People v. McGhee , 2021 IL App (1st) 190594-U ( 2021 )

2021 IL App (1st) 190594-UFIFTH DIVISION
December 17, 2021
No. 1-19-0594
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, )
) Appeal from the
Respondent-Appellee, ) Circuit Court of Cook County.
)
v. ) 99 CR 14723
)
VOLNEY MCGHEE, ) Alfredo Maldonado,
) Judge Presiding.
Petitioner-Appellant. )
JUSTICE CONNORS delivered the judgment of the court.
Justices Hoffman and Cunningham concurred in the judgment.
ORDER
¶1 Held: Evidence of an expert’s affidavit concerning the reliability of
eyewitness identification following the supreme court’s decision in People
v. Lerma, 2016 IL 118496, when considered along with the other evidence,
was not so conclusive to probably change the result on retrial; defendant
could not establish prejudice for his claim that trial counsel was ineffective
for failing to call an expert witness on the reliability of eyewitness
identification; affirmed.
¶2 Petitioner, Volney McGhee, appeals from the circuit court’s denial of his motion for
leave to file a successive postconviction petition under the Post-Conviction Hearing Act (the
Act) (725 ILCS 5/122-1 et seq.) (West 2018)). On appeal, McGhee argues the circuit court
should have granted him leave to file his successive postconviction petition because People v.
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Lerma, 2016 IL 118496, which was issued after his initial postconviction petition proceedings
were completed, provided cause for reasserting his claim that trial counsel was ineffective for not
seeking an expert witness on the reliability of eyewitness identifications. He contends prejudice
existed because his case was based entirely on flawed eyewitness identifications. In McGhee’s
supplemental brief, he asserts his petition stated a colorable claim of actual innocence based on
new evidence in the form of the report from his expert witness on the reliability of eyewitness
identification. For the following reasons, we affirm the circuit court’s denial of leave to file a
successive postconviction petition.
¶3 I. BACKGROUND
¶4 In 1999, McGhee was charged with first-degree murder (720 ILCS 5/9-1(a)(1), (2))
(West 1998)), attempted murder (720 ILCS 5/8-4) (West 1998)) (720 ILCS 5/9-1) (West 1998)),
and aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1998)) in connection with
the shooting death of Melvin Thornton. In 2002, following a jury trial, McGhee was convicted of
the first-degree murder of Thornton, the attempted murder of Michael Hopson, and aggravated
discharge of a firearm. The court subsequently sentenced McGhee to concurrent prison terms of
40 years for first-degree murder and 30 years for attempted murder.
¶5 A. Trial
¶6 At McGhee’s 2002 jury trial, Michael Hopson, who had three felony convictions for
possession of a controlled substance, testified as follows. On March 18, 1999, at about 10:30
p.m., he picked up Thornton in his white Ford Taurus and they went to a club in Bellwood,
Illinois, where they stayed for about 45 minutes. When Hopson was leaving the club, he saw a
woman named Crystal, whom he knew from a mutual friend, and two other women.1 The women
1
Crystal’s last name is not included in the report of proceedings
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followed Hopson and Thornton in their car. Hopson stopped at Thornton’s girlfriend’s house to
pick up marijuana, after which they drove to a gas station on Washington Boulevard and Pulaski
Road to buy cigars for the marijuana. The gas station had a booth where customers paid at a
window, and Hopson parked his car alongside the booth. Thornton got of the car and waited in
line at the window to pay.
¶7 While Hopson was waiting in the car, he saw a red Oldsmobile drive by the gas
station heading south on Pulaski. There were three people inside the car, and they were all
looking at Hopson. Hopson recognized McGhee, whom he identified in court, as the person
sitting in the back seat. McGhee was “half hanging out the window” such that most of his face
was outside the window. He was looking in Hopson’s direction. Asked where Hopson had seen
McGhee before, Hopson responded “[n]umerous places,” including in Maywood. He would see
McGhee “[r]iding, gas stations, anywhere, you know, just on the street.” Hopson testified that
“[w]e didn’t hang out like that, we didn’t kick it like that. So I seen him. It was go, see him go. I
never stopped to talk like that.” Asked “for how long had you been seeing [McGhee],” he
responded, “It’s been awhile.” He testified that, before the incident happened, he had seen him
since “about ’97 maybe” and could not recall the time when he first saw him, adding that it had
been a few years. Hopson had previously seen McGhee in a red Oldsmobile Cutlass. Hopson
testified that McGhee had “some bad feelings” toward Hopson.
¶8 When the red Oldsmobile reached Madison Street, Hopson lost sight of it and a few
seconds later, he saw it coming from the opposite direction. He recognized the person in the front
passenger seat as “Little Tony,” whom he had previously seen with McGhee about two or three
times at a barber shop in Maywood. Hopson turned off his music and started blowing his car
horn and yelling at Thornton to get his attention. Thornton did not come and continued waiting
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in line at the window to make his purchase. Hopson waited a few more seconds for Thornton and
the red Oldsmobile drove to the other side of the gas station. Hopson pulled his car past the
pump so he could look around the attendant’s booth. McGhee, who was wearing all black, got
out of the red Oldsmobile, put his hood on, which did not cover his face, and came towards
Hopson. In his right hand, McGhee had a “big handgun” that looked like a .40 caliber weapon.
