People v. McCray

2023 IL App (1st) 190829-U

Opinion

2023 IL App (1st) 190829-U No. 1-19-0829

FIRST DIVISION November 20, 2023

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 JUDICIAL DISTRICT ____________________________________________________________________________

PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Cook County. Plaintiff-Appellee, ) ) v. ) No. 99 CR 3428 ) SIDNEY McCRAY, ) ) The Honorable Defendant-Appellant. ) Carol M. Howard, ) Judge Presiding.

____________________________________________________________________________

JUSTICE Pucinski delivered the judgment of the court. Justices Lavin and Coghlan concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s judgment denying defendant’s postconviction petition after a third-stage evidentiary hearing on his claim of actual innocence where the circuit court’s finding that the new witness’s testimony was not reliable was not manifestly erroneous, and the new evidence would not have probably changed the result on retrial.

¶2 Following a third-stage evidentiary hearing under the Post-Conviction Hearing Act (Act) (725

ILCS 5/122-1 et seq. (West 2018)), the circuit court denied defendant’s request for a new trial

based on his allegation that he was actually innocent of the first-degree murder, home invasion,

and armed robbery of Dwayne Hill in October of 1998. Defendant now appeals, contending that 1-19-0829

the denial of a new trial was manifestly erroneous. Specifically, defendant argues that the circuit

court’s decision to deny him postconviction relief after a third-stage evidentiary hearing was

manifestly erroneous where the evidence presented would have probably changed the trial

outcome. For the following reasons, we affirm the judgment of the circuit court.

¶3 BACKGROUND

¶4 On October 29, 1998, Dwayne Hill was found fatally shot in an alley behind 3263 West

Maypole, Chicago, Illinois. Defendant and two codefendants, Antonio Richardson and Timothy

Stephens, were charged in connection with the shooting death of Dwayne Hill. In a jury trial before

the Honorable Dennis Dernbach, defendant was tried separately from his two codefendants,

Timothy Stephens and Antonio Richardson, who testified as witnesses for the State. The jury found

defendant guilty of first-degree murder, home invasion and armed robbery. The trial court

subsequently sentenced him to 45 years’ imprisonment for first degree murder with two 20-year

concurrent sentences for home invasion and armed robbery. We affirmed on direct appeal. People

v. Sidney McCray, No. 1-04-1188 (March 2, 2007) (unpublished order pursuant to Illinois Supreme

Court Rule 23). We rely upon the facts detailed in the prior order as well as additional facts relevant

to resolve the issue raised in the instant appeal.

¶5 Trial1

¶6 Chicago Police Detective Terrance O’Connor

1 At trial, the State presented the testimony of Rontral Lee and presented his handwritten statement after Lee denied that he gave a handwritten statement to the police and an assistant state’s attorney. In that statement, he admitted, in part, that defendant made inculpatory statements to him that he robbed and shot Hill. However, on direct appeal, this court found that Lee’s statement did not satisfy the personal knowledge requirement for admissibility pursuant to 725 ILCS 5/115-10.1. People v. Sidney McCray, No. 1-04-1188 (March 2, 2007) (unpublished order pursuant to Illinois Supreme Court Rule 23). Therefore, we will not consider Lee’s testimony in our analysis of the evidence in this case. -2- 1-19-0829

¶7 Detective O’Connor testified that on October 29, 1998, at approximately 5:30 a.m., along

with Detectives Mike Duffin and Mike Hughes, he went to the alley behind 3263 West Maypole

to investigate the discovery of a dead body. The body was leaning against a guardrail in a seated

position. Detective O’Connor testified that he saw a gunshot wounds to the victim’s head, and

blood pooled in the area. The victim was wearing jogging shorts and a t-shirt but was not wearing

any shoes. There were also three cartridge casings behind the victim’s body and a shoe print in the

blood near the victim’s body. A metal safe, also described as a fire box, was found near the alley,

approximately 70 feet east of the victim’s body. After canvassing the area, the detectives still did

not know the identity of the shooting victim.

¶8 Once the detectives went back to Area Four Police District, Veronica Dunlap and Kimberly

Stewart came into the station to report that Veronica’s boyfriend, Dwayne Hill, who lived in the

3200 block of Maypole, was missing. The detectives drove to Hill’s address at 3229 West Maypole

and found that his basement apartment had been ransacked. Detective O’Connor described the

residence as a traditional two-flat, and the entrance to the basement was on the first floor. The

detective learned that Hill’s father lived on the first floor and Hill lived in the basement. The State

introduced photos of Hill’s basement apartment at trial, showing that drawers in the kitchen and

the bedroom areas were pulled out, the kitchen counters were covered in debris, and Hill’s bed

was pulled off its frame. Detective O’Connor called for the crime scene investigators to photograph

the apartment. He testified that Hill’s body was found approximately eight houses west of the

Hill’s apartment.

¶9 Detective O’Connor testified that he then went back to the police station, and between 2:00

and 3:00 p.m., he received a phone call from “Miss Anderson,” who said that people who lived at

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3220 West Maypole had information about Hill’s murder. The detective went to that address and

knocked on the door. No one answered.

¶ 10 Forensic Investigator Dale Principato

¶ 11 Dale Principato, a forensic investigator with the Chicago Police Department, received an

assignment to go to the crime scene at 5:55 a.m. He saw Hill, along with cartridge casings behind

him, blood next to him, and a safe nearby. When he arrived, he saw that it was raining, and the

area was wet from the rain. He took photographs of the scene and collected three cartridge casings,

which appeared to be .45 caliber. He also collected a vial of blood from the blood next to Hill. He

dusted the safe for latent fingerprints. Then, he went to the basement apartment at 3229 West

Maypole, took photographs, and dusted for latent fingerprints. He also took photographs and

dusted for latent fingerprints from Hill’s car, which was parked in front of the residence. He did

not find any latent fingerprints on the safe, inside the basement apartment, or from Hill’s car.

¶ 12 Doctor Nancy Jones

¶ 13 Doctor Nancy Jones testified that she conducted an autopsy of Dwayne Hill. An external

examination of his body showed three gunshot entrance wounds, the first one located on his left

cheek, the second one located on his left ear, and the third one located on the front of his right

shoulder. None of the wounds showed evidence of close-range firing. She did not observe any

stippling around these entrance wounds. X-rays showed that there were foreign metallic objects

consistent with bullets located on the right side of Hill’s neck and his right elbow. She determined

that the cause of death was multiple gunshots wounds, and the manner of death was homicide.

¶ 14 Brian Mayland

¶ 15 It was stipulated that Brian Mayland, an expert in the field of firearms, would testify that he

examined the three .45 caliber automatic fired cartridge casings. He determined that they were all

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fired from the same firearm. He also examined the two bullets recovered in this case and

determined that they were fired from the same firearm.

¶ 16 Julie Wessel

¶ 17 Julie Wessel testified as an expert in the field of latent fingerprints. She tested the three

cartridge casings in this case. She did not find any latent fingerprint impressions suitable for

comparison on them. She explained that it is “rare” to get a suitable latent impression on a cartridge

case but it has happened in other instances.

