                                                  FIRST JUDICIAL DISTRICT
                                                  SIXTH DIVISION
                                                  Date: December 17, 2010




No. 1-09-1449


THE PEOPLE OF THE STATE OF ILLINOIS,                  )   Appeal from the
                                                      )   Circuit Court of
                      Respondent-Appellee,            )   Cook County.
                                                      )
    v.                                                )    No. 96 CR 11508
                                                      )
ANTHONY ENGLISH,                                      )    Honorable
                                                      )    James B. Linn,
                      Petitioner-Appellant.           )    Judge Presiding.

      JUSTICE ROBERT E. GORDON delivered the judgment of the court, with
opinion.
      Presiding Justice Garcia and Justice Cahill concurred in the judgment and
opinion.

                                       OPINION

         In this appeal, defendant Anthony English contests the dismissal of his

postconviction petition after a third-stage evidentiary hearing. For the reasons

stated below, we affirm.

                                    BACKGROUND

                                      1. Overview

         Defendant Anthony English was charged with the gang-related shooting and

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murder of Keith Lewis on November 25, 1995. During the jury trial held in October

1997, defendant requested a continuance after the close of the State’s evidence,

because a defense witness, William Brown, was not in the courtroom. After the

State objected on the ground that the witness had not been subpoenaed for that day,

the trial court denied the request. The jury then found defendant guilty of the first

degree murder of Keith Lewis. Several months earlier, defendant had also been

found guilty of the shooting death of another victim, Bertram Scarver. On

November 17, 1997, defendant was sentenced by then circuit court judge Themis

Karnezis 1 to natural life in prison.

       The Lewis case has been before the appellate court on two prior occasions.

First, on direct appeal, defendant claimed that the State failed to prove him guilty

beyond a reasonable doubt of the Lewis murder and that the trial court abused its

discretion in refusing to grant a continuance in order to locate and produce a

witness, namely, William Brown. People v. English, No. 1-97-4521, order at 1

(1999) (unpublished order under Supreme Court Rule 23) (English I). The appellate

court affirmed defendant’s conviction for the Lewis murder, noting that two

eyewitnesses testified that they observed defendant shoot the victim, in broad


       1
           Justice Karnezis is now a justice of the Illinois Appellate Court.

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No. 1-09-1449

daylight and at close range, and that the proposed eyewitness claimed that he did

not see who fired the gun. English I, No. 1-97-4521,order at 5-6.

      Defendant’s second appeal to this court occurred after a trial court dismissed

his postconviction petition. Defendant successfully appealed the trial court’s

second-stage dismissal, and we reversed and remanded for a third-stage evidentiary

hearing. In his pro se postconviction petition filed February 22, 2001, defendant

had claimed actual innocence, alleging that the State’s eyewitnesses had reason to

testify falsely and that Brown, his proposed witness, would be more credible

because Brown had no reason to testify for the defense. In his supplemental petition

filed in March 2005, defendant alleged that his trial counsel was ineffective for

failing to call Brown to testify at trial. After reviewing Brown’s affidavit, we held

that “[t]he information in Brown’s affidavit, if taken as true, is potentially

exculpatory and calls into question the credibility of the State’s witnesses.” People

v. English, No. 1-05-2287, order at 7 (2007) (unpublished order under Supreme

Court Rule 23) (English II).

      After our remand, the trial court held a third-stage evidentiary hearing where

the missing Brown finally testified, as well as Joshua Cole, who had previously

testified as a State witness at defendant’s trial. At the end of the hearing, the trial


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court found both men “wholly lacking in credibility.” The trial court found that

“[t]he performances they put on here in [this] courtroom [were] sad and not at all

compelling.” In addition, the trial court observed that, since the time of defendant’s

trial, both Brown and Cole had “picked up quite a bit of additional baggage in [that]

they’re both now convicted murderers themselves.” Defendant’s petition was again

denied by the trial court, and he now appeals to this court a third time.

      For the reasons stated below, we affirm the trial court’s dismissal of

defendant’s postconviction petition.

