People v. Smith , 2021 IL App (1st) 181728 ( 2021 )

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Appellate Court Date: 2022.04.19
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People v. Smith, 2021 IL App (1st) 181728Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption GREGORY SMITH, Defendant-Appellant.
District & No. First District, Third Division
No. 1-18-1728
Filed June 30, 2021
Decision Under Appeal from the Circuit Court of Cook County, No. 06-CR-21554; the
Review Hon. Alfredo Maldonado, Judge, presiding.
Judgment Reversed and remanded.
Counsel on James E. Chadd, Douglas R. Hoff, and David T. Harris, of State
Appeal Appellate Defender’s Office, of Chicago, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Tasha-Marie Kelly, and Janet C. Mahoney, Assistant State’s
Attorneys, of counsel), for the People.
Panel PRESIDING JUSTICE HOWSE delivered the judgment of the court,
with opinion.
Justice Ellis concurred in the judgment and opinion.
Justice Ellis also specially concurred, with opinion.
Justice McBride dissented, with opinion.
OPINION
¶1 Defendant, Gregory Smith, was convicted of two counts of attempted first degree murder
and two counts of aggravated battery with a firearm. Defendant was found guilty of shooting
two individuals and was sentenced to 21 years in prison. One of the shooting victims testified
at trial that defendant was the shooter. The other victim did not testify.
¶2 The victim that did not testify at trial came forward years later and submitted an affidavit
swearing that defendant was not the shooter. In his affidavit, the victim avers that he was
speaking with defendant just before the shooting when someone other than defendant shot him.
The victim further avers that he told the detectives investigating the shooting that defendant
was not the shooter and that he only recently learned defendant was convicted. The victim
states that he was unaware of defendant’s trial and that he would have testified that defendant
was not the person who shot him if he had known about the trial.
¶3 Defendant filed a postconviction petition asserting a claim of actual innocence. Defendant
attached the victim’s affidavit to his postconviction petition. In his petition, defendant states
that the victim’s affidavit “is new evidence which would have changed the result of
[defendant’s] trial.” The trial court dismissed defendant’s postconviction petition at the second
stage. Defendant now appeals the dismissal of his postconviction petition. We conclude that
defendant has made the requisite showing to have his petition advanced to the third stage of
postconviction proceedings, and accordingly, we reverse. Defendant is entitled to an
evidentiary hearing on his postconviction claims, so we remand the case for further
proceedings.
¶4 BACKGROUND
¶5 On June 30, 2006, Cruse Caldwell and Maurice McDonald were walking south on South
Ingleside Avenue from 52nd Street toward 53rd Street. McDonald stopped to talk to someone,
and Caldwell continued walking. On the other side of the street and traveling in the opposite
direction, Caldwell saw a boy walking alongside another young male who was on a bike. After
Caldwell and the two individuals on the other side of the street had passed each other, Caldwell
looked back and saw the boy crossing the street behind him near the area where McDonald
had stopped to talk to someone. The boy pointed a gun at McDonald and shot at him. Caldwell
began to run in the same direction he was already traveling, south, away from the shooter.
Caldwell was also shot.
¶6 While Caldwell was being treated in an ambulance, he lost consciousness. Caldwell fell
into a coma and did not regain consciousness for more than a month after the shooting.
Caldwell identified defendant as the shooter during the trial. Caldwell testified that he was
never asked to view a photo array or a lineup at any time prior to trial, so the first time he had
an opportunity to identify who shot him was at trial.
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¶7 Eddie Mastin, a retired Cook County Sheriff’s officer, was sitting on a bench in the area of
the shooting waiting to meet a friend. Mastin saw McDonald walk past him. When McDonald
was halfway up the block, Mastin heard gunshots. Mastin saw a man on a bicycle and then saw
another man jump on the back of the same bike. The person who jumped on the back of the
bike had something in his hand that he put into his pocket, and that individual told the person
on the front of the bike to “go.”
¶8 After hearing the gunshots and seeing the suspicious individuals flee, Mastin walked down
the street to see what happened. Mastin found McDonald on the ground with a gunshot wound.
Mastin did not see the shooting occur, but he saw who he believed to be the perpetrators from
about a half block away. A month after the shooting, detectives showed Mastin a photo array,
and Mastin identified defendant as the person that jumped onto the back of the bike and who
he believed to be the shooter. Mastin also identified defendant in a physical lineup.
¶9 Officer John Thornton testified that he originally named two other individuals, Jonathan
and Joshua McClellan, as suspects in this shooting. Thornton testified that he went to the
McClellans’ house and saw them in front of the residence. When the McClellans saw Officer
Thornton, they fled into the residence. Jonathan jumped out of a window and escaped. Officer
Thornton caught Joshua. A gunshot residue test was administered to Joshua, and it was
negative. Joshua was then released and was no longer considered a suspect. Mastin identified
a photo of Jonathan as the person riding the bike that the shooter jumped onto after the
shooting.
¶ 10 Detective John Foster testified that he did not know McDonald’s whereabouts at the time
of the trial, but Foster testified that he had been looking for McDonald for at least 30 to 45
days leading up to the trial. The State planned to call McDonald as a witness, but because
McDonald could not be located, the State went forward with Caldwell and Mastin as the
occurrence witnesses.
¶ 11 After a trial, a jury found defendant guilty of two counts of attempted murder and two
counts of aggravated battery with a firearm. The trial court sentenced defendant to 21 years in
prison. Defendant filed an appeal of his conviction and his sentence. We affirmed. See People
v. Smith, No. 1-09-2256 (2011) (unpublished order under Illinois Supreme Court Rule 23).
