People v. Dugar

2021 IL App (1st) 182545-U

• Court: Appellate Court of Illinois
• Decided: April 9, 2021
• Docket: 1-18-2545
• Status: Unpublished

Opinion

2021 IL App (1st) 182545-U No. 1-18-2545 Order filed April 9, 2021 Sixth 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 ______________________________________________________________________________ PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 03 CR 11024 ) KEVIN DUGAR, ) Honorable ) Vincent M. Gaughan, Defendant-Appellant. ) Judge, Presiding.

JUSTICE ODEN JOHNSON delivered the judgment of the court.

Presiding Justice Mikva concurred with the judgment. Justice Harris dissented.

ORDER

¶1 Held: We reverse the trial court’s denial of postconviction relief on defendant’s successive postconviction petition after a third stage hearing, where defendant’s newly discovered evidence was of conclusive character necessary to demonstrate actual innocence, and remand for new trial before a different judge.

¶2 Following a jury trial, defendant was found guilty of first degree murder of Antwan Taylor,

attempted murder of Ronnie Bolden, and aggravated battery with a firearm of Ronnie Bolden. The No. 1-18-2545

trial court sentenced defendant to consecutive prison terms of 48 years for first degree murder,

including a 25-year firearm enhancement for personally discharging a firearm which caused death,

and six years for attempted murder. Defendant’s convictions and sentences were affirmed on

appeal. People v. Dugar, No. 1-05-1669 (2007) (unpublished order pursuant to Supreme Court

Rule 23). On August 6, 2008, defendant filed an initial pro se postconviction petition alleging

ineffective assistance of counsel which was summarily dismissed by the trial court on October 28,

2008. On March 17, 2015, defendant sought leave to file a successive postconviction petition

alleging actual innocence based on an affidavit from his twin brother Karl Smith 1. The trial court

granted defendant leave to file, and the proceedings advanced to a third stage evidentiary hearing

at the request of the State. On October 23, 2018, the trial court denied the petition after the

evidentiary hearing and this appeal followed.

¶3 On appeal, defendant contends that: (1) he is entitled to a new trial where newly discovered

evidence, which is conclusive in character, consists of his identical twin brother’s postconviction

confession to the crime; and (2) a new trial judge should be assigned given the postconviction

judge’s factual findings that demonstrate he would not believe defendant’s critical defense witness.

For the following reasons, we grant the petition for postconviction relief and remand back to the

circuit court for retrial before a different judge.

¶4 BACKGROUND

¶5 A. Trial Proceedings

¶6 Defendant was charged with first degree murder of Taylor, and attempted murder and

aggravated battery with a firearm of Bolden, in connection with a shooting that occurred on March

1 Karl uses his mother’s maiden name of Smith.

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22, 2003. At defendant’s jury trial, several witnesses testified to the events that occurred on the

night of the offenses.

¶7 Monique Boykins testified for the State that on March 22, 2003, she was riding in a truck

with Bolden and a man she later learned was Taylor, in the vicinity of 4945 North Sheridan

Avenue 2 in Chicago shortly before 8 p.m. After parking the vehicle near Sheridan and Argyle,

they began to walk towards a building. Boykins testified that as she reached the curb, someone

began shooting. Boykins did not know or could not remember most of the subsequent events of

the night. When asked if she saw the person in court that day who shot Taylor, she testified that

she saw the person who “they” told her did it and that she did not know who did it. Boykins

recalled that she went to the police station on Belmont and Western on April 28, 2003, where she

viewed a lineup. The State then showed Boykins a photograph of defendant, who she picked from

the lineup at the police station and asked if that was the person that she told the detectives she saw

shoot Taylor and Bolden. In response, Boykins stated that the detectives pointed defendant out to

her and told her that the person was named “Twin.”

¶8 Boykins subsequently identified the statement that she signed and initialed when she went

to the police station on April 28, 2003. Although the statement identified defendant as the person

who shot the victims, at trial, Boykins testified that he was not the shooter. Boykins explained that

she remained at the police station for over 15 hours and tried to tell the State’s Attorney and

detectives what she knew, but they kept telling her different things. She just wanted to go home so

she ultimately just agreed with them.

¶9 Finally, the State asked Boykins if she remembered going to the grand jury after speaking

with the assistant State’s Attorney and detective and signing the statement. While she could not

2 We take judicial notice that the correct address is 4945 North Sheridan Road.

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recall what day she went, she did recall going and when asked if she told the truth Boykins

responded, “I guess so.” She also indicated that she could not remember the specific questions

asked or the answers given.

¶ 10 On cross-examination, Boykins testified that while she had not seen Bolden since the

shooting, she was threatened by Bolden the day before trial to positively identify defendant.

Bolden also previously threatened Boykins in February of 2005.

¶ 11 Bolden testified for the State that on March 22, 2003, shortly before 8 p.m., he was driving

his maroon Suburban with Boykins and stopped at Munchies restaurant to pick up Taylor, who he

knew from the neighborhood. At the time, Bolden was a member of the Blackstones street gang

along with Taylor, although he had previously been a member of the Mafia Insane Vice Lords.

The Blackstones gang territory, at the time, consisted of four corners: Argyle and Sheridan; Foster

and Sheridan; Foster and Broadway; and Argyle and Broadway.

¶ 12 After Taylor entered the vehicle, they sat and talked for 10 minutes, before leaving to pick

up and drop off another person. Bolden then came back around the block and double parked at the

corner of Argyle and Sheridan, facing south. There was a store at the corner, and Taylor left the

vehicle to go inside to buy something. While sitting at the corner, Bolden noticed defendant, who

he knew was a Vice Lord. Defendant was wearing a black jacket, hat and pants. After Taylor went

in the store, he could no longer see defendant. Once Taylor returned, they decided to go into a

building, so Bolden parked the vehicle across the street near 4945 North Sheridan Road. Bolden,

Boykins, and Taylor all left the vehicle, but Bolden forgot something, so he headed back to the car

to retrieve it. At this time, Boykins was in the middle of the street. Bolden turned around and saw

defendant emerge from behind a van, coming north. Bolden walked towards Boykins and recalled

looking down while a car sped past him. As he looked up, he heard Taylor ask “what?” He then

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saw defendant. Bolden made an in-court identification of defendant as the person he saw that night.

As Bolden saw defendant emerge from a van coming north, he also saw Taylor come from the

south of the street. Defendant grabbed and bumped into Taylor, knocking him to the ground. When

defendant was approximately one or two feet from Taylor, he shot Taylor in the chest. Bolden

rushed to Taylor when defendant pointed the gun at him from approximately 8 to 10 feet away.

Bolden then heard defendant say, “Blackstone killer bitch,” before shooting him twice in the chest.

After being shot, Bolden turned away and ran north on Argyle at an angle. As he ran, Bolden was

shot in the back and hand and was subsequently hit by a van. While Bolden laid on his back in the

street, he was able to hear defendant’s gun jam, which prevented him from shooting Bolden again.

Bolden stated he was conscious the entire time and was able to observe his surroundings.

Defendant then ran, while talking on a phone, into Buttercup Park which was approximately 15 to

20 feet from where Bolden lay on the street.

