## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Carter , 2013 IL App (2d) 110703

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. NATHA NI ELA. CARTER, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-11-0703

Filed August 9, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) In an action arising from defe ndant’s conviction of first-degree murder on

an acc ountability theory
, the trial court proper ly d enied defe ndant’s postconviction claim of actua l innoc ence based on an aff idavit f rom the
person who was convicted o f ac tually killing the victim stating that defe ndant was not involved in the offe nse, since the trial court’s decision was not manife stly

err oneous.

Dec ision Under
Review Appea l f rom the Circuit Court of Winnebag o County
, No. 00-CF- 2593; the Hon. Joseph G. McGra w, J udg e, pre siding.

J udg ment Affir med.Counsel on

Appea l Peter A. Carusona, Glenn Sroka, and Verlin R. Meinz, all o f State Appellate D efe nder’ s Offic e, of O ttawa, f or appe llant.

J oseph P

. Br

uscato, S tate’s Attorney
, of R ockfor d (L awr ence M. Ba uer and Richard S. L ondon, both of State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for

the People.

Panel J USTI CE SP ENCE delivere d the judg ment of the c ourt, with opinion. Presiding J ustice Bur

ke and J ustice J org ensen concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a jury trial, defe ndant, Nathanie l A. Ca rt er , wa s co n v i ct ed b as ed o n

acc ountability of the first-degree mur d er (720 I L CS 5/9-1(a) (3) (West 2000)) of Cornell Thomas and sentenc ed to 45 y ea rs ’ i m prisonment. On direc t appea l, defe ndant raised one issue, re gar d i n g jury instructions. In an unpubli shed decision, People v. Carter
, No. 2-01- 1336 (2003) ( unpublished order under Supre me Court Rule 23), this court af firmed. ¶ 2 Def

endant later filed a postconviction peti t i o n , wh i ch wa s am en d ed sever al times, culminating in his fourth amende d postconviction petition. T he State moved to dismiss defe ndant’s petition, and the trial c o u r t gr anted this motion. Def

endant appea led, arguing that the trial court err ed b y dismiss ing his petition. Def endant had raised sever al issues in his petition, including a claim of actua l innocenc e based on the aff idavit of a codef

endant, J ames Hac kler, which stated that J ames acte d alone in the killing of Cornell. In another unpublished decision, this court aff

irmed the dismiss al of all of defe ndant’s postconviction claims except for the one of actua l innocenc e. People v. Carter
, No. 2-06-1012 (2009) (unpublished order under Supreme Court Rule 23). On that claim, we reve rsed the judgme nt and rema nded the

case , instructing the trial court to hold an evidentiar y hearing. Following an evidentiar y hearing on defe ndant’s claim of actual i n n o ce n ce, the trial court denied his petition. Def endant a ppeals, a nd we a ffirm.

¶ 3 I . BA CKGROUND ¶ 4 A. Trial Evide nce ¶ 5 We beg in by summariz i n g t h e ev i dence adduce d at defe ndant’s trial. Duringopening
argument, the State prese nted the following theory of how Cornell was killed. Def endant and
two others, J ames (nickna med “Cujo”) and David Walker (nicknamed “Da yday”), met at the Rockford Motel to plan a robbery at a drug house at 321 L incoln Avenue in Rockford. On

-2-t h e n i ght of the incident, September 30 to October 1, 2000, Cornell picked up his fr i en d
,

L ashanna Bowman, and they drove to the drug house, where defe ndant, J ames, and David

wer e waiting in a car

. Cornell exit ed his car and was ambushed by defe ndant and J ames, who

wer e arme d. Def

endant attempted to rob Cornell and he beat him with his gun. Cornell broke fre e from defe ndant and ran into J ames, who shot him. Cornell stumbled into the street and died. Def endant g ot back in the car with David, and J ames hijacked Cornell’s car and drove

awa y . Shortly afte r the murde r, def

endant r eturne d to the Rockford Motel and met up with J ames and his wi fe
, An g ela Hackler

. They told Ang ela what had happened, including that defe ndant attempted to rob Cornell, that defe ndant beat Cornell with his gun, and that during the scuff le some shots wer e fired. Police later found the gun that killed Cornell, a .38-ca liber revolve r, in David’s apar

tment. Whil e the State was not sure that defe ndant had fired the gun, his finge rprints wer e on the ba gthat contained it. ¶ 6 State witness Andre Br ass, a Rockford police detec tive, testified that he was assig ned to locate defe ndant during the investigat i o n o f Cornell’s death. Detec tive Br ass, awa re that defe ndant’s li ce nse had been suspended, spotted defe ndant driving a car

