People v. Sherrod , 2024 IL App (1st) 220642-U ( 2024 )

2024 IL App (1st) 220642-UNo. 1-22-0642
FIRST DIVISION
March 11, 2024
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 Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 93 CR 7752
)
JOE SHERROD, )
) The Honorable
Defendant-Appellant. ) Angela Munari Petrone,
) Judge Presiding.
______________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Lavin concurred in the judgment.
ORDER
¶1 Held: The circuit court complied with our mandate when it allowed the parties to conduct
a stipulated hearing. The circuit court did not err when it denied the defendant’s petition
for postconviction relief following a third-stage hearing.
¶2 Defendant, Joe Sherrod, appeals the dismissal of his successive postconviction petition
following a third-stage evidentiary hearing. He argues that the circuit court failed to comply with
our order reversing and remanding the case for a new third-stage evidentiary hearing by
permitting the parties to stipulate at the remanded hearing to the testimony elicited at the initial
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third-stage evidentiary hearing. Additionally, he argues that Delbert Heard and Claude McGee’s
eyewitness testimony is so conclusive that it would probably change the result on retrial. We
affirm.
¶3 BACKGROUND
¶4 A jury convicted Sherrod of first degree murder for the murder of Rodriguez Myles. The
circuit court sentenced him to a term of natural life. On direct appeal, we affirmed Sherrod’s
conviction and sentence. People v. Sherrod, No. 1-95-1534 (1997) (unpublished order under
Supreme Court Rule 23). We also affirmed the summary dismissal of his two subsequent pro se
postconviction petitions. People v. Sherrod, Nos. 1-96-3525, 1-97-3194 (consolidated)
(unpublished order under Supreme Court Rule 23). We included only those facts that are
pertinent to the resolution of the instant appeal.
¶5 A. Trial Evidence
¶6 At trial, Marci Ross testified that in the evening on March 5, 1993, Myles visited her at
apartment 104 at 2900 South State Street, Chicago, Illinois. Her boyfriend, Joseph Lane, had
previously lived with her, but did not have keys at the time. Myles slept in Ross’s apartment until
7:30 a.m., when someone knocked on the door. Myles asked who was at the door, and they
answered “Joe.” Myles opened the door slightly, and he peaked through the narrow opening.
Ross then heard four gunshots and Myles fell to the floor, mortally wounded. Shortly after, a
bullet was fired through her kitchen window from outside of the building.
¶7 Jermaine Young testified that he had two felony drug convictions. He stated that he sold
drugs for Sherrod from apartment 102 at 2900 South State Street. Sherrod also paid the rent for
Young’s apartment. Young acknowledged that Sherrod informed him that Myles also sold drugs
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for Sherrod. Both Young and Myles were members of the Mickey Cobra street gang. Young
stated that he occasionally sold drugs to Carol Scott and Denise Watson.
¶8 Young testified that he heard gunshots in the hallway on the morning of March 6, 1993.
He then heard three more shots coming from outside the building. He looked out his window and
saw Sherrod walk away from the building and drive off in his car. Young testified that Sherrod
returned to the apartment building approximately four hours after the shooting. Sherrod told
Young that, “[y]ou know in your heart that the brothers think I did this.” Sherrod advised Young
to ask for an attorney if Young was arrested. Sherrod threatened to kill Young if he went to jail
for something he did not do. On cross-examination, Young stated that Sherrod never admitted
that he killed Myles.
¶9 Scott and Watson testified that they were in apartment 204 of the 2900 South State Street
apartment building at 7:30 a.m. on March 6, 1993, when they heard gunshots. Both women
looked out the window and saw Sherrod shooting into the window of the apartment below their
apartment. Scott testified that she knew Sherrod for approximately 25 years. Both women
testified that they saw Sherrod pocket the gun and walk away smiling.
¶ 10 Sherrod came to their apartment the following day and asked the women about the
shooting. The women told him that someone named “Joe” was a suspect in the shooting. Sherrod
denied any involvement. Watson told Sherrod that they had seen him shooting in the courtyard.
Sherrod smiled and replied, “y’all seen me, huh?” They informed Sherrod that they told Young
that they witnessed Sherrod shooting into the building. Sherrod became upset because he
believed that Young would “break.” Scott testified that Sherrod told them not to tell anyone else,
and Watson testified that Sherrod threatened to kill anyone who “point[ed] the finger at him.”
