2023 IL App (1st) 211407-U No. 1-21-1407 March 21, 2023 SECOND DIVISION
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 DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) ) v. ) No. 13 CR 9646 ) ) Honorable PHILIP ANDERSON, ) Matthew E. Coghlan and ) William B. Raines, Defendant-Appellant. ) Judges Presiding.
JUSTICE HOWSE delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: The court erred in denying defendant’s motion for a new trial where a witness’s recantation at a hearing on the motion was newly discovered, material, and likely to change the result on retrial.
¶2 Following a jury trial, defendant Philip Anderson was found guilty of first degree murder
(720 ILCS 5/9-1(a)(1) (West 2012)) and sentenced to 65 years’ imprisonment. At the hearing on
defendant’s motion for a new trial, a witness recanted his trial testimony identifying defendant as No. 1-21-1407
the offender. The trial court denied the motion but, in its oral ruling, misstated certain evidence.
On direct appeal, we remanded for a new hearing on the motion because the court’s justification
for denying relief was “manifestly erroneous.” See People v. Anderson, 2021 IL App (1st) 170658-
U, ¶¶ 47, 52. On remand, the court conducted another hearing and again denied defendant’s motion
for a new trial. 1
¶3 In this appeal, defendant contends that the court erred on remand in denying the motion for
a new trial because, at the first hearing, the State’s primary eyewitness recanted his trial testimony.
Defendant further argues that the admission of a police officer’s testimony at trial regarding
conversations at the scene of the incident was plain error. For the following reasons, we reverse
the denial of defendant’s motion for a new trial and remand the matter for a new trial.
¶4 BACKGROUND
¶5 Defendant was charged with first degree murder and other offenses arising from the
shooting death of Jonathon Hoskins on April 1, 2013. The evidence adduced at trial is detailed in
this court’s first order on direct appeal. See id. Accordingly, we only recount the facts necessary
to resolve the issues presently on appeal. 2
¶6 Defendant’s Trial
¶7 At trial in 2016, Linda Hamer, a United States Postal Service letter carrier, testified that
she was on her route the morning of April 1, 2013, on Eberhart Avenue between 74th Street and
75th Street when she saw a man approach a group of people on the side of the road. The man drew
1 The Honorable Matthew E. Coghlan presided over defendant’s trial and the first hearing on his motion for a new trial. The Honorable William B. Raines presided on remand. 2 The trial exhibits are not included in the record for the present appeal. Descriptions of the exhibits are derived from the prior order on appeal.
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a firearm, discharged it, and fled in the direction from which he came. Hamer could not see the
shooter’s face or identify him, but noted he wore a black hoodie and black jeans.
¶8 Chicago police officer Andre Craig testified that he responded to a call of shots fired on
South Eberhart and spoke with pedestrians to see “if anyone noticed anything” and to identify
potential witnesses. After speaking with individuals, Craig and other officers learned the name of
a potential suspect, “LP,” which Craig also learned was defendant’s nickname. Defense counsel
did not object to this testimony or cross-examine Craig.
¶9 Charles Ambrose testified that he was incarcerated for a parole violation at the time of trial,
had a pending narcotics case, and had been convicted of robbery and unlawful use or possession
of a weapon by a felon. Ambrose stated that he was standing with Hoskins on the sidewalk when
Hoskins was shot. Ambrose heard a noise “[l]ike a firecracker” and saw Hoskins fall from 10 to
15 feet away. Ambrose did not see anyone leave the scene or approach Hoskins.
¶ 10 Ambrose acknowledged speaking with officers at the police station, but denied telling them
that he was with Hoskins and another person in front of a building on South Eberhart. Ambrose
denied telling police that he saw LP shoot Hoskins, and testified instead that he did not know LP.
Ambrose also denied telling officers that he saw a person walking north on the west side of the
street with a dark hoodie pulled over his head. He denied telling police that when the person
approached, he “clearly” saw it was LP, or that LP walked toward him, “raised his arm and shot
[Hoskins] in the back of the head.” He denied telling police that LP then turned, ran southbound
down Eberhart, and westbound through the north alley of 75th. Additionally, he denied telling
police that he had seen LP driving north on Eberhart from 75th in a tan Lincoln Continental
approximately three days before the incident.
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¶ 11 Ambrose further testified that he viewed a photo array, but informed officers that he did
not recognize anyone in the array. Ambrose acknowledged signing the photo array, but denied
writing “LP, shooter” on it. Ambrose identified his signed photo array advisory form and the photo
array with one photograph annotated “April 1, 2013, LP shooter, 8:29 p.m.” in his handwriting
with his signature. Ambrose testified that an officer told him to write that.
