People v. McNeil

2025 IL App (4th) 240430-U

Opinion

2025 IL App (4th) 240430-U NOTICE This Order was filed under FILED Supreme Court Rule 23 and is NO. 4-24-0430 April 18, 2025 not precedent except in the Carla Bender th limited circumstances allowed IN THE APPELLATE COURT 4 District Appellate under Rule 23(e)(1). Court, IL OF ILLINOIS

FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County BARTON McNEIL, ) No. 98CF633 Defendant-Appellant. ) ) Honorable ) William A. Yoder, ) Judge Presiding.

JUSTICE KNECHT delivered the judgment of the court. Justices Lannerd and Cavanagh concurred in the judgment.

ORDER

¶1 Held: The appellate court affirmed, finding the trial court (1) properly granted the State’s motion to partially dismiss defendant’s successive postconviction petition at the second stage and (2) did not manifestly err in denying defendant’s petition after a third-stage evidentiary hearing.

¶2 Following a July 1999 bench trial, the trial court convicted defendant, Barton

McNeil, of first degree murder for the death of his daughter, C.M. The court later sentenced

defendant to a term of natural life in prison. On direct appeal, this court affirmed defendant’s

conviction, vacated his sentence, and remanded for resentencing. People v. McNeil, No.

4-99-0679 (Oct. 24, 2001). On remand, the court resentenced defendant to 100 years’

imprisonment, a sentence we affirmed on appeal (People v. McNeil, No. 4-02-0849 (Nov. 4,

2004)). In September 2005, he filed his first pro se postconviction petition, which the court

summarily dismissed. We affirmed the dismissal. People v. McNeil, No. 4-04-0892 (Mar. 7, 2008). In February 2021, the court granted defendant leave to file a successive postconviction

petition, wherein he alleged a claim of actual innocence. In October 2022, the court granted the

State’s motion to dismiss the petition in part and moved the remainder of the petition to the third

stage. In February 2024, the court denied defendant’s petition after holding a third-stage

evidentiary hearing.

¶3 Defendant appeals, arguing the trial court erred by (1) dismissing certain evidence

at the second stage of postconviction proceedings and (2) denying his postconviction petition

after a third-stage evidentiary hearing. He asks this court to reverse the denial of his

postconviction petition and remand for a new trial or, in the alternative, remand for a new

evidentiary hearing. For the following reasons, we affirm.

¶4 I. BACKGROUND

¶5 On the morning of June 16, 1998, defendant called 911 to report finding his

three-year-old daughter, C.M., deceased in his bed. Her cause of death was later determined to be

asphyxiation by smothering. The autopsy revealed some evidence of sexual abuse. From the

start, defendant has maintained Misook Nowlin-Wang, his ex-girlfriend, murdered C.M. out of

jealousy and in retaliation for their failed relationship.

¶6 In July 1998, a grand jury indicted defendant on two counts of first degree murder

(720 ILCS 5/9-1(a)(1)-(2) (West 1998)). The indictment alleged defendant, without lawful

justification, killed C.M. by smothering her, and in committing the act, he either intended to kill

or cause great bodily harm to her or knew his acts created a strong probability of death or great

bodily harm.

¶7 A. Pretrial Proceedings

¶8 In December 1998, the State filed a motion in limine seeking to exclude evidence

-2- Misook was involved in or committed the murder of C.M. The trial court conditionally granted

the State’s motion, allowing defendant to make a formal offer of proof to introduce evidence

tying Misook to C.M.’s murder.

¶9 In March 1999, the trial court held an offer of proof hearing. The defense called

Misook to testify. Before her testimony, the court admonished her of her right to remain silent,

her right to an attorney, her right to consult with her attorney at any time, and that any testimony

could be used against her in later proceedings. Misook indicated she understood and agreed to

testify.

¶ 10 Defense counsel elicited the following testimony from Misook. On June 15, 1998,

the night before C.M. was murdered, Misook and defendant met for dinner. At dinner, she and

defendant got into an argument over several issues. In particular, Misook was upset at defendant

for refusing to testify on her behalf at sentencing in a case where she was convicted of

committing domestic battery against him. Later the same evening, Misook asked her friend to go

with her to defendant’s residence, but her friend told her to stay home. Misook denied going to

defendant’s apartment that night and stated she stayed home alone. However, she went to

defendant’s residence the morning of June 16, 1998, to retrieve a computer disc. Misook stated

she and her daughter, Michelle Nowlin, had been inside defendant’s apartment before for three

or four playdates with C.M.

¶ 11 The trial court affirmed its original ruling granting the State’s motion in limine.

The court found the evidence regarding “the purported motive” of Misook was “not very strong

in terms of commission of a murder to set someone else up.” The court further found the other

evidence presented was not sufficient to establish “any close enough connection that would

allow this to come in in terms of proving [Misook] was the perpetrator as opposed to

-3- [defendant].”

¶ 12 B. Bench Trial

¶ 13 Defendant’s bench trial was held in July 1999. The evidence at trial established,

on June 16, 1998, at approximately 7:45 a.m., officers and emergency personnel responded to a

911 call at defendant’s apartment. Defendant reported finding C.M. unconscious and not

breathing. Paramedics determined C.M. “had no electrical activity in her heart” and rigor mortis

had set in, indicating she had been dead for several hours.

¶ 14 Karen Baker, a police officer with the Bloomington Police Department (BPD),

testified the apartment had one bedroom and was located in a one-story building. After entering

the bedroom, Officer Baker saw the victim’s body lying face up on the bed. Officer Baker did

not observe any disturbances consistent with an intruder in the room. The two access points to

the bedroom were the north-facing window and the inner door leading to the rest of the

apartment.

¶ 15 Thomas Sanders, a detective with BPD, testified he collected evidence and took

photographs of the crime scene. When photographing the bedroom window, Detective Sanders

observed a collection of dead insects, dust, and spiderwebs attached from the window frame to

the mesh screen. The mesh screen had two small cuts in the lower left- and right-hand corners.

The photographs from inside the bedroom depicted closed venetian blinds, with some panels

turned in opposite directions, and a fan leaning against the wall under the window. From the

outside, Detective Sanders did not observe any markings, footprints, trampled bushes, or other

disturbances by the window. Other evidence collected by Detective Sanders included two

bedsheets, a pillowcase, a potential latent fingerprint on the interior of the bedroom window,

C.M.’s T-shirt and underwear, and several forensic swabs.

-4- ¶ 16 Randall McKinley, a sergeant with BPD, testified he was contacted by his shift

commander on the evening of June 16, 1998, who informed him defendant called and asked to

speak to a detective at his residence. After arriving at the residence, defendant told Sergeant

McKinley he believed C.M.’s death was a homicide and wanted to show him “how they got in.”

