People v. House

2023 IL App (4th) 220891, 229 N.E.3d 945

Opinion

2023 IL App (4th) 220891 FILED NO. 4-22-0891 November 13, 2023 Carla Bender IN THE APPELLATE COURT 4th District Appellate Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Peoria County JUMAR A. HOUSE, ) No. 12CF254 Defendant-Appellant. ) ) Honorable ) Katherine S. Gorman, ) Judge Presiding.

JUSTICE STEIGMANN delivered the judgment of the court, with opinion. Justices Cavanagh and Lannerd concurred in the judgment and opinion.

OPINION

¶1 In October 2012, defendant, Jumar A. House, was found guilty, following a bench

trial, of attempt (first degree murder) (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2012)), aggravated

battery with a firearm (id. § 12-3.05(e)), and possession of a weapon by a felon (id. § 24-1.1(a)).

The trial court later sentenced defendant to a total of 33 years in prison.

¶2 In March 2015, defendant filed a petition for relief pursuant to the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)), alleging that he was actually innocent

based upon affidavits from newly discovered witnesses. In November 2021 and August 2022, the

trial court conducted a third-stage evidentiary hearing on defendant’s petition, at which three new

witnesses testified on defendant’s behalf.

¶3 In September 2022, the trial court denied defendant postconviction relief, finding

that defendant did not meet his burden of proof. ¶4 Defendant appeals, arguing that the trial court erred by denying his petition because

defendant proved by a preponderance of the evidence that the testimony of the three witnesses at

the third-stage evidentiary hearing was newly discovered, material, noncumulative, and

conclusive.

¶5 We disagree and affirm.

¶6 I. BACKGROUND

¶7 A. The Charges and the Bench Trial

¶8 In March 2012, the State charged defendant with attempt (first degree murder) (720

ILCS 5/8-4(a), 9-1(a)(1) (West 2012)), aggravated battery with a firearm (id. § 12-3.05(e)), and

possession of a weapon by a felon (id. § 24-1.1(a)). The charges alleged generally that in February

2012, defendant, a convicted felon, shot Norman Gates, causing injury.

¶9 In October 2012, the trial court conducted defendant’s bench trial, at which the

following evidence was introduced.

¶ 10 1. Eric Esser

¶ 11 Peoria police officer Eric Esser testified that on February 17, 2012, at 1:19 a.m., he

was dispatched to Club Pounders, located at 315 Main Street in Peoria, Illinois, after another police

officer heard gunshots coming from that location. Upon arrival, Esser observed bullet holes in two

vehicles parked in front of the club—a tan Honda and a black BMW. Both cars were parked on

Main Street directly in front of Club Pounders, facing south toward Adams Street. Esser

determined that the owner of the BMW was Gates.

¶ 12 At some point after the police arrived on the scene and had been investigating,

Gates returned to his car. Officers prevented Gates from leaving the scene, and he waited at the

corner of Main and Adams Streets with two other male companions (later identified as Nicholas

-2- Pannell and Eddie Binion). After about 45 minutes, the police allowed Gates to leave. While he

was on the scene, Gates made no mention of being injured.

¶ 13 Shortly thereafter, at 3:09 a.m., Esser was dispatched to Saint Francis hospital for

a report of a gunshot victim who had been outside of Club Pounders. Upon arrival, Esser

discovered that the victim was Gates, who was receiving medical treatment for a gunshot wound

to his right arm.

¶ 14 2. Norman Gates

¶ 15 Norman Gates testified that he was with Pannell and Binion at Club Pounders on

Main Street during the early morning hours of February 17, 2012. Club Pounders was located

directly across the street from the Peoria County courthouse. Gates stated that, as he was leaving

the club, “[t]here was some shots fired” and he ran. He eventually came back for his vehicle (a

BMW) but was stopped by the police from leaving the scene in his car. Gates allowed the police

officers to process his car for evidence of the shooting. He never told any of them that he had

been injured. In fact, Gates did not know he was injured until later that evening. Gates did not

see who shot him. Gates also testified that he was convicted in 2007 of possession of a weapon

by a felon.

¶ 16 On cross-examination, Gates testified that he learned he had been shot when he

got home and took his coat off. He drove himself to the hospital.

¶ 17 3. Nicholas Pannell

¶ 18 Nicholas Pannell testified that he was at Club Pounders on February 17, 2012, with

Gates and Binion. The trio had driven to the club in Gates’s BMW. When they left Club Pounders,

Pannell saw defendant walk across the street “from his car to the front of the building.” The

prosecutor asked Pannell, “[D]id you then leave or did you stay around the vehicle for a period of

-3- time? Pannell answered, “I stayed there.” The prosecutor then asked, “What happened?” Pannell

answered that he turned around and saw defendant aiming a gun and then firing it at him, Gates,

and Binion. He, Gates, and Binion all ran when defendant began firing at them. They ran to the

corner and hung around there until they walked back “a little down the street from the club.”

Pannell explained that, although the police arrived, he never spoke with an officer that evening.

He did speak with Detective Timothy Moore on February 21, 2012, at which time Pannell

identified defendant from a photo lineup as the person who shot at him, Gates, and Binion on

February 17.

¶ 19 Pannell testified that he had a prior felony conviction for domestic battery and a

misdemeanor conviction for theft. He was also awaiting sentencing on a charge of possession of a

weapon by a felon in Peoria County.

¶ 20 On cross-examination, Pannell testified that he and Gates had been standing by

Gates’s car just prior to the shooting and they “ha[d] words” with defendant at a distance of six or

seven feet. Pannell stated that, when they exchanged words with defendant, defendant was coming

from his own car, which was parked across the street from Gates’s car. Pannell had known

defendant since 2003 and acknowledged that he did not like defendant. Pannell testified that he

never told the police what he had seen until Detective Moore came to his house on February 21.

Moore told Pannell that the police had obtained a surveillance video of the shooting, but Moore

never showed Pannell the video.

¶ 21 4. Timothy Moore

¶ 22 Timothy Moore, a Peoria police detective, testified that he obtained surveillance

footage of the shooting from the owner of a neighboring business, Richard’s On Main. A DVD

containing the video footage was admitted into evidence and played for the trial court. Moore

-4- further testified that he went to Pannell’s house to interview him on February 21, 2012. Pannell

initially claimed he did not see the shooting, but when Moore told Pannell that he had video footage

of the shooting, Pannell told Moore what had actually happened. Moore showed Pannell a six-

person photo array, and Pannell identified defendant as the shooter.

¶ 23 5. Scott Hulse

¶ 24 Scott Hulse, a Peoria police officer, testified that while he was at the crime scene

following the shooting, he stopped Gates from driving away in his BMW until other officers could

process Gates’s car for evidence. Approximately two hours after the shooting, around 3:30 a.m.,

Hulse performed a traffic stop on a vehicle being driven by defendant. Hulse recorded the stop

with his squad car’s camera. The trial court admitted a video of the traffic stop into evidence and

viewed it in open court. The video showed, among other things, defendant’s performance of field

sobriety tests.

