2023 IL App (1st) 230370-U
No. 1-23-0370
Filed November 22, 2023
Fourth 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. ) 09 CR 19109 ) TORRY CARROLL, ) Honorable ) Thomas Hennelly, Defendant-Appellant. ) Judge, Presiding.
JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Rochford and Justice Ocasio concurred in the judgment.
ORDER
¶1 Held: Affidavit from shooting victim recanting his identification of the defendant was not of such conclusive character to establish a colorable claim of actual innocence.
¶2 Torry Carroll appeals from the circuit court’s order denying his motion for leave to file a
successive post-conviction petition.1
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. No. 1-23-0370
¶3 Following a bench trial, Carroll was convicted of attempted first degree murder for
shooting DeFrantz Harrison in June 2009 and sentenced to a prison term of 28 years. At trial, both
Harrison and DeWayne Jackson testified that shortly after leaving a party, two men approached
the car they were driving in near the intersection of East 107th Street and South Langley Avenue
in Chicago and fired shots. Both Harrison and Jackson identified Carroll in court as one of the
shooters. Harrison was struck by a bullet, but Jackson was unharmed. Jackson promptly drove
Harrison to a nearby hospital. After being transferred to Christ Hospital, Harrison informed police
he knew one of the shooters as “Tank” and identified Carroll as “Tank” in a photo array. Harrison
was unable to write at the time due to bandaging on his hands. He directed his mother to sign the
advisory form related to the photo array and to write her initials above Carroll’s photograph.
¶4 Chicago Police Officer Corey Chapton was patrolling in the vicinity of the shooting when
he heard gun shots fired. Upon reaching 106th and Langley, Officer Chapton observed citizens
pointing toward Carroll, who was running eastward. Officer Chapton drove after Carroll in pursuit.
After Carroll jumped over a fence, Officer Chapton chased on foot and tackled him. Only three or
four minutes elapsed between the time Officer Chapton heard gunshots and the time he
apprehended Carroll.
¶5 The following day, Jackson viewed a physical lineup and identified Carroll as one of the
shooters. Jackson also knew Caroll as “Tank.” In his trial testimony, Jackson explained that he was
familiar with Carroll from seeing him around the neighborhood daily. As the shooting began,
Jackson observed Carroll coming from the sidewalk in front of his car, about 10 to 15 feet away.
Jackson saw a flash coming from Carroll’s hand and heard bullets strike the car. Though this
occurred at night, Jackson’s headlights were on, and Carroll was standing in a location illuminated
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by a streetlight. Jackson testified Carroll’s face was not covered and he had an unobstructed view
of him.
¶6 A forensic examiner found two gunshot residue particles from a swab of Carroll’s right
hand, which are “not normally found on a person’s hand.” However, the examiner explained that
the presence of two gunshot residue particles was consistent with “background samples” and one
short of the number of particles required for them to make a conclusive determination.
¶7 The trial court found Carroll guilty, and this court affirmed Carroll’s conviction on direct
appeal over his ineffective assistance and speedy trial claims. See People v. Carroll, 2013 IL App
(1st) 110819-U.
¶8 Carroll filed a post-conviction petition in 2014 alleging ineffective assistance of trial
counsel. His petition was summarily dismissed, and Carroll did not appeal. He sought leave to file
a successive petition in 2018, alleging multiple bases of ineffective assistance and that his
indictment was void. The circuit court denied his motion for leave to file and this court affirmed,
while allowing appointed appellate counsel’s motion to withdraw pursuant to Pennsylvania v.
Finley, 481 U.S. 551 (1987). People v. Carroll, No. 1-19-1064 (2020) (unpublished summary order
under Illinois Supreme Court Rule 23(c)).
¶9 In 2021, Carroll filed the instant motion for leave to file a successive post-conviction
petition along with a proposed petition asserting that he is actually innocent. The petition relied on
a 2021 affidavit from Harrison, which Carroll claimed was newly discovered. In the affidavit,
Harrison recounts the June 2009 shooting but states that he could not identify any of the shooters
as he had ducked down immediately as the shooting started. While at the hospital, detectives
“argued and yelled” at him to identify Carroll. Harrison denies that he ever told his mother to sign
any photographs and denies he witnessed her do so. He only testified in Carroll’s trial, he states,
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because police and prosecutors threatened him with jail. Harrison also states that Jackson informed
him before Carroll’s trial that police and prosecutors were pressuring him to testify. He further
states that “in my opinion, due to the sudden appearance of these shooters and my reaction, I do
not believe DeWayne Jackson could have identified anyone either.”
