                                  Illinois Official Reports

                                          Appellate Court



                             People v. Sanders, 2014 IL App (1st) 111783



Appellate Court              THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption                      McCLAIN SANDERS, Defendant-Appellant.




District & No.               First District, Fourth Division
                             Docket No. 1-11-1783



Filed                        June 26, 2014



Held                         Defendant’s second successive postconviction petition alleging newly
(Note: This syllabus         discovered evidence of his actual innocence of first degree murder and
constitutes no part of the   aggravated kidnapping arising from a narcotics transaction in which
opinion of the court but     the victim “beat” defendant by selling him cocaine that was “no good”
has been prepared by the     was properly dismissed, especially when the petition was based on the
Reporter of Decisions        recanted testimony of a witness who testified in a related case and was
for the convenience of       found to be “a complete liar.”
the reader.)




Decision Under               Appeal from the Circuit Court of Cook County, No. 92-CR-22439; the
Review                       Hon. James B. Linn, Judge, presiding.




Judgment                     Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Stephen L. Gentry, all of
     Appeal                   State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Tasha Marie Kelly, and Michele Grimaldi Stein, Assistant State’s
                              Attorneys, of counsel), for the People.




     Panel                    JUSTICE LAVIN delivered the judgment of the court, with opinion.
                              Presiding Justice Howse and Justice Fitzgerald Smith concurred in the
                              judgment and opinion.




                                                OPINION

¶1         Following a jury trial, defendant McClain Sanders was convicted of first degree murder
       and aggravated kidnapping and sentenced to concurrent terms of 60 and 15 years in prison,
       respectively. Defendant now appeals from the dismissal, on motion of the State, of his second
       successive postconviction petition. On appeal, defendant contends that his petition should have
       advanced to an evidentiary hearing because he presented newly discovered evidence that
       established a substantial claim of actual innocence. For the reasons that follow, we conclude
       that the trial court properly dismissed defendant’s petition.
¶2         The evidence at trial showed that on the evening of April 14, 1992, a group of people
       including the victim, Jonas Cooks, gathered at the Chicago home of Donald Barfield. Some
       drug transactions occurred, after which the victim was accused of “beating” or cheating the
       others on the deals. The victim was tied up, duct taped, placed in the trunk of a car, taken to an
       abandoned building, and shot. The victim, who was not found for several days, died of multiple
       gunshot wounds to the head. Defendant, Aaron May, Gary Bingham, and Barfield were tried
       separately on numerous charges arising from the victim’s kidnapping and murder.
¶3         Donald Barfield testified that on the day in question, he was at his house with the victim,
       William Ramseur, Cheryl Lathan, Joe Booker, a woman named “Dee Dee,” and a man named
       Tyrone. At some point, a group of three men, known to him only as Pork Chop, Big Red, and
       Little Red, came to the house. In court, Barfield identified defendant as Big Red. After
       conversing with the men, Barfield and the victim went out to buy cocaine. When they returned
       they gave the drugs to Pork Chop, whose money they had used for the purchase. Defendant,
       Pork Chop, and Little Red left for a while but then returned to the house as well. Pork Chop,
       who had a gun, asked the victim for their money back because the cocaine they received was
       “no good.” Barfield testified that Little Red also had what “looked like a gun” and that there
       was a gun on the table near where defendant was sitting. The victim indicated that he would
       return the money, but not right away because he could not get in contact with “the guy” right at
       that time. Pork Chop asked Barfield to tie the victim up. Dee Dee brought Barfield some rope
       and electrical cords and helped Barfield tie the victim’s hands and feet to a chair. Barfield

