                                    2017 IL App (1st) 151297

                                                                            FOURTH DIVISION
                                                                           DECEMBER 28, 2017

                                 No. 1-15-1297
______________________________________________________________________________

                                    IN THE

                        APPELLATE COURT OF ILLINOIS

                           FIRST JUDICIAL DISTRICT

______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,            )     Appeal from the
                                                )     Circuit Court of
                        Plaintiff-Appellee,     )     Cook County.
                                                )
v. 	                                            )     No. 95 CR 31813
                                                )
HOWARD CARTER,                                  )     Honorable
                                                )     Mary Margaret Brosnahan,
                        Defendant-Appellant.    )     Judge Presiding.
______________________________________________________________________________

        JUSTICE GORDON delivered the judgment of the court, with opinion.
        Justices McBride and Ellis concurred in the judgment and opinion.

                                            OPINION


¶1             Defendant Howard Carter appeals the third-stage dismissal of his postconviction

petition.

¶2             Following a bench trial, defendant was convicted of two counts of first-degree

murder, one count of attempted murder, and one count of aggravated discharge of a firearm.

After hearing factors in aggravation and mitigation, the trial court sentenced defendant to a term

of natural life imprisonment in the Illinois Department of Corrections (IDOC) for the two murder

convictions and to a consecutive sentence of 15 years’ imprisonment for attempted murder. On

March 11, 2002, we affirmed defendant’s convictions but modified his 15-year sentence to run
No. 1-15-1297


concurrently with his life sentence, rather than consecutively. People v. Carter, No. 1-99-2230

(2002) (unpublished order pursuant to Supreme Court Rule 23).

¶3              Defendant then filed a pro se petition for postconviction relief, alleging multiple

claims of ineffective assistance of trial counsel. Defendant’s postconviction petition proceeded to

a second-stage review where court-appointed counsel filed (1) an amended petition, claiming

that he is actually innocent and that his trial counsel was ineffective by preventing him from

testifying at trial and (2) affidavits from two eyewitnesses who swore that defendant was not

present at the time of the shooting and that someone else had shot the victims. The trial court

dismissed the petition, finding that it was untimely, that it was not meritorious, and that

defendant forfeited the issue regarding his right to testify. On appeal, we reversed the trial

court’s second-stage dismissal and remanded for a third-stage evidentiary hearing on defendant’s

claim of actual innocence. People v. Carter, 2013 IL App (1st) 110046-U. On remand, the trial

court heard new testimony and determined that the newly-discovered evidence would not change

the result on retrial.

¶4              On this appeal, defendant claims that the trial court erred and that he is entitled to

a new trial because the newly-discovered testimony of Antonio McDowell and Vaughn Peters

implicates another man in the shooting, and thus would likely change the result on retrial. For the

following reasons, we affirm.

¶5                                     BACKGROUND

¶6              At trial, the State argued in its opening that, on October 22, 1995, defendant

raised a gun and fired multiple shots into a vehicle, killing two of the three occupants. The

deceased were Devol Scott and Patrick Davis. The third occupant was Allan Williams. During its

opening statement, the defense claimed that defendant did not shoot the victims and that he was




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No. 1-15-1297


incapable of firing a gun due to a hand injury. At trial, the State presented 10 witnesses,

including the surviving victim, who identified defendant as the shooter. The trial court asked

defendant whether he knew he had a right to testify and whether he was choosing to exercise his

right not to testify, and defendant answered affirmatively. In his postconviction petition,

defendant claimed that his trial counsel prevented him from testifying and that he is actually

innocent. He supported his claims with the affidavits of two eyewitnesses who also were not

called to testify at trial.

¶7                        I. Kenneth Beecham’s Testimony at Trial

¶8               At trial, the State called Kenneth Beecham, who testified that he is a former

member of the Undertaker Vice Lords street gang. In October 1995, he had been a member of

the gang for four years and had achieved the rank of “Prince,” which is the second-in-command

to the “Chief.” The gang was divided into two factions, separated by age, with the “Fifth

Generation” consisting of members in their mid-20s to 30 years old and the “Sixth Generation”

composed of members under the age of 21. Beecham was a member of the Sixth Generation.

Devol Scott, Beecham’s cousin and best friend, was the chief of the Sixth Generation.

¶9               Beecham testified that the Fifth and Sixth Generations were “at war” with each

other. Defendant, known as “Duck,” was the chief of the Fifth Generation, but defendant did not

bear any ill-will against Beecham. Despite the feud between the two generations, defendant and

Scott remained friends and met with each other daily. Defendant frequently spent time near the

intersection of Ferdinand Street and Lockwood Avenue in Chicago.

¶ 10             Beecham testified that, in May 1995, defendant was shot multiple times, including

in his right hand, and that defendant blamed members of the Sixth Generation for the shooting.

After defendant was released from the hospital, he had to exercise his hand until he regained




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No. 1-15-1297


strength, though he was able to shake hands normally. Neither Beecham nor Scott ordered the

shooting of defendant. On October 17, 1995, defendant told Beecham that a man known as

“Mike-Mike” was the person that had shot him. Mike-Mike, a member of the Sixth Generation,

was a friend of both Beecham and Scott.

¶ 11            Beecham testified that, on October 21, 1995, he was accompanied by Allen

Williams and Scott at the home of Patrick Davis. At the time, Allen Williams was a prince of the

Fifth Generation, and Patrick Davis was a member of another gang, the “Gangster Disciples.”

While they were visiting, the three men spoke with defendant, who asked them if they were

going to take his side in the dispute with the members of the Sixth Generation. Scott replied that

he had nothing to do with defendant’s feud, and defendant responded that he was going to kill

the Sixth Generation. Defendant asked the three men to help him seek revenge on Mike-Mike,

but they refused and then left.

¶ 12            On October 22, 1995, Beecham spent the day with Williams and Scott. Around 7

p.m., they drove to the west side of Chicago and dropped off Beecham at his girlfriend’s

residence. He later learned that Scott had been shot to death. On October 24, 1995, Beecham and

Williams went to the police station to talk with the police. The next day, Beecham became

employed and told his fellow gang members that he quit the gang.

¶ 13                              II. Allen Williams’ Testimony

¶ 14            Allen Williams, the attempted murder victim, testified that he had been a member

of the Undertaker Vice Lords for 13 years. The gang was divided into generational factions

separated by age. Williams belonged to the Fifth Generation, which consisted of members

between the ages of 20 and 25. Williams had obtained the rank of prince in the Fifth Generation,

just below the rank of “King.” Defendant, known as “Chief Duck,” was the leader of the Fifth




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No. 1-15-1297


Generation. Paul Carter, also known as “Weasel,” was defendant’s brother and a member of the

Fifth Generation. Williams’ half-brother and friend, Devol Scott, was the king of the Sixth

Generation. Kenneth Beecham was a friend of Williams and the prince of the Sixth Generation.

Patrick Davis, also a friend of Williams, was a member of another gang, the Gangster Disciples.

Williams did not know Tyrone Randolph. 1

¶ 15            Williams testified that defendant had a personal feud with a man known as Mike-

Mike, a member of the Sixth Generation, who had shot defendant in the hand. Defendant wanted

revenge against Mike-Mike and felt that the Sixth Generation gang was responsible for the

shooting. Williams had heard defendant state on a previous occasion that he was going to kill

members of the Sixth Generation. Though members of the Fifth and Sixth Generations had been

fighting with each other, other members of the Sixth Generation were not involved in the dispute

with defendant.

¶ 16            Williams testified that, on October 21, 1995, he, Scott, and Beecham visited

Davis’s home. The three approached defendant, who was also visiting, and defendant asked them

if they were going to help him seek revenge against the Sixth Generation members that were

involved in his shooting. Scott replied that he, Williams, and Beecham were not involved in

defendant’s feud. In response, defendant shook his head and said, “Alright, that’s cool.”