                                 2. Evidence at Trial

      The evidence at trial established that, during the afternoon of November 25,

1995, decedent Keith Lewis was shot several times in a gang-related incident near

Kostner Avenue and Van Buren Street in Chicago. Lewis died two days later.

      Keith Dickerson testified that he was walking with his father J.C. Orsby, as

well as William Brown, Keith Lewis and two others, when defendant drove by.

Defendant shouted to Dickerson’s group, and then approached on foot. Defendant

punched Lewis and, when Lewis tried to walk away, defendant shot Lewis in the

back. Lewis fell to the ground, and defendant shot Lewis again as Lewis lay on the

ground.


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      Dickerson testified that defendant’s nickname was “Shorty” and that

Dickerson knew defendant in the years before they joined rival gangs. Dickerson,

Lewis and Brown were all in the Gangster Disciples gang, while defendant was in

the New Breed gang.

      Dickerson testified that he did not contact the police because he was afraid

for his family, and he believed that his gang would avenge the shooting. He

admitted that his family moved from the area the following month. Dickerson did

not tell the police about the murder until his own arrest for an unrelated robbery

charge in March 1996. However, Dickerson denied that he was promised anything

in exchange for this information. Dickerson related the circumstances of the murder

to Detective Daniel M cW eeny, who also testified at trial.

      Dickerson’s father, J.C. Orsby, also testified at trial and corroborated his

son’s description of events. Orsby, a convicted drug dealer, stated that he decided

to talk to police when he was contacted about his son’s arrest for armed robbery.

Orsby had selected defendant’s photograph from a photographic array at the police

station, but he denied that any promises were made regarding his son’s armed

robbery case.

      Detective M cWeeny testified that the same gun was involved in the shooting


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of Lewis, as well as the shooting of Bertram Scarver a month later. As a result,

Detective McWeeny was conducting both investigations. After Dickerson was

arrested for armed robbery, he provided information about the Lewis murder and

identified defendant’s photograph from a photographic array. Detective McWeeny

denied making any promises to Dickerson in exchange for Dickerson’s information

regarding the Lewis murder. During the investigation, the detective also spoke to

Joshua Cole who provided defendant’s location, and who identified defendant in a

lineup after defendant’s arrest.

      Joshua Cole testified that he belonged to the same gang, the New Breed, as

defendant. Cole saw defendant on the day of the shooting, but before Lewis was

shot. Defendant asked Cole to “close these n * * * s down” but Cole refused. Soon

afterward, Cole heard four shots and drove to the area where Lewis was shot, to see

if defendant was all right. Cole saw defendant jogging out of a nearby alley, and

defendant asked Cole for a ride, saying he was “dirty,” which meant that he was

carrying a gun. Cole did not give defendant a ride.

      Cole also testified that, on December 27, 1995, he refused a request by

defendant to bring Bertram Scarver out from a store and then, shortly thereafter,

Cole observed defendant shoot Scarver. Cole failed to contact the police, and he


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agreed to testify only after his family’s moving expenses and first month’s rent were

paid, but he denied that this was a bribe to testify falsely. Cole admitted that he lied

under oath before the grand jury about how long he had known defendant. Cole

also had two 1995 juvenile adjudications for weapons violations, but he denied

shooting the victim.

      Dwight Sanders testified for the State as a hostile witness that he was present

at Scarver’s shooting, but that he did not see the shooter. He did not know

defendant or anyone named “Shorty.” Sanders denied having told a grand jury that

Shorty was in front of the store immediately before the Scarver shooting. He also

denied having told the grand jury that Shorty walked up behind Scarver, tapped

Scarver on the shoulder and shot Scarver when he turned around.

      A firearms examiner testified that bullets removed from both Lewis and

Scarver came from the same gun.

      After the State rested, defense counsel requested a continuance because a

defense witness, William Brown, was not in court. The defense then made an offer

of proof that Brown would testify that he saw a fight involving Joshua Cole and

victim Keith Lewis, that he heard gunshots, and that he saw Cole run away carrying

a gun. The State responded that Brown had indicated earlier that he did not want to


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get involved in the case and that he had lied to police. The State also noted that it

had no record of Brown being subpoenaed for that day. The trial court then denied

the continuance.