Defendant pointed out two small holes in the bottom corners of the mesh screen on the bedroom

window. Sergeant McKinley shined a flashlight on the bedroom window and observed an

accumulation of spiderwebs and dirt on the window frame and mesh screen. He did not observe

any scuff marks or mud outside the window and noted the height of the window would make it

difficult for someone to crawl through it without assistance. Defendant also brought Sergeant

McKinley into the bedroom to show him a fan that was on the floor. Defendant asserted this fan

was normally kept in the window. Defendant agreed to speak with detectives at the police

department.

¶ 17 Marvin Arnold, a detective with BPD, testified he and several other officers spoke

with defendant at the police department on the evening of June 16, 1998. Defendant told the

officers he believed Misook was responsible for the death of C.M. Further, defendant asserted he

knew the autopsy would reveal C.M. died of asphyxiation or suffocation. At the time of

defendant’s assertions, the autopsy had not yet been performed. Detective Arnold testified he

conducted a recorded interview with defendant the next day around 11 a.m. Prior to the

interview, Detective Arnold attended the autopsy and was made aware of the findings indicating

external injuries and sexual trauma to C.M. He did not relay those findings to defendant during

the interview.

¶ 18 During the recorded interview, which was played for the trial court, defendant

repeated his belief that Misook crawled through the bedroom window and murdered C.M. after

-5- he and Misook got into an argument the day before. Defendant stated Misook was always jealous

of his relationship with C.M. He admitted although Misook had a history of acting violently, she

had never directly threatened C.M. Defendant stated during their relationship, the police were

called three or four times due to Misook’s violent behavior and she was arrested during the final

incident before they broke up. When defendant and Misook lived together, Michelle would stay

with them often. Defendant offered the following explanation for how he believed C.M. was

killed:

“The last thing [C.M.] saw was probably a flash of lightning right before

somebody put a pillow or—or her Barney doll over her head. And *** I pray that

she was asleep when that happened. I don’t—and—you can tell me the result of

the autopsy, even though I already know what they are. Death by asphyxiation.

*** You mark my words, that’s what it is. And if *** by golly, if I was the one

that did that, I wouldn’t be telling you that it was death by asphyxiation. The only

reason I know that is because—or I say that is because I know I didn’t do it. ***

She was smothered with a g*** pillow or something. I mean, there’s no signs of

trauma, any way, shape, or form.”

¶ 19 Defendant then speculated C.M. might have been poisoned, but he thought it was

unlikely, as Misook was “not smart enough” to do so. He insisted Misook was the only person

with a motive to kill C.M., which he described as her “maniacal desire” to be with him “at any

cost,” including threatening to kill herself over it. Defendant asserted he knew he was likely the

“chief suspect” because he was in the apartment at the time of C.M.’s murder.

¶ 20 Detective Arnold and another officer conducted a second interview with

defendant that afternoon. The second interview was not recorded. When Detective Arnold

-6- mentioned “everything would come out and there were some things not right about the body,”

defendant became angry and responded, “Don’t tell me she was molested.” Detective Arnold

replied, “[W]e didn’t say she was molested. You suggested that she was molested.”

¶ 21 Dr. Violette Hnilica testified she was the forensic pathologist who performed

C.M.’s autopsy. She identified bruising around the victim’s mouth, forehead, chin, and back.

Under an ultraviolet light, the most prominent bruising appeared in the mid-back area, with deep

subcutaneous hemorrhages on both the left and right sides. Dr. Hnilica also found blood in the

victim’s mouth and nose. She stated the injuries indicated pressure had been applied to the face

and back, causing the bruising and superficial abrasions. She also observed petechia, or ruptures

of tiny capillaries, around the eyes, which were typically caused by asphyxia and struggling to

breathe. Dr. Hnilica identified a contusion on the back of the victim’s head. She also observed

congestion and edema, or swelling, of the brain and lungs, both of which correlated with

asphyxial death. The victim also had numerous very fine petechia in the lungs, which supported

a finding of “severe asphyxial process, especially in a child.”

¶ 22 Dr. Hnilica next detailed the examination of the victim’s genital area. She testified

the vagina and anus were dilated and extremely red. The hymen was dilated approximately six

millimeters, which indicated stretching. She observed the hymen was lobulated, meaning it had

an irregular, scalloped pattern on the upper edge. This also indicated previous stretching or

tearing and healing of the hymen. Dr. Hnilica could not state when the injury or scarring had

occurred. She found both acute and intense chronic inflammation. The most serious

inflammation was present in the vagina, with lesser inflammation around the urethra and anus.

Dr. Hnilica explained this type of inflammation was typically caused by intense rubbing with an

object outside the body. She testified these findings were very rare in a child that age unless a

-7- parent reported inappropriate behavior, and she opined the cause of the irritation “would be in

the realm of molestation.” Vaginal swabs revealed blood, which was consistent with injury to the

vaginal area. The victim’s mother, Tita M., testified she never observed the victim engage in

behavior involving touching or playing with her vaginal area.

¶ 23 Dr. Hnilica testified the body came in with panties, bedsheets, and a pillow. The

panties had bloody stains in the crotch area, and the flat sheet had “two very prominent bloody

fluid spots,” which lined up with the victim’s face area and genital area. Based on an analysis of

her stomach contents, Dr. Hnilica opined C.M. died within two hours of eating. C.M. had no

history of medical disease which would have contributed to her death. Dr. Hnilica concluded the

cause of death was smothering, as indicated by the bruising, resulting in an asphyxial death.

¶ 24 Susan Kidd, a forensic microscopist with the Illinois State Police (ISP), conducted

forensic testing on the hairs found on the victim’s left hand, left forearm, and right hand and

compared them against sample hairs taken from C.M. and defendant. Three of the hairs from the

left hand and forearm were forcibly removed. The hairs exhibited characteristics of a mixed-race,

Asian-Caucasian child. Kidd concluded the hairs were consistent with coming from C.M. and

could not have originated from defendant.

¶ 25 Jenny Hahn, a forensic scientist with ISP, conducted serology testing of the

bedsheets, pillowcase, pillow, and T-shirt. The testing identified human blood and urine on some

of the items but excluded the presence of semen. Hahn also conducted serology testing on the

vaginal, rectal, and oral swabs collected during the victim’s autopsy. The testing identified blood

on the vaginal and oral swabs but excluded the presence of semen on all swabs.

¶ 26 Debra Minton, a forensic scientist with ISP, conducted DNA analysis on four

bloodstain samples taken from the fitted bedsheet and a strand of hair taken from the victim’s left

-8- hand and compared them against samples taken from C.M. and defendant. The DNA profile

obtained from the bloodstains and hair matched the DNA profile of C.M. and excluded defendant

as a contributor.

