2024 IL App (1st) 211549-U No. 1-21-1549 Order filed February 8, 2024 Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 08 CR 4056 (02) ) DEMETRIUS WARREN, ) Honorable ) Michael R. Clancy, Defendant-Appellant. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Rochford concurred in the judgment; Justice Ocasio specially concurred.
ORDER
¶1 Held: Circuit court’s summary dismissal of defendant’s postconviction petition reversed where defendant presented an arguable claim of actual innocence sufficient to advance the entire petition to the second stage of proceedings.
¶2 Defendant Demetrius Warren appeals from the summary dismissal of his petition filed
pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)). On
appeal, defendant argues that the circuit court erred in dismissing his postconviction petition at the No. 1-21-1549
first stage because he presented arguable claims of actual innocence and ineffective assistance of
trial counsel. We reverse.
¶3 Following a jury trial, defendant was found guilty of first degree murder (720 ILCS 5/9-
1(a)(1) (West 2006)), armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)), and aggravated
discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)). The charges stemmed from a series
of armed robberies and attempted armed robberies on November 18 and 19, 2007, by defendant,
then 17 years old, Eric Walker, Benjamin Williams, and Jamal Bracey, which resulted in the death
of Amadou Cisse. In this order, we set forth only the evidence relevant to the issues on appeal.
¶4 At trial, Kimberly Smith testified that a few days prior to November 19, 2007, Williams
and defendant, whom she identified in court, were at her residence. Defendant had a firearm with
a white handle in his pants.
¶5 Walker testified that he pled guilty to armed robbery in exchange for his testimony and 20
years in prison. On November 18, 2007, he rented a vehicle around 8 p.m. or 9 p.m. While driving,
he saw defendant, whom he identified in court, and defendant’s friends, Williams, Bracey, and E. 1
Defendant asked Walker to take them to a friend’s residence in Hyde Park, and Walker agreed.
After defendant entered the vehicle, he placed a black revolver with a white handle in his lap and
stated that they would “hit some licks,” meaning commit robberies.
¶6 They observed a man walking near 60th Street and Woodlawn Avenue, and defendant told
Walker to stop the vehicle. Defendant gave E the firearm, and E “jumped out” of the vehicle. The
man ran, and E chased him and “fired a shot.” E returned to the vehicle, and Walker drove off.
They next observed a man standing on the corner near 59th Street or 60th, and defendant instructed
1 E’s name is not included in the record on appeal.
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Walker to “go down some and let him out.” Walker proceeded to the next corner, where defendant
exited the vehicle with the firearm. Defendant ran back to the vehicle and stated that the man “had
nothing.” At approximately 1 a.m. on November 19, 2007, they saw two women walking with
bags. Defendant, who hid the firearm on his person, and Bracey exited the vehicle and approached
the women. Walker observed them reach for the women’s bags and return to the vehicle with credit
cards and pens.
¶7 Near 61st Street and Ellis Avenue, they observed Cisse walking with a bookbag.
Defendant stated that his friend resided across the street. Then, defendant pointed at Cisse, and
said, “there go dude.” Walker double parked the vehicle, and Willams and defendant, who still
possessed the firearm, exited. Through the rearview mirror, Walker observed defendant and
Williams approach Cisse. Defendant held the firearm towards Cisse’s chest, and Williams reached
for his bookbag. Cisse “kept jerking [his bookbag] away,” and defendant shot him. Walker left
without defendant and Williams, who ran across the street toward the friend’s residence. Walker
later saw defendant walking with a girl and stopped the vehicle. Bracey and defendant conversed,
and defendant stated that he was not leaving without Williams.
¶8 On November 26, 2007, Walker was “severely” beaten by defendant and another man,
suffering a swollen lip, chipped tooth, and a cut on his chin. Afterwards, defendant said that if
Walker said anything, Walker “was dead.” On January 11, 2008, while in the protective custody
“bullpen,” defendant told Walker to state that Williams was the shooter.
¶9 On cross-examination, Walker admitted that when he originally spoke with detectives on
November 26, 2007, he stated that an individual named “Mon Mon” shot Cisse. 2 Walker spoke
2 Elsewhere, this individual is referred to as Maan-Maan. In this order, for consistency, we adopt the spelling from Walker’s testimony.
