2013 IL 113307

IN THE

SUPREME COURT

OF

THE STATE OF ILLINOIS

(Docket No. 113307)

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.

CHRISTOPHER COLEMAN, Appellant.

Opinion filed October 3, 2013.

JUSTICE THEIS delivered the judgment of the court, with

opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman,

Karmeier, and Burke concurred in the judgment and opinion.

OPINION

¶ 1 The central issue in this appeal is whether the circuit court of

Peoria County’s decision to deny relief to defendant Christopher

Coleman following an evidentiary hearing on his second successive

postconviction petition, which raised a claim of actual innocence, was

manifestly erroneous. In resolving that issue, we also must address

whether People v. Washington, 171 Ill. 2d 475 (1996), which

announced the standard in Illinois for evaluating postconviction

claims of actual innocence, should be discarded in favor of a more

rigorous standard with roots in federal law.

¶ 2 Today, we reaffirm our holding in Washington, and reverse the

judgments of the circuit court and the appellate court (2011 IL App

(3d) 100419-U) and remand for a new trial.
¶ 3 BACKGROUND

¶ 4 On August 22, 1994, several men entered a house in Peoria,

where Bertha Miller lived with her two daughters, Tequilla and

Tekelia, and her two sisters, Myre Lott and Angela Stimage. The men

demanded money, then threatened and beat the occupants of the

house. Two of the men took Tekelia into a bathroom, and one of them

sexually assaulted her. She was 17 years old. When the police arrived,

some of the men escaped. James Coats, Tekelia’s assailant, and

Robert Nixon were arrested at the house. At the police station that

night, Tequilla saw Nixon and the defendant, who had been arrested

at his girlfriend’s nearby apartment in connection with the attack,

walking with police officers. Tequilla subsequently identified the

defendant in a photo array and a lineup as one of the men. He was

indicted for armed robbery, aggravated criminal sexual assault, home

invasion, and residential burglary. Several months later, the defendant

was tried before a jury.

¶ 5 Because our decision ultimately rests on the evidence presented

at the defendant’s trial and his postconviction evidentiary hearing, a

thorough review of the record is necessary. 

¶ 6 The State’s case consisted of testimony from several of the

victims, as well as two police officers and a 13-year-old named

Anthony Brooks.

¶ 7 At trial, the State called 10 witnesses, and offered stipulations

from 4 other witnesses.

¶ 8 Lott testified that there were six men wearing bandanas and a boy

in the house during the attack. Though Lott described what happened

throughout the house, she was in the living room with her head

wrapped in a blanket for most of that time. Her account was based

largely on what she heard for approximately two hours. She only saw

the face of one of the men, whom she did not recognize, and she did

not identify any of them.

¶ 9 Tequilla testified that on the night of the attack she was sleeping

in her bedroom when she heard a noise. She awoke and ran to the

living room, where she saw seven men, six of whom had guns,

standing over Lott. The men pointed a gun at Tequilla, frisked her,

and threw her to the floor, where they attempted unsuccessfully to put

a leather couch pillow over her head. They wore dark clothes and

bandanas, so Tequilla could see only their eyes. According to

Tequilla, the men ordered her to lie still on the floor, then started

beating her and Lott and demanding money. A tall man came into the

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living room, grabbed Tequilla by the hair, threatened to harm her if

Lott did not give the men money, and cut Lott’s leg. Tequilla stated

the men kicked Lott in the face and pushed Tequilla back to the floor,

where “a little boy” tripped over her on his way to run outside to

serve as “a watch-out.” The boy announced that he was tired of

waiting outside, and that he did not see anyone coming.

¶ 10 Tequilla testified that two of the men took the bandanas off their

faces. She did not recognize “the kind of light skin one” because she

did not know him, but she recognized “the dark skin one” as “Fats”

because her family had grown up with him over a five- or six-year

period. Tequilla stated that she saw his face for a “good three

minutes.” In court, she identified this man as the defendant.

¶ 11 Tequilla testified that the boy returned to the house and said “5-

o,” meaning the police were coming to the house. The light-skinned

man and the dark-skinned man, the defendant, fled together out the

front door. The remaining five men locked the door and ordered the

victims to go upstairs to Stimage’s bedroom. Tequilla sensed the

police were inside the house when the men began to hide their guns

by wrapping them in Stimage’s clothes. Prior to the police entering

the house, two of the men jumped out the upstairs window, and “[t]he

other one was trying to get into the closet,” then “some of them” tried

to jump out again, but “didn’t get to.”

¶ 12 Tequilla further testified that she did not know whether Fats had

a gun on the night of the attack because she was looking at his face.

He was telling the other men what to do, and when he asked them to

hurry and get the money, they beat the victims. Tequilla stated that on

the day after the attack, she went to the police station, where Peoria

Police Detective Rabe showed her “a whole bunch,” more than a

hundred, of photographs of possible suspects. From the photographs

she picked out “[e]veryone that was there,” including Fats. Later,

Tequilla viewed a line-up of African-American men. From the line-up

she picked out “[t]he ones that were there that night that I picked out

in the photo[s],” including Fats. Tequilla stated that she picked him

out “because his face stood out from the other ones.” His face stood

out because she remembered it; she remembered it because she knew

him.

¶ 13 On cross-examination, Tequilla testified that the attack lasted

approximately 30 minutes. She confirmed that there were seven men,

who were all wearing bandanas. When she came into the living room,

it was ransacked. According to Tequilla, Lott and two family friends

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were lying on their chests on the floor, but their heads were not

wrapped in blankets. Six of the men were standing, and one was

sitting, while the boy repeatedly exited and entered the front door.

Tequilla stated that once the boy yelled “5-o,” he and two men ran out

the front door. After that, when the police knocked on the door, five

men remained in the house. Tequilla explained that she did not count

the boy among the men. But later she stated that during the attack, “It

was six dudes left in the house, and one went outside, which he was

a little boy.” 

¶ 14 Tequilla testified that only two of the men removed their

bandanas, and only for three minutes, then they left. Tequilla stated

that Fats, the defendant, stayed in the living room chair “most of the

time” during the attack. He only removed his bandana when he was

in the living room. According to Tequilla, Miller was not in the living

room during the attack. Defense counsel asked Tequilla how she

could have picked out all of the men if only two had removed their

bandanas, and she stated that the two men who fled out the front door

had removed their bandanas in the living room, but the remaining

men did so upstairs.

¶ 15 Tequilla testified that at the police station she did not disclose she

had seen the faces of two of the men. She stated that several weeks

after the attack she testified before the grand jury, where she was

asked if she recognized any of the men, and answered that she

recognized one of them, Nixon. According to Tequilla, she did not

give the grand jury the defendant’s name “because I didn’t remember

until then—until now, I mean.” She “just forgot” his name. Tequilla

acknowledged that she picked out Elbert Nickerson in the

photographs and the line-up at the police station, and told the police

that he was one of the men. Tequilla insisted that she mentioned to

police at the line-up that she was unsure about whether Nickerson

was one of the men. Looking at the photographs again on the day

before trial, she said that Nickerson was not one of the men “because

he looked different from it personally face-to-face.”

¶ 16 Tequilla testified that she identified six of the men in the line-up,

including the defendant, Nickerson, and Mark Roberson. According

to Tequilla, the police told her that in the line-ups they had

“volunteers, and then there were people that I named out that were in

the line-up.” When asked whether it was easy for her to pick out

suspects from the line-up because she had already seen their photos,

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Tequilla answered, “Yes, it was, because, hey, this, people have a

look similar to what the people in the picture.”

¶ 17 Defense counsel turned his questioning to the boy and asked

whether the boy wore a bandana. Tequilla stated that she got “a real

good look” at him when he tripped over her, but she could not

determine whether he had a bandana over his face, even though he

was a few inches away from her. She was lying down, and her eyes

were looking at his eyes. Tequilla testified that she could look at the

defendant’s face without the bandana from the floor, and she saw it

again when she was pulled off the floor to go upstairs. At that point,

she “got to see him before he left because he was sitting in the chair

still.”