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¶ 11 After Sherrod left the apartment, the women decided to walk to the next building to use a
telephone. They intended to walk to a police station, but they reconsidered when they saw
Sherrod outside. Instead, they asked Sherrod to drive them to Watson’s house “to keep him from
thinking that [they were] going to tell.” Sherrod drove them to Watson’s house. Scott testified
that while they were in Sherrod’s car, he told them that “he tried to get the [Mickey Cobra street
gang] to think that Folks done it on the other end.” Both women testified that Sherrod told them
that if he was arrested, he would “bond out” and kill anyone who “pointed the finger [at him].”
After Sherrod dropped them off and then drove away, the two women walked to a nearby police
station and reported what they witnessed.
¶ 12 After Sherrod’s arrest, he was placed in a lineup and identified as the shooter by Scott,
Watson, and Young.
¶ 13 Ernest Warner, a firearms examiner for the Chicago Police Department, testified that the
five bullet casings recovered from inside the building hallway and the five bullet casings
recovered from outside the building were all fired from the same weapon. Further, each of the
four bullets recovered were fired from the same barrel.
¶ 14 The jury found Sherrod guilty of first degree murder. The circuit court sentenced him to a
term of natural life. On direct appeal, we affirmed Sherrod’s conviction and sentence. Sherrod,
No. 1-95-1534 (1997) (unpublished order under Supreme Court Rule 23). We also affirmed the
summary dismissal of his two subsequent pro se postconviction petitions. People v. Sherrod,
Nos. 1-96-3525, 1-97-3194 (consolidated) (unpublished order under Supreme Court Rule 23).
¶ 15 B. Postconviction Proceedings
¶ 16 In 2002, Sherrod filed a pro se successive postconviction petition wherein he asserted a
claim of actual innocence. Sherrod attached the affidavits of Brian Lacey and Carrie Williams,
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who were unavailable at trial. The circuit court appointed postconviction counsel to represent
Sherrod. Sherrod then requested leave to file an amended petition pro se to address timeliness
issues. The State filed a motion to dismiss his successive petition arguing that it was untimely,
and that the allegations lacked merit.
¶ 17 In 2004, Sherrod filed a second amended pro se petition wherein he alleged additional
newly discovered evidence of actual innocence in the form of an affidavit from Marvin Grant.
The State filed a second motion to dismiss. The circuit court granted the State’s motion to
dismiss. Sherrod appealed.
¶ 18 In 2010, while Sherrod’s appeal was pending, he requested leave to file a second
successive postconviction petition where he alleged a claim of actual innocence based on newly
discovered evidence in the form of the affidavits from McGee and Heard. The circuit court
denied Sherrod leave to file a second successive postconviction petition. Sherrod filed a notice of
appeal.
¶ 19 As for Sherrod’s appeal from the circuit court’s judgment granting the State’s motion to
dismiss his previous successive petition, we reversed the dismissal and remanded the cause for
third-stage proceedings. People v. Sherrod, 2011 IL App (1st) 090590-U. On remand, Sherrod’s
postconviction counsel filed a motion to amend the witness list for the evidentiary hearing. In the
motion, Sherrod argued that the addition of Heard and McGee would be in the best interest of
judicial economy and expediency. The circuit court granted his motion with no objection from
the State. We subsequently granted Sherrod’s own motion to dismiss his appeal from the circuit
court’s judgment denying him leave to file a second successive postconviction petition.
¶ 20 In 2015, at the evidentiary hearing, Sherrod did not present the testimony of Lacey,
Williams, or Grant. Rather, Sherrod presented the testimony of Heard and McGee.
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¶ 21 Heard testified that he witnessed a shooting in the building located at 2900 South State
Street. The shooting took place between approximately 7:30 a.m. and 8:30 a.m. in early March of
1993. Heard testified that he walked into the building and “there was a guy shooting into the
apartment.” He did not speak to anyone at the building before the shooting occurred. He did not
remember the apartment number. The shooter was approximately 30 to 40 feet in front of him.
Heard did not recognize the shooter. The shooter wore all red including a red baseball cap. The
shooter was approximately six feet tall, and he wore his hair in braids. Heard observed the
shooter for no more than a few seconds before he ran to his truck. Heard testified that did not
know whether anyone else was inside the building besides the shooter.