¶ 12 Defendant filed a pro se postconviction petition and then subsequently filed a supplemental
postconviction petition with the assistance of counsel. Attached to defendant’s supplemental
postconviction petition is an affidavit from McDonald. In his affidavit, McDonald avers that
he was shot on June 30, 2006, on South Ingleside Avenue. McDonald avers that he viewed a
lineup after the shooting and identified defendant in that lineup as “the last person I spoke to
before the shooting.” McDonald swears that he “made it clear to the detectives, Gregory Smith
was not the shooter.” McDonald states that he was not in town when defendant was tried for
the shooting and that he only learned that defendant was convicted years after the trial.
McDonald avers that he would have testified for defendant had he known about the trial.
McDonald reiterates in his affidavit that “Gregory Smith did not shoot me or Cruse Caldwell.”
¶ 13 The trial court dismissed defendant’s postconviction petition at the second stage. In
addressing whether McDonald’s affidavit constituted newly discovered evidence, the trial
court explained that if McDonald told the officers that defendant was not the shooter,
“presumably the State disclosed this to the defense to comply with its obligations under
Brady.” See Brady v. Maryland, 373 U.S. 83 (1963). The trial court also found that “the petition
and affidavit do not explain why McDonald was unavailable to [defendant] at trial or why
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[defendant] only obtained an affidavit from [McDonald] nearly seven years after.” The trial
court concluded that McDonald’s statement “could have been and likely was discovered before
trial.”
¶ 14 As to the merit of defendant’s actual innocence claim, the trial court stated that even if
McDonald’s affidavit was considered newly discovered evidence, it “does not convey a
trustworthy eyewitness account.” The trial court found the affidavit untrustworthy on the basis
that it is “noticeably scant on details and conclusory” and because “McDonald does not say
who did shoot him and Caldwell if [defendant] didn’t.” The trial court stated that “presumably”
McDonald would know and be able to identify the shooter by name or description if defendant
was not the shooter. The trial court found that, even if the statements in the affidavit were
accepted and defendant was not the shooter, defendant might have acted in concert with the
shooter. Finally, the trial court noted that McDonald did not explain in his affidavit the nature
of the conversation that he was having with defendant when he was shot, and the court found
that “[i]f it was unfriendly, that would further implicate defendant’s involvement.”
¶ 15 ANALYSIS
¶ 16 This appeal concerns the trial court’s dismissal of a postconviction petition at the second
stage of proceedings under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.
(West 2018)). The Act provides a criminal defendant the right to challenge his conviction by
filing a petition in the circuit court. Id. § 122-1. The Act sets forth a process by which a
defendant can assert that, in the proceedings that resulted in his conviction, there was a
substantial denial of his federal or state constitutional rights. People v. Hodges, 234 Ill. 2d 1,
9 (2009).
¶ 17 The Act provides for a three-stage process for adjudicating postconviction petitions. People
v. Harris, 224 Ill. 2d 115, 125 (2007). At the first stage, the circuit court independently assesses
the merit of the petition and may dismiss the petition if it is frivolous or patently without merit.
725 ILCS 5/122-2.1 (West 2018). At the second stage, the circuit court must determine whether
the petition and any accompanying documentation make a substantial showing of a
constitutional violation. People v. Edwards, 197 Ill. 2d 239, 246 (2001).
¶ 18 The petition in this case contains a claim of actual innocence. At the second stage of
postconviction proceedings, a petitioner must make a substantial showing of actual innocence
such that an evidentiary hearing is warranted. People v. Sanders, 2016 IL 118123, ¶ 37. All
well-pleaded factual allegations not positively rebutted by the trial record must be taken as true
when considering the State’s motion to dismiss a second-stage postconviction petition. Id. ¶ 42.
A postconviction petition should only be dismissed at the second stage when the petitioner’s
allegations of fact, liberally construed and considered in light of the original trial record, fail
to make a substantial showing of actual innocence. People v. Lofton, 2011 IL App (1st) 100118,
¶ 35. The circuit court’s dismissal of a postconviction petition at the second stage is reviewed
de novo. People v. Rivera, 2016 IL App (1st) 132573, ¶ 19.
¶ 19 To establish a claim of actual innocence as a basis for obtaining postconviction relief, the
supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of
such conclusive character that it would probably change the result on retrial. People v.
Edwards, 2012 IL 111711, ¶ 32. “Newly discovered evidence” that would support a claim of
actual innocence is evidence that was discovered after trial and that the petitioner could not
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have discovered earlier through the exercise of due diligence. People v. Robinson, 2020 IL
123849, ¶ 47.
¶ 20 Defendant argues that the evidence supporting his actual innocence claim is “newly
discovered” because the witness was not available at the time of trial and, despite looking for
the witness, even the Chicago police and the state’s attorney’s office could not locate him
before trial. McDonald confirms in his affidavit that he was out of town at the time of trial.
Detective Foster testified that he looked for McDonald for 30 to 45 days leading up to the trial
and could not find him. Thus, defendant contends, McDonald’s statement could not have been
obtained by him before trial through the exercise of due diligence.
¶ 21 The State argues that defendant was aware of McDonald and his potential as a witness at
the time of trial. The State faults defendant’s trial counsel for failing to make any documented
efforts to secure McDonald as a witness on defendant’s behalf. The State acknowledges that
“the People expected McDonald to testify for the prosecution at trial *** but they could not
locate McDonald.” The State concludes that, because defendant knew about McDonald and
the information that he possessed but failed to subpoena him for trial, any claim that the
affidavit constitutes newly discovered evidence is defeated.