¶ 17            Williams testified that, at 8 p.m. the next day, he and Scott were in their

neighborhood near Cicero Avenue and Quincy Street in Chicago, when they learned that

defendant’s brother had been shot and killed. Scott drove them in Williams’s mother’s vehicle to

pick up Davis at his home. Davis entered the vehicle and sat in the backseat. The three men

wanted to offer their condolences to defendant in light of his brother’s death, so Scott drove them


        1
         Randolph initially told the police and testified before a grand jury that he was an eyewitness to
the murders, but recanted at trial.


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No. 1-15-1297


to the intersection of Ferdinand Street and Lockwood Avenue, where they encountered a man

called “Romy,” a member of the Fifth Generation gang. Williams asked Romy where they could

find defendant, and Romy pointed them to an area in the middle of the block. As Scott drove

drown Ferdinand Street, Williams observed defendant standing near the street with five or six

fellow gang members.

¶ 18            Williams testified that Scott drove within 15 feet of defendant, who then raised a

9mm pistol and opened fire on the vehicle. Williams ducked in the passenger’s seat and heard

several gunshots as Scott drove away from defendant. After a short distance, the vehicle crashed

into the back of a van and came to a stop. When Williams attempted to pull Scott to the floor of

the vehicle and into his lap, he observed bullet holes in Scott’s head and neck. As Williams

attempted to exit the vehicle, he heard several more shots being fired into the passenger-side

door and window, so he shielded himself underneath the dashboard. Once the gunfire stopped,

three men pulled Williams from the vehicle and told him that the gunman was gone. The

shooting took place over a span of four to six minutes, and more than 10 gunshots were fired.

The police arrived at the scene two minutes after the shooting stopped. Williams refused to talk

to the police at first because he felt betrayed and angry and wanted to personally seek revenge on

defendant.

¶ 19            Williams testified that two days after the shooting, he decided that the right thing

to do was to talk to the police, so he and Beecham drove to the police station together. Williams

told detectives that Scott was driving him and Davis on Laramie Avenue, when they observed

defendant and several others standing near Ferdinand Street. Williams told Scott to drive the

vehicle over to where the men were gathered. As the vehicle approached, defendant jumped back




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No. 1-15-1297


about two feet from the vehicle, raised a 9mm gun, and fired several shots at the vehicle from a

distance of 15 feet.

¶ 20                   III. Identification Testimony of Tyrone White and Patricia Scott

¶ 21            Tyrone White testified that Patrick Davis was his cousin, and that he had last

observed him alive on October 20, 1995. A few days later, White learned that his cousin was

dead. Patricia Scott testified that Devol Scott was her son, and that she had last observed him

alive on October 22, 1995. Later that evening, the police told her that her son had died.

¶ 22                           IV. Detective Richard Maher’s Testimony

¶ 23            Detective Richard Maher testified that he is a detective with the Chicago police

department and has been a policeman for 12 years. On October 22, 1995, he was assigned to

investigate a homicide near the intersection of Quincy Street and Cicero Avenue in Chicago. The

victim in that case was defendant’s brother, Paul Carter. Later that evening, Maher was assigned

to investigate another homicide on the 5200 block of West Ferdinand Street. When Maher

arrived at the crime scene at 9:10 p.m., he observed two ambulances, each containing one victim

from the shooting. Maher identified one of the victims as Devol Scott. The other victim was

identified the next day as Patrick Davis. Maher learned that a witness, Allen Williams, had been

transported from the scene to the Area 5 Detective Division.

¶ 24            Maher testified that he inspected the crime scene and found 11 spent shell casings

and a bullet fragment from a 9mm gun. Further down the street where a vehicle had crashed, he

found seven additional 9mm shell casings. He observed a bullet hole in the windshield of the

vehicle, and all of the side windows except the front passenger-side had been shattered. Maher

inspected the inside of the vehicle and found five fired bullets lodged into its interior.




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No. 1-15-1297


¶ 25            Maher testified that he interviewed Williams at the Area 5 Detective Division

later that evening, and Williams told him that he did not observe who shot at the vehicle. On the

morning of October 25, 1995, Williams returned to the police station, and Maher interviewed

him a second time. Williams changed his story and told Maher that he did in fact observe the

shooter, and identified him as a man known by the nickname “Duck.” Maher presented Williams

with a photograph of defendant, and Williams identified defendant as the shooter. After he

interviewed Williams, Maher drove to the Forest Park neighborhood in Chicago and arrested

defendant.

¶ 26            Maher testified that Detective Carothers told him that a man in custody, Tyrone

Randolph, was an eyewitness to the shooting. Maher interviewed Randolph later that evening,

and Randolph told him that he observed two men shooting at the vehicle and that one of the

shooters was defendant.

¶ 27                           V. Officer Jackie Campbell’s Testimony

¶ 28            Officer Jackie Campbell testified that she was an officer in the Chicago police

department. On the afternoon of October 24, 1995, the police arrested Tyrone Randolph for a

drug offense and brought him to the 15th District police station. As Randolph was sitting in an

interview room, he called out to Campbell and told her that he had information about two

murders. Randolph described the location of the shootings, and Campbell recognized the

murders as the two that occurred on October 22, 1995. She told Randolph that she could not do

anything for him, but that she would contact a detective to speak with him. She spoke with

Detective Carothers and told him that there was a suspect in custody at the police station that

claimed to have information about two murders.




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No. 1-15-1297


¶ 29                           VI. Detective Carothers’s Testimony

¶ 30            Detective Carothers testified that he has been a detective with the Chicago police

department for three years and was assigned to investigate the murder of defendant’s brother. On

October 24, 1995, Carothers received a telephone call from Campbell, and she told him that a

man named Tyrone Randolph was in custody on a drug charge and that he claimed to have

information about the shooting. Carothers told her that he would drive over to the police station

to interview the suspect.

¶ 31            Carothers testified that he arrived at the 15th District police station to speak with

Randolph later that evening. Randolph told him that he had information regarding the murder of

defendant’s brother and that he was an eyewitness to the shooting deaths of Scott and Davis.

Randolph asked Carothers if he could arrange a deal on his pending charges, but Carothers told

him that he needed to hear the information first. Randolph then told Carothers that he had

witnessed gunmen fatally shoot defendant’s brother, who Randolph knew as Weasel, in the west

alley of Cicero Avenue near its intersection with Quincy Street. He also told Carothers that, later

that night, he observed defendant, known as Duck, fire several shots at a vehicle near the

intersection of Ferdinand Street and Lockwood Avenue.

¶ 32            Carothers testified that, after this initial conversation, he took Randolph back to

an interview room so he could provide a more thorough accounting of the events. Also present

during the interview were Assistant State’s Attorney (ASA) James Sanford and Detective John

McMurray, who was assigned to investigate the murder of defendant’s brother. As Randolph

described the shootings in more detail, Carothers took notes and reported the information in a

general progress report. He referred to Randolph as a confidential informant because Randolph




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No. 1-15-1297


was concerned that, as a high-ranking member of the “Mafia Insane” street gang, he could face

retaliation for providing information to the police.

¶ 33            Carothers testified that Randolph stated that, around 7 p.m. on October 22, 1995,

he observed defendant’s brother running down the block of 210 South Cicero Avenue. A person

following him raised a gun and shot at him. Another person appeared, and both offenders walked

up to defendant’s brother and shot him numerous times as he lay on the ground.

¶ 34   Carothers testified that Randolph told him that, after witnessing the murder, he went

looking for defendant to find out if he had heard about his brother’s death. Randolph found

defendant at the intersection of Ferdinand Street and Lockwood Avenue. Defendant was with

several other black men, but the only person he recognized other than defendant was a man

named “Von.” After he spoke with defendant, a vehicle pulled up to defendant, and Randolph

heard him say, “I’m going to get those n***s,” and “it’s going to get ugly now.” Defendant then

raised a gun and fired numerous shots at the vehicle. Randolph did not describe the type of gun

and said that he left the scene during the shooting.