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with David Chambers and Ernest Williams, who also knew defendant, and Chambers told him the
name Mon Mon. 3 On November 27, 2007, in the presence of detectives and his mother, Walker
again stated that Mon Mon was the shooter. Walker told officers that he was beaten and robbed by
two men. Walker stated that because he was beaten, when he arrived at the police station, he “came
up with a story” and was “throwing names.” He did not know his co-offenders’ names until they
attended court. Walker identified an individual with an afro as the person who exited the vehicle
and shot at the man who ran. Pursuant to Walker’s plea agreement, he received day-for-day credit
and all other charges against him were dismissed. On redirect examination, Walker stated that he
told officers he made up names because defendant would look for him if he “snitched” on
defendant.
¶ 10 Rodney Jones testified that on November 19, 2007, at approximately 1 a.m., he was near
53rd Street and Greenwood Avenue when “[t]wo young African American boys” exited a vehicle
and approached him. The taller of the two boys displayed a firearm, and they told Jones to give
them his money and credit cards, which Jones retrieved from his wallet.
¶ 11 James Rourke testified that on November 19, 2007, at approximately 12:25 a.m., he was
near 60th and Woodlawn when a vehicle approached him and five “hooded” people inside the
vehicle looked in his direction. When the vehicle passed him, he quickened his pace. He looked
behind him and noticed the vehicle had stopped. Four of the occupants exited and approached him.
Rourke ran into an open construction site and hid. He observed one of the occupants follow him
and then heard a gunshot.
3 Since Ernest Williams and one of the co-offenders share the same last name, we will refer to Ernest Williams by his first name.
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¶ 12 Aliza Levine testified that on November 19, 2007, at approximately 1 a.m., she and
Rebecca Abraham were walking on 57th Street between Ellis and University Avenue, when a
“young man” tapped her shoulder and said, “give me everything you have got.” Levine stated that
she did not have anything and gave him a pen. Abraham gave him her wallet.
¶ 13 Adalberto Trejo testified that on November 19, 2007, at approximately 8:30 a.m., he was
repairing a fence on East 62nd Street when he observed a revolver with a white handle in the grass.
The police arrived and took photographs. On cross-examination, Trejo testified that he did not
know how long the firearm had been there.
¶ 14 Chicago police forensic investigator Zbigniew Niewdach testified that he and his partner
photographed the area on 62nd, collected a revolver, and swabbed it for DNA. When they unloaded
the firearm, they noticed four live rounds, three expended rounds, and two empty slots.
¶ 15 Nashita Hudson testified that in November 2007, she resided on 61st and Ellis. Defendant
was her play brother, and she did not know Bracey or Williams. She recalled a shooting on
November 19, 2007, across the street from her building. She first knew there was shooting when
she heard a gunshot. A few minutes later, defendant rang her doorbell and she let him in. She
noticed that he was sweaty. Defendant asked her to call the police 10 to 15 minutes after he arrived,
and she did. Approximately an hour later, they walked to get cigarettes. When they left Hudson’s
residence, there were officers outside. After Hudson and defendant obtained cigarettes, they
returned to Hudson’s residence and slept. She did not recall if defendant was there in the morning.
Officers spoke with her on November 28, 2007, and December 20, 2007, regarding the shooting.
She did not recall her statements, though she identified her signature on the written statements and
photographs taken of her after giving the statements. Hudson also did not recall her grand jury
testimony.
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¶ 16 On cross-examination, Hudson testified that she heard the gunshot and called 911, but not
prior to defendant arriving at her residence. Defense counsel then displayed Hudson’s November
28, 2007, statement to police on a screen, and Hudson agreed with defense counsel regarding what
her statement reflected. Hudson told officers that the gunshot was really loud and close, so she
called the police. She saw police cars and an ambulance, so she went downstairs to observe. When
she arrived downstairs, defendant was ringing her doorbell. They went for a walk. Defendant later
asked to stay the night at her residence, and she agreed. When she woke the next morning,
defendant made a call and was then picked up. Hudson stated that her November 28, 2007,
statement was true. In December 2007, officers transported her to the police station and placed her
in an interrogation room. Two officers entered the room and a prosecutor entered later. Hudson
agreed with counsel that before the prosecutor entered, officers told her that she was a liar and in
a lot of trouble. The officers used an aggressive tone that scared her.
¶ 17 On redirect examination, Hudson testified she called the police because defendant asked.
Hudson did not recall anyone being aggressive with her while testifying for the grand jury. On
recross examination, Hudson testified that she used drugs, including marijuana and ecstasy, which
affected her memory.