¶ 22 We find that McDonald’s affidavit meets the criteria for newly discovered evidence.
McDonald avers that he was out of town at the time of trial. Detective Foster testified that he
exercised diligence in trying to find McDonald prior to trial. Detective Foster testified that he
searched for McDonald for 30 to 45 days leading up to the trial and could not locate him. Even
with that exercise of diligence, McDonald and his testimony could not be secured. The State
provides no persuasive reason for holding that the defendant should have been able to secure
evidence that the State itself tried to secure and failed. If the State and the Chicago Police
Department could not locate McDonald and obtain his testimony, despite their significant
efforts, then we cannot hold, as a matter of fact or law, that defendant should have discovered
the evidence before trial.
¶ 23 As to the second requirement to establish a claim for actual innocence, evidence is
“material” if it is relevant and probative to the petitioner’s innocence, and it is “noncumulative”
when it adds to what the jury heard. Edwards, 2012 IL 111711, ¶ 32; People v. Coleman, 2013
IL 113307, ¶¶ 96-97. McDonald’s affidavit meets both of these requirements. The State does
not contest the materiality or the noncumulative nature of the evidence on appeal.
¶ 24 As to the third and final requirement to establish a claim for actual innocence, the evidence
must be of such conclusive character that it would probably change the result on retrial.
Edwards, 2012 IL 111711, ¶ 32. The new evidence need not be entirely dispositive to be likely
to alter the result on retrial. Robinson, 2020 IL 123849, ¶ 48. 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. Id. Ultimately, the question on a petition for
postconviction relief based on newly discovered evidence showing actual innocence is whether
the evidence supporting the postconviction petition places the trial evidence in a different light
and undermines the court’s confidence in the judgment of guilt. Id.¶ 25 In this case, McDonald is obviously a key eyewitness. Even Caldwell testified that
McDonald stopped to talk with someone on the street. McDonald now avers that the person he
stopped to talk with was defendant and that someone else entirely approached him and shot
him. Arguably, McDonald had an even better opportunity to observe the shooter than any other
witness because he was closer to the shooter than anyone else, but certainly McDonald had the
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best opportunity to know who he stopped to talk with and to know that it was someone other
than defendant who approached him and shot him. Caldwell testified that he was half a block
away from McDonald and that he began to run from the direction of the shooting once it began.
Mastin testified that he was half a block away from the shooting and did not see the actual
shooting happen, he just heard the gunshots. McDonald could not have made a more
unequivocal statement in his affidavit that defendant was not the shooter.
¶ 26 Caldwell testified that the first time he ever had an opportunity to identify the person who
shot him was during the trial. Caldwell made that identification more than two years after the
shooting. He identified the person sitting at the defense table. Caldwell admitted in his trial
testimony that his opportunity to view the shooter was limited.
¶ 27 Mastin’s testimony is certainly important in the case and carried some indications of
reliability. He consistently identified defendant as the shooter. But Mastin also was a half block
away from the shooters. Mastin consistently stated that he saw McDonald walking alone when
the other witnesses discussed McDonald and Caldwell walking together. Mastin potentially
described McDonald’s movements that day in a manner inconsistent with Caldwell’s
description of those movements. Mastin also identified Jonathan McClellan as the person
riding the bike, and the McClellans were, at least for a time, considered suspects in this
shooting. We must be cognizant of the perils associated with identification evidence (see
People v. Lerma, 2016 IL 118496, ¶ 24), especially in light of McDonald’s straightforward
repudiation of the other witnesses’ identifications. Defendant also raised an issue of possible
deficits in Mastin’s eyesight during trial.
¶ 28 While the statements in McDonald’s affidavit conflict with other trial testimony, such as
Caldwell and Mastin’s identifications, the attestations in the affidavit are not positively
rebutted by any evidence in the record. The conflict between the trial evidence and the new
evidence must be resolved through factfinding and by making credibility determinations.
People v. Willingham, 2020 IL App (1st) 162250, ¶ 37. The State suggests that McDonald
made inconsistent statements to the police during the investigation that would make the
attestations in his affidavit unbelievable by a trier of fact. But issues concerning whether
McDonald’s attestations should be believed are directed to a third-stage evidentiary hearing.
Id.; Robinson, 2020 IL 123849, ¶ 60.
¶ 29 The trial court’s analysis of the conclusive character of McDonald’s statements is
misguided. In assessing the merit of McDonald’s affidavit, the trial court found that the
affidavit “does not convey a trustworthy eyewitness account.” The trial court went on to
hypothesize about McDonald’s credibility by questioning why McDonald did not include the
identity of the shooter in his affidavit and to ponder whether McDonald and defendant were
having a friendly conversation before the shooting. “Credibility determinations may be made
only at a third-stage evidentiary hearing.” Sanders, 2016 IL 118123, ¶ 42. In a proceeding for
postconviction relief based on actual innocence, witness credibility findings and
determinations as to the reliability of the supporting evidence are to be made only at a third-
stage evidentiary hearing. Robinson, 2020 IL 123849, ¶ 61. Any presumptions or hypotheses
should not be drawn against the petitioner when analyzing a motion to dismiss a postconviction
petition but instead must be drawn in the petitioner’s favor. See People v. House, 2020 IL App
(3d) 170655, ¶ 28 (at the second stage, a postconviction petition must be liberally construed in
favor of the petitioner).