¶ 18 On redirect examination, Tequilla testified that she was positive

that the man in the chair was the defendant, and that she had seen his

whole face. She did not tell the grand jury the defendant’s nickname

because she did not know his name. She also did not tell the police

the defendant’s nickname. Tequilla stated that she picked out

Nickerson in the line-up, even though she was unsure he was one of

the men, “[b]ecause him and the dude look similar to each other.” She

picked out the defendant because she was positive that his face was

the face she saw on the night of the attack.

¶ 19 Detrice Friend, Tekelia’s boyfriend who was at Miller’s house

during the attack, and Edward Gaffney, a Peoria police department

officer who responded to a call about the attack, testified. Neither

identified the defendant.

¶ 20 Miller testified that on the night of the attack she was asleep in

her bed, when one of her daughters shook her and said they were

being robbed. Miller awoke to see a gun in her daughter’s mouth.

According to Miller, she followed the directions of the men and

handed them her purse. She stated that she gave it to the defendant.

The State asked Miller about him.

“Q. And as you sit here today, how do you know

Christopher Coleman?

A. Because I know his voice, and I know how he walk.

Q. What is distinctive about his walk?

A. Walk kind of crooked like. He doesn’t walk like a

regular walk.

Q. And what about his voice was familiar to you?

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A. I know his voice. He done growed up, but I know his

voice from being a kid.

Q. How do you know him from being a kid?

A. I used to run around the street with his mom when we

was younger. He was, he at my house and what happened.

Q. So how long have you known Christopher Coleman?

A. About 19 or 20 years.”

¶ 21 Miller gave the men her purse because they had threatened to kill

her daughter. The men asked her for more money, and she said that

Lott had it. The men thought Miller was lying, so they flipped her

mattress and found more money. According to Miller, the men started

beating her, struck her head, and put a knife to her back. They

threatened to hurt her daughters if she did not give them all of her

money. Miller suggested that the man get a job, and he smashed a

vase on her head. Miller testified that she pleaded for the men to

leave, but they insisted that they expected to find $1,500 in the house.

The men then repeatedly beat and kicked Miller, while she had a foot

in her back and a gun in her face. She heard crying, as the men took

Tekelia into the bathroom and raped her.

¶ 22 Miller testified that there were six or seven men in the house

when the police arrived. The police called for her and said theywould

not leave until they spoke with her. She told them that she could not

get up because she was under her mattress. The police eventually

helped her to her feet, and she ran to the back door with Tekelia,

whom the men had released to stop the police from coming through

that door. The police ordered Miller and Tekelia to take cover behind

a truck sitting in the yard. Miller saw two men jump from the

window, and she screamed to tell the police. Those two men escaped,

but a third man who jumped from the window was apprehended.

According to Miller, the third man was Coats. The police

apprehended Nixon inside the house.

¶ 23 On cross-examination, Miller testified that during the attack she

did not leave her bedroom until she ran to the back door. Miller stated

that the men had scarves over their faces and hats on their heads. Two

or three of the men stayed in her room at all times during the attack.

She could not recall “how many hours” the attack lasted, but she

knew it was a long time.

¶ 24 Miller stated that she knew the defendant “real well” from his

walk. She did not see his face, or any of the men’s faces, until she

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saw Nixon’s face after he was apprehended and brought out of the

house by the police. During the attack the defendant was standing in

her bedroom doorway while other men beat and kicked her. He took

her purse and ordered one of the men to hit her with the vase. Miller

insisted to defense counsel that the defendant was one of the men:

“You understand me, *** he was there. Do you understand what I am

saying? I know him. Can nobody doubt me that I would know him.

Thank you, sir. I know that he was there.” She added:

“I know that from his voice, and I know that from his walk.

I was not blind. *** I know his voice from being an

individual; I know his voice from being an adult, too. I seen

Chris Coleman a lot of time. I don’t associate with him

because I have no right. He’s a kid to me, but I know Chris

Coleman.”

¶ 25 Miller testified that she did not give the police details about the

men because she was “shook up” after the attack, and she did not give

the police the defendant’s name because they did not ask her in detail

about him. She would have told the police more if they had asked her

more questions. On re-cross-examination, defense counsel asked

Miller if, when questioned before the grand jury about the identity of

the men, she remembered saying, “I know Chris Coleman from a little

kid, but I didn’t know at the time that was him.” She stated that she

might have given that answer.

¶ 26 Tekelia testified that she did not know how manymen were in the

house during the attack, but mentioned that a boy was with them. She

stated that one of the men smashed a vase over her mother’s head,

then forced her into the bathroom, where another man sexually

assaulted her. She identified that man as Coats, but she did not

identify any of the other men.

¶ 27 Stimage testified that she was upstairs when the attack began, and

that it lasted for approximately one hour. She saw the faces of four of

the men, including a light-skinned man, who threw her into a wall

and caused her to lose consciousness for several seconds. Like Lott,

Stimage did not identify any of the men.

¶ 28 Peoria police department Officer Walter Jatkowski testified that

he processed the inside of the house for evidence on the night of the

attack. According to Officer Jatkowski, fingerprint and palm prints

that he lifted from the floor of the bathroom indicated Coats was the

man who sexually assaulted Tekelia. On cross-examination by

defense counsel, Officer Jatkowski stated that none of the fingerprints

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he lifted from the house matched the defendant. On redirect

examination, Officer Jatkowski explained, “I don’t have fingerprints

that match up to Chris Coleman. I can’t put him at the scene, but I am

not eliminating him from being at the scene, just physical evidence,

there’s nothing that shows.”

¶ 29 The State offered stipulations from two nurses and a doctor at

Methodist Hospital in Peoria, as well as a forensic scientist at the

Morton Crime Lab, who would have testified regarding the sexual

assault on Tekelia. None of these witnesses would have testified

regarding the defendant.

¶ 30 Anthony Brooks testified that he was 13 years old and was on

juvenile probation for the home invasion of Miller’s house.

According to Brooks, he went to the house on the night of the attack

with “Bug,” Nixon, and “light skin” Fats. Brooks stated that therewas

another Fats. He also stated that the Fats who was at Miller’s house

was not in the courtroom, but that Fats, “the light skin one, kind of

chubby,” was in a holding cell at the courthouse that morning.

¶ 31 Brooks testified that he was interviewed by Detective Pat Rabe of

the Peoria police department on the day of the attack. 

“Q. At that time, did you or did you not tell Detective Pat

Rabe that Christopher Coleman was with you on the morning

of August 22, 1994?

A. There was two Fats on that day when he showed me.

Q. Pardon me?

A. They had two dudes. Both of them name was Fats on

that paper, a light skin one and a dark skin one.

Q. Which Fats did you tell him that was with you on the

morning of August 22, 1994?

A. Told both of them.

Q. Both of them. Well, who is the dark skin Fats that you

told Officer Rabe that was with you?

A. But it was the light skin one.

Q. Are you saying you told Officer Rabe on August 22,

1994, there were two Fats with you?

A. He showed me two pictures of—He showed me the

light skin picture of the other Fats, and he showed me that

picture of him.

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Q. Who of him? Who is the other Fats picture he showed

you?

A. Some lights skins Fats. I don’t know his real name.”

Brooks identified the dark skin Fats from the police pictures as the

defendant, and stated that he was at Miller’s house on the night of the

attack.

¶ 32 On cross-examination, Brooks testified that he knew two men

nicknamed Fats. One is light-skinned with braids, and he was in a

holding cell at the courthouse.

“Q. And did you say on when [the prosecutor] was

questioning you, that was the person that was with you this

night [at Miller’s house] on August 22?