¶ 25 6. The Trial Court’s Ruling

¶ 26 The trial court found defendant guilty of all three counts and stated as follows:

“The Court considers the following information consistent with—and in

spite of and notwithstanding the initial contact by Mr. Pannell with the police and

the version of events that he provided to them subsequently being advised that there

was a video. But having never seen the video he then gave a version wherein he

identified [defendant] as the shooter. The video demonstrates that Mr. Pannell and

an individual walking across Main Street had an encounter, at least a dialogue with

some gesturing done by the individual in the street. And within a very short few

minutes thereafter, the individual was found on the video discharging a weapon.

You can see the plumes of smoke run from the location of their parked vehicle and

-5- the individual is thereafter chased.

Subsequently, there was a photo identification lineup and Mr. Pannell also

identified [defendant] in that photo lineup as well. The Court notes the

impeachment by his prior conviction as well as his prior inconsistent statement, but

notwithstanding that, the video evidence which particularly later identifies by dash

cam the arrest of [defendant] while under—driving under the influence incident

identifies stature of the individual in both videos, the clothing worn, the marking

on the respective clothing, the hat, length of hair, all of which are, to the Court’s

conclusion, satisfactory proof beyond a reasonable doubt that [defendant] indeed

was the shooter.”

¶ 27 In April 2013, the trial court sentenced defendant to concurrent terms of 33 years

in prison for attempt (first degree murder) and 8 years for possession of a weapon by a felon. (The

aggravated battery conviction merged with the attempt conviction.)

¶ 28 B. The Direct Appeal

¶ 29 Defendant filed a direct appeal, arguing that he (1) was not proven guilty of attempt

(murder) beyond a reasonable doubt because the only evidence connecting him to the crime was

Pannell’s testimony, which was not credible, (2) received ineffective assistance of counsel when

his attorney failed to cross-examine (a) Pannell about his identification of defendant and (b) Gates

about whether Gates exchanged words with defendant prior to the shooting, and (3) was denied a

fair trial based upon Moore’s ex parte statements to the trial judge following defendant’s bench

trial, thanking the judge for finding defendant guilty. The Third District Appellate Court affirmed

defendant’s convictions. People v. House, 2014 IL App (3d) 130312-U.

¶ 30 C. The Postconviction Proceedings

-6- ¶ 31 1. The Petition and First-Stage Proceedings

¶ 32 In March 2015, defendant, with the assistance of counsel, filed a petition for

postconviction relief pursuant to the Act alleging, relevant to this appeal, that (1) the trial judge

“failed to properly consider videotaped evidence presented in the trial of this cause which clearly

demonstrate [sic] that the single witness herein was not candid with the court regarding any

identification of the petitioner as the offender” and “the adoption by this Honorable Court of [the

trial judge’s] findings were [sic] erroneous” and (2) “newly discovered evidence has been brought

to the attention of counsel which was not present at the time of trial which demonstrate[s] the

petitioner’s actual innocence herein.” Defendant attached to his petition the affidavits of six

witnesses: Mario Davis, Albert Price, Erika Gibson, Leola Green, Eddie Rodgers, and Kenwaun

Murray. Defendant later supplemented his petition with a seventh affidavit, from Corey Hunter.

¶ 33 2. The Second-Stage Proceedings

¶ 34 In May 2017, the State filed a motion to dismiss defendant’s petition.

¶ 35 In September 2017, following a hearing, the trial court entered a written order

dismissing defendant’s petition after finding that defendant did not meet his burden of establishing

a substantial denial of his constitutional rights.

¶ 36 Defendant appealed the second-stage dismissal of his petition, and in July 2020, the

Third District Appellate Court reversed and remanded for a third-stage evidentiary hearing,

concluding that the affidavits attached to the petition, taken as true and liberally construed, made

a substantial showing of actual innocence. People v. House, 2020 IL App (3d) 170655, ¶ 33.

¶ 37 3. The Third-Stage Proceedings

¶ 38 On two separate dates in November 2021 and August 2022, the trial court

conducted a third-stage evidentiary hearing on defendant’s petition at which, of the seven affiants,

-7- only Murray, Hunter, and Davis testified. Defendant and Moore also testified.

¶ 39 a. Kenwaun Murray

¶ 40 Murray testified that he was currently serving a sentence in the Illinois Department

of Corrections (IDOC) for residential burglary and aggravated battery convictions from 2014.

When asked if Murray knew defendant, Murray answered, “He used to cut my hair. He was a

friend of mine.” Murray learned defendant was arrested in 2010 or 2011. He stated, “My

recollection is kind of bad, but I know he got locked up” for a shooting “or something like that.”

Murray was not present for the shooting but testified that he had an encounter with Pannell

sometime after the shooting.

¶ 41 Specifically, Murray testified that he was familiar with Pannell, having met him

twice: once at a bar in Galesburg, where they got into an altercation, and again at a gas station or

convenience store in Galesburg. Murray stated the encounter at the gas station occurred in late

February or early March 2014. When Murray saw Pannell, Murray asked him “[w]hy did he lie on

[defendant], *** put that man in jail?” Murray testified that “[Pannell] ended up telling [Murray]

how [Pannell] couldn’t go to jail for—what was it—a gun case or something like that. And so he—

he said he told—he told the detective that. He told him it was [defendant]. He said [defendant] was

the shooter or something.” Murray testified that he was shocked by what Pannell told him and “just

got in [his] car and left.” When asked if he ever reached out to anybody with the information he

received from Pannell, Murray answered, “I got a call from [defendant] sometime in March, and I

told him [what Pannell had said]. *** And here I am today.”

¶ 42 On cross-examination, Murray could not remember the name of the gas station but

was able to identify the intersection. Murray also testified that he was not present for defendant’s

trial, but he did attend defendant’s sentencing hearing. When asked if he wrote his affidavit,

-8- Murray testified that it was sent to him and he signed it and sent it back. (The State did not ask

who sent it to Murray or to whom Murray returned the signed affidavit.)

¶ 43 b. Corey Hunter

¶ 44 Hunter testified that he knew defendant as an acquaintance but they were not

friends. Hunter stated he was present outside of Club Pounders at the time of the shooting, standing

directly across the street from the club, on the courthouse side of Main Street. When asked what

time the shooting occurred, Hunter answered, “I know it was a little bit after midnight.” He stated

that he did not have anything to drink and was smoking a cigarette, talking to a couple of people

that he knew.