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¶ 30 McDonald plainly states that “Gregory Smith did not shoot me or Cruse Caldwell.” When
the allegations defendant makes in his postconviction petition are taken as true and the
statements in McDonald’s affidavit are viewed in a light most favorable to defendant, it is
apparent that defendant has made a substantial showing of actual innocence such that an
evidentiary hearing is warranted. When properly construed, the evidence, namely McDonald’s
sworn statement, places the trial evidence in a different light. The evidence supporting the
postconviction petition, when viewed alongside the evidence submitted at trial, sufficiently
undermines this court’s confidence in the judgment of guilt such that defendant has made the
requisite showing of actual innocence to entitle him to an evidentiary hearing.
¶ 31 CONCLUSION
¶ 32 Accordingly, we reverse, and we remand the case for further proceedings.
¶ 33 Reversed and remanded.
¶ 34 JUSTICE ELLIS, specially concurring:
¶ 35 I join the majority opinion in full. My dissenting colleague makes some valid points
regarding what constitutes newly discovered evidence, and I would add only these brief
observations in rebuttal.
¶ 36 While it is true that there is nothing in the record to indicate that defense counsel made any
attempt to locate, interview, or subpoena McDonald over the two years preceding and
including defendant’s trial, that is not a basis for denying the claim here at second-stage
proceedings for two reasons. The first is that defense counsel may, in fact, have both located
and interviewed McDonald but not memorialized as much in the court file. There is no
particular reason why a defense lawyer would want to publish his work product and otherwise
privileged notes and observations in the court record. The absence of evidence in a court file
does not mean that trial counsel did not speak with McDonald. All we can know with certainty,
from its absence in the record, is that defense counsel never tried to serve McDonald with a
trial subpoena.
¶ 37 Which leads to the second and far more important point: everything contained in the trial
record points to the conclusion that McDonald identified petitioner to the police as the man
who shot him. The State summarized it succinctly on appeal: “the People expected McDonald
to testify for the prosecution at trial because he had given two statements to the police just after
the shooting and had twice identified petitioner.” McDonald identified petitioner both in a
photo array and a lineup.
¶ 38 That is a critical fact because it explains why defense counsel did not issue a trial subpoena
for McDonald’s testimony. There is no conceivable reason why defense counsel would go to
pains to haul a witness into court who was planning on implicating his client. Indeed, doing so
would almost surely constitute ineffective assistance of counsel and blatant malpractice.
¶ 39 So while the absence of a trial subpoena might show a lack of due diligence when the
supposedly “new” testimony was available all along to a defendant, it would make no sense to
hold that against petitioner here, when by all accounts in the record, McDonald was not going
to be a favorable witness for petitioner.
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¶ 40 What is “new” here is not McDonald, himself, but the fact that he is now saying something
different than he told the police—he is now saying that petitioner did not shoot him.
¶ 41 There are discrepancies, to be sure, between what the trial record shows and what
McDonald says in his affidavit. While the trial record strongly suggests that McDonald
identified petitioner as the shooter, McDonald says in his affidavit that he merely told the police
that petitioner was the last person with whom he spoke before the shooting.
¶ 42 But these discrepancies are not a reason to dismiss this postconviction petition at the second
stage. They are a reason to flesh this all out at a third-stage evidentiary hearing, where the State
can continue to challenge whether this proffered evidence is “newly discovered.”
¶ 43 As it stands now, as the State openly concedes, there is ample reason to believe that
McDonald identified petitioner—twice—as the shooter to the police. If that is the case, it
would be unfair and illogical to fault petitioner’s trial counsel for failing to subpoena a
prosecution witness to trial who would implicate his client.
¶ 44 JUSTICE McBRIDE, dissenting:
¶ 45 I respectfully dissent from the majority’s decision to remand for third stage evidentiary
proceedings. I would affirm the circuit court’s second stage dismissal of petitioner’s
postconviction petition claiming actual innocence because petitioner has failed to show that
(1) the affidavit supporting his petition is newly discovered evidence and (2) the evidence is
so conclusive that it would probably change the result on retrial.
¶ 46 The sum and substance of McDonald’s affidavit is that he was shot on June 30, 2006, at
52nd Street and Ingleside Avenue; that he viewed a lineup on August 21, 2006; and that he
identified petitioner as the last person he spoke to before the shooting. McDonald insists that
he made it clear to the detectives that petitioner was not the shooter. “Years later,” McDonald
learned that petitioner had been convicted of shooting him and Caldwell. McDonald states that
petitioner did not shoot them and that McDonald would have come to court and testified but
he was “out of town” and “unaware of [petitioner’s] trial.”
¶ 47 The trial court, concluded, in a 10-page written decision, that McDonald’s affidavit was
not newly discovered evidence and was not so conclusive as to probably change the result on
retrial. I agree with the trial court’s conclusions.
¶ 48 To support a claim of actual innocence, the evidence must be newly discovered, material
and not cumulative, and of such a conclusive character that it would probably change the result
on retrial. People v. Coleman, 2013 IL 113307, ¶ 96; People v. Edwards, 2012 IL 111711,
¶ 32; People v. Washington, 171 Ill. 2d 475, 489 (1996). The burden to make a substantial
showing of a constitutional violation during second stage proceedings belongs to the petitioner.
People v. Domagala, 2013 IL 113688, ¶ 35; People v. Pendleton, 223 Ill. 2d 458, 473 (2006).