McGhee ran in Hopson’s direction and Hopson put his car in reverse as fast as he could. McGhee
kept running toward Hopson, raised the gun, and then shot the gun in Hopson’s direction. As
Hopson was reversing, he heard two gun shots, lost control of his car, and ended up between an
alley and a building on Pulaski. After Hopson gained control of his car, McGhee looked at him
and nodded his head. McGhee backed up and away from Hopson and, as McGhee turned around,
he looked “surprised” that Thornton was standing next to him. Thornton turned around and threw
his hands up. McGhee pointed the gun at Thornton’s face and shot him. As Thornton fell,
McGhee shot him a second time and fled. Hopson drove away as fast as he could. He called his
girlfriend and sister and told them about the shooting.
¶9 Hopson did not go to the police right away because there were warrants out for his
arrest. When he went to the police station later that afternoon, Hopson told the detectives that he
saw McGhee shoot Thornton. He recognized McGhee in a photograph as the person who shot
Thornton. Hopson told the detectives that he also saw Little Tony in the red Oldsmobile and
identified him in a photograph. On June 3, 1999, Hopson identified McGhee in a lineup as the
person who shot Thornton. The State showed Hopson photographs of the red Oldsmobile and he
identified it as the car McGhee had been riding in.
¶ 10 Ebonee Pruitt, a former United States Marine, testified that on the night of the
shooting, she went to a club in Bellwood, Illinois with her friends, Tiffany and Crystal. Tiffany
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and Crystal were too young to get into the club, so Pruitt gave them her car and told them to have
fun and pick her up later. At about 10:30 p.m., Pruitt went into the club and had two mixed
drinks. At about 1 or 1:30 a.m., Tiffany and Crystal picked Pruitt up from the club. Crystal was
driving, Pruitt was in the passenger seat, and Tiffany was in the back seat. Crystal had run into
some of her old friends, Thornton and Hopson, and introduced Pruitt to them outside the club.
Crystal, Pruitt, and Tiffany then followed Hopson and Thornton, who were driving in a white
Taurus, to a gas station at the corner of Washington and Pulaski.
¶ 11 At the gas station, Thornton got out of the car and went to the store. As Pruitt was
turning around to talk to Tiffany, she saw a red car pull into the gas station. When Thornton
exited his car, Hopson suddenly started backing up. Pruitt heard gunshots. Hopson moved his car
to the southern wall of the gas station and continued to back up towards Pulaski. Pruitt saw a
man wearing a black hooded sweatshirt with the hood on and black pants come from around the
island of the gas station towards Hopson. The man raised a gun and turned it towards Thornton,
who was holding his hands up and backing away. The man turned slightly and shot Thornton,
who was holding cigars and cigarettes and fell to the ground. The shooter fired a second shot.
During the shooting, Crystal backed up the car and the shooter turned around and looked at
Pruitt, who saw the shooter’s face between the first and second shots. Pruitt had never seen the
person before. She identified McGhee in court as the person who shot Thornton.
¶ 12 When Pruitt got home, she made an anonymous call about the shooting. Pruitt did not
go to the police until April 20, 1999, because she was scared. On June 3, 1999, she went to the
police station and identified McGhee in a lineup as the person who shot Thornton. That same
day, she also identified the red car that was in the gas station on the night of the shooting.
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¶ 13 Edmond R. Donoghue, a forensic pathologist, described Thornton’s two gunshot
wounds, including one in the head and one in the thigh. There was no evidence of close range
firing because there was no stippling or gunpower particles found on Thornton’s body.
Donoghue concluded that the gun was fired at least 18 inches away from Thornton. In his
opinion, Thornton died of multiple gunshot wounds and the manner of death was homicide.
¶ 14 Chicago police detective Allen Jaglowski testified that on June 3, 1999, Hopson
identified McGhee in a lineup as the person who shot Thornton. On the same day, Pruitt
identified McGhee in a lineup as the person who shot Thornton. Chicago police officer Gana2
testified that on June 2, 1999, he went to the address where McGhee’s family lived and found a
red 1995 Oldsmobile Cutlass parked in front of the house. After Officer Gana knocked on the
door, McGhee appeared and identified himself. The Oldsmobile was towed. In court, Officer
Gana identified a photograph of the car and testified it was registered to McGhee and his
grandfather.
¶ 15 Chicago police sergeant Donald Wolverton testified that he and his partner, Chicago
police detective Michael Hughes, went to the gas station at about 3 a.m. after the shooting. He
testified that the station was well lit and the lighting conditions were “very good.” He saw a pool
of blood next to some cigars and five spent .40-caliber cartridge casings. About 15 feet from the
casings, he saw one live round .40-caliber bullet. Later that afternoon, at the police station,
Hopson described the people and the vehicle who were involved in the shooting. Hopson
identified McGhee in a photograph array as the person who shot Thornton. In another
photograph array, Hopson identified “Little Tony.”
2
Officer Gana’s first name is not included in the record.
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¶ 16 Chicago police officer Kostecki, 3 a forensic investigator, testified that the crime
scene included a pool of blood within a few feet from some cigars. There were five expended
.40-caliber cartridge casings and an unfired .40-caliber bullet within about 10 feet from the pool
of blood. He testified that the gas station was well lit. Forensic scientist James Snaidauf testified
that he examined the five recovered expended cartridge casings and the one live cartridge for
latent fingerprints and did not find any latent prints suitable for comparison. Forensic scientist
Tonia Brubaker testified that the five recovered cartridge casings and unfired bullet were all .40-
caliber Smith and Wesson cases. The five cartridge casings were fired from the same firearm.