¶ 45 When asked to describe how the shooting occurred, Hunter answered, “A guy

pulled up in the car. He got out. After he got past us, he started firing shots, kind of chased the

people a little bit. And then he came back and got in his car and drove off.” Hunter said the car

was black but he did not know the make and model. Hunter explained that the car had pulled up

on Main Street, driving away from Adams Street, and was consequently on the same side of the

street as Hunter. Hunter described the shooter as a dark-complected, black male who was about

six feet tall. He was wearing “dark black clothes,” including a leather parka. Hunter stated that the

person he saw shooting was not defendant. He did not know the shooter but had seen him around

town before.

¶ 46 Hunter did not remember exactly when he found out that defendant had been

convicted for the shooting, but after learning of the conviction from family and friends, Hunter

“told them I was there and that [defendant] wasn’t the one who did it.” Hunter stated “they” asked

if he would be willing to testify and he told “them” yes. (Hunter did not specify, nor was he asked,

who he meant by “they” when answering these questions.)

-9- ¶ 47 Hunter also testified that he was familiar with Pannell and did not see him at the

scene of the shooting. Hunter stated that he knew Gates and believed he saw Gates at the shooting.

¶ 48 c. Mario Davis

¶ 49 Mario Davis testified he was in the custody of the Peoria County Sheriff’s Office

for pending charges of unlawful use of a firearm and possession of a controlled substance. He

acknowledged that he had two prior felony convictions for possession of a controlled substance.

Davis stated he was present when the shooting occurred outside of Club Pounders. When asked

what time the shooting occurred, Davis answered, “It was around like 1:00. 1:30 to—between 1:30

and 2:00 in the morning.” He had consumed “probably *** a few beers” but was not drunk. When

asked if he had consumed any drugs, he answered, “I smoke weed, but I don’t—I mean, I don’t be

out of my mind.”

¶ 50 Davis testified that he was sitting outside talking to “female friends” when he

noticed three or four people arguing in the middle of the street. Davis saw “a dark-complected

individual cross the street, *** pull out a firearm, and start shooting *** southbound on Adams.”

Davis did not remember if there were streetlights, but Davis testified that he got a good look at the

shooter. Davis testified that he saw the shooter’s face and the shooter was not defendant. Davis

was familiar with defendant, having seen him around town before, but he did not have any

relationship with him.

¶ 51 Davis testified that he was familiar with Gates and heard that he had been shot.

Davis further testified that he learned a week or two after the shooting that defendant had been

charged. Davis stated that he did not go to the police to tell them that defendant was not the shooter

because he “was scared of the police,” having been arrested by them numerous times.

¶ 52 The prosecutor also asked Davis about the preparation of his affidavit. Davis

- 10 - testified that he was never asked by anyone to provide his affidavit. Instead, about two weeks after

the shooting, he decided on his own to write the affidavit to “get*** the truth out.” His girlfriend

typed it up for him, and he mailed it to the circuit clerk without providing a case number. The

prosecutor asked, “[S]o then it took you about two-plus years to have your girlfriend write up a

couple sentences?” Davis answered, “Yes, sir.”

¶ 53 d. Defendant

¶ 54 Defendant testified that he was not at Club Pounders the night of the shooting. He

testified that he knew who Gates was, having seen him a few times prior to the shooting, but he

did not know him other than that. Defendant stated that he did not see Gates on the night of the

shooting, nor did he have any dispute of any kind with Gates.

¶ 55 Defendant also testified that he did not know Pannell. Defendant said that he was

aware that Pannell testified during the trial that Pannell knew defendant, but defendant did not

know Pannell. Defendant stated that he knew of Pannell since the trial, but defendant did not know

Pannell before the trial and never saw him on the night of the shooting.

¶ 56 Defendant testified that he had “a lot of *** interactions” with Detective Moore

prior to the shooting. Defendant claimed that, when Moore arrested him, Moore said he knew that

defendant was not there. Defendant testified that Moore told him that Gates stated he never saw

defendant at the scene and Moore was only charging defendant with the crime because Moore did

not like defendant due to defendant’s past.

¶ 57 Defendant testified that he had known Murray for a few years because he cut

Murray’s hair. He stated that he knew Hunter and Davis from going out to the clubs, but “[t]hey’re

not friends.”

¶ 58 e. Detective Moore

- 11 - ¶ 59 Moore testified that after being assigned to investigate the shooting, he reviewed

(1) reports written by other officers who responded to the shooting and (2) obtained a surveillance

video from Richard’s On Main. He did not recall precisely how he learned of Pannell’s presence,

but he stated that Pannell was identified as a bystander to the shooting. When Moore reviewed the

surveillance video, he recognized defendant, Gates, Pannell, and Binion.

¶ 60 Moore interviewed Pannell, who initially claimed that he was at a bar around the

corner from Club Pounders when the shooting occurred. Moore told Pannell that he had obtained

a video of the incident, at which time Pannell gave Moore a statement that “kind of mirrored what

the video showed, that he was standing with [Gates] when he and—when Gates and [defendant]

began to argue.” Moore showed Pannell a photo array, and Pannell identified defendant as the

shooter. At that time, Moore did not know anything about Pannell’s pending court cases. Moore

made no threats or promises to Pannell.

¶ 61 Moore testified that, prior to the shooting, he knew defendant but “didn’t have any

regular contact with him at all.” Moore denied telling defendant that he was arresting defendant

simply because he did not like him. Moore testified that he learned from checking the booking

records from the night of the shooting that defendant had been booked for driving under the

influence (DUI). He obtained the video of the DUI stop from the arresting officer’s squad car

camera. He had already obtained the surveillance footage from the shooting. He noticed that,

during the DUI stop, defendant was dressed “virtually identically to the *** Richard’s video” and

that “it appeared to be the same person to me.”

¶ 62 f. Video Evidence

¶ 63 The State played for the trial court the portions of the surveillance video and the

DUI video that were played at trial.

- 12 - ¶ 64 The surveillance video depicted (1) the sidewalk in front of Club Pounders, (2) the

northbound and southbound lanes of Main Street, and (3) the sidewalk and courthouse across the

street from Club Pounders. The camera angle faced slightly northward because the camera was

affixed to the right of the club. The camera depicted Gates and his two male companions walking

to Gates’s car, which was parked in front of the club facing southward toward Adams Street.

Almost immediately after the trio arrived at Gates’s car, the shooter appeared on the right side of

the screen on foot, walking in the middle of the southbound lane of Main Street. The shooter

approached within feet of Gates and his companions and had an apparent verbal exchange with the

trio as he slowly walked past them. The verbal exchange continued for approximately 30 seconds

as the shooter continued to slowly walk northbound past the tan Honda parked behind Gates’s

BMW. The shooter then disappeared from view on the left side of the video screen.