. Detec tive Br ass stopped defe ndant, at which time defe ndant produce d a license with his own picture but with the name Huber

t Dave nport. At first, defe ndant denied that his name was Carter
, stated that his name was Da v enp ort, and claimed that Carter was his brother’ s name. Eventually
, he admitted that he wa s Nathanie l Carter. ¶ 7 Def

endant was taken to the police station. He a g ree d to talk, claiming that he was with his girlf riend on the night of the incident. Ac cording to defe ndant, they went to dinne r and

a movie and then spent the night at her house. Def endant denied g oing to 321 L incoln, denied knowing“Cujo,” and denied involvement in the murder. A fter de fenda nt saw James being interviewe d down the hall at the police station, howeve r, defe ndant said that he knew J ames

as a “cr ack head” but not as “Cujo.” Def endant admitted knowing “Da yday” and asked the detec tive if David had said that defe ndant supplied the guns for the ro b b er y

. Def endant continued to deny involvement, but his story kept chang ing. Each version was differ ent i n terms of whether he and his g irlfriend actua lly went to a movie, what time they ate, and whether his son came along

. David had injured his ankle, and Detec tive Br as s qu est ioned defe ndant about this as well. Def endant rela

yed that he saw David a couple of day s afte r the incident and that David told defe ndant that he had hurt his ankle when his g irlfriend pushed him down a flig ht of stairs. ¶ 8 At some point during the interview, defe ndant ag ain chang ed his story about being with his g irlfriend. He admit ted being at a mot el wit h J ames and David when “they fo rm u l at ed a plan to do a robbery

. ” J am es came up with the i dea beca use he knew a place on L incoln Avenue wher e th er e wa s a lot of money

. They exit ed the motel room and went out on the balcony
, and defe ndan t j u mped from the second- floor balcony into a truck bed below. De fe n d an t then challeng ed David to do the same, which he did, although he injured h i s ankle. Dayday was sti ll able to g o with them, and he drove them to L incoln Ave n u e in his

car

. Def endant knew that J ames had a gun, and J ames exit ed the car alone. J ames commented that “ ‘he was g oing to g o handle his business,’ ” which me ant doinga robbe ry . Def endant and David stayed in the car for a few minutes befor e hearing gunshots. They took off, drove around the block, and saw a black male lying in the street. They drove awa y

. Def endant then

-3-returne d to his girlfr iend’s house a nd did not know what happe ned to David or J ames. ¶ 9 On cross-e x amination, Detec tive Br ass admitted that his repor t did not say that defe ndant planned or conspired to c ommit a robber y with J ames and David. Howeve r, defe ndant told the detec tive during the interview that he was willing to part i ci p at e i n the robber y at the house on L incoln. The interview beg an at 7 p.m. and ended around 5:45 a.m. The interview

was not continuous during that period, and it was not videotaped. Detec tive Br ass did not ask defe ndant for a

written statement. ¶ 10 Ro c k f

o r d p o lice detec tive Howar d For rester , who continued interviewing defe ndant a f te r Detec tive Br ass, testified that defe ndant g ave three differ ent versions of events. At first, defe ndant claimed that he was with his g irlfriend a nd kids on the night of Septe mber 30 to October 1, eating and watching videos. Then, he chang ed his story and stated that he was at the Rockford Motel with David in J ames’s room on September 30. Around 5 p.m., when they left, defe ndant jumped off the balcony into the bed of a truck, and David followed him a nd injured his ankle. After that, defe ndant picked up his g irlfriend, and they ate and rente d some videos. L ater , David picked defe ndant up in his car , and they parke d on Hea th Street, which

was adjac ent to L incoln. Def endant did not g ive details about time or what they wer e doing on Heath Street. ¶ 11 Detec tive For

rester testified t hat defendant then chang ed his story ag ain, cl ai ming that afte r the three left the motel, he and David drove t o He at h Street but J ames did not come along ; he did not know wher e J ames went. Def endant hear d one gunshot a nd they drove to L incoln and saw a body in the middle of the street. At that point, David drove defe ndant back to his car , around 4 a.m., and defe ndant drove to his g irlfriend’ s house. With respect to the
gun, defe ndant said that on October 1 he went to the Rockford Motel and saw J ames clea ning

a .38-ca liber revolve r. J ames put it in a paper bag and g ave it to defe ndant, who then took it
to David’s apar

tment. Detec tive For

rester ’s interview of defe ndant lasted until about noon. Detec tive For

rester did not ask for a written statement, beca use defe ndant’s s t o ry jumped around so much a

nd he eve ntually

asked f or a la wyer. ¶ 12 Ang ela testified that she met defe ndant through J ames and had known him for about two
y ear s. Ang ela had a sexual relationship with defe ndant for 11⁄2 y ear s, which J ames knew about. J ames and defe ndant were friend s , an d defe ndant called J ames “Cujo.” Around the time of the incident, Ang ela, J ames, and their daughter had moved into the Rockford Motel for a few day s. J ames and Ang ela, who was pregnant, wer e cra ck coca ine users at the time. ¶ 13 On September 30, when s h e an d J ames went out to eat, “some lady” asked for a ride home and offe red to pa

y them. The lady g ot in the car and asked wher e she could g et some “go o d d o pe.” J ames drove t o a drug house on L incoln, which was run by someone na m ed L eroy