A. Yeah, I said that.

* * *

Q. All right. And then you said, did I hear you just now to

say that this person was with you [at Miller’s house]?

A. Just said it.

Q. So are you saying that both people nicknamed Fats

were [at Miller’s house] now?

A. I’m saying it was one of them, and it was that light skin

one with the braids in his head.

* * *

Q. And you’re saying the dark skin Fats was not with you

[at Miller’s house]?

A. Yeah.”

Brooks stated that he told Detective Rabe that dark-skinned Fats was

at Miller’s house, but that statement was untrue. Brooks furtherstated

that Detective Rabe showed him the picture of dark-skinned Fats and

told him to identify him as one of the men at Miller’s house, or

Brooks would never see his family again. On redirect examination,

Brooks testified that only three men went with him to Miller’s house:

Bug, Nixon, and Fats.

¶ 33 Detective Rabe testified that he investigated the attack at Miller’s

house and spoke to Brooks the next afternoon. Detective Rabe stated

that Brooks described the defendant as “the ringleader in charge of

the group” behind the attack. According to Detective Rabe, Brooks

picked the defendant’s photograph from an array. Detective Rabe

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conducted a line-up of five persons, which Tequilla viewed. She

identified the defendant as one of the men without hesitation.

¶ 34 On re-cross-examination, Detective Rabe testified that Miller did

not view photographs. The police did a computerized “cold search”

of photographs of arrestees in Peoria County fitting the age, weight,

and height of possible suspects. The defendant’s photograph appeared

inadvertently, and Miller identified him. On redirect examination,

Detective Rabe testified that Tequilla viewed photographs of

juveniles and adults. In the 8 to 10 photographs of juveniles, she

identified Brooks. On re-cross-examination, Detective Rabe testified

that Tequilla identified Nickerson, MarkRoberson, and the defendant

after viewing the results of the cold search.

¶ 35 The defendant called four witnesses.

¶ 36 Nixon testified that he pleaded guilty after the attack and was

sentenced to 12 years’ imprisonment. Nixon stated that he was

questioned by the police, but did not tell the truth. He admitted that

he participated in the attack. According to Nixon, he knew the

defendant, but the defendant was not at Miller’s house that night.

¶ 37 On cross-examination, Nixon testified that “Merk, Lamont, Bug,

Drey, and Rob” were with him on the night of the attack. Lamont was

Lamont Lee. Bug was Coats. Drey was a person that Nixon knew

from the Warner Housing Project in Peoria, who had come there

possibly from Detroit. Merk was Robert McKay. Rob was “another

dude” that Nixon knew “through somebody else.”

¶ 38 Shondra Dunn, the defendant’s fiancee, testified that she was with

him at a friend’s apartment on the night of the attack from around

10:30 p.m. until he was arrested there around 3 a.m.

¶ 39 Tamika Young testified that she had known the defendant for

approximately five years, and that she saw him on the night of the

attack at that apartment. According to Young, the defendant was there

from 12:15 a.m. until the police arrived at 2 a.m. On crossexamination, Young testified that she called the defendant by his

nickname, Fats.

¶ 40 The defendant testified that on the night of the attack he was with

Dunn at the apartment on the night of the attack from 10 p.m. until 3

a.m., when he was arrested. He denied participating in the attack.

¶ 41 On cross-examination, the defendant testified that some people

called him Fats. He stated that he grew up in Peoria, and that he knew

Miller: “I know Bertha Miller, but I don’t know Bertha Miller like she

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say I know her. I didn’t even know, I don’t even know how she look

until yesterday.” The defendant further stated that he knew Tequilla

when they were children, but not well enough to speak to her. He also

knew Brooks from their neighborhood.

¶ 42 In rebuttal, the State called Tequilla back as a witness. She

testified about her erroneous identification of Elbert Nickerson. She

stated, “Because at the line-up I was unsure, and I wanted to make

sure that everything was okay because I didn’t want him to go to jail

for something he didn’t do. So I had them recall his picture back up

to me so I can look at it again or any mistakes be made.” After she

reexamined Nickerson’s picture, she decided that he was not one of

the men in her mother’s house on the night of the attack. She stated

that she had no doubt that the defendant was one of the men.

¶ 43 The jury found the defendant guilty of home invasion, aggravated

criminal sexual assault, armed robbery, and residential burglary. Prior

to sentencing the defendant filed a posttrial motion in which he

argued, inter alia, that the State had failed to prove him guilty beyond

a reasonable doubt. The trial court conducted a hearing on that

motion. 

¶ 44 At that hearing, Coats testified that he had pleaded guilty in

connection with the attack. He stated that Nixon, Lee, McKay, and

“some guy named Dray” were with him at Miller’s house, where they

went to obtain money and drugs. According to Coats, the defendant

was not there. On cross-examination, Coats testified that Brooks also

was not there. Coats admitted that after his arrest he did not tell the

police about Nixon, McKay, Lee, andDray.On re-cross-examination,

Coats stated that the defendant, through his attorney, had asked Coats

to testify at the defendant’s trial and that Coats had refused on fifth

amendment grounds.

¶ 45 The defendant testified that defense counsel was concerned that

Nixon and Coats would say different things, and convinced him that

they should not be called as witnesses. The defendant stated that he

talked to defense counsel about Mark Roberson. According to the

defendant, Roberson’s nickname was also Fats, and, like the

defendant, he was “misidentified” by Tequilla as one of the men.

When the defendant talked to defense counsel about Nickerson,

another person misidentified in connection with this case, it was too

late to call him as a witness.

¶ 46 In denying the posttrial motion, the trial court stated that “the acts

of the victims misidentifying people was thoroughlyplaced before the

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jury.” The court stated that the case was not “particularly unique”

because the outcome hinged on whether the jury found the State’s

witnesses or the defense’s witnesses more credible. The trial court

sentenced the defendant to consecutive terms of 30 years’

imprisonment for armed robbery and aggravated criminal sexual

assault. The appellate court affirmed his convictions and sentences.

People v. Coleman, No. 3-95-0576 (1997) (unpublished order under

Supreme Court Rule 23).

¶ 47 The defendant filed a postconviction petition, alleging that he

received ineffective assistance of trial and appellate counsel. The trial

court dismissed that petition, and the appellate court affirmed that

decision. People v. Coleman, No. 3-99-0414 (2001) (unpublished

order under Supreme Court Rule 23).

¶ 48 The defendant then filed a pro se successive postconviction

petition, alleging that he received ineffective assistance of appellate

counsel on the appeal of his postconviction petition. The trial court

dismissed the successive petition as frivolous and patently without

merit. The defendant filed a notice of appeal, but then filed a motion

to dismiss the appeal, which was granted.

¶ 49 In 2009, the defendant filed a second successive postconviction

petition, claiming actual innocence. The petition was supported by 1

affidavits from McKay, the defendant’s brother Deondre Coleman

(Deondre), Coat’s brother Robert Coats (Robert), Roberson,

Nickerson, Brooks, Nixon, and Coats. In response, the State did not

ask the trial court to deny that motion, but, instead, denied the

allegations in the petition and requested an evidentiary hearing. The

trial court docketed the case for further proceedings and held a

hearing.

¶ 50 The defendant called eight witnesses.

¶ 51 Coats testified that on the night of the attack he was at the Warner

Housing Project “hanging out with friends”—Robert, Lee, “a homie

named Dre,” who was the defendant’s brother Deondre, Nixon, and

McKay. According to Coats, McKaywalked with a limp. Coats stated

that he and his friends went to Miller’s house that night looking for

money and drugs. The defendant was not with them.

The petition was signed by Karen Daniel of the Center on Wrongful 1

Convictions, BluhmLegal Clinic, Northwestern University School of Law.