¶ 18 Dr. Michel Humilier testified that while conducting Cisse’s autopsy, he observed a gunshot
wound to his chest and recovered a “deformed, small-caliber lead bullet” from Cisse’s vertebrae.
To retrieve the bullet, Humilier had to saw into the bone without an x-ray, and the bullet was sawed
in half.
¶ 19 Aaron Horn, a firearm identifications expert, testified that the recovered firearm was a .22-
caliber weapon with six right rifling characteristics. The three cartridge casings were fired from
the recovered firearm, and the unfired cartridge was hit by the firing pin of the recovered firearm.
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He could not “identify nor eliminate” that the bullet recovered by the medical examiner was fired
from the recovered firearm, but noted that it was a “.22 rimfire caliber bullet” with six lands and
grooves with a right-hand twist.
¶ 20 Corey Jackson testified that on January 11, 2008, he was in a cell behind the courtroom
with defendant. Walker was in the protective custody cell. Defendant told Walker, “only thing you
got to say is Benjamin Williams did it” and “[h]e whack dude b*** a*** off the map.” On cross-
examination, Jackson stated that he was testifying pursuant to a plea agreement.
¶ 21 Joshua Luciano testified that on January 11, 2008, he was in the protective custody cell
behind the courtroom with Walker. Luciano heard a person in another bullpen tell Walker that they
could blame “Shorty.” Walker responded that he did not know “Shorty’s” name, and the person
said, “Benjamin Williams.” The person instructed Walker to state that Williams “seen some dude
he didn’t like and he jumped out.” Williams and the man “got into a struggle,” and Williams shot
him. Walker agreed. Luciano heard defendant’s and Walker’s names when their case was called
and learned that defendant’s name was Warren.
¶ 22 When Walker returned to the cell, Luciano asked him why he was incarcerated. Walker
told him for murder and said they would “beat” the case because they would blame “Shorty.”
Walker explained that they were robbing people when they observed a man who appeared to have
money. Walker stated that his “rappy” and “Shorty” exited the vehicle and grabbed the man. They
struggled, and his “rappy” shot the man. Walker stated that his rappy was the “dude that [Walker]
was just talking to.”
¶ 23 The next day, Luciano contacted a federal agent and disclosed what he heard. After
Luciano’s case was dismissed, he spoke with Chicago police officers regarding what he heard. He
identified Walker as the individual he conversed with. Luciano did not receive any consideration
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from the Chicago Police Department, the Federal Bureau of Investigation (FBI), or the State’s
Attorney’s Office for disclosing what he heard.
¶ 24 On cross-examination, Luciano stated that there were more than 10 individuals in the
bullpen, and it was noisy. Luciano worked as an informant for Christopher Weissmantle, an FBI
agent. He did not have Weissmantle speak with an assistant state’s attorney (ASA) on his pending
case. Luciano spoke with detectives on January 17, 2008, after his case was dismissed. Luciano
did not know defendant and had never seen him or heard his voice before January 11, 2008.
¶ 25 Chicago police detective Daniel Stover testified that on December 20, 2007, he was aware
of Hudson’s November 28, 2007, statement. When he received the recorded 911 calls related to
the shooting, he noticed that one involved Hudson, and there were inconsistencies between her
written statement and the recording. For instance, her statement reflected that she heard a shot and
called the police immediately, but on the recording, she stated that she heard a shot and saw
someone lying on the ground. Based on the inconsistencies, Stover and Detective Timothy Murphy
interviewed Hudson on December 20, 2007. When they arrived at Hudson’s residence, Stover
noticed that it was “physically impossible” to see where the incident occurred. They requested
Hudson come to the station and she complied. They escorted her to the squad room, where they
played the 911 recording. After hearing the recording, Hudson stated, “okay, you got me. Nothing
else I can do but tell the truth.” He did not call her a liar and was not aggressive with her. They
then moved from the squad room to a conference room. Hudson was never placed in an interview
room.
¶ 26 Stover recounted Hudson’s statement during the December 20, 2007, interview. Hudson
stated that she heard a gunshot and lay on the bed. She had no intention of calling 911. A few
minutes later, defendant rang her doorbell, and she “buzzed” him in. Defendant appeared “very
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afraid,” was “sweating profusely,” and told her to call 911. He told her that he ”shot a guy out in
front” and thought he killed him. He further explained that he “was trying to rob a guy” with a
firearm, and when the man reached for the firearm, “[defendant] shot him.” She said she put “two
and two together” and realized that was the gunshot she heard. She then called 911. She also stated
that she could not see the victim but was going by what defendant told her.