. Ang ela rec a ll e d th a t d efe ndant had had problems with L eroy , had “g otten him befor e,” and “talked about g etting him ag ain.” The lady and J ames g ot out of the car , went up to the house, and then returne d to the car with drug s. After that, they all went back to the motel and smoked the cra ck coca ine; Ang ela took “one hit.” Eventually
, two other people stopped by
, Goldie and Tim, who g ave the lady a ride home. ¶ 14 Ang ela testified that a few hours later defe ndant and David arriv ed at t h e motel. They talked for one or two minutes and then went into the bathroom with J ames, closed the door,

-4-and turned on the fan. Ang ela did not know what they discussed; they wer e in there about 15

minutes. When they came out, J ames said to defe ndant, “ ‘so should I just be a customer or what.’ ” Def

endant told J ames to be quiet, that they would talk about it later. Then, they sat down and had some drinks. Def endant s ai d th at , if they wer e g oing to do something, they should g o. Ang ela asked wher e they wer e g oing, but they did not tel l h er

. W h en leaving
, defe ndant and David jumped off the balcony into a pickup truck. W hen David jumped, he hit his “behind.” They left around 3 or 3:30 a.m. in a small, black, four- door car , with David driving

. ¶ 15 Ang ela further testified that, about 4 5 m i nu tes later, J ames returne d with a thin, black male. James told Ange la to g ive the man a couple of dollars for g iving James a ride home. Af t er the man left, J ames seeme d “ver y nervous, very para

noid.” He remove d a re v o l v er from his waistband and told Ang ela that they had to g et rid of it. J ames could not figure out how to g et the bullets out of the revolve r, howeve r. Ang ela explained how to remove the bullets, and J ames wiped off the gun. Ang ela testified that J ames put the bullets in Ang ela’ s purse and the gun in a brown paper bag

. L ater , Ang ela said that the paper bag also contained the bullets. ¶ 16 Acc ording to Ang ela, defe ndant arr ived at the m o t el 1 5 t o 2 0 m i n u tes later. At first, defe ndant acte d normal. Then, he seem ed “v er y hy per.” Def endant said, “ ‘Cujo (James), wher e wer e you, we waited for you, we couldn’t find you any wher e. We stuck around as long

as we could.’ ” They discussed what had happene d that night. Def endant said that he g rabbe d Cornell from behind, started hitting him with his gun, g ot him on the g round, and then y elled
at J ames for not coming over to h elp him. Def endant said that he could not hold Cornell down and g rab his “ pack” at the same time. Ang ela explained that a “pac k” was a “bag full of dope that usually sticks in your crotc h.” Def endant felt Cornell’s pack, which he compar ed
to a round ashtray in the motel room. Acc ording to defe ndant, Cornell broke fre e and started running
, so defe ndant fired two sh o t s

. Cornell ran toward J ames. Be cause J ames did not know wher e the gunshots came from, J ames then fired. J ames told defe ndant that he wanted
to g et rid of the gun in the paper bag
, and he g ave it to defe ndant. Def endant left with the gun and then r eturne d to the motel room to spend the nig ht. ¶ 17 Ang ela testified that a few day s later the police came t o t h e m otel room and ar rested J ames. When they questioned her, she denied any knowledg e of the incident. She responde d in this fashion because J ames taught her t o never talk to police. Two day s later
, the pol ice
contac ted her ag ain and brought he r to the police station unde r the suspicion that she knew about the incident. Ang ela admitted that a forg ery case was pending ag ainst her. The State, howeve r, had not promised he r any thing in exchang e for

her te stimony

. ¶ 18 On cross-e x amination, Ange l a ad m i t t ed t h at she had two additional “hits” of cr ack

coca ine on the night of the incident. Ang ela e x plained that James and t he lady they picked
up had g one back to the drug house for more cra ck coca ine befor e the incident. When Goldie and Tim came over, they brought a revolve r, which was t h e s ame gun that she saw J ames unload later. Ang ela never saw Goldie g ive the gun to J ames, but it was the same gun. After Goldie and Tim left with the lady
, they came back later that night. Ang ela admitted that her written statement to police did not say any thing about J ames prete nding to be a customer; she

reme mbere d that detail eight months later. Ang ela was scar ed of J ames beca use he beat her