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¶ 52 Coats stated that he knew Brooks, Nickerson, and Roberson,

whose nickname is “Fats.” None of them were at Miller’s house on

the night of the attack. Coats further stated that the defendant’s

nickname is also “Fats,” and he walks with a limp. Coats testified that

he pleaded guilty to armed robbery in connection with the attack and

received a sentence of 15 years’ imprisonment. According to Coats,

his attorney told him that he could receive a sentence of six years’

imprisonment if he testified that the defendant was involved in the

attack. Coats rejected that offer because the defendant “didn’t have

any involvement.”

¶ 53 On cross-examination, Coats testified that he was currently

incarcerated for felony possession of a controlled substance. He

repeated that both McKay and the defendant walk with a limp. Coats

stated that when McKay proposed going to Miller’s house, he and

some friends were drinking beer and smoking marijuana. Coats

admitted that he told Detective Rabe a different story on the night of

the attack. He said that he and a friend were forced into the house at

gunpoint, but that story was untrue. When Detective Rabe asked

whether the defendant was involved in the attack, Coats answered

that the defendant was not involved.

¶ 54 The State reviewed Coats’ affidavit with him. He stated that he

was first contacted about signing it in 2006 or 2007 by a student from

Northwestern University law school. He told the student that the

defendant was not involved in the attack. He also told his parents and

brother, Phillip Graham, and “just numerous of other people” that

asked him about it.

¶ 55 On redirect examination, Coats stated that Detective Rabe first

mentioned the defendant’s name. Coats’ affidavit did not implicate

his brother Rob for fear of getting him in trouble, and he did not

implicate his brother at the hearing on the defendant’s posttrial

motion for the same reason.

¶ 56 Lee testified that he was currently incarcerated for armed robbery.

According to Lee, he was at Miller’s house with Coats, Robert,

Nixon, and McKay. Coats entered the house by the back window, and

opened the door for the other men. Then Lee stated that an armed

robbery took place. There were one or two guns involved, though

some of the men pretended to have guns. Their faces were covered,

and some wore hats. Lee estimated that seven or eight people

occupied the house when the men entered it. When the police arrived,

the men went upstairs. Lee stated that he and Robert escaped by

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jumping from an upstairs window. McKay left before the police

arrived. 

¶ 57 Lee testified that the attack lasted about an hour. After he escaped,

Lee returned to the Warner Housing Project, and saw the police arrest

the defendant. Lee had seen the defendant earlier that night with

Dunn, and they went inside an apartment between 11 p.m. and

midnight. According to Lee, the defendant was not at Miller’s house

“in no form or fashion,” he was just inside the apartment. Lee did not

speak to the defendant’s attorney, only to law students around

February 2007. Lee did not testify at the defendant’s trial because that

would have been “hanging” himself.

¶ 58 On cross-examination, Lee stated he knew Deondre, but he knew

the defendant better. Neither was at Miller’s house; only Lee, Coats,

Robert, Nixon, and McKay. Lee stated that if he would have been

called to testify at the defendant’s trial, he would have “pleaded the

Fifth, period.”

¶ 59 The trial judge then askedLee some questions. Lee confirmed that

before the attack, he was with Coats, Robert, Nixon, and McKay. He

saw the defendant at the Warner Housing Project sometime earlier

that day.

¶ 60 Deondre testified that he is the defendant’s brother. On the night

of the attack, he saw the defendant, but he later left the Warner

Housing Project with Nixon, McKay, Coats, Robert, and another

man. According to Deondre, McKay walked with a limp, as does the

defendant. The defendant did not accompany the men to Miller’s

house. McKay planned to rob the occupants of the house, but

Deondre refused to participate and stood across the street from the

house during the attack. Deondre stated that the defendant and Brooks

were not at the house that night. Deondre intended to testify at the

defendant’s trial, but before it occurred he was shot three times and

left Peoria for a hospital in Detroit, Michigan. 

¶ 61 On cross-examination, Deondre stated that the original plan on

the night of the attack was to go to Miller’s house to buy drugs with

money that he and Nixon had. When they reached the house, McKay

changed the plan. Deondre did not participate in the attack because he

“don’t about to rob nobody.” When the men went around Miller’s

house toward the back door, Deondre began walking back to the

Warner Housing Project.

¶ 62 Deondre testified that the next day, he was stopped at the Warner

Housing Project byBarbara Stimage, Angela Stimage’s daughter. He

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learned that the defendant had been arrested in connection with the

attack. Deondre told Nixon, McKay, and Robert that he planned to

testify that the defendant was not at Miller’s house. Deondre was shot

three days later. When he learned that the defendant was in prison,

Deondre “felt bad,” but did not tell the police or the defendant’s

attorney that he was not at Miller’s house that night. Deondre did tell

his father on the day before he was shot. Deondre added that,

although he did not tell anyone else that the defendant was not

involved, he would have told someone if he had been in Peoria at the

time of trial.

¶ 63 Brooks testified that he was currently incarcerated. On the night

of the attack, he was 12 years old, and he was arrested and charged

with home invasion and robbery. At the police station, officers

questioned Brooks. According to Brooks, “They started pulling out

pictures. They said they knew I was there and they wanted me to

point out Mr. Coleman and kept pointing at his picture, you know

what I’m saying?” Brooks stated that he told police that he was not at

Miller’s house, and the police, including Detective Rabe, told him

that he would neversee his family again. In response, Brooks pointed

to the defendant’s picture and said he was at the house. Brooks stated,

“I *** didn’t know if he was there or not, I just was doing it so I

could go home.” He also told police that he was the lookout at the

house.

¶ 64 On cross-examination, Brooks testified that he was in prison for

aggravated unlawful use of a weapon. He was also convicted twice of

felony possession of a controlled substance and was imprisoned for

those offenses. According to Brooks, Detective Rabe said that he

would never see his family and would be in prison for the rest of his

life if he did not tell police who was at Miller’s house on the night of

the attack. Because Brooks was not involved in the attack, he did not

know who was. However, he told Detective Rabe that he was there,

and that the defendant directed the other men during the attack.

Brooks repeated that his trial testimonyimplicating the defendant was

untrue: “[E]verything about it was a lie.” On redirect examination,

Brooks stated that he “[f]elt kind of wrong because it wasn’t true that

another person was going to go to jail because from the lies I was

telling just to go home.” Brooks lied because he did not care about

anyone except himself, but cared only about going home.

¶ 65 Nickerson testified that he was currently incarcerated. He was

arrested and charged with home invasion, armed robbery, burglary,

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and sexual assault in connection with the attack. He stated that he was

neverinvolved. According to Nickerson, the defendant,Coats, Nixon,

and some other men were also charged in connection with the attack.

Nickerson stated that on the day of his trial, the charges against him

were dismissed. Nickerson testified that while he and Coats were in

the same pod at the Peoria County jail, awaiting trial, Coats said that

he knew Nickerson and the defendant were not involved. Coats also

said that some men involved were his brother Robert, Nixon, and “a

couple of their other friends,” including Lee and McKay. Nickerson

stated that McKay walked with a limp.

¶ 66 On cross-examination, Nickerson stated that he was incarcerated

for aggravated unlawful use of a weapon and was serving a 41⁄2-year

sentence. He was also convicted for violating an order of protection,

for forgery, and for a bail bond violation. Nickerson saw the

defendant in jail. After he was released, Nickerson left Peoria, and did

not learn that the defendant was convicted until he returned several

months later. He never told the police that the defendant was not

involved in the attack because “they already knew.” Nickerson talked

to the defendant’s lawyer in 2009, and would have testified sooner if

he would have been contacted sooner.

¶ 67 Robert testified that he was Coats’ younger brother. He stated that

he knew Nixon, Deondre, and McKay. McKay walked with a limp.

When postconviction counsel asked Robert about the night of the

attack, he asked for an attorney. A public defender was appointed and

consulted with him. The trial court held a hearing, and concluded that

the limitations period had run on any of the offenses with which he

could be charged and ordered him to resume his testimony.