¶ 65 After the shooter disappeared from view, Gates and his companions loitered at

Gates’s parked car. After approximately 1½ minutes, the shooter reappeared on the left side of the

screen and fired a gunshot. The gunshot was distinguishable by (1) a plume of smoke rising from

where the shooter was standing and (2) Gates and his companions ducking and then running

southbound. When the shooter fired the gun, he was standing on the Club Pounders side of Main

Street, behind a light-colored car parked two cars directly behind Gates’s car.

¶ 66 After Gates and his companions ran away, the shooter followed them, running

between the sidewalk and parked cars on the club side of the street, firing additional shots in their

direction. The shooter appeared within feet of the surveillance camera as he chased Gates and his

companions, then disappeared out of view. The street was well-lit.

¶ 67 g. The Trial Court’s Ruling

¶ 68 In September 2022, the trial court issued an oral ruling denying defendant’s

- 13 - petition. The court stated the following:

“The Court has *** considered the credibility, demeanor, and personality

of the parties that have weighed in during this third-stage proceeding.

***

On November the 19th of 2021, we heard from Kenwaun Murray, who

appeared in custody via video, and he testified that the witness, Nicholas Pannell,

told him he lied because he had a deal with the State. This information came to light

in approximately March of 2014.

The Court did not find Mr. Murray’s testimony particularly credible and his

recall of specific facts [was] not particularly credible.

On November 19th of 2021, Corey Hunter testified that he was there on the

night of the shooting and it was not [defendant]. A very credible argument can be

made that this testimony could have been known to the Defendant before and at the

time of trial through the exercise of due diligence.

Later, we heard from Mario Davis, who was outside of Pounders where the

incident occurred, and he testified that the person was wearing an all black jacket

and his skin was light not dark. The same argument can be made for Mr. Davis.

[Defendant] testified and denied his involvement.

Officer Tim Moore also testified via Zoom about the details of

apprehending [defendant] and the DUI that occurred later in the early morning

hours after the incident happened.

In addition, the DVD of the incident was played that was a surveillance

video, and the Court also reviewed the DUI arrest materials.

- 14 - The court notes that [defendant’s] stature, clothing, and hair length as seen

on the video of [defendant’s] DUI arrest were consistent with the individual that

fired the shots as seen on the video.

The evidence that was presented during this third-stage hearing pursuant to

instructions from the Third District Appellate Court cannot overcome the

overwhelming evidence against defendant per [People v. House, 2014 IL App (3d)

130312-U], wherein the Third District noted that weight is to be given to the

witness’ credibility, resolution of inconsistencies, and reasonable inferences, and

those are to be drawn by the trier of fact.

[Defendant] has not shown by a preponderance of the evidence the legal

standard necessary for post-conviction relief, specifically third-stage proceedings,

and they were not of such a conclusive character that would change the outcome of

the retrial and the ultimate outcome would not be different.”

¶ 69 This appeal followed.

¶ 70 II. ANALYSIS

¶ 71 Defendant appeals, arguing that the trial court erred by denying his petition because

he proved by a preponderance of the evidence that the testimony of the three witnesses who

testified at the third-stage evidentiary hearing on defendant’s actual innocence claim was newly

discovered, material, noncumulative, and conclusive.

¶ 72 We disagree and affirm.

¶ 73 A. The Act

¶ 74 1. The Three Stages of a Postconviction Proceeding

¶ 75 The Act provides a criminal defendant the means to redress substantial violations

- 15 - of his constitutional rights that occurred in his original trial or sentencing. People v. Robinson,

2020 IL 123849, ¶ 42, 181 N.E.3d 37. “To be entitled to postconviction relief, a defendant must

establish a substantial deprivation of federal or state constitutional rights in the proceedings that

produced the challenged judgment.” People v. English, 2013 IL 112890, ¶ 21, 987 N.E.2d 371.

¶ 76 A postconviction proceeding operates in three stages. Id. ¶ 23. During the first

stage, “all well-pleaded allegations in the petition and supporting affidavits that are not positively

rebutted by the trial record are to be taken as true.” Robinson, 2020 IL 123849, ¶ 45. “In deciding

the legal sufficiency of a postconviction petition, the court is precluded from making factual and

credibility determinations.” Id.

¶ 77 If a defendant’s petition survives the first stage, the proceedings advance to the

second stage, where counsel may be appointed. People v. Urzua, 2023 IL 127789, ¶ 33. At the

second stage, like the first stage, all well-pleaded facts that are not positively rebutted by the trial

record are taken as true; the trial court does not engage in any fact-finding or credibility

determinations. People v. Domagala, 2013 IL 113688, ¶ 35, 987 N.E.2d 767 (quoting People v.

Coleman, 183 Ill. 2d 366, 385, 701 N.E.2d 1063, 1073 (1998)). “The question raised in an appeal

from an order dismissing a postconviction petition at the second stage is whether the allegations

in the petition, liberally construed in favor of the [defendant] and taken as true, are sufficient to

invoke relief under the Act.” People v. Sanders, 2016 IL 118123, ¶ 31, 47 N.E.3d 237.

¶ 78 At the third stage, unlike the first and second stages, the allegations are not taken

as true; instead, “the trial court acts as a factfinder, making credibility determinations and weighing

the evidence.” People v. Reed, 2020 IL 124940, ¶ 51, 182 N.E.3d 64. A reviewing court will not

reverse a trial court’s findings regarding credibility determinations or fact finding after a third-

stage evidentiary hearing unless the findings are manifestly erroneous. Id. “Manifest error is

- 16 - ‘clearly evident, plain, and indisputable.’ [Citation.] Thus, a decision is manifestly erroneous when

the opposite conclusion is clearly evident.” People v. Coleman, 2013 IL 113307, ¶ 98, 996 N.E.2d

617 (quoting People v. Morgan, 212 Ill. 2d 148, 155, 817 N.E.2d 524, 528 (2004)). This deferential

standard of review reflects the understanding that the trial court is in the best position to observe

and weigh the credibility of the witnesses. Coleman, 183 Ill. 2d at 384-85.

¶ 79 2. Postconviction Claims of Actual Innocence

¶ 80 “As [the Illinois Supreme Court] stated in Washington, ‘no person convicted of a

crime should be deprived of life or liberty given compelling evidence of actual innocence.’ ”

Coleman, 2013 IL 113307, ¶ 94 (quoting People v. Washington, 171 Ill. 2d 475, 489, 665 N.E.2d

1330, 1336-37 (1996)). “That statement indicates that the standard [the supreme court has] adopted

is extraordinarily difficult to meet.” Id.

¶ 81 “[I]n order to succeed on a claim of actual innocence, the defendant must present

new, material, noncumulative evidence that is so conclusive it would probably change the result

on retrial.” Id. ¶ 96. “New means the evidence was discovered after trial and could not have been

discovered earlier through the exercise of due diligence.” Id. “Material means the evidence is

relevant and probative of the petitioner’s innocence.” Id. “Noncumulative means the evidence adds

to what the jury heard.” Id. “And conclusive means the evidence, when considered along with the

trial evidence, would probably lead to a different result.” Id.