      Based on the evidence it heard, the jury found defendant guilty of first degree

murder.

                   3. Evidence at Third-Stage Evidentiary Hearing

      On February 25, 2009, over 10 years after defendant’s jury trial, missing

witness William Brown finally testified. As noted above, the trial court held a third-

stage evidentiary hearing after this court remand for that purpose. The hearing

occurred over the course of two days: on February 25, 2009, for the testimony of

William Brown; and on May 19, 2009, for the testimony of an additional defense

witness, Joshua Cole. Unlike Brown, Cole had previously testified at defendant’s

original trial, back in October of 1997.

                                a. Brown’s Testimony

      William Brown testified that he was currently incarcerated for first degree

murder. Brown testified: (1) he signed an affidavit in 2005 on defendant’s behalf;

(2) then he sent defense counsel a letter stating that he wanted no involvement with

defendant’s case; and (3) he later spoke to an investigator from the State’s


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No. 1-09-1449

Attorney’s Office in October 2008. He denied contradicting the earlier affidavit

during the interview with the investigator.

       Brown testified that he was present during the shooting, which occurred

during the afternoon of November 25, 1995, but that he did not see the shooter.

Brown was approximately 20 feet from the victim when the victim was shot.

       Brown testified that “a small gang fight” was taking place. He could not

recall how many people were involved in the fight but it was more than five. During

the fight, he (Brown) was fighting with defendant, and he did not see defendant with

a weapon at any point. Specifically, Brown had his back against a vehicle, and he

was wrestling with defendant. At some point, while he was still wrestling with

defendant, Brown heard a weapon fire. One of the other boys, who was behind

Brown and defendant, fired the gun, and “[t]hat stopped everything once the shot

was fired.” Brown did not know the name of the individual who fired the shot, but

he assumed that the shooter was a member of the New Breed gang. Brown

explained that the New Breed gang was fighting Brown’s gang, which was the

Gangster Disciples. Brown thus assumed that the shooter was with the New Breed

gang, since the victim was with Brown. After the shot, Brown and the other fight

participants all ran.


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No. 1-09-1449

      Brown testified that, after the incident, he did not speak with the police.

Brown also stated that he was never subpoenaed, and he was never contacted by

either defendant’s trial counsel or someone from his office. However, Brown was

aware that defendant’s case was going to trial in October 1997, and his parole

officer told him that he had to come to court, so he came. After he arrived at court,

a female State’s Attorney told him, “we need you to testify, say he did this, he

already got natural life on another case, you don’t have to worry about it.” When

Brown insisted that “he ain’t the one that done the shooting because we was

fighting,” the State’s Attorney told him that he could go. The individuals present

were Brown; two State’s Attorneys, a woman and a man; Brown’s cousin, Gerald

Bryant; and an Illinois corrections officer. Brown testified that Bryant’s father was

J.C. Orsby and that Bryant subsequently testified at defendant’s trial

      Brown testified that, some years later, he signed an affidavit, after an

investigator from defense counsel’s office came to see him in Cook County jail.

Brown testified that first the investigator, a black man, came to speak to him. Then

the investigator came a second time, with a woman and the typed affidavit, and that

is when Brown signed it and it was notarized. Brown stated that the information in

the affidavit was the same as his testimony at the evidentiary hearing.


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No. 1-09-1449

Brown testified that defendant’s counsel at the hearing came to visit Brown on

September 13, 2008, and that he related substantially the same information that was

contained in the affidavit. Brown also identified a letter which he mailed in October

2008, in which he expressed concerns about testifying in defendant’s case because it

might hinder him from finishing work on his own postconviction appeal.

       Brown testified that in October 2008, he also had an interview with a male

assistant State’s Attorney and a female investigator. Brown identified the assistant

State’s Attorney, as the one in court at the evidentiary hearing, and the same one

who had visited him. During the interview, Brown stated that he did not want

anything to do with defendant’s case because he was working on his own

postconviction appeal. The investigator stated that she might be able to help Brown

with his case, and “that sparked up a little conversation and [Brown] told them what

they wanted to hear.” The investigator told Brown that she could help him “get

good investigators for to find my witnesses.” Also Brown asked the attorney if he

would have “to go and testify and all that, and he was like, well, this might help you

get out of it.”