¶ 13 Bolden testified that he had known the defendant for approximately 9 or 10 years. He knew

that defendant was a member of the Conservative Vice Lords, a different fraction of his former

gang. Bolden and defendant lived in the same building 3 and he saw him “every day [sic]” from the

period of April 17 to May 18, 2002. They would conversate in the halls in passing.

¶ 14 Bolden also testified to knowing defendant’s brother Karl for the same amount of time.

Bolden said he could differentiate between the two twins because defendant has always been

stouter than Karl, indicating that defendant probably weighed 30 to 40 pounds more than Karl.

Bolden also recalled that he was sure it was defendant on the night of the shooting because, at “that

time he had his little beard and a braid that night. I remember it was in a braid.”

3 Defendant and Bolden lived in the same building while incarcerated.

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¶ 15 While in the hospital, Bolden was visited by the police on several occasions but did not

speak to them. Initially, Bolden refused to identify anyone involved in the shooting and would

only give a physical description; he was going to handle this matter in the streets. However, he

testified that he finally decided to tell the police and identified defendant’s photo because, “I

couldn't hide from him no more; it was staring right there in my face.” 4

¶ 16 On cross-examination, Bolden revealed he did not want to tell the police who shot him

because of gang retaliation 5. He additionally stated that he told police that he knew the shooter

was a twin, and that defendant was also known as “C”, short for “CVL,” which is how all members

of the Conservative Vice Lords were identified.6 He also told the police that defendant typically

hung out near Kedzie and Lawrence.

¶ 17 Thomas J. Ginnelly, a forensic investigator with the Chicago Police Department, testified

that on the evening of March 22, 2003, he was assigned to process the scene at 4945 North Sheridan

Road, and he arrived shortly after 9 p.m. Ginnelly took photos of the scene and collected, sealed

and inventoried cartridge cases and clothing recovered from the scene. The evidence was then sent

to the Illinois State Police Crime Laboratory (Crime Lab), for examination. The Crime Lab’s report

indicated that it received: two Winchester 380 cartridge cases that were recovered from the street

at 4945 North Sheridan Road; two 380 auto cartridge cases recovered from 4945 North Sheridan

Road; a fired bullet recovered from 4944 North Sheridan Road; and a single medium caliber copper

bullet also recovered from 4944 North Sheridan Road. Ginnelly testified that all the bullets could

4 Bolden does not give an exact date of when he identified defendant from the photo array. 5 Bolden recalled Vice Lord members walking the halls outside of his hospital room. 6 Defense counsel confirmed through further questioning that Bolden had also identified other Vice Lords members, that he knew personally, to police.

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have been fired from the same type of gun, however, he was not a firearms expert and could not

determine if they all came from the same exact gun. 7

¶ 18 Assistant State’s Attorney Merle Shearer (ASA Shearer) testified that sometime after 11

a.m. on April 28, 2003, he and Detective Bocconcelli, spoke to Boykins. The conversation lasted

for approximately 20 minutes, during which Boykins generally told them about the events of

March 22, 2003. At approximately 11:45 a.m., ASA Shearer went over Boykins’ statement, this

time handwriting the statement with her permission. They each reviewed the statement, signed

every page, and initialed any changes. He told Boykins that her signature was “[her]affirmation or

* * * agreement that that [sic] is true and accurate as *** read *** and we've gone through it now.”

Additionally, Boykins reviewed and signed the photographs as they reviewed the statement.

Exhibit A was a photo Boykins identified as Bolden. Exhibit B was simply referenced as the person

in Exhibit B by Boykins; it was a photo of Taylor. The person in exhibit C was identified by

Boykins as the shooter.

¶ 19 ASA Shearer published Boykins’ April 28, 2003, statement regarding the shooting to the

jury. The statement provided that Boykins was picked up by Bolden in his truck, who she identified

as the person in exhibit A. They drove to pick up a friend of Bolden’s who she identified as the

person in exhibit B: Taylor. Other people were picked up and subsequently dropped off. At around

8 p.m., Bolden parked at Argyle and Sheridan. Boykins, Bolden, and Taylor left the truck. She

noticed someone behind them as they crossed the street. As they were walking across the street,

she saw a man come from the north side of the street, as she was standing in the middle of the

street. Bolden and Taylor were on opposite sides of her. Boykins described the man who

7 Ginnelly also testified that a paring knife was found on the street at the scene and submitted for examination, however, he did not know whether it was connected to the shooting.

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approached them as being dressed in black pants and a black hoodie that was over his head. The

man put his left arm around Taylor’s shoulder, and his right hand was at his chest level, she then

heard three shots and Taylor fell to the ground. She then saw the man turn to Bolden and she heard

another shot as Bolden ran toward his truck. As Bolden was running, the shooter ran towards a

park but turned his body and fired two or three more shots at Bolden. Boykins tried to run to get

help, but the doors to the building she ran to were locked. When she looked back, she saw Bolden

on the ground. Boykins saw a woman who had stopped her car call police. Boykins identified the

shooter as the person in exhibit C.

¶ 20 Boykins stated that on April 28, 2003, she went to Area Three police headquarters and

viewed a line up. Only one of the twins was included in the lineup; Karl was not present. She

identified number four, which was defendant, as the shooter and the person in exhibit C of the

April 28, 2003, statement. Boykins stated that after recognizing number four, she saw through the

one-way glass that he mouthed the words, “[p]lease, I didn't do it. Don't put me in jail.” This

testimony was confirmed by Chicago Police detective Steven Bocconcelli (Bocconcelli) who

stated that as he started to get the lineup participants- ready, defendant talked towards the one-way

glass and stated, ''[p]lease, I didn't do it. Don't put me in jail.” Boykins and his partner were not

visible to him on the other side, so he was unsure if they heard and saw who said that, nevertheless

he told the defendant not to say it again and to shut up, but defendant continued to say it. Detective

Ronald Yawger (Detective Yawger), Bocconcelli’s partner, was present with Boykins and

confirmed that he too heard defendant say “[p]lease, I didn't do it. Don't put me in jail.”

¶ 21 On re-direct examination, ASA Shearer testified that he remembered Boykins’ demeanor

as being “scared to death,” although she did not indicate that she feared the police or ASA Shearer.

On re-cross examination, ASA Shearer testified that he asked Boykins what she was afraid of and

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she told him she was afraid of “the subject who had done the shooting and or his associates.” He

did not include this in Boykin’s statement because he did not think it was relevant at the time.

¶ 22 Assistant State’s Attorney Daniel Faermark (ASA Faermark) testified that on April 28,

2003, he was assigned to Branch 66 where he presented witnesses and cases to the grand jury. On

that day, he met with Detective Bocconcelli and Boykins at approximately 1 p.m. regarding the

shooting of Taylor and Bolden. ASA Faermark showed Boykins the three photographs and

handwritten statement that she gave earlier before taking her to the grand jury for questioning.

¶ 23 After review and confirmation, ASA Faermark then published the transcript of the grand

jury proceedings to the jury at defendant’s trial. According to the transcript, Boykins testified in a

manner consistent with the handwritten statement that had been given to ASA Shearer. ASA

Faermark further testified that Boykins was always cooperative and at no point did Boykins say

she wanted to leave.

¶ 24 Nurse Elizabeth Sanchez (Nurse Sanchez) testified that at approximately 8 p.m. on March

22, 2003, she was driving north on Sheridan Road near Argyle on her way to work when she heard

a noise. She wasn’t sure if “it was a bang or something,” so she pulled over to see what was going

on. While she was facing north, she saw two men and a woman standing on the right side of the

sidewalk. The two men walked in front of her car, they were approximately six to seven feet away.