¶ 18 Veronica Dunlap

¶ 19 Veronica Dunlap testified that she was dating Hill at the time of his death and that Hill lived

in the basement apartment of a house on Maypole. She called him when he did not arrive to pick

up her kids to take them to school on the morning of October 29th. When he did not answer, she

went to his house and saw his car parked there and, looking through a window, saw that his

basement apartment had been ransacked. Then, she went to the police station to see if he had been

arrested, and she learned that the police had found him dead. She testified that she had previously

seen a safe in Hill’s room in the basement and identified the safe recovered from the scene as

belonging to Hill. She testified that Hill sold marijuana and cocaine, kept drugs around his house,

including large quantities of marijuana.

¶ 20 Chicago Police Detective Cornelius Longstreet

¶ 21 Detective Longstreet testified that he was working this case with Detectives David Wright and

Stanley Sanders. He received information as to possible suspects, including “Shorty-T, Ray Ray,

Sidney and Brother.” After speaking with the victim’s brother, 2 he learned that “Shorty-T” was

William Thompson, “Ray Ray” was Antonio Richardson, “Sidney” was defendant, and “Brother”

2 Detective Longstreet did not identify the name of the victim’s brother. -5- 1-19-0829

was Melvin Bradford. On November 14th, the detectives located Antonio “Ray Ray” Richardson

and Melvin “Brother” Bradford at different locations. On November 15th, the detectives located

an additional suspect, Timothy “Jerry” Stephens. Antonio Richardson and Timothy Stephens were

eventually charged in this case, but Melvin Bradford and William Thompson were not charged.

The detectives were unable to locate defendant at this time.

¶ 22 Timothy Stephens’ Handwritten Statement

¶ 23 Timothy Stephens (Stephens) testified that he was incarcerated for armed robbery and home

invasion related to this case. He was also previously convicted in two drug cases in 1994 and 1996.

He knew defendant from the neighborhood, and he knew Hill through Hill’s sister and brother. 3

He testified that during the evening and early morning of October 28 through 29, 1998, he was at

his home at 3503 West Adams, along with his mother and his daughter. He denied that he went to

the Hill’s home and that he was involved in the robbery and shooting of Hill. He asserted that he

pled guilty in this case because he was afraid that if he went to trial and lost, he would be sentenced

to a longer term of imprisonment.

¶ 24 He further testified that on November 14, 1998, he was picked up by the police while he was

standing along the street at Sacramento and Fifth Avenue. The police took him to the police station

and then told him why he was there. At that time, he did not know that Hill had been murdered.

At the station, he spoke with Detective Longstreet and Detective David Wright. He testified that

he was advised of his constitutional rights, but the detectives beat him during the two days that he

spent in custody and told him what they wanted him to say. When Assistant State’s Attorney David

Williams (ASA Williams) arrived to speak with him, he told the version of events supplied by the

detectives. He testified that he and the detectives rehearsed what he was going to say eight or nine

3 Timothy Stephens did not identify the name of the victim’s brother. -6- 1-19-0829

times. Although Stephens admitted that he made some of the statements contained in the written

summary, he also denied the truth of those statements. He also testified that he was never alone

with ASA Williams, that he asked ASA Williams if he could speak with him alone, to which ASA

Williams agreed, but the detectives never left the room.

¶ 25 When he was subsequently sent to Cook County Jail, he was interviewed by medical

personnel, reported that he had been beaten and that he was passing blood. He gave a urine sample

and there was blood in his urine. He also testified that he did not have any marks or injuries on his

body but had internal injuries. He admitted that he had a venereal disease at this time but denied

that he had blood in his urine because he had a venereal disease.

¶ 26 Detective Wright testified that on November 14, 1998, he was involved in the arrest of

Timothy Stephens. He denied that he used any type of physical force on Stephens and never saw

anyone else use any type of physical force on him. He also testified that Stephens never complained

to him that anyone else had hit him. He denied that he or Detective Longstreet told Stephens what

to say to ASA Williams and denied that they rehearsed what Stephens was going to say to ASA

Williams. During the investigation, he called the Cook County State’s Attorney Office to have an

assistant state’s attorney assist in the investigation. When ASA Williams arrived, he and Detective

Wright met with Stephens. Detective Longstreet was not present for these interviews. At 4:45 a.m.,

on November 17, 1998, ASA Williams advised Stephens of his constitutional rights, and took

Stephens’ handwritten statement. Detective Wright further testified that ASA Williams spent time

alone with Stephens outside his presence.

¶ 27 ASA Williams testified that in the early morning hours of November 17, 1998, he went to Area

Four Police District and met with Detective Wright. At 1:30 a.m., he and Detective Wright met

with Stephens in the roll call room and informed him of his constitutional rights. He denied that

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Detective Longstreet was present for the interviews. Stephens acknowledged his rights and agreed

to waive them to speak about his involvement in the offense. During the first interview, Stephens

provided an oral statement. ASA Williams spoke with Stephens alone, asked Stephens about how

he was treated by the police, and Stephens never complained about the treatment he received from

the police. Stephens never told him that a detective hit him in the chest or the ribs or that Detective

Wright told him what to say. ASA Williams never heard Stephens express that he was in any pain

or distress and did not notice anything unusual about Stephens’ appearance.

¶ 28 After ASA Williams spent time interviewing other people at the station, he asked Stephens if

he wanted to memorialize his statement and explained that process. Stephens stated that he wanted

to do a handwritten statement. In his handwritten statement, Stephens stated that on October 23,

1998, he heard defendant say he was going to “hit *** a lick,” that is, to rob the victim, in order to

get some money for his birthday.

¶ 29 On October 29, 1998, Stephens, defendant, Melvin Bradford, a man known only as “Black

Face,” William Thompson, a man known as “Allan,” and Antonio Richardson went to Hill’s

apartment. Pursuant to a plan they previously devised, Stephens knocked on Hill’s door and asked

to buy marijuana. When Hill opened the door, the others rushed in and overpowered him.

Defendant and Melvin Bradford beat Hill and asked him where the “shit was at.” The men searched

Hill’s apartment for money and drugs but found none. Hill then told Bradford that he kept a safe

in the back room of the apartment.

¶ 30 After the men retrieved the safe, defendant forced Hill to strip to his underwear. The men,

including Hill, went outside and through a parking lot to an area behind a building near Hill’s

apartment. At this time, Stephens, Antonio Richardson, and “Black Face” stayed in the alley to

look out for police as defendant, Melvin Bradford, Allen, and William Thompson took Hill

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towards the building to force him to open the safe while defendant kept the gun pointed at Hill.

After emptying the contents of the safe, defendant ordered Hill to lie on his stomach. He stated

that defendant pointed the gun at Hill’s head and shot him in the head. Afterwards, everyone ran

away.

¶ 31 Antonio Richardson’s Handwritten Statement

¶ 32 Antonio Richardson testified that he was incarcerated for his involvement in this case after

pleading guilty to armed robbery and home invasion. He testified that he pled guilty because he

was afraid of getting sentenced to a longer term of imprisonment. He also had a prior conviction

for unlawful use of a weapon in 1997, and three prior juvenile adjudications of delinquency for

possession of a controlled substance. He denied that his nickname was “Ray Ray.” He admitted

that he knew Hill his whole life and lived in the same neighborhood. He also admitted that he knew

defendant, William “Shorty T” Thompson, and Timothy “Jerry” Stephens, but denied knowing

Melvin “Brother” Bradford, and “Black Face.”