¶ 12 Ambrose also gave a statement, transcribed by an assistant State’s Attorney (ASA).
Ambrose identified his signature on the written statement, but did not know if the attached
photograph, which he signed, depicted LP. Ambrose denied telling police officers that he was not
under the influence of marijuana or alcohol at the time he gave his statement, and did not recall
stating that he gave his statement freely and voluntarily.
¶ 13 Ambrose testified that he told a grand jury that he stood on the sidewalk with Hoskins, but
denied stating that he saw someone approach the group wearing a black hoodie with the hood
raised. Ambrose denied testifying that he knew the person was LP because he had seen LP in a
vehicle several days earlier. Ambrose agreed that he testified that he heard two shots and saw
Hoskin’s body drop to the ground but did not remember testifying that he saw LP stand “a step”
behind Hoskins and extend his arm before the shots were fired and then walk away. Ambrose did
not recall testifying about viewing a photo array. Further, Ambrose was high “off pills,” namely
Ecstasy, “around” the time he testified before the grand jury. Ambrose did not recall telling the
grand jury that his statement to police was the same as his grand jury testimony and that he testified
freely and voluntarily. Ambrose also did not recall whether he signed a photograph of LP before
the grand jury.
¶ 14 On cross-examination, Ambrose stated that he was not under arrest when he spoke to police
and did not believe he was a suspect. Nor did Ambrose believe he was a suspect when he testified
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before the grand jury. Ambrose did not write the statement to police; rather, he signed all five
pages after it had been prepared. Ambrose did not know whether the person in the photograph he
signed shot Hoskins.
¶ 15 ASA Tom Prisco testified that early on April 2, 2013, he interviewed Ambrose and
handwrote his statement. Prisco identified the statement in court, and the State published it.
¶ 16 In his statement, Ambrose stated that on April 1, 2013, he was standing outside with
friends, including a person he knew as “JD,” near 75th and Eberhart. A person wearing a dark
hoodie pulled over his head approached from an alley. Ambrose recognized the person as
defendant, initialed a photograph of defendant, and commented that it was daylight with nothing
obstructing his view. Defendant walked behind JD. Then, defendant raised his arm, pointed a
firearm to JD’s head, fired twice, and ran back to the alley. Ambrose never met defendant before
but, approximately one week prior, a person from the neighborhood showed Ambrose a picture of
defendant on a cellular telephone. Ambrose was also told “to stay away” from defendant because
defendant “cause[d] trouble.” Approximately three days before giving the statement, Ambrose saw
defendant driving an older Lincoln Continental through the neighborhood. Ambrose spoke with
police officers and identified defendant from a photo array.
¶ 17 Prisco and Ambrose reviewed the statement and Ambrose signed each page to show that it
was true and accurate. Ambrose stated that at the time of the shooting, he was not under the
influence of marijuana or alcohol but had smoked “a blunt” at 8 or 9 a.m.
¶ 18 ASA Joell Bisceglia testified that on April 29, 2013, Ambrose testified before the grand
jury regarding the incident. Bisceglia identified the transcript of Ambrose’s testimony, which she
published. Ambrose testified that he observed defendant, who was wearing a black hoodie, emerge
from an alley. Defendant stood behind JD and extended his arm; Ambrose then saw the flash of a
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firearm and heard two gunshots. JD fell to the ground and defendant walked back to the alley.
Ambrose subsequently identified defendant from a photo array. Ambrose testified that he had seen
defendant a few days earlier in a vehicle.
¶ 19 Tyson Kirkman testified that he had been convicted of possession of a controlled substance
and other offenses and was incarcerated in Indiana at the time of trial.
¶ 20 On April 1, 2013, Kirkman was with Hoskins and approximately seven other people at
74th and Eberhart. As they were talking, they heard gunshots and everyone ran. Kirkman fell and
“roll[ed]” onto a vehicle, then looked up and saw Hoskins fall backward. The person who shot
Hoskins was wearing a black hoodie with the hood raised. Kirkman could only see “a little” of the
person’s face, but knew the person was light-skinned. Kirkman testified that the shooter was
defendant, and identified him in court. Defendant turned and ran toward 75th into an alley. After
the police were called, Kirkman left the scene because he was on parole and house arrest and was
not supposed to be away from his house. Officers later contacted Kirkman and escorted him to a
police station, where he gave a statement on the evening of April 1, 2013.