¶ 22 Heard further testified that later that day the police stopped him in a McDonald’s parking
lot. The police questioned him about the shooting. Approximately a day or so later, the police
contacted Heard to view a lineup. Heard did not identify the shooter in the lineup. Heard
testified that he did not recall whether Sherrod was in the lineup.
¶ 23 On cross-examination, Heard testified that he first met Sherrod in prison. Heard was
serving a life sentence and his incarceration began in approximately 2008. Heard admitted that
he lived far from the location of the shooting. However, he claimed he went to the building to
drive a “Miss Harris” to the grocery store as a favor for his friend Darryl Johnson. Although,
Heard testified that he previously drove Miss Harris to the grocery store on other occasions, he
could not remember the name of the grocery store and claimed to not know Miss Harris’s first
name. Heard testified that the lineup took place at “51st and Wentworth.” Heard admitted that he
was out on bond for attempted murder at the time.
¶ 24 Heard stated that he overheard Sherrod discussing his case in the prison law library, and
he told Sherrod that “I think I was there that day.” Heard admitted that he was uncertain whether
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he witnessed the crime for which Sherrod was convicted. Heard testified that Sherrod typed his
affidavit, and that “[Sherrod] clarified a few things in it that [Heard] was vague about.” Heard
and McGee may have been housed together in prison. Heard knew McGee. Heard did not
remember whether he saw McGee at the shooting.
¶ 25 On redirect, Heard testified that the shooter was not Sherrod. When asked whether he
filled out the affidavit, he responded: “It was my content, but he helped me [with] a few things I
was vague on. You know, specifics. Did I get these from a (Unintelligible.) Where the police
station was and stuff like that. We came to an agreement on certain things, but it was basically
my content.”
¶ 26 On recross-examination, Heard testified that the police officers that interviewed him took
notes of their conversation. After he viewed the lineup, no one contacted him about the shooting.
Heard doubted that he could identify the shooter at the time of the hearing which was
approximately twenty-two years after the incident.
¶ 27 McGee testified that, on a Saturday in early March 1993, at approximately 7:30 a.m., he
was standing outside of the 2900 South State Street building with a group of guys. Prince Joe
approached the group and asked whether anyone had seen Reno. McGee stated that he knew of
Reno who was a Mickey Cobra. Prince Joe then walked into the building and knocked on the
door of apartment 104. McGee was maybe two car lengths away when Prince Joe knocked on the
door. Someone opened the door, and Prince Joe removed a gun from his waistband. McGee did
not see the gun, but he heard the shots. Prince Joe fired four to five shots. After McGee heard the
shots, he ran away. McGee did not know Sherrod at that time, and he did not see him that
morning. McGee testified that he wrote the initial affidavit, but since there were a lot of
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“mistakes,” Sherrod typed it out for him. McGee stated that he was certain that Sherrod was not
the shooter.
¶ 28 On cross-examination, McGee acknowledged that he did not live near the 2900 South
State Street Building, but he claimed that he hung out in the area since his sister went to high
school nearby. McGee stated that he was a member of the “Bad Boys” faction of the Mickey
Cobras. He described Prince Joe as approximately six feet tall, about 230 pounds, and wearing
braids. Prince Joe wore a red jacket, red shoes, and red pants but no hat. McGee learned that
someone died during the shooting he witnessed about a week later, but he did not inform the
police. McGee did not know Prince Joe’s real name. In his affidavit, he claimed to have
specialized knowledge of the Mickey Cobra street gang hierarchy and membership, and he knew
an individual named “Prince Joe” who was the highest-ranking member of the gang.
¶ 29 McGee testified that he first met Sherrod in approximately 2002 at Menard Correctional
Center (Menard). He was moved to Pontiac Correctional Center in approximately November
2004. Sherrod approached McGee at Menard, and asked McGee about the shooting. McGee did
not want to get involved at the time because he was concerned the Mickey Cobras would harm
his family. McGee claimed that he did not remember being interviewed by assistant state’s
attorney Darren O’Brien and investigator Daniel Branigan in 2013. He claimed he did not
remember the interview because he was on medication at the time. McGee claimed that he and
Sherrod were not close associates. McGee stated that he knew Heard and Lacey.