       Brown then told them that he had made up the information in the affidavit.

On the 2005 affidavit, he handwrote: “This statement is not true. I don’t want to get


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No. 1-09-1449

involved. I was upset about my case and this affidavit was my response.”

       On cross-examination, Brown denied ever telling the assistant State’s

Attorney that he was not present at the shooting. On redirect, Brown stated that

Josh Cole and the victim exchanged words in school over a girl. Brown was the one

who diffused the situation at that time. However, this exchange was the reason for

the subsequent gang fight. Joshua Cole was present at that subsequent fight, when

the victim was shot.   After Brown’s testimony, the hearing was continued in

anticipation of Joshua Cole’s testimony.

       On April 16, 2009, defense counsel informed the court that Cole had

provided an affidavit that was attached to defendant’s postconviction petition in

which Cole recanted parts of his trial testimony. However, between the last court

date in February 2009 and this court date in April 2009, the assistant State’s

Attorney and an investigator had visited Cole, and Cole now denied the accuracy of

his affidavit.

                                b. Cole’s Testimony

       On April 16, Joshua Cole testified that he was convicted of another murder

and sentenced to 40 years, and that he had a postconviction appeal pending. When

asked if he was present at the shooting of the victim, Cole asked the judge if he


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could invoke his fifth amendment right not to testify. The trial court then continued

the hearing, so that Cole’s attorney could be present.

      On M ay 19, 2009, Joshua Cole testified as part of an agreement that he

would not be questioned about his pending criminal case. Cole testified that he was

not present on November 25, 1995, when Keith Lewis was killed. Cole testified

that, in April 1996, the police brought him to a police station for questioning about

the Lewis murder, after “a dude that I went to school with, he told the police he has

seen me at the crime scene with a gun.” The police informed him that a witness had

said that he was at the crime scene. The police then told him that he could “be the

defendant or [he] can be the witness.” Cole’s reaction was that he “wasn’t going to

let them charge [him] with murder.” The police then told him “some things to say.”

      Cole testified that the witness who placed him at the scene said that the

altercation “initiated from school for [Cole] and him, and it just took off to the

streets.” However the police wanted him to say the fight was over drugs and that

defendant was “to take care of some business.” Cole testified that, when he was

questioned in April 1996 by the police, he was only 16 years old, and neither his

mother nor a juvenile case worker was present.

      Cole admitted that, before the grand jury, he testified that he saw defendant


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immediately before the shooting and shortly after. However, he denied telling the

grand jury that he saw defendant with a gun. In 1997, before Cole testified at

defendant’s trial, an assistant State’s Attorney told Cole that he had “to repeat”

what he had said in front of the grand jury, and then he was “free to go.”

      Cole testified that he signed an affidavit in October 2000 which stated “I’m

not really sure w[h]ere I was that day or if I even saw [defendant] Anthony English

on November 25, 1995.” Cole testified that paragraph was true.

      On cross-examination, Cole testified that he was not present when Lewis was

killed, so therefore he does not know who was there. However, Cole admitted that

he had previously told the police, the grand jury and the petit jury that he had seen

defendant both before and after shots were fired. Cole stated that, when the

assistant State’s Attorney and the investigator visited him in March 2009, they let

him read a police report describing an interview with W illiam Brown, and they told

him that Brown was trying to make it look like Cole was the murderer. He testified

that they informed him that Brown was going to sign an affidavit saying that Cole

killed the victim and that the defense “was trying to make it look like [Cole] killed

the victim.”

      Cole testified that he then wrote across the bottom of the affidavit: “M r. P.D,


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No. 1-09-1449

you and your client are trying to feed me to the wolves yet require my help. Sorry,

I’m not interested in anything or what you have to say. I don’t remember reading

this until 3/18/09. This is not true.” Cole testified that he signed it. On redirect,

Cole testified that he wrote that note when the assistant State’s Attorney asked if he

would like to write a note to the public defender.