A substantial showing is “a measure of the legal sufficiency of the petition’s well-pled
allegations of a constitutional violation, which if proven at an evidentiary hearing, would entitle
petitioner to relief.” (Emphasis in original.) Domagala, 2013 IL 113688, ¶ 35. The failure to
make that showing on any one of the elements of an actual innocence claim warrants dismissal.
People v. Jackson, 2021 IL 124818, ¶ 41.
¶ 49 The meaning of newly discovered evidence is well established. “Within the context of an
actual innocence claim, newly discovered evidence means evidence that was discovered after
trial and that the petitioner could not have discovered earlier through the exercise of due
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diligence.” (Internal quotation marks omitted.) Id. ¶ 42; see also People v. Robinson, 2020 IL
123849, ¶ 53; People v. Ortiz, 235 Ill. 2d 319, 334 (2009).
¶ 50 In Jackson, 2021 IL 124818, the Illinois Supreme Court recently considered a similar
postconviction claim, in which a witness later claimed the defendant was not the shooter. The
supreme court concluded that the proffered testimony was not new, observing that the witness
had been included in police reports and was known to the parties prior to trial. Id. ¶ 42. After
concluding that the proffered testimony was not newly discovered, the court went on to address
the defendant’s argument that fundamental fairness required further proceedings because the
statement had never been presented previously at trial. The supreme court soundly rejected that
argument as well, noting that the witness’s proffered testimony also “cut[ ] against” the
petitioner, where there was evidence that the witness had originally told detectives that the
petitioner was the shooter but she did not sign a statement to that effect because she and the
defendant were in a relationship and she did not want to hurt his case. Id. ¶ 45.
¶ 51 McDonald is similar to the witness in Jackson, where both witnesses were included in
police reports and known to the parties. Id. ¶ 42; see also People v. Lenoir, 2021 IL App (1st)
180269, ¶ 36 (“Since defendant was aware of [the witness]’s presence when these events took
place, the information in [the witness]’s affidavit was known to defendant before his trial.”).
Indeed, it is even more apparent that McDonald’s testimony is not newly discovered in this
case, where he was one of the two victims that defendant was charged with shooting. Also like
the witness in Jackson, McDonald identified petitioner before trial, although he now claims
that petitioner was not the shooter.
¶ 52 Moreover, the substance of McDonald’s affidavit is that petitioner spoke to McDonald
before the shooting but that petitioner was not the shooter. When that is the proffered
testimony, how could petitioner possibly claim that he did not know he was with McDonald?
See Edwards, 2012 IL 111711, ¶ 34 (quoting with approval the appellate court’s finding that
it was “ ‘illogical for defendant to claim that this evidence of his alibi is new, where he
obviously knew of his alibi at the time of trial, on appeal and during initial postconviction
proceedings’ ” (quoting People v. Edwards, No. 1-07-0714 (2010) (unpublished order under
Illinois Supreme Court Rule 23))). It is illogical to find McDonald’s affidavit to be newly
discovered, when petitioner clearly was aware of the evidence presented in it.
¶ 53 Like claims involving alibi testimony, which have been repeatedly rejected by our supreme
court as not newly discovered, petitioner cannot possibly claim that he did not know McDonald
could testify to that effect. See Edwards, 2012 IL 111711, ¶ 37 (“ ‘[t]he facts concerning an
alibi are peculiarly within the knowledge of a defendant himself’ ” (quoting Bentley v. United
States, 701 F.2d 897, 899 (11th Cir. 1983))); Robinson, 2020 IL 123849, ¶ 53 (“petitioner
obviously was aware of that [alibi] information prior to trial”); see also People v. Boclair, 2021
IL App (4th) 180813-U, ¶¶ 28, 32 (affidavits of three inmate witnesses were not newly
discovered where they averred that they saw the defendant in a different area of the cell house
at the time the murder was taking place; although “there were a finite number of people the
investigators would have had to interview about potentially corroborating defendant’s alibi,”
the defendant did not “offer a single explanation as to why his investigator would not have
been able to locate the affiants sooner with due diligence”); People v. Harris, 206 Ill. 2d 293,
301 (2002) (“Clearly, the fact that defendant was allegedly with his brothers on the night of
the crime could have been discovered sooner. More importantly, defendant is the source of this
information and was armed with this information at the time of trial.”).
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¶ 54 The timing of the relevant events also dispels any notion that this evidence could be newly
discovered. The offenses that led to petitioner’s convictions occurred in June 2006, and
McDonald viewed a lineup in August 2006. Petitioner’s jury trial took place two years later,
in August 2008. Accordingly, petitioner had approximately two years to discover McDonald’s
proffered testimony before trial. Petitioner, who was represented by private counsel at trial,
could have attempted to locate and interview McDonald during this two-year period, but
apparently did not do so. Despite petitioner’s undeniable awareness of McDonald and his
potential testimony, petitioner did not even attempt to issue a subpoena to McDonald. See
Robinson, 2020 IL 123849, ¶ 53; Edwards, 2012 IL 111711, ¶¶ 34-38 (“[W]here there was no
attempt to subpoena [two witnesses known to the petitioner at the time of trial], and no
explanation as to why subpoenas were not issued, the efforts expended were insufficient to
satisfy the due diligence requirement.”); People v. Walker, 2015 IL App (1st) 130530, ¶¶ 16-
18 (rejecting a claim of newly discovered evidence based upon an eyewitness who claimed to
have seen the shooting and that the shooter was not the defendant; the witness’s statement
failed to “provide the court a reasonable explanation for either [the witness’s] 27-year absence
or his sudden appearance,” and defendant “fail[ed] to explain why [the witness] was not located
until nearly 30 years after the crime occurred”).