-5-al m o st daily

. Ang ela did not want to testify ag ainst defe ndant, and she was not try i n g t o

protec t J ames. ¶ 19 L ashanna testified that she had a child with Corne ll a nd also worke d with him. Cornell picked up L ashanna at her apar tment around 3:15 or 3:30 a.m. on October 1. He was driving his burgundy Gra

nd Prix

. They drove around listening to music and then Cornell stopped at

a house on L incoln to use the bathroom. He backe d into the drivewa y of the house. Be cause the door on the driver’ s side of the car did not open, L ashanna g ot out of t h e ca r s o t hat Cornell co u l d ex i t o n the passeng er side. L ashanna g ot back in the car and moved to the driver’ s side. Whil e she was waiting for Cornell, afte r about 10 to 15 minutes, she hear d a
gunshot. Then, she saw someone in front of the car , who ca m e ar o u nd and opened the
passeng er door. At first, L ashanna thought it was Cornell, but it turned out to be a white man who put a gun to her head and told her to shut up. He g ave her three choice s: g et killed, drive him where ver he wanted to g o, or g et out. L ashanna wanted to g et out, and the man pulled her out of the car

. The man, whom she had never seen befor e, drove awa y in Corne ll’s c ar. L as h an na was scre aming and cry ing and saw Cornell lying on the g round; she hear d h i m cry ing he r name . A ca

r st opped on L incoln and gave her a ride to a ne arby

cousin’s house. L ashanna did not call the police, be cause her c ousin did not have a phone . She went to the police station later that day and provide d a wr itten statement. ¶ 20 Be runica Boose testified that she lived in an apar tment with David and her kids and had known defe ndant for y ear s. On October 1, around 4 or 5 a.m., David s h o we d up at the
apar tment “looking crazy ” and scar ed, and his legwas “ messed up.” B erunic a took him to the hospital. L ater that day
, Be runica ’s cousin called her to say that Cornell had been killed. At some point, Be runica neede d to use David’s car and she asked David if there was any thing in it. David tol d her to “g et t he guns from under my car .” Berunic a looked under the h ood of the car and saw thr ee gun s : one in a paper bag
, one in a mask, and one wra pped in something that she did not rec og nize. B erunic a car ried the guns into the apar tment and put them under her mattress. Def endant came over later that day
, car rying a newspa

per. He talked
to David in the bedroom for a few minutes and then left. He was not car rying any thing when he lef t. Afterw ard, B erunic a looked unde r the mattre ss and saw only two guns; she did not know what happene d to the third gun. Be runica admitted that friends of David’s other than defe ndant had a lso stopped by that day

. ¶ 21 R o ckford police detec tive J oseph Stevens testified that on October 3 h e wa s s en t t o Be runica and David’s apar tment based on an anony mous call rela

yin g th at i t contained

sever al handguns related to the investigation of Cornell’s death. Be runica consente d to a

sear ch for wea

pons, and David was al s o p resent. In the back bedroom, underne ath the mattress, Detec tive Stevens found a black ski mask with a gun inside of it. The gun was fully l o aded. He also found a brown paper bag that contained a .38-ca liber revolve r, two l i v e bullets, and one spent bullet. David, who had either a broken leg or a broken ankle, was taken to the police station. ¶ 22 Russell McClain, a firea rms ballistics examiner wi t h the I llinois State Police, testified about his testing of a .38-ca liber gun and a fired car tridg e case that wer e found in the paper bag at David’s apar

tment. He also tested the bullet that was rec overe d during Cornell’s autopsy . The .38-c aliber gun fired the bullet that was re cover ed fr om Cornell’s body

.

-6-¶ 23 Rockford police detec tive J ames Ba rton testified that he tested the brown paper bagfor pri n t s

. T h e p rint on the bag matched the print of defendant’ s rig ht palm. Detec tive Ba rton also investigated the crime scene

. In the yard of the house on L incoln, De t ec t i v e Ba rton found t hree small packe ts of rock coca ine near a g rassy are a where there appear ed to have been a scuff le. ¶ 24 Rockford police detec tive Paul Triolo found Cornell’s body lying in the stre et. Cornell had abra sions below his eye and o n h i s lip, chee k, and stomach. He also had a gunshot wound to his upper left chest. His pants had grass strains and his zipper was unzipped. There

was ne arly

$300 cash in his pocke t and a c an of toba cco. ¶ 25 Dr. Blum, a fore nsic patholog ist, conducte d an autopsy o f C o rn el l ’s b o d y