                                  c. State’s Evidence

      After the defense rested, the State called Margaret Bamford, the investigator

who was present at Cole’s interview in March 2009. Bamford stated that Cole

disagreed with the information provided by William Brown, and he was unhappy

about it. Cole was provided with a transcript of his grand jury testimony; he

reviewed it and stated that it was accurate and that it was also what he had said at

trial. When Cole was shown his affidavit, he indicated that some of it was true and

some was false.

      Bamford also testified that she was present at the interview of William Brown

on October 28, 2008. Bamford testified that Brown repeatedly, and throughout the

interview, stated that he had no personal knowledge about the murder of Keith

Lewis. Bamford also testified that Brown read his 2005 affidavit, and he stated it

was false. Brown explained that, at the time of the affidavit, he was upset with the


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State about his own case and he saw the affidavit as a way of “getting back at the

State.” Brown wrote across the bottom of his affidavit: “This statement is not true.

I don’t want to be involved. I was upset about my case and this affidavit was my

response.” Bamford denied offering to help Brown with his own postconviction

appeal.

                                     ANALYSIS

      On this appeal, defendant claims that the trial court’s third-stage dismissal of

defendant’s postconviction petition was against the manifest weight of the evidence,

where defendant presented the testimony of a new event witness, as well as the

recanting testimony of an event witness who had originally testified for the State at

defendant’s trial. For the reasons discussed below, we affirm the trial court’s

dismissal.

                                1. Standard of Review

      At a third-stage evidentiary hearing, the defendant bears the burden of making

a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d

458, 473 (2006) (citing People v. Coleman, 206 Ill. 2d 261, 277 (2002)).

      When a petition is advanced to a third-stage evidentiary hearing, where fact-

finding and credibility determinations are involved, we will not reverse a circuit


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court’s decision unless it is manifestly erroneous. People v. Beaman, 229 Ill. 2d 56,

72 (2008); Pendleton, 223 Ill. 2d at 473 (citing People v. Childress, 191 Ill. 2d 168,

174 (2000)).

      However, if no fact-finding or credibility determinations were necessary at

the third stage, i.e., no new evidence was presented and the issues presented were

all pure questions of law, we would then apply a de novo standard of review, unless

the judge who presided over the postconviction proceedings had some special

expertise or familiarity with defendant’s trial or sentencing and that familiarity has

some bearing on the disposition of the postconviction petition. Beaman, 229 Ill. 2d

at 72; Pendleton, 223 Ill. 2d at 473 (citing People v. Caballero, 206 Ill. 2d 65, 87-

88 (2002)).

      In the case at bar, since new evidence was presented at the evidentiary

hearing and the trial court was required to make credibility determinations, our

standard of review is the manifest-error standard.

                       2. Stages of a Postconviction Proceeding

      The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000))

provides a means by which a defendant may challenge his or her conviction or

sentence for violations of federal or state constitutional rights. Pendleton, 223 Ill.


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2d at 471 (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)). To be entitled to

postconviction relief, a defendant must show that he or she has suffered a substantial

deprivation of his federal or state constitutional rights in the proceedings that

produced the conviction or sentence being challenged. 725 ILCS 5/122-1(a) (West

2000); Pendleton, 223 Ill. 2d at 471 (citing Whitfield, 217 Ill. 2d at 183).

       The Act provides for three stages, in noncapital cases. Pendleton, 223 Ill. 2d

at 471-72. At the first stage, the trial court has 90 days to review a petition and may

summarily dismiss it, if the trial court finds that the petition is frivolous and patently

without merit. 725 ILCS 5/122-2.1(a)(2) (West 2000); Pendleton, 223 Ill. 2d at

472. If the trial court does not dismiss the petition within that 90-day period, the

trial court must docket it for further consideration. 725 ILCS 5/122-2.1(b) (West

2000); Pendleton, 223 Ill. 2d at 472.