¶ 17 The court entered a stipulation between the parties that Hopson had three prior felony
convictions for possession of a controlled substance. The court also entered a certified record
from the Secretary of State showing that a 1995 Oldsmobile Cutlass was registered to McGhee
and his grandfather. 4
¶ 18 Testifying for McGhee, Laura Higgs testified that McGhee married her
granddaughter, Kia, and Higgs had known McGhee for nine years. Higgs could not remember
Kia’s full name. On March 18, 1999, McGhee arrived at Higgs’s house at about 11:30 p.m. and
stayed there all night. Higgs remembered him being there because he was drunk and she had
never seen him like that before. At 1 a.m., Higgs saw McGhee in the bedroom.
¶ 19 Following closing arguments and sometime after the jury started to deliberate, the
jury asked to review Pruitt’s testimony. Ultimately, the jury found McGhee guilty of the first-
3
Officer’s Kostecki’s first name is not included in the record.
4
The report of proceedings states that trial court entered into evidence “certified Secretary of State
records for 1995, Oldsmobile Cutlass***showing the registered owners of that vehicle to Boley Bradford
and Boley McGhee.” The Secretary of State records are not included in the record on appeal. The State’s
brief states that the State “admitted Secretary of State records showing that the 1995 red Oldsmobile
Cutlass recovered from petitioner’s home was registered to petitioner and his grandfather.” Defendant
does not dispute this fact.
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degree murder of Thornton, the attempted murder of Hopson, and aggravated discharge of a
firearm. The circuit court denied McGhee’s motion for a new trial and subsequently sentenced
him to 40 years in prison for first-degree murder and 30 years in prison for attempted murder, to
be served concurrently.
¶ 20 B. Direct Appeal
¶ 21 On direct appeal, McGhee contended that the State failed to prove him guilty beyond
a reasonable doubt due to conflicting testimony from two eyewitnesses. He also asserted that he
received ineffective assistance of trial counsel and was denied a fair trial due to prosecutorial
misconduct during closing argument. We affirmed McGhee’s convictions and sentences. See
People v. McGhee, No. 1-03-0761 (Sept. 28, 2004) (unpublished order under Illinois Supreme
Court Rule 23).
¶ 22 C. Postconviction Petition
¶ 23 McGhee filed his first postconviction petition in 2005, raising, inter alia, claims
based on ineffective assistance of trial and appellate counsels. The court appointed counsel, after
which McGhee filed an amended postconviction petition, asserting, inter alia, that trial counsel
was ineffective for failing to call an eyewitness identification expert to cast doubt on Pruitt’s
ability to identify the shooter. He asserted that Pruitt was the State’s “star witness” and testimony
of an eyewitness expert, Professor G. Loftus, would have allowed the jury to assess her
testimony in its proper light, and in turn, the testimony would have been given less weight.
McGhee stated the expert testimony would have explained many points that affected Pruitt’s
ability to perceive and recall her viewing of the shooter, including weapon focus and concern for
her own safety, the “change blindness” phenomenon, and the effect of stress on perception.
McGhee asserted that the jury did not likely rely only on Hopson’s purported identification
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No. 1-19-0594
because it had asked for the transcript of Pruitt’s testimony. He stated that Pruitt would have
appeared to be much more credible and unbiased than Hopson, who had prior felony convictions.
McGhee contended that the jury most likely placed considerable weight on Pruitt’s identification
testimony, her testimony was almost certainly unreliable, and the jury was not given the tools to
assess it properly.
¶ 24 Attached to McGhee’s petition was an affidavit from Geoffrey R. Loftus, Ph.D.,
dated May 18, 2009. Loftus understood “that Mr. Hopson’s identification of Mr. McGhee and his
testimony to that effect is impeached for reasons other than his identification of Mr. McGhee.
For that reason, I will focus my remarks on perception and memory primarily as they pertain to
Ms. Pruitt.” According to Loftus, “[t]he central issue discussed by an eyewitness expert is that,
contrary to common sense, a confident witness need not be an accurate witness.” He averred that
if called, he would have testified about the factors relevant to eyewitness perception and
eyewitness memory, including a general theory of perception and memory. Loftus would also
have testified about scientific evidence concerning circumstances under which memory fails and
the consequences of such memory failure for eyewitness testimony, effects of attention, effects
of duration, effects of alcohol, effects of stress, lineup procedures, the nature of suggestive post-
event information, and the circumstances under which the confidence with which a witness
recounts a memory can and cannot be appropriately used as an index of the memory’s accuracy.
¶ 25 The State filed a motion to dismiss McGhee’s postconviction petition, which the
court granted after a hearing. On appeal from the dismissal, McGhee asserted, inter alia, that his
trial counsel was ineffective for failing to present expert testimony on the reliability of
eyewitness identifications.
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¶ 26 We affirmed the circuit court’s dismissal. We concluded that it was not unreasonable
for defense counsel not to present expert testimony on the reliability of eyewitness
identifications. McGhee, 2012 IL App (1st) 093494, ¶ 55. In doing so, we stated that the current
law in Illinois was clear that “trial counsel had broad leeway in deciding whether to call a
particular witness or to pursue a given strategy” and “our supreme court has at least twice
previously considered and rejected arguments along these lines.” Id. ¶ 54 (citing People v. Enis,
139 Ill. 2d 264, 285-91 (1990) (direct appeal) and People v. Enis, 194 Ill. 2d 361, 391-93 (2000)
(appeal on postconviction)). We noted that the trend in Illinois was to preclude expert testimony
on the reliability of eyewitness identification because it invaded the province of the jury as the
trier of fact. Id. We also stated that “[w]e are unaware of, and [McGhee] has not offered, any
Illinois cases in which an attorney has been deemed ineffective for failing to offer, or a trial court
has been found to have abused its discretion for refusing to allow, expert testimony on this
subject.” Id. ¶ 55.