One of the men pointed a gun at the other, she looked down, and then heard shots fired. She did

not get a good look of the shooter because she was focused on not hitting them and did not want

to get involved. She feared she would be shot as well. Nurse Sanchez testified that it was dark at

the time and she could only describe the shooter as a black man who had on a hoodie. In total, she

heard at least three gun shots. Although she was looking down, she could tell that the shooter ran

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past her car heading south. After seeing the victim laying in the street, she called 911 and attempted

to render some aid.

¶ 25 On cross-examination, Nurse Sanchez clarified that the two men on the sidewalk were the

same men who walked in front of her car, east to west, leaving the woman on the sidewalk alone.

The woman ran, but after the shooting stopped, she stood near the man that was lying on the street.

¶ 26 Brian Wilson, at the time of the offense, was a forensic scientist who specialized in firearms

identification with the Illinois State Police. He testified that he examined the four fired cartridge

cases and they were all 380 calibers. It was his opinion that all four of the cartridge cases were

fired from the same gun. Wilson then identified two fired bullets and a jacket bullet fragment,

which he determined were consistent with a 380 caliber firearm. He testified that he could not

exclude or include them as being fired from the same firearm.

¶ 27 Detective Bocconcelli testified that he was assigned to the Area Three Detective Division

located at Belmont Street and Western Avenue and was assigned to investigate the March 23,

2003, shooting. On April 23, 2003, Bocconcelli interviewed Melvin Hughes, a Conservative Vice

Lord member that he was familiar with, regarding the shooting of Taylor and Bolden.8 Hughes

stated he witnessed a shooting on Argyle and Sheridan and that the shooter was named “Twin.”

Hughes was shown a photo array of five known Vice Lord members from the area of Sheridan

Road and Wilson Avenue. While both brothers were known by the same nickname of “Twin”,

Hughes identified the shooter by his legal name of Kevin Dugar, the defendant, and defendant’s

brother as Karl Dugar. He had known the brothers for about 10 years and could tell them apart

8 On cross-examination, Bocconcelli testified that he had the narcotics division conduct narcotics buys in the area of Wilson and Sheridan, from Vice Lord members, so that there would be Vice Lords in custody for him to question about the shooting of Taylor and Bolden. On April 24, 2003, he was advised that there were several Vice Lords in custody, including Hughes.

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because he knew them and saw them every day. His statements to Bocconcelli were consistent

with the statements of other witnesses.

¶ 28 On April 24, 2003, Bocconcelli spoke with Bolden. Bocconcelli set up a photo array for

Bolden to view and asked him if he recognized anyone in the photos. Bolden pointed to defendant’s

picture and he identified him as the person who shot him and Taylor.

¶ 29 Defendant did not present any witnesses and did not testify.

¶ 30 The jury found defendant guilty of first degree murder, attempted murder, and aggravated

battery with a firearm. Defendant’s posttrial motion for a new trial was denied. The trial court

subsequently sentenced defendant to six years for attempted murder, 23 years for first degree

murder with a 25-year firearm enhancement; all to be served consecutively. In the interest of

justice, the trial court did not enter a sentence for the aggravated battery charge.

¶ 31 Defendant’s direct appeal followed.

¶ 32 B. Direct Appeal

¶ 33 On direct appeal, defendant alleged that the arguments advanced by the State denied him a

fair trial. Specifically, defendant alleged that during closing arguments, the prosecutor misstated

evidence, inflamed the jury’s passions, shifted the burden of proof, and improperly explained the

burden of proof. Next, defendant alleged the cumulative effect of the State’s inappropriate remarks

required a reversal. However, defendant failed to object and include these arguments in a posttrial

motion. Therefore, this court found that the claims were not properly preserved. This court rejected

defendant’s plain error argument because the evidence was not closely balanced in order to

constitute plain error. As for the cumulative effect, this court found that the State’s remarks did

not create a pervasive pattern of unfair justice. Defendant’s sentences and convictions were

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affirmed. People v. Dugar, No. 1- 05-1669 (2007) (unpublished order pursuant to Supreme Court

Rule 23).

¶ 34 C. Postconviction Proceedings

¶ 35 On August 6, 2008, defendant filed his initial pro se postconviction petition, alleging that:

(1) he received ineffective assistance of trial counsel, and (2) the trial court failed to ensure an

unbiased jury and allowed the prosecution to present evidence of defendant’s gang affiliation. The

trial court determined that the issues raised by defendant were frivolous and patently without merit

and therefore summarily dismissed the petition on October 28, 2008. On January 5, 2009,

defendant filed a notice of appeal regarding the dismissal of his pro se post-conviction petition,

and his late notice of appeal was denied.

¶ 36 On March 17, 2015, defendant sought leave to file a successive postconviction petition

alleging actual innocence in the trial court. Defendant alleged that his twin brother, Karl Smith,

confessed to committing the offenses that defendant was convicted of. Karl submitted an affidavit

dated July 9, 2014, in which he confessed to the shooting. On June 10, 2015, the trial court

advanced the petition to the second stage based on a substantial showing of a violation of

defendant’s constitutional right.

¶ 37 On December 16, 2015, the State filed a response seeking to advance the proceedings to a

third stage evidentiary hearing in order to directly challenge the statements contained in Karl’s

affidavit and the circumstances that led to its production. The trial court granted the State’s request

and on September 22, 2016, the evidentiary hearing commenced.

¶ 38 Karl testified on behalf of defendant that he used the names Karl Smith, Karl Dugar, Karl

Johnson, and Kevin Dugar. At the time of his testimony, he was incarcerated for two attempted

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murders, home invasion, aggravated battery with a firearm, and armed robbery. Those convictions

were under the name Karl Smith.

¶ 39 In March of 2003, he was involved with “drug activity” around Lawrence and Kedzie

Avenues, as well as Sheridan Road and Wilson Avenue. He was a member of the Conservative

Vice Lords and his nickname on the street was “Twin.” At the time, his gang was at war with the

Black P Stones over drug territory. His brother, the defendant herein, had been in the same gang

with him but was not an active member; after he was paroled in 2003, defendant denounced his

gang affiliation. According to Karl, defendant was not involved in any gang activity and instead

was involved in cutting hair, looking for work, and writing a book. At the time defendant was

paroled, defendant was the same weight as Karl and no longer 30 or 40 pounds heavier. Upon

being shown his State of Illinois identification card that was issued on February 3, 2003, Karl

stated that the photo accurately showed how he looked at the time; it showed him with a beard that

had been braided into three braids.

¶ 40 According to Karl, on March 22, 2003, at about 3 p.m., he threw a gathering for his family

and friends, which Defendant attended. At about 7:45 p.m., Karl changed his clothes to all-black

attire and left the party to go purchase some marijuana with his friend Gabriel Curiel, who went

by the nickname “Outlaw.” They drove Curiel’s black Lexus to Sheridan Road and Argyle Street

to meet a friend. When they arrived at that location, they parked the vehicle on the north side of

Argyle, facing west. Karl crossed to the east side of the street 9 towards his friend’s building when

a maroon SUV stopped in front of him. Two people jumped out who he identified as Bolden and

Taylor10; he regularly saw Taylor with Bolden and recognized them to be brothers. Karl did not

9 We presume that he was referring to the east side of Sheridan. This court takes judicial notice that Argyle travels east and west with parking on the north and south sides. Sheridan travels north and south with parking on the east and west sides of the street. 10 Karl identifies the victim Taylor as Twan, we will continue to identify him as Taylor.