                                                   -2-
     subsequently untied the victim’s hands so he could make a telephone call, but Pork Chop
     snatched the phone from the victim. Pork Chop and Little Red ordered Barfield to open his
     back door. Pork Chop, Little Red, and defendant then forced the victim out the back door.
¶4       William Ramseur, who stated that he worked for Barfield selling cocaine, testified
     consistently with Barfield. According to Ramseur, Pork Chop, Big Red, and Little Red came to
     the house and discussed some “business” with Barfield. After various comings and goings,
     Pork Chop, Little Red, and Big Red returned to the house with guns and indicated they wanted
     their money back “because they had been beat.” Ramseur testified that Barfield and a woman
     named Dee Dee tied the victim to a chair with extension cords and put a pillow case and duct
     tape over his face. Following further conversation with Pork Chop, Barfield determined that he
     had not received his cut of the money from the victim, so he told Pork Chop to take the victim
     and “do what you want to do with him.” Barfield untied the victim and the three men took him
     out the back door.
¶5       Gary Bingham testified that his nickname was Pork Chop, defendant’s nickname was Big
     Red, and Aaron May’s nickname was Little Red, and that the three of them had a drug business
     together. On the day in question, Bingham and May went to Donald Barfield’s house, where
     Bingham hoped to obtain cocaine. First, Barfield and the victim went out and returned with
     some rock cocaine. Then, Bingham and the victim went out to procure powder cocaine. After
     doing so, Bingham and the victim parted ways.
¶6       Bingham gave the drugs to May, who subsequently reported to Bingham that he had tried
     to cook the powder cocaine but it “weren’t right.” May also called defendant. Bingham,
     defendant, and May gathered in front of defendant’s mother’s house. Defendant went inside
     and returned with three handguns, which he distributed to the group so that they were each
     armed. The group then drove to Barfield’s house. Bingham testified that they went inside, told
     the victim that the weight was not right, and demanded their money back. The victim
     acknowledged that Bingham had been shorted and said he would call his sister to try to get
     some money to “straighten this out,” but Bingham snatched the phone out of the victim’s hand.
     Barfield then tied the victim’s hands and feet to a chair with an extension cord and duct tape.
     The victim’s mouth was duct taped briefly, but the tape was removed when Barfield asked that
     the victim be allowed to talk. The victim asked Barfield to help him, but Barfield said he did
     not have enough money. Barfield then searched the victim’s pockets. When he found some
     money, he accused the victim of “stuffing on” him and indicated that Bingham, May, and
     defendant could take the victim away.
¶7       According to Bingham, defendant suggested that they take the victim from Barfield’s
     house. Bingham and defendant dragged the victim through the kitchen and out the back door,
     while May drove the car to the back of the house. After Barfield closed the door, May helped
     defendant and Bingham put the victim in the trunk. Bingham then drove to an abandoned
     building. While Bingham and May stood by the car, defendant picked the victim up out of the
     trunk, carried him inside the doorway of the building, and shot him twice.
¶8       On cross-examination, Bingham acknowledged that he had been convicted for the victim’s
     murder, but had not yet been sentenced. When asked about his understanding of the possible
     penalties he was facing, he stated, “By I ain’t the shooter, I wasn’t really worried about
     nothing. *** By I took a bench trial, 30 years at the most.” Bingham also stated that no one had
     “worked out no deal” with him regarding sentencing. He explained that he decided to testify
     because he “figured if I’m going to get sentenced, I want to get sentenced for something I did,