¶ 35            Carothers testified that Randolph promised that he would seek out additional

information about the other shooting once he learned the names of the other men who were

present at the scene. However, Randolph requested to be released first because he could not learn

any new information while in custody. Carothers did not grant Randolph’s request, and

Randolph then told him that he refused to provide any further information about either of the

shootings. Randolph again asked for a deal on his pending charges, and Carothers told him that

he could not discuss it.




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No. 1-15-1297


¶ 36                           VII. ASA Mike Goldberg’s Testimony

¶ 37            ASA Mike 2 Goldberg testified that he and Carothers met with Randolph on

October 25, 1995. Goldberg gave Randolph Miranda warnings, and Randolph repeated the

information he had about the two murders. Goldberg memorialized the information in a written

statement and read the statement back to Randolph to make sure it was accurate, and all three

men signed it. Randolph told Goldberg that the police treated him fine and that they did not

threaten him to obtain the statement.

¶ 38                   VIII. ASA James Sanford’s Testimony

¶ 39            ASA James Sanford testified that he was assigned to Judge Dennis J. Porter’s

courtroom in 1996 and was the first chair for the homicide trial of defendant’s brother. The

offenders in that case were Dante Branch and Alfonso Caldwell. Sanford was not assigned to

defendant’s case, which was in Judge James D. Egan’s courtroom with a different ASA. Sanford

learned from Detective Carothers’s general progress notes that a confidential informant had

provided information about the murder of defendant’s brother.

¶ 40            In the fall of 1996, the attorneys representing Branch and Caldwell filed a motion

for the State to disclose the name of the confidential informant. Sanford then met with Carothers,

who told him that Randolph was the informant. Sanford then arranged for an interview with

Randolph, who was still in custody. Carothers and Detective John McMurray, who was assigned

to investigate the Paul Carter homicide, were also present for the interview.

¶ 41            Randolph repeated the same information regarding the murders that he had

previously told to Carothers. Sanford had a limited discussion with Randolph about making a

deal, and he offered to drop one of Randolph’s three pending drug cases in exchange for his

testimony concerning the shooting death of defendant’s brother. No offer was made to Randolph
        2
         ASA Goldberg testified that his first name was “Mike.”


                                                  11
No. 1-15-1297


to testify in defendant’s case. The interview ended abruptly when Sanford told Randolph that he

could not drop the drug charge until after Randolph testified.

¶ 42            Sanford later arranged a second meeting with Randolph in an attempt to convince

him to accept his offer to drop the drug charge after Randolph testified. However, Randolph

would not even speak to Sanford. The murder case went to trial, and Randolph did not testify. In

April 1997, Randolph pled guilty to all three of his pending drug charges and was sentenced to

12 years in IDOC.

¶ 43                          IX. Tyrone Randolph’s Testimony

¶ 44            At trial, Tyrone Randolph testified that he did not know defendant. Randolph was

a member of the Mafia Insane Vice Lords, which is a faction of the Vice Lords street gang. The

Mafia Insane Vice Lords are not affiliated with the Undertaker Vice Lords, and the two gangs

were feuding with each other. Despite testifying that he did not know defendant, Randolph

testified that he knew defendant was a member of the Fifth Generation of the Undertaker Vice

Lords gang. Randolph had also observed defendant in jail, and he identified defendant in court.

¶ 45            The State then attempted to refresh Randolph’s recollection with his grand jury

testimony. 3 Randolph testified before a grand jury that, at 9 p.m. on October 22, 1995, he was

walking down Ferdinand Street in Chicago when he observed defendant exiting a vehicle with

another man. Randolph approached defendant and informed him that his brother, Weasel, had

been murdered. Defendant responded that he had heard the news and that he was “fitting to

address the business.” Randolph then left defendant and continued walking down Ferdinand

Street. At that time, he observed a vehicle drive up to defendant. Both defendant and the other

man pulled out black 9mm guns and began shooting at the oncoming vehicle. Randolph observed



       3
        As we observe in ¶ 50, Randolph’s grand jury testimony was admitted into evidence.


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No. 1-15-1297


the shooting for 20 seconds until he left the scene. Randolph testified before the grand jury that

he was treated well and not threatened by the State’s Attorney or the police.

¶ 46             At trial, Randolph testified that he remembered his grand jury testimony, but

claimed that his story was a lie. Randolph did not remember being near the intersection of

Ferdinand Street and Lockwood Avenue on October 22, 1995, and did not know anything about

the shooting.

¶ 47             Randolph testified that ASA Garfinkel, who presented him to the grand jury,

threatened him. The State presented Randolph with the written statement that he gave to ASA

Goldberg on October 25, 1995. Randolph testified that he did not recognize his signature on the

statement and denied ever reading it or knowing what it said.

¶ 48             Randolph testified that he was currently serving 12 years for multiple drug

offenses. One of the offenses resulted from an incident on October 24, 1995. That day, Randolph

was arrested and taken to the 15th District police station, where Detective Curley 4 questioned

him. Randolph did not tell Curley anything about defendant or defendant’s brother. Curley told

him that the police would drop the drug case against him if he helped them. Curley asked

Randolph about the murders in his area because he knew that Randolph was the chief of the

Mafia Insane Vice Lords. Even though Randolph did not have any information on the shootings,

he accepted Curley’s offer. Curley then placed cocaine in front of Randolph and told him that he

would face another drug charge if he did not provide Goldberg an eyewitness account of the

shootings. Curley then told Randolph exactly what to say and instructed him on how to answer

the questions.

¶ 49             Randolph testified that he had lied to the grand jury because Curley threatened to

falsely charge him with possession of six ounces of cocaine if he did not cooperate. After he
       4
           Detective Curley’s first name does not appear in the appellate record.


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No. 1-15-1297


testified before the grand jury, Randolph told Curley and the ASA that he would not lie anymore.

At that point, he chose to reject their offer of dropping all of his pending cases in exchange for

testifying to a fabricated story about the shootings. Instead, Randolph chose to plead guilty and

serve a 12-year sentence.

¶ 50            Detective Curley did not testify at trial. The following was admitted into

evidence: (1) the transcript of Randolph’s testimony before the grand jury, (2) the postmortem

examination reports and medical examiner’s photos of Scott and Davis, and (3) all of the bullets

recovered from both bodies. The parties additionally stipulated that the two bullets recovered

from Scott’s body, the five bullets recovered from Davis’s body, and the one bullet recovered

from the scene of the crime were all 9mm bullets, but the results of the Illinois State Police crime

lab’s tests were inconclusive as to whether one or more guns were used in the shooting because

the police did not recover a gun to compare with the bullets.

¶ 51            The State rested, and the trial court denied defendant’s motion for a directed

finding. The defense then rested. The trial court asked defendant whether he understood that he

had a right to testify and whether he was exercising his right not to testify, and he replied

affirmatively. The following exchange occurred:

                           “THE COURT: *** Mr. Carter, your attorney is stating that

                you are resting. Do you understand you have a right to testify? You

                also have the right not to testify?

                           DEFENDANT: Yes, your Honor.

                           THE COURT: And you are exercising your right not to

                testify?

                           DEFENDANT: Yes, I am, your Honor.”




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No. 1-15-1297


¶ 52                   X. Closing, Conviction, and Sentencing

¶ 53            During closing arguments, the defense claimed that neither Williams’s nor

Randolph’s testimony was credible. Following closing arguments, the trial court found defendant

guilty on both counts of first-degree murder, one count of attempted first-degree murder, and one

count of unlawful discharge of a firearm. After considering factors in aggravation and mitigation,

the trial court sentenced defendant to a term of natural life imprisonment for the two murders,

and to a consecutive term of 15 years’ imprisonment for the attempted murder.

¶ 54                   XI. Direct Appeal and Postconviction Proceedings

¶ 55            Defendant appealed his convictions and sentence, claiming that the State failed to

prove him guilty beyond a reasonable doubt and that his sentence was excessive and violated his

due process rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirmed defendant’s

convictions but modified his consecutive sentences to run concurrently. In affirming defendant’s

convictions, we found that “[t]he trial court considered Randolph’s credibility as well as the

circumstances surrounding his testifying and determined that the grand jury testimony was

believable while the in-court testimony was not. The trial court also determined that Williams’[s]

explanation for changing his story was reasonable.” Carter, No. 1-99-2230 , slip order at 6-7.