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socialize with Bolden but knew him from the neighborhood. He then saw Boykins, who he was

also familiar with, exit the truck.

¶ 41 Karl testified that when the parties jumped out of their vehicle, it appeared that Bolden was

about to pull a gun on him. At that point, he pulled out his 380-automatic and fired six or seven

shots until the gun jammed. He then retrieved a revolver and fired an additional three shots. Karl

was standing on the east side of Sheridan Road when he began shooting. After he switched guns,

he ran back to the car. He saw Taylor fall to the ground, saw Bolden continue to “charge at him,”

and he continued to shoot at Bolden. He never saw a gun on the victims but saw a black or silver

“something” in Bolden’s waistband. He got back in the car with Curiel and asked him to drive to

the liquor store without ever discussing the shooting. After going to the liquor store, he returned

to his party and never told anyone about the shooting.

¶ 42 Shortly thereafter, Karl began receiving calls from the police requesting that he come into

the station. They told him that if he came in, they would let his brother go. Prior to defendant being

in custody, the police stopped Karl and asked where Karl was, he then assumed defendant’s

identity and said he didn’t know. While defendant was in custody for the shooting, he asked Karl

if he was the one who committed the crime. At that time, Karl denied any involvement. He stated

that he thought the charges against his brother would not stick since his brother did not commit

the crime. Karl further testified that he did not come forward after defendant was convicted

because he felt it was not his job and he did not have the strength to willingly turn himself in.

However, he testified that he began to abuse alcohol and drugs because of the stress over what had

happened to his brother, the defendant.

¶ 43 In 2008, Karl was subsequently convicted of a separate crime and was sentenced to de facto

life of 99 years, which was affirmed by this court in June 2013. While incarcerated, Karl indicated

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that he sought help and got counseling from the prison chaplain. He was on a spiritual journey that

required him to clear his conscience with respect to his brother’s wrongful incarceration. As such,

in 2013, Karl decided to confess by writing a letter to defendant detailing his actions. Karl testified

that he did not receive a response from defendant, so he wrote a second letter two to three weeks

later, on October 24, 2013, to which Defendant responded. Subsequent thereto, Karl was

interviewed by defendant’s attorney and an investigator in July 2014 and signed an affidavit. In

August of 2015, representatives of the State’s Attorney Office recorded Karl’s statement.

¶ 44 On October 24, 2016, a video deposition of Doctor Brian Cutler (Dr. Cutler), an expert in

eyewitness identification, was presented in court. He testified on behalf of defendant that many

factors can affect the memory of a witness, making witness identification unreliable. Those factors

were: exposure time, extreme stress, weapon focus, and poor lighting conditions. Further, Doctor

Cutler found that when positive identifications were made it was often a result of deduction. To

prevent an identification from being made by deduction, statements inferring the suspect should

not be made. Additionally, Doctor Cutler recommended the practice of a blind lineup, where the

administrator did not know the suspect, to prevent any inadvertent persuasion.

¶ 45 On January 18, 2017, (former) detective Bocconcelli testified on behalf of the State

regarding three different conversations he had with defendant. On April 28, 2003, upon learning

that defendant was in custody, Bocconcelli spoke with defendant regarding where he was at the

time of the shooting.11 Initially, defendant stated that he and his girlfriend were at a party at his

mother’s home at the time of the shooting, which was verified by defendant’s mother and girlfriend

11 He admitted both he and his brother were Vice Lords; he was a west side Vice Lord, while his brother was a north side Vice Lord.

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Chanel Allen 12. However, during a second conversation with defendant, defendant stated that he

lied about being home because he did not want to violate his parole; he was actually in

Pennsylvania. Bocconcelli verified that tickets were purchased to Pennsylvania from Amtrak

receipts, but had no way of knowing if defendant in fact boarded the train. Defendant’s mother

also admitted lying out of fear of defendant being in violation of his parole.

¶ 46 Bocconcelli testified that Karl never participated in a lineup despite efforts to have him

come in for it. In one conversation he had with Karl over the phone, he said he knew nothing about

the shooting and was at his girlfriend’s house the night of the shooting. Consequently, Karl was

not included in any photo array or line up.

¶ 47 Gabriel Curiel testified that he knew defendant from high school. He socialized with

defendant outside of school and was familiar with his family. As such, he was able to tell the twins

apart. He knew defendant to be darker, heavier, and more serious than Karl. Karl was smaller, had

a different shade of brown in his skin, and was more playful and goofier. In March of 2003, he

socialized with the twins but never attended a party at defendant’s home on March 22, 2003. Karl

informed Curiel that defendant was incarcerated for the shootings and that defendant sent Karl a

letter asking everyone to say they were at a party on March 22, 2003.

¶ 48 However, Curiel testified that on March 22, 2003, he was not in attendance at a party at

defendant’s house. Curiel was not with Karl and was not within the vicinity of Sheridan and Argyle

on that date. On cross-examination, Curiel confirmed that he is known as “Outlaw” and that he

owned a black Lexus in March of 2003. He was friends with Karl up until January 18, 2008. On

that date, Karl and an accomplice forced themselves into his home while armed with guns. Karl

12 While in custody, defendant said that he wanted to call his lawyer, but instead called his girlfriend, Chanel Allen. Defendant indicated that she would corroborate his story that they were at his mother’s house on the night of the shooting, which she did.

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tackled and threatened to kill him as he stabbed him. The accomplice kicked him in the face

causing Curiel to lose consciousness. He woke up to find that his six-year-old son had been shot

in the head, and his safe containing drugs and money had been emptied. Curiel was stabbed

multiple times and shot at least twice. He testified that Karl belongs in prison for what he did to

him and his family and that he hated him. On re-direct examination, Curiel testified that he denied

being with Karl on March 22, 2003, because it was the truth and not because he hated him.

¶ 49 Defendant testified on his own behalf that he did not commit the crimes that he was

convicted of. He and his brother were both Conservative Vice Lords who sold drugs. He left the

gang in 2002 because he grew tired of the lifestyle. He had not engaged in drug dealing since 2000

and had not engaged in any gang activity since March of 2002. On November 6, 2002, while still

in prison, he applied to parole in Pennsylvania so he could start a new life with his longtime

girlfriend. He also predicted that if he stayed in Chicago it would lead to his downfall;

nevertheless, his application was denied. Upon his release on January 31, 2003, he was approved

to live with his parents in Chicago, Illinois.

¶ 50 Defendant admitted moving to Pennsylvania on February 13, 2003, despite being on parole

and not having approval to leave the state. He thought he would have an opportunity to start a new

life and was afraid for his life in Chicago, since Karl continued to be involved with the gang life.

While on parole, defendant reportedly did not carry a gun, did not go around gang “hot spots,” and

did not sell drugs. For income, he cut hair and danced.

¶ 51 On March 16, 2003, defendant returned to Chicago for a meeting with his parole officer.

