2024 IL App (2d) 220064-U No. 2-22-0064 Order filed March 18, 2024
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Kane County. ) Plaintiff-Appellee, ) ) v. ) No. 92-CF-239 ) STEPHEN E. GRIFFIN, ) Honorable ) Mark A. Pheanis, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
PRESIDING JUSTICE McLAREN delivered the judgment of the court. Justices Schostok and Birkett concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s denial of the defendant’s postconviction petition based on actual innocence after a third-stage hearing where the defendant presented an affidavit recanting an eyewitness’ trial testimony and two affidavits that corroborated the recanting affidavit; the trial court’s judgment was not manifestly erroneous.
¶2 At issue here is whether the trial court’s denial of defendant’s postconviction petition based
on actual innocence after a third stage hearing was manifestly erroneous. Defendant argues that
the trial court erred by disregarding the affidavit of an eyewitness who recanted his trial testimony 2024 IL App (2d) 220064-U
and the affidavits of two family members who averred that they heard the eyewitness recant. We
affirm.
¶3 I. BACKGROUND
¶4 In 1994 a jury found defendant guilty of first-degree murder (Ill. Rev. Stat. 1989, ch. 38,
¶ 9-1(a)(1) (now 720 ILCS 5/9-1(a)(1) (West 2022)) by accountability for the shooting death of
Michael Brown, and the court sentenced him to 60 years’ imprisonment.
¶5 A. Trial Testimony
¶6 We summarize the relevant facts appearing in the record. On February 5, 1992, at 9:55
p.m., the body of Michael Brown was found unresponsive and bleeding from the head on the side
of Kautz Road. The State charged defendant, codefendant Perez Funches, and Anthony Gibson
with the first-degree murder of Brown.
¶7 Aurora Police Officer Robert Mangers testified that earlier that day, around 12:30 p.m., he
responded to a call of shots fired at defendant’s mother’s house at 123 Kendall in Aurora. When
Mangers arrived at the scene, defendant told Mangers that he was in front of his mother’s house
when a maroon Mitsubishi drove up slowly. There were three people in the car, and one of the
occupants asked defendant if he was “Steve G” and to “stop f***ing with my boy when he comes
out here.” Defendant told Mangers that he replied, “F*** you,” and then one of the occupants
pointed a gun at him, so he pulled out a .380 revolver and fired it six or seven times at the car. The
car drove to the end of the block, stopped, and the same occupant who pointed the gun at him then
fired at defendant approximately three times.
¶8 Evidence was introduced that the victim, Brown, ordered the drive-by shooting of
defendant’s house on February 5. Brown had been selling cocaine in the area. Tommy “Momo”
Neal testified that four days earlier, on February 1, he heard defendant and co-defendant Perez
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Funches tell Brown “if he did not get them what they wanted, that they was [sic] going to beat him
up.” Defendant then took Brown’s gold chain. Defendant and Funches indicated that they wanted
“dope, money.” Neal also testified that, later, defendant told Brown he knew that Brown was
responsible for the drive-by shooting and that “I should shoot you in the back of the head.”
¶9 Kevin Groom and Brian Adams testified that at about 8:15 to 8:30 on the night of Brown’s
death they arrived at Pepe’s Restaurant on Lake Street in Aurora (Pepe’s) to watch a Bulls game.
Terry Mishos and Brown were also there. Groom and Mishos testified that Brown made several
phone calls from a payphone in the restaurant regarding a coat that Groom believed Neal had stolen
from him. Groom testified that, after the phone calls, Brown told Groom that the coat would be
there in a few minutes.
¶ 10 Anthony Gibson and Neal testified that, on the night of Brown’s death, defendant drove
him and Funches to Pepe’s Restaurant. Neal added that defendant drove to Pepe’s to meet Brown
to straighten out who shot at defendant’s mother’s house and the issue regarding Groom’s coat.