¶ 30 The State then presented the testimony of Marci Ross, Jospeh Lane, and Daniel Branigan.
¶ 31 Ross testified that she lived at 2900 South State Street in March 1993. At that time, she
was dating Lane who was not a member of a street gang, nor was he involved with the Mickey
Cobras. On March 6, 1993, at approximately 7:30 a.m., someone knocked on the door of her
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apartment. Myles, her friend who stayed over her apartment the night before, answered the door.
Ross heard the individual outside the front door say “Joe.” Ross did not think it was her
boyfriend Lane since he typically came at night after work, and normally called her before he
did.
¶ 32 Ross testified that Myles attempted to close the door, and a struggle ensued with the
individual on the other side of the door. Ross then heard about four to five gunshots. Myles tried
to hold onto to something before falling over. Ross sat still for a few minutes. Then, another
bullet came through her kitchen window. She waited another five to ten minutes before she left
her apartment and went to a neighbor’s apartment where she called the police. Ross did not know
an individual named Prince Joe. She did not know of any other Joes in her building that were
approximately six feet tall and weighed 230 pounds. To her knowledge, Myles did not hang out
with any other Joes.
¶ 33 On cross-examination, Ross clarified that she lived at 2900 South State Street in
apartment 104. She first met Lane in 1991 or 1992. He lived with his mother. Ross did not see
the shooter. The police asked Ross if she knew a Joe, and she initially told them that she did not.
¶ 34 On redirect examination, Ross acknowledged that she did not review her trial testimony
prior to the hearing. Ross testified that she did not initially mention Lane to the police because he
did not immediately come to mind. Lane was not a violent person, nor would he come to her
apartment without first asking her. She clarified that there were gang wars, and frequent
shootings. She would tell Lane whether it was safe for him to visit. On recross-examination, she
stated that it was not Lane’s voice on the other side of her front door.
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¶ 35 Lane testified that, from 1995 to 1999, he worked in the military. He married Ross in
1999, but they later divorced. At the time of the hearing, Lane worked out of state for a major
airline.
¶ 36 In March 1993, Lane worked two jobs and he attended school. He dated Ross who lived
at 2900 South State Street. On March 6, 1993, after the shooting, the police questioned Lane at
the police station. He went home later that night, and he did not have any further participation in
the case. He was never a member of any street gang. Lane testified that he was approximately
five feet five inches tall, and he weighed approximately 165 pounds. He did not associate with
anyone else at Ross’s building other than Ross.
¶ 37 Brannigan, an investigator for the Cook County State’s Attorney’s Office, testified that
he reviewed the police reports related to the shooting. He also reviewed Heard’s affidavit
submitted in this case. In the police reports, he did not find any mention of the substance of
Heard’s claim that the police questioned him and contacted him for a lineup. Brannigan and
assistant state’s attorney O’Brien interviewed Heard on March 29, 2013. During the interview,
Heard said that he could not identify the shooter since he only saw the shooter for a brief second.
¶ 38 Brannigan and O’Brien also interviewed McGee on April 5, 2013. McGee said that he
was not under the influence of any drugs during the interview. Brannigan agreed that McGee did
not appear impaired in any way during the interview. McGee stated that he knew Prince Joe.
Prince Joe approached Heard with a crazy look in his eyes and, without saying anything, started
shooting. McGee did not state that Prince Joe asked for someone named Reno prior to shooting.
McGee denied knowing anyone named Reno, but he stated that the name was somewhat familiar.
McGee recalled hearing only one gunshot before he ran. McGee claimed the shooting took place
at approximately 6:00 or 7:00 p.m. He did not know how many times Prince Joe fired the gun.
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McGee claimed that he was a Mickey Cobra unaffiliated with Sherrod. McGee stated that he
became acquainted with Sherrod at the Muslim Chapel in prison. After they became acquainted,
McGee decided to inform Sherrod that he witnessed the shooting.
¶ 39 Following the third-stage evidentiary hearing, the circuit court dismissed Sherrod’s
successive petition for postconviction relief. Sherrod appealed. On appeal, we determined that
the circuit court applied the wrong standard to Sherrod’s actual innocence claim. People v.
Sherrod, 2018 IL App (1st) 160723-U. Specifically, we stated “we reverse the judgment of the
circuit court of Cook County and remand the cause for a new third-stage evidentiary hearing to
be conducted under the appropriate standard for ultimate relief on an actual innocence claim.” Id.