He never went back to Pennsylvania. He stated that he was still just trying to work and not engage

in any gang activity.

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¶ 52 On March 22, 2003, he went to a couple of parties in the evening and a club later that

night. The parties were located at his approved parole address, one was on a lower floor and the

other was on an upper floor. Defendant attested that the party consisted of family and friends

including Karl and Curiel. Defendant saw Karl leave with Curiel between 7 and 7:30 p.m., wearing

black pants and a hoodie. Approximately one hour later, Karl returned without Curiel. The brothers

then went to the club around 10:00 p.m., which was the first time he left the property since 4 p.m.

He specifically stated that he did not go in vicinity of Argyle and Sheridan Road.

¶ 53 Defendant was arrested on April 27, 2003, and first learned of the date of the shooting

when he entered Cook County jail. While there, Karl visited defendant about 24 times. On one of

those visits, defendant asked Karl if he committed the crimes and Karl denied doing so. So, to

further his case, defendant sought to have everyone that attended the party testify about it; he never

asked anyone to lie.

¶ 54 Defendant testified that he knew Hughes from his time as a Conservative Vice Lord.

Hughes would call him “Twin,” but he only met him about seven times in his life. He last saw him

in 1998 and did not interact much because they were from different areas. Defendant testified that

he did not know Bolden or Taylor.

¶ 55 Defendant recalled receiving a letter from Karl, confessing to the crimes, in the beginning

of October 2013. He did not respond because he was shocked and “messed up” in the head from

it. The second letter Karl wrote was dated October 24, 2013, where he continued to confess, hurting

him even further. This time defendant did respond and “cursed him out.” He also asked Karl to

contact organizations on his behalf to help him get released. He testified that he never asked Karl

to falsely claim he committed these crimes.

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¶ 56 Speaking directly to the court, defendant noted that he rejected a plea deal for 11 years

from his trial attorney. He did this because he was innocent, and he thought justice would prevail.

He further stated that at sentencing he told the court he was innocent, and he was still an innocent

man.

¶ 57 On cross-examination, the State had defendant address several inconsistencies in his earlier

testimony: 1) Defendant admitted that he told the police of only one party and not two; 2) After

moving to Pennsylvania, he avoided receiving a parole violation because his brother helped him

by calling his parole officer and pretending to be him; 3) He could not recall if he called his

girlfriend as opposed to his attorney while in the police station.

¶ 58 On October 23, 2018, the trial court orally denied defendant’s successive postconviction

petition. The court indicated that its decision was based on the witnesses. Defendant and his mother

had changed their story; Curiel was asked to say a party happened but instead testified that he was

not with the family at all that day; and Karl’s version of events for the shooting directly contradict

the independent testimony of Nurse Sanchez. The court also took into consideration the testimony

of the expert witness, which gave the court insight about the witness identification process. The

court weighed defendant’s testimony that he and his brother were always using each other to get

out of trouble: meaning, they were always using their twin status to escape responsibility for their

acts. As such, the court found that the brothers had a pattern of misdirection and deceit. Further,

the court opined that this confession was only made after Karl’s direct appeal was affirmed for his

99-year sentence; at that point, Karl had nothing to lose.

¶ 59 Further, the trial court found it unbelievable that anyone would let their innocent twin sit

in the penitentiary for 10 years for a crime that they themselves committed. The trial court

concluded that Karl was not credible and gave no weight to his testimony. Looking at all the

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evidence and taking into consideration the issues of credibility, the court found that it was more

likely than not that a reasonable jury would have still found defendant guilty beyond a reasonable

doubt, even considering the new evidence. Thus, the trial court denied the relief sought in

defendant’s postconviction petition and defendant now appeals.

¶ 60 ANALYSIS

¶ 61 On appeal, defendant contends that he is entitled to a new trial when his twin brother

recently confessed to the crime, the shooting happened on a dark street by a hooded offender, and

he was convicted based on identification testimony by eyewitnesses who were under duress at the

time of the crime. He further contends that, on remand, reassignment to a new trial judge is

necessary given the postconviction judge’s findings that demonstrate he would not believe

defendant’s critical defense witness.

¶ 62 A. Standard of Review

¶ 63 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) provides

a statutory remedy for defendants who claim their constitutional rights were violated at trial.

People v. Edwards, 2012 IL 111711, ¶ 21. The Act is not a direct appeal but rather a collateral

attack on a prior final judgement. Id. "The purpose of a postconviction proceeding is to permit

inquiry into constitutional issues involved in the original conviction and sentence that were not,

and could not have been, adjudicated previously on direct appeal.” People v. English, 2013 IL

112890, ¶ 22.

¶ 64 The Act contemplates the filing of only one petition without leave of court. People v.

Sanders, 2016 IL 118123, ¶ 24. Any claim not presented in an original or amended petition is

waived. Id. There are two exceptions for which the bar on successive petitions can be relaxed. Id.

The first exception is when the petitioner satisfies the cause and prejudice test. 725 ILCS 5/122–

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1(f) (West 2014). The second exception is known as the fundamental miscarriage of justice

exception. People v. Pitsonbarger, 205 Ill. 2d 444, 459 (2002). That exception requires the

petitioner to demonstrate actual innocence. Id.

¶ 65 The Act provides a three-stage process for adjudicating petitions. People v. Cotto, 2016 IL

119006, ¶ 26. At the first stage, the trial court determines whether the petition is "frivolous or

patently without merit." 725 ILCS 5/122-2.1(a)(2) (West 2014). If the petition is not dismissed at

first-stage proceedings, it advances to the second stage. Cotto, 2016 IL 119006, ¶ 26. At the second

stage, the trial court must determine whether the petition and any accompanying documentation

makes a “substantial showing of a constitutional violation.” People v. Domagala, 2013 IL 113688,

¶ 33. At a third stage evidentiary hearing the trial court serves as the fact-finder; the court's

function is to determine witness credibility, decide the weight to be given testimony and evidence,

and resolve any evidentiary conflicts. Id. at ¶ 34. At a postconviction hearing, a defendant bears

the burden of proof, to show a denial of a constitutional right by the preponderance of the evidence.

People v. Coleman, 2013 IL 113307, ¶ 92.

¶ 66 After an evidentiary hearing where fact-finding and credibility determinations are

involved, the circuit court's decision will not be reversed unless it is manifestly erroneous. People

v. English, 2013 IL 112890, ¶ 23. “Manifest error” is defined as “error which is, clearly evident,

plain, and indisputable.” People v. Morgan, 212 Ill. 2d 148, 155 (2004).

¶ 67 B. Actual Innocence

¶ 68 Defendant contends that he has demonstrated a cognizable claim of actual innocence and

should receive a new trial based on the newly discovered evidence that his identical twin brother

confessed to the crimes for which defendant was convicted. Further, the eyewitness testimony was

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not reliable where the shooting occurred at night, the offender wore a hoodie, and the eyewitnesses

were “in shock” and or duress.

¶ 69 Evidence of actual innocence must be: (1) newly discovered, (2) material and not merely

cumulative, and (3) of such conclusive character that it would probably change the result on retrial.

Edwards, 2016 IL 111711, ¶ 32. Newly discovered evidence is evidence discovered after trial,

that could not have been discovered earlier due to due diligence. Coleman, 2013 IL 113307, ¶ 96.