¶ 27 The defense called Wayne Downey, the property manager of defendant’s

apartment building. Downey did not recall previously seeing any large holes in the mesh screen

of defendant’s bedroom window. However, he stated tenants would often make holes in the

corner of the mesh screens to access their units when they were locked out.

¶ 28 Defendant testified on his own behalf. On June 15, 1998, defendant picked C.M.

up from Tita’s home around 7 p.m. and then stopped by McDonald’s to pick up a Happy Meal

for C.M. They arrived at defendant’s apartment between 7:45 and 8 p.m. Defendant logged on to

his computer while C.M. ate her food. He took a nap from around 8:30 to 10:30 p.m. while C.M.

looked at books. After waking up from his nap, defendant put C.M. to bed between 10:30 and

10:45 p.m. Defendant stated there was only one bedroom with one bed in the apartment, which is

where C.M. slept that night. He explained when C.M. stayed at his apartment, she always slept in

the bed, and he always slept on the couch. On rare occasions, C.M. would get up in the middle of

the night and sleep with him on the couch. Defendant also stated he would sleep with no clothes

on after he and Misook engaged in sexual intercourse at their old apartment. Defendant admitted

C.M. climbed into bed with them “once or twice” when they were not wearing clothes but

insisted he “did not routinely sleep naked nor did [he] routinely sleep naked with [C.M.]”

¶ 29 After putting C.M. to bed, defendant returned to “messing around” on his

computer in the living room. Defendant recalled the weather was “extremely warm” that night.

He had the table fan in the living room turned on, but he had the window fan in the bedroom

turned off. He stated the bedroom fan was in the window when he put C.M. to bed. Around

-9- midnight, he walked past C.M.’s room and saw her sitting up in bed and smiling. Defendant

pulled the covers back over C.M. and told her to go back to sleep. At approximately 2 a.m.,

defendant checked on C.M., who was asleep. He went back to the living room and went to sleep

on the couch. Defendant heard heavy thunder between 2:15 and 2:30 a.m., so he did not fall

asleep until 2:45 a.m. Darcy Loy, an official observer for the National Weather Service, testified

weather data from June 16, 1998, showed periods of rain between 3 a.m. and 7 a.m.

¶ 30 Defendant’s alarm went off at 7:10 a.m. and again at 7:19 a.m. He got up and

called to C.M. to wake up before taking a shower. Afterward, defendant called to C.M. a second

time to wake up, as she had not moved. Defendant stated he walked into the bedroom and

realized “she was not alive anymore.” He found C.M. lying on her back with one eye open and

the other partially open, and she was cold to the touch. Defendant ran to the living room and

called 911 to request paramedics. He attempted to perform cardiopulmonary resuscitation (CPR)

by blowing into C.M.’s mouth. He had no CPR training. Defendant saw blood running from her

nose during his attempt.

¶ 31 The paramedics and police officers arrived shortly thereafter. Defendant testified

Misook “showed up too for some unexplained reason.” He recalled C.M. was wearing the same

clothing she was wearing the night before—one of defendant’s T-shirts and a pair of white

panties. Defendant stated he did not examine the bedroom window during the entire morning.

Around noon, Misook “showed up for the second time. Stayed fifteen minutes or so and then

left.” After the body was removed from his apartment, defendant went over to Tita’s home.

Defendant testified he returned to his apartment between 5 and 6 p.m. the same day to pick up

some clothing and because he “was beginning to feel that [C.M.]’s death might not have been by

natural causes.” Upon his return, he noticed two holes in the mesh screen in the bedroom

- 10 - window, a dark mark below the window, and the window fan on the floor of the bedroom. It was

then that he called the detectives to relay his suspicion C.M. was murdered.

¶ 32 The trial court found defendant guilty of both counts of first degree murder. The

court rejected defendant’s theory that an intruder accessed the residence through the bedroom

window. In particular, the court noted evidence of dust and cobwebs on the window frame and

mesh screen that would have been disturbed if an intruder had removed the screen. The property

manager explained the holes in the window screen were made by tenants to gain entry to their

units after locking themselves out. The court also noted defendant’s theory was inconsistent with

C.M.’s time of death. The court found defendant’s suspicious behavior immediately after C.M.’s

death was further evidence of his guilt. Before the cause of death was determined, defendant

repeatedly insisted C.M. was murdered by smothering. Defendant also alluded to molestation

when police suggested “there was something not right about the body.”

¶ 33 The trial court sentenced defendant to a term of natural life in the Illinois

Department of Corrections.

¶ 34 C. Direct Appeal and Initial Postconviction Petition

¶ 35 Defendant appealed, arguing (1) the trial court erred in excluding evidence that

Misook had the motive and opportunity to kill and sexually abuse C.M. and (2) his life sentence

was based on an unconstitutional statute. This court affirmed defendant’s conviction, finding the

excluded evidence showed no clear connection between Misook and C.M.’s death. However, the

court vacated his sentence and remanded for resentencing. McNeil, No. 4-99-0679 (Oct. 24,

2001). In July 2002, the trial court resentenced defendant to 100 years’ imprisonment, and the

sentence was affirmed on appeal. McNeil, No. 4-02-0849 (Nov. 4, 2004).

¶ 36 In September 2005, defendant filed a pro se postconviction petition, alleging

- 11 - (1) his trial counsel provided ineffective assistance, (2) the State violated Brady v. Maryland,

373 U.S. 83 (1963), and (3) his jury waiver was not knowing and voluntary. Defendant attached

an affidavit to his petition which averred, among other facts, (1) he and Misook lived together for

three years, (2) during those three years, C.M. and Michelle had frequent overnight stays where

they would sleep together on the mattress in the extra bedroom, and (3) after he and Misook

broke up, defendant took the same mattress to his new apartment to use as his bed. His affidavit

also averred that on June 9, 1998, one week before C.M. was murdered, Misook spent the night

at defendant’s apartment.

¶ 37 The trial court summarily dismissed the petition, and we affirmed the dismissal.

McNeil, No. 4-04-0892 (Mar. 7, 2008).

¶ 38 D. Motion for Forensic Testing

¶ 39 In November 2013, defendant filed a motion for postconviction forensic testing

pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725 ILCS 5/116-3 (West

2012)). With the agreement of the State, the trial court entered an order for DNA testing of

(1) five untested blood and urine stains on the bedsheet and (2) bloodstains on the pillowcase.

The court entered a subsequent order for DNA testing of the (1) latent fingerprint found inside

the bedroom window, (2) window screen, (3) bedsheet itself, and (4) pillowcase itself. The court

denied defendant’s request for additional forensic testing of C.M.’s underwear and T-shirt.