. Fr o m a gu n shot wound in the left chest are a, he remove d one bullet, which was the cause of Cornell’s death. In Dr. Blum’s opinion, the gun was fired within two fee t of Cornell’s chest. In addition, Cornell’s head, hand s , and knee showed multipl e are as of blunt forc e injury
, which could have bee n cause d by someone strikinghim with a gun or a fist. ¶ 26 Rockfor d police detec tive David Cone testified on behalf of the defe nse reg ardinghis questioning of Ang ela. Detective Cone interviewe d her at the R ockfor d Motel on Oct o b er 4. Ang ela rela

y ed that neither she nor J ames was curr ently using drug s and that she was not

awa re that J ames was in any trouble. A sear ch of the room reve aled narc otics para pherna lia, and Ang ela re s p o n ded that J ames must be using drug s ag ain without her knowledg e. The
next day
, October 5, Ang ela was informed that J ames had been char g ed with murder and that it was suspected that Ang ela was not being completely truthful. Ang ela admitted that she had been untr uthful and agree d to come to the station, wher e she pr ovided a written statement. Ang ela indicated that she ha d talked to J ames be fore g iving the written statement. ¶ 27 Du ri ng deliberations, the jury reque sted the police repor ts of Detec ti v es Br as s an d Stevens and the photogr aphs of Cornell’s car

. The jury was not g iven the police repor ts but it was given the pictures. In addit ion, the j ury asked for t he transcript of Detective Bra ss’s testimony
, stating that “other wise, it wa s d ea dlocked.” The jury rec eived that testimony

. After deliberating for 12 hours, the jury found defe ndant guilty of first-degree murder. The trial court se ntence d defe ndant to 45 y ear s’ imprisonment.

¶ 28 B. Posttrial Procee dings ¶ 29 Def

endant a ppeale d, raisingonly

one issue: whethe r the trial court e rre d by ref using to tender a proposed jury instruction that Ang ela’ s testimony might have been influence d by her pending forg ery char g e. This court reje cted that argument and aff irmed defe nd an t ’s conviction. See Carter , No. 2-01-1336. ¶ 30 On J anuar

y 20, 2004, defe ndant filed pro se a petition for postconviction relief based on claims of actua l innocence and ineffe ctive assistance of appellate counsel. The trial court

ru l ed on defe ndant’s petition on April 8, 2004, deter mining that it stated th e gi s t o f a constitutional claim. Counsel was appointed to re prese nt defe ndant. ¶ 31 Def

ense counsel then filed sever al amende d postconviction petitions, which culminated in a fourth amende d postconviction petition. The fourth amende d petition, dated J anuar y 17, 2006, alleg ed that trial counsel was ineffe ctive on four grounds. It also included a claim of

-7-actua l innocenc e, based on J am es’s aff idavit, dated Dec ember 3, 2002, which stated that defe ndant had nothing to do with the crime and was not presen t wh en i t o cc urre d. In his aff idavit, J ames aver

red that he told Ang ela to lie for him and implicate defe ndant so that he could avoid beingheld re sponsible for the c rime. ¶ 32 The State moved to dismiss defe ndant’s petition. Reg arding defe ndant’s claim of actua l innocenc e, the State argued that J ames’s aff idavit was “inher ently unr e li a b le ” b e c a use he was a code fenda

nt who pled guilty

to the crime. ¶ 33 After n u m er o u s co n t i n u an ce s , the trial court issued a memorandum of decision on September 11, 2006, dismiss ing de fenda nt’s fourth amended post conviction petit ion in its entirety

. Wit h respe ct to J ames’s aff idavit, the court agree d that it was unavailable at the time

o f t ri al beca

use J ames could have exercised his fifth amendment right ag ainst selfincrimination. Howeve r, it was not evidenc e that would likely chang e t h e o u t co m e of the
t ri al

. The court rea soned that, althoug h J ames’s aff idavit contra dicted Ang ela’ s testimo n y implicating defe ndant, the State’s case was not base d upon her te stimony alone, in that the State called 11 witnesses to testify

. Moreove r, the defe nse cross-e x amined Ang ela on the issue of whether she was falsel y implicating defenda nt in order to protec t J ames, meaning that J ames’ s aff

idavit was cumulative on an issue that was alre ady explored at trial and reje cted by the jury

. Also, as part of the evidenc e establis h i n g d efendant’s guilt, the jury hear d about the stateme nts defenda nt ga ve to detec tives admitting that he w as in the ca r in front of the house whe n Cornell was shot. ¶ 34 Def

endant appea led the dismiss al of his fourth amende d postconviction petition, arguing that the t rial court err ed by not g iving him an evidentiary hearing on his c laims. As stated, this court affirmed the dismiss al of a ll of defe ndant’s postconviction claims except for the one that alleg ed ac tual innocenc e. This claim ce ntere d on J ames’s a ffidavit, which stated:
“I ’m m ak i ng this statement on behalf of [defendant]. I murdere d Cornell Thomas while high on cra ck-c ocain [ sic ]. I did not plan on committing this crime, but I was high
at the ti me. [Defenda