¶ 27 Hudson and defendant went for a walk, and defendant told her that he was with Williams
and Bracey, and they were going to rob the man. Defendant and Williams exited the vehicle to
commit the robbery, and Bracey was going across the street to her residence. Defendant possessed
the firearm and told the man to “gimme everything you’ve got.” The man “lunged” towards
defendant to grab the firearm, and defendant jumped back and “pow, he let one go.” Defendant
then said Bracey entered the vehicle and the vehicle left. He and Williams separated while running
away.
¶ 28 As Hudson and defendant walked, a vehicle “pulled up” containing three individuals, one
being Bracey. Bracey and defendant conversed regarding Williams, and then the vehicle left.
Defendant stayed the night and left the next day. Hudson spoke with defendant later that day, and
he stated that he put the firearm in a lot next door and asked Hudson to retrieve it. Hudson told
him that she would but explained to officers, “there’s no way [she was] going around this gun ***
after it’s been used.” Defendant called her the next day and asked if she retrieved the firearm, and
she told him that she could not because it was “too hot.” A few days later, defendant came to her
residence and asked if she retrieved the firearm, and she said no. He also asked if she spoke with
police, and she said no. Hudson stated that she gave the previous statement because she did not
want to get “somebody she considered family in trouble,” and she was afraid for herself.
Eventually an ASA arrived.
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¶ 29 On cross-examination, Stover stated that no photographs from Hudson’s window were
taken during the investigation. Hudson was not asked if she ever used drugs or had a memory
problem due to drug usage. Hudson did not appear to be under the influence of drugs. Hudson’s
interview was not videotaped. ASA Karen Kerbis entered after Stover and Murphy interviewed
Hudson and questioned her with Stover present. Kerbis wrote as Hudson spoke. On redirect
examination, Stover stated that Hudson never mentioned drug usage or memory problems.
¶ 30 Kerbis testified that she interviewed Hudson on November 28, 2007, at Hudson’s residence
with Murphy present. Hudson agreed to have her statement handwritten by Kerbis. Afterwards,
Kerbis and Hudson reviewed the statement, initialed any changes, and signed the bottom of each
page. Kerbis then photographed Hudson and Hudson’s mother.
¶ 31 On December 20, 2007, Kerbis interviewed Hudson again. Hudson explained that she had
not been entirely truthful in her first statement because defendant was a good friend, and she did
not want to get involved. Hudson again chose to have her statement handwritten by Kerbis. Hudson
was photographed at the end of this statement. Hudson identified defendant, Williams, and Bracey
in photographs. Kerbis’ testimony regarding Hudson’s statement was consistent with Stover’s
testimony recounting Hudson’s statement.
¶ 32 ASA Jason Poje testified that on December 21, 2007, he presented Hudson to a grand jury.
Poje published portions of Hudson’s grand jury testimony, which was consistent with the statement
she gave on December 20, 2007, including the identifications of defendant, Williams, and Bracey.
Hudson further testified at the grand jury that defendant told her that he thought the police found
the murder weapon.
¶ 33 Defense counsel called Stover to testify. Stover stated that he first interviewed Walker on
November 26, 2007, at approximately 1 p.m. and then again on November 27, 2007, at
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approximately 5:19 a.m. Stover told Walker that Abraham identified him in a lineup. Walker stated
that he never exited the vehicle. Stover agreed with defense counsel that he told Walker that he
was in “a lot of trouble,” and there was evidence that he exited the vehicle. Walker said that Mon
Mon was the shooter multiple times and identified Jujuan Hunt as Mon Mon. Walker was
approximately 5 foot 6 inches tall, and defendant was approximately 6 foot 5 inches tall. Walker
was beaten after he spoke with Chambers and Ernest. Stover called Walker a liar multiple times
and accused him of lying when he stated that Mon Mon was the shooter, there was a .38-caliber
firearm, and that he never exited the vehicle. Stover discussed the theory of accountability for
murder with Walker and explained that Walker was equally responsible if he participated in the
incidents. Walker initially stated that he was beaten by two men wearing black hoodies regarding
a robbery and was asked if he had weed.
¶ 34 On cross-examination, Stover stated that Walker first identified defendant as the shooter
on November 27, 2007, prior to Walker being charged. On redirect examination, Stover confirmed
that Walker’s mother told Walker to state that it was defendant. Though Stover accused Walker of
lying, Walker insisted he was telling the truth.