¶ 55 Petitioner, however, claims that McDonald was “unavailable” because he was “out of
town.” McDonald never further explained his whereabouts or his unavailability—where he
went, when, for how long, and whether he could have been contacted. McDonald’s conclusory
statement, that he was “out of town,” is not a well-pleaded fact, but merely a conclusion,
unsupported by any specific facts, which we do not accept as true at the second stage. People
v. Rissley, 206 Ill. 2d 403, 412 (2003) (“[N]onfactual and nonspecific assertions which merely
amount to conclusions are not sufficient to require a[n] [evidentiary] hearing under the Act.”);
People v. Wingate, 2015 IL App (5th) 130189, ¶ 27 (affiant’s statement that it would have been
“impossible” for the defendant to know that the affiant was there or had witnessed the events
was a conclusion, not “a well-pleaded fact that must be taken as true”); People v. Morris, 236
Ill. 2d 345, 354 (2010) (“[A] petition alleging nonfactual and nonspecific assertions that merely
amount to conclusions will not survive summary dismissal.”).
¶ 56 Nonetheless, even if we were to accept McDonald’s statement that he was “out of town”
as factual, well-pleaded, and true, it still does not show that this evidence could not have been
discovered in the two years before trial or the seven years since trial or that petitioner exercised
due diligence. In fact, nowhere in petitioner’s pro se original postconviction petition, his
amended supplemental petition for postconviction relief filed by appointed counsel, or
petitioner’s brief on appeal has he argued that he could not have discovered this evidence
sooner with the exercise of due diligence. Petitioner’s entire argument rests upon the notion
that, because a detective looked for McDonald for 30 to 45 days before trial and could not
locate him, defendant “cannot be expected to have done so.” The majority accepts this premise,
stating: “If the State and the Chicago Police Department could not locate McDonald and obtain
his testimony, despite their significant efforts, then we cannot hold, as a matter of fact or law,
that defendant should have discovered the evidence before trial.” Supra ¶ 22. Notably, the
majority cites no authority for this proposition.
¶ 57 There are several flaws with this reasoning. First, there is no evidence supporting the
majority’s statements that the State or police made “significant efforts” to locate McDonald.
The only testimony in this regard came from Detective Foster, who, when asked if he knew
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where McDonald was at the time of trial, answered, “No.” He was then asked if he had “looked
for” McDonald, and he answered “Yes.” Finally, when asked for about how long he looked,
Detective Foster answered, “at least 30 to 45 days.” No further questions were asked of the
detective about the extent of those efforts or what particular actions were taken. To jump to
the conclusion that the detective undertook “significant efforts” based on this limited testimony
is totally unsupported.
¶ 58 Additionally, even if we could conclude that the detective’s efforts were “significant,”
there is no authority to support that such efforts may be attributed to the defense. As stated
above, the burden to show a substantial denial of a constitutional right at the second stage is
on the petitioner, not the prosecution. Domagala, 2013 IL 113688, ¶ 35. Similarly, a petitioner
seeking relief on the basis of newly discovered evidence bears the burden of demonstrating
“ ‘that there has been no lack of due diligence on his [or her] part.’ ” Wingate, 2015 IL App
(5th) 130189, ¶ 26 (quoting People v. Harris, 154 Ill. App. 3d 308, 318 (1987)). The fact that
one detective tried unsuccessfully to locate a witness for trial does not, in any way, demonstrate
petitioner’s due diligence.
¶ 59 Although petitioner compares his case to Ortiz, 235 Ill. 2d 319, there are no similarities
between the Ortiz decision and the facts in this case. The defendant in Ortiz was convicted of
murdering the victim in a park in Chicago. Ten years after the murder, an eyewitness came
forward, admitted to the defendant’s mother that he knew the defendant had not committed the
crime, and agreed to provide an affidavit. Id. at 327. In his affidavit, the witness stated that on
the night of the murder, the witness stood in front of the field house where the murder took
place and saw the victim get shot by two members of his gang, whom he identified. Id. The
witness stated that he did not see the defendant in the park that day. Id.
¶ 60 The affidavit and the defendant’s petition also presented several detailed reasons why the
witness had been previously unavailable. The witness knew defendant, as they were members
of the same gang, but they had a hostile relationship. Id. at 326. The witness did not report
what he had seen to the police because he feared retaliation from the gang. Id. at 327.
Additionally, not long after the shooting, the witness moved to Wisconsin, and he only came
forward with his account 10 years later. Id.
¶ 61 In finding the evidence was newly discovered, the supreme court noted the affiant alleged
that he was in an area of the park where he would not have been seen by the defendant, who
had claimed in his defense that he was in a different area of the park at the time of the shooting.
Id. at 334. The court also noted that the affiant essentially made himself unavailable as a
witness by fleeing the state shortly after the murder. Id. Based upon these two factors, the
supreme court concluded that the affidavit constituted newly discovered evidence. Id.
¶ 62 The factors present in Ortiz bear no resemblance to those presented by McDonald’s
affidavit. The murder in Ortiz took place in a public park in Chicago, and the defendant had
no way of knowing that the affiant had witnessed the murder. Id. Here, by contrast, petitioner
clearly knew that McDonald was a witness to the offense, as McDonald was one of the victims.