¶ 33 He testified that on the night of Hill’s death, he was at the home of his “baby momma” at

Lamon and Iowa, and he denied that he left that home that night. He denied that he knew where

Hill lived. He testified that he went to the police station on November 14th, but originally told the

detectives that he was 19 years old even though he was 16 years old. He denied that the police

informed him of his constitutional rights. He initially denied that he had a conversation with ASA

Williams, and testified that he only conversed with Detectives Longstreet, Sanders, and Wright.

However, he subsequently admitted that he did speak with ASA Williams. He testified that the

police took his handwritten statement, not ASA Williams, and that he signed it, but he

subsequently admitted that he told ASA Williams certain parts of his statement. He testified that

he provided his address to ASA Williams, but he denied that he told ASA Williams the rest of the

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contents of his handwritten statement. He denied that he told ASA Williams and the detectives that

he was treated well by the police, that he had been given food and drink, that he was allowed to

use the bathroom, that he was not threatened or promised anything in return for the statement, and

that he gave the statement freely and voluntarily and free from the effects of drugs and alcohol.

¶ 34 Detective Wright testified that Antonio Richardson was arrested on November 14, 1998 and

brought to Area Four Police District. At 6:15 a.m., on November 17, 1998, he was present, along

with a youth officer, when ASA Williams took the handwritten statement of Antonio Richardson.

He denied that Detectives Longstreet and Sanders were present during these interviews or wrote

out any part of Richardson’s statement. He saw Richardson review the handwritten statement and

indicate changes or corrections that needed to be made. He denied that Richardson asked to make

a phone call. He testified that ASA Williams was alone with Richardson at one point.

¶ 35 ASA Williams testified that he conducted an oral interview with Richardson and that

Richardson originally said that he was 19 years old, but when the police later determined that he

was a juvenile, a juvenile officer was brought in. During the initial interview, Richardson made a

statement about the victim’s murder including his own participation. Afterwards, he spoke with

Richardson alone, outside the presence of any police officer, and Richardson did not complain

about any police mistreatment or what the police may have previously said to him. ASA Williams

testified that he subsequently spoke with Richardson a second time, along with Detective Wright,

and provided him options to memorialize his statement. Richardson chose a handwritten statement.

¶ 36 While ASA Williams was taking Richardson’s handwritten statement, Detective Wright and a

youth officer were present. ASA Williams denied that Detective Longstreet was present. ASA

Williams never heard Detective Wright tell Richardson what to say or supply answers for him, and

Richardson never told him that Detective Wright fed him what to say. In his handwritten statement,

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Richardson stated that around October 15, 1998, he was hanging around with defendant, William

“Shorty T” Thompson, and Melvin “Brother” Bradford on Maypole Street near Hill’s house.

William Thompson said he was mad because nobody helped him when he was released from

prison, and he wanted to “stick up” the victim. Then, on October 29, 1998, he was with defendant,

William Thompson, Timothy “Jerry” Stephens, Melvin Bradford and “Black Face” by Hill’s

apartment. They devised a plan to have Timothy Stephens approach Hill’s door and hold him up

while defendant came forward with a gun and the rest of them would force their way into Hill’s

apartment. He stated that he thought that Hill would be a good person to rob because he sold

“weed” and usually had a lot of money.

¶ 37 Hill arrived home in his Oldsmobile and as Hill was entering his home, Timothy Stephens

stopped him and started talking to him. Then, defendant ran around the corner of the home holding

a gun followed by William Thompson, Melvin Bradford and “Black Face.” They forced their way

into Hill’s apartment, located in the front of the basement, where defendant and Melvin Bradford

beat up Hill and yelled, “Where the s**t at.” Everyone was looking for “weed” and money but did

not find anything. Hill told them that he had a safe. While Melvin Bradford carried the safe,

defendant had his gun pointed at Hill and made Hill remove his clothing except for a t-shirt and

boxer shorts.

¶ 38 All of them left the apartment and went outside while Melvin Bradford carried the safe and

defendant kept the gun pointed at the victim. Antonio Richardson and “Black Face” stood near the

street to look out for the police, while defendant, William Thompson, Melvin Bradford, and

Timothy Stephens had the victim in the back of the property, along with the safe. Richardson saw

defendant shoot Hill in the head two or three times. Afterwards, Richardson ran away, eventually

going to his grandmother’s house.

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¶ 39 Richardson also stated that during the evening of November 13, 1998, he saw defendant, who

told him that he shot Hill in the head, but not to say anything. He stated that they planned to split

the money but he never got any money or drugs. He was treated well by the police and ASA

Williams, given food and drink, allowed to the use bathroom, was not threatened or promised

anything in return for this statement, and he gave the statement freely and voluntarily and free

from the effects of drugs and alcohol. He was also allowed to make corrections and changes to the

statement, and he did so.

¶ 40 Defendant’s Handwritten Statement4

¶ 41 Chicago Police Detective Robert Hartman testified that on January 8, 1999, a female contacted

the police, and he received information about defendant’s whereabouts. Detective Hartman and

other police officers went to that location, knocked on the door, and announced their office. The

detective heard someone running from the front of the apartment to the rear of the apartment, and

then he received a police radio transmission notifying him that defendant just tried to run out the

back door. Someone inside the apartment opened the door, allowing the officers to enter the

apartment, and defendant was found inside a closet, covered with clothing.

¶ 42 Defendant was arrested and taken to Area Four Police District and advised of his constitutional

rights, which defendant indicated that he understood, and he agreed to talk with Detective Hartman

and Detective Wright. Defendant said that he went to the victim’s house on Maypole to meet

William “Shorty T” Thompson, Antonio “Ray Ray” Richardson, Melvin “Brother” Bradford, and

4 Defendant filed a pre-trial motion to suppress his handwritten statement. The record does not include defendant’s motion or the transcript on the hearing of his motion to suppress. Previously, on direct appeal, we noted that defendant alleged in his motion that “the police had coerced him into making a false statement and that the police and an Assistant State’s Attorney failed to timely notify him of his attorney’s arrival.” People v. Sidney McCray, No. 1-04-1188 (March 2, 2007)(unpublished order pursuant to Illinois Supreme Court Rule 23). -12- 1-19-0829

Timothy “Jerry” Stephens. William Thompson had previously told him that he wanted to rob Hill

and that he had a .45 caliber automatic handgun. Timothy Stephens went to Hill’s door to see if

Hill was home while William Thompson, defendant, Melvin Bradford and Antonio Richardson

waited down the block. When they saw Hill come onto the porch and start talking to Timothy

Stephens, they rushed up to the house. With the exception of Antonio Richardson, they took Hill

downstairs to his apartment, where William Thompson held a gun to Hill’s head and repeatedly

asked him “where the s***t was[.]” When the victim did not say anything, Timothy Stephens and

Melvin Bradford started beating him up. William Thompson and Timothy Stephens then took Hill

to the back room and a few minutes later, they returned with Hill wearing only underwear and a t-

shirt and Timothy Stephens carrying a safe. Everyone exited the apartment on the first floor and

walked Hill into the alley.