¶ 82 If the trial court determines that the evidence presented at the evidentiary hearing

was new, material, and noncumulative, “the trial court then must consider whether that evidence

places the evidence presented at trial in a different light and undercuts the court’s confidence in

the factual correctness of the guilty verdict.” Id. ¶ 97. “This is a comprehensive approach and

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

- 17 - “Probability, not certainty, is the key as the trial court in effect predicts what another jury would

likely do, considering all the evidence, both new and old, together.” Id.

¶ 83 B. This Case

¶ 84 The parties agree that defendant’s postconviction evidence was material and

noncumulative. The parties disagree, however, whether the evidence was new and conclusive.

Because defendant bears the burden of presenting evidence that is (1) new, (2) material,

(3) noncumulative, and (4) conclusive (id. ¶ 96), we need not determine whether the evidence was

newly discovered because we affirm the trial court’s judgment that the evidence was not

¶ 85 Defendant argues that the trial court’s decision was manifestly erroneous because

the testimony of Murray, Hunter, and Davis would likely change the result on retrial. Specifically,

defendant contends that his conviction rested solely on Pannell’s testimony that he saw defendant

firing the gunshots, and Murray’s, Hunter’s, and Davis’s testimony contradicted and called into

question Pannell’s testimony. Defendant analogizes his case to People v. Ortiz, 235 Ill. 2d 319,

337, 919 N.E.2d 941, 952 (2009), and Coleman, 2013 IL 113307, ¶ 114, in which the Illinois

Supreme Court awarded the defendants new trials because the newly discovered evidence

conflicted with the trial evidence. Defendant asserts that his case is similar and he, too, should

receive a new trial.

¶ 86 We disagree.

¶ 87 1. Appellate Review of Third-Stage Hearings

¶ 88 This court, in People v. Carter, 2021 IL App (4th) 180581, ¶¶ 61-62, 188 N.E.3d

391, rejected the defendant’s argument that he should receive a new trial because his case was

factually similar to Ortiz and Coleman, writing as follows:

- 18 - “The problem for defendant is that each one of those cases is sui generis, as

are all third-stage postconviction proceedings. In the cases cited by defendant

[(Ortiz, Coleman, and People v. Molstad, 101 Ill. 2d 128, 461 N.E.2d 398 (1984))],

the supreme court determined, for various reasons, that the evidence presented at

the evidentiary hearings was sufficient to merit a new trial. However, the only

consistent takeaway from those cases is the legal standard that courts must apply

when evaluating the evidence presented at third-stage proceedings in which a

defendant has raised claims of actual innocence.

In such cases, the supreme court has consistently held that a new trial is

warranted if the evidence is of such a character that it undermines confidence in the

verdict. Coleman, 2013 IL 113307, ¶ 97. The court has explained that, after

receiving evidence and hearing testimony, the trial court must evaluate the new

evidence along with the trial evidence and weigh the probability of a different

outcome upon retrial. Because trial courts must both (1) make credibility

determinations and (2) consider the new evidence with the trial evidence, every

case is fact intensive, unique, and to be considered on its own merits. Given the

unpredictable nature of fact finding in general and juries in particular, comparing

any given court opinion against the circumstances of a particular case before the

trial court at a third-stage hearing is of minimal value, if any.”

¶ 89 We further wrote in Carter that

“[a]ny time a trial court serves as a fact finder, perhaps the single most

important thing the court can do is say whom it believes and whom it does not.

When the trial court favors us with such a finding, we are at the height of our

- 19 - deference to that court.” Id. ¶ 68.

Such deference is due because trial courts acting as fact-finders rely heavily on the demeanor and

paralanguage of the witnesses to assess their credibility—factors unavailable to a reviewing court,

which has at its disposal only the transcript of a cold record.

¶ 90 In People v. Hadden, 2015 IL App (4th) 140226, ¶ 28, 44 N.E.3d 681, we explained

in greater detail the concept of “paralanguage” when we wrote the following:

“Spoken language contains more communicative information than the mere words

because spoken language contains ‘paralanguage’—that is, the ‘vocal signs

perceptible to the human ear that are not actual words.’ Keith A. Gorgos, Lost in

Transcription: Why the Video Record Is Actually Verbatim, 57 Buff. L. Rev. 1057,

1107 (2009). Paralanguage includes ‘quality of voice (shrill, smooth, shaky,

gravely, whiny, giggling), variations in pitch, intonation, stress, emphasis,

breathiness, volume, extent (how drawn out or clipped speech is), hesitations or

silent pauses, filled pauses or speech fillers (e.g., “um/uhm,” “hmm,” “er”), the rate

of speech, and extra-speech sounds such as hissing, shushing, whistling, and

imitations sounds.’ Gorgos, supra, at 1108. The information expressed through

paralanguage is rarely included in the transcript, as there is generally no written

counterpart for these features of speech. Gorgos, supra, at 1109.”

¶ 91 In Carter, we reaffirmed what we wrote in Hadden, writing as follows:

“Paralanguage is critical to evaluating oral testimony, and we note that

paralanguage is even more important when evaluating witnesses who are testifying

from the witness stand than it is, as in Hadden, when evaluating a recording of what

a witness said. When assessing credibility, a trial court is called upon to evaluate

- 20 - everything together—visual (demeanor, body language), audio (tone), and the

effect of the witness’s testimony (i.e., the impact a witness’s testimony has upon

the listeners)—which is an entirely different task than this court’s when reviewing

a cold record devoid of all of the crucial ways in which humans communicate in

person, both verbally and nonverbally.

The old adage that it is not what one says but how one says it comes to mind.

Identical words can have vastly different meanings based solely on the speaker’s

tone, body language, or both. And these factors may have a profound effect on a

fact finder’s evaluation of a speaker’s credibility, believability, or trustworthiness.

That is to say, a person’s tone or body language can enhance or detract from his

credibility. Judging whether someone is testifying truthfully, fully, honestly, and

earnestly is nigh impossible from the mere words on a page.” Carter, 2021 IL App

(4th) 180581, ¶¶ 70-71.

¶ 92 We again reaffirm what we wrote about the importance of paralanguage in Hadden

and Carter and consider it equally applicable here. Defendant contends that Murray’s, Hunter’s,

and Davis’s testimony was likely to have changed the result on retrial because it “directly refutes

the State’s evidence and calls Pannell’s identification into question.”

¶ 93 Defendant’s argument ignores, however, the difference between the second and

third stages of postconviction proceedings. At the second stage, the defendant need only allege

evidence of his actual innocence and support his allegations with affidavits or other supporting

documentation. At the third stage, the focus shifts to the quality and credibility of that alleged

evidence, which is why the witnesses are required to testify in open court.