¶ 68 Robert testified that on the day before the attack, he was with

Coats, Lee, Nixon, McKay, and Deondre. The group walked to

Miller’s house. The defendant, who walks with a limp, was not with

them. Brooks, Nickerson, and Roberson, whose nickname is “Fats,”

were also not with them. Robert stated that after his brother opened

the back door of Miller’s house, the men entered and robbed the

victims. Robert was the only one with a gun. The men all wore

bandanas to cover their faces. Robert did not remember Deondre

being inside the house. According to Robert, he went into the living

room, and “[p]ut the people down” at gunpoint and collected the

money and the marijuana. He tried to get into the bathroom, but could

not because Lee was inside holding the door closed. At some point,

the police arrived at the house. Lee went to the door and told them

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“everything was cool,” and theywere “just having a party.” Everyone

in the house then went upstairs. Robert stuffed his gun in a box and

jumped out the window. Lee and Coats also jumped out the window.

Robert escaped, and he was never arrested or questioned in

connection with the attack. He stated that he would not have testified

at the defendant’s trial for fear of imprisonment.

¶ 69 On cross-examination, Robert testified that he was smoking

marijuana all day before the attack, and he was under the influence of

marijuana when he left the Warner Housing Project for Miller’s

house. According to Robert, the men went to the house to buy

marijuana. Before that night, Robert had been there “a few times” to

buymarijuana. He estimated that the attack lasted around 10 minutes.

Robert stated that he probably told Deondre that the defendant was

not involved. He told others the same story: “I said there is only one

person that’s in jail and they didn’t do it and that’s Christopher

Coleman. I said that to a lot of people in the joint, out of the joint.”

He added, “I didn’t say it was too bad. I said it’s messed up that he is

in there, but sometimes that’s how life goes. You get a bad break.”

On redirect examination, Robert testified that, even though he was

under the influence of marijuana on the night of the attack, he knew

that the defendant was not at Miller’s house.

¶ 70 McKay testified that he was currently incarcerated. His nickname

is Merk. McKay walks with a limp, after jumping out a window and

injuring his leg in 1993. Hours before the attack, McKay was at the

Warner Housing Project with Lee, Nixon, Robert, and Deondre.

Coats joined them shortly. McKay testified that the defendant was

with them initially, but went “in the house with his girlfriend” when

the men left for Miller’s house. According to McKay, the men went

to Miller’s house to buymarijuana, but a robbery took place after they

entered the house. McKay stated that the men “got reefer and money

and left.” The money and marijuana were in a bedroom. McKay

covered his face with a shirt that was in the house. The defendant was

not there at any time during the attack.

¶ 71 McKay testified that he knew Nickerson and Roberson, and they

were not at the house that night. According to McKay, Brooks was

with him when he went there. McKay was arrested on an unrelated

charge a few days after the attack, and was incarcerated for

approximately a year. He would not have testified at the defendant’s

trial because that testimony would have implicated himself.

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¶ 72 On cross-examination, McKay testified that he had smoked “two

or three dime bags” of marijuana with Lee, and when he left for

Miller’s house, he had a “mild buzz.” Lee had the idea to turn the

purchase of marijuana into a robbery. McKay stated that he thought

Lee was the first person to break into the house. And Lee, Coats,

Nixon, Robert, and Deondre all went in the house. They were inside

the house for “[p]robably about almost two minutes.” McKay found

money and marijuana on the floor of a bedroom beside the bed. He

picked up the money and marijuana and left the house with Deondre.

He stated that he did not go upstairs, and Lee was the only man with

a gun.

¶ 73 McKaytestified that he did not speak with Roberson or Nickerson

about the attack. He learned that the defendant had been arrested in

connection with the attack a couple of days later. He spoke to Nixon

about the defendant and his lack of involvement, while the two were

in jail together. McKay cared that the defendant was going to prison

for crimes he did not commit, but McKay “was facing some trouble”

himself.

¶ 74 Roberson testified that he was arrested in October or November

1994 in connection with the attack. According to Roberson, “I was

told that I supposed to participated in armed robbery and home

invasion and rape. And they [the police] asked me where I was at, and

I told him—I gave them my alibi and told them I was at work and

they called my alibi and confirmed it.” At the time, Roberson was

working at a fast food restaurant in Glendale Heights, Illinois, near

Chicago. He was released three days later.

¶ 75 The State called a single witness, Detective Rabe.

¶ 76 Detective Rabe testified that in the course of his investigation into

the attack, he interviewed Brooks. He did not threaten Brooks, and

did not tell him that he would never see his family again if he did not

answer questions about the attack or if he did not identify the

defendant as one of the men. According to Detective Rabe, Brooks

stated that the defendant was at Miller’s house and participated in the

attack. On cross-examination, Detective Rabe testified that Coats and

Nixon both denied involvement in the attack when they were

interviewed, and neither identified any accomplices. Because the

victims said that several men were involved, and one of the victims

recognized one of the men from the Warner Housing Project,

Detective Rabe spoke to officers who worked that beat. The officers

identified the defendant, Brooks, Roberson, and Nickerson as

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possible suspects. Detective Rabe assembled some photo arrays with

pictures of the men, and Tequilla identified all four as being in her

mother’s house on the night of the attack.

¶ 77 In a written order, the trial court denied relief to the defendant.

The trial court reviewed the postconviction evidence in light of the

trial evidence. The court noted that several of the defense witnesses,

who claimed that the defendant was not involved in the attack, had

extensive criminal records, and that they “gave significantly

conflicting accounts on what happened and who was present.”

Additionally, none of them mentioned the sexual assault. The trial

court concluded:

“Is it possible that that the Petitioner is actually innocent?

Yes, even the most efficacious court system in the world

cannot achieve absolute truth. Is it possible that these cohort

witnesses are now coming forth with nothing to lose in order

to help Petitioner—the person giving the orders during the

home invasion?[ ] yes. Is the evidence offered at this hearing

of such a conclusive character that it would probably change

the result on retrial? No.”

¶ 78 The appellate court affirmed. 2011 IL App (3d) 100419-U. The

appellate court agreed with the trial court’s “well reasoned decision,

finding the information provided to the court during the

postconviction hearing would not be likely to affect the outcome of

a new trial.” Id. ¶ 55. According to the appellate court, that decision

was not against the manifest weight of the evidence. Id.

¶ 79 This court allowed the defendant’s petition for leave to appeal.

See Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010). The court also allowed

40 Illinois attorneys to file a joint amicus curiae brief in support of

the defendant. See Ill. S. Ct. R. 345 (eff. Sept. 20, 2010).

¶ 80 ANALYSIS

¶ 81 The Post-Conviction Hearing Act allows a criminal defendant to

assert that “in the proceedings which resulted in his or her conviction

there was a substantial denial of his or her rights under the

Constitution of the United States or of the State of Illinois or both.”

725 ILCS 5/122-1(a)(West 2010). The Act contemplates the filing of

a single petition: “Any claim of substantial denial of constitutional

rights not raised in the original or an amended petition is waived.”

725 ILCS 5/122-3 (West 2010). That statutory bar will be relaxed

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only “when fundamental fairness so requires.” People v.

Pitsonbarger, 205 Ill. 2d 444, 458 (2002) (citing People v. Flores,

153 Ill. 2d 264, 274 (1992)).

¶ 82 We have stated that, outside the context of capital litigation, there

are two such instances, or two exceptions, to this procedural default

rule. See People v. Edwards, 2012 IL 111711, ¶ 22. First, a defendant

may raise a defaulted constitutional claim by satisfying the so-called

“cause-and-prejudice” test. See Pitsonbarger, 205 Ill. 2d at 459; 725

ILCS 5/122-3 (West 2010). To establish “cause,” the defendant must

show some objective factor external to the defense impeded his

ability to raise the claim in the initial postconviction proceeding.