                                                -3-
       not something I didn’t do.” On redirect, Bingham reiterated that no one promised him anything
       or made any agreements with him in exchange for testifying.
¶9          Defendant testified that he knew who Bingham was because they had gone to high school
       together, but did not know him personally and never had any business relations with him.
       Defendant denied being at Barfield’s house on the day in question, denied removing the victim
       from Barfield’s house, and denied shooting the victim. He also denied being called Big Red
       and denied knowing that May, who was his nephew, was known as Little Red. Defendant
       testified that on the night in question, he was at home with his girlfriend, her friend, and the
       women’s children. Defendant’s girlfriend also testified that defendant was at home with her
       during the time in question.
¶ 10        The jury found defendant guilty of first degree murder and aggravated kidnapping. The
       trial court entered judgment on the verdict and subsequently sentenced him to concurrent terms
       of 60 and 15 years in prison, respectively.
¶ 11        We affirmed defendant’s conviction and sentence on direct appeal. People v. Sanders, No.
       1-94-0306 (1996) (unpublished order under Supreme Court Rule 23). In 1997, defendant filed
       a pro se postconviction petition. The trial court dismissed the petition as untimely and we
       affirmed the trial court’s judgment. People v. Sanders, No. 1-97-1117 (1998) (unpublished
       order under Supreme Court Rule 23).
¶ 12        In 1999, defendant, through counsel, filed a successive postconviction petition. In the
       petition, defendant alleged that the State knowingly introduced perjured testimony from
       Bingham. Specifically, defendant asserted that Bingham, contrary to his testimony at trial, had
       testified pursuant to a deal with the State. Codefendant Aaron May raised the same claim in a
       petition brought pursuant to section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401
       (West 1998). The trial court awarded both defendant and May an evidentiary hearing, at which
       Bingham testified at length regarding conversations he had with a detective while in jail
       regarding whether, in exchange for helping identify the person who shot Bingham’s brother in
       an unrelated case, he would receive a “deal” at trial and/or sentencing for Cook’s murder. In
       the course of testifying, Bingham indicated that despite his belief at the time of defendant’s and
       May’s trials that he had secured two deals, one with the detective and one with assistant State’s
       Attorneys, he testified at both trials that he had made no deals for his testimony. The detective
       testified, denying that he had promised to help Bingham with his murder case. Following the
       evidentiary hearing, the trial court denied both defendant’s successive postconviction and
       May’s section 2-1401 petition, finding the detective “a very credible witness” and Bingham “a
       very incredible witness.” We affirmed the trial court’s judgment in separate orders. People v.
       May, No. 1-00-3535 (2002) (unpublished order under Supreme Court Rule 23); People v.
       Sanders, No. 1-00-3942 (2003) (unpublished order under Supreme Court Rule 23).
¶ 13        In 2010, defendant filed an attorney-drafted pleading titled “Defendant’s Verified
       Post-Conviction Petition,” claiming newly discovered evidence of actual innocence.
       Defendant noted in the petition that Bingham was the only witness to testify at trial that
       defendant was the person who shot the victim, that no physical evidence implicated him, and
       that he had not confessed. Defendant then asserted that he had obtained newly discovered
       evidence of actual innocence, including, as relevant to the instant appeal, an assertion by
       Patricia DeRamus that Bingham alone took the victim out of the house, and an admission by
       Bingham that he alone kidnapped and killed the victim and that defendant was not present for
       the drug transactions that took place earlier on the day of the murder. Defendant asserted that

                                                   -4-
       this evidence was not available at the time of trial and could not have been discovered earlier
       through due diligence. Specifically, he stated that DeRamus’ life was threatened by Bingham,
       but “she has now overcome her fear and come forward,” and that the “sworn testimony of
       Bingham is the first time he has admitted his perjury under oath regarding the fact that
       Defendant did not participate in the offense.” Defendant asserted that the newly discovered
       evidence was of such conclusive character that it would probably change the result on retrial,
       as it exonerated him and would “certainly create grave doubts regarding Defendant’s guilt in
       the mind of the trier of fact.”
¶ 14       Defendant attached to the petition an affidavit executed by DeRamus. DeRamus averred in
       the affidavit that she was known as “DD.” She stated that she, Barfield, and the victim were at
       Barfield’s house on the day in question. Bingham came to the house, arranged a narcotics
       transaction with the victim, and then left the house with the victim. The victim subsequently
       returned to the house, followed by Bingham approximately 45 minutes later. Bingham, who
       was holding sandwich baggies containing white powder, stated that the cocaine was garbage
       and struck the victim in the head with a gun. Bingham marched the victim out the back door at
       gunpoint. When Bingham returned, he stated that he had killed the victim and threatened to kill
       “anybody at the house who told anyone what had taken place.” DeRamus averred that at all
       times, Bingham acted alone. DeRamus further stated that she was afraid to come forward
       earlier because she was pregnant, had nine children, and Bingham knew where to find her.
       However, she had since “undergone therapy and mentoring” and realized she must come
       forward to clear her conscience and try to make amends for remaining silent for years.
¶ 15       Defendant also attached excerpts of Bingham’s testimony at a 2007 evidentiary hearing on
       codefendant May’s successive postconviction petition. In the excerpts, Bingham testified that
       when he went to Barfield’s house on the day in question to purchase cocaine, the house was
       “full of people,” including the victim, “DD,” “William Ransom,” and “somebody else.”
       Bingham made his purchase, left, attempted to cook the cocaine, and then returned to the house
       to demand his money back. After Barfield tied and duct taped the victim, Bingham carried the
       victim out of the house by himself and put the victim in the trunk of his car. He then, by
       himself, took the victim to an abandoned building and shot him. According to Bingham’s
       testimony, May was not present for the drug transactions, kidnapping, or killing of the victim.
       Bingham also testified that “the State” indicated it would work out a sentencing deal with him
       if he testified against May and placed May at the scene.
¶ 16       The State filed a motion to dismiss the second successive petition for postconviction relief,
       and defendant filed a reply. Following argument, the trial court granted the motion to dismiss.
       In the course of doing so, the trial court noted that it had heard Bingham’s testimony at the
       evidentiary hearing on codefendant May’s successive postconviction petition and “found the
       man to be a complete liar. Totally incredible and not worthy of belief.”
¶ 17       On appeal, defendant contends that his successive petition should have advanced to an
       evidentiary hearing because he presented newly discovered evidence–namely, Bingham’s
       testimony from May’s evidentiary hearing and Patricia DeRamus’s affidavit, both of which
       indicated Bingham alone kidnapped and killed the victim–that established a substantial claim
       of actual innocence. Defendant argues that Bingham’s testimony was newly discovered insofar
       as it was a recantation that took place after trial and that DeRamus’s affidavit was newly
       discovered because she had only recently overcome her fear of coming forward. He asserts that
       the trial court should have taken these pieces of evidence as true, erred in making a credibility