¶ 35 The jury found defendant guilty of first degree murder and personally discharging a firearm
that proximately caused the death of another, aggravated discharge of a firearm, and armed
robbery. The trial court imposed prison terms totaling 120 years.
¶ 36 On direct appeal, this court affirmed. People v. Warren, 2013 IL App (1st) 113776-U. The
Illinois Supreme Court denied defendant’s petition for leave to appeal, but issued a supervisory
order directing this court to vacate its judgment and reconsider the matter in view of People v.
Reyes, 2016 IL 119271. People v. Warren, No. 117611 (Ill. Nov. 23, 2016) (supervisory order).
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This court vacated its judgment, again affirmed defendant’s findings of guilt, vacated his
sentences, and remanded for resentencing. People v. Warren, 2017 IL App (1st) 113776-U.
¶ 37 At resentencing, the circuit court imposed prison sentences totaling 64 years. This court
affirmed. People v. Warren, 2020 IL App (1st) 190688-U.
¶ 38 Defendant filed a postconviction petition on August 19, 2021, through counsel, arguing
actual innocence and ineffective assistance for trial counsel’s failure to present exculpatory
witnesses. In support of his claim of actual innocence, defendant presented affidavits from Bracey
and Williams regarding the events of November 19, 2007.
¶ 39 Williams averred that he was driving to the house of a female friend with defendant,
Bracey, and Walker when Wiliams observed Cisse walking down the street. When the group
reached their destination, Williams exited the vehicle and, “w/out *** [the] knowledge” of
defendant, Bracey, or Walker, attempted to rob Cisse. According to Williams, Cisse resisted and
Williams shot him. Williams further averred that “[n]one of the people in the car knew I would
shoot *** Cisse” and they “did not discuss robbing nor did we discuss the shooting”; rather,
Williams “acted alone.” After the shooting, Williams “took off running.”
¶ 40 Williams further attested that he pleaded guilty to murder and other offenses on December
9, 2010, in exchange for a total of 41 years’ imprisonment. At his plea hearing, he stipulated to a
factual basis that comported with Walker’s testimony. This was false, however, and Williams only
entered the stipulation to secure a lenient sentence. Subsequently, Williams regretted pleading
guilty because his co-offenders “had no knowledge of what I was about to do that night.” Williams
was “ready and willing to take full responsibility *** by testifying at [defendant’s] trial” that
defendant “had no foreknowledge or involvement whatsoever of the attempted robbery and
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shooting of *** Cisse.” Although Williams told defendant’s lawyer to call him as a witness,
defendant’s lawyer never contacted Williams.
¶ 41 Bracey averred that he was driving with defendant, Williams, and Walker, when defendant
asked Walker to stop the vehicle so defendant could go to the home of a woman whom Bracey
formerly dated. Defendant stated that he would be “real quick” and asked Walker to wait for him.
Defendant sat in the front passenger seat, while Bracey sat in the backseat on the driver’s side, on
the side of the vehicle nearer the building. Consequently, although defendant and Bracey exited
the vehicle at the same time, Bracey walked a few feet in front of defendant. During this time,
Bracey “glanc[ed] back” and saw defendant.
¶ 42 As Bracey pressed the doorbell, defendant entered the building’s “courtway” and Bracey
heard a gunshot. Bracey and defendant ducked. According to Bracey, “Walker & *** Williams
was [sic] still in” the vehicle. Defendant ran towards the vehicle, and Bracey followed. When
Bracey reached the vehicle, Williams was not inside. Walker stated that Williams “got out of the
car a little after” defendant and Bracey. According to Walker, Williams attempted to rob a man
who was walking on the block. Walker observed the man struggle and Williams shot him. Bracey
added that he “tried time & time again to tell the truth,” but “everytime I tried I was told I was
lying & shut out.”
¶ 43 To support his claim of ineffective assistance of counsel, defendant provided a letter from
trial counsel Richard S. Kling, who averred that prior to trial, he informed defendant that Williams
and Bracey were represented by counsel, and if they wanted to testify, they would need to contact
Kling through their attorneys. Furthermore, Kling advised defendant that he believed their
testimony would be harmful to defendant’s case, especially when being cross-examined by the
State.
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¶ 44 Defendant also attached his own affidavit averring that prior to trial, Williams stated that
he would testify that he committed the murder and Bracey stated that he was watching defendant
“while the murder was happening so it was impossible for [defendant] to have committed the
murder.” Defendant shared this information with Kling, who advised that he would “check into
it.”