¶ 43 Defendant, William Thompson, Melvin Bradford and Timothy Stephens and Hill walked into

the alley. William Thompson handed the gun to defendant, and defendant shot Hill either in the

chest or the shoulder, causing Hill to fall to the ground. Defendant fired two more gunshots at Hill.

He handed the gun to Timothy Stephens and ran to his girlfriend’s house.

¶ 44 After defendant provided this oral statement, the felony review unit of the Cook County State’s

Attorney Office was notified, and ASA Jennifer Coleman came to the station. Detective Hartman

did not have any further involvement in this case.

¶ 45 Assistant State’s Attorney Jennifer Coleman (ASA Coleman) testified that she arrived at the

police station on January 9, 1999, at 6:00 a.m. After reviewing the police reports and interviewing

George Ward, she met defendant inside the “roll call room” located inside the detectives’ division.

Defendant was brought into that room by some detectives. She advised him of his constitutional

rights, and he agreed to speak with her and Detective David Wright about the victim’s murder.

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Between 9:00 and 9:30 a.m., they interviewed defendant, and then she asked Detective Wright to

leave the room. She asked defendant how he had been treated, if he was given food to eat and

allowed to sleep and use the bathroom. She testified that defendant did not complain about

anything that had taken place at the station.

¶ 46 ASA Coleman and defendant remained inside the roll call room while she wrote out

defendant’s handwritten statement, asking him questions as she did so. The door to the roll call

room was closed throughout the time that she interviewed defendant. In defendant’s handwritten

statement, he stated that he lived with his sister and was previously a member of the Gangster

Disciples street gang for one year, but he quit the gang two months ago. He remained friends with

other gang members including Timothy “Jerry” Stephens, Antonio “Ray Ray” Richardson, Terrell

“Shorty T” Thompson, 5 and Melvin “Brother” Bradford. Defendant also knew Hill, and he knew

that Hill was also a member of the Gangster Disciples who supplied heroin and marijuana to the

gang in large quantities for the gang to resell. Defendant previously bought “weed” and heroin

from Hill for which Hill charged him “$150.00 a gram for heroin and $800 per pound for “weed.”

Defendant stated that he purchased two pounds of “weed” from Hill in early October of 1998, to

resell it on the street, but Hill only gave him 1 ½ pounds. When defendant went to ask him about

the shortage, Hill told he would “hit him later” meaning that Hill would give defendant the drugs

owed to him. Defendant stated that Hill never gave him the other half pound of “weed” or returned

the money.

¶ 47 Defendant further stated that on October 29, 1998, he was hanging out with Melvin Bradford

when Thompson, Richardson, and Stephens pulled up in a van. Defendant and Bradford got into

the van, and they went to buy “weed” but that location did not have any so they went to Hill’s

5 Terrell “Shorty T” Thompson was identified by other people as William Thompson. -14- 1-19-0829

house. Defendant went to the liquor store while Thompson went to buy “weed” from Hill.

Defendant became angry when Thompson told defendant that Hill had charged them for the

“weed” because defendant thought it should have been free. They drove around in the van smoking

“weed” and drinking until defendant was dropped off at his girlfriend’s house.

¶ 48 Later that night, defendant met up with Thompson, Bradford, Richardson, and Stephens.

Thompson told defendant that he was mad because he thought Hill should have given him some

“weed” to sell after Thompson got out of jail so he could “get back on his feet.” At that point,

Thompson, who had a .45 caliber automatic handgun, devised a plan to rob Hill. Defendant,

Thompson, and Richardson would wait down the street, while Stephens went up the Hill’s door to

see if Hill was home. When defendant saw Hill on the porch talking to Stephens, defendant,

Thompson, and Bradford went ran up to the house and took Hill into his basement apartment.

Thompson held the gun to Hill’s head and asked him “where the s**t at.” Hill did not answer so

Bradford and Stephens started to beat him with their fists. Defendant saw Thompson take Hill to

the back room of the apartment. A few minutes later, Hill came out wearing underwear and a t-

shirt. Defendant also saw Stephens carrying a safe.

¶ 49 Defendant further stated that he, Thompson, Stephens, and Bradford took Hill outside to the

alley. Thompson handed the gun to defendant. Defendant asked Hill about the money, and Hill

told defendant that he would get him his money and “weed” if they would let him go. Defendant

stated that he fired the gun at Hill and shot him in the shoulder or the chest. As Hill was falling,

defendant shot him two more times. Defendant handed the gun to Stephens and ran to his

girlfriend’s house. Defendant had not seen Thompson, Bradford, or Stephens since that day, and

he did not know what happened to the gun. He stated that he had been treated well by the police

and ASA Coleman, allowed to sleep all night, given food from McDonalds and Coke to drink, and

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allowed to use the bathroom when he wanted. He was not promised anything in exchange for his

statement, and he was free from the effects of drugs and alcohol. It was written on the first page

of the handwritten statement that the statement commenced at 10:15 a.m.

¶ 50 ASA Coleman further testified that she reviewed the handwritten statement with defendant,

allowed him to make corrections, and allowed him to read the statement himself before he signed

each page of the handwritten statement. After defendant had signed each page of the statement, at

approximately 11:30 a.m., Detective Sanders knocked on the door to the interview room and asked

to speak to her in the hallway. After speaking with him, ASA Coleman went back into the room

and told defendant that someone had called the police station stating that he was a lawyer

representing defendant, but Detective Sanders did not know the name of this person. She then left

the interview room. She remained at the station to prepare paperwork and went back into a different

interview room at 12:30 p.m. to take Polaroid photos of defendant, which were attached to his

handwritten statement.

¶ 51 Defense Case

¶ 52 Marvin Marshall

¶ 53 Marvin Marshall testified that he was a criminal defense attorney, and on January 9, 1999, he

was asked by defendant’s family to represent him. He had been friends with defendant’s brother

but had never met defendant. The family gave him the name of Detective Sanders. Marshall

testified, on direct examination that, after learning where defendant was located, he called the

police station at approximately 10:30 a.m. He informed the person who answered the phone that

he had been retained by defendant’s family, that he was on his way to the station, and to not speak

to defendant without him being present. He also testified that called the police station at 11:00 a.m.

On cross examination, he was impeached with his testimony at the hearing on defendant’s motion

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to suppress that he received a page from defendant’s brother at 10:30 a.m., called him back, and

he spoke with Detective Sanders on the phone at 11:24 a.m.

¶ 54 He initially testified that he arrived at the police station between 11:30 a.m. and 12:00 p.m.,

and that it took him thirty to forty minutes to drive to the police station. He was impeached by his

prior testimony that he arrived at the second-floor detective’s division at 12:05 p.m. He went to

the front desk of the second-floor detectives’ division and asked to speak with Detective Sanders.

The front desk attendant stated that Detective Sanders was “out.” At that time, he saw a young

man, now known as defendant, a black male, and a white female walk into a room. He was not

permitted to speak with defendant at that time and waited in the waiting area for 30-45 minutes.