                                                   -5-
       determination regarding Bingham’s testimony, and completely failed to address DeRamus’s
       affidavit. Defendant argues that Bingham’s testimony and DeRamus’s affidavit, taken as true,
       are of such conclusive character that they would have a reasonable probability of changing the
       outcome of his case on retrial, and that therefore, he has made a substantial showing of actual
       innocence and is entitled to an evidentiary hearing.
¶ 18       For a petitioner to be entitled to an evidentiary hearing on a successive petition, he must
       make a substantial showing of a constitutional violation. People v. Lofton, 2011 IL App
       (1st) 100118, ¶¶ 28, 34. Our review of the dismissal of a petition without an evidentiary
       hearing is de novo. People v. Childress, 191 Ill. 2d 168, 174 (2000).
¶ 19       The Post-Conviction Hearing Act (Act) contemplates the filing of only one postconviction
       petition. 725 ILCS 5/122-3 (West 2010). Any issues that were decided on direct appeal or in
       the original postconviction petition are barred by the doctrine of res judicata, and issues that
       could have been, but were not, raised in the original proceeding or original postconviction
       petition are waived. People v. Davis, 2014 IL 115595, ¶ 13; People v. Blair, 215 Ill. 2d 427,
       443 (2005). However, a defendant may overcome these procedural hurdles to filing a
       successive postconviction petition in limited circumstances. Davis, 2014 IL 115595, ¶ 14. As
       relevant in the instant case, one basis for relaxing the bar against successive postconviction
       petitions is where a petitioner sets forth a claim of actual innocence. People v. Ortiz, 235 Ill. 2d
       319, 329-30 (2009). Evidence supporting an actual innocence claim must be newly discovered,
       material, noncumulative, and of such conclusive character as would probably change the result
       on retrial. Ortiz, 235 Ill. 2d at 333. Claims of actual innocence must be supported “ ‘with new
       reliable evidence–whether it be exculpatory scientific evidence, trustworthy eyewitness
       accounts, or critical physical evidence–that was not presented at trial.’ ” People v. Edwards,
       2012 IL 111711, ¶ 32 (quoting Schlup v. Delo, 513 U.S. 298, 324 (1995)).
¶ 20       In the instant case, we find that neither Bingham’s testimony nor DeRamus’s affidavit
       justifies granting an evidentiary hearing.
¶ 21       First, we cannot agree that Bingham’s testimony that he alone kidnapped and killed the
       victim constitutes reliable, trustworthy evidence. Bingham made these statements at the
       evidentiary hearing on codefendant May’s successive postconviction petition. In denying
       May’s successive petition, the trial court noted that it had previously heard Bingham testify at
       the evidentiary hearing on May’s section 2-1401 petition and defendant’s first successive
       petition, and found that Bingham’s testimony was not credible, honest, or compelling. The trial
       court found, inter alia, that Bingham had said different things at different times and was still
       not believable. See People v. May, No. 1-08-1962, order at 11 (2010) (unpublished order under
       Supreme Court Rule 23). When presented with the instant petition, the trial court recalled that
       it had already heard Bingham’s recantation of his trial testimony and had “gone through this
       with him at length, ad nauseam.” The court stated, “I found the man to be a complete liar.
       Totally incredible and not worthy of belief.” Thus, the testimony upon which defendant is
       currently relying has already been found unreliable and untrustworthy following a full
       evidentiary hearing. In these circumstances, we cannot imagine a scenario where the trial court
       would grant defendant postconviction relief based on hearing Bingham testify yet again at
       another evidentiary hearing.
¶ 22       We are mindful of defendant’s argument that the trial court was required to accept
       Bingham’s testimony as true and that, therefore, the court made an improper credibility