¶ 21 On cross-examination, Kirkman stated that his side was to Hoskins at the time of the
shooting and he did not see the shooter approach. Kirkman took cover under a vehicle, looked up
as the shooter turned, and briefly saw the shooter’s face. Kirkman denied staying with his cousin,
Elizabeth Coats, after the incident or telling her that he was “on the run” from police officers
because he lied to them “that [defendant] shot [Hoskins].” Kirkman denied telling Coats that he
told officers that defendant shot Hoskins because “people in the neighborhood” told him to say
that defendant was the shooter.
¶ 22 The State also introduced footage from cameras at a building on the 7400 block of South
Eberhart. Detective Gregory Jones testified the footage showed a man in dark clothing walking
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eastbound through the alley toward Eberhart. The same person later ran back westbound through
the same alley. The man’s face was not visible.
¶ 23 For the defense, Coats testified that she saw her cousin, Kirkman, on April 10, 2013, and
he told her that he “got into some trouble.” Kirkman told Coats that at the time of the killing, he
was subject to a curfew and supposed to be at a halfway house. Kirkman also stated that he told
the police that he witnessed defendant kill Hoskins because “[h]is friends were threatening him,”
told him that defendant was a “problem,” and said they needed him “off the streets” as they were
in rival gangs. Kirkman told Coats that he “agreed with the police” because “the people” were
threatening to report him for violating parole and that he did not actually see who shot Hoskins.
¶ 24 Cleveland Dorsey testified that on April 1, 2013, he was outside with his cousin, Denone
Dorsey, near the scene of the incident. 3 At approximately 11 a.m., a man wearing a hoodie walked
past them to Hoskins, who had his back turned, and shot him twice. Cleveland saw the man’s face
and testified that he did not see the man in court. Cleveland contacted defense counsel after seeing
flyers in the neighborhood seeking information about the case because he wanted to do “the right
thing.”
¶ 25 On cross-examination, Cleveland stated that he knew defendant was arrested on April 15,
2013, but Cleveland did not speak to the police and only approached defense counsel in September
2015.
¶ 26 Denone testified that on April 1, 2013, he saw a person wearing a hood. Denone
remembered “a little bit of his face.” He did not know whether he knew the person from the
neighborhood, but the person was not defendant.
3 As Cleveland Dorsey and Denone Dorsey share the same surname, we will refer to them by their first names.
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¶ 27 Vernita Anderson, defendant’s mother, and Paris Fowler, defendant’s fiancée, testified that
defendant and Fowler attended church with Anderson on March 31, 2013, for Easter Sunday.
Anderson, Fowler, and defendant then traveled to Anderson’s home in University Park, where they
spent the night. Anderson testified that on April 1, 2013, defendant and Fowler were present when
she left for work around 6:30 a.m. Fowler testified that defendant was still in bed in Anderson’s
house at approximately 11:30 a.m. on April 1, 2013.
¶ 28 The jury found defendant guilty of first degree murder.
¶ 29 Posttrial Proceedings
¶ 30 Defendant filed a motion and amended motion for a new trial, attaching a notarized and
signed statement by Kirkman. Therein, Kirkman stated that he falsely identified “LP” as the
shooter because he feared for his and his family’s safety. The ASA told Kirkman that if he did not
“stick to [his] story,” he would be charged for the murder. The ASA added that she had a statement
from the victim’s sister saying that Kirkman was involved in Hoskins’ murder. Kirkman stated
that he was coming forward now because he relocated from Chicago and could not “move on”
knowing that he “sent an innocent man to prison for the rest of his life.”
¶ 31 At the hearing on defendant’s motion, Kirkman testified that he falsely identified defendant
as the shooter because people from the neighborhood threatened Kirkman and his family. Kirkman
did not see the shooter because he ducked under a vehicle and stayed there during the incident. He
did not see defendant at the scene of the shooting, did not see the shooter, and could not describe
anything about the shooter.
¶ 32 On cross-examination, Kirkman stated that he signed the affidavit the day he was released
from custody in Indiana. “Everybody” who disliked defendant threatened Kirkman and his family
after Hoskins was shot. Kirkman did not inform the police about the threats when he spoke to them
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on the day of the shooting. When Kirkman viewed the photo array, the detectives told Kirkman
that they knew the shooter’s identity and asked him to sign his name by defendant’s picture. When
Kirkman spoke to the ASA, she informed Kirkman that he could be charged as a conspirator and
that she had a statement from the victim’s sister saying that Kirkman was involved in Hoskins’
murder.