Defendant’s petition for leave to appeal was denied on October 2, 2002. People v. Carter, 201

Ill. 2d 580 (2002) (table).

¶ 56            As noted, on July 28, 2005, defendant filed a pro se petition for postconviction

relief. Defendant’s postconviction petition proceeded to a second-stage review, and court-

appointed counsel filed an amended petition on March 18, 2010. In his amended petition,

defendant claimed that his trial counsel was ineffective for not allowing him to testify at trial.

Defendant claims that he would have testified that he was not present at the time of the shooting




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No. 1-15-1297


and that he was incapable of firing a gun due to a hand injury. Defendant also claimed actual

innocence based on affidavits of two newly-discovered eyewitnesses, Antonio McDowell and

Vaughan Peters, who swore that defendant was not present at the time of the shooting and that

another man had shot at the victim’s vehicle. Defendant also claimed that he was not culpably

negligent for filing his petition late because he relied on his counsel on direct appeal to either file

his petition for him or provide him with filing deadlines.

¶ 57            In his affidavit, McDowell swore that he observed a man known as “Volli” shoot

the victims, and that defendant was not present at the time of the shooting. In 1995, McDowell

was a member of the Undertaker Vice Lords gang, and he knew defendant, Williams, Scott,

Davis, and Randolph. On October 22, 1995, McDowell spent time with defendant, then with

Scott, and later with Scott and Davis at Davis’s home. Later that evening, McDowell was

standing with several other members of the Undertaker Vice Lords gang near the intersection of

Ferdinand Street and Lockwood Avenue. He did not observe defendant or Randolph, who was a

member of the rival Mafia Insane Vice Lords gang, on the corner.

¶ 58            McDowell observed Scott in the front seat of a vehicle stopped on Ferdinand

Street, but he was unable to observe the other passengers. As Scott drove the vehicle toward the

group of men, Volli appeared from behind a tree, pulled a bandana up to cover his face, and fired

at the vehicle several times. McDowell fled during the shooting, but later came back to

determine who had been shot. He never told the police what he observed. Sometime later,

McDowell was convicted of first-degree murder, attempted murder, and aggravated vehicular

hijacking—all unrelated to the shooting in the instant case—and was sentenced to prison terms

of 59, 29, and 15 years, respectively. In 2003 or 2004, he learned that defendant had been

convicted of the murders of Scott and Davis. While he was incarcerated, McDowell met




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No. 1-15-1297


defendant at a prayer meeting at the prison where both were confined and told defendant that he

observed Volli shoot the victims.

¶ 59            Vaughan Peters also swore in his affidavit that defendant was not present during

the shooting. In 1995, Peters was a member of the Undertaker Vice Lords. On October 22, 1995,

he learned that defendant’s brother had been killed. Peters then drove to Ferdinand Street

between Lockwood Avenue and Laramie Avenue, but defendant was not there when he arrived.

While he was at Ferdinand Street and Lockwood Avenue, Peters called defendant to offer his

condolences. 5 Defendant was at the home of his girlfriend, Lyda, during the telephone

conversation.

¶ 60            Peters observed several other gang members standing on the corner, including

Volli, who was drunk and “acting crazy.” Randolph, a member of the rival Mafia Insane Vice

Lords gang, was not on the street. As Peters walked away from the group of men, he heard a

gunshot. He turned and observed Volli holding a gun. 6 As Peters ran away, he heard several

more shots being fired, and he left the neighborhood. A day or two later, Peters learned that Scott

had been shot to death on Ferdinand Street and that defendant had been arrested for the murder.

Peters then left town. He did not talk with the police about what he observed because he thought

that defendant would be released, since “everybody knew” that defendant was not there. Peters

was incarcerated in 1996 and released in 2005. Peters is currently serving a four-year sentence

for unlawful possession/use of a weapon by a felon. A photograph of Volli was attached to both

affidavits.

¶ 61            The trial court dismissed defendant’s postconviction petition on December 9,

2010, finding that the petition was untimely and that defendant forfeited the issue regarding his

        5
          Peters did not state whose telephone he used to place the call or whether it was a cellular
telephone or a landline.
        6
          Peters did not state whether he observed Volli fire the gun.


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No. 1-15-1297


right to testify because he should have raised the issue on direct appeal. The trial court also found

that defendant’s claim for ineffective assistance of counsel was without merit because he told the

trial court that he understood and was exercising his right not to testify. Additionally, the trial

court found that defendant’s claim of actual innocence was without merit because neither

affidavit constituted newly-discovered evidence of actual innocence. Defendant appealed, asking

us to remand for a third-stage evidentiary hearing, which we did. The third-stage evidentiary

hearing began April 24, 2014, and ended on April 9, 2015.

¶ 62                   XII. Antonio McDowell’s Evidentiary Hearing Testimony

¶ 63                                   A. Direct Examination

¶ 64            At the hearing, Antonio McDowell testified that he is currently serving time at

Stateville Correctional Center for first-degree murder, attempted murder, and vehicular

hijacking. McDowell testified that he had been a member of the Undertaker Vice Lords at the

time of the shooting in October 1995. McDowell knew Howard Carter, Allen Williams, and

Devol Scott, who were also members of the Undertaker Vice Lords. McDowell also knew

Patrick Davis, a member of the Gangster Disciples, and Tyrone Randolph, a member of the

Mafia Vice Lords.

¶ 65            McDowell testified that, in June 1995, he observed stitches in defendant’s

damaged hand. McDowell also noticed that defendant could barely walk and that he had

difficulty standing up straight. These injuries were due to defendant having been shot.

¶ 66            McDowell testified that, on the evening of October 22, 1995, he was standing

near the intersection of Ferdinand Street and Lockwood Avenue with other members of the

Undertaker Vice Lords, including Vaughan Peters, “Shawn,” and “Reggie Rock.” McDowell did

not observe Randolph or defendant in the area at this time. McDowell witnessed a vehicle pull




                                                  18
No. 1-15-1297


up in the vicinity and recognized the driver as Devol Scott. McDowell testified that he and Scott

were close friends. McDowell then observed a man named Volli emerge from behind a tree

wearing a bandana. Volli opened fire on the vehicle. Immediately following the shooting,

McDowell ran from the scene. He returned to the scene later that evening, but did not talk to the

police. McDowell identified Volli in court through a photograph marked as Defense Exhibit

No. 6.

¶ 67            McDowell testified that he learned of defendant’s conviction in this case

sometime around 2003 or 2004, while serving time at Menard Correctional Center. Later, at a

religious service in Stateville Correctional Center, he observed defendant and told him about

Volli and that he knew defendant was innocent.

¶ 68                                  B. Cross-Examination

¶ 69            McDowell testified that he had been in prison for 17 years, belonged to the Fifth

Generation faction of the Undertaker Vice Lords at the time of the shooting, and left the gang

after seven years in prison. McDowell testified that he had known defendant for four years at the

time of the shooting. In May 1995, defendant had the rank of chief in the Fifth Generation, and

Devol Scott was chief of the Sixth Generation. Kenny Beecham was second in command under

Scott with the title of prince. Allen Williams, another associate of McDowell’s, was prince of the

Fifth Generation. McDowell also knew Patrick Davis, a member of the Gangster Disciples.

¶ 70            McDowell testified that Mike-Mike, a member of the Sixth Generation, led by

Devol Scott, attempted to murder defendant in May 1995. After this murder attempt, defendant

lost the respect of the Fifth Generation for not retaliating against Mike-Mike. Subsequently,

defendant was no longer considered chief of the Fifth Generation. This political rift was further




                                                 19
No. 1-15-1297


exacerbated by the fact that nobody in the Fifth Generation respected their prince, Allen

Williams. Eventually, the Sixth Generation took over leadership of the Fifth.

¶ 71            McDowell testified that, after the murder attempt in June 1995, he observed

stitches in defendant’s right hand and that defendant was walking with a hunched back.