During that time, some of defendant’s family members, “either a sister or a cousin,” also arrived.

Then, Marshall told the front desk attendant that he wanted to see defendant immediately. The

attendant spoke to two people inside an office, but he could not hear the conversation. The

attendant returned and said that he could speak with defendant in a few minutes. He saw defendant

and the black officer and defendant walk towards another room while the white female walked in

a different direction. The black officer then approached Marshall and told him that he could speak

with defendant. Marshall did not know if the white female was ASA Jennifer Coleman as her hair

was different, and he could not identify the black officer and did not know his name. Marshall

testified that he left the police station between 1:00 and 1:30 p.m.

¶ 55 Defendant’s Testimony

¶ 56 Defendant testified that he did not murder Dwayne Hill. He explained that on the night and the

early morning hours of October 28 through 29, 1998, he was “[p]robably at my sister [sic] house”

but he did not “know for certain” where he was that night. Prior to getting arrested, he did not

know that the police were looking for him. He knew that the victim had been killed, but he did not

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have any firsthand knowledge of his death. He admitted that he signed an inculpatory handwritten

statement, but he testified that he did so because the police forced him to sign the statement.

According to defendant, he told the police that he was not involved in Hill’s murder, but they kept

questioning him and told him that Antonio Richardson and Timothy Stephens had already signed

statements implicating him in the murder. Defendant testified that Detective Hartman told him that

if he made a statement about the murder, defendant would only get a 20-year sentence; otherwise,

he would go to prison for life. Defendant further testified that he continued to deny involvement,

and Detective Hartman told him that he wanted him to admit that he killed Hill. At that point,

defendant admitted that he killed Hill, but Detective Hartman said that he needed more detail.

Defendant testified that he said that he killed Hill because he “was trying to do anything to get out

of that room at that particular time.” Detective Hartman then provided him the details to put in his

handwritten statement; however, he admitted that he made up the story about buying drugs from

Hill. He denied that he had ever been to Hill’s house or that he had purchased marijuana or heroin

from him. When he spoke with ASA Coleman, he did not need to stop and ask the detective what

he should say because he had already memorized it. He also testified that, when he met with his

attorney, he had just signed the statement “five or three minutes ago.”

¶ 57 Rebuttal Case

¶ 58 Chicago Police Detective Robert Hartman was recalled and testified that defendant told him

during the initial interview that he was riding around all night with William Thompson, Melvin

Bradford, and Antonio Richardson “getting high…” He fell asleep in the van and heard that Hill

had been killed the next morning. Defendant did not tell him that he did not know where he was

at the time of Hill’s murder. During a subsequent interview, defendant told him that he went with

William Thompson, Melvin Bradford, Antonio Richardson and “Black Face” to Hill’s house on

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Maypole, they went downstairs into Hill’s basement apartment and looked around “for “s**t” but

did not find anything. They went back upstairs, walked outside, and saw William Thompson,

Antonio Richardson, Melvin Bradford, and “Black Face” take Hill around the corner and into the

alley. He saw William Thompson shoot Hill in the head.

¶ 59 In the next interview, defendant told him that he was in a van with William Thompson, Melvin

Bradford, Timothy Stephens, and “another dude” and drove to an area to buy some marijuana. No

one was selling at that location, so they went to Hill’s house. They all went downstairs, William

Thompson took Hill into the back room to look for money and “weed,” and then they all left the

apartment with Hill. They took him into the alley where William Thompson shot Hill, defendant

shot Hill, and then Timothy Stephens took the gun and shot Hill. He described the gun as a big,

black, automatic handgun.

¶ 60 During the next interview, during which Detective Wright was also present, defendant stated

that he was in a van with Antonio Richardson, in addition to the four people he already named.

They were unable to purchase marijuana from the other drug spot, so they drove to Maypole where

he purchased some liquor at a liquor store while William Thompson and Timothy Stephens got

out of the van, and they then drove around for a few hours before he was dropped off at his

girlfriend’s house. Defendant stated that he left there to meet William Thompson at Hill’s house.

He saw William Thompson, Timothy Stephens and Melvin Bradford coming out of Hill’s house

and that William Thompson had Hill’s keys. William Thompson told him not to worry about how

he got the keys. They all went into Hill’s house and then left with Hill and Timothy Stephens was

carrying the safe. They walked westbound towards the alley. Defendant saw William Thompson

shoot Hill. William Thompson told defendant “You better shoot this n****r, too” and then

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defendant shot Hill. Defendant handed the gun to Timothy Stephens and turned around to leave.

He heard two more gunshots.

¶ 61 Detective Hartman denied that he told defendant what to say to ASA Coleman or in the

handwritten statement, that he told defendant that he would go to prison for the rest of his life if

he did not make a statement, that he would get 20 years if he signed a handwritten statement, and

that defendant was shown the handwritten statements of Antonio Richardson and Timothy

Stephens. He testified that each time he spoke with defendant, defendant’s story changed slightly.

He denied that he rehearsed with defendant what to say to ASA Coleman.

¶ 62 Chicago Police Detective Stanley Sanders testified that on January 9, 1999, he was working

and knew that defendant was in custody. At approximately 11:30 a.m., he went to the roll call

room and knocked on the door. ASA Coleman responded to the knock on the door, and he told her

that “our phone guy” had received a call from some person saying that they were representing

defendant, and that they were coming to the station. ASA Coleman told him “okay” and closed the

door. He testified that he did not speak with anyone on the phone or meet with anyone who stated

that they represented defendant. He did not speak with Marvin Marshall at the station.

¶ 63 ASA Jennifer Coleman was recalled, and she testified that she did not see Marvin Marshall at

the police station that day. She also did not hear anyone say that there was an attorney at the station

for defendant.

¶ 64 The jury found defendant guilty of first-degree murder, home invasion, and armed robbery.

The trial court sentenced him to 45 years’ imprisonment for first-degree murder and two concurrent

sentences of 20 years’ imprisonment for home invasion and armed robbery.

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¶ 65 Direct Appeal

¶ 66 Defendant challenged his conviction on direct appeal on the basis that: 1) the evidence at trial

was insufficient to prove him guilty beyond a reasonable doubt; 2) he was denied a fair trial

because the trial court admitted the testimonial statements of two witnesses to be used as

substantive evidence defendant was unable to meaningfully cross-examine these witnesses as to

these statements; 3) the trial court violated 725 ILCS 5/115-10.1 by allowing the State to admit

the statement of Rontral Lee, an informant witness; 4) the trial court erred in allowing the State to

present testimony that the codefendants had pled guilty to the same charges for which defendant

was on trial; 5) the prosecutor misstated the evidence during closing argument; and 6) the

compulsory extraction of his blood and the storage of his DNA profile constituted an unreasonable

search and seizure.

¶ 67 On March 2, 2007, defendant’s conviction was affirmed. People v. Sidney McCray, No. 1-04-

1188 (March 2, 2007) (unpublished order pursuant to Illinios Supreme Court Rule 23). The court

found that the evidence was sufficient to sustain defendant’s conviction, however, it also found

that the trial court erred in allowing the State to introduce Rontral Lee’s testimony regarding

defendant’s inculpatory statements to him after the murder.