¶ 27 D. Successive Postconviction Petition
¶ 28 In 2018, McGhee filed the pro se motion for leave to file a successive postconviction
petition that is at issue here. He raised a claim of actual innocence based on the supreme court’s
decision in Lerma, 2016 IL 118496, regarding expert testimony on the reliability of eyewitness
identifications. In Lerma, the supreme court stated that since its previous decision in Enis, there
had been a “dramatic shift in the legal landscape, as expert testimony concerning the reliability
of eyewitness testimony has moved from novel and uncertain to settled and widely accepted” and
that the “research is well settled, well supported, and in appropriate cases a perfectly proper
subject for expert testimony.” Id. ¶ 24. McGhee asserted that the Lerma decision was considered
newly discovered evidence for his claim. He claimed that the State’s case depended on the
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reliability of eyewitness identifications, which was the only evidence against him. McGhee also
contended that trial counsel was ineffective for failing to present an expert witness on eyewitness
identifications. McGhee attached to his petition the same May 2009 affidavit from Loftus that he
had attached to his initial petition.
¶ 29 E. Circuit Court’s Order on
Motion for Leave to File Successive Post-Conviction Petition
¶ 30 The circuit court denied McGhee’s motion for leave to file a successive post-
conviction petition. In the court’s written order, it stated that “although McGhee labels his claim
actual innocence, it plainly cannot be” and “[h]e offers no newly discovered evidence.” The
court stated that Loftus’s affidavit was also attached to McGhee’s initial petition.
¶ 31 The court further stated that McGhee’s claim was subject to the cause-and-prejudice
test and did not relate to actual innocence, noting that his claim did not offer reliable evidence
showing that the State convicted the wrong person, but rather challenged the strength of the
evidence that was presented against him and stated his trial counsel was ineffective for failing to
retain expert testimony on eyewitness identifications. The court stated that the issue of whether
McGhee’s counsel was ineffective for failing to present expert testimony on eyewitness
identifications had already been raised and decided. The court concluded that Lerma did not
relax res judicata or provide cause for McGhee to bring a successive petition. The court also
found that Lerma did not apply retroactively on collateral review because it did not narrow the
scope of a criminal statute or place conduct or persons beyond the state’s power to punish. It
stated that the Lerma rule was that expert testimony on eyewitness identifications should be
permitted in “appropriate” cases and was a procedural rule, not a “watershed rule” implicating
the fundamental fairness and accuracy of a criminal proceeding.
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¶ 32 The court further noted that even if Lerma applied retroactively, McGhee could not
establish ineffective assistance of counsel for failure to present expert testimony on eyewitness
identifications. The court stated that McGhee’s conviction did not entirely rest on unreliable
identification testimony and Loftus’s affidavit only addressed Pruitt’s identification. The court
stated that given that Lerma was decided 14 years after McGhee’s trial, it was not objectively
unreasonable for counsel not to present expert testimony on eyewitness identifications. The court
found that McGhee could not establish prejudice because he could not show that counsel’s
performance was deficient or that the result of his trial could have been different.
¶ 33 McGhee now appeals from the court’s denial of his motion for leave to file a
successive postconviction petition.
¶ 34 II. ANALYSIS
¶ 35 On appeal, McGhee initially contends that the circuit court should have granted him
leave to file his pro se successive postconviction petition because Lerma, 2016 IL 118496, which
was decided after his initial postconviction petition proceedings concluded, provides cause for
asserting his claim that trial counsel was ineffective for not seeking an expert witness on the
reliability of eyewitness identifications. He asserts that the supreme court in Lerma stated that
“there has been a dramatic shift in the legal landscape, as expert testimony concerning the
reliability of eyewitness testimony has moved from novel and uncertain to settled and widely
accepted” and that the court acknowledged that “now there are widely accepted scientific
findings about the fallibility of eyewitness identification and the reasons behind such errors.” He
contends that prejudice exists because the case was based entirely on flawed eyewitness
identifications and expert testimony on eyewitness fallibility could have changed the outcome of
the trial.
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¶ 36 People v. Lerma, 2016 IL 118496¶ 37 We briefly summarize Lerma. There, the supreme court decided whether, in light of
the specific facts and circumstances of the case, the circuit court abused its discretion when it
denied the defendant’s motion to allow expert testimony regarding the reliability of eyewitness
identifications. Lerma, 2016 IL 118596, ¶ 2. The supreme court stated that the last time the court
had addressed the admission of eyewitness expert testimony was in People v. Enis, 139 Ill. 2d
264, 289 (1990), in which the court expressed caution and skepticism against the overuse of such
testimony, but that since Enis, there had been a “dramatic shift in the legal landscape, as expert
testimony concerning the reliability of eyewitness testimony has moved from novel and
uncertain to settled and widely accepted.” Id. ¶ 24. The supreme court stated that since that time,
“eyewitness identifications are not always as reliable as they appear, but we have also learned,
from a scientific standpoint, why this is often the case.” Id. It noted that “[w]hereas Enis allowed
for expressed caution toward the developing research concerning eyewitness identifications,
today we are able to recognize that such research is well settled, well supported, and in
appropriate cases a perfectly proper subject for expert testimony.” Id.