Material evidence is evidence that is relevant and probative of defendant’s innocence. Id. Non-

cumulative evidence is evidence that adds to what the jury has already heard. Id. Finally, evidence

is of a conclusive character when it would probably lead to a different result along with all the

other evidence at trial. Id.

¶ 70 Defendant attempted to satisfy the requirements of an actual innocence claim by alleging

(1) that Karl’s confession was newly discovered because it was not made available to him until

after his trial when Karl first admitted his guilt in the 2013 letter to defendant; (2) that the

confession was material, in that Karl confessed to being the lone shooter of a crime that defendant

was convicted of, and noncumulative because it was not evidence that the jury had previously

heard; and, (3) that the confession is so conclusive that it places the trial evidence in such a different

light that it will result in a different outcome at retrial.

¶ 71 In the case at bar, the trial court denied the postconviction petition based primarily on the

element of conclusive character and gave little attention to whether the evidence was newly

discovered, material, and noncumulative. We will nonetheless address all factors.

¶ 72 The State argues that Karl’s confession is not newly discovered because the theory that his

twin was the shooter was presented at trial. Newly discovered evidence is evidence discovered

after trial, that could not have been discovered earlier due to due diligence. Coleman, 2013 IL

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113307, ¶ 96. The State however mistakenly applied the test to whether the “theory” was newly

discovered, as opposed to whether the evidence was newly discovered. Every plea of not guilty

puts forth a theory that someone else must have committed the crime. Following the State’s logic,

every posttrial confession would be barred as not newly discovered. We decide cases on actual

evidence, not theory. Here, the newly discovered evidence was the actual confession that

supported the theory or idea that his twin could have committed the crime, not the mere idea or

theory alone. Defendant asked Karl if he committed the crime, but Karl denied it at that time.

This evidence was unavailable to everyone at trial including the defendant, until ten years later

when Karl wrote the letter to defendant. Although, at trial, the theory was set out, that this could

possibly be a case of mistaken identity given that defendant was a twin, there was no evidence to

substantiate that claim. Further, the State does not allege a lack of due diligence on behalf of

Defendant. Thus, we find that this evidence is newly discovered.

¶ 73 Neither, the State nor the trial court dispute that the confession was relevant and probative

to defendant’s claim of innocence. Similarly, they do not allege that the confession was

noncumulative. The trier of fact had not previously heard evidence of a confession; thus, this

confession would do more than just add to or bolster the evidence already presented at trial: the

confession would change the defense’s case entirely. Coleman, 2013 IL 113307, ¶ 96.

¶ 74 At the evidentiary hearing on defendant’s successive postconviction petition, the trial court

found that the evidence presented by defendant was not conclusive enough to create a probability

that the outcome of defendant’s trial would have been different if such evidence had been presented

at the trial. Specifically, the trial court examined the witnesses that testified at the evidentiary

hearing (namely Karl, Dr. Cutler, Detective Bocconcelli, Curiel, and defendant) and compared

their testimony to the evidence presented at trial. With respect to the evidentiary hearing, the trial

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court determined that the elicited testimony lacked credibility to support Karl’s confession. In

examining Karl’s testimony and confession, the trial court specifically determined that Karl was

not credible.

¶ 75 At a third stage evidentiary hearing, a court makes credibility determinations and weighs

any testimony presented against other evidence. Domagala, 2013 IL 113688, ¶ 34. In making

credibility determinations and weighing the evidence presented at the hearing, the trial court made

the following findings with respect to the credibility of Karl’s confession: Karl admitted evading

questioning in this case by pretending to be defendant; both brothers admitted to adopting one

another’s identities throughout their lives; Curiel, who was supposed to be Karl’s getaway driver

on the night of the shooting, denied being with anyone from defendant’s family on that date; and,

Karl’s description of the events on the night of the shooting were in direct conflict with the series

of events described at trial by Nurse Sanchez. The court further considered the fact that defendant

consistently lied about his whereabouts on the day of the shooting with the help of his mother and

girlfriend. Based on the aforementioned considerations, the trial court found that when added to

the evidence presented at the original trial, the confession was not of such conclusive character

that it would probably lead to a different result.

¶ 76 Upon conclusion of a third stage evidentiary hearing, we review the trial court’s denial of

a postconviction relief petition for manifest error. Coleman, 183 Ill. 2d at 390.

¶ 77 At defendant’s third stage evidentiary hearing, the trial court was required to determine

“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.” People v. Robinson, 2020

IL 123849, ¶ 48. This analysis necessarily involves viewing the old and new evidence together,

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and—as our supreme court has made abundantly clear—any new evidence “need not be entirely

dispositive to be likely to alter the result on retrial.” Id.

¶ 78 The old evidence, presented at trial in 2005, included a diminutive amount of physical

evidence. Defendant presented no witnesses, and he did not testify on his own behalf. The State

presented three eyewitnesses, but only one of them —Bolden—testified that Defendant was the

shooter. The other two witnesses testified that they could not identify the shooter: Sanchez could

not identify the shooter because it was dark and he wore a hoodie, and Boykins recanted her

identification of the shooter. Bolden explained that he could identify the shooter because he

“kn[e]w of” defendant from “see[ing] him in the neighborhood” prior to the shooting. He also

testified that he lived in the same building as defendant for a month in 2002, when he and defendant

were both in prison. Bolden knew him as “Twin,” and only learned defendant’s name after

selecting his photo at the police station approximately four or five weeks after the shooting. Despite

not knowing their real names, Bolden testified that he could tell the twins apart because defendant

had a bearded braid and was 30 or 40 pounds heavier than Karl. Bolden testified that he and Taylor,

the other victim, were members of the Blackstone street gang and the shooter yelled “Blackstone

killer bitch” before shooting Taylor. Bolden testified that he saw members of the Conservative

Vice Lords, a rival gang, in the area prior to the shooting and that defendant was a member of that

gang. Dr. Cutler testified that exposure to time, stress, poor light, and weapon focus can make

eyewitness testimony unreliable. Nonetheless, here, one witness identification from a member of

a rival gang, coupled with other circumstantial evidence but no forensic evidence that implicates

defendant, was sufficient to convict defendant. However, as in People v. Coleman, we find it to be

“far from overwhelming.” Coleman, 2013 IL 113307, ¶ 109.

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¶ 79 The new evidence adds to the picture presented at trial. Karl, Defendant’s identical twin,

gave a full and complete confession to the crime in which he testified that Defendant was totally

innocent. Karl had first made this confession in letters he sent to his brother in 2013 after

counseling from a prison chaplain. He also gave an extensive interview to the State’s Attorney’s

office in 2015, detailing his own guilt and his brother’s innocence. Karl had the braided beard that

Bolden claimed was the reason that he could identify the shooter, and Karl was a member of the

Vice Lords. The exhibits entered at the postconviction hearing included arrest profiles of the two

brothers from 2003 that stated Karl was only ten pounds heavier than defendant at that time. Karl

also testified that after Defendant was paroled in 2003, they were the same weight. There was

certainly a strong probability that a jury, hearing all of this, “would reach a different result after

considering the prior evidence along with the new evidence.” Robinson, 2020 IL 123849, ¶ 48.

¶ 80 It is the role of the trial court to make credibility determinations. People v. Ortiz, 235 Ill.