¶ 40 An October 2015 report detailed the testing results of the fitted bedsheet,

pillowcase, T-shirt, and latent fingerprint. The DNA testing determined the DNA profile

obtained from the swabs of the fitted bedsheet and pillowcase contained a mixture of at least

three individuals. Defendant, Misook, and C.M. could not be excluded as contributors. Misook

was excluded as a contributor to the partial DNA profile obtained from the urine stain on the

- 12 - T-shirt. Serology testing of the T-shirt determined the presence of semen was inconclusive. No

suitable DNA profile was obtained from the latent fingerprint on the bedroom window.

¶ 41 A July 2016 report detailed the results of a mitochondrial DNA (mtDNA) analysis

of the hair found inside the pillowcase. The partial mtDNA profile obtained from the hair was

consistent with the mtDNA profile obtained from Misook and excluded defendant as a

contributor. The report noted, “[mtDNA] is inherited maternally. A mtDNA match cannot

exclude any maternal relatives.”

¶ 42 E. Successive Postconviction Petition

¶ 43 In February 2021, defendant filed a pro se motion for leave to file a successive

postconviction petition, which the trial court granted. The petition alleged a claim of ineffective

assistance of counsel and, relevant here, a claim of actual innocence based on newly discovered

evidence. In his petition, defendant argued the newly discovered evidence supported the theories

that C.M. was not sexually abused and that Misook was responsible for the murder.

¶ 44 In support, defendant attached various documents to his petition. Relevant to this

appeal, defendant attached an affidavit and report completed by Dr. Nancy Harper, a pediatrician

and child abuse expert. According to the report, Dr. Harper concluded there was no evidence

suggesting C.M. had been sexually abused. In his petition, defendant argued Dr. Harper’s report

supported his claim, as it undermined the credibility of Dr. Hnilica’s testimony regarding

defendant’s alleged motive.

¶ 45 Defendant also attached the October 2015 and July 2016 postconviction DNA

testing reports. In his petition, defendant argued the DNA evidence supported his claim, as it

showed a direct connection between Misook and C.M.’s death by placing Misook in the

bedroom. He further argued the trial court, if presented this evidence, would have denied the

- 13 - State’s motion to exclude evidence of Misook’s culpability at trial.

¶ 46 In his petition, defendant asserted Misook’s September 2011 murder of Linda

Tyda, her 70-year-old mother-in-law, supported his claim because it occurred under similar

circumstances, with a similar motive, and established her tendency to commit violent acts.

Misook was convicted of the murder in December 2012, after she strangled Tyda to death during

a heated argument and later buried the body in a shallow grave. Misook also pleaded guilty to

concealment of a homicidal death. While awaiting trial, Misook confessed to Michelle, telling

Michelle she believed her husband, Don Wang, was having an affair with one of Tyda’s

employees. She also confessed to a correctional officer.

¶ 47 Defendant also attached affidavits from Michelle and Dawn Nowlin. (Dawn is

Michelle’s stepmother who is married to Michelle’s biological father, Andy Nowlin.) The

affidavits stated Don Wang, Tyda’s son and Misook’s husband at the time, told them at Tyda’s

funeral Misook had confessed to killing C.M. Finally, defendant claimed each piece of new

evidence or, in the alternative, the totality of the new evidence, was sufficient to entitle him to a

new trial.

¶ 48 1. Second-Stage Proceedings

¶ 49 In April 2022, the State filed a motion to partially dismiss defendant’s successive

postconviction petition. The State agreed Dawn’s and Michelle’s affidavits should move to the

third stage but argued the rest of the evidence did not meet the standard for newly discovered

evidence to support an actual innocence claim.

¶ 50 In October 2022, the trial court issued a written order granting the State’s motion

in part, dismissing Dr. Harper’s report, the DNA evidence, and evidence of Misook’s murder of

Tyda. The court also dismissed the ineffective assistance of counsel claim. Based on the State’s

- 14 - agreement, the court moved Dawn’s and Michelle’s affidavits to the third stage. The court also

moved defendant’s totality of the evidence claim to the third stage only as it pertained to Dawn’s

and Michelle’s affidavits.

¶ 51 The trial court dismissed the remaining evidence as follows. The court found the

DNA evidence was not newly discovered evidence because it was not conclusive. Because the

hair was subjected to mtDNA testing, Michelle could not be excluded as a contributor. In

addition, the court found the DNA evidence from the pillowcase and bedsheet was not

conclusive nor likely to change the result on retrial, as defendant and Misook used to live

together during a long-term relationship and, despite breaking up, they continued to interact with

each other. The court found Dr. Harper’s report was not newly discovered evidence, not likely to

change the result on retrial, and forfeited and/or barred by res judicata. Specifically, the court

noted the report cited sources which were available at the time of the trial or the initial

postconviction petition and could have been discovered through due diligence. Finally, the court

found Misook’s 2011 murder of Tyda was not newly discovered evidence because it was not

material or conclusive, as the murder occurred 13 years after the murder of C.M. and was not

relevant or probative as to defendant’s innocence in the present case.

¶ 52 2. Third-Stage Evidentiary Hearing

¶ 53 The third-stage evidentiary hearing was held in November 2023. The defense

called three witnesses: Michelle, Dawn, and Misook.

¶ 54 Michelle testified Misook was her mother, who was presently incarcerated for the

murder of Tyda. Approximately 12 years ago, when Michelle was around 22 years old, she

attended a “celebration of life” for Tyda. During the event, Michelle, Andy, Dawn, and Don

went to another room for a conversation. Michelle recalled Don “just out of the blue” told her

- 15 - Misook had told him that she had killed C.M. Michelle observed Don “was in a very hard place

at the time.” She stated she did not “know if he said that just to make me not like my mom or—I

don’t know what his intentions were.” On cross-examination, Michelle testified the conversation

with Don occurred shortly after Tyda’s death.

¶ 55 Dawn testified that while attending the celebration of life for Tyda, she spoke

with Michelle and Don. Don told her and Michelle that during a “big fight,” Misook confessed to

killing C.M. When asked whether Don heard Misook say anything more specific about the

murder, Dawn stated she only recalled Don saying “[t]hat it was just a very heated argument and

that [Misook] said she killed [C.M.]”

¶ 56 Before Misook testified, the trial court advised her because she had the right to an

attorney, the court had appointed the public defender to represent her. The court confirmed she

had sufficient time to confer with her attorney before the hearing. The court warned Misook a

transcript of the proceeding would be prepared and anything she said could be used against her in

future proceedings. On direct examination, Misook invoked her fifth amendment (U.S. Const.,

amend. V) privilege in response to every question by defense counsel.

¶ 57 The State called Steven Fanelli, a former detective with BPD. In February 2012,

he conducted a recorded interview of Don during the investigation of the murder of Tyda. In the

recorded interview, portions of which were played for the trial court, Detective Fanelli asked

Don if Misook ever discussed the circumstances of C.M.’s death during the time they were

dating or married. Don replied Misook never talked about C.M. When asked if Misook ever

confessed to killing C.M., Don stated, “Not that I remember if she said something like that.”