McDowell said that defendant had a limited range of motion in the fingers on his injured hand.

The severity of defendant’s injuries remained unchanged each time he met defendant in July,

August, September, and October of that year.

¶ 72            McDowell testified that he was with defendant on October 22, 1995. Defendant

had visited McDowell at McDowell’s home during the daytime. At the end of defendant’s visit,

McDowell drove defendant to defendant’s home in Forest Park, approximately six hours prior to

the shooting. That evening, McDowell was hanging out by Ferdinand Street and Lockwood

Avenue with other members of the Fifth Generation, including Vaughan, Shawn, and Volli—

who had been present at the intersection for at least an hour prior to the shooting. McDowell

observed Devol Scott pull up in a vehicle. Volli then came out from behind a tree, put a bandana

up around his face, and began shooting at the vehicle that Devol Scott was driving. McDowell

observed Volli firing a 9mm handgun in his right hand. McDowell heard multiple shots as he

took off running to his home. Thirty minutes later, McDowell returned to the scene of the

shooting and learned that Davis and Scott had been murdered.

¶ 73            McDowell testified that he was aware that defendant had been arrested and

charged with the murder of Scott and Davis shortly after October 22, 1995. McDowell learned of

defendant’s conviction sometime in 2003 or 2004 while serving time at Menard. McDowell kept

the information he had about Volli to himself until he noticed defendant in a prayer meeting at




                                                20
No. 1-15-1297


Stateville Correctional Center in 2008, which was the first time he had noticed defendant since

the shooting in October 1995.

¶ 74            At one of these prayer meetings, McDowell told defendant that he knew who was

responsible for the murders of Scott and Davis. After a few months of consideration, McDowell

told defendant he would help him because the threat of harm befalling McDowell or his family

no longer existed because Mike-Mike was dead.

¶ 75                                  C. Redirect Examination

¶ 76            McDowell clarified that he and defendant did not live in the same tier at Stateville

Correctional Center when they met in 2008. On the day of the murder, he did not talk to the

police because he was afraid of Volli, who had a reputation for shooting people, and McDowell

feared for his family’s safety and his own.

¶ 77                                  D. Recross-Examination

¶ 78            McDowell testified that he and defendant observed each other only every two

weeks in prison because they resided in different buildings. The only time they would run into

each other was at prayer meetings. McDowell noticed defendant one or two times at the prayer

meetings before telling him that he knew the true identity of Scott and Davis’s killer. McDowell

feared going to the police with this information because Volli was a threat to him and Mike-Mike

and other members of the Sixth Generation were a threat to him and his family.

¶ 79            McDowell then stated that he did not discover that Volli had been killed until he

spoke with investigators. When asked why he was comfortable helping defendant if he was

unaware that Volli was dead, McDowell claimed that the threat of Volli injuring his family no

longer existed in 2008 because he had learned through talk from the streets that Volli had

changed and was no longer frequenting McDowell’s neighborhood. McDowell then stated that




                                                 21
No. 1-15-1297


the threat he felt from Volli was personal and that Volli did not know his family. McDowell did

not come forward with information about Volli because he felt threatened by other members of

the Sixth Generation, except for Mike-Mike who was deceased.

¶ 80                   XIII. Vaughan Peters’ Evidentiary Hearing Testimony

¶ 81                                  A. Direct Examination

¶ 82            At the hearing, Vaughan Peters testified that he is currently employed as an

assistant at Megabus. Peters was a member of the Undertaker Vice Lords at the time of the

murder and knew defendant. After defendant was shot, Peters observed that defendant could not

stand up straight or move quickly, and that defendant’s hands were swollen.

¶ 83            Peters testified that, on October 22, 1995, he went to Ferdinand Street and

Laramie Avenue because Weasel, a fellow gang member and defendant’s brother, had been

killed earlier in the day. Peters was hanging out and drinking with other gang members,

including Young T, Volli, and Freddy Pie. Tyrone Randolph, a member of the Mafia Insanes,

was not present that day since the Undertaker Vice Lords and Mafia Insanes were at war. Peters

did not observe defendant there so he called defendant at defendant’s girlfriend’s home in Forest

Park.

¶ 84            Peters testified that he was walking toward the corner of Ferdinand Street and

Laramie Avenue when he first heard gunshots. After the first shot, Peters observed Volli walking

toward the street with a gun, and then Peters ran to his grandmother’s house. Peters estimates

that he heard more than 10 shots as he ran away.

¶ 85    Peters testified that he learned of the murders the next day when he returned to the block

and some people informed him who had been killed. Peters then left town for three to four days.

Peters never went to the police with the information he had about Volli.




                                                 22
No. 1-15-1297


¶ 86                                   B. Cross-Examination

¶ 87            On cross, Peters testified that he belonged to the Fifth Generation faction of the

Undertaker Vice Lords at the time of the murder, but he left the gang in 2004. Defendant had the

rank of king in the Fifth Generation. Defendant did not conduct any meetings as king or exercise

any leadership roles. Peters was unsure as to whether there was a leader of the Sixth Generation.

The Fifth Generation and the Sixth Generation factions were at war. Eddie Richardson,

nicknamed “Hineef,” was the leader of all the Undertaker Vice Lords factions.

¶ 88            Peters testified that the last time he observed defendant was a few weeks after

defendant was shot. Due to his gunshot wounds, defendant appeared to walk like an old man and

could barely stand up. On the night of the shooting, Peters still considered defendant to be the

king of the Fifth Generation.

¶ 89            Peters testified that, on the night of the murder, he arrived on Ferdinand Street

around 5 p.m. or 6 p.m. He remembers seeing Volli, Young T, and Freddy Pie there—all

members of the Fifth Generation. Volli and Peters were good friends, and everyone present was

discussing the murder of Weasel, defendant’s younger brother. Peters and 13 or 14 of his fellow

gang members decided to call defendant to express their condolences for Weasel’s death. Peters

did not recall whether they used a house phone or a pay phone to speak with defendant.

Defendant’s girlfriend, Lyda, answered the phone and then handed it to defendant. Peters spoke

with defendant, but did not remember who dialed or whether Volli spoke with defendant.

¶ 90            Peters testified that he heard the first gunshot when he was walking to a restaurant

on the corner. Peters observed Volli with a gun walking towards the street, but Peters did not

witness Volli pull the trigger. Peters then ran to his grandmother’s house, and he did not discover

until the next day that Devol Scott had been shot. Three to four days later, Peters learned that




                                                 23
No. 1-15-1297


defendant was arrested for the murders. At the time that Peters learned that defendant was going

to trial, Peters was incarcerated. Peters learned of Volli’s death sometime between 1996 and

2005 during Peters’s incarceration at Stateville Correctional Center. Peters was unaware why the

public defender’s office showed up at Stateville, asking him questions about the shooting. Peters

had not reached out to anyone regarding defendant and the shooting. The last time Peters

observed Volli was the night of the shooting.

¶ 91                                  C. Redirect Examination

¶ 92            Peters testified that he knew a man named “Tone” in the Undertaker Vice Lords,

but Peters referred to him as “Tidy Bowl.” 7 Tone was one of the people hanging out on

Ferdinand Street on the night of the shooting. Peters also knew a man with the nickname

“Rayskee.” 8 Rayskee was not on Ferdinand Street on the night of the shooting. Peters did not

observe Young T or Freddy Pie with a weapon, and he never observed defendant during Peters’s

own incarceration at Stateville Correctional Center.

¶ 93                                  D. Recross-Examination

¶ 94            Peters testified that McDowell and Williams did not have any rank in the

Undertaker Vice Lords. Peters last observed McDowell a month or two after the shooting.

¶ 95                   XIV. Mary Clements’s Evidentiary Hearing Testimony

¶ 96                                  A. Direct Examination

¶ 97            Mary Clements testified that she is currently employed as a supervisor of

investigations with the Cook County public defender’s office. Clements became involved in

defendant’s case when an investigation request came into the public defender’s office in

December 2009. Initially, Clements was tasked with notarizing defendant’s affidavit and
       7
          “Tone” and “Tidy Bowl” are nicknames of Antonio McDowell, one of defendant’s newly
discovered witnesses.
        8
          “Rayskee” is the nickname of Allen Williams, the attempted murder victim.