¶ 38 The supreme court further stated that Lerma was the type of case for which expert
eyewitness testimony was both relevant and appropriate. Id. ¶ 26. The court noted that the only
evidence of the defendant’s guilt was the eyewitness identifications of two witnesses, only one of
which was subject to adversarial testing and cross-examination at trial, and there was no physical
evidence tying the defendant to the offense. Id. The victim, Gill, and his friend, Clark, were
sitting on a porch when a shooter approached and opened fire, hitting Gill several times. Id. ¶ 5.
After Clark brought Gill inside, Gill said that the defendant was the shooter. Id. Gill died before
trial and his statement was admitted into evidence as an excited utterance. Id. ¶ 26. Clark
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identified the defendant the day after the shooting at the police station. Id. ¶ 6. Although Clark
testified she had seen the defendant across the street about 10 times before the shooting, she
testified she “did not know him” and the court noted she was unequivocal that she did not know
the defendant before the shooting. Id. ¶¶ 26, 31.
¶ 39 The court in Lerma found that under those facts expert eyewitness testimony would
be probative and admissible. Id. ¶ 26. The court stated that the circuit court abused its discretion
when it denied the defendant’s request to present testimony from an expert, noting that the court
did so for reasons that were expressly contradicted by the expert’s report and inconsistent with
the actual facts of the case. Id. ¶ 32. The court discussed certain factors that courts should
consider when determining the relevance of expert testimony on eyewitness identifications,
including the importance of the eyewitness identification to the State’s case, the presence or
absence of the factors identified by the expert as undermining the credibility of eyewitness
identifications, whether the witness was subject to adversarial testing and cross-examination at
trial, and the witnesses’ prior familiarity with the defendant. Id. ¶ 26. In People v. Brown, 2020
IL App (1st) 190828, ¶ 52, this court explained that Lerma “reaffirmed the long standing rule
that admission of expert testimony is within the trial court’s discretion and shall not be
overturned on review absent an abuse of discretion.”
¶ 40 Supplemental Briefing
¶ 41 After the parties completed their initial briefing, we granted McGhee’s motion to file
a supplemental brief based on People v. Martinez, 2021 IL App (1st) 190490, which was issued
after McGhee filed his reply brief. In Martinez, a division of this court rejected the State’s
argument there that Lerma did not apply retroactively for an actual innocence claim, noting that
the court must apply the rule prospectively and “evaluate how a trier of fact might assess new
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evidence now, not whether the court erred in the past,” and concluding that a report from Loftus
in that case was newly discovered evidence. Id. ¶¶ 111, 113. We allowed both parties to submit
supplemental briefs.
¶ 42 In McGhee’s supplemental brief, he contends he set forth a claim of actual innocence
in his petition. He contends that under Martinez, when Loftus’s report is considered in light of
Lerma, it is newly discovered evidence. He asserts that even though he had Loftus’s report in
2009 when he filed his initial petition, the significance of the report was unavailable to him until
the Lerma decision was issued in 2016. He argues that Loftus’s report is material because it
speaks directly to the issue of whether Pruitt’s identification is reliable and trustworthy and that
it is not cumulative to any evidence offered at trial. He argues that Loftus’s report casts doubt on
Pruitt’s eyewitness identification of him and would likely change the result at retrial. McGhee
claims that the report places the evidence in a different light and undermines the court’s
confidence in the judgment of guilt against him.
¶ 43 Post-Conviction Hearing Act
¶ 44 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.) (West 2018))
provides a method by which a defendant can assert that his conviction was the result of a
substantial denial of his constitutional rights. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The Act
is not a substitute for an appeal but is a collateral attack on a final judgment. People v. Jones,
2017 IL App (1st) 123371, ¶ 40. When a defendant has previously taken an appeal from a
judgment of conviction, as here, the judgment of the reviewing court will bar review under the
doctrine of res judicata of all issues actually decided by the reviewing court and any other claims
that could have been presented to the reviewing court will be deemed forfeited. People v.
McCoy, 2020 IL App (1st) 161199, ¶ 14. The Act provides that any claim of substantial denial of
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constitutional rights not raised in the original or amended petition is subject to the doctrines of
res judicata and forfeiture. Jones, 2017 IL App (1st) 123371, ¶ 41.
¶ 45 “The Act contemplates the filing of a single petition.” McCoy, 2020 IL App (1st)
161199, ¶ 15. Successive postconviction petitions under the Act are disfavored. People v.
Edwards, 2012 IL 111711, ¶ 29. However, there are two exceptions where “fundamental
fairness” compels that the bar against successive petitions be lifted. People v. Taliani, 2021 IL
125891, ¶ 55. The first exception for relaxing the bar is when a defendant can establish cause and
prejudice under section 122-1(f) of the Act (725 ILCS 5/122-1(f) (West 2018)) for failing to
raise the claim earlier. Edwards, 2012 IL 111711, ¶ 22. The second exception is when the
defendant asserts a fundamental miscarriage of justice based on actual innocence. People v.
Robinson, 2020 IL 123849, ¶ 42. A defendant seeking to file a successive postconviction
proceeding must first obtain leave of court. People v. Tidwell, 236 Ill. 2d 150, 157 (2010).
“[L]eave of court should be granted where the petitioner’s supporting documentation raises the
probability that it is more likely than not that no reasonable juror would have convicted the
petitioner in light of the new evidence.” Robinson, 2020 IL 123849, ¶ 44. A request to file a
successive petition based on actual innocence and cause and prejudice is reviewed under a higher
standard than that applicable to the first stage for an initial petition, which only requires that the
petition is not frivolous or patently without merit. Id. ¶ 43; People v. Smith, 2014 IL 115946, ¶
35. We review de novo the trial court’s decision to deny leave to file a successive petition,
accepting all well-pled facts and affidavits as true. People v. Johnson, 2020 IL App (1st) 171362,
¶ 10.