¶ 68 Initial Postconviction Petition

¶ 69 On October 30, 2007, defendant filed a pro se postconviction petition alleging that his

indictment cited to a 1992 statute that was not in effect at the time of the offense and fellow

prisoners received relief due to the unconstitutional provision; the police unlawfully arrested and

beat him which forced him to give an untrue statement; and his trial and appellate counsel were

ineffective. The circuit court dismissed defendant’s postconviction petition after finding that it was

frivolous and patently without merit. When defendant appealed, his appellate attorney concluded

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that there were no grounds of appealable merit and asked for leave to withdraw from the case. This

court granted counsel’s motion and affirmed the circuit court’s dismissal of defendant’s initial

postconviction petition. People v. Sidney McCray, No. 1-08-0669 (July 24, 2009).

¶ 70 Successive Postconviction Petition

¶ 71 On September 12, 2014, defendant filed a pro se successive postconviction petition in which

he asserted, in part, a claim of actual innocence. Defendant attached his own affidavit, dated

August 22, 2014. In this affidavit, he averred, in part, that he was innocent of Hill’s murder, his

confession in this case was obtained as a result of “coercion and abusive tactics” by Detectives

Wright and Hartman, had “never met Marquette Anderson before Michael Adams informed me

about him[,]” and he “told my counsel that a [sic] date of this crime I was with Tina Gentry.”

¶ 72 Defendant attached the affidavit of Tina Gentry who averred, in part, that defendant was with

her on October 28th and 29th at his home at 4327 West 18th Street in Chicago. Defendant attached

the affidavits of Antonio Richardson and Timothy Stephens, which were consistent with their trial

testimony that they were not present at the time that Hill was shot.

¶ 73 Defendant also attached the affidavit of Marquette Anderson, dated November 4, 2013, who

averred, in part, that he was living on the first floor of the residence at 3229 West Maypole with

his mother, Michelle Anderson, and his step-father, William Barnette. At 11:30 p.m., he was in

the living room watching television when he saw Hill, Shorty T, Ray Ray, and Jerry enter the

house and go downstairs to the basement. He asked Hill for money and “[a]fter a while,” went

downstairs to get the money from him. He called Hill’s name, but hearing no answer, he exited the

house through the back door because it was open. When he got to the alley, he saw Hill, Shorty T,

Ray Ray and Jerry in the alley towards Homan Street. He walked towards them and saw Shorty T

shoot Hill in the head. He turned around, ran back towards the house and heard three to four more

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gunshots. He further averred that he was not aware that defendant had been convicted of Hill’s

murder until he was “kicking it with Michael Adams (Lil Mike)” in the jail yard and told him that

defendant was in the same prison serving time for killing Hill.

¶ 74 The circuit court ultimately advanced the petition for a third stage hearing on defendant’s

claim of actual innocence. The trial court also concluded that Tina Gentry’s affidavit relating to

photos showing injuries to defendant was barred by res judicata. The circuit court found that Tina

Gentry’s affidavit, relating to her providing an alibi for defendant, did not meet the requirements

of being newly-discovered evidence to support his claim of actual innocence. On November 19,

2018, a third-stage hearing was held. At the third-stage hearing, defendant presented the testimony

of Marquette Anderson (Marquette). The State presented the testimony of Mark Morrissey.

¶ 75 Third-Stage Evidentiary Hearing

¶ 76 Marquette Anderson

¶ 77 Marquette testified that, at the time of the victim’s murder, he was 13 years old and lived on

the first floor of a two-flat building at 3229 West Maypole, Chicago, Illinois, along with his

mother, Michelle Anderson, and his stepfather, William Burnett. Marquette’s stepbrother, Dwayne

Hill, lived in an apartment in the basement. On the night of the victim’s murder, Marquette was

watching television in the living room while his mother and stepfather were “in the back part of

the house” on the first floor. At 11:00 p.m., he saw Hill enter the front door along with Shorty T,

Ray Ray, and Jerry. Shorty T was in a relationship with Marquette’s cousin, Daphne Anderson,

and he knew Ray Ray and Jerry as he saw them hanging out in the neighborhood and going to the

liquor store. He did not see defendant, someone he already knew from the neighborhood, enter the

home with these men.

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¶ 78 When Hill and the three other men entered the home and were walking towards the entrance

to the basement, Marquette’s mother told him that it was time for him to go to bed. Marquette

asked her for money to buy shoes and clothing, but his mother said no. He then asked Hill for

money and Hill agreed and told him to come downstairs in a few minutes. Marquette went back

into the living room.

¶ 79 At 11:30 p.m., Marquette went downstairs and called Hill’s name, but there was no answer.

He went towards Hill’s room and saw that he was not there. He looked towards the rear of the

basement and saw that the door was open. Marquette walked towards the rear of the basement and

exited that door. He checked for Hill in the garage, located in the rear of the property, but did not

see anyone inside the garage. From the alley, when he looked in the direction of Homan Avenue,

he saw Shorty T holding a gun in his hand and firing that gun at Hill. He did not see defendant in

that area, and he did not see defendant shoot the victim. Marquette testified that he was “hard of

hearing” but that he heard two gunshots before he ran and then heard two more shots as he ran

¶ 80 He further testified that he ran back to the basement, saw his mother on the first floor, and told

her what he had seen. His mother told him, “[D]on’t say anything, just leave everything alone,

because she don’t [sic] want me to get involved.” His mother called a friend who lived nearby,

told Marquette to quickly pack up his clothes and then sent him to stay with his grandmother, who

lived at 1826 South Kedzie, Chicago, Illinois. He stayed with his grandmother for five more years,

and he did not speak to any police officers. He did not know if the police were looking for him.

¶ 81 When he was incarcerated at Menard, he learned for the first time that there was a trial in this

case and that defendant had been convicted of Hill’s murder. He discovered this information for

the first time when he had a conversation with Michael Adams, another inmate and someone he

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knew from the neighborhood. During a discussion about Hill’s murder, Adams told him that

defendant was “locked up” for this offense. Marquette testified that this conversation occurred in

November of 2013, and that defendant was also incarcerated at Menard at this time but was not

present for this conversation with Adams.

¶ 82 Marquette further testified that he “immediately” wrote a letter to the Cook County State’s

Attorney’s Office in which he informed them that they had the wrong person locked up for Hill’s

murder. He also composed an affidavit. Then, on September 17, 2014, he was interviewed by an

assistant state’s attorney and an investigator.

¶ 83 During cross-examination, Marquette testified that Shorty T, Ray Ray, and Jerry arrived at the

house when it was dark outside, “but it was light.” He admitted that, at the time of the shooting,

he was “far away” and was “one whole complex away” from where the shooting occurred, and he

looked in that direction for “a matter of seconds[.]” He loved the victim and would do anything

for him. He testified that his mother was scared because “it was a gang-affiliated area and Shorty

T had some type of position in it.”