¶ 40.
¶ 40 On remand, Sherrod’s postconviction counsel informed the court that Sherrod wanted to
proceed by stipulation. Specifically, postconviction counsel stated: “I have spoken to Mr.
Sherrod, and he tells me that he does not want to redo the evidentiary hearing, he wants to
basically stipulate to the evidence that was proffered at the original evidentiary hearing, and then
just, we’ll have new arguments.” The State agreed to proceed by stipulation.
¶ 41 At the remanded third-stage hearing, the parties stipulated to the testimony presented at
the prior third-stage hearing. The parties then made closing arguments. The circuit court found
that Heard and McGee’s testimony was not of such conclusive character that it would probably
change the outcome on retrial. The circuit court determined that Heard and McGee lacked
credibility based on their criminal convictions, Sherrod drafting their affidavits which tainted the
reliability of the affidavits, and their willingness to remain silent until after becoming acquainted
with Sherrod in prison. The circuit court stated that their testimonies were severely impeached
and contradicted by physical evidence and the testimonies of credible eyewitnesses. Further, the
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court found that Sherrod’s actions, threats, and statements showed consciousness of guilt, and
lent credibility to Scott, Watson, and Young’s identification of him. The circuit court denied
Sherrod’s petition for postconviction relief.
¶ 42 Sherrod appeals.
¶ 43 ANALYSIS
¶ 44 A. Invited Error
¶ 45 On appeal, Sherrod first argues that the circuit court failed to comply with our order
reversing and remanding the case for a new third-stage evidentiary hearing by permitting the
parties to stipulate at the remanded hearing to the testimony elicited at the initial third-stage
evidentiary hearing. See People v. Sherrod, 2018 IL App (1st) 160723-U. The State responds
that the circuit court complied with our order since it conducted a new third-stage hearing, and
that Sherrod should be estopped from raising this alleged error since he requested to proceed by
stipulation.
¶ 46 It is well established that “an accused may not request to proceed in one manner and then
later contend on appeal that the course of action was in error.” People v. Carter, 208 Ill. 2d 309,
319 (2003). To allow otherwise would offend all notions of fair play, and encourage duplicity.
People v. Harvey, 211 Ill. 2d 368, 385 (2004). “[A] defendant’s invitation or agreement to the
procedure later challenged on appeal ‘goes beyond mere waiver.’ ” Harvey, 211 Ill. 2d at 385(2004) (quoting People v. Villarreal, 198 Ill. 2d 209, 227 (2001)). Invited error creates an
estoppel that precludes plain-error analysis. People v. Holloway, 2019 IL App (2d) 170551, ¶ 55.
¶ 47 Sherrod does not dispute that he requested that the parties stipulate to the testimony heard
at the prior third-stage hearing. However, he asserts that the circuit court’s error rendered the
judgment void.
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¶ 48 A void judgment can be attacked at any time. People v. Flowers, 208 Ill. 2d 291, 308
(2003). Thus, a void judgment is excluded from the invited-error doctrine. People v. Smith, 406
Ill. App. 3d 879, 887 (1st Dist. 2010). Only the lack of jurisdiction renders a judgment void.
People v. Raczkowski, 359 Ill. App. 3d 494, 497 (1st Dist. 2005). Since “[i]t is well recognized
that ‘a reviewing court’s mandate vests a [circuit] court with jurisdiction only to take action that
complies with the reviewing court’s mandate’ ” (Fleming v. Moswin, 2012 IL App (1st) 103475-
B, ¶ 28 (quoting People v. Winters, 349 Ill. App. 3d 747, 749 (1st Dist. 2004)), we must
determine whether the circuit court complied with our order when it allowed the parties to
stipulate at the remanded hearing to the testimony elicited at the initial third-stage evidentiary
hearing.
¶ 49 “After a remand, the [circuit] court is required to exercise its discretion within the bounds
of the remand.” Clemons v. Mechanical Devices Co., 202 Ill. 2d 344, 351 (2002). “After a
judgment is reversed and the cause remanded, the [circuit] court can hold only such further
proceedings as conform to the judgment of the appellate [court].” Id. at 352-53. Additionally, a
reviewing court is not required to state specific directions in an order reversing a judgment and
remanding a cause. Id. at 353. Rather, it is the duty of the circuit court to examine the reviewing
court’s order, and to proceed in conformity with the views expressed in it. Id. We review de novo
whether the circuit court complied with our order. Id. at 351-52.