                                                    -6-
       determination when it rejected the testimony. In support of this argument, defendant cites the
       following language in People v. Knight, 405 Ill. App. 3d 461, 470 (2010):
                   “The standard, at the second-stage of postconviction proceedings, is that all
               well-pled allegations are taken as true unless positively rebutted by the record of the
               proceedings. [Citation.] The standard refers only to the record in the proceedings from
               which the defendant is seeking postconviction relief and not any other, related
               proceedings.”
       Knight cites no authority for the proposition that a trial court may not look to related
       proceedings when determining whether allegations are rebutted by the record, and our research
       has revealed no other cases so holding. In the circumstances of this case, where the evidence
       defendant is relying upon is testimony given at an evidentiary hearing in a related proceeding,
       we decline to follow the rule announced in Knight. The trial court heard Bingham’s full
       testimony at a postconviction evidentiary hearing and found it unreliable and untrustworthy.
       We agree with the State that defendant should be estopped from relying upon the testimony
       given at that hearing while simultaneously claiming that the trial court may not also consider
       the conclusion it reached at that proceeding regarding the reliability of the evidence. We will
       not remand for what would be a futile and meaningless third-stage evidentiary hearing.
¶ 23       With regard to DeRamus’s affidavit, we find that it is not of such conclusive nature that it
       would probably change the result on retrial. See Ortiz, 235 Ill. 2d at 333. Newly discovered
       evidence is considered to be of a conclusive nature if it raises the probability that, in light of the
       new evidence, it is more likely than not that no reasonable juror would have convicted the
       defendant. Edwards, 2012 IL 111711, ¶ 40. In her affidavit, DeRamus averred that Bingham,
       “a/k/a ‘Porkchop,’ ” engaged in a narcotics transaction with the victim at Donald Barfield’s
       house, left, but later returned, whereupon he brandished a gun and marched the victim out of
       the house. According to DeRamus, “At all times that I saw, Bingham acted alone.” In contrast
       to DeRamus’s version of events, there was substantial credible evidence adduced at trial that
       Bingham did not act alone. Donald Barfield testified that defendant, whom he knew as Big
       Red, came to his house with men he knew as Pork Chop and Little Red, and that once there, all
       three men engaged in narcotics transactions and together forced the victim from the house.
       William Ramseur similarly testified that men called Pork Chop, Big Red, and Little Red
       conducted some “business” with Barfield, left the house, but then returned with guns.
       According to Ramseur, the three men together took the victim out the back door of the house.
       Given this evidence, we cannot find that DeRamus’s proposed testimony would probably
       change the result on retrial. That is, DeRamus’s affidavit does not raise the probability that, if
       she testified, it is more likely than not that no reasonable juror would have convicted
       defendant. See Edwards, 2012 IL 111711, ¶ 40.
¶ 24       For the reasons explained above, we conclude that defendant failed to make a substantial
       showing of actual innocence. Accordingly, we affirm the order of the circuit court of Cook
       County granting the State’s motion to dismiss defendant’s second successive postconviction
       petition.

¶ 25       Affirmed.




                                                     -7-