Pitsonbarger, 205 Ill. 2d at 460. To establish “prejudice,” the

defendant must show the claimed constitutional error so infected his

trial that the resulting conviction violated due process. Id. at 464.

¶ 83 Second, even without showing cause and prejudice, a defendant

may bring a claim of actual innocence to prevent a fundamental

miscarriage of justice. People v. Ortiz, 235 Ill. 2d 319, 329 (2009). In

People v. Washington, 171 Ill. 2d 475 (1996), we considered whether

a claim of actual innocence implicates a federal or state constitutional

right, which would allow a defendant to raise that claim in a

postconviction proceeding. In addressing federal due process, we

examined Herrera v. Collins, 506 U.S. 390 (1993). There, the United

States Supreme Court used the terms “freestanding” and “gateway”

to describe two types of actual-innocence claims raised in successive

federal habeas corpus petitions. According to the Court, 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. Id. at 400. A gateway actualinnocence claim is ancillary to any claims of constitutional trial error.

Such a claim is “not itself a constitutional claim, but instead a

gateway through which a habeas petitioner must pass to have his

otherwise barred constitutional claim considered on the merits.” Id.

at 404. In closing, the Court stated that assuming, arguendo, the

execution of a capital defendant who made a “truly persuasive

demonstration of ‘actual innocence’ ” would violate the Constitution,

the evidentiary burden on such a defendant to obtain federal habeas

relief would be “extraordinarily high.” Id. at 417.

¶ 84 In Washington,we concluded that despite this comment, “Herrera

clearly states *** that a freestanding claim of innocence is not

cognizable as a fourteenth amendment due process claim.”

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Washington, 171 Ill. 2d at 485. But because “we labor under no selfimposed constraint to follow federal precedent in ‘lockstep’[citation]

in defining Illinois’ due process protection,” we turned to our state

constitution. Id. We observed that there are decisions in which this

court has “perfunctorily evaluated” new evidence claims under the

Post-Conviction Hearing Act as if they were raised in a motion for a

new trial. Id. at 486 (citing People v. Silagy, 116 Ill. 2d 357, 368

(1987), citing People v. Molstad, 101 Ill. 2d 128, 134 (1984)). But

those decisions have never expressly identified the constitutional

basis for such claims. We clarified that actual-innocence claims are

grounded in due process and departed from Herrera, holding “as a

matter of Illinois constitutional jurisprudence that a claim of newly

discovered evidence showing a defendant to be actually innocent of

the crime for which he was convicted is cognizable as a matter of due

process.” Id. at 488-89. Procedurally, a trial court should treat such a

claim like any other postconviction claim. Id. at 489. Substantively,

a court should grant relief only if the defendant has presented

supporting evidence that is “new, material, noncumulative and, most

importantly, ‘ “of such conclusive character” ’ as would ‘ “probably

change the result on retrial.” ’ ” Id. (quoting Silagy, 116 Ill. 2d at 368,

quoting Molstad, 101 Ill. 2d at 134).2

¶ 85 But before we can discuss the defendant’s evidence and review

the trial court’s decision on that evidence, we must address a

threshold issue raised by the State. In its response brief, the State

contends for the first time in this case that Washington is

fundamentally flawed and its substantive standard should be

discarded. According to the State, that standard is too lenient because

it excuses the defendant from making a truly persuasive

demonstration of actual innocence. The State proposes a stricter

standard, which purportedly derives from Schlup v. Delo, 513 U.S.

298 (1995).

¶ 86 In Schlup, the Court, as it had in Herrera, again distinguished

between freestanding and gateway claims of actual innocence. The

Court held that to obtain habeasrelief on a gateway actual-innocence

claim, a defendant must show that “it is more likely than not that no

In People v. Caballes, 221 Ill. 2d 282, 314 (2006), we noted that

2

Washington modified the “limited lockstep approach” adopted in People v.

Tisler, 103 Ill. 2d 226 (1984), “to allow for consideration of state tradition

and values as reflected by long-standing state case precedent.”

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reasonable juror would have convicted him in the light of the new

evidence.” Id. at 327. Although the Court has never recognized the

viability of a freestanding actual-innocence claim, and, consequently,

has not decided which standard would apply to such a claim, it has

speculated that such a standard would theoretically require more

convincing proof. See House v. Bell, 547 U.S. 518, 555 (2006).

¶ 87 The State expands upon this point, arguing that the proper

substantive standard for a postconviction freestanding claim of actual

innocence in Illinois is an “enhanced Schlup showing.” That proposed

standard would force the defendant to prove that no reasonable juror

would have found him guilty in light of the new evidence, which is

what Schlup requires, and do so by clear and convincing evidence,

which would enhance what Schlup requires. According to the State,

the so-called enhanced Schlup standard is appropriate because (1) it

demands a truly persuasive demonstration of innocence, so it fits the

reasoning of Washington better than the standard we adopted there;

(2) it tracks the practice for litigating actual-innocence claims in other

states; and (3) “adopting the enhanced Schlup standard for

freestanding innocence claims, while reserving the Schlup standard

for gateway claims, will cure the current anomaly in this Court’s

actual innocence jurisprudence, under which freestanding actual

innocence claims are easier to establish than gateway actual

innocence claims.”

¶ 88 We reject the State’s argument for several reasons.

¶ 89 The State’s argument rests largely on a faulty initial premise. The

State simply assumes that this court, like the United States Supreme

Court, has recognized two types of actual-innocence claims. We have

not. To the Court, the distinction between freestanding and gateway

claims hinges on fundamentally different “assumptions about the

validity of the proceedings” and concomitantly different levels of

respect afforded to the resulting convictions. Schlup, 513 U.S. at 315.

When faced with a freestanding claim, in which a defendant

challenges only his factual innocence, a habeas court may have

confidence in the result because the underlying trial was error-free. Id.

When faced with a gateway claim, in which the defendant challenges

both his factual innocence and the fairness of his trial, a court may

have less confidence in the result. Id. at 316. That, in the Court’s

view, changes the evidentiary burden:

“In Herrera (on the assumption that petitioner’s claim was, in

principle, legally well founded), the evidence of innocence

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would have had to be strong enough to make his execution

‘constitutionally intolerable’ even if his conviction was the

product of a fair trial. For [the petitioner in Schlup], the

evidence must establish sufficient doubt about his guilt to

justify the conclusion that his execution would be a

miscarriage of justice unless his conviction was the product

of a fair trial.” (Emphases in original.) Id.

¶ 90 We departed from precisely this approach in Washington. There,

we stated:

“The Supreme Court rejected substantive due process as a

means to recognize freestanding innocence claims because of

the idea that a person convicted in a constitutionally fair trial

must be viewed as guilty. That made it impossible for such a

person to claim that he, an innocent person, was unfairly

convicted.

We think that the Court overlooked that a ‘truly

persuasive demonstration of innocence’ would, in hindsight,

undermine the legal construct precluding a substantive due

process analysis. The stronger the claim—the more likely it

is that a convicted person is actually innocent—the weaker is

the legal construct dictating that the person be viewed as

guilty. A ‘trulypersuasive demonstration of innocence’would

effectively reduce the idea to legal fiction. At the point where

the construct falls apart, application of substantive due

process principles *** is invited.” Washington, 171 Ill. 2d at

488.

The assumptions that led the Court to distinguish between

freestanding and gateway claims, and the legal construct that springs

from those assumptions, are integral parts of the federal due process

rubric that we declined to follow, as a matter of state constitutional

law. We may have used the label “freestanding” to describe the claim

in Washington, but not as an alternative to the label “gateway.”

¶ 91 In Illinois, a postconviction actual-innocence claim is just that—a

postconviction actual-innocence claim. Where a defendant makes a

claim of trial error, as well as a claim of actual innocence, in a

successive postconviction petition, the former claim must meet the

cause-and-prejudice standard, and the latter claim must meet the

Washington standard. See Ortiz, 235 Ill. 2d at 330 (“where a

defendant sets forth a claim of actual innocence in a successive

postconviction petition, the defendant is excused from showing cause

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and prejudice”). There is no anomaly in our case law because the

evidentiary burden for an actual-innocence claim is always the same

whether or not it would be considered a freestanding or gateway

claim under federal law.