¶ 50 Sherrod argues that our order makes clear that the remanded hearing required live
testimony. He notes that a portion of our order concerned the circuit court’s flawed credibility
determinations. See Sherrod, 2018 IL App (1st) 160723-U, ¶ 37-38. He then argues that the new
evidentiary hearing required live testimony to make appropriate credibility determinations since
a witness’s conduct and demeanor play a role in determining their credibility, and that those
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determinations cannot be made from a cold record. Citing People v. Delton, 227 Ill. 2d 322, 332
(2008). Additionally, Sherrod argues that if we wanted a review of the transcripts with the
appropriate standard applied, we would have reviewed the record ourselves and corrected the
errors on his prior appeal. Citing People v. Radojcic, 2013 IL 114197, ¶ 34 (trial court does not
occupy a position superior to reviewing courts in evaluating evidence that is not live testimony).
The State responds that our mandate did not prohibit the parties from stipulating to the prior
testimony, and that the only specific direction provided was to apply the correct standard.
¶ 51 Our prior order stated that we “remand the cause for a new third-stage evidentiary
hearing to be conducted under the appropriate standard for ultimate relief on an actual innocence
claim.” Sherrod, 2018 IL App (1st) 160723-U, ¶ 40. Our supreme court noted that although the
words “evidentiary hearing” do not appear in the Act, the third-stage hearing has come to be
called an “evidentiary hearing.” Johnson, 206 Ill. 2d at 357-58. They then concluded that a third-
stage hearing does not require live testimony. Id. at 358. A third-stage hearing does not require
live testimony because section 122-6 of the Act—which governs third-stage hearings—states
that “[t]he [circuit] court may receive proof by affidavits, depositions, oral testimony, or other
evidence.” (Emphasis added.) 725 ILCS 5/122-6 (West 2016). Further, we note that it is common
practice for a judge to make credibility determinations based on transcripts of testimony from a
prior hearing (Smith v. Freeman, 232 Ill. 2d 218, 230 (2009)), since factors other than a witness’s
demeanor and conduct factor into the decision whether to believe a witness (Anderson v. City of
Bessemer City, N.C., 470 U.S. 564, 575 (1985) (other objective evidence may contradict a
witness’s story or the story may be internally inconsistent)). Thus, since our prior order did not
explicitly require live testimony, but only required a new third-stage hearing, the parties were
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allowed to conduct the new hearing as they saw fit, and the circuit court complied with our order
by allowing the parties to do so.
¶ 52 Since we determined that the circuit court’s order was not void for lack of jurisdiction,
we may consider the merits of Sherrod’s appeal. People v. Flowers. 208 Ill. 2d 291, 307 (2003).
¶ 53 B. Actual Innocence
¶ 54 Sherrod next argues that Heard and McGee’s eyewitness testimony is so conclusive that
it would probably change the result on retrial. He claims that the State did not present any
eyewitness testimony or physical evidence tying him to the shooting at trial. The State responds
that Sherrod’s argument ignores the eyewitnesses that identified him shooting into the apartment
from outside, and the ballistics evidence that established that the same weapon was used for both
the shooting inside the apartment building and outside the apartment building.
¶ 55 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides
a three-stage process by which criminal defendants may assert that a substantial denial of their
constitutional rights resulted in their conviction. People v. Hodges, 234 Ill. 2d 1, 9 (2009). If, at
the second stage, the petition makes a substantial showing of a constitutional violation, the
matter proceeds to a third-stage hearing on the merits of petitioner’s claims. People v. Johnson,
206 Ill. 2d 348, 357 (2002). The Act contemplates the filing of a single petition since any claim
not raised in the original or amended petition is waived. 725 ILCS 5/122-3 (West 2018).
However, a petitioner’s failure to raise a claim in an earlier petition will be excused if they set
forth a claim of actual innocence. People v. Ortiz, 235 Ill. 2d 319, 329-30 (2009).
¶ 56 “To succeed on a claim of actual innocence, the defendant must present new, material,
noncumulative evidence that is so conclusive it would probably change the result on retrial.”