2d 319, 333 (2009). Here, however, the trial court’s determination that a jury should never be

allowed to consider Karl’s confession, together with other evidence, to decide whether defendant

was guilty beyond a reasonable doubt was “manifestly erroneous.” People v. English, 2013 IL

112890, ¶ 23. We find that the decision was manifestly erroneous not necessarily because we

believe Karl, but because it is indisputably evident that the confession could probably change the

outcome; however, that is left for the trier of fact to decide.

¶ 81 The ruling by the trial court in this case, runs contrary to the clear precedent set by our

supreme court. The trial court’s oral ruling ignored our supreme court’s mandate that “the trial

court should not redecide the defendant’s guilt in deciding whether to grant relief.” Coleman, 2013

IL 113307, ¶ 97. A review of the trial court’s relatively brief oral ruling demonstrates that the court

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was swayed by its own view that defendant was guilty, and that Karl was simply trying to get his

brother out of jail. It never engaged in the analysis that supreme court precedent requires.

¶ 82 The trial court began its ruling by focusing on the fact that defendant first said that he was

at his mother’s house when the shooting occurred and then “his story changed” and he said he was

in Pennsylvania. Defendant made these statements at the police station over a month after the

shooting. As defendant made clear in his reply brief:

“It is understandable that Defendant did not initially know whether he was at home or

in Pennsylvania on the day of the murder, given that he had no idea when the murder

actually took place and had very recently been in Pennsylvania. After Defendant learned

the details of the shooting, he has consistently maintained that on the evening of March 22,

2003, he was at home in Chicago.”

What has not changed however, is that defendant has maintained his innocence since the date of

his arrest; even rejecting an 11 year plea deal.

¶ 83 The trial court then focused on Curiel, who Karl had testified was with him at the time of

the shooting. It is no surprise that Curiel denied this at the hearing as it would likely make him

accountable for the murder and attempt murder. Further, Karl was imprisoned for robbing and

shooting Curiel and his son; it is no wonder why Curiel would not testify to assist Karl and

defendant. Nonetheless, the trial court found this denial to be “another indication” that Karl was

not being truthful.

¶ 84 The trial court concluded by dismissing Karl’s testimony as “completely uncredible,”

saying “[n]o weight whatsoever should be given to his testimony.” The trial court spent much of

its ruling justifying its complete disregard of Karl’s confession. The court expressed disbelief that

a twin could “leave [his] own identical twin, who [he] knew was innocent, in the penitentiary for

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*** a crime that he didn’t [commit].” However, we find no evidence in the record or testimony

about their relationship to support such a far reaching generalization.

¶ 85 The trial court also relied on what it characterized as testimony that, “Defendant Dugar told

Detective Bocconcelli that he and Karl were always using each other to get out of trouble, which

this means that they’re always using this to escape responsibility for their acts,” and emphasized

that this amounted to a “pattern of misdirection and deceit.” Although there was some evidence

that the brothers continued to pass for one another, Detective Bocconcelli testified that defendant

said he and his brother were “constantly being stopped for each other” and mistaken for one

another. The basis for defendant’s postconviction petition is exactly that—he has been mistaken

for Karl and has been given a de facto life sentence because of that mistake.

¶ 86 The trial court also determined that Karl was not credible because he came forward only

after his conviction was affirmed on appeal—when he had nothing to lose. To the contrary, Karl

testified that he filed a postconviction petition and was still fighting his conviction. Thus, he most

certainly had something to lose by confessing to a murder and an attempt murder under oath.

¶ 87 Most disturbing is the fact that the trial court’s only analysis of the trial evidence was to

say that Karl’s “explanation and description of the shooting is contradicted by the evidence at trial

and also by [Ms.] Sanchez who was an independent witness.” The court never acknowledged that

Karl’s testimony aligned significantly with the testimony of the trial witnesses: he wore all-black

clothing, he rode in a black Lexus, the crime was committed near Argyle and Sheridan, he shot

Taylor and then Bolden, he shot a .380 pistol, the pistol jammed, and the victims drove a maroon

SUV. He also had a braided beard, which was the key characteristic that Bolden relied on to

identify the shooter.

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¶ 88 Not surprisingly, there were some inconsistencies. Karl did testify that he ran north after

the shooting, while Ms. Sanchez and Bolden testified that he ran south. Karl also testified that he

used two guns while Bolden testified as to only one gun. However, a confession never needs to

perfectly align with other testimony to result in a conviction. See People v. Edwards, 301 Ill. App.

3d 966, 984 (1998) (“Every detail of the confession need not correspond to the independent

evidence in every particular.”). And more relevant, at the third stage of a postconviction

proceeding new evidence need not be dispositive on an issue to make it likely that the jury would

reach a different conclusion on retrial. Robinson, 2020 IL 123849, ¶ 48.

¶ 89 There is evidence in the record that points to defendant’s innocence, including his request

to the parole board in November of 2002—four months before this crime occurred—to move to

Pennsylvania so he could “live a peaceful life” away from the gangs and crime that he had been

part of in Chicago, his consistent claim that he is innocent—including his refusal to accept a plea

deal for an 11-year sentence—and the lack of violence in his criminal history, except for a

conviction for battery which resulted in a 30-day sentence. Of course, there is also evidence that

suggests guilt. The question for the trial court at the third stage was not whether defendant was

innocent; it was whether “the facts and surrounding circumstances *** should be scrutinized more

closely to determine the guilt or innocence of [the defendant]” on retrial. People v. Molstad, 101

Ill. 2d 128, 136 (1984). The postconviction evidence makes clear that, of the two identical twins,

Karl is the one who made a full confession to these crimes, committed other violent crimes, was

an active gang member at the time of the shooting, and had braids in his beard. This evidence is

sufficient to probably change the result on retrial and it most certainly undermines the confidence

that this court has in defendant’s conviction.

¶ 90 CONCLUSION

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¶ 91 The judgment of the circuit court of Cook County is hereby reversed and the case is

remanded for a new trial whereby the trier of fact can consider the confession together with other

relevant evidence.

¶ 92 Defendant also requests that the new trial is assigned to a different circuit court judge.

While we are not able to opine as to whether the circuit court judge has actual bias against the

defendant, we believe that the appearance of bias is sufficient in cases such as this to warrant

assignment to a different judge. The circuit court judge here found Karl to be “completely

uncredible,” among other things, which may give the appearance of bias at the new trial.

Therefore, the case shall be transferred to another judge for retrial.

¶ 93 Reversed and remanded with directions.

¶ 94 JUSTICE HARRIS, dissenting:

¶ 95 When the trial court conducts an evidentiary hearing on a claim of actual innocence, it first

determines whether the claim presents new, material, and noncumulative evidence, and if so then

whether the new, material, and noncumulative evidence places the trial evidence in a different light

and undercuts the court’s confidence in the factual correctness of the guilty verdict. People v.

Coleman, 2013 IL 113307, ¶ 97.

¶ 96 As a threshold matter, I do not find Karl’s confession to be new. Defendant claimed that

the confession was newly discovered because it was not made available to him until Karl first

admitted his guilt in his 2013 letter. Karl averred and testified that he did not tell defendant of his

involvement until his 2013 letter, denied to defendant before trial that he committed the offenses,

and never discussed defendant’s case with his trial counsel. Defendant averred and testified that

he asked Karl after his arrest if Karl had committed the offenses but Karl denied it.