When asked if he ever told anyone Misook confessed to killing C.M., Don shook his head and

replied, “I don’t believe so,” and “No.”

- 16 - ¶ 58 Don then asked Detective Fanelli, “Confess means you tell me the whole story

and how she did it?” Detective Fanelli responded, “Yeah, or, okay, did she ever without telling

you the whole story, did Misook ever tell you something like ‘I killed [C.M.]’ Did Misook ever

say that to you?” Don responded, “Not to my knowledge *** Really. Not to my knowledge at

all.” He insisted he would remember if Misook ever confessed during their marriage. Detective

Fanelli confirmed Don never recanted the recorded statements. On cross-examination, the

defense played a portion of the recorded interview where Don expressed his belief Misook had

the capability to commit murder.

¶ 59 In February 2024, the trial court issued a written order denying defendant’s

successive postconviction petition. In its recitation of the facts, the court noted Misook invoked

her fifth amendment privilege in response to defense counsel’s questions. The court found

Dawn’s and Michelle’s testimony constituted newly discovered evidence. However, the court

determined the new evidence was insufficiently conclusive to place the trial evidence in a

different light or undermine the court’s confidence in the guilty verdict. The court also found the

testimony would not be admissible at retrial.

¶ 60 This appeal followed.

¶ 61 II. ANALYSIS

¶ 62 On appeal, defendant argues the trial court erred in (1) dismissing certain

evidence at the second stage of postconviction proceedings and (2) denying his successive

postconviction petition after a third-stage evidentiary hearing.

¶ 63 A. Second-Stage Proceedings

¶ 64 Defendant claims the trial court erroneously dismissed certain evidence at the

second stage of postconviction proceedings.

- 17 - ¶ 65 The Post-Conviction Hearing Act (Act) (725 ILCS 122-1 et seq. (West 2022))

provides a three-stage procedure “by which a defendant can pursue a claim that his conviction or

sentence was based on a substantial denial of his constitutional rights.” People v. Clark, 2023 IL

127273, ¶ 38. The Act contemplates the filing of only one petition without leave of court. 725

ILCS 5/122-1(f) (West 2022). However, the trial court may grant a defendant leave to file a

successive postconviction petition when a defendant sets forth a claim of actual innocence. 725

ILCS 5/122-1(f) (West 2022); People v. Sanders, 2016 IL 118123, ¶ 24. If leave to file is

granted, the court then dockets the petition for second-stage proceedings. People v. Robinson,

2020 IL 123849, ¶ 43.

¶ 66 At the second stage of postconviction proceedings, the defendant bears the burden

of making a substantial showing of actual innocence. People v. Domagala, 2013 IL 113688,

¶ 35. “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.

House, 2023 IL App (4th) 220891, ¶ 77. “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.” Sanders, 2016 IL 118123, ¶ 31. The standard at the second stage of

postconviction proceedings is the same for initial petitions and successive petitions. Sanders,

2016 IL 118123, ¶ 37.

¶ 67 The defendant must support his actual innocence claim with evidence that is

“(1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that

it would probably change the result on retrial.” Robinson, 2020 IL 123849, ¶ 47. Evidence is

newly discovered if it was discovered after the trial and could not have been discovered earlier

- 18 - through due diligence. Robinson, 2020 IL 123849, ¶ 47. Material evidence is relevant and

probative of the defendant’s innocence. Robinson, 2020 IL 123849, ¶ 47. Noncumulative

evidence adds to what the fact finder heard at trial. Robinson, 2020 IL 123849, ¶ 47. Evidence is

of a conclusive character if, when considered with the trial evidence, it would probably lead to a

different result on retrial. Robinson, 2020 IL 123849, ¶ 47. “The conclusive character of the new

evidence is the most important element of an actual innocence claim.” Robinson, 2020 IL

123849, ¶ 47.

¶ 68 A dismissal at the second stage of postconviction proceedings is reviewed

de novo. People v. Brooks, 2021 IL App (4th) 200573, ¶ 34. Under de novo review, we perform

the same analysis as the trial court would perform. People v. McDonald, 2016 IL 118882, ¶ 32.

¶ 69 Defendant first argues the trial court erroneously split his single actual innocence

claim into distinct “sub-claims,” rather than analyzing it as a single claim. According to

defendant, this allowed the court to consider each piece of evidence in isolation and avoid a

comprehensive assessment of the evidence as a whole.

¶ 70 Defendant misunderstands the analysis conducted by the trial court at the second

stage. We agree when a court assesses an actual innocence claim, it must consider the totality of

the newly discovered evidence, along with the evidence presented at trial. People v. Coleman,

2013 IL 113307, ¶ 96. However, before reaching the merits of an actual innocence claim, the

court must first consider whether each piece of evidence, on its own, meets the standard for

newly discovered evidence, and then advance only that evidence to the third stage. Sanders,

2016 IL 118123, ¶ 46; People v. Velasco, 2018 IL App (1st) 161683, ¶¶ 92, 94. That is precisely

what the court did here. Thus, the court followed the proper analysis when assessing the

evidence presented by defendant at the second stage.

- 19 - ¶ 71 In the alternative, defendant contends the trial court erred by dismissing certain

evidence at the second stage where he claims he made a substantial showing of actual innocence

based on newly discovered evidence, warranting an evidentiary hearing. Specifically, he

challenges the court’s dismissal of the DNA evidence, Dr. Harper’s report, and evidence of

Misook’s 2011 murder of Tyda. We will address whether each piece of evidence was properly

dismissed at the second stage.

¶ 72 1. DNA Evidence

¶ 73 We first consider the DNA evidence from the stains on the fitted bedsheet and the

hair inside the pillowcase. “DNA, in and of itself, does not confirm the commission of a crime;

rather, it confirms an individual’s identity.” People v. Rivera, 2011 IL App (2d) 091060, ¶ 31.

Thus, DNA evidence that does not match a defendant’s DNA does not automatically exonerate

the defendant. Rivera, 2011 IL App (2d) 091060, ¶ 31.

¶ 74 Initially, we note defendant misleadingly refers to the bed as “[C.M.]’s bed”

throughout his brief. However, the record otherwise demonstrates this was defendant’s bed,

which C.M. would sleep in when she was visiting him. This was not a fact at issue at trial and is

relevant to whether the DNA evidence meets the requirements of newly discovered evidence, as

discussed below.