nt] did not in any

way have any

thing to do with this crime. [Defenda nt] did not assist me in any way in the planning in any of my actions involving the victim in this c ase. I informed my wife Ang ela Hac kler to lie for me by implicating [defendant] in this case to he lp me avoid being held responsible for the crime. L ater on I pleade d guilty to forty -two (42) y ea rs for my wrong doing in the Cornell Thomas murder. I was totally

alone whe n this murder occ urre d.”
J ames further stated in his aff idavit that “if my testimony is r equire d reg arding the above, I would be willing to do so.” ¶ 35 In advanc ing this claim, defe ndant ar gu ed t h at t h e tri al co u rt judge handlinghis postconviction proce eding s was not the same judge who presided over his trial, meaning that h e wa s “at something of a disadvantag e” in seeing how J ames’s testimony would hav e aff ecte d the t rial. Defenda

nt also pointed out that the jury made se vera l reque sts during its deliberations, indicated that it was deadloc ked at one point, and delibera ted 12 hours befor e returning a verdic t. L ast, defe ndant argued that the evidence ag ainst him was far from

overwhelming. The State responde d that J ames’s aff idavit was cumul at i v e on an issue alre ady explored and re

jected by the jury ; namely , whether Ang ela was fa lsely

implicating

-8-defe ndant in order to protect James. ¶ 36 Although we agree d with the State that J ames’s aff idavit was cumulative on the issue of Ang ela’ s cre dibilit y , we also agree d with defe ndant that the aff idavit was so conclusive that it would likely chang e the result of defe ndant’s trial. Carter
, No. 2-06-1012, slip order at 28. Reasoning that the evidenc e ag ainst defe ndant was not overwhelming, and th at J am es ’s af fidavit completely exonerated defe ndant in the planning of the actions, i.e.
, the robber y , that resulted in the killing of Cornell
, we d et er mined that defe ndant was entitled to an evidentiar y hearing on his claim of actua l innocenc e. Id. at 29-30. We thus rema nded the case for that he aring

.

¶ 37 C. Third-Stag e Evidentiar y Hea ring ¶ 38 1. J ames’s Te stimony ¶ 39 The evidentiar y hearing commence d on October 19, 2010. J ames, who never testified at defe ndant’s trial, was the first witness to testify

. Prior to his testimony
, the State advised the
court that, depending on the content of J ames’s testimony
, it could char g e him with lying to the police. J ames was not c urre ntly repr esente d by counsel, and, acc ording to the State, his
appea ls wer e “done,” and he had no pending petitions. The court admonished J ames that the State could file c harg es ag ainst him based on his testimony , and James electe d to testify

. ¶ 40 J ames testified that he pled guilty to Corne ll’s mur der, which occur red during the ear ly morning hours of October 1, 2000. Acc ording to J ames, defe ndant did not plan the robber y or the murde r of Corne ll and was not pre sent when James killed Cornell. ¶ 41 J ames testified about t h e events leading up to Cornell’s death. J ames was staying in a motel room with Ang ela and his daughter. At that time, J ames used cra ck coca ine daily

. He

was g etting high when defe ndant and David c ame to the motel room. James explained that the house on L incoln was a “dope” house. J ames planned to buy more drug s; he did not plan to rob anyone. James asked Da vid for a ride, and the thr ee le ft the motel room. ¶ 42 When they left, J ames walked down the st ai rs b u t d ef endant jumped over the sec ond floor balcony

. David also jumped over the balcony and injured himself in the proce ss. They left in David’s car

. David drove; defe ndant sat in the passeng er seat; and J ames s at in the b a c k s e a t g etting high. David dropped defe ndant off at his g irlfriend’ s house. Then, David a n d J ames we nt to the dope house on L incoln. David said that he did not want to g o direc tly in front of the hous e in case it was being watche d by police, so they parked o n the ot her side of the block. J ames walked up to the house and knocked on the door, but no one answe red. As J ames walked awa

y , a Monte Carlo backe d into t h e d ri vewa y , and J ames hid behind a tree

. A m an ex i t ed t h e car, and J ames thought he was “coming towards” him. J ames, who had a gun, a “.38 specia l,” told the man t o fr ee z e an d get on his knees. The man did, and J ames hit him in the fa ce w ith his gun to show him he “meant business.” The man wanted
to fig ht, and they wre stled. As J ames continued to pistol whip him, the man g rabbe d the gun, and it we nt of

f. J ames pa

tted the man’s poc kets but there was nothing there ; James did not
g o throug h his pockets or re ach into his pants. ¶ 43 J ames then saw that someone else was in the Monte Carlo. He opened the car door and told a “hea

vy set” black fema le not to look at him and to take the key s out of the ignition. She