                                                24
No. 1-15-1297


interviewing Antonio McDowell. Clements interviewed McDowell at Stateville Correctional

Center three times between 2009 and 2010. During an interview with McDowell, Clements

learned about Vaughan Peters and Volli.

¶ 98            Clements discovered that Peters was at Stateville Correctional Center by running

his name through the Illinois Department of Corrections website. Clements learned from Peters

that Volli was deceased. Peters found a letter from Volli that indicated that Volli’s real first name

was Savalas. Clements took that information and used Accurate and Westlaw CLEAR to find

every Savalas in Chicago. Clements found a Savalas Brewer who was from the south side of

Chicago and deceased. Clements then obtained a photograph of Brewer from the jail’s computer

system, IMACS, which was identified as Defense Exhibit No. 6. Clements contacted the

emergency contact person listed on Brewer’s CLEAR report and spoke to Brewer’s mother, who

confirmed Brewer’s death. Clements took the photograph of Brewer and showed it to defendant,

McDowell, and Peters between 2009 and 2010. 9

¶ 99                                   B. Cross-Examination

¶ 100           Clements testified that she had three meetings with McDowell at Stateville

Correctional Center and presented an affidavit to McDowell on her third visit. Clements met

with Peters three times as well, twice at Stateville and once at East Moline. Clements did not

inquire about the current gang membership of Peters or McDowell. Clements testified that she

found out that Volli was Savalas Brewer and that Brewer’s mother stated that Brewer died in

December 2003 on Lake Street.

¶ 101           Clements testified that McDowell was uncertain of whether Volli was dead, but

that Peters knew that Volli was deceased. Peters gave Clements the information that Volli had


        9
         Clements’s testimony does not state whether defendant, McDowell, and Peters identified the
man in the photograph as Volli, to her, at that time.


                                                  25
No. 1-15-1297


been killed on Lake Street and that he had a brother named Romey, a fact which Clements

corroborated during her conversation with Brewer’s mother. Clements testified that Peters

showed her an envelope, addressed to Peters, that had Savalas in the return information.

Clements believed it was an old letter because it was not addressed to Stateville, the prison that

Peters was in at the time of his interview with Clements.

¶ 102                  XV. Defendant’s Evidentiary Hearing Testimony

¶ 103                                  A. Direct Testimony

¶ 104           Defendant testified that he had prior convictions in 1991 and 1992 for a weapons

offense and a robbery offense. Defendant was shot approximately 11 times on May 11, 1995, and

treated at Mt. Sinai Hospital, where he had surgery on his stomach, hand, and left lung.

Defendant was informed by a doctor that the bullet that hit his hand exploded upon impact,

causing severe damage. The doctors attached a metal apparatus to defendant’s hand, which was

removed near the end of July or the beginning of August 1995. After the shooting, defendant

could no longer walk properly, use his right hand, or raise his left arm. In September 1995,

defendant could not hold a glass or make a fist with his right hand or walk very far or long.

¶ 105           On the evening of October 22, 1995, defendant’s grandmother called him and told

him that his brother had been shot and killed. Defendant testified that he was at home when he

received the call and that he did not leave his home after speaking to his grandmother. Defendant

testified that Devol Scott, one of the murder victims, was like a little brother to him and that

defendant did not blame Scott for shooting defendant because Scott was in North Dakota at that

time. Defendant did not know Patrick Davis, who was the other murder victim. Defendant had a

close relationship with Allen Williams, the attempted murder victim, because Williams’s father




                                                 26
No. 1-15-1297


helped raise defendant and taught both Williams and defendant about how the streets work.

Defendant denied shooting Scott, Williams, and Davis.

¶ 106                                 B. Cross-Examination

¶ 107           On cross, defendant testified that he was shot 11 times on the evening of May 11,

1995, in front of the corner store on Gladys and Cicero Avenues. Defendant was a member of the

Undertaker Vice Lords when he was shot and had the rank of ‘King’ of the Fifth Generation.

Defendant was made king of the Fifth Generation when he was 15 years old, seven years prior to

being shot. Defendant was responsible for keeping order within the Fifth Generation and

mediating any conflicts that arose. Allen Williams, the attempted murder victim, was defendant’s

second in command and had full authority to settle disputes in defendant’s absence. While

defendant was in the hospital recovering from his gunshot wounds, Williams was in command of

the Fifth Generation.

¶ 108           Defendant testified that Devante Branch was the chief of the Sixth Generation

Undertaker Vice Lords and that Kenny Beecham was the prince of the Sixth Generation.

Defendant reported to Eddie Richardson, nicknamed “Hineef,” who was the king of all

generations of the Undertaker Vice Lords. Defendant claims that Branch’s and Beecham’s roles

were never officially commissioned by anyone else in the gang. The Sixth Generation was also

in turmoil as they did not like their chief, Devante Branch, and instead chose to respect Devol

Scott—a Sixth Generation member who did not have any rank. The Fifth and Sixth Generations

had non-violent arguments from time to time in 1995.

¶ 109           Defendant did not know who shot him on May 11, 1995. Defendant believed at

least two shooters were involved because he was shot on the right side of his body and the left

side of his neck. The police told defendant that he was shot with two different guns, but they




                                                27
No. 1-15-1297


were able to identify only one of them as a 9mm. A woman named Sinbad, who lived on the

corner where defendant was shot, informed defendant that a man with the nickname “Mike-

Mike” shot him. Sinbad also told defendant that Chucky may have been involved, but she was

not sure. Defendant tried to persuade Sinbad to talk to the police or the State’s Attorney’s office

but Sinbad did not want to be involved. Defendant had met Mike-Mike at Branch’s house in

1994. Mike-Mike belonged to the Traveler Vice Lords in 1994, but switched his affiliation to the

Sixth Generation Undertaker Vice Lords shortly thereafter. Chucky was also an acquaintance of

defendant and a member of the Fifth Generation, who spent most of his time hanging around

with the Sixth Generation.

¶ 110           Defendant testified that he was shot because Mike-Mike, Branch, and Chucky

were trying to establish more power and authority over their territory on Cicero Avenue. All

members of the Undertaker Vice Lords were allowed to deal drugs on Cicero Avenue and keep

all the proceeds for themselves. Defendant believed that the shooting was less about a war

between the two factions and more about absolving regular gang members of any responsibility

to those in positions of power within the gang. After defendant was released from the hospital, he

was no longer considered the king of the Fifth Generation, primarily due to the fact that other

gang members viewed him as weak. Defendant discovered who shot him sometime in July 1995.

¶ 111           Defendant testified that he went to rehabilitation at Mt. Sinai for about two

months. Defendant stopped going because people he relied upon to drive him stopped showing

up and defendant refused to take the bus anywhere.

¶ 112           Defendant testified that he never knew who shot his brother, but that Branch was

charged with the shooting and eventually incarcerated for it. Defendant did not own a vehicle so

his friends would drive him around. An Undertaker named Ja-Rule was defendant’s primary




                                                 28
No. 1-15-1297


driver, and defendant trusted him because Ja-Rule was not from Cicero Avenue. Defendant did

not have any security detail, but did carry a .38 special revolver with him for protection from

rival gangs like the Mafia Insane Vice Lords, who had been at war with the Undertaker Vice

Lords since 1992.

¶ 113           Defendant’s brother, nicknamed Weasel, had finished serving a house arrest

sentence a day or two before he was shot and killed. Weasel would demand that members of the

Sixth Generation give him a portion of the profits generated from their drug sales on Cicero

Avenue. Due to Weasel’s relationship with defendant, Sixth Generation members would comply

with Weasel’s demands.

¶ 114           Defendant testified that he quit the Undertaker Vice Lords 13 or 14 years ago

while at Stateville Correctional Center.