¶ 75 Here, we conclude the DNA evidence from the bedsheet does not meet the

materiality requirement for newly discovered evidence. At trial, defendant testified he and

Misook never had sexual intercourse at his apartment. However, in his affidavit attached to his

initial pro se postconviction petition, defendant averred to facts which explained the presence of

Misook’s DNA on the fitted bedsheet, including that (1) Misook “spent the night” at his

apartment approximately seven days before the murder and (2) the mattress was kept in the extra

- 20 - bedroom of their shared apartment during the three years they lived together. Given the mattress

had come from their shared apartment and given Misook’s recent presence in defendant’s

apartment, it was expected that Misook’s DNA would be found on defendant’s bed. Thus, this

evidence is neither probative nor relevant as to whether Misook entered the bedroom at the time

of C.M.’s death.

¶ 76 Similarly, we conclude the mtDNA evidence from the hair in the pillowcase was

not material. Unlike the stains on the fitted bedsheet, the hair inside the pillowcase was analyzed

using mtDNA testing. As noted in the report summarizing the mtDNA findings, “[mt]DNA is

inherited maternally. A mtDNA match cannot exclude any maternal relatives.” This means

although the mtDNA test of the hair could not exclude Misook as a contributor, it also could not

exclude Michelle, who is a maternal relative of Misook. Defendant acknowledged in his initial

petition Michelle frequently slept in the bed with C.M. during the three years he lived with

Misook, and Misook testified at the offer of proof hearing Michelle had several play dates at

defendant’s apartment with C.M. Thus, the mtDNA evidence is not probative of defendant’s

innocence, as the mtDNA findings do not sufficiently establish whether the hair came from

Misook or Michelle.

¶ 77 Even if we were to conclude the DNA evidence from the bed sheet and the

mtDNA hair evidence were newly discovered evidence, when considered with the trial evidence,

they were not of such conclusive character that they would probably change the result on retrial.

See Sanders, 2016 IL 118123, ¶ 47 (clarifying the defendant’s new evidence must be “so

conclusive that it is more likely than not that no reasonable juror would find him guilty beyond a

reasonable doubt”). The presence of Misook’s DNA on the bed does not place in a different light

the evidence of dust and spiderwebs collected on the window screen, which would have been

- 21 - disturbed if an intruder had crawled through the bedroom window. Further, the small holes in the

corner of the mesh screen were, as explained by the property manager, a common method by

which tenants accessed their apartments if they were locked out of their building. The DNA

evidence likewise does not place in a different light defendant’s suspicious behavior following

the murder, most specifically, his insistence to detectives that C.M. was smothered to death

before he knew the results of the autopsy. Further, defendant, by his own admission, was the

only other person besides C.M. present in the apartment during the entire night, and he was

sleeping in the room right next to where C.M. was murdered. Therefore, the trial court did not err

in dismissing the DNA evidence at the second stage.

¶ 78 2. Dr. Harper’s Report

¶ 79 We next consider Dr. Harper’s report regarding the sexual abuse evidence. The

defendant bears the burden to show the evidence was not available at trial or during the initial

postconviction petition and could not have been discovered sooner through the exercise of due

diligence. People v. Snow, 2012 IL App (4th) 110415, ¶ 21. Proposed testimony which merely

conflicts with trial evidence does not meet the newly discovered standard. Sanders, 2016 IL

118123, ¶ 52.

¶ 80 Here, we conclude Dr. Harper’s report is not newly discovered, as it relies on

information which was available at the time of the trial or initial postconviction petition.

Defendant characterizes the report as “new,” based on its conclusion that “ ‘there was a debate in

the literature’ about these issues” at the time of defendant’s trial. This does not accurately reflect

the report’s findings. As to whether “there was a debate in the literature,” this statement referred

specifically to the debate on “the significance of the transverse or horizontal measurement of the

hymen.” This statement was immediately followed with: “However, many authors by the time of

- 22 - the postmortem examination were already publishing an association between an increasing

hymenal diameter and increasing age.” (Emphasis added.) Additionally, the report stated the

finding of a lobulated hymen was considered a normal variant in children and “well published in

the literature as early as 1995.” (Emphasis added.)

¶ 81 As to the finding of erythema, or redness of the genital tissue, the report explained

this was a nonspecific finding that “was well published in the literature at the time of the

postmortem examination and a common finding in girls with or without a history of sexual

abuse.” (Emphasis added.) The report further stated, citing a 1996 study, “[W]hile the scientific

community remains concerned that total anal dilation *** may have association with sexual

abuse[ ], this is a common and well published finding on postmortem examination.” Rather than

present new evidence, the report merely contradicts Dr. Hnilica’s interpretation of the autopsy

findings and relies on authorities which were available at the time of the trial and could have

been discovered through due diligence. Therefore, Dr. Harper’s report cannot constitute newly

discovered evidence.

¶ 82 Even if we were to conclude Dr. Harper’s report was newly discovered evidence,

when considered with the trial evidence, it was not of such conclusive character that it would

probably lead to a different result on retrial. During the trial, the State presented the sexual abuse

evidence as a possible motive for C.M.’s murder. However, “[i]t has long been recognized ***

that motive is not an essential element of the crime of murder, and the State has no obligation to

prove motive in order to sustain a conviction of murder.” People v. Smith, 141 Ill. 2d 40, 56

(1990). In rendering its verdict, the trial court noted, although “the State’s evidence did show

sexual misconduct as a possible motive,” the State was nevertheless not required to prove

motive. Instead, the court based its guilty verdict on the evidence showing C.M. was smothered

- 23 - to death, the implausibility of defendant’s intruder theory, and defendant’s suspicious behavior in

the hours after the murder. Whether C.M. was sexually abused in connection with her murder

does not place any of this other evidence in a different light, such that it would probably lead to a

different result. Therefore, the court did not err in dismissing Dr. Harper’s report at the second

stage.

¶ 83 3. Misook’s 2011 Murder of Tyda

¶ 84 Finally, we consider the evidence of Misook’s 2011 murder of Tyda. We

conclude this evidence is not material, as it is neither relevant nor probative of defendant’s

innocence in this case. Defendant insists the facts of C.M.’s and Tyda’s murders “bear

extraordinary similarities.” He argues had the trial court been presented with this evidence, it

would have denied the State’s motion to exclude evidence of Misook’s culpability at trial. We

disagree. At the time of their deaths, C.M. was a 3-year-old girl, while Tyda was a 70-year-old

woman. C.M. was silently smothered to death in the middle of the night, whereas Tyda was

strangled during a heated argument. C.M.’s body was left to be discovered in the bedroom, while

Misook concealed Tyda’s body by burying her in a shallow grave. There was some evidence

C.M. was sexually abused, whereas there was no indication Tyda was sexually abused. Finally,

Misook made multiple confessions to murdering Tyda and concealing the body, but she has

consistently maintained her innocence in connection with C.M.’s murder. Ultimately, Misook

murdered Tyda in a separate offense, under factually distinct circumstances, 13 years after the

murder of C.M. Therefore, this evidence is not material and does not support defendant’s claim

of actual innocence.