¶ 33 The court questioned Kirkman regarding his relationship with defendant. Kirkman had
grown up with defendant and they belonged to the same gang, the Gangster Disciples. Kirkman
also knew Hoskins for the same length of time; Hoskins, however, was involved in the Black
Disciples. Kirkman received threats by phone from private phone numbers. The callers told
Kirkman to leave town, so he changed his phone number. Callers also threatened his mother and
sister by phone. The individuals instructed Kirkman to identify defendant as the shooter. Kirkman
testified that telling the police that his family was in danger would have been “the wrong thing to
do.”
¶ 34 ASA Patricia Melin testified that she prosecuted the trial and spoke with Kirkman prior to
his testimony at trial. The defense attorney gave Melin a statement from Coats saying that Kirkman
“had changed his mind and was no longer going to identify *** defendant whom he referred to as
LP as the shooter.” Melin asked Kirkman if that was the case and he was “noncommittal but
indicated, yeah,” so Melin presumed that he would testify at trial consistently with Coats’
statement. Kirkman never told Melin about threats, and she never informed him that she had a
statement from the victim’s sister or implied that Kirkman would be charged with conspiracy to
commit murder.
¶ 35 The court denied defendant’s motion, finding that Kirkman’s recantation was not credible
because he failed to name who threatened him and, at trial, he had denied that his testimony was
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due to threats. Further, Kirkman identified defendant as the shooter to police within a few hours
of the murder. The court also found that Kirkman’s trial testimony was corroborated by other
substantive evidence, including Ambrose’s testimony before the grand jury and statement to police
and footage showing an individual matching defendant’s height and weight running with a firearm.
The court commented that Kirkman “signed a written statement identifying the defendant and
testified under oath before the Grand Jury consistent with that identification.”
¶ 36 After a hearing, defendant was sentenced to 65 years’ imprisonment.
¶ 37 Direct Appeal
¶ 38 On direct appeal, defendant argued, inter alia, that the trial court erred by denying his
motion for a new trial based on newly discovered evidence of actual innocence, namely Kirkman’s
recantation. Anderson, 2021 IL App (1st) 170658-U, ¶ 43.
¶ 39 We found that the trial court’s credibility findings regarding Kirkman’s recantation were
manifestly erroneous where its stated reasons were inconsistent with the record. Id. ¶ 47.
Specifically, the trial court commented that Kirkman signed a written statement identifying
defendant and testified before the grand jury regarding the identification. However, neither event
occurred, and nothing in the record supported the court’s statements. Id. It was Ambrose, not
Kirkman, who gave a written statement and testified before the grand jury. Id. Because the trial
court’s assessment of Kirkman’s credibility at the motion for a new trial was premised on its
improper characterization of the evidence, i.e., on Ambrose’s actions rather than on Kirkman’s,
we found defendant was entitled to a new adjudication of his motion for a new trial. Id. ¶ 50. We
did not reach the remaining issues raised in defendant’s appeal. Id. ¶ 43.
¶ 40 Hearing on Remand
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¶ 41 On remand, defendant’s motion for a new trial was adjudicated by a different judge. At the
new hearing on the motion, defendant did not present live witnesses but referenced the transcript
from the prior hearing and argued that Kirkman’s recantation “fits more into the case than his
actual testimony at trial.” Defendant argued Kirkman’s recantation established that he observed
the incident in his peripheral view and hid under a vehicle after he heard the gunshot, so he would
not have been able to see the shooter’s face. Further, Coats testified at trial that Kirkman confided
that he identified defendant as the shooter only because “people in the neighborhood” told him to
do so, which corroborated Kirkman’s recantation.
¶ 42 The State argued that the recantation was not newly discovered evidence because Kirkman
was a known witness prior to trial, had been cross-examined at trial regarding his inability to see
the shooter, and had testified regarding threats made against him in the neighborhood. Further, at
the hearing for the motion for a new trial, ASA Melin testified that she never threatened Kirkman
to induce him to testify against defendant. Moreover, the State argued, because Kirkman further
testified at the hearing that he had known defendant for a long time, his identification of defendant
as the shooter was not a case of mistaken identity.
¶ 43 The court denied defendant’s motion. In ruling, the court found that the evidence in
Kirkman’s affidavit was not newly discovered because defense counsel was on notice at trial about
Kirkman’s alleged statements to Coats and could have recalled him as a witness at trial. The court
also reviewed Kirkman’s trial testimony and found it to be credible because he “stood his ground”
when defense counsel impeached him, and his recantation was not credible. The court commented
that defense counsel’s decision not to recall Kirkman was strategic and not ineffective assistance.