¶ 45 The court summarily dismissed defendant’s petition on November 16, 2021, finding that
the petition was “frivolous and patently without merit.” Regarding defendant’s claim of actual
innocence, the court noted that the information in Williams’ and Bracey’s affidavits was known to
defendant before and during trial, and therefore, was not newly discovered evidence. The court
recounted the trial testimony, noting that defendant attempted to establish Williams as the shooter
as early as January 11, 2008. Moreover, Williams conceded during his plea hearing that defendant
was the shooter. 4
¶ 46 Regarding defendant’s claim of ineffective assistance of counsel, the court initially noted
that because defendant failed to raise the issue on direct appeal, it was waived. Additionally, the
court noted that Kling informed defendant that he did not think Williams’ or Bracey’s testimony
would help, especially on cross-examination. Kling also averred that he would have been
ineffective if he called Williams and Bracey to testify because he knew their testimony would harm
defendant more than help.
¶ 47 Defendant now appeals, arguing that he presented an arguable claim of actual innocence
because Williams’ and Bracey’s affidavits were newly discovered evidence that was material,
noncumulative, and would probably change the result on retrial. Defendant also argues that he
4 The record on appeal does not contain a report of proceedings from Williams’ plea hearing.
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presented an arguable claim of ineffective assistance for trial counsel’s failure to present
exculpatory witness testimony.
¶ 48 The Act allows a criminal defendant to challenge his or her conviction for violations of
federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). A
postconviction proceeding occurs in three stages. People v. Ayala, 2022 IL App (1st) 192484, ¶ 95.
The circuit court here dismissed defendant’s petition at the first stage.
¶ 49 At the first stage, the court determines, without input from the State, whether the petition
is frivolous or patently without merit (725 ILCS 5/122-2.1(a)(2) (West 2020)), meaning it has “ no
‘arguable basis either in law or in fact’ ” (People v. Smith, 2023 IL App (1st) 221496, ¶ 33 (quoting
People v. Hodges, 234 Ill. 2d 1, 16 (2009))). A defendant need only present “the gist of a
constitutional claim” with a limited amount of detail. People v. Sparks, 393 Ill. App. 3d 878, 883
(2009). The circuit court must liberally construe and take as true a petition’s allegations at the first
stage of proceedings. People v. Jones, 213 Ill. 2d 498, 505 (2004). If the court finds the petition to
be frivolous and patently without merit, it must dismiss the petition. Id. We review the first stage
dismissal of a postconviction petition de novo. People v. Mabrey, 2016 IL App (1st) 141359, ¶ 19.
¶ 50 To succeed on a postconviction claim of actual innocence at the first stage, a defendant
must present evidence that is arguably “ ‘new, material, noncumulative *** [and] so conclusive it
would probably change the result on retrial.’ ” People v. White, 2014 IL App (1st) 130007, ¶ 18
(quoting People v. Coleman, 2013 IL 113307, ¶ 96). New evidence must have been discovered
after trial and could not have been discovered earlier through the exercise of due diligence.
Mabrey, 2016 IL App (1st) 141359, ¶ 23. Evidence is material if it is “relevant and probative of
the defendant’s innocence” and “non-cumulative if it adds to the evidence heard at trial.” Id.
Evidence that is so conclusive to probably change the result on retrial “places the trial evidence in
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a different light and undermines the court’s confidence in the judgment of guilt.” People v.
Robinson, 2020 IL 123849, ¶ 56.
¶ 51 At the outset, the State maintains that defendant’s freestanding claim of actual innocence
is improper because he is “simultaneously using the same affidavits to support an ineffective
assistance claim.” See People v. Hobley, 182 Ill. 2d 404, 443-44 (1998) (defining a claim of actual
innocence as freestanding where “the newly discovered evidence being relied upon “is not being
used to supplement an assertion of a constitutional violation with respect to [the] trial” (internal
quotation marks omitted)). Defendant responds that, subsequent to Hobley, the supreme court in
People v. Coleman, 2013 IL 113307, provided that a petitioner may present a freestanding claim
of actual innocence and allege a constitutional violation based on the same evidence. See id. ¶ 83
(“a freestanding actual-innocence claim is independent of any claims of constitutional error at trial
and focuses solely on a defendant's factual innocence in light of new evidence” (emphasis added)).
¶ 52 In People v. Martinez, 2021 IL App (1st) 190490, an appeal from the second-stage
dismissal of a successive postconviction petition, this court commented that Hobley “identified no
principle or purpose that would be furthered by prohibiting a defendant from using the same
evidence to assert both a constitutional claim of trial error and an actual innocence claim.” Id.