¶ 85 B. Third-Stage Proceedings

¶ 86 Defendant also contends the trial court manifestly erred in denying his successive

- 24 - postconviction petition after a third-stage evidentiary hearing.

¶ 87 “[T]he primary purpose of a third-stage hearing is to test the 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.” House, 2023 IL App (4th) 220891, ¶ 94. At the third stage, unlike the first and

second stages, the allegations in the petition are not taken as true. House, 2023 IL App (4th)

220891, ¶ 78. Rather, “the [trial] court serves as the fact finder, and, therefore, it is the court’s

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

and resolve any evidentiary conflicts.” Domagala, 2013 IL 113688, ¶ 34. The defendant bears

the burden to demonstrate actual innocence by a preponderance of the evidence. Coleman, 2013

IL 113307, ¶ 92.

¶ 88 To succeed on a claim of actual innocence at the third stage, “the defendant must

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

the result on retrial.” Coleman, 2013 IL 113307, ¶ 96. If the trial court determines the evidence is

new, material, and noncumulative, it “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.” Coleman, 2013 IL 113307, ¶ 97. “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.” Coleman, 2013 IL 113307, ¶ 97.

¶ 89 Defendant acknowledges the denial of a postconviction petition following a

third-stage evidentiary hearing is reviewed for manifest error. He nevertheless asks this court to

review the trial court’s denial of his petition at the third stage under a de novo standard based on

alleged “errors of law” and the court’s decision to ignore “certain issues altogether.” However,

- 25 - he fails to cite any case law where a reviewing court applied a de novo standard when examining

a third-stage denial. As such, we decline to do so here. Instead, we review the court’s decision to

deny relief following a third-stage evidentiary hearing for manifest error. Coleman, 2013 IL

113307, ¶ 98. A decision is manifestly erroneous when the opposite conclusion is clearly

apparent. Coleman, 2013 IL 113307, ¶ 98. “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.” House, 2023 IL App (4th) 220891, ¶ 78.

¶ 90 1. Dawn’s and Michelle’s Testimony

¶ 91 The State does not dispute Dawn’s and Michelle’s testimony was new, material,

and noncumulative. As such, we only address whether Dawn’s and Michelle’s testimony was of

such conclusive character that it would likely change the result on retrial.

¶ 92 In its written order denying defendant’s petition following the third-stage

evidentiary hearing, the trial court determined Dawn’s and Michelle’s testimony was not of such

conclusive character that it would likely change the result of defendant’s conviction at a new

trial. The court based its decision largely on finding Dawn’s and Michelle’s testimony would not

be admissible at a retrial.

¶ 93 Defendant argues the trial court manifestly erred in considering at all whether the

evidence would be admissible at a new trial.

“In determining the weight to be given the new evidence and whether all the

evidence, new and old, is so conclusive that it is more likely than not that no

reasonable juror would find defendant guilty beyond a reasonable doubt on retrial,

the court at the third stage must necessarily consider whether the new evidence

would ultimately be admissible at a retrial.” Velasco, 2018 IL App (1st) 161683,

- 26 - ¶ 118.

See Brooks, 2021 IL App (4th) 200573, ¶ 61 (stating the admissibility analysis of new evidence

should be reserved for the third-stage evidentiary hearing, where the court determines whether

the evidence would be admissible at retrial). Therefore, it was not just appropriate but also

necessary for the court to consider the trial admissibility of the new evidence at the third stage of

proceedings.

¶ 94 In response, defendant contends our supreme court’s holding in Robinson

contradicts Brooks and Velasco and should thus control on this issue. In Robinson, our supreme

court considered an appeal from a denial of leave to file a successive postconviction petition,

where the defendant alleged actual innocence and attached several affidavits to his petition.

Robinson, 2020 IL 123849, ¶ 38. In one of the affidavits, the affiant averred to a third individual

confessing to the murder the defendant was convicted of. Robinson, 2020 IL 123849, ¶ 77. In

their briefs, the parties argued over whether the confession would be admissible at a new trial.

Robinson, 2020 IL 123849, ¶ 77. In its decision, the Robinson court held:

“The final determination as to the admissibility of [the] extrajudicial confession

cannot, and should not, be made until after petitioner has overcome the hurdles of

second- and third-stage proceedings. Accordingly, questions regarding the

admissibility and reliability of such evidence are not relevant considerations at the

motion for leave to file stage of a successive postconviction proceeding.”

Robinson, 2020 IL 123849, ¶ 81.

¶ 95 Robinson does not support defendant’s contention. Robinson addresses only

whether the trial admissibility of new evidence is a proper consideration at the petition for leave

to file stage. As such, the Robinson court did not hold the admissibility of new evidence can

- 27 - never be considered at any stage of postconviction proceedings. Rather, it held questions

regarding the admissibility of new evidence were not relevant at the petition for leave to file

stage. Robinson, 2020 IL 123849, ¶ 81. In contrast, Brooks and Velasco directly addressed the

issue of whether the trial admissibility of new evidence is a proper consideration at the

third-stage evidentiary hearing. Brooks, 2021 IL App (4th) 200573, ¶ 61; Velasco, 2018 IL App

(1st) 161683, ¶ 118. Therefore, we find Robinson does not contradict the holdings of Brooks or

Velasco, and the court likewise did not err in conducting a trial admissibility analysis at the third

¶ 96 We next address whether the trial court manifestly erred in concluding Dawn’s

and Michelle’s testimony would not be admissible at a retrial. In its written order, the court

reasoned that to bring in their statements, defendant would first have to call Don as a witness.

Upon Don testifying that Misook never confessed to him, defendant would then have to call

Dawn and Michelle as witnesses to attempt to impeach Don’s testimony.

¶ 97 Because Dawn’s and Michelle’s testimony constitutes double hearsay that would

be offered for the truth of the matter asserted, their testimony could not be considered as

substantive evidence. See Illinois Rule of Evidence 805 (eff. Jan. 1, 2011) (stating hearsay within

hearsay is not admissible unless each part of the combined statements conforms with an

exception to the hearsay rule). However, Illinois Supreme Court Rule 238 (eff. Apr. 1, 1982)

provides, “The credibility of a witness may be attacked by any party, including the party calling

the witness.” Before a party may impeach its own witness with a prior inconsistent statement, the

party must “show that the witness’s testimony has damaged its position.” People v. Leonard, 391

Ill. App. 3d 926, 933 (2009). In other words, the witness’s testimony must have given “positive

aid to an adversary’s case.” (Internal quotation marks omitted.) People v. Cruz, 162 Ill. 2d 314,

- 28 - 360 (1994). Witness testimony is not affirmatively damaging when it is “merely negative in its

effect on the examiner’s case.” Cruz, 162 Ill. 2d at 360. Whether a witness’s prior statement is

inconsistent with his trial testimony is a matter within the discretion of the trial court. People v.