¶ 84 Mark Morrissey

¶ 85 The State presented the testimony of Mark Morrissey, a former investigator with the Cook

County State’s Attorney Office, who testified that on September 25, 2014, he interviewed

Marquette Anderson, along with an assistant state’s attorney. During the interview, Marquette

agreed to speak with them about what he knew about the murder. Marquette described what

happened in the alley and said that he did not see defendant in the alley. During the interview,

Marquette did not mention anyone nicknamed “Shorty T” but in his previous letter, he identified

“Shorty T” as the shooter. Marquette described the lighting conditions in the alley as “dark.” He

also said that the shooting occurred “a few houses from where he was standing.” Marquette also

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did not mention Michael Adams during the interview. Marquette also told him that when he saw

Hill’s room, there was no one inside and he did not follow anyone when he went to the alley.

¶ 86 The circuit court granted defendant’s request to admit Marquette’s letter and affidavit into

evidence. The circuit court also granted the State’s request to introduce the “[a]ppellate record”

into evidence. The circuit court, after hearing arguments, made the following findings:

“After reviewing the trial record and observing the witnesses who testified at

this third-stage hearing the Court makes the following findings of fact:

The Court finds that the affidavit and testimony of Marquette Anderson does

constitute newly-discovered evidence. He testified that he was 13-years old at the

time and after he saw what he allegedly saw he told his mom and his mom

immediately got him out of the neighborhood and sent him to live with his

grandmother and he did not learn that [defendant] had been convicted of Dwayne

Hill’s murder until many years later. I think that based on the records that we have

before us that his affidavit does constitute newly-discovered evidence.

This Court does not find that his testimony is merely cumulative of the

testimony of the other witnesses at trial - - well, it’s not cumulative of all the

evidence that came in at trial because clearly it contradicts the written statements

that the witnesses recanted which were later admitted under Section 115-10 of the

Illinois Statute, so I believe that the second requirement for an actual innocence

claim has been met. However, I think that where the Petitioner’s case fails is

regarding the third requirement, that the evidence must be of such conclusive

character that it would probably change the result on retrial.

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I had an opportunity to observe the testimony of Mr. Anderson during the third-

stage hearing before this Court and did not find it to be so reliable that it would

probably change the outcome - - that it probably would have changed the outcome

of the trial, and because of that I’m going to respectfully deny the petition for new

trial.”

¶ 87 ANALYSIS

¶ 88 The Illinois Post-Conviction Hearing Act provides a three-stage process for defendant who

allege a substantial deprivation of their constitutional rights. People v. Cotto, 2016 IL 119006, ¶

26. In this case, the petition advanced to the third-stage evidentiary hearing. See 725 ILCS 5/122-

6 (West 2012). At the third-stage evidentiary hearing, defendant bears the burden of making a

substantial showing of a constitutional violation. People v. Pendleton, 223 Ill.2d 458, 473 (2006).

The court may receive affidavits, depositions, oral testimony, or other evidence to weigh the merits

of the petition and determine whether the defendant is entitled to relief. Id. Following 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. Ortiz, 235 Ill.2d

319, 333 (2009). “Manifest error” is defined as “error which is ‘clearly evident, plain, and

indisputable.’” People v. Morgan, 212 Ill.2d 148, 155 (2004). Thus, under this standard, a

reviewing court must give great deference to the trial court’s factual findings following an

evidentiary hearing because the trial court stands in the best position to weigh the credibility of the

witnesses. People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 31; see People v. Coleman, 183

Ill.2d 366, 384 (1998).

¶ 89 Postconviction petitioners are afforded the right to assert a freestanding claim of actual

innocence based on newly discovered evidence pursuant to the due process clause of the Illinois

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Constitution. People v. Ortiz, 235 Ill.2d 319, 333 (2009). 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. People v. Sanders, 2016 IL 118123, ¶ 24. Conclusive evidence means

that the evidence, when considered along with the trial evidence, would probably lead to a different

result. Ortiz, 235 Ill.2d at 336-37. “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.” People v. Coleman, 2013 IL 113307, ¶¶ 96-97.

¶ 90 Here, defendant contends that the trial court erred in concluding that the testimony of

Marquette Anderson would not have probably changed the result on retrial. The other elements for

establishing his claim of actual innocence are not in dispute.

¶ 91 Initially, defendant argues that the circuit court’s finding was inconsistent, and thus erroneous,

when it found that Marquette’s testimony was “credible” and at the same time it also found that it

was “not of a nature that would probably have changed the outcome…” In turn, the State argues

that when the circuit court found that Marquette’s testimony was not so “reliable” that it would

probably not change the outcome of the trial, the circuit court necessarily found that Marquette’s

testimony was not credible. In his reply brief, defendant acknowledges the State’s argument, but

does not directly address it; instead, arguing that the circuit court was “improperly substituting its

own opinion on the credibility of Mr. Anderson’s eyewitness account” and that it was up to a jury

to decide the credibility of his testimony.

¶ 92 Specifically, the circuit court found, in part, that “…I had an opportunity to observe the

testimony of Mr. Anderson during the third-stage hearing before this Court and did not find it to

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be so reliable that it would probably change the outcome - - that it probably would have changed

the outcome of the trial, and because of that I’m going to respectfully deny the petition for new

¶ 93 We agree with the State that when the circuit court found that Marquette’s testimony was not

“so reliable,” it was synonymous with the court finding that this testimony was not credible.

Moreover, it is well-recognized that it is entirely within the province of the circuit court to make

credibility determinations during a third-stage evidentiary hearing. People v. Sanders, 2016 IL

118123, ¶ 42 (“Credibility determinations may be made only at a third-stage evidentiary hearing.”)

Therefore, we reject defendant’s argument that the circuit court found Marquette’s account of the

shooting to be credible.

¶ 94 Thus, having found that the circuit court concluded that Marquette was not credible, the

remaining question before us is “whether the evidence supporting the *** 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, ¶ 47. Defendant argues that the evidence at trial was weak

in that the State relied upon the testimony of Timothy Stephens and Antonio Richardson, former

codefendants who took plea deals and who recanted their prior statements to the police inculpating

defendant as participating in the home invasion and armed robbery as well as being the shooter.

He also points out that, at trial, he denied the substance of his prior statement to the police in which

he admitted his involvement in this offense, and there was no physical evidence tying defendant

to the scene. In addition to arguing that the evidence at trial was weak, defendant also argues that

the presentation of Marquette’s testimony was significant in that he testified that defendant was

not present and was not the shooter, and, without any further explanation as to how, he argues that

Marquette’s testimony corroborated the physical evidence.

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¶ 95 However, we recognize that when defendant attacked the sufficiency of the evidence, on direct

appeal, this court found that the evidence in this case was sufficient to sustain his conviction.

People v. Harris, 206 Ill.2d 293, 302 (2002) (in addressing the defendant’s claim of actual

innocence, the supreme court relied upon its previous finding, on direct appeal, regarding the

sufficiency of the evidence). At that time, in upholding defendant’s conviction, this court

addressed the same attacks on the sufficiency of the evidence as presented by defendant here and

balanced that with the evidence presented by the State to show that the handwritten statements

were not coerced. In part, this court found that “these [codefendants’] statements are sufficient to

prove a defendant’s guilt, even if the codefendants’ statements are uncorroborated” and, in light

of the evidence presented by the State to rebut defendant’s argument that the statements were

obtained as a result of coercion, “[t]he verdict in this case reveals that the jury did not find the

witness’ recantations to be credible.” Moreover, when addressing a claim for plain error, this court

also found that the evidence was not closely balanced.