Neal also stated that defendant parked the car in the Wendy’s parking lot that was next to Pepe’s
parking lot. The parking lots were in the back of the restaurants. Gibson and Neal testified that
when they arrived at Pepe’s, defendant and Funches exited the car while Gibson and Neal waited
in the car. According to Groom, while inside Pepe’s, defendant asked Brown to go with him to get
the coat. Defendant and Brown then walked outside to the back of the Wendy’s. The last time
Groom saw defendant was between 9:30 and 9:45 p.m. Mishos saw Brown leave Pepe’s with
defendant and Gibson between 9:30 and 10:00 p.m. Brown was near defendant’s car in the
Wendy’s parking area.
¶ 11 Neal testified that, while in the Wendy’s parking lot, defendant threw Brown to the ground
and Funches had his knee in Brown’s back and a gun to Brown’s head. Then defendant got into
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the driver’s seat of his car, Gibson got into the passenger seat, and Funches “tossed” Brown in the
back seat. Neal and Funches sat on either side of Brown. Funches placed the gun inside a hat and
continued to point it at Brown. Defendant asked Brown who “shot up” his mother’s house.
Defendant told Brown, “I should kill you.” Neal identified the gun recovered by the police as the
gun he saw Funches point at Brown and identified the hat recovered by the police as the hat
Funches used to hide the gun. After leaving Pepe’s, defendant stopped the car on the east side of
town and ordered Neal out of the car. Defendant and Funches threatened to shoot Neal if Neal told
anyone anything he had seen.
¶ 12 Gibson testified that after defendant drove away from Neal, he saw Funches still pointing
a gun at Brown and heard defendant tell Brown, “[Y]ou’re a dead b***.” Gibson asked defendant
to drop him at home, but defendant refused. Instead, defendant drove to Kautz Road, which Gibson
stated was about fifteen minutes away from Pepe’s. Gibson further testified that defendant stopped
the car and told Brown, “Get out b***.” Brown got out of the car with defendant and Funches, and
they moved to the back of the car. Gibson heard a gunshot, turned, and then heard three to four
more gunshots. Gibson saw Funches shoot the gun. Defendant and Funches ran back to the car,
and Funches stated, “Go man, I just shot somebody for you.” Defendant let Gibson out of the car
near Gibson’s father’s house and told Gibson not to say anything.
¶ 13 Aurora Police Officer Greg Thomas testified that on February 9, 1992, he was with two
fire department divers who found two pieces of the gun that was used to commit the murder.
Defendant led Thomas to the gun that he admitted he had thrown into the river.
¶ 14 Defendant testified on his own behalf as follows. On February 5, 1992, Brown called
defendant about a missing coat. At around 9 p.m. defendant called Funches, Gibson, and Neal, and
they picked up defendant in his car. Defendant asked Neal about the stolen coat, but Neal denied
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that he had the coat. The four men went to Pepe’s to talk to Brown about the coat. Defendant
parked between Pepe’s and Wendy’s, and he and Funches entered Pepe’s. Defendant spoke to
Brown about the coat. Gibson was present during the conversation. Groom came over to defendant
and said that it was his coat that was taken. Groom and defendant walked outside, and Groom
identified Neal as the person that took his coat. Defendant was at Pepe’s for about five minutes.
Brown got into defendant’s car with defendant, Funches, Gibson, and Neal and they left Pepe’s to
get the coat. Defendant told Neal to stop lying about the coat, dropped Neal off, and told him to
get the coat. Defendant drove to his house, arriving there “after 9:30.” He let Funches, Gibson, and
Brown take his car. Defendant then drove to Paula Thomas’ house in Betty’s car.
¶ 15 Defendant testified that the day after the incident, Funches gave him a gun inside a hat and
told him the gun had been used to kill Brown. Defendant threw the gun over the Indian Trail bridge
and later led an officer to the area where the gun was recovered.
¶ 16 During cross-examination, defendant testified that he told officers James Brummett and
Davis that he last saw Brown at about 6:30 p.m. when he left Pepe’s, and that Brown never got
into defendant’s car. Defendant also told Officer Anderson that Brown was still at Pepe’s when
defendant left there. Defendant denied that he told Anderson he was at his girlfriend Paula Thomas’
house at 9:15 p.m., but then admitted that he told Anderson that he was at Paula’s house at that
time. Defendant’s cousin, Betty Williams, was at his mother’s house. Defendant stated that he
changed his alibi after the police told him that witnesses placed him at Wendy’s with Brown at
9:45 p.m. and saw Brown depart in defendant’s car. Defendant then admitted that he actually left
Pepe’s with Funches, Gibson, Neal, and Brown, and that he dropped Neal off. Defendant testified
that he was dropped off at his mom’s house before the murder was committed. Defendant told the
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police that he watched as Funches and Gibson fought with Brown, and then as Funches and Brown
left in the car.