-9-complied. J ames then saw someone running in his direc tion, and he assumed it was the man

from befor e. J ames shot once at the man and then watche d him run around the corne r; J ames did not think he hit him. Next, J ames told the fema le to g et out of the car

. The driver’ s door would not open, howeve r, so he g rabb ed h er b y t he hair and shirt and “flung ” her to the
g round throug h the passeng er door. J ames then took the car and “stashed it” close to the J ane Addams projec ts. He walked down railroa d trac ks and g ot a ri d e from a man back to the motel. That man came up to his motel room for about five minutes beca use J ames had to g ive him some crac k for g iving him a r ide. ¶ 44 Ba ck at the motel, J ames testified, he g ot high ag ain. He g ave the gun to Ang ela and told her to remove the bullets, wipe off the fi ng erpr ints, and then put it in a brown paper bag

. Def endant returne d to the motel room about 90 minutes later and had some drinks. J ames did
not tell defe ndant what happene d at the dope house. Def endant g ave J ames “a couple rocks,” which he smoked. Ang ela was doing drug s too. At the time, Ang ela did cra ck coca ine with J ames ever

y day

. J ames did not tell Ang ela what happene d until he “saw it on the news” the next day . J ames wa s arr ested a fewday s later. ¶ 45 J ames g ave a

written statement to police shortly afte r the incident, on October 4, 2000. In his sta t em en t , J am es said that defe ndant and David came to his motel room and st arte d talking a bout “doingL eroy ’s place .” The y all went into the bathroom bec ause the y did not
want the “women” to hear

. Def endant and David wanted J ames to act like h e was buying drug s and then they would “rob the m.” Another man in the motel room g ave J ames a gun, which he put in his waistband. They left and defe ndant jumped over the balcony

. David did the same thing but hurt his leg

. They drove to the house on L incoln but David could not walk beca use of his injure d leg

. Def endant “said that he was just g onna do it by himself.” J ames hesitated but then followed defe ndant, who alre ady “had another black guy on the g round and he was smacking the guy in the fac e with a gun.” Def endant was wea

ring a black ski mask. ¶ 46 J ames went on to say in his written statement that a Monte Carlo wa s backe d into the
yard. A “hea

vy set fema le” was sitti ng in the driver’ s seat. J ames told her to remove the key s from the ignition. Def

endant kept hitting the man and asking “ ‘Where’ s it at? ’ ” but the man said that h e d i d n o t kn o w. The man strug g led to g et up, and then J ames hear d two shots. Next, the fema le told J ames that the driver’ s-side door did not open, so she climbed out the
passeng er side. The man ra n off, a nd J ames drove awa

y . J ames did not know that “anyone g ot shot.” J ames parke d the car near the projec ts and started walking

. He then saw a man he knew from being “at dope spots,” who g ave J ames a ride back to the motel. J ames g ave him $4 and a pa ck of c iga

rettes. ¶ 47 J ames continued in his written statement that he smoked some c rac k when he g ot ba ck
to the motel. About 20 or 30 minutes later, defe ndant also returne d to the motel. By this time, J ames ha d put his gun in a paper bag
, which he g ave to defe ndant. Defenda nt said that the

man at the house on L incoln would not tell him wher e the packs wer e, that the man g rabbe d the gun or his hand and started to fight with him, and that this was whe n the gun went off. Def endant thought that the man “g ot hit.” ¶ 48 J ames testified that his written statement was not true. J ames made the statement bec ause defe ndant was a “known drug deale r,” and J ames did not want to g et in trouble. Also, people

-10-knew that defe ndant was with J ames prior to Cornell’s death; the police had J ames in a littl e

room for 16 h o u rs wi t h o u t food or drink; and J ames had been doing drug s for four day s straight. In addition, the police added things to his statement that he did not say

. After g iving the statement, J ames was put in jai l

. Fr o m j ai l
, he called Ang ela and told her to blame

ever y thing on de fenda

nt and David so that he would be re lease d. ¶ 49 Prior to g oing to the h o u s e o n L i n co l n , J am es , David, and defe ndant went into the bathroom t o discuss having sex with Ang ela, who was a known prosti tute. Def endant was
g oing to g et Ang ela high so that they could have sex with her, which they had done befor e. ¶ 50 On September 26, 2001, J ames pled guilty to killing Cornell. On Dec ember 3, 2002, he
prepa red his aff idavit stating that defe ndant had nothing to do with the murder. At this point in his testimony
, the court asked J ames wh at p rompted him to write the aff idavit. J ames

answe red that he “wa s caught” and “in prison.” Acc ordingto J ames, ther e wa s no event or communication fr o m an y one that prompted hi m to prepa re the aff idavit; he prepare d it on his own initi ative. ¶ 51 On cross-e x amination J ames t es t i fi ed t h at , wh en h e pled guilty
, he listened to the
prosec utor state the fac ts of t he case

. J ames never corr ecte d the prosec utor by stating that defe ndant was not involved in the incident. J ames did not car e what happene d to defe ndant at the time, but he ca

red nowbeca

use he w as “try

ing to do the right thing .”