¶ 96 That being said, we now consider the evidence admitted at trial in light of the newly-discovered

evidence presented in defendant’s postconviction petition. While at trial, defendant argued that his

handwritten statement was coerced because the police made promises to him as to a possible

sentence, and his statement was obtained because the police delayed when he had access to an

attorney, the new evidence presented at the third-stage hearing does not provide any further

evidence to support these theories. Therefore, the new evidence that defendant presented at the

third-stage hearing exclusively relates to his contention that he was not present inside Hill’s

residence, did not participate in the home invasion and armed robbery, and was not the person who

fired the shots at Hill in the alley. We recognize, however, that the evidence that defendant relied

upon in his successive postconviction petition was contradictory in several aspects.

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¶ 97 Defendant relies upon contradictory evidence as to who was present at the time of the shooting.

Marquette testified at the evidentiary hearing that he saw Hill with William Thompson, Antonio

Richardson, and Timothy Stephens inside the home and again in the alley at the time that Hill was

shot, and that William Thompson, not defendant, was the shooter. However, both Antonio

Richardson and Timothy Stephens testified at trial and averred in their affidavits attached to

defendant’s successive postconviction petition that they were not present at these times. Where

the testimony of Marquette directly contradicts the affidavits of Richardson and Stephens, as well

as their trial testimony, this contradiction supports the circuit court’s conclusion that this additional

evidence was not of such conclusive character that, when considered along with the evidence that

was presented at trial, it would probably change the result on retrial.

¶ 98 We also look at defendant’s averment in his affidavit, attached to his successive

postconviction petition, that he and his girlfriend, Tina Gentry, were at his home at the time of the

murder. However, these averments contradict his trial testimony that although he did not “know

for certain” where he was that night, he was “[p]robably at my sister [sic] house[.]” Defendant did

not present the testimony of Tina Gentry at trial and did not seek to present an alibi defense at trial.

The circuit court also did not allow defendant to present the testimony of Tina Gentry at the third-

stage evidentiary hearing, as to her averment in her affidavit that she was with defendant, when it

ruled that Tina Gentry’s affidavit did not constitute newly-discovered evidence.

¶ 99 Moreover, Marquette’s description of what he observed that day was suspect. While the

testimony at trial showed that defendant, William Thompson, Timothy Stephens, Antonio

Richardson, and Melvin Bradford forced their way into the home and then forced Hill downstairs

to his basement apartment, Marquette’s testified at the hearing that nothing unusual happened

when he spoke with Hill before Hill and the others went downstairs. At trial, the State introduced

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photographs showing that Hill’s apartment had been ransacked, including drawers pulled open and

a mattress pulled off the bed frame. However, Marquette never averred in his affidavit or testified

at the hearing that he noticed anything askew when he went downstairs to Hill’s apartment.

Moreover, Marquette testified that he did not hear any noise from downstairs, including arguments,

fighting, scraping, or “loud bangs[.]”

¶ 100 Marquette’s opportunity to view the shooting is suspect. He admitted to the investigator that

he viewed the shooting scene for only a matter of seconds, it was dark outside, and the shooting

occurred “a few houses from where he was standing.” At trial, Detective O’Connor testified that

Hill’s body was found approximately eight houses west of Hill’s apartment. Moreover, Marquette

testified that he ran back to his house and told his mother that Shorty T shot Hill, but that his

mother then immediately took him to live with his grandmother. The police did not discover Hill’s

body until several hours later, meaning that Marquette’s mother, who was living with Hill’s father

at the time, did not report the shooting of Hill to the police or to anyone else, leaving him in the

alley despite learning that he had been shot. Hill remained unidentified by the police until Veronica

Dunlap came to the police station later that morning to report his disappearance.

¶ 101 Thus, Marquette’s testimony, as well as the other evidence presented, was not of such a

conclusive character that, when considered along with the trial evidence, would probably lead to

a different result on retrial. Accordingly, the circuit court’s denial of defendant’s postconviction

petition was not manifestly erroneous.

¶ 102 Defendant cites to several cases in support of his argument. For instance, he cites to People v.

Ortiz, 235 Ill.2d 319 (2009), to support his argument. In Ortiz, our supreme court granted the

defendant a new trial based on the testimony of a newly discovered additional eyewitness. Id. at

333-37. The court held that the testimony was newly discovered where the witness did not admit

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witnessing the incident until more than 10 years after trial and made himself unavailable as a

witness when he moved to a neighboring state shortly after the murder. Id. at 325. However, in

Ortiz, the trial court did not assess the credibility of the testimony provided by the new witness.

Here, the circuit court found that Marquette was not credible. Thus, Ortiz is distinguishable from

this case.

¶ 103 Defendant cites to People v. Adams, 2013 IL App (1st) 111081, as a case in which the

reviewing court found that the defendant had sufficiently raised his claim of actual innocence

where the defendant presented affidavits from two newly discovered witnesses that they were

present at the time of the shooting, but did not see the defendant there. However, we note that the

defendant’s case was reviewed at a different point in the postconviction process; namely, following

the trial court’s denial of the defendant’s request for leave to file a successive postconviction

petition. Adams, 2013 IL App (1st) 111081, 29. Here, we are asked to review defendant’s claim of

actual innocence following a third-stage evidentiary hearing. Therefore, the difference in the

procedural posture of Adams means that it does not support defendant’s position in this case.

¶ 104 Defendant also cites to People v. Williams, 2019 IL App (1st) 160503-U, without

acknowledging that it was an unpublished decision in his opening brief. In turn, the State argued

that defendant cannot rely upon this case as precedent because this decision was unpublished

pursuant to Illinois Supreme Court Rule 23, defendant did not present any exception to allow to

be cited as precedent. See Ill. Sup. Ct. R. 23(e)(1) (eff. Feb. 1, 2023). We decline to consider

defendant’s citation to this unpublished decision and agree that defendant’s reliance upon this case

for precedential value is misplaced.

¶ 105 Defendant also argues that the circuit court’s finding that Marquette’s testimony would

probably not have changed the outcome was contrary to the circuit court's “own statement at the

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2nd stage in stating that the testimony of [Marquette] would have bolstered at trial the recantation

of [defendant.]” In making this argument, defendant fails to recognize that the circuit court’s

comments were made during the second stage of postconviction proceedings in which the court

must accept the truth of the factual allegations presented by defendant unless they are not positively

rebutted by the record. People v. Hall, 217 Ill.2d 324, 334 (2005). However, at the third stage of

postconviction proceedings, credibility findings and determinations as to the reliability of the

supporting evidence are to be made, and that presumption no longer exists. People v. Robinson,

2020 IL 123849, ¶ 61. The circuit court’s comments at the second stage of postconviction

proceedings do not persuade us to find that the court’s decision was manifestly erroneous.

¶ 106 CONCLUSION

¶ 107 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 108 Affirmed.

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