¶ 10 The trial court denied Carroll’s motion for leave to file. In an oral ruling, the court observed
that Harrison provided his affidavit 11 years after Carroll’s trial, and it amounted to a recantation
of Harrison’s trial testimony and an admission of perjury. Carroll filed a timely notice of appeal.
¶ 11 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) allows an
imprisoned person to challenge their conviction on constitutional grounds apart from a direct
appeal. Successive petitions are disfavored as they “plague the finality of criminal litigation.”
People v. Tenner, 206 Ill. 2d 381, 392 (2002). Thus, a petitioner seeking to file a successive petition
must first obtain leave from the circuit court by demonstrating either (1) cause and prejudice for a
claim of trial error not raised previously or (2) a colorable claim of actual innocence. People v.
Coleman, 2013 IL 113307, ¶ 96.
¶ 12 To establish a colorable claim of actual innocence, as asserted here, a petitioner must
present evidence that is (1) newly discovered, (2) material and not merely cumulative, and (3) of
such conclusive character that it would probably change the result on retrial. People v. Robinson,
2020 IL 123849, ¶ 47. Evidence is newly discovered when discovered after trial and the petitioner
could not have discovered it earlier through due diligence. Coleman, 2013 IL 113307, ¶ 96.
Evidence is material if probative of the petitioner’s innocence. Id. Noncumulative evidence adds
to the information the fact finder heard at trial. Id. And evidence is of conclusive character to
innocence if, when considered along with the trial evidence, it would probably lead to a different
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result. Id.
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2023 IL App (1st) 230370-U
No. 1-23-0370
Filed November 22, 2023
Fourth 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. ) 09 CR 19109 ) TORRY CARROLL, ) Honorable ) Thomas Hennelly, Defendant-Appellant. ) Judge, Presiding.
JUSTICE MARTIN delivered the judgment of the court. Presiding Justice Rochford and Justice Ocasio concurred in the judgment.
ORDER
¶1 Held: Affidavit from shooting victim recanting his identification of the defendant was not of such conclusive character to establish a colorable claim of actual innocence.
¶2 Torry Carroll appeals from the circuit court’s order denying his motion for leave to file a
successive post-conviction petition.1
1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. No. 1-23-0370
¶3 Following a bench trial, Carroll was convicted of attempted first degree murder for
shooting DeFrantz Harrison in June 2009 and sentenced to a prison term of 28 years. At trial, both
Harrison and DeWayne Jackson testified that shortly after leaving a party, two men approached
the car they were driving in near the intersection of East 107th Street and South Langley Avenue
in Chicago and fired shots. Both Harrison and Jackson identified Carroll in court as one of the
shooters. Harrison was struck by a bullet, but Jackson was unharmed. Jackson promptly drove
Harrison to a nearby hospital. After being transferred to Christ Hospital, Harrison informed police
he knew one of the shooters as “Tank” and identified Carroll as “Tank” in a photo array. Harrison
was unable to write at the time due to bandaging on his hands. He directed his mother to sign the
advisory form related to the photo array and to write her initials above Carroll’s photograph.
¶4 Chicago Police Officer Corey Chapton was patrolling in the vicinity of the shooting when
he heard gun shots fired. Upon reaching 106th and Langley, Officer Chapton observed citizens
pointing toward Carroll, who was running eastward. Officer Chapton drove after Carroll in pursuit.
After Carroll jumped over a fence, Officer Chapton chased on foot and tackled him. Only three or
four minutes elapsed between the time Officer Chapton heard gunshots and the time he
apprehended Carroll.
¶5 The following day, Jackson viewed a physical lineup and identified Carroll as one of the
shooters. Jackson also knew Caroll as “Tank.” In his trial testimony, Jackson explained that he was
familiar with Carroll from seeing him around the neighborhood daily. As the shooting began,
Jackson observed Carroll coming from the sidewalk in front of his car, about 10 to 15 feet away.
Jackson saw a flash coming from Carroll’s hand and heard bullets strike the car. Though this
occurred at night, Jackson’s headlights were on, and Carroll was standing in a location illuminated
-2- No. 1-23-0370
by a streetlight. Jackson testified Carroll’s face was not covered and he had an unobstructed view
of him.