¶ 102. Instead, the Hobley rule “would potentially force a defendant to choose to forgo a
meritorious claim of trial error in order to pursue an actual innocence claim.” Id. The court
continued:
“We also find Hobley’s rule to be inconsistent with the Illinois Supreme Court’s
more recent pronouncements on actual innocence. In Coleman, the supreme court ***
stated that ‘a freestanding actual-innocence claim is independent of any claims of
constitutional error at trial and focuses solely on a defendant's factual innocence in light of
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new evidence.’ [Citation.] Thus, Coleman’s explanation of a freestanding actual innocence
claim contemplates that the claims be independent, not that the actual innocence claim be
independent of the evidence underlying his other constitutional claim or trial error.”
(Emphasis in original.) Id. ¶ 104.
¶ 53 Martinez concluded that Hobley’s statement that the evidence underlying the actual
innocence claim not be used to support any other constitutional claim “cannot be reconciled” with
Coleman, but “[e]ven if Hobley’s rule remains good law,” it did not preclude the defendant from
arguing actual innocence because his claim ultimately relied on evidence in addition to that
underlying his constitutional claims. Id. ¶¶ 105-06.
¶ 54 More recently, in People v. Mason, 2023 IL App (1st) 220376-U, this court considered a
defendant’s appeal from, relevant here, the trial court’s denial of his claim of actual innocence
following a third-stage evidentiary hearing. 5 In rejecting the claim of actual innocence, the circuit
court’s comments suggested that it did not consider an affidavit that the defendant had also
introduced in support of a claim of ineffective assistance of counsel. Id. ¶ 56. On appeal, the State
maintained this was proper as that affidavit “cannot be considered in support of the petitioner’s
claim of actual innocence because it was used in support of the claim of ineffective assistance of
counsel.” Id. This court rejected that argument, finding “no reason to deviate” from Martinez’s
holding that “although freestanding claims of actual innocence are independent of constitutional
claims of error at trial, the evidence supporting a petitioner’s claim of actual innocence need not
be independent of the evidence underlying his other constitutional claims or trial error.” Id.; but
5 See Ill. S. Ct. R. 23(e)(1) (eff. Jan. 1, 2021) (nonprecedential appellate court orders entered on or after January 1, 2021, may be cited for persuasive purposes).
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see People v. Griffin, 2022 IL App (1st) 191101-B, ¶ 33, pet. for leave to appeal granted, No.
128587 (Sept. 28, 2022).
¶ 55 In the present case, defendant’s claims of actual innocence and ineffective assistance of
trial counsel are predicated on the affidavits of Williams and Bracey. Following Martinez,
however, this does not preclude review of defendant’s actual innocence claim.
¶ 56 Based on these affidavits, and in view of the principles that govern first-stage
postconviction proceedings, we find that defendant has raised an arguable claim of actual
innocence.
¶ 57 In his affidavit, Williams averred that he was driving with defendant, Bracey, and Walker
when Wiliams observed Cisse walking down the street. According to Williams, he exited the
vehicle and attempted to rob Cisse without the foreknowledge of defendant, Bracey, or Walker.
Then, Williams shot Walker and fled.
¶ 58 Bracey, in turn, averred that he exited the vehicle with defendant, who followed Bracey to
a building. Bracey observed defendant enter the building’s “courtway” and heard a gunshot.
Bracey and defendant ducked. At that point, according to Bracey, Walker, and Williams were still
in the vehicle. Defendant then ran to the vehicle, followed by Bracey; when Bracey arrived at the
vehicle, Williams was not inside. Walker told Bracey that Williams left the vehicle shortly after
Bracey and defendant in order to rob a man walking nearby. When the man resisted, Williams shot
him.
¶ 59 As noted, evidence is newly discovered where it was found after trial and where the
defendant could not have discovered it earlier through the exercise of due diligence. Mabrey, 2016
IL App (1st) 141359, ¶ 23. Obviously, defendant knew of Williams and Bracey prior to trial. And,
based on defendant’s own affidavit, they told him they would testify that Williams committed the
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murder alone and defendant, in turn, told his trial counsel. That said, the letter of defendant’s trial
counsel suggested that he did not communicate with either Williams or Bracey before trial and
believed their testimony would have been harmful to defendant’s case. Consequently, we cannot
say that defendant failed to exercise diligence in producing Williams and Bracey’s evidence and,
therefore, we find that their affidavits are newly discovered.