¶ 17 Betty Williams testified that on the night of the incident, she saw defendant at his mother’s
house at about 9:40 p.m. Williams drove defendant to Paula Thomas’ house.
¶ 18 In rebuttal, Aurora Police Officer James Brummett testified that he interviewed defendant
on February 7, 1992, at 8:10 a.m. Defendant told Brummett that he last saw Brown at Pepe’s at
6:30 p.m.
¶ 19 Aurora Police Officer Gregory Anderson testified that he interviewed defendant on
February 7, 1992, at 9:50 p.m. Defendant told Anderson that he left Pepe’s with Funches, Gibson,
and Neal, and that he was at Thomas’ house by 9:15 p.m. Defendant also told Anderson that Brown
stayed at Pepe’s.
¶ 20 During closing argument, the State argued that defendant was guilty of first-degree murder
on accountability. The jury was instructed regarding accountability. The jury found defendant
guilty of first degree murder, and the trial court, Judge James T. Doyle presiding, sentenced
defendant to 60 years’ imprisonment.
¶ 21 B. Posttrial Proceedings
¶ 22 On direct appeal we affirmed defendant’s conviction and sentence. People v. Griffin, 2-95-
1249 (1997) (unpublished order under Illinois Supreme Court Rule 23), and our supreme court
denied leave to appeal (People v. Griffin, 176 Ill. 2d 582 (1998) (table)).
¶ 23 In his post-conviction petition, defendant alleged: (1) that the State suborned perjury by
Gibson and Neal in their trial testimony, especially regarding what they received in return for their
testimony; (2) ineffective assistance of counsel for (a) failure to offer in evidence telephone
records to impeach Gibson and (b) failure to poll the jury and to tell the court that two jurors later
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told counsel that they did not believe that defendant was guilty but the jury room was too cold, and
they did not want to stay overnight because of an upcoming holiday weekend; and (3) that the
State withheld exculpatory evidence. Defendant attached a February 17, 1992, unsworn
handwritten “voluntary statement” from Funches, who had not testified at defendant’s trial, in
which Funches stated that he would testify that defendant was not present at Brown’s killing, had
no knowledge of it, and was not involved in the planning or ordering of it. Defendant also filed a
motion for an evidentiary hearing and appointment of counsel. The trial court, Judge James T.
Doyle presiding, found the petition to be “without merit and patently frivolous” and dismissed it.
¶ 24 In March 1999, defendant filed a “first amended” petition for postconviction relief.
Defendant made the same allegations he made in his original petition but attached affidavits of his
sister and mother regarding (1) conversations that they had with defendant’s trial attorney about
the two jurors who did not believe that defendant was guilty, and (2) a conversation with Gibson
in which Gibson stated that defendant had nothing to do with the murder and that the State had
paid both himself and Neal for their trial testimony. None of the attachments to his 1998 petition
were attached to the first amended petition. Another copy of the first amended petition was file-
stamped April 14, 1999, but did not include the affidavit of defendant’s sister.
¶ 25 On July 9, 1999, defendant filed a second amended petition for postconviction relief, noting
his prior allegations and raising “newly discovered evidence” in the form of an attached affidavit
of Gibson in which Gibson averred, “some of the testimony I gave at trial was false. *** I
committed perjury in giving this false testimony after I was arrested and decided to completely
exonerate myself and cooperate with the police and State’s Attorney, by saying what they wanted
me to say. *** [Defendant] was not present when [Brown] was shot.” The trial court appointed the
public defender to represent defendant.