Singleton, 367 Ill. App. 3d 182, 191 (2006).

¶ 98 We conclude the trial court’s finding that Dawn’s and Michelle’s testimony

would be inadmissible was not manifest error, as Don’s testimony would only fail to support,

rather than damage, defendant’s theory of the case. As such, he could not be impeached with

Dawn’s and Michelle’s testimony. Rather, the only purpose defendant has for introducing their

testimony would be “to bring inadmissible hearsay to the attention of the jury,” specifically, that

Misook allegedly confessed to murdering C.M. People v. Weaver, 92 Ill. 2d 545, 563 (1982). For

these reasons, we cannot say the court’s determination that Dawn’s and Michelle’s testimony

would be inadmissible at retrial is so erroneous that the opposite conclusion is clearly evident.

¶ 99 Defendant also argues the trial court manifestly erred in assuming Don would

testify at a new trial consistently with his statements to Detective Fanelli. Defendant fails to

recognize it was his burden at the evidentiary hearing to prove it was more likely than not he was

actually innocent. Coleman, 2013 IL 113307, ¶ 92. He could have called Don to testify at the

evidentiary hearing, but he chose not to. Moreover, at the third stage, the court “serves as the fact

finder, and, therefore, [must] determine witness credibility, decide the weight to be given

testimony and evidence, and resolve any evidentiary conflicts.” Domagala, 2013 IL 113688,

¶ 34. The court was well within its role as the fact finder to give more weight to Detective

Fanelli’s testimony over Dawn’s and Michelle’s testimony when resolving the issue of how Don

might testify at a retrial.

¶ 100 Defendant next contends the trial court erred by failing to examine how Dawn’s

- 29 - and Michelle’s testimony would change the outcome of the offer of proof hearing and the court’s

decision to exclude evidence of Misook’s culpability. The court’s written order did not

specifically state whether Dawn’s and Michelle’s testimony might change the outcome of the

offer of proof hearing. However, the court ultimately determined defendant did not meet the

“conclusive character” element, which is “the most important element” of an actual innocence

claim. Robinson, 2020 IL 123849, ¶ 47. In its recitation of the facts, the court noted Michelle was

skeptical of Don’s intentions and that he was in an emotionally fraught state at the time. The

court further noted Dawn could not recall any specifics about Don’s statement beyond Misook

confessing during a “big fight.” Finally, the court included a portion of the transcript from the

recorded interview with Detective Fanelli, where Don repeatedly denied Misook ever confessed

to murdering C.M. The court’s factual findings highlight the unreliability of Don’s statements to

Dawn and Michelle and call into question the weight attributable to this evidence. Based on our

examination of the record, we find the court, as the trier of fact, could have reasonably

determined Dawn’s and Michelle’s testimony lacked reliability and would not change the court’s

decision to exclude evidence of Misook’s culpability.

¶ 101 Finally, even if Dawn’s and Michelle’s testimony was admissible at a new trial,

this evidence is not of such conclusive character that it would probably change the result on

retrial. Their testimony does not affect the evidence that an intruder could not have entered

through the bedroom window, which defendant claimed is the only way Misook could have

accessed defendant’s apartment. Their testimony also does not affect defendant’s suspicious

behavior following the death, including his premature insistence during police interviews that

C.M. was smothered to death and possibly subjected to molestation before he knew the results of

the autopsy. On the record before us, we cannot say the trial court’s conclusive character finding

- 30 - was manifestly erroneous.

¶ 102 2. Misook’s Refusal to Testify

¶ 103 Defendant next argues the trial court improperly failed to consider Misook’s

invocation of the fifth amendment as newly discovered evidence. Initially, we note defendant

cites no case law supporting his assertion a witness’s invocation of the fifth amendment may

constitute new evidence. See Elder v. Bryant, 324 Ill. App. 3d 526, 533 (“Contentions that are

supported by some argument, yet lack citations of authority, do not meet the requirements of

[Illinois Supreme Court Rule 341(h)(7) (eff. Oct. 1, 2020)].”). We find defendant has forfeited

any argument the court erred by not treating Misook’s invocation of the fifth amendment as new

evidence.

¶ 104 However, defendant does cite relevant authority for the assertion the trial court

abused its discretion by declining to draw an adverse inference from Misook’s refusal to testify.

See People v. Rodriguez, 2021 IL App (1st) 200173, ¶ 53. The third stage of a postconviction

proceeding is civil in nature, meaning the fifth amendment does not prevent the drawing of an

adverse inference against a party who refuses to testify. People v. Gibson, 2018 IL App (1st)

162177, ¶ 85. Whether to draw an adverse inference when a party refuses to testify is a matter

within the court’s discretion. Rodriguez, 2021 IL App (1st) 200173, ¶ 53. However, “a failure to

draw an adverse inference may be error, even though the inference is permissive, if there is no

good reason why the inference should not have been drawn.” Gibson, 2018 IL App (1st) 162177,

¶ 86.

¶ 105 At the time of the evidentiary hearing, Misook had a pending postconviction

appeal in her own criminal case. As noted by the trial court, her answers at defendant’s hearing

could be used against her in future proceedings, which would include her own postconviction

- 31 - proceeding. This fact alone provides a sufficient reason as to why Misook refused to testify after

receiving advice from her public defender. On this basis, the court had a good reason to not draw

an adverse inference. Notably, Misook willingly testified at the March 1999 offer of proof

hearing, even after being admonished of her right to remain silent, and when she knew defendant

wanted to accuse her of C.M.’s murder at his trial. Accordingly, we find the trial court did not

abuse its discretion by declining to draw an adverse inference from Misook’s refusal to testify.

¶ 106 3. Totality of the Evidence

¶ 107 Finally, defendant argues the totality of the new evidence warrants a new trial.

We have concluded the DNA evidence, Dr. Harper’s report, and evidence of Misook’s 2011

murder of Tyda were properly dismissed at the second stage. We have also concluded the trial

court did not abuse its discretion by declining to draw an adverse inference from Misook’s

refusal to testify at the evidentiary hearing. This leaves Dawn’s and Michelle’s affidavits and

testimony, which we have already analyzed together and determined do not place the trial

evidence in a new light or undermine our confidence in the judgment of guilt. Therefore, any

further analysis of the totality of the evidence is unnecessary.

¶ 108 Accordingly, we find the trial court did not manifestly err in its denial of

defendant’s petition following a third-stage evidentiary hearing.

¶ 109 III. CONCLUSION

¶ 110 For the reasons stated, we affirm the trial court’s judgment.

¶ 111 Affirmed.

- 32 -