¶ 46 McGhee’s Actual Innocence Claim
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¶ 47 We first address McGhee’s assertion in his supplemental brief that his successive
postconviction petition makes a claim of actual innocence. “A freestanding actual innocence
claim raised in a successive postconviction petition is an extraordinary remedy.” Taliani, 2021
IL 125891, ¶ 67. Our supreme court has stated that an actual innocence claim “is a collateral
challenge of a conviction based on principles of fundamental fairness and borne out of our
constitutional obligation to afford a person who presents new evidence that persuasively
indicates that he or she is factually innocent with the additional process necessary to prevent a
fundamental miscarriage of justice.” Id.¶ 48 “Because a successive postconviction claim of actual innocence undermines the
finality of a conviction obtained after a fair trial, a postconviction petitioner seeking to file a
claim of actual innocence is held to a high standard.” Id. ¶ 68. To assert a claim based on actual
innocence, the supporting evidence must be newly discovered, material and not merely
cumulative, and of such conclusive character that it would probably change the result on retrial.
Edwards, 2012 IL 111711, ¶ 32. Newly discovered evidence means the evidence was discovered
after trial and could not have been discovered earlier through the exercise of due diligence.
Robinson, 2020 IL 123849, ¶ 47. “Material means the evidence is relevant and probative of the
petitioner’s innocence.” People v. Coleman, 2013 IL 113307, ¶ 96. Noncumulative means the
evidence adds to the information that the fact finder heard at trial. Robinson, 2020 IL 123849, ¶
47. Conclusive means the evidence, when considered along with the trial evidence, would
probably lead to a different result. Coleman, 2013 IL 113307, ¶ 96. “The conclusive character of
the new evidence is the most important element of an actual innocence claim.” Robinson, 2020
IL 123849, ¶ 47. The “new evidence must be of such a conclusive character that it persuasively
shows that the petitioner is factually innocent of the crimes for which he was convicted and that
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the evidence, if presented at trial, would exonerate the petitioner.” Taliani, 2021 IL 125891, ¶ 68.
In addition, our supreme court has stated that a “ ‘free standing’ claim of actual innocence is one
in which newly discovered evidence makes a persuasive showing that the petitioner did not
commit the charged offense and was, therefore, wrongfully convicted.” Id. ¶ 56.
¶ 49 Further, in People v. Hobley, our supreme court stated that “[a] ‘free-standing’ claim
of innocence means that the newly discovered evidence being relied upon ‘is not being used to
supplement an assertion of a constitutional violation with respect to [the] trial.’ ” 182 Ill. 2d 404,
443-44 (quoting People v. Washington, 171 Ill. 2d 475, 477-78 (1996)). Here, McGhee is
improperly using the same affidavit from Loftus to supplement his ineffective assistance of
counsel claim and support his actual innocence claim. See People v. Gonzalez, 2016 IL App (1st)
141660, ¶ 30 (the defendant could not use newly discovered evidence of a detective’s pattern and
practice of framing suspects by orchestrating false identification evidence to supplement his
assertation that the State committed a Brady violation and support his claim of actual innocence,
and his actual innocence claim failed).
¶ 50 We acknowledge that in People v. Martinez, 2021 IL App (1st) 190490, a division of
this court concluded that Hobley was “inconsistent with the Illinois Supreme Court’s more recent
pronouncements on actual innocence.” Id. ¶ 104. McGhee asserts we should follow the analysis
in Martinez. However, Martinez is distinguishable.
¶ 51 In Martinez, the court stated that our supreme court in People v. Coleman, 2013 IL
113307, explained that “a freestanding actual innocence claim contemplates that the claims be
independent, not that the actual innocence claim be independent of the evidence underlying his
other constitutional claim or trial error.” (Emphasis in original.) Id. ¶ 104. The court in Martinez
stated that Hobley effectively imposed a fifth requirement for an actual innocence claim: the
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evidence underlying the actual innocence claim could not be used to support any other
constitutional claim. Id. ¶ 105. The court concluded that “Hobley’s fifth requirement for raising
an actual innocence claim cannot be reconciled with our supreme court’s more recent
postconviction jurisprudence.” Id. ¶ 106. However, Martinez nevertheless concluded that even if
Hobley’s rule remained good law, Hobley did not preclude the McGhee’s claim because his
actual innocence claim relied on evidence in addition to the evidence underlying his due process
claim. Id. ¶ 106. Here, unlike Martinez, McGhee relies on the same Loftus affidavit to
supplement his ineffective assistance of counsel claim and support his actual innocence claim.
¶ 52 Moreover, in Martinez, the court stated: “Arguably, the Hobley rule may serve a
purpose where a defendant seeking leave to file a successive postconviction petition asserts
actual innocence to circumvent the cause-and-prejudice test that applies when determining
whether a defendant is entitled to leave to file a successive petition.” Id. ¶ 103. The court noted
that the defendant’s case and Hobley both took place at the second stage of proceedings. Id.
Here, McGhee’s case is at a different procedural posture, as we are reviewing the circuit court’s
order that denied him leave to file his successive postconviction petition. Martinez is
distinguishable and we are unpersuaded by McGhee’s reliance on it as it relates to Hobley and
his actual innocence claim.