¶ 94 As we noted above, the primary purpose of a third-stage hearing is to test the

- 21 - reliability, credibility, or veracity of the new evidence and determine whether the new evidence is

compelling enough to place the trial evidence in a new light and undermine confidence in the

finding of guilt. See Coleman, 2013 IL 113307, ¶¶ 96-97. These questions are determined by the

trier of fact at the third-stage hearing. And in this case, the trial court, after observing the witnesses

testify at the third-stage hearing, concluded that their testimony was not likely to change the result

on retrial.

¶ 95 2. The Trial Court’s Credibility Findings Are Supported by the Record

¶ 96 This court’s job is to determine whether the trial court’s conclusion that defendant’s

third-stage evidence was not conclusive was manifestly erroneous or, put another way, clearly and

plainly wrong. In making that determination, we give deference to the trial court’s credibility and

factual findings. Having done so, we conclude that the trial court did not err because the record in

this case supports the trial court’s conclusion that the testimony of Murray, Hunter, and Davis was

not of such a conclusive character that it would probably change the result on retrial. We address

each witness’s testimony in turn.

¶ 97 a. Murray’s Testimony

¶ 98 Regarding Murray, the trial court explicitly found his testimony to be not credible,

noting in particular his inability to recall details. The court’s finding is supported by the record.

¶ 99 Murray testified that he learned defendant was arrested in 2010 or 2011, but the

shooting did not occur until 2012. Murray explained that his “recollection [was] kind of bad.” He

also could not identify the name of the gas station at which his conversation with Pannell occurred,

or whether it occurred in February or March 2014.

¶ 100 If Murray were an uninterested party, his inability to recall these particular details

might be easily excused due to the passage of time. However, Murray testified that he attended

- 22 - defendant’s sentencing hearing in April 2013. Under these circumstances, Murray’s inability to

recall the details of such an important conversation regarding defendant’s criminal charges, with

which Murray was clearly interested and involved, becomes harder to excuse.

¶ 101 The substance of Murray’s testimony also supports the trial court’s finding that it

was not credible. First, it is unlikely that Pannell would make such a serious and self-incriminating

confession to Murray, a person Pannell had encountered only once before during an altercation in

a public space. Put another way, Murray was not Pannell’s friend, and it is not believable that

Pannell would openly confess to Murray that Pannell had framed Murray’s friend for attempted

murder.

¶ 102 Moreover, it is unlikely that Murray, upon receiving this information from Pannell,

would simply leave and not immediately alert defendant. Murray’s story that he just went home

and only relayed Pannell’s exonerating confession to defendant when defendant happened to call

him in March 2014 strains credibility.

¶ 103 Additionally, Murray testified that he did not write his own affidavit; instead, it was

mailed to him, he signed it, and he returned it. Last, Murray was testifying from the custody of

IDOC for serious felony convictions. All of these factors cast substantial doubt on Murray’s

testimony and support the trial court’s finding that his testimony was not credible.

¶ 104 b. Hunter’s and Davis’s Testimony

¶ 105 The trial court did not make explicit credibility findings about Hunter’s and Davis’s

testimony; however, the court was not required to make such findings. As we wrote in Carter,

2021 IL App (4th) 180581, ¶ 77, when considering all of the evidence, at the third stage, “the court

is not required to make any explicit findings or discuss what evidence it found credible or not

credible any more than it would be required to [do so] after conducting a bench trial.” The

- 23 - reviewing court’s job is to “consider the record and determine if the trial court’s ultimate

determination is against the manifest weight of the evidence. *** Plainly stated, this court reviews

the totality of the evidence underlying the trial court’s judgment.” (Emphasis in original.) Id. ¶ 78.

¶ 106 Here, the trial court concluded that Hunter’s and Davis’s testimony, taken together

with Murray’s testimony (which the court found to be not credible) and the trial testimony, was

not of such conclusive character that it would likely change the result on retrial. The record amply

supports the court’s judgment.

¶ 107 i. Hunter

¶ 108 Hunter, like Murray, demonstrated poor recall of important details. For example,

he testified that the shooting occurred “shortly after midnight,” when it actually occurred at 1:19

a.m. He did not know the make or model of the car the shooter drove up in, stating that he “didn’t

really pay attention.” When asked what clothing the shooter was wearing, Hunter answered,

“Normal street wear. I cannot remember.” When asked whether he remembered how many shots

were fired, Hunter answered, “Not exactly.” For each of these categories of questioning, Hunter

offered additional information only when prompted by counsel through follow-up questions.

¶ 109 When the prosecutor attempted to follow up on Hunter’s testimony regarding the

shooter’s clothing, Hunter demonstrated significant confusion about his own testimony he had just

given on direct examination. Specifically, despite being asked only about the shooter’s clothing

on direct examination, Hunter became confused about whose clothing he had described. We point

to the following exchange:

“Q. [Defense counsel] asked you about his clothes. You said you weren’t

really paying attention. Can I take that to mean you don’t know exactly?

A. Well, you said—you asked me about whose clothes?

- 24 - Q. Well, you tell me. Whose clothes were you talking about when he asked

you?

A. That’s what I’m asking you. You said ‘his clothes.’

Q. Did you not know whose clothes he was talking about?

A. I don’t recall. You’re asking me—he asked me about multiple people.

Q. Okay. When you said you weren’t really paying attention, whose clothes

were you talking about? Do you remember?

A. The shooter?

Q. You tell me. Is that who you meant?

A. I mean, you going back to—you going back to questions—

Q. Yeah. You can’t tell me—when you said you weren’t really paying

attention, you can’t tell me whose clothes you were talking about?

A. Oh, you’re talking about what [Pannell] was wearing?

Q. You tell me. You are the one who said you weren’t paying attention.

Whose clothes were you talking about? It happened moments ago. You just said it.

Whose clothes were you talking about?

A. I been asked a lot of questions in between.

Q. You can’t remember?

A. That’s what I’m trying to ask you.

Q. Pardon me?

A. You’re saying ‘him.’ I’m asking you who you are referring.

Q. I’m asking you who you mean by that. You said you weren’t really

paying attention when you were asked about someone’s clothes. Whose clothes

- 25 - were you talking about? It was not more than five minutes ago.

A. I’ve been asked a lot of questions in between—

A.—about different people.

Q. You don’t know?

A. I don’t recall.

Q. You don’t recall who you were talking about when you said you weren’t

really paying attention?

A. Nope.”

¶ 110 Hunter’s question to the prosecutor whether he was talking about what Pannell was

wearing is particularly confusing because Hunter had testified on direct examination that he did

not see Pannell at the shooting.