¶ 92 Without the benefit of that distinction, the State’s argument

unravels. Schlup, as well as any cases from other states that have

chosen to align themselves with federal law in this context, are

irrelevant. Further, because the Court has never recognized the

viability of a freestanding actual-innocence claim raised in a

successive habeas corpus petition, its comments in Herrera on the

evidentiary burden required to advance such a claim are pure obiter

dicta, and unpersuasive. Finally, the State’s proposed standard, which

would impose a “clear and convincing” burden of proof and make an

actual-innocence claim harder to prove than any other postconviction

claim, is inappropriate. An actual-innocence claim should be treated

procedurallylike anyother postconviction claim(Washington, 171 Ill.

2d at 489), and “[i]n a post-conviction hearing the burden of proof is

upon the petitioner to show a denial of [a] constitutional right by a

preponderance of the evidence.” People v. Stovall, 47 Ill. 2d 42, 47

(1970).

¶ 93 The State’s argument essentiallyrepackages an argument made by

then-Chief Justice Bilandic in his dissent upon denial of rehearing in

Washington. See Washington, 171 Ill. 2d at 505-10 (Bilandic, C.J.,

dissenting upon denial of rehearing, joined by Miller, J.). That

argument was rejected by a majority of this court. In the 17 years

since we decided Washington, nothing has changed. Our commitment

to that holding is unwavering. We have not diluted the substantive

standard for actual-innocence claims, as the State thinks we did in

Ortiz. And we have not strengthened that standard, as the State hopes

we did in Edwards. In both cases, we reiterated that Washington

provides the appropriate standard for ultimate relief. See Edwards,

2012 IL 111711, ¶ 32 (stating the “elements of a claim of actual

innocence” and citing Washington); Ortiz, 235 Ill. 2d at 333.

¶ 94 As we stated in Washington, “no person convicted of a crime

should be deprived of life or liberty given compelling evidence of

actual innocence.” Washington, 171 Ill. 2d at 489. That statement

indicates that the standard we adopted is extraordinarily difficult to

meet. In fact, as amicus informs us and our research confirms, courts

of review have granted postconviction relief on actual-innocence

claims in only three reported cases since 1996. See People v.

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Burrows, 172 Ill. 2d 169 (1996) (decided the same day as

Washington); Ortiz, 235 Ill. 2d 319; People v. Starks, 365 Ill. App. 3d

592 (2006). 

¶ 95 Although Washington is now familiar to the bench and bar, we

take this opportunity to clarify how it should be applied.

¶ 96 Substantively, in order to succeed on a claim of actual innocence,

the defendant must present new, material, noncumulative evidence

that is so conclusive it would probably change the result on retrial.

Washington, 171 Ill. 2d at 489. New means the evidence was

discovered after trial and could not have been discovered earlier

through the exercise of due diligence. See Burrows, 172 Ill. 2d at 180.

Material means the evidence is relevant and probative of the

petitioner’s innocence. People v. Smith, 177 Ill. 2d 53, 82-83 (1997).

Noncumulative means the evidence adds to what the jury heard.

Molstad, 101 Ill. 2d at 135. And conclusive means the evidence,

when considered along with the trial evidence, would probably lead

to a different result. Ortiz, 235 Ill. 2d at 336-37.

¶ 97 In practice, the trial court typically will review the evidence

presented at the evidentiary hearing to determine first whether it was

new, material, and noncumulative. If any of it was, the trial court then

must consider whether that evidence places the evidence presented at

trial in a different light and undercuts the court’s confidence in the

factual correctness of the guilty verdict. This is a comprehensive

approach and involves credibility determinations that are uniquely

appropriate for trial judges to make. But the trial court should not

redecide the defendant’s guilt in deciding whether to grant relief. See

Molstad, 101 Ill. 2d at 136 (“this does not mean that [the defendant]

is innocent, merelythat all of the facts and surrounding circumstances

*** should be scrutinized more closely to determine [his] guilt or

innocence”). Indeed, the sufficiencyof the State’s evidence to convict

beyond a reasonable doubt is not the determination that the trial court

must make. If it were, the remedy would be an acquittal, not a new

trial. See Washington, 171 Ill. 2d at 497 (McMorrow, J., specially

concurring) (“where a reviewing court determines that no rational

trier of fact could find the defendant guilty beyond a reasonable

doubt, the proper remedy is not a new trial but an acquittal”).

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. See People v. Davis, 2012 IL App (4th)

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110305, ¶¶ 62-64 (“New evidence need not be completely dispositive

of an issue to be likely to change the result upon retrial.”).

¶ 98 Turning to the central issue in this case, the merits of the

defendant’s petition and actual-innocence claim, we review the trial

court’s decision to deny relief following an evidentiary hearing for

manifest error. People v. Morgan, 212 Ill. 2d 148, 155 (2004).

Manifest error is “clearly evident, plain, and indisputable.” Id. at 155.

Thus, a decision is manifestly erroneous when the opposite

conclusion is clearly evident. In re Cutright, 233 Ill. 2d 474, 488

(2009). On this point, the parties’ positions are clear and simply

stated. The defendant contends that the trial court’s decision was

manifestly erroneous under the Washington standard. The State

summarily disagrees, responding in the last few pages of its brief that

the trial court’s decision was not manifestly erroneous under that

standard. The State, however, does not dispute that the defendant’s

evidence was new, material, and noncumulative.

¶ 99 The trial court found that the evidence was new, except for the

testimony of Brooks, who testified at trial, and Coats, who testified

at the hearing on the defendant’s posttrial motion. The trial court

further found that the evidence was material, except the testimony of

Nickerson and Roberson, who did not state that the defendant was not

involved in the attack. Finally, the trial court found that the remaining

evidence—namely, the testimony from Coats, Lee, Deondre, Robert,

and McKay—was cumulative of the trial testimony of Nixon, who

stated that the defendant was not involved.

¶ 100 Regardingthe testimonyof Nickerson and Roberson, we conclude

that it was not new because it could have been discovered earlier

through the exercise of due diligence. None of the eight defense

witnesses, except Brooks, testified at trial, but Nickerson and

Roberson were arrested in connection with the attack. Presumably,

the defense knew this before trial, but chose not to call them as

witnesses, even to undermine Tequilla’s credibility after

misidentifying them. In the hearing on the defendant’s posttrial

motion, defense counsel explained that he did not call Roberson as a

witness because his testimony would not have helped the defendant.

Additionally, the defendant stated that he talked to defense counsel

about Nickerson, but by then it was too late to call him.3

We note that Nickerson testified that while he was incarcerated and 3

awaiting trial, he spoke with Coats, who said he knew Nickerson and the

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¶ 101 Regarding the testimony of Brooks, we conclude that it was not

material. At the defendant’s trial, Brooks’ testimony was nearly

incomprehensible, particularly his answers to questions about two

men nicknamed “Fats.” Brooks stated that he was at Miller’s house

on the night of the attack, and he seemed to implicate the defendant

on direct examination, then exculpate him on cross-examination. In

the evidentiary hearing, Brooks was less equivocal. He stated that he

was not involved in the attack and did not know who was. This was

a different story from the one he offered at trial, but it was not

relevant or probative of the defendant’s innocence.

¶ 102 That leaves the testimony of the five men who admitted that they

were involved in, or present for, the attack: Coats, Lee, Deondre,

Robert, and McKay. Nixon’s trial testimony implicating these men

seems to indicate that the defense may have known about their roles

before trial, but theylikelywould have asserted their fifth amendment

privileges if called to testify. Lee, Robert, and McKay said they

would have done so, and, in his testimony at the hearing on the

defendant’s posttrial motion, Coats also said he would have done so.