¶ 115                          C. Redirect Examination

¶ 116 On redirect, defendant testified that, after his release from the hospital, he resided in

Forest Park with his girlfriend, Lyda Belk. Defendant was not shot in his left hand, although

most of his injuries occurred on the left side of his body. Defendant had injuries on the left side

of his chest and underwent surgery on his left lung. Defendant was also shot beneath his armpit,

and Belk would help him wash because defendant could not raise his arm up. Defendant testified

that members of the Fifth Generation were not required to give defendant a portion of their drug

sales.

¶ 117                                 D. Recross-Examination

¶ 118           Defendant testified that in October 1995 he was able to make a fist with his left

hand. He no longer had the pins in his right hand, and he washed himself without assistance.

Defendant lived at his girlfriend’s mother’s house in Forest Park until his arrest on October 25,




                                                 29
No. 1-15-1297


1995. Defendant’s friend Tweet drove him to Forest Park after he was released from his hospital

stay.

¶ 119                                  XVI. Trial Court’s Ruling

¶ 120           On April 9, 2015, the trial court concluded that the new evidence presented by

defendant lacks credibility and, when scrutinized in the context of the entire trial record, it was

not so persuasive that it would probably change the result on retrial. The trial court found that it

defied logic to think that McDowell and Peters were completely oblivious to the fact that

defendant had been convicted of first degree murder. Based on their status as fellow gang

members and eyewitnesses, McDowell and Peters both had an interest in learning who had been

implicated, and their testimony that they never sought out this information was highly incredible.

The trial court also observed that McDowell personally knew Allan Williams, who testified as a

State’s witness against defendant. The trial court also found that defendant’s testimony lacked

overall credibility, noting that defendant’s alibi directly conflicted with Peters’s testimony.

Peters testified that defendant was at his girlfriend’s home when the shooting occurred, while

defendant testified that he was at his own home at the time. For these reasons, the trial court

found that defendant failed to establish the denial of a constitutional right by a preponderance of

the evidence. Thus, the trial court granted the State’s motion for a directed finding and dismissed

the postconviction petition.

¶ 121                                  ANALYSIS

¶ 122           On appeal, defendant claims that the trial court erred in dismissing his

postconviction petition after a third-stage evidentiary hearing. Defendant claims that

McDowell’s and Peters’s testimony—implicating another man in the shooting of Devol Scott,




                                                 30
No. 1-15-1297


Patrick Davis, and Allen Williams—is noncumulative, conclusive evidence that would likely

change the result on retrial. For the following reasons, we affirm.

¶ 123                           I. Stages of Postconviction Proceeding

¶ 124           The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2014)) provides

that a defendant may challenge his or her conviction or sentence for violations of federal or state

constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006) (citing People v. Whitfield,

217 Ill. 2d 177, 183 (2005)). To be entitled to postconviction relief, a defendant bears the burden

of establishing that a substantial deprivation of his constitutional rights occurred at his original

trial. People v. Waldrop, 353 Ill. App. 3d 244, 249 (2004); 725 ILCS 5/122-1(a) (West 2014).

¶ 125           In noncapital cases, the Act provides for three stages. 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 2014); 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 2014); Pendleton, 223 Ill. 2d at 472.

¶ 126           If the petition survives initial review, the process moves to the second stage,

where the trial court appoints counsel for the defendant when a defendant cannot afford counsel.

725 ILCS 5/122-4 (West 2014). Appointed counsel may make any amendments that are

“necessary” to the petition previously filed by the pro se defendant. People v. Perkins, 229 Ill. 2d

34, 42 (2007). After defense counsel has amended the petition, the State may file a motion to

dismiss or an answer. 725 ILCS 5/122-5 (West 2014); Pendleton, 223 Ill. 2d at 472. 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 (1998).




                                                   31
No. 1-15-1297


¶ 127           To advance to the third stage, a petitioner must make a “substantial showing,”

which can be accomplished by relying on the record in the case or by supplying supporting

affidavits. Coleman, 183 Ill. 2d at 381. The trial court is foreclosed from engaging in any fact-

finding because all well-pleaded facts must be taken as true at the second stage of the

proceedings. People v. Wheeler, 392 Ill. App. 3d 303, 308 (2009) (citing Coleman, 183 Ill. 2d at

380-81). “[W]hen a petitioner’s claims are based upon matters outside the record, the [Act] does

not intend such claims be adjudicated on the pleadings.” People v. Snow, 2012 IL App (4th)

110415, ¶ 15.

¶ 128           If the trial court denies the State’s motion to dismiss, or if the State chooses not to

file a dismissal motion, then the State “shall” answer the petition. 725 ILCS 5/122-5 (West

2014); Pendleton, 223 Ill. 2d at 472. Unless the trial court allows further pleadings (725 ILCS

5/122-5 (West 2014)), the proceeding then advances to the third stage, which is an evidentiary

hearing. 725 ILCS 5/122-6 (West 2014); Pendleton, 223 Ill. 2d at 472-73. In the case at bar, the

trial court originally dismissed defendant’s petition at the second stage, but the appellate court

reversed and remanded for a third-stage evidentiary hearing.

¶ 129           An evidentiary hearing is held only where the allegations of the postconviction

petition make a substantial showing that a defendant’s constitutional rights have been violated

and those allegations are supported by affidavits, records, or other evidence. Waldrop, 353 Ill.

App. 3d at 249. The affidavits that accompany a postconviction petition must identify with

reasonable certainty the sources, character, and availability of the alleged evidence supporting a

defendant’s allegations. Waldrop, 353 Ill. App. 3d at 249. At the evidentiary hearing, the trial

court “may receive proof by affidavits, depositions, oral testimony, or other evidence,” and “may

order the [defendant] brought before the court.” 725 ILCS 5/122-6 (West 2014).




                                                  32
No. 1-15-1297


¶ 130           In the case at bar, the trial court dismissed defendant’s postconviction petition

after a third-stage evidentiary hearing where new evidence was introduced through the testimony

of two witnesses. Defendant appeals and asks us to remand for a new trial, or, in the alternative,

to reverse the trial court’s order allowing the State’s motion for a directed finding and remand

the case for a continuation of the third-stage hearing.

¶ 131                                    II. Standard of Review

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

substantial showing of a constitutional violation. People v. English, 406 Ill. App. 3d 943, 951

(2010). 10 When a petition is advanced to a third-stage evidentiary hearing, where fact-finding

and credibility determinations are involved, we will not reverse a trial court’s decision unless it is

manifestly erroneous. People v. English, 2013 IL 112890, ¶ 23. If no fact-finding or credibility

determinations were necessary at the third-stage, and the issues presented were all pure questions

of law, we 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 had some bearing on the disposition of the postconviction

petition. English, 2013 IL 112890, ¶ 24; People v. Beaman, 229 Ill. 2d 56, 72 (2008). 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. English, 2013 IL 112890, ¶¶ 23-24; English, 406 Ill. App. 3d at 952. “ ‘Manifestly

erroneous means arbitrary, unreasonable and not based on the evidence.’ ” People v. Ceja, 204

Ill. 2d 332, 347 (2003) (quoting People v. Wells, 182 Ill. 2d 471, 481 (1998)).



        10
           Although the appellate court case of English in this sentence and the supreme court case of
English cited in the next sentence share the same name, the two cases are different cases concerning
different defendants.


                                                    33
No. 1-15-1297


¶ 133                                  III. Actual Innocence

¶ 134           The wrongful conviction of an innocent person violates due process under both

the United States Constitution (U.S. Const. amend. XIV, § 1) and the Illinois Constitution (Ill.