¶ 44 ANALYSIS
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¶ 45 On appeal, defendant first argues that the court erred on remand in denying his motion for
a new trial because Kirkman’s recantation was newly discovered evidence and of such conclusive
character that it would probably change the result on retrial.
¶ 46 A new trial is warranted based on newly discovered evidence where:
“(1) it has been discovered since the trial; (2) it is of such a character that it could not
have been discovered prior to the trial by the exercise of due diligence; (3) it is material
to the issue but not merely cumulative; and (4) it is of such a conclusive character that it
will probably change the result on retrial.” People v. Williams, 295 Ill. App. 3d 456, 462
(1998).
We review the trial court’s denial of a motion for new trial for an abuse of discretion. Id. The
trial court can deny the motion for a new trial based upon newly discovered evidence without
holding a full evidentiary hearing, provided the decision is not an abuse of discretion. People v.
Smith, 177 Ill. 2d 53, 82 (1997)
¶ 47 Defendant contends that we should review the issue de novo because the judge who heard
the motion for a new trial on remand did not preside over defendant’s jury trial or hear testimony.
Thus, defendant contends, this court is in the same position as the circuit court to evaluate
Kirkman’s recantation. The State responds that the trial court made both factual and legal findings,
and we should review for an abuse of discretion. We need not decide this issue, however, because
the result is the same under either standard of review.
¶ 48 We find the circumstances here justify granting a new trial as Kirkman’s recantation was
newly discovered, material to the issue, and so conclusive that it would probably change the result
on retrial.
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¶ 49 First, the evidence was newly discovered since trial. At trial, Kirkman testified that he
observed defendant shoot Hoskins. Defense counsel cross-examined Kirkman about purportedly
telling Coats that the only reason Kirkman told officers defendant shot Hoskins was that Kirkman
was told to do so by “people in the neighborhood.” Kirkman, however, denied telling that to Coats.
After trial, Kirkman recanted his identification of defendant as the shooter, first in an affidavit and
then at the first hearing on the motion for a new trial, testifying that he named defendant because
people in the neighborhood threatened him. As, at trial, Kirkman specifically denied being told to
name defendant as the shooter, his subsequent recantation of that testimony is newly discovered.
See Williams, 295 Ill. App. 3d at 462.
¶ 50 The State contends that the evidence is not newly discovered because defendant was on
notice at trial regarding Kirkman’s recantation through Coats’ testimony. The State contends that
the jury heard Coats’ testimony regarding Kirkman’s recantation and rejected its veracity, and,
although Kirkman did not provide his affidavit until after trial, his recantation is “essentially” the
same as the impeachment testimony from Coats.
¶ 51 We disagree. Defendant was indeed on notice at trial that Kirkman allegedly informed
Coats that he lied to the police about defendant’s identity as the shooter. However, defendant cross-
examined Kirkman trial regarding his alleged statements to Coats, and Kirkman denied making
them. In other words, Kirkman specifically refused to recant his identification and acknowledge
he lied to police. Not until he provided his affidavit in support of defendant’s motion for a new
trial did he recant his identification. Accordingly, defendant’s due diligence could not have
compelled Kirkman to testify differently at trial. Accordingly, Kirkman’s posttrial recantation and
testimony at the motion for a new trial was newly discovered.
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¶ 52 Further, Kirkman’s recantation was material to the issue of defendant’s guilt and so
conclusive that it could probably change the result on retrial. The State presented no physical
evidence at trial linking defendant to the shooting. Although the State presented video evidence of
the shooter, the record does not establish that the shooter’s identity was clear from the footage.
Ambrose, the only other witness who identified defendant as the shooter, recanted his
identification at trial. Thus, Kirkman’s trial testimony was the strongest evidence implicating
defendant. Kirkman’s recantation is, thus, material to the issue of defendant’s guilt and so
conclusive that it could likely change the result on retrial. The trial court, therefore, abused its
discretion in denying defendant’s motion for a new trial based on newly discovered evidence. See
Williams, 295 Ill. App. 3d at 462.
¶ 53 For the foregoing reasons, we reverse the judgment of the circuit court of Cook County
and remand the matter for a new trial. In doing so, we reject the State’s position that the cause
should be remanded for a new hearing on defendant’s motion for a new trial. The record pertaining
to the motion has been developed and, as explained, the court erred in denying the motion. As we
are remanding for a new trial on this basis, we need not reach the remaining issues in defendant’s
appeal.
¶ 54 Reversed and remanded.
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