¶ 60 Additionally, Williams’ and Bracey’s affidavits are material and noncumulative, as they
are relevant and probative of defendant’s innocence and no other witness testified that Williams
was the shooter. Id.
¶ 61 The remaining issue is whether Williams’ and Bracey’s evidence is so conclusive as would
probably change the result on retrial. As noted, evidence meets this standard if it “places the trial
evidence in a different light and undermines the court’s confidence in the judgment of guilt.”
Robinson, 2020 IL 123849, ¶ 56. Probability, rather than certainty, applies in determining whether
the fact finder would reach a different result after considering the prior evidence along with the
new evidence. Coleman, 2013 IL 113307, ¶ 97. In conducting this inquiry, “all well-pleaded
allegations in the petition and supporting affidavits that are not positively rebutted by the trial
record are to be taken as true,” and we are “precluded from making factual and credibility
determinations.” People v. Robinson, 2020 IL 123849, ¶ 45.
¶ 62 While Williams’ and Bracey’s averments that Williams was the shooter are contradicted
by Walker’s trial testimony and Hudson’s statement that defendant was shooter, our supreme court
has explained that “the existence of a conflict with the trial evidence is not the same as finding that
the new evidence is positively rebutted.” Id. ¶ 60. That is, for Williams’ and Bracey’s assertions
to be positively rebutted, the record must affirmatively demonstrate that a “trier of fact could never
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accept” the veracity of his claims. Id. That is not the situation here, where a trier of fact could
credit Williams’ and Bracey’s evidence over Walker’s trial testimony and Hudson’s statement.
¶ 63 Our responsibility at this stage is not to weigh the evidence or make credibility
determinations; instead, we must take all allegations in the defendant’s postconviction petition
and supporting affidavits as true unless positively rebutted by the record. We then consider whether
the defendant made an arguable showing that it is probable that the outcome of his trial would have
been different. Id. ¶ 48. Defendant has made such a showing, as nothing in Williams’ and Bracey’s
affidavits is positively rebutted by the record. Consequently, we must accept the contents of their
affidavits as true, and, given the substance of their affidavits, we find that they place the trial
evidence in a new light and undermine confidence of the finding of guilt. See id.
¶ 64 Defendant also contends that he presented an arguable claim of ineffective assistance for
trial counsel’s failure to interview Williams and Bracey. However, we need not address this issue
since we have already found that defendant has met his burden in raising an arguable claim of
actual innocence. As such, defendant may proceed to the second stage of postconviction
proceedings with his entire petition. See People v. Romero, 2015 IL App (1st) 140205, ¶ 27 (“If a
single claim in a multiple-claim postconviction petition survives the summary dismissal stage of
proceedings under the Post–Conviction Hearing Act, then the entire petition must be docketed for
second-stage proceedings regardless of the merits of the remaining claims in the petition.”).
¶ 65 Accordingly, we reverse the summary dismissal of defendant’s postconviction petition and
remand for second-stage proceedings. We deny the defendant’s request that this case on remand
be assigned to a different judge.
¶ 66 For the foregoing reasons, the judgment of the circuit court of Cook County is reversed.
¶ 67 Reversed and remanded.
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¶ 68 JUSTICE OCASIO, specially concurring:
¶ 69 I join in the decision of the court. I write separately only to address Warren’s request that
we order that his case be assigned to a different judge on remand.
¶ 70 In its summary-dismissal order, the trial court stated that “the content of the affidavits
[sworn out by Williams and Bracey] are precarious and questionable at best, and the information
contained in the affidavits is purely circumstantial.” Warren argues that this statement shows that
the trial court has prejudged the credibility of Williams and Bracey.
¶ 71 An essential element of an actual-innocence claim is that the new evidence be “of such
conclusive character that it would probably change the result on retrial.” People v. Robinson, 2020
IL 123849, ¶ 47. It appears from the trial court’s written order that it attempted to make that
determination by assessing the weight that might be given to the affidavits in light of the evidence
presented at trial. Our decision succinctly explains why that approach was legally erroneous.
Supra ¶¶ 61-63.
¶ 72 In short, the trial court’s statement reflects a good-faith—albeit premature—effort to
evaluate whether Warren’s actual-innocence claim could be sustained, not a prejudgment of the
credibility of either Williams or Bracy should this case proceed to an evidentiary hearing. I have
every confidence that, on remand, that will not impair the trial court’s ability to keep an open mind.
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