       The Illinois Supreme Court has held that, at this first stage, the trial court

evaluates only the merits of the petition’s substantive claim, and not its compliance

with procedural rules. People v. Perkins, 229 Ill. 2d 34, 42 (2007). The issue at this

first stage is whether the petition presents “ ‘ “the gist of a constitutional claim.” ’ ”

Id. at 42 (quoting People v. Boclair, 202 Ill. 2d 89, 99-100 (2002), quoting People

v. Gaultney, 174 Ill. 2d 410, 418 (1996)). As a result, “[t]he petition may not be


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dismissed as untimely at the first stage of the proceedings.” Perkins, 229 Ill. 2d at

42.

      In the case at bar, defendant’s petition proceeded to the second stage. The

Act provides that, at the second stage, counsel may be appointed for defendant, if

defendant is indigent. 725 ILCS 5/122-4 (West 2000); Pendleton, 223 Ill. 2d at

472. After an appointment, Supreme Court Rule 651(c) requires the appointed

counsel: (1) to consult with petitioner by mail or in person; (2) to examine the

record of the challenged proceedings; and (3) to make any amendments “that are

necessary” to the petition previously filed by the pro se defendant. 134 Ill. S.Ct.

651(c) (eff. Dec. 1, 1984); Perkins, 229 Ill. 2d at 42. Our supreme court has

interpreted Rule 651(c) also to require appointed counsel “to amend an untimely pro

se petition to allege any available facts necessary to establish that the delay was not

due to the petitioner’s culpable negligence.” Perkins, 229 Ill. 2d at 49.

      The Act provides that, after defense counsel has made any necessary

amendments to the petition, the State may move to dismiss it. Pendleton, 223 Ill. 2d

at 472 (discussing 725 ILCS 5/122-5 (West 2000)). See also Perkins, 229 Ill. 2d at

43. If the State moves to dismiss, the trial court may hold a dismissal hearing,

which is still part of the second stage. People v. Coleman, 183 Ill. 2d 366, 380-81


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(1998). A trial court is foreclosed “from engaging in any fact-finding at a dismissal

hearing because all well-pleaded facts are to be taken as true at this point in the

proceeding.” Id. at 380-81. In the case at bar, the trial court originally dismissed

defendant’s petition at the second stage, but the appellate court reversed and remand

for a third-stage evidentiary hearing.

       At a third-stage evidentiary hearing, the trial court “may receive proof by

affidavits, depositions, oral testimony, or other evidence,” and “may order the

petitioner brought before the court.” 725 ILCS 5/122-6 (W est 2000).

                            3. Not Against Manifest Weight

       Defendant’s sole claim on this appeal is that the trial court’s dismissal was

against the manifest weight of the evidence, in light of Brown’s new testimony and

Cole’s recanting testimony

       The “manifest weight” standard is a “deferential standard of review,” and our

deference to the trial court “is grounded in the reality that the circuit court is in a

superior position to determine and weigh the credibility of the witnesses, observe

the witnesses’ demeanor, and resolve conflicts in their testimony.” People v.

Pitman, 211 Ill. 2d 502, 512 (2004). For the reasons discussed, we find that the

trial court’s ruling, which was based almost exclusively on a credibility


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determination, was not against the manifest weight of the evidence.

      First, as the trial court observed, both Brown and Cole had provided different

and contradictory versions of the day’s events, at different times. Second, Brown’s

testimony appears to implicate Cole in the shooting, which Cole vehemently denies.

Third, we remanded for the specific purpose of allowing the trial court to make a

credibility determination,2 and the trial court did just that, finding neither Cole nor

Brown to be credible. For these reasons, we cannot find that the trial court’s ruling

was against the manifest weight of the evidence.

                                     CONCLUSION

      For the reasons discussed above, we find that the trial court’s ruling was not

against the manifest weight of the evidence, and thus we affirm the trial court’s


      2
          In our prior order, dated October 26, 2007, we stated “our holding is limited

to the conclusion that defendant is simply entitled to an evidentiary hearing

regarding Brown’s affidavit. Because the credibility of witnesses is a determination

within the discretion of the trial court (People v. Calderon, 336 Ill. App. 3d 182,

197 (2002), whether the information in Brown’s affidavit [would have] affected the

jury’s verdict is the precise issue to be determined at the evidentiary hearing.”

English II, No. 1-05-2287, order at 8.

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dismissal of defendant’s postconviction petition.

      Affirmed.




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