¶ 53 Nevertheless, even if the Hobley rule did not apply, and even assuming that the
Loftus affidavit is noncumulative, newly discovered, and material evidence, McGhee’s actual
innocence claim would still fail. The Loftus affidavit and evidence contained therein is not of
such a conclusive character that Loftus’s testimony on the reliability of eyewitness
identifications, when considered along with the trial evidence, would probably lead to a different
result. See Robinson, 2020 IL 123849, ¶ 47 (“the conclusive character element refers to evidence
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No. 1-19-0594
that, when considered along with the trial evidence, would probably lead to a different result”
and “[t]he conclusive character of the new evidence is the most important element of an actual
innocence claim”).
¶ 54 Here, the Loftus affidavit addresses only Pruitt’s testimony, as Loftus stated in his
affidavit that he focused his “remarks on perception and memory primarily as they pertain to
[Pruitt].” McGhee asserts on appeal that the affidavit detailed “numerous factors that may have
affected the reliability of [Pruitt’s] identification” and the testimony from an expert on the
reliability and fallibility of eyewitness identifications would have a profound impact on the
weight assigned” to Pruitt’s identification and on the outcome of the trial. However, Pruitt was
not the only identification witness, nor was she the State’s key witness or strongest piece of
evidence against McGhee. Rather, the State presented evidence of another identification
witness—Hopson, who testified that he knew McGhee before the shooting and identified
McGhee as the shooter the afternoon after the shooting and at trial. Specifically, Hopson testified
that before the shooting, he had seen McGhee at “numerous places” around the Maywood area,
including “[r]iding, gas stations, anywhere, you know, just on the street.” He also recognized the
person in the front passenger seat as “Little Tony” and testified that he had previously seen him
with McGhee about two to three times at a barber shop in Maywood. Hopson also testified that
when the red car first drove past him, McGhee was “half hanging out the window” such that
most of his face was outside the window and he was looking in Hopson’s direction. He testified
McGhee was wearing all black and that McGhee’s hood did not cover his face. Hopson
identified McGhee in a photograph as the person who shot Thornton. See People v. Donahue,
2014 IL App (1st) 120163, ¶ 95 (concluding that 11 days between the offense and the initial
identification was a short time).
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No. 1-19-0594
¶ 55 Moreover, in addition to Hopson’s identification testimony, the State presented
evidence that linked McGhee’s car to the scene of the shooting and corroborated the witnesses’
testimony. Hopson testified that on the night of the shooting, McGhee was in a red Oldsmobile at
the gas station and that he had previously seen McGhee in the red Oldsmobile. Pruitt testified
that she saw a red car pull into the gas station before the shooting and both Hopson and Pruitt
identified photographs of the car they saw that night. Further, the State presented evidence that a
red Oldsmobile was recovered from McGhee’s home and was registered to McGhee and his
grandfather. Both Hopson and Pruitt were subject to adversarial testing and cross-examination.
¶ 56 In addition, as previously discussed, for an actual innocence claim, our supreme court
has stated that the “new evidence must be of such a conclusive character that it persuasively
shows that the petitioner is factually innocent of the crimes for which he was convicted and that
the evidence, if presented at trial, would exonerate the petitioner.” Taliani, 2021 IL 125891, ¶ 68.
It is well-established that “to set forth a colorable claim of actual innocence in a successive
postconviction petition, the petitioner must produce newly discovered evidence that, when
considered along with all the evidence presented at trial, would probably lead to a different result
on retrial.” (Emphasis in original.) Id. ¶ 59. In Brown, 2020 IL App (1st) 190828, ¶¶ 70-71, an
appeal from the third stage of proceedings, the court concluded after considering all the evidence
that the defendant did not establish his actual innocence claim, noting that the expert testimony
on eyewitness identification served to impeach and undermine the credibility of the State’s
witnesses, but did not exonerate the defendant by affirmatively demonstrating that he was not the
shooter. Here, after considering the evidence as a whole, we find that although the Loftus
affidavit attempts to undermine Pruitt’s credibility, it does not exonerate McGhee by
demonstrating that he was not the shooter.
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No. 1-19-0594
¶ 57 We disagree with McGhee’s assertion that the facts of Martinez, 2021 IL App (1st)
190490, are similar to this case. In Martinez, the trial court found that the strongest piece of
evidence against the defendant was the identification of the State’s eyewitness, Parker. Id. ¶ 116.
At trial, Parker provided certain details that conflicted with her written statement “or was
otherwise unable to recall details” and in those instances she repeated that her memory was
better at the time she made her statement. Id. ¶¶ 17, 20-21. In her written statement, she had
explicitly identified the defendant as the person who punched the victim during the offense, but
testified at trial that she did not remember telling the police that. Id. In the defendant’s successive
postconviction petition, he presented newly discovered evidence that Parker’s written statement
was false and that Detective Guevara, the detective to whom Parker gave her written statement,
had engaged in misconduct in the case. Id. ¶¶ 49, 69, 73-74, 82. Further, the defendant gave an
uncorroborated written statement after the offense, which he disavowed at trial, and he testified
that before he gave his statement, Guevara and another detective had aggressively questioned
and yelled at him, and he had been in a windowless room for two days without sufficient food or
drink. Id. ¶¶ 32-36, 83-84. Defendant asserted that his due process rights were violated when
Guevara steered witnesses to identify him and, with the assistance of another detective, engaged
in trickery to get him to sign a statement. Id. ¶ 60. The court found that the defendant made a
substantial showing that his conviction rested on false evidence procured by police misconduct.
