.E.2d 791; 2008 Ill. App. LEXIS 902
- **Precedential status:** Published
- **Opinion:** Dissent by Cahill
- **Judges:** Gordon, Cahill, McBride
- **Cited by:** 23 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9730002

## How later opinions describe it (automated extraction)

- holding that "[b]ecause the postconviction trial judge is in the best position to observe and weigh the credibility of witnesses testifying at an evidentiary hearing, his findings of fact will not be overturned unless those findings are manifestly erroneous"
- discussing the combined effect of all the evidence available to the defendant on a successive postconviction petition, and whether, when added to the evidence presented at trial, it would likely lead to a different result
- discussing the cumulative evidence now available to the defendant, in order to determine whether the result would probably change at retrial

## Opinion text

JUSTICE CAHILL, dissenting:
I respectfully disagree with the conclusion that Hernandez’s testimony is noncumulative and of such a conclusive nature that it would probably change the result on retrial.
The majority compares Hernandez’s testimony to that of Christopher Estavia and Edwin Villariny, both of whom testified that defendant shot the victim. The majority concludes, correctly, that this evidence is not cumulative. But the majority does not address Oscar Chacon’s statement and Arthur Dunlam’s testimony that defendant was not involved in the shooting. Oscar said in a statement admitted at defendant’s trial that he and the bicyclist were the only shooters. Dunlam testified as an alibi witness and said defendant was with him at the time of the shooting. With the exception of the bicyclist’s identity, Hernandez’s testimony does not offer anything that was not already before the trier of fact. See People v. Molstad, 101 Ill. 2d 128, 135 , 461 N.E.2d 398 (1984) (evidence that adds nothing to what is already before the trier of fact is cumulative). The identity of the bicyclist is not material to defendant’s guilt and alone is not sufficient to warrant a new trial.
The majority concludes that under Molstad, Hernandez’s testimony must be found not cumulative. 385 Ill. App. 3d at 11-12. Like this case, the defendant in Molstad maintained his innocence by denying involvement in the crime. Molstad, 101 Ill. 2d at 132 . Although the defendant offered alibi evidence, the testimony of his codefendants that he was not present for the crime was not available at trial. Molstad, 101 Ill. 2d at 132-33 . Our supreme court granted the defendant a new trial, holding the testimony was not cumulative of the alibi evidence and was material to whether the defendant was involved in the crime. Molstad, 101 Ill. 2d at 135 . Here, Oscar’s statement that defendant was not a shooter was offered into evidence at trial. Hernandez’s testimony differed only with respect to the identity of the bicyclist.
The majority also concludes that Hernandez’s testimony is enough to create a reasonable doubt of defendant’s guilt on retrial. 385 Ill. App. 3d at 13. This conclusion results in part from the majority’s failure to address the cumulative impact of Hernandez’s testimony on Oscar’s statement and Dunlam’s account of defendant’s whereabouts. But more troubling is that Hernandez — in an affidavit executed more than 11 years after the shooting and the only predicate for a third postconviction petition — said he was engaged in a drug transaction at the time defendant allegedly shot the victim. Hernandez testified he saw Oscar, Efrain Chacon and Miguel Renteria beating the victim as he entered the park. Hernandez then met with Peter Reyes, a fellow gang member who supplied marijuana for Hernandez to sell. According to Hernandez’s affidavit, four minutes transpired between the time he saw the fight and the time he saw Oscar and Efrain chasing the victim on Sheridan Road. Hernandez does not account for the period between the fight and the chase, which, according to Estavia and Villariny, was the time when defendant shot the victim.
I would affirm the trial court order denying defendant postconviction relief under these circumstances.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9730002. Public record. Not legal advice.