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¶ 97 To be new, however, evidence must not only be not discovered until after trial but not be

discoverable earlier with due diligence. Id. ¶ 96. Before and during trial, there was evidence that

defendant was identified as the shooter, and defendant knew that he had a twin brother involved

in a gang as a mistaken identity theory was argued at trial. Under such circumstances and in light

of defendant’s profession of actual innocence, I believe diligence would require defendant to not

merely wait for Karl to offer his account of events but reach out to Karl to obtain his account.

Stated another way, while Karl averred that he confessed once his conscience had been awakened

in 2013, a diligent defendant would have tried to appeal to Karl’s conscience earlier. However,

there was no evidence he attempted to do so beyond asking Karl once if he was the shooter and

Karl denying it. I do not believe that accepting Karl’s single denial without more, when defendant

had good reason to believe someone who looked like him committed the offenses, is due diligence.

¶ 98 The majority notes that Karl testified in the evidentiary hearing to having a braided beard

in 2003, which is relevant in light of Bolden’s trial testimony that he knew the shooter was

defendant and not Karl in part because defendant had a braided beard. Karl’s testimony was

supported by his identification card, issued in February 2003 while the instant offenses occurred

in March 2003, depicting Karl with a braided beard. However, even without Karl’s confession or

cooperation, diligent trial counsel could have found and presented evidence – Karl’s identification-

card photograph or a similar photograph of Karl from around the same time – that Karl had a

braided beard and used it to try to impeach Bolden’s identification. As this evidence was

discoverable before trial with due diligence, I would find it to not be new evidence.

¶ 99 Moreover, I do not consider the trial court’s conclusion that Karl’s confession was not

conclusive to be manifestly erroneous. Evidence is conclusive if it would probably lead to a

different result when considered alongside the trial evidence; that is, it places the trial evidence in

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a different light and undercuts the court’s confidence in the factual correctness of the guilty verdict.

Id. ¶¶ 96, 97. While the trial court should not redecide the defendant’s guilt in deciding whether to

grant relief, an evidentiary hearing on an actual innocence claim “is a comprehensive approach

and involves credibility determinations that are uniquely appropriate for trial judges to make.” Id.

¶ 97. This court thus reviews the trial court’s decision to deny relief following an evidentiary

hearing for manifest error, reversing that decision only when error in the decision is clearly evident,

plain, and indisputable or the opposite conclusion to that decision is clearly evident. Id. ¶ 98.

¶ 100 Karl is defendant’s identical twin brother and is serving a de facto life sentence for

unrelated offenses, with this court having affirmed that conviction on direct appeal. While there

was evidence that Karl is challenging that conviction and sentence collaterally, it is reasonable to

conclude that Karl’s sentence leaves him with little to lose by admitting to additional offenses to

spare his twin brother. The opposite of the trial court’s decision – that Karl’s confession places the

trial evidence in a different light and undercuts confidence in defendant’s conviction – is not

clearly evident, plain, or indisputable.

¶ 101 While the majority finds that the evidence of defendant’s guilt was sufficient but not

overwhelming, this court on direct appeal found the evidence was not closely balanced. I agree

with the trial court in denying defendant’s successive petition that adding Karl’s confession to the

existing trial evidence would not probably lead to a different result. A trier of fact at a hypothetical

new trial would not have to find that the confession of defendant’s twin brother, offered years after

defendant’s arrest and trial, sufficiently weighs against the existing evidence of defendant’s guilt

and the other evidence that would come in with Karl’s confession.

¶ 102 The jury in defendant’s trial was already well-aware of identical twin brother Karl’s

existence and gang membership. A new trier of fact would hear Karl’s confession but also hear in

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impeachment what the trial court heard in denying defendant’s successive petition: that while

defendant was arrested in 2003, convicted in 2005, and his conviction was affirmed in 2007, Karl’s

unrelated conviction and lengthy prison sentence were affirmed in 2013 and Karl only then offered

a confession to his brother in the form of a letter a few months later. While Karl attributed his

belated confession to the awakening of his conscience after spiritual counseling, the trial court was

not, and a new trier of fact would not be, obliged to credit that testimony.

¶ 103 According to Karl’s hearing testimony, Bolden and Taylor jumped out of their vehicle and

rushed towards Karl, and Bolden looked like he was going to draw a weapon, so Karl fired a .380

automatic pistol and then a .32 caliber revolver at them as he retreated towards the vehicle in which

he arrived. However, Boykins testified at trial that she, Bolden, and Taylor were walking from a

vehicle across the street towards a building when someone ran towards them and shot Taylor, and

Boykins heard more shots as she fled. Boykins’s pretrial account in her statement and grand jury

testimony was even more contradictory of Karl’s confession: that as Boykins, Bolden, and Taylor

crossed the street, defendant approached them, grabbed Taylor and fired into him, and fired at the

fleeing Bolden. These are not merely “some inconsistencies” between the trial evidence and Karl’s

confession but a fundamental contradiction between the trial evidence from Boykins (and Bolden)

that defendant attacked without provocation and Karl’s account that Bolden and Taylor were the

aggressors. Also, while the firearm evidence at trial was unclear as to whether one gun or two was

fired, only .380 bullets and cartridges were recovered, which is inconsistent with Karl’s account

that he fired a .32 revolver as well as a .380 automatic.

¶ 104 A new trier of fact would also hear in impeachment of Karl’s confession, which in part

implicated Curiel, Curiel’s denial that he was involved in the shooting or with either defendant or

Karl on the night of the shooting. While the majority notes credibility issues with Curiel’s

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testimony, his account and his credibility would be more disputable evidence before a new trier of

fact. A new trier of fact would hear evidence that defendant and Karl were mistaken for each other,

which arguably supports defendant’s case, but also that they routinely and intentionally

impersonated each other, which casts doubt on it; again, more disputable evidence.

¶ 105 With Karl testifying in a hypothetical new trial that he committed the instant offenses and

defendant was not present, a trier of fact could also hear evidence that the trial jury did not because

defendant dropped an alibi defense before trial: evidence that defendant gave police conflicting

and erroneous alibis. The majority gives little impeaching weight to defendant’s admittedly

erroneous alibi that he was in Pennsylvania, reciting favorably his argument that he “did not

initially know whether he was at home or in Pennsylvania on the day of the murder, given that he

had no idea when the murder actually took place and had very recently been in Pennsylvania.”

However, Bocconcelli’s hearing testimony was that defendant’s first alibi was that he was home

on the night of the shooting – his Illinois home, as his mother supported this alibi – and then he

gave the erroneous Pennsylvania alibi that his mother also supported. Unless defendant was

professing to be home every night for an indefinite period, it is an eminently reasonable inference

that he was asked where he was on a particular night and thus knew the date in question when he

later gave the Pennsylvania alibi. To the extent defendant claims otherwise, this is another instance

of disputable evidence.

¶ 106 In sum, while I recognize that the majority’s confidence in defendant’s conviction is

undermined by Karl’s confession, I find the trial court’s decision that Karl’s evidence is not

conclusive to not be manifestly erroneous, as the opposite of that decision is not clearly evident,

plain, or indisputable when the original and new evidence are considered together. I would

therefore affirm the trial court’s denial of defendant’s successive petition.

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