McDonald also did not make himself unavailable by fleeing Chicago for 10 years like the
witness in Ortiz. McDonald states only that he would have come to court for petitioner, but he
was “out of town.” As stated previously, McDonald does not offer any information about
where he went, when, for how long, or whether he could have been contacted while he was
“out of town.” McDonald also does not state that he would not have testified had he been
approached or subpoenaed by petitioner or his counsel during the two years before the trial.
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¶ 63 This case is more akin to Wingate, 2015 IL App (5th) 130189, ¶¶ 26-28, in which the
appellate court concluded that a witness’s affidavit was not newly discovered. The witness in
Wingate averred that he was at the scene just prior to the shooting and that he watched the
encounter from about 25 feet away. Id. ¶ 20. Although the witness in Wingate stated that he
waited several years to come forward because he was a close friend of the victims and had
“mixed emotions” about coming forward, the court stated that the affidavit merely explained
the witness’s “failure to come forward sooner on his own accord, [but] it d[id] not address the
question of the due diligence of the defendant in independently discovering [him] as a witness.”
Id. ¶ 27. The Wingate court distinguished Ortiz, noting that unlike the witness in that case, the
witness in Wingate did not make any “averment that would allow us to conclude that he
‘essentially made himself unavailable.’ ” Id. (quoting Ortiz, 235 Ill. 2d at 334). Also unlike the
witness in Ortiz, the witness in Wingate made no statements of fact suggesting that he could
not have been observed by defendant, and the petition contained no facts “regarding the
defendant’s knowledge or lack of knowledge of [the witness]’s purported witnessing of the
shooting.” Id. ¶ 29.
¶ 64 Like in Wingate, the defendant here has made no claim that he was unaware of McDonald
as a potential witness. Indeed, there can be no doubt that defendant was aware of McDonald
and his potential testimony, given McDonald’s status as a victim and the substance of
McDonald’s potential testimony.
¶ 65 Based upon all of the above, I believe that petitioner has not shown that McDonald’s
affidavit is newly discovered evidence, and the trial court’s second stage dismissal of
petitioner’s postconviction petition could be affirmed on this basis alone.
¶ 66 However, in addition to not showing that McDonald’s affidavit is newly discovered
evidence, petitioner has also failed to satisfy the most important element of an actual innocence
claim, the conclusive character of the new evidence. Robinson, 2020 IL 123849, ¶ 47;
Washington, 171 Ill. 2d at 489.
¶ 67 The conclusive character element refers to evidence that, when considered along with the
trial evidence, would probably lead to a different result on retrial. Robinson, 2020 IL 123849,
¶ 47 Ultimately, the question is whether the evidence supporting the postconviction petition
places the trial evidence in a different light and undermines the court’s confidence in the
judgment of guilt. Id. at 48. “The new evidence need not be entirely dispositive to be likely to
alter the result on retrial.” 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.” Id.
¶ 68 Looking at the old and new evidence together, it cannot be said that there is a probability
that the outcome of petitioner’s trial would be different on retrial.
¶ 69 The State’s evidence presented at trial was substantial. Caldwell testified that on June 30,
2006, he was walking with McDonald on South Ingleside Avenue. McDonald stopped to talk
to another person, and Caldwell continued to walk. Caldwell then observed petitioner walking
alongside another young male riding a bicycle on the other side of the street. As he passed the
pair, Caldwell turned around and saw petitioner cross the street, point a handgun at McDonald,
and shoot. Caldwell ran, and petitioner shot at him and then shot back at McDonald again.
¶ 70 Caldwell’s testimony was corroborated by Eddie Mastin, a retired Cook County Sheriff,
who testified that on June 30, 2006, he was sitting on a bench on South Ingleside Avenue,
when he heard four or five gunshots. Mastin saw a young man on a bicycle a short distance
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down the street. After the gunshots, Mastin saw petitioner approach the person on the bicycle,
place an object in his pocket, and the two rode away. Although Mastin could not identify the
object, Mastin described it as larger than petitioner’s hand. Mastin then went down the block
and found McDonald and Caldwell suffering from gunshot wounds. Mastin identified
petitioner shortly after the shootings in both a photo array and physical lineup.
¶ 71 Although defendant did not actually present an alibi at trial, he suggested that he was not
present, arguing that the identifications of him were weak and that two other specified
individuals committed the shooting. Both eyewitnesses at trial, however, were positive that
petitioner was at the scene, and although the jury was presented with the defense theory, it
obviously rejected it based on the guilty verdicts returned.
¶ 72 Against that evidence is the new evidence that, nine years later, McDonald now says that
petitioner “did not shoot” him or Caldwell. However, the new evidence from McDonald
corroborates the testimony of Caldwell and Mastin in several respects and affirmatively places
petitioner at the scene. There is no longer a question of whether petitioner was present because
McDonald confirms that he was.
¶ 73 Although the majority contends that McDonald avers that “someone else entirely
approached him and shot him” (supra ¶ 25), that description mischaracterizes McDonald’s
affidavit. McDonald never averred that someone else approached him and shot him. All
McDonald avers is that he “identified [petitioner] as the last person I spoke to before the
shooting” and that petitioner “did not shoot” him or Caldwell.
¶ 74 In its written order the trial court determined that McDonald’s averments were mostly
conclusions, unsupported by any specific facts, and I would agree with this assessment.