¶ 111 Moreover, Hunter testified that, although he did not see Pannell at the shooting, he

did see Gates with two other people. Given the overwhelming testimony that Pannell was present,

the trial court could have easily found the selective identification unconvincing.

¶ 112 Most importantly, Hunter testified that he saw the shooter drive up in his car, get

out and start shooting, and then drive away. Hunter’s version of events is not supported by the

surveillance video, which, as we have described, shows the shooter on foot, engaging with Gates,

Pannell, and Binion for about 30 seconds as the shooter saunters past them, then reappearing on

foot about a minute and a half later, when he begins firing the gun.

¶ 113 ii. Davis

¶ 114 Davis testified that he had consumed a few beers while at Club Pounders prior to

the shooting and when asked if he had consumed any drugs, he did not answer directly. Instead,

- 26 - he obliquely responded, “I smoke weed, but I don’t—I mean, I don’t be out of my mind.” This

simple exchange demonstrates both (1) an impaired ability to observe and recall and (2) a lack of

candor.

¶ 115 Moreover, Davis’s affidavit stated the shooting occurred at 12:40 a.m., but at the

hearing, he testified that the shooting took place between 1:30 and 2 a.m. When asked to explain

the discrepancy, Davis stammered, “I don’t—I don’t recall. Like I said, it’s been—it’s been almost

ten years, I believe, and I didn’t—my—roughly, my mind—like, I haven’t read what I wrote the

last time. It’s been a long time, so I—I could be mistaken. I could’ve made a mistake.” When

asked if Davis was mistaken at the time of his testimony or at the time of his affidavit, he answered,

“Yeah, just—like, today my mind is, like—I have—I have my own—my problems right now, so

I could just be—roughly, my mind is not—I’m just not using my mind, probably, correctly, which

I apologize to the court, but—.” Hearkening back to our discussion on paralanguage, Davis’s

stammering when confronted with the discrepancy reveals more than the mere discrepancy itself.

¶ 116 Additionally, Davis’s description of the preparation of his affidavit was highly

questionable. For example, when the prosecutor inquired into the circumstances surrounding the

creation of Davis’s affidavit, the following exchange occurred:

“Q. Can you describe for us, since you apparently are not too familiar with

[defendant], who is it who approached you with the affidavit or who wrote that up

for you? Who typed that out for you?

A. Who typed this up for me?

Q. Yeah.

A. [Defendant] didn’t type this up for me.

Q. Okay. Who did?

- 27 - A. My girlfriend did.

Q. Okay. Your girlfriend wrote that out?

A. Yes.

Q. Okay. And who approached you or your girlfriend to do that? What were

the circumstances?

A. The word around town was that [defendant] got arrested for it. And all I

was doing was just coming forth, and writing the affidavit, and getting—and getting

the truth out, sir.

Q. Yeah. Well, the word around town you had just said was about two weeks

after the incident; am I right?

A. Yes, sir.

Q. Okay. And so then it took you about two-plus years to have your

girlfriend write up a couple sentences?

Q. Okay. And then where did you send that?

A. What do you mean where I sent this?

Q. Well, I have it, but I know you didn’t send it to me. So after you signed

it, where did it go from there? You had to give it to somebody.

A. To the courthouse.

Q. Where in the courthouse?

A. Circuit’s [sic] Clerk.

Q. The circus clerk?

A. That’s where this has came from, sir. I had them—

- 28 - Q. Wait. I thought your girlfriend typed that up?

A. She typed it, I signed it, and we sent it to the courthouse. I don’t know

where they—they sent it to.

Q. Okay. But no one asked you to type that up—

A. No.

Q.—or your girlfriend?

Q. You just—it occurred to you over two years later—

A. Yes

Q.—hey, we might as well write that up?

Q. On that day, you particularly remember the time as being 12:40?

A. Yes. Yes.

Q. All right. So, again, I just want to say no attorney ever asked your

girlfriend or you to write up that affidavit and send it in?

A. No, sir.

Q. You just randomly sent it to the courthouse?

Q. To whom did you address it?

A. To whom I address—

A. What do you mean?

- 29 - Q. Well, if you mail something, don’t you got to put on, like an envelope

who it’s going to? Have you ever mailed anything?

A. Circuit’s [sic] Clerk, sir.

Q. Okay. Do you—did you put a case number on it? I don’t know. You’re

still holding it. Do you have a case number on it?

A. Mmm-mmm. No.

Q. Okay. Let me take that back. Thank you. Who notarized it? There’s a—

was this stamp, this notary stamp, already on it when you signed it? You see right

there?

Q. Well, when you signed it, sir, was that stamp already on it?

Q. Okay. Was there someone there who stamped it after you signed it?

Q. Well, you signed it, your girlfriend typed it up for you, so I’m guessing

both [of] you are there when you sign it, but maybe not. But was there a guy named

John Bricker [(the name of the notary)] with you when you signed that?

A. No.”

¶ 117 On redirect examination, the following exchange occurred between defense counsel

and Davis:

Q. [Davis,] when [the prosecutor] questioned you about the affidavit that

you wrote, you indicated that you don’t know who John Bricker is, right?

A. Correct.

- 30 - Q. But this affidavit was signed by you, right?

Q. And it was notarized?

Q. And the notary signed it and you’re—I mean you were in the presence

of the notary when you signed it?

A. Yes, sir.”

¶ 118 On recross-examination, the following exchange occurred between the prosecutor

“Q. Well, sir—so [defense counsel] just asked you if you signed it in the

presence of a notary, so where did you sign it?

A. I signed it at home, sir.

Q. So that guy was at your [h]ouse?

A. Oh, you mean the notarized—

A. No, I had a family member do it. I had a family member take me to get

it notarized, so I didn’t—

Q. Oh, all right. Where—where was that?

A. What does that matter?

Q. Don’t—

THE COURT: If you know—

[THE PROSECUTOR]: Don’t worry about it.

THE COURT:—you have to answer.

- 31 - [DAVIS]: I went to—we went to a public library.

[THE PROSECUTOR]: Okay. Do you know which one?

A. Excuse me?

Q. Which—which library?

A. I can’t remember.”

¶ 119 Davis’s testimony regarding the genesis and preparation of his affidavit can only

be described as evasive, unclear, and highly suspect, casting doubt on his entire testimony.

¶ 120 In addition, Davis testified that he found out that defendant had been arrested for

the shooting a week or two after the incident, yet Davis did not tell anyone that he saw the shooting

and defendant was not the shooter. When asked why he did not go to the police, Davis answered,

“I just didn’t. I just didn’t. I just didn’t. There was no—I just didn’t. I was scared of the police. I

mean, I don’t agree with—I don’t know. I don’t know.” Davis’s panicky, stuttering answer to a

question asked on direct examination by defense counsel was far from compelling or convincing.