Only Deondre did not say this, and he asserted that he never entered

Miller’s house and left the area before the attack began. The

testimony of these witnesses was new evidence. See Molstad, 101 Ill.

2d at 134-35.

¶ 103 The testimony of these witnesses was also material and

noncumulative. All five of them stated that they were present for or

involved in the attack, and all of them insisted that the defendant was

not. This evidence was relevant, and probative of the defendant’s

innocence. Additionally, although they, like Nixon at trial, stated that

the defendant was not at Miller’s house on the night of the attack,

their testimony was not before the jury at trial. The uncorroborated

testimony of one of the men does not render the testimony of five of

them merely cumulative, particularly where four of them were never

charged in connection with the attack. Their testimony corroborated

Nixon’s testimony regarding the defendant, but also offered

significant details that were missing from his account, including the

defendant were not involved in the attack. Nickerson’stestimony about that

conversation was hearsay. Roberson’s affidavitincludeda similarstatement

about a conversation he had with McKay after the attack. Roberson did not

testify about that conversation, but testimony about it would also be

hearsay.

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fact that McKay and the defendant both walk with a limp. Thus, we

conclude that the testimony of Coats, Lee, Deondre, Robert, and

McKay was new, material, and noncumulative evidence.

¶ 104 Next, we must determine whether the trial court’s decision that

that evidence was not conclusive enough to probably change the

result on retrial was manifestly erroneous.

¶ 105 The trial court noted that Coats, Lee, Robert, and McKay all had

extensive criminal records, and that Coats, Robert, and McKay

admitted drinking alcohol and smoking marijuana before the attack.

The court observed that these witnesses offered conflicting accounts,

particularly regarding the defendant’s involvement, but none of them

mentioned the sexual assault of Tekelia.

¶ 106 Although we agree that their voluntary intoxication and criminal

records would affect their credibility on retrial, as would the

discrepancies in their accounts nearly 16 years after the attack, these

men were remarkably consistent on certain key details: they

socialized at the Warner Housing Project before the attack; they went

to Miller’s house to steal drugs and money; Coats entered the house

first through the back window, then opened the back door for the

other men; the men had their faces covered during the attack; the men

ordered many of the victims to lie on the living room floor, then took

them upstairs; and three of the men jumped from the upstairs window

when the police arrived. Most significantly, they were consistent on

the issue of who was involved in, or present for, the attack. Like

4

Nixon, who testified at trial, they all stated that six men—Nixon,

Coats, Lee, Deondre, Robert, and McKay—were at Miller’s house

that night, and the defendant was not. Lee, Deondre, and McKay even

corroborated the defendant’s alibi. And although none of the men

mentioned the sexual assault, neither did Tequilla, whose sister was

the victim of a terrible crime. The men were not asked about the

sexual assault because that was not relevant to the ultimate issue of

whether the defendant was there.

¶ 107 The trial court stated that these witnesses had “nothing to lose,”

a veiled reference to the fact that the limitations period had passed on

the offenses committed during the attack. But in his trial testimony,

Nixon implicated himself, McKay, Lee, Coats, Deondre, and Robert.

And Coats, in his testimony at the hearing on the defendant’s posttrial

Only Lee testified that Dondre was not there. The other men, including 4

Deondre himself, stated that he was present at Miller’s house. 

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motion, implicated Nixon, who had already pleaded guilty, as well as

Lee, McKay, and Deondre. Despite this testimony, the State never

5

pursued charges against any of these men in connection with the

attack, and criminal liability weighed on their minds. Lee even

refused to provide an affidavit, and Robert had to be counseled by a

public defender that his testimony would not have penal

consequences. This lends credence to their accounts.

¶ 108 Additionally, Detective Rabe’s testimony at the evidentiary

hearing was inconsistent with his trial testimony regarding his

investigation. At trial, Detective Rabe described a computerized “cold

search” that produced the photographs Tequilla saw. But Detective

Rabe provided more details at the evidentiary hearing. Because the

two men arrested at the crime scene, Coats and Nixon, refused to

name their accomplices, Detective Rabe talked to officers who

worked around the Warner Housing Project. These officers offered

the names of four possible suspects—the defendant, Brooks,

Nickerson, and Roberson—all of whom still maintain that they were

not involved in the attack, and two of whom were actually released by

the police. Detective Rabe assembled a photo array with pictures of

those men, and Tequilla identified them all.

¶ 109 The State’s evidence at trial was sufficient to convict the

defendant, but it was far from overwhelming. There was no forensic

evidence to link the defendant to the attack, and the State offered

three identifications, all of which were significantly impeached.

¶ 110 Brooks’ testimonyon direct examination mayhave implicated the

defendant as dark-skinned Fats, but his testimony on crossexamination definitely exonerated him.

¶ 111 Miller and Tequilla offered different versions of the attack

because they were in different places. In Miller’s version, the

defendant orchestrated the attack from her bedroom doorway, not the

living room. Miller did not see the defendant’s face during the attack

because it was covered, but she identified him from his voice as a

child and as an adult, a characteristic she knew even though she

denied associating with him, and his limp, a characteristic he shared

with McKay. Miller did not give the defendant’s name to the police

after the attack because they did not ask about him. And she did not

At the evidentiary hearing, Coats explained that he did not include

5

Robert in this group because he wanted to protect him.

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name him to the grand jury because she did not know at the time of

the attack that was him.

¶ 112 In Tequilla’s version, the defendant sat on a chair in the living

room for most of the attack, directing the other men. Tequilla did not

mention that the defendant was ever near Miller’s bedroom. Tequilla

saw the faces of two men while she was lying on the living room

floor and they removed their bandanas. She identified one of them as

the defendant, who, like Roberson, was nicknamed Fats. However,

like her mother, she did not give the defendant’s name or nickname

to the police. And she named only Nixon to the grand jury because

she had forgotten the defendant’s name, and presumably his

nickname. Of the six men she picked out from the photo array and the

lineup, two—Coats and Nixon—were arrested at the scene,

two—Nickerson and Roberson—were misidentified, and

two—Brooks and the defendant—continue to denytheirinvolvement.

Tequilla never identified any of the four men who were implicated by

Nixon and Coats, who were never arrested in connection with the

attack, and who now assert they were at Miller’s house that night.

¶ 113 The testimony of Coats, Lee, Deondre, Robert, and McKay was

discredited by their criminal backgrounds, intoxication, and

acquaintance with the defendant. Those men, however, all directly

contradicted Miller and Tequilla on the ultimate issue before the jury:

who was involved in the attack. We believe that the evidence

presented by the defendant at the evidentiary hearing, together with

the evidence presented by the defendant at trial, places the evidence

presented by the State in a new light and undermines our confidence

in that evidence and the result it produced. Weighed against the

State’s evidence, the defendant’s new evidence is conclusive enough

that another trier of fact would probably reach a different result.

¶ 114 This case is strikingly similar to Molstad. There, the State

presented testimony from an eyewitness who identified the defendant

and his five codefendants as participants in the battery of her

boyfriend. The defendant denied that he was present for the attack,

and he presented alibi testimony from his parents. This court granted

the defendant a new trial. Here, we reach the same conclusion.

Because the trial court’s decision was manifestly erroneous, the

defendant is entitled to postconviction relief in the form a new trial.

As we stated in Ortiz, 235 Ill. 2d at 337, on remand, “[t]he fact finder

will be charged with determining the credibility of the witnesses in

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light of the newly discovered evidence and with balancing the

conflicting eyewitness accounts.”

¶ 115 CONCLUSION

¶ 116 For the reasons that we have stated, the judgments of the circuit

and appellate courts are reversed, and the cause is remanded to the

circuit court for further proceedings.

¶ 117 Judgments reversed. 

¶ 118 Cause remanded.

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