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¶ 26 After years of continuances and discovery, in 2008 defendant filed a third amended petition
(petition) alleging, inter alia, the claim that Gibson had recanted his testimony. In addition to
Gibson’s affidavit, defendant attached the affidavits of Dillar and Gloria Griffin, wherein they
averred that Gibson told them that he lied at trial and that the prosecutor paid Gibson for his
testimony. Gloria added that Gibson offered to come forward with “the truth” if he was paid $5000.
The State filed a motion to dismiss.
¶ 27 In 2009, the trial court, Judge Timothy Q. Sheldon presiding, determined that it would
“give effect” to the court order from 1998 that summarily dismissed the petition, and that defendant
could appeal that dismissal. On appeal, we reversed the trial court’s judgment and remanded “for
the State to expeditiously and timely file an answer to defendant’s third amended petition and for
further appropriate and timely proceedings on the petition.” People v. Griffin, 2013 IL App. (2d)
110631, ¶ 32-33.
¶ 28 In October 2013, the State filed its answer to defendant’s petition. In September 2017
defendant filed his response. In July 2019 the trial court, Judge Mark A. Pheanis presiding, ordered
the matter set for a third stage evidentiary hearing. In October 2021, the trial court issued a writ of
habeas corpus to secure the presence of Gibson—who was being held in the Du Page County
Jail—for the evidentiary hearing.
¶ 29 On October 25, 2021, at the evidentiary hearing, neither party presented any witnesses.
Defendant presented the affidavits that were attached to his third amended petition. The trial court
admitted the affidavits.
¶ 30 Following the evidentiary hearing, the trial court denied defendant’s postconviction
petition. The court found defendant failed to meet his burden to prove his actual innocence by a
preponderance of the evidence. The court noted that defendant’s claim was based on the two
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inadmissible hearsay affidavits of defendant’s mother and sister and the terse recantation affidavit
of Gibson. The court gave little weight to Gibson’s affidavit because Gibson did not testify as a
witness at the hearing under oath and was, therefore, was not subject to cross-examination, and
did not allow the court to assess Gibson’s credibility. The court also found that Gibson’s
recantation would not affect the outcome on retrial because it was contradicted by Gibson’s
“detailed and lengthy trial testimony.” In addition, Gibson’s recantation contradicted the trial
testimony of “multiple witnesses who placed [defendant] and [Brown] together in [defendant’s]
car.”
¶ 31 Defendant timely appealed.
¶ 32 II. ANALYSIS
¶ 33 The Post-Conviction Hearing Act provides a three-stage procedure by which a criminal
defendant can assert that “in the proceedings which resulted in his or her conviction there was a
substantial denial of his or her rights under the Constitution of the United States or of the State of
Illinois or both.” 725 ILCS 5/122-1 et seq. (West 2022). At the first stage, the circuit court has 90
days to review a petition and may summarily dismiss it if the court finds it is frivolous and patently
without merit. Id. § 22-2.1(a)(2). If the petition is not dismissed within that 90-day period, the
circuit court must docket it for further consideration. Id. § 122-2.1(b). At the second stage of
postconviction proceedings, counsel may be appointed for defendant, if defendant is indigent. Id.
§ 122-4. After counsel has made any necessary amendments to the petition, the State may move
to dismiss a petition or an amended petition pending before the court. Id. § 122-5. If that motion
is denied, or if no motion to dismiss is filed, the State must answer the petition, and, barring the
allowance of further pleadings by the court, the proceeding then advances to the third stage, a
hearing wherein the defendant may present evidence in support of the petition. Id. § 122-6.
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¶ 34 At a third-stage hearing, the defendant bears the burden of showing a deprivation of his
constitutional rights by a preponderance of the evidence. People v. Coleman, 2013 IL 113307,
¶ 92. The trial court serves as the fact finder and, therefore, it is the court’s function to determine
witness credibility, decide the weight to be given testimony and evidence, and resolve any
evidentiary conflicts. See People v. English, 2013 IL 112890, ¶ 23. Thus, we will not reverse the
court’s denial of a postconviction petition following an evidentiary hearing unless the denial was
manifestly erroneous. People v. Eubanks, 2021 IL 126271, ¶ 47. A decision is manifestly
erroneous only if it contains error that is clearly evident, plain, and indisputable. Id. At the
evidentiary hearing, the defendant bears the burden of making a substantial showing of a
deprivation of a constitutional right. Id. ¶ 29.