¶ 121 3. Defendant’s Remaining Arguments

¶ 122 Defendant also claims that the trial court’s decision was manifestly erroneous

because the court (1) failed to properly consider Hunter’s and Davis’s testimony as newly

discovered, (2) misapprehended the evidence, (3) unreasonably concluded that the trial evidence

was overwhelming, and (4) gave too much weight to the trial judge’s assessment of the trial

evidence. We address each argument in turn.

¶ 123 a. Newly Discovered Evidence

¶ 124 Defendant first argues that, “[because] the [trial] court incorrectly concluded that

Hunter and Davis’s testimony did not satisfy the newly-discovered requirement for actual

innocence claims,” “it appears that the [trial] court did not consider Hunter and Davis’s testimony

- 32 - when deciding if [defendant’s] new evidence was conclusive in character.” We first note that the

court did not conclude that Hunter’s and Davis’s testimony was not newly discovered. To the

contrary, the court stated only that (1) “a credible argument [could] be made” that Hunter’s

testimony was not newly discovered and (2) “[t]he same argument [could] be made for Mr. Davis.”

(Emphasis added.) Defendant’s argument is therefore based on a faulty premise.

¶ 125 Moreover, his claim that the trial court did not properly consider the testimony in

the court’s conclusiveness analysis is pure speculation and unsupported by the record. As our

earlier analysis shows, the court explicitly found that the totality of the evidence presented at the

third-stage hearing was not of such a conclusive character as to probably change the result on

retrial, and the court’s finding was entirely appropriate.

¶ 126 b. Misapprehension of the Evidence

¶ 127 Defendant next argues that, even if the trial court considered Hunter’s and Davis’s

testimony as part of its conclusiveness analysis, the court “misapprehended” Davis’s testimony

when the court stated that Davis testified the shooter was light complected when Davis actually

testified that the shooter was dark complected. The record does not establish that the court’s

comment played a material role in its decision. Even if the court’s ruling did materially rest on its

belief that Davis testified the shooter was light complected, we have pointed out the numerous

deficiencies with the remainder of Davis’s testimony that support the court’s conclusion that it was

not credible. Accordingly, the court’s misstatement was minor considering the totality of the

evidence and does not render the court’s ultimate decision manifestly erroneous.

¶ 128 Defendant further argues that the trial court’s conclusion that Murray’s testimony

was not credible is unsupported by the record. We have addressed that argument above (supra

¶¶ 97-103) and need not repeat our analysis here. However, defendant also claims that the State

- 33 - did not present any evidence at the third-stage hearing that rebutted Murray’s testimony.

Defendant’s argument is in error; it is well established that it is the defendant’s burden to prove

each element of an actual innocence claim. Sanders, 2016 IL 118123, ¶¶ 46-47.

¶ 129 c. Overwhelming Trial Evidence

¶ 130 Next, defendant asserts that the trial court’s finding that the State’s trial evidence

was “overwhelming” was unreasonable. Defendant contends that the only evidence supporting

defendant’s conviction was “a single eyewitness [(Pannell)] whose credibility was called into

question at the [third-stage] evidentiary hearing.” We disagree that Pannell’s credibility was called

into question by the testimony of the witnesses at the third-stage hearing.

¶ 131 We earlier identified numerous reasons why defendant’s witnesses at the

third-stage hearing lacked credibility. In addition, defendant’s argument ignores the video

evidence that played a significant role in defendant’s conviction. Moore’s testimony at the

evidentiary hearing that, upon telling Pannell that Moore had obtained a video of the shooting,

Pannell described a version of events that mirrored the video without ever seeing the video lends

weight and credibility to Pannell’s trial testimony.

¶ 132 Additionally, the surveillance video and DUI video were entered into evidence at

both the postconviction hearing and the bench trial, which were conducted by different judges.

The comments of each judge following that judge’s respective hearing demonstrate that each made

his or her own assessment of the videos and concluded that the videos established strong evidence

of defendant’s guilt. Namely, the postconviction court found that “[defendant’s] stature, clothing,

and hair length as seen on the video of [defendant’s] DUI arrest were consistent with the individual

that fired the shots as seen on the video.” The judge at the bench trial found that the video evidence

“identifies [the] stature of the individual in both videos, the clothing worn, the marking on the

- 34 - respective clothing, the hat, length of hair, all of which are, to the Court’s conclusion, satisfactory

proof beyond a reasonable doubt that [defendant] indeed was the shooter.” Having viewed the

videos, we discern no error in their findings.

¶ 133 Even if we disagreed with the trial court’s characterization of the evidence as

“overwhelming,” the trial evidence, when considered with the third-stage postconviction evidence,

was certainly strong enough for us to conclude that the court’s ultimate decision was not manifestly

erroneous.

¶ 134 d. Weight Given to the Findings From the Original Bench Trial

¶ 135 Last, defendant argues that the “the [trial] court should not have given any

deference to the trial judge’s assessment of the trial evidence when deciding if [defendant’s] new

evidence was conclusive in character.” Defendant points to the following comments the court

made when it issued its ruling denying defendant’s petition at the third stage:

“The evidence that was presented during this third-stage hearing pursuant to

instructions from the Third District Appellate Court cannot overcome the

overwhelming evidence against defendant per [People v. House, 2014 IL App (3d)

130312-U], wherein the Third District noted that weight is to be given to the

witness’ credibility, resolution of inconsistencies, and reasonable inferences, and

those are to be drawn by the trier of fact.”

¶ 136 We disagree with defendant that the above comments constitute the trial court’s

giving deference to the trial judge’s assessment of the trial evidence. Although the court’s

comments are far from a model of clarity, we discern the court’s comments to reflect (1) the court’s

own assessment that the trial evidence was overwhelming and (2) a reference to the Third District’s

instruction that issues of weight and credibility are to be determined by the trier of fact. Indeed,

- 35 - we conclude that the trial court’s comments never refer to the trial judge and instead recognize the

court’s own responsibility as the trier of fact at the third-stage hearing to make factual

determinations and credibility findings.

¶ 137 For all of the above reasons, we disagree that the trial court’s decision that

defendant’s evidence was not conclusive was manifestly erroneous.

¶ 138 III. CONCLUSION

¶ 139 For the reasons stated, the judgment of the trial court is affirmed.

¶ 140 Affirmed.

- 36 - People v. House, 2023 IL App (4th) 220891

Decision Under Review: Appeal from the Circuit Court of Peoria County, No. 12-CF- 254; the Hon. Katherine S. Gorman, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Cristina Law Merriman, for of State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Jodi M. Hoos, State’s Attorney, of Peoria (Patrick Delfino, Da- for vid J. Robinson, and Connor Goetten, of State’s Attorneys Ap- Appellee: pellate Prosecutor’s Office, of counsel), for the People.

- 37 -