¶6 A forensic examiner found two gunshot residue particles from a swab of Carroll’s right
hand, which are “not normally found on a person’s hand.” However, the examiner explained that
the presence of two gunshot residue particles was consistent with “background samples” and one
short of the number of particles required for them to make a conclusive determination.
¶7 The trial court found Carroll guilty, and this court affirmed Carroll’s conviction on direct
appeal over his ineffective assistance and speedy trial claims. See People v. Carroll, 2013 IL App
(1st) 110819-U.
¶8 Carroll filed a post-conviction petition in 2014 alleging ineffective assistance of trial
counsel. His petition was summarily dismissed, and Carroll did not appeal. He sought leave to file
a successive petition in 2018, alleging multiple bases of ineffective assistance and that his
indictment was void. The circuit court denied his motion for leave to file and this court affirmed,
while allowing appointed appellate counsel’s motion to withdraw pursuant to Pennsylvania v.
Finley, 481 U.S. 551 (1987). People v. Carroll, No. 1-19-1064 (2020) (unpublished summary order
under Illinois Supreme Court Rule 23(c)).
¶9 In 2021, Carroll filed the instant motion for leave to file a successive post-conviction
petition along with a proposed petition asserting that he is actually innocent. The petition relied on
a 2021 affidavit from Harrison, which Carroll claimed was newly discovered. In the affidavit,
Harrison recounts the June 2009 shooting but states that he could not identify any of the shooters
as he had ducked down immediately as the shooting started. While at the hospital, detectives
“argued and yelled” at him to identify Carroll. Harrison denies that he ever told his mother to sign
any photographs and denies he witnessed her do so. He only testified in Carroll’s trial, he states,
-3- No. 1-23-0370
because police and prosecutors threatened him with jail. Harrison also states that Jackson informed
him before Carroll’s trial that police and prosecutors were pressuring him to testify. He further
states that “in my opinion, due to the sudden appearance of these shooters and my reaction, I do
not believe DeWayne Jackson could have identified anyone either.”
¶ 10 The trial court denied Carroll’s motion for leave to file. In an oral ruling, the court observed
that Harrison provided his affidavit 11 years after Carroll’s trial, and it amounted to a recantation
of Harrison’s trial testimony and an admission of perjury. Carroll filed a timely notice of appeal.
¶ 11 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2020)) allows an
imprisoned person to challenge their conviction on constitutional grounds apart from a direct
appeal. Successive petitions are disfavored as they “plague the finality of criminal litigation.”
People v. Tenner, 206 Ill. 2d 381, 392 (2002). Thus, a petitioner seeking to file a successive petition
must first obtain leave from the circuit court by demonstrating either (1) cause and prejudice for a
claim of trial error not raised previously or (2) a colorable claim of actual innocence. People v.
Coleman, 2013 IL 113307, ¶ 96.
¶ 12 To establish a colorable claim of actual innocence, as asserted here, a petitioner must
present evidence that is (1) newly discovered, (2) material and not merely cumulative, and (3) of
such conclusive character that it would probably change the result on retrial. People v. Robinson,
2020 IL 123849, ¶ 47. Evidence is newly discovered when discovered after trial and the petitioner
could not have discovered it earlier through due diligence. Coleman, 2013 IL 113307, ¶ 96.
Evidence is material if probative of the petitioner’s innocence. Id. Noncumulative evidence adds
to the information the fact finder heard at trial. Id. And evidence is of conclusive character to
innocence if, when considered along with the trial evidence, it would probably lead to a different
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result. Id. The conclusive character of the new evidence is the most important element of an actual
innocence claim. People v. Washington, 171 Ill. 2d 475, 489 (1996).
¶ 13 In deciding whether leave should be granted to file a successive petition asserting actual
innocence, we consider whether the evidence supporting the petition places the trial evidence in a
different light and undermines our confidence in the judgment of guilt. Robinson, 2020 IL 123849,
¶ 48. We take all well-pled allegations in the petition and supporting affidavits as true unless
positively rebutted by the trial record. Id. ¶ 45.
¶ 14 We review the circuit court’s denial of a motion for leave to file a successive
post-conviction petition de novo. People v. Maclin, 2021 IL App (1st) 172254, ¶ 13. De novo
review means we assess the motion anew—the same as if the matter had not been heard before
and as if no decision had been rendered previously. Ryan v. Yarbrough, 355 Ill. App. 3d 342, 346
(2005).