People v. Coleman, 2013 IL 113307, ¶ 96. “[T]he conclusive character element refers to
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evidence that, when consider along with the trial evidence, would probably lead to a different
result.” People v. Robinson, 2020 IL 123849, ¶ 47. The question is whether the evidence places
the evidence presented at trial in a different light and undercuts the court’s confidence in the
initial verdict. Coleman, 2013 IL 113307, ¶ 97. The evidence need not be entirely dispositive. Id.“Probability, rather than certainty, is the key in considering whether the fact finder would reach a
different result after considering the prior evidence along with the new evidence. Robinson, 2020
IL 123849, ¶ 48. At a third-stage hearing, the defendant bears the burden of showing a
deprivation of his constitutional rights by a preponderance of the evidence. Coleman, 2013 IL
113307, ¶ 92.
¶ 57 After a third-stage hearing where fact-finding and credibility determinations are involved,
the circuit court’s decision will not be reversed unless it is manifestly erroneous. People v.
English, 2013 IL 112890, ¶ 23. “[A] decision is manifestly erroneous when the opposite
conclusion is clearly evident.” Coleman, 2013 IL 113307, ¶ 98 (quoting People v Morgan, 212
Ill. 2d 148, 155 (2004). However, we apply a de novo standard of review if no such
determinations are necessary at the third stage, i.e., no new evidence is presented, and the issues
presented are pure questions of law. (Emphasis added). Id. In this case, we review the circuit
court’s decision for manifest error since the court reviewed new evidence in the form of
stipulated testimony. See People v. Brown, 2013 IL App (1st) 091009, ¶¶ 35, 53.
¶ 58 We agree with the circuit court that Heard and McGee lacked credibility. Heard admitted
that he was uncertain about whether he witnessed the crime for which Sherrod was convicted. He
stated that he initially told Sherrod that he was uncertain whether he witnessed the shooting.
Additionally, Heard informed Brannigan that he could not identify the shooter since he only saw
the shooter for a brief second. Yet, he testified that Sherrod—someone he did not meet until
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approximately 15 years after the shooting—was not the shooter. Moreover, Brannigan could not
verify the substance of Heard’s claim that the police questioned him and contacted him for a
lineup.
¶ 59 In McGee’s interview with Brannigan, he told Brannigan that the shooting happened at
approximately 6:00 or 7:00 p.m. He did not mention that Prince Joe asked for someone named
Reno prior to shooting. He only heard one gunshot, and he was not sure how many shots were
fired. These statements to Brannigan were inconsistent with the testimony that McGee provided
at the third-stage hearing. We find it notable that McGee claimed not to remember this interview.
Additionally, McGee claimed to be a Mickey Cobra with a specialized knowledge of the gang’s
membership, yet he did not know Prince Joe’s real name.
¶ 60 Outside of the internal inconsistencies in Heard and McGee’s testimony, their testimony
is further contradicted by the eyewitness testimony of Scott, Watson, and Young; the bullet
casings recovered from the shooting; and Sherrod’s statements, threats, and actions after the
shooting.
¶ 61 Scott and Watson testified that they witnessed Sherrod shooting into the window of
apartment 104. Young testified that after he heard the gunshots outside the building, he looked
out his window and saw Sherrod walk away from the building and drive off in his car. The
recovered bullet casings established that the same gun was fired inside the hallway of the
building, and outside of the building. Sherrod’s threats to Scott, Watson, and Young established
his consciousness of guilt (People v. McCullough, 2015 IL App (2d) 121364, ¶ 95 (threats to
intimidate or kill witnesses is proof of consciousness of guilt)), and further lent credibility to
their testimony. Likewise, Sherrod’s statement that he attempted to convince the Mickey Cobras
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to think that “Folks done it on the other end,” and his fear that Young would “break” similarly
indicated a consciousness of guilt.
¶ 62 Heard and McGee’s incredible testimony fails to place the evidence presented at trial in a
different light and undercut confidence in the initial verdict. Coleman, 2013 IL 113307, ¶ 97.
Thus, the circuit court did not err when it denied Sherrod’s petition following a third-stage
hearing.
¶ 63 CONCLUSION
¶ 64 For the reasons stated above, we affirm the judgment of the circuit court of Cook County.
¶ 65 Affirmed.
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