¶ 35 Here, defendant appeals only the denial of his petition regarding his claim of actual
innocence. The due process clause of the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 2)
affords postconviction petitioners the right to assert a freestanding claim of actual innocence based
on newly discovered evidence. People v. Prante, 2023 IL 127241, ¶ 73 (citing People v.
Washington, 171 Ill. 2d 475 (1996)). Evidence in support of a claim of actual innocence must be
(1) newly discovered, (2) not discoverable earlier through the exercise of due diligence,
(3) material and not merely cumulative, and (4) of such conclusive character that, when considered
along with the evidence that was presented at trial, the new evidence would probably change the
result on retrial. Id. ¶ 73.
¶ 36 To be newly discovered evidence means evidence that was discovered after trial and that
the defendant could not have discovered earlier through the exercise of due diligence. People v.
Jackson, 2021 IL 124818, ¶ 42. Evidence is material if it is relevant and probative of the
defendant’s innocence. Robinson, 2020 IL 123849, ¶ 47. Evidence is noncumulative if it adds to
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the information that the fact finder heard at trial. Id. Lastly, the conclusive character element refers
to evidence that, when considered along with the trial evidence, would probably lead to a different
result on retrial. Id. The conclusive character of the new evidence is the most important element
of an actual innocence claim. Id.
¶ 37 On appeal, here, the parties dispute only the conclusive character of the new evidence, the
three affidavits. Defendant maintains that the affidavits of Gibson, Dillar, and Gloria Griffin are
of such conclusive character that it would likely change the result on retrial.
¶ 38 The purpose of the third stage evidentiary hearing in this case was to determine whether
the affidavits were of such conclusive character that it would probably change the result on retrial.
Our supreme court has described the role of the trial court as follows: “the circuit court serves as
the fact finder, and, therefore, it is the court’s function to determine witness credibility, decide the
weight to be given testimony and evidence, and resolve any evidentiary conflicts.” People v.
Domagala, 2013 IL 113688, ¶ 34; see also People v. Gonzalez, 407 Ill. App. 3d 1026, 1036 (2011)
(“Credibility determinations such as this [at a third-stage evidentiary hearing] are properly made
by the trier of fact, and we have no basis in the record for second-guessing the trial court’s
judgment.”). “This is a comprehensive approach and involves credibility determinations that are
uniquely appropriate for trial judges to make.” Coleman, 2013 IL 113307, ¶ 97. Because the
affiants did not testify at the hearing, the trial court was required to assess the credibility of the
affidavits. We examine each affidavit in turn.
¶ 39 Regarding Gibson’s affidavit we note that a witness’s recantation of his prior testimony is
viewed as inherently unreliable (People v. Morgan, 212 Ill. 2d 148, 155 (2005)), particularly where
the recantation involves a confession of perjury (People v. Steidl, 142 Ill. 2d 204, 254 (1991)). A
court should not grant a new trial on the basis of a witness’s recantation except in extraordinary
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circumstances. Morgan, 212 Ill. 2d at 155. Gibson’s affidavit stated that some of his trial testimony
was false and that defendant was not present when Brown was shot. However, the recantation
affidavit offered in this case was not so extraordinary as to overcome the inherent lack of reliability
attached to such statements. See Morgan, 212 Ill. 2d at 155; Steidl, 177 Ill. 2d at 260; People v.
Jones, 2012 IL App (1st) 093180, ¶ 63.
¶ 40 Gibson’s affidavit lacked detail about who participated in the offense, how the offense
occurred, or when defendant allegedly withdrew from the scene. Gibson also failed to explain
when and why he decided to recant.