¶ 15 Here, Carroll submits Harrison’s affidavit as newly discovered evidence of his actual
innocence. The parties dispute whether the affidavit constitutes newly discovered evidence. We
observe that neither the motion, the proposed verified petition, nor Harrison’s affidavit contain any
explanation of how and when Carroll discovered Harrison’s recantation. A defendant seeking relief
based on newly discovered evidence has the burden of demonstrating “that there has been no lack
of due diligence on his [or her] part.” People v. Wingate, 2015 IL App (5th) 130189, ¶ 26 (quoting
People v. Harris, 154 Ill. App. 3d 308, 318 (1987)). Conclusory assertions are insufficient. People
v. Beard, 2023 IL App (1st) 200106, ¶ 53. This court has required more specific facts to establish
a recanting trial witness’s affidavit as newly discovered. See People v. Wideman, 2016 IL App (1st)
123092, ¶ 60 (“there needs to be more factual support for [the] claim that this is ‘newly discovered’
evidence which could not have been uncovered by due diligence.”). However, the record may
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supply such facts in some circumstances. See People v. Smith, 2015 IL App (1st) 140494, ¶ 19
(“the record supports the conclusion that [the witness’s] recantation qualifies as newly discovered
evidence *** no amount of due diligence would have allowed [the petitioner] to secure [the
witness’s] recantation of his identification prior to trial where [the witness] averred that he believed
in the identification’s accuracy at that time.”).
¶ 16 Nevertheless, we need not decide the issue since we can dispose of this appeal based on
the most important element—whether the affidavit is of such conclusive character to probably
change the result on retrial. Harrison’s affidavit is insufficient to raise the probability of a different
result. “For purposes of the actual innocence exception, actual innocence means factual innocence,
not mere legal insufficiency.” (Internal quotation marks omitted.) People v. Quickle, 2020 IL App
(3d) 170281, ¶ 20 (cited approvingly by People v. Taliani, 2021 IL 125891, ¶ 58). Actual innocence
means that the person did not commit the crime. People v. Hood, 2021 IL App (1st) 162964, ¶ 27.
¶ 17 Harrison offers no evidence that Carroll did not commit the shooting near 107th and
Langley in June 2009. Taking the allegations of his affidavit as true, Harrison’s recantation only
means he does not know who committed the shooting. His asserted inability to identify Carroll as
a shooter does not undermine our confidence in Carroll’s guilt. It only removes one piece of the
evidentiary puzzle assembled in the original trial. In general, newly discovered evidence meeting
the conclusive character standard does more than that. Cf. Smith, 2015 IL App (1st) 140494, ¶ 12
(witness recanting identification of defendant as the shooter identified a different person in
affidavit supporting petition); People v. Morgan, 212 Ill. 2d 148, 152 (2004) (recanting eyewitness
to double murder claimed one victim killed the other and defendant killed the second victim in
self-defense); Robinson, 2020 IL 123849, ¶¶ 25-29 (newly discovered witnesses to a murder
affirmatively excluded petitioner from involvement).
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¶ 18 Harrison’s identification of Carroll as one of the shooters was cumulative of Jackson’s
identification. Harrison’s affidavit refutes neither Jackson’s identification nor the other
circumstances implicating Carroll in the shooting—that he was in the vicinity, fled from police,
and some gunshot residue particles were found on his hand. At trial, Jackson gave specific details
as to how he was able to observe that Carroll was one of the people shooting, including their
relative positions, the distance between them, and lighting conditions. In his affidavit, Harrison
provides no specific facts to support the conclusion that Jackson could not have identified the
shooters. He only states an unsupported, conclusory opinion that he does not believe Jackson could
have identified the shooters. His opinion is not a well-pled fact that we are required to take as true.
People v. Burt, 205 Ill. 2d 28, 35-36 (2001) (“nonfactual and nonspecific assertions which merely
amount to conclusions are insufficient”).
¶ 19 Ultimately, Harrison’s affidavit fails to place the trial evidence in a different light or
undermine our confidence in Carroll’s guilt. Accordingly, we find Carroll failed to make a
colorable claim of actual innocence and the circuit court properly denied him leave to file a
successive postconviction petition.
¶ 20 Affirmed.
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