¶ 52 2. Ang ela’ s Testimony ¶ 53 Ang ela testified on behalf of t he S tate as follows. Thoug h she did drug s when she w as marrie d to J ames, she had been sober for the past four y ear s. After defe ndant’s trial, Ang ela
was approac hed by “Dimp,” defenda nt’s relative whose real name was Hubert Davenport,

on J uly 26, 2001. He came to her house at 6:45 a.m. and said that he was upset about her testimony in defe ndant’s case

. Huber t asked Ang ela to write a letter saying that her testimony

was wrong and that defe ndant had nothing to do with the incident. Ang ela ty ped and signe d a letter that day , stating:
“I was threatened and coerce d into testifying ag ainst [defendant] at his trial. A leading detec tive in the case threatened to take my children and put me in jail if I didn’t testify ag ainst [defendant]. [Defenda nt] did not murder [ Cornell]. I did not know what
went on the evening of the incident, nor am I sure of what happene d afte r. I am writing this now beca

use I fee l it is complete unfair and wrong that [defendant] is being char g ed for a crime he did not commit. Ibelieve he is beingfalsely acc used.” ¶ 54 Ang ela t es t i fi ed th at the letter, which was also notarized, was not true. She signe d it beca use Huber

t threatened to hurt her children and her husband L arr y

. Huber t said that they 1 “ ‘could be taken car e of very easily

. T h e p o l i ce weren’t g oing to be able to do any thing about it.’ ” ¶ 55 On Augus t 2
, 2 0 0 1, Ang ela g ave a written statement to police explaining the J uly 26,

I n J uly 2001
, Angela was st il l m arri ed to J ames, al tho ugh she fi le d for divor ce on Novem ber 1 15, 2 001, andth en marr ie d La rry.

-11-2001, letter. Ang ela stated the following in the August 2, 2001, written statement. Her J une

2001 testimony at defe ndant’s trial was truthful. On J uly 26, 2001, Huber t came to her house
to talk about helping defe ndant. Ang ela was awa re that J ames, not defe ndant, killed Cornell. Howeve r, defe ndant “wa s there ” and “had something to do with it.” Huber t told Ang ela that she neede d to help defe ndant, threatening that the police could not protec t her or L arr y

. When Huber t came to her house, he called defe ndant’s mother, Mattie Har ris, so that she could talk
to Ang ela. Mattie told Ang ela that defe ndant was not mad at her and that defe ndant wanted Ang ela to have his Bronc o and any thing her ki ds neede d. Mattie wanted Ang ela to write a letter saying that she had been threatened by detec tives. Ang ela told Huber t that she did not want to write the letter, but Huber t insisted. She wrote the J uly 26 letter only b ec au s e s h e fea red that Huber

t would hurt her or her children. Huber t came back to the house to pick up the letter, a

nd he also wa

nted her to talk to defenda

nt’s public defe nder. ¶ 56 Ang ela further said in her written statement that Ba rb Stone from the State’s Attorney ’s office called her about J ames’s upcoming trial. When Stone called, Ang ela told her about the letter she g ave to Huber

t. After that, Detec tive C o ne called about the letter. At that time, Ang ela pr ovided the August 2 written statement. ¶ 57 An gela further testified that she filed for divorce from J ames on November 15, 2001, based on mental and phy sical crue lty

. They wer e divorce d on J uly 11, 2002. Yea rs later, in 2008, Ang ela appea

red in court for a visitation hearing. Ang ela was ord er ed t o bring her oldest child, Ashley
, to the jail to visit J ames, which she did in October 2008. It was a “conta ct visit” in which she and J ames wer e seate d acr oss a table from eac h other, with other visiti ngfamilies in the room. Ashley was seated betwe en them. ¶ 58 Duringthe visit, J ames told Ang ela that he had a plan t o sign a n aff idavit taking e ntire responsibility for the crime so that defe ndant could g o fre e. J ames said that he and defe ndant had been corr esponding

. When Ang ela responde d that he should not be corr esponding with defe ndant, J ames continually told her to be quiet so that the guar ds would not hear

. J ames wanted defe ndant to “g et out” in order “to take car e of” L arr y

. Then, Ang ela would be “fr ee to come down there and be with him.” I f that did not work, then Ang ela would be taken car e of as well, and J ames would have their children to himself. J ames said this in front of Ashley
, but in a voice soft enough that the guards could not hear him. At the