Id. ¶ 85. With respect to the defendant’s actual innocence claim, he relied on a report from
Loftus regarding the reliability of eyewitness identification. Id. ¶ 106. The court found that the
defendant made a substantial showing of actual innocence, noting that Parker was the strongest
piece of evidence, which the trial court gave more weight than the defendant’s written statement.
Id. ¶ 116. Also, Loftus’s testimony would undermine Parker’s potential ability to see the scene of
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No. 1-19-0594
the attack and Parker’s inability to see the defendant commit the offense would strengthen her
recent assertion that her pretrial statement was false. Id. ¶ 116.
¶ 58 Here, unlike Martinez, there is no evidence of police misconduct, that Pruitt’s pretrial
statement regarding her identification was coerced or that she recanted it, or that her pretrial
statement conflicted with her trial testimony. Further, unlike the witness in Martinez, Pruitt was
not the State’s strongest piece of evidence. As previously discussed, the State presented evidence
of another eyewitness, Hopson, who testified he knew McGhee before the offense and identified
him after the shooting and at trial. Further, in Martinez, the court noted that the defendant’s
actual innocence claim “relies on evidence in addition to that underlying his claims based on
police misconduct and Brady. Specifically, defendant relies on the report of Dr. Loftus.” Id. ¶
106. Here, the only evidence supporting McGhee’s actual innocence claim is the Loftus affidavit.
Accordingly, Martinez is distinguishable.
¶ 59 Further, we disagree with McGhee’s assertion that because the jury requested a copy
of Pruitt’s testimony to review during deliberations and not Hopson’s, the jury placed a greater
weight on Pruitt’s identification and relied primarily on her testimony to convict him. We will
not attempt to speculate with the reasoning behind a jury’s question during deliberations. See
People v. Spears, 112 Ill. 2d 396, 409 (1986) (the court will not “attempt to metaphysically
divine a jury’s collective intent from a single question that may well have only embodied the
curiosity or concern of a single juror.”); People v. Peoples, 2015 IL App (1st) 121717, ¶ 106
(“We may not guess as to why a jury did what it did, no matter how obvious it may seem to
us.”).
¶ 60 Overall, considering the Loftus affidavit regarding the reliability of Pruitt’s
eyewitness identification, along with the trial evidence, the affidavit is not so conclusive that it
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No. 1-19-0594
would probably lead to a different result on retrial. See Taliani, 2021 IL 125891, ¶ 59 (“to set
forth a colorable claim of actual innocence in a successive postconviction petition, the petitioner
must produce newly discovered evidence that, when considered along with all the evidence
presented at trial, would probably lead to a different result on retrial”).
¶ 61 Cause and Prejudice
¶ 62 We next consider McGhee’s contention that his successive postconviction petition
satisfied the cause and prejudice test for his ineffective assistance of counsel claim. Under the
Act, to establish cause and prejudice, the petitioner must identify “an objective factor that
impeded his or her ability to raise a specific claim during his or her initial post-conviction
proceedings.” 725 ILCS 5/122-1(f)(1) (West 2018). To establish prejudice, a petitioner must
demonstrate that the claim not raised during his or her initial postconviction proceedings so
infected the trial that the resulting conviction or sentence violated due process. 725 ILCS 5/122-
1(f)(2) (West 2018). “The cause-and-prejudice test establishes a more onerous standard than that
at the first pleading stage.” Johnson, 2020 IL App (1st) 171362, ¶ 11. “It is the defendant’s
burden to demonstrate both cause and prejudice for each claim raised in his successive petition.”
People v. Thompson, 383 Ill. App. 3d 924, 929 (2008).
¶ 63 Here, even assuming that McGhee established cause, he did not adequately allege
prejudice. McGhee’s underlying claim is that trial counsel was ineffective for failing to call an
expert on the reliability of eyewitness identifications. To establish a claim of ineffective
assistance of counsel, a defendant must satisfy a two-prong test set forth in Strickland v.
Washington, 466 U.S. 668, 687, 694 (1984). A defendant must demonstrate that 1) trial counsel’s
representation fell below an objective standard of reasonableness and 2) there exists a reasonable
probability that, but for counsel’s errors, the result of the trial would have been different. Id.24
No. 1-19-0594
¶ 64 Here, McGhee cannot show that there is a reasonable probability that the result of the
proceeding would have been different had counsel called Loftus to testify about the reliability of
Pruitt’s identification testimony. He cannot establish prejudice for the same reasons, discussed
above, that he could not establish that the new evidence of the Loftus affidavit was so conclusive
that it would probably lead to a different the result on retrial. Therefore, McGhee has not
demonstrated that he suffered prejudice from defense counsel’s failure to call an expert witness
on the reliability of eyewitness identification. McGhee’s ineffective assistance of counsel claim
fails and he has not satisfied the prejudice part of the cause-and-prejudice test for his successive
postconviction petition.
¶ 65 McGhee has failed to set forth an actual innocence claim and has failed to meet the
cause-and-prejudice test for his ineffective assistance of counsel claim. Because leave of court to
file a successive petition should be denied when it is clear that the claims alleged by the
defendant fail as a matter of law, we affirm the circuit court’s denial of McGhee’s request for
leave to file a successive postconviction petition. See Smith, 2014 IL 115946, ¶ 35.
¶ 66 III. CONCLUSION
¶ 67 For the foregoing reasons, we affirm the judgment of the circuit court of Cook
County.
¶ 68 Affirmed.
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