Const. 1970, art. I, § 2), and thus, a defendant can raise in a postconviction proceeding a

freestanding claim of actual innocence based on newly discovered evidence. People v. Ortiz, 235

Ill. 2d 319, 334 (2009); People v. Washington, 171 Ill. 2d 475, 489 (1996). To assert a claim of

actual innocence based on newly-discovered evidence, a defendant must show that the evidence

is (1) newly discovered, (2) material and not merely cumulative, and (3) capable of changing the

result on retrial. Ortiz, 235 Ill. 2d at 333-34. In his postconviction petition, defendant claims that

he is actually innocent based on the testimony of the two witnesses who testified that he was not

the shooter. The trial court divided its analysis into two parts: “first, the Court consider[ed] the

new evidence presented by petitioner and conclude[d] that this evidence lacks credibility; and

second, the Court scrutinize[d] the new evidence in the context of the entire trial record and

determine[d] that the new evidence is not so persuasive that it would probably change the result

of retrial.” People v. Carter, No. 95 CR 3181301, slip op. at 14 (April 9, 2015). We analyze the

trial court’s finding using the framework of the three-prong test articulated in Ortiz.

¶ 135                          A. Newly Discovered Evidence

¶ 136           As noted, the trial court did not explicitly address whether McDowell’s and

Peters’s testimony constituted newly-discovered evidence. The trial court did find that “[t]heir

purported lack of knowledge defies common sense and human experience, which places an

imprimatur of unreliability upon the testimony of McDowell and Peters.”

¶ 137           Our supreme court has defined newly-discovered evidence as “evidence [(1)] that

has been discovered since the trial and [(2)] that the defendant could not have discovered sooner




                                                  34
No. 1-15-1297


through due diligence.” Ortiz, 235 Ill. 2d at 334. Defendant argues that the testimony of these

two witnesses is newly discovered because McDowell and Peters claim that they did not learn of

defendant’s conviction until 2003 or 2004, and defendant could not have known who witnessed

the shooting because he was not there. The State argues that McDowell's and Peters’s purported

lack of knowledge about defendant’s conviction defies common sense and human experience.

¶ 138           We understand the trial court’s determination to be that, had the testimony been

credible, it would have been considered newly discovered. We discuss the credibility of

McDowell and Peters under the third prong, which addresses whether their testimony would

change the result at trial.

¶ 139                          B. Material and Noncumulative

¶ 140           Regarding the second prong, the trial court found that the testimony of McDowell

and Peters is material and noncumulative. Our supreme court has held that “[e]vidence is

considered cumulative when it adds nothing to what was already before the jury.” Ortiz, 235 Ill.

2d at 335. See also People v. Molstad, 101 Ill. 2d 128, 135 (1984). Testimony is not cumulative

when it would create new questions in the mind of the trier of fact. People v. Ortiz, 385 Ill. App.

3d 1, 11 (2008); People v. Williams, 392 Ill. App. 3d 359, 369 (2009). Both witnesses testified

regarding the ultimate issue of whether defendant was the shooter, and there was no other

testimony at trial excluding defendant as the shooter. However, as discussed below in the

analysis of whether the new evidence is capable of changing the result on retrial, their testimony,

while material and noncumulative, is not sufficient to undermine confidence in the outcome of

the original proceeding.




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¶ 141                          C. Incapable of Changing the Result on Retrial

¶ 142           As to the third prong, the Illinois Supreme Court has found that newly-discovered

evidence is capable of changing the result on retrial when “the evidence of defendant’s

innocence would be stronger when weighed against the recanted statements of the State’s

eyewitnesses.” Ortiz, 235 Ill. 2d at 337. On retrial, “[t]he fact finder will be charged with

determining the credibility of the witnesses in light of the newly discovered evidence and with

balancing the conflicting eyewitness accounts.” Ortiz, 235 Ill. 2d at 337. Our supreme court

noted that “ ‘this does not mean that [defendant] is innocent, merely that all of the facts and

surrounding circumstances, including the testimony of [defendant’s witnesses], should be

scrutinized more closely [at a retrial] to determine the guilt or innocence of [defendant].’ ” Ortiz,

235 Ill. 2d at 337 (quoting Molstad, 101 Ill. 2d at 136 (finding that the defendant’s newly-

discovered evidence of five codefendants, who would testify that he was not present at the crime

scene, would probably change the result on retrial when balanced against the testimony of a

single eyewitness implicating the defendant)). Under a manifest-error standard, we find that the

trial court’s ruling, which was based almost exclusively on a credibility determination, was not

arbitrary or unreasonable. Ceja, 204 Ill. 2d at 347.

¶ 143           As the trial court observed, both McDowell and Peters observed the shooting, yet

did not come forward with information until many years after defendant’s conviction. McDowell

claims this is because he did not learn of defendant’s conviction until he met him in prison in

2003 or 2004. Peters claims he was aware that defendant had been arrested, but was sure that

defendant would not have been convicted because every person present at the shooting knew that

defendant was not involved. McDowell and Peters were both friends of defendant; they all

belonged to the same gang and had hung out together prior to the night of the shooting.




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Therefore, the trial court reasoned, McDowell and Peters had a significant interest in learning

who had been implicated in the shooting, and their testimony that they never knew of

defendant’s conviction until years later was incredible. Furthermore, McDowell and Peters both

personally knew Allen Williams, the attempted murder victim, who was a member of their gang

and a State’s witness against defendant. The trial court found it incredible that neither McDowell

nor Peters would have an interest in a case where a member of their own gang took the stand

against their former leader.

¶ 144           Defendant likens the account of the shooting provided by McDowell and Peters at

the evidentiary hearing to the testimony provided by Hernandez in People v. Ortiz. In Ortiz,

Hernandez, an eyewitness with new evidence of the defendant’s actual innocence, came forward

on his own volition after meeting the defendant’s mother in Chicago and telling her that he knew

defendant was not guilty. Ortiz, 235 Ill. 2d at 327. Hernandez had left the state shortly after the

occurrence. Ortiz, 235 Ill. 2d at 327. However, McDowell’s and Peters’s explanations for

coming forward differ dramatically from Hernandez’s explanation. On cross-examination,

McDowell testified that an investigator from the public defender’s office met with him and

brought the affidavit that he signed. Then, on redirect, McDowell testified that he did not come

forward after the shooting because he was afraid of Volli, the alleged actual killer. On re-cross,

McDowell testified that Volli actually was not a threat because Volli did not know his family and

was not from the same neighborhood. Peters admitted that he knew defendant had been arrested

for the shooting, yet he did not go to the police.

¶ 145           Defendant argues that the trial court incorrectly stated that McDowell and Peters

“never asked around or figured out who had been charged with the murders.” Carter, No. 95 CR

3181301 (April 9, 2015). Indeed, McDowell and Peters both testified that they were aware of




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defendant’s arrest shortly after the shooting; however, this discrepancy does not have a

significant impact on the trial court’s credibility determination. Peters’s knowledge of

defendant’s arrest strengthens the distinction between the witness in Ortiz, who came forward on

his own volition, and Peters, who did not make any attempt to clear defendant’s name until he

was approached by the public defender’s office. Peters had no idea why the public defender’s

office reached out to him because he had not reached out to anyone regarding the shooting.

McDowell waited 13 years, and only came forward with his information when he observed

defendant at a prayer meeting in prison. The trial court found this testimony to be lacking in

credibility.

¶ 146           Defendant also argues that the distinction drawn in the trial court’s order between

defendant’s testimony that he was at home and Peters’s testimony that defendant was at his

girlfriend’s house is one without difference, since he lived at his girlfriend’s home. However, it

does not change the credibility determination of the trial court because it found that defendant’s

testimony “at the evidentiary hearing was cumulative of other evidence presented at trial, and

therefore [was] not supportive of his actual innocence claim.” Carter, No. 95 CR 3181301, slip

op. at 19 (April 9, 2015). Thus, the distinction was not a factor in the trial court’s credibility

determination of McDowell and Peters.

¶ 147           We remanded for the specific purpose of making a credibility determination, and

the trial court did just that, finding neither McDowell nor Peters to be credible. For the foregoing

reasons, we cannot find that the trial court’s ruling was manifestly erroneous.




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¶ 148                                 CONCLUSION

¶ 149           For the aforementioned reasons, we find that the trial court’s ruling was not

manifestly erroneous, and thus we affirm the trial court’s third-stage dismissal of defendant’s

postconviction petition.

¶ 150           Affirmed.




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