¶ 41 Further, Gibson’s affidavit that defendant was not present during the shooting was
contradicted by evidence presented at trial. The record establishes that defendant was with Brown
shortly before Brown was shot. Neal testified at trial that just prior to Brown’s murder, defendant
threw Brown to the ground in the Wendy’s parking lot. Then, while in defendant’s car, Funches
held a gun to Brown’s head while defendant drove, and defendant asked Brown who “shot up” his
mother’s house. Then, defendant told Brown, “I should kill you.” A few minutes later, defendant
ordered Neal out of his car and threatened to shoot Neal if he said anything. Shortly thereafter,
Brown’s body was found on Kautz Road. Defendant led the police to the murder weapon where
he had disposed of it. Further, the record establishes that defendant blamed Brown for the shooting
at his mother’s house the day of the shooting and threatened to kill Brown. Neal testified that
defendant knew Brown was responsible for the shooting of his mother’s house and threatened
Brown that he “should shoot [Brown] in the head.”
¶ 42 We also note that because Gibson did not testify at the evidentiary hearing, his terse
averments contained in his affidavit were not subject to cross-examination. Recantation evidence
bears on a witness’s credibility. People v Fillyaw, 2018 IL App (2d) 150709, ¶ 60. The trial court,
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as finder of fact, considers and determines the credibility of the witnesses, including the
circumstances and weight to be accorded their testimony. Steidl, 142 Ill. 2d 204, 253-55 (in
determining the weight to be given a witness’s recanting testimony, the finder of fact can consider
the conditions and circumstances under which the recantation was obtained). Here, Gibson failed
to testify, thereby denying the trial court the opportunity to consider his credibility, probe him with
questions, and observe him during cross-examination. Therefore, in light of the trial evidence and
the vague nature of Gibson’s affidavit we cannot say that the trial court committed manifest error
in finding that Gibson’s affidavit was unreliable.
¶ 43 Defendant also argues that Gibson’s recantation was corroborated by the affidavits of
Dillar and Gloria Griffin wherein they averred that Gibson told them that he lied at defendant’s
trial and that defendant was not involved in Brown’s murder. The State argues that the trial court
properly disregarded these affidavits because they contained hearsay and would not be admissible
at a new trial. Hearsay affidavits are admissible in postconviction hearings under Illinois Rule of
Evidence 1101(b)(3) (eff. Sept. 17, 2019). Such affidavits must be taken as true at a second stage
postconviction hearing in determining whether to advance the petition to a third-stage evidentiary
hearing. People v. Velasco, 2018 IL App (1st) 161683, ¶ 119. However, when, as here, the petition
advances to a third stage evidentiary hearing, a defendant “no longer enjoys the presumption that
the allegations in his petition and accompanying affidavits are true.” People v. Gacho, 2016 IL
App (1st) 133492, ¶ 13. Instead, at a third stage hearing, the court decides the weight to be given
the testimony and evidence, makes credibility determinations, and resolves any evidentiary
conflicts. Velasco, 2018 IL App (1st) 161683, ¶ 118. In determining the weight to be given the
new evidence and whether all the evidence, new and old, is of such conclusive character that it
would likely change the result on retrial, the court at the third stage must necessarily consider
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whether the new evidence would ultimately be admissible at a retrial. Id. Here, at the third stage,
the hearsay affidavits of Dillar and Gloria Griffin were subjected to credibility, reliability, and
weight-testing. The trial court properly weighed the hearsay affidavits and considered the
possibility of their admissibility at a new trial.
¶ 44 Next, defendant contends that the trial court’s rejection of the affidavits was improper
because the State presented no witnesses or evidence to refute them. Defendant fails to recognize
that it was his burden to show a substantial violation of a constitutional violation by a
preponderance of the evidence. Coleman, 2013 IL 113307, ¶ 92. Therefore, the State did not need
to present any witness or evidence.
¶ 45 We hold that the affidavits at issue were not so conclusive that their admission on retrial
would likely result in a different outcome. Id. ¶ 84. In sum, defendant failed to demonstrate
manifest error where the trial court’s decision was based on the evidence, was not arbitrary, and
was reasonable. People v. Jones, 2012 IL App (1st) 093180, ¶ 49. We, therefore, determine that
the trial court properly dismissed defendant’s postconviction petition alleging his actual innocence
based on newly discovered evidence following a third stage evidentiary hearing.
¶ 46 III. CONCLUSION
¶ 47 For the reasons stated, we affirm the judgment of the circuit court of Kane County.
¶ 48 Affirmed.
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