McDonald avers that petitioner did not shoot him or Caldwell but never explains how he knows
that petitioner was not the shooter. McDonald does not identify or describe who shot him or
even state that he saw the shooter or that he remembers the shooting. McDonald’s statement,
reduced to its essence, alleges nothing more than a conclusion on the ultimate issue. See
Morris, 236 Ill. 2d at 354 (“a petition alleging nonfactual and nonspecific assertions that
merely amount to conclusions will not survive summary dismissal under the Act”); see also
Edwards, 2012 IL 111711, ¶¶ 39-40 (witness’s affidavit claiming that the defendant had
“nothing to do with” the shooting, was not “of such conclusive character that it would probably
change the result on retrial” (internal quotation marks omitted)).
¶ 75 On appeal, the State also argues that McDonald’s proffered testimony could be discredited
with the substantively admissible prior inconsistent statements that he gave to police, as well
as two identifications McDonald made of petitioner just after the shooting. In his affidavit,
McDonald admits he viewed a lineup and that he identified petitioner in the lineup, albeit, not
as the shooter.
¶ 76 Based upon the entire record, however, there seems to be no question that McDonald
previously identified defendant as the shooter. In fact, petitioner’s appointed attorney
characterized McDonald’s affidavit as a recantation, describing the affidavit as “essentially
[the] recanted testimony of Maurice McDonald, who *** says *** unequivocally *** that
[petitioner] was not the shooter.”
¶ 77 The trial court also recognized that if McDonald had told detectives that petitioner was not
the shooter, as he stated in his affidavit, that information would have been required to be
disclosed to the defense under Brady v. Maryland, 373 U.S. 83 (1963). Petitioner, however,
has never claimed that the State failed to disclose this information, even after petitioner was
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given the assistance of appointed counsel and on appeal. Because there is no dispute that
McDonald’s affidavit was indeed a recantation of his earlier identifications of petitioner as the
shooter, those prior identifications would be admissible if McDonald testified at a retrial. See
People v. Bowen, 298 Ill. App. 3d 829, 835 (1998) (“[P]rovided the declarant testify at trial
and be subject to cross-examination concerning the prior statement of identification of a person
made after perceiving him, the prior statement of identification, testified to by the declarant or
another witness, including a police officer, is now admissible as an exception to the hearsay
rule as substantive evidence ***.” (Internal quotation marks omitted.)); Jackson, 2021 IL
124818, ¶ 45 (finding that proffered testimony was not new, and that fundamental fairness did
not require its consideration where it “cut[ ] against petitioner in certain respects,” and
supported the State’s theories); People v. Fluker, 318 Ill. App. 3d 193, 201 (2000) (a shooting
victim’s out-of-court identification of the defendant as the shooter, which was inconsistent
with her trial testimony, was admissible as substantive evidence of defendant’s identity). This
significant impeachment of McDonald’s proffered testimony provides further support for the
conclusion that the new evidence would not likely change the outcome on retrial when
compared with all the other evidence, old and new.
¶ 78 Recantations, as a rule, are regarded as inherently unreliable, and courts will rarely grant a
new trial on that basis except in extraordinary circumstances. People v. Morgan, 212 Ill. 2d
148, 155 (2004); see, e.g., People v. Fenton, 2021 IL App (1st) 171483-U (summary dismissal
of a postconviction petition affirmed over defendant’s actual innocence claim based on an
affidavit in which a witness recanted his trial testimony and claimed that the defendant was not
present for the shooting; “[e]ven without assessing the veracity of [the witness]’s affidavit,”
the other evidence “overwhelmingly implicate[d] defendant as the shooter, and we do not find
that there is a probability that a fact finder would reach a different result on retrial”); People v.
Norsworthy, 2021 IL App (2d) 190349-U (affidavit reporting that shooting victim recanted his
trial testimony of the shooting did not support a colorable postconviction claim of actual
innocence to survive second stage dismissal where the recantation was positively rebutted by
evidence from several other witnesses that defendant shot the victim; “the recantation, when
considered in light of [the witness]’s prior inconsistent trial testimony, would not probably
change the outcome of the proceeding”). There are no extraordinary circumstances here. In
fact, as stated above, McDonald’s affidavit corroborates the trial testimony of Mastin and
Caldwell in several ways. Moreover, McDonald’s affidavit provides no information to explain
the reason for his subsequent recantation.
¶ 79 In these circumstances, McDonald’s recantation, considered in light of the strong evidence
of petitioner’s guilt elicited at trial as well as McDonald’s prior identifications of petitioner as
the shooter, would not probably change the outcome on a retrial.
¶ 80 Finally, I would clarify that, by concluding that the new evidence in McDonald’s affidavit
would probably not result in a different outcome on retrial, I am not assessing McDonald’s
credibility. Rather, I am making a commonsense conclusion that the affidavit’s content
provides no realistic probability that the outcome of a retrial would be different, which is the
kind of probabilistic determination that trial and appellate courts are called to perform when
evaluating a postconviction petition. See Robinson, 2020 IL 123849, ¶ 48.
¶ 81 I would also note that this is not an appeal from a first stage dismissal. Instead, petitioner’s
claim was advanced to the second stage, and he was appointed counsel who filed a
supplemental petition. As stated above, at the second stage petitioner bears the burden to make
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a substantial showing of actual innocence. Domagala, 2013 IL 113688, ¶ 35; Sanders, 2016
IL 118123, ¶ 37. I agree with the trial court’s conclusion that defendant has not made the
requisite showing because McDonald’s affidavit is not newly discovered and it is not so
conclusive that it would change the outcome on retrial.
¶ 82 For the foregoing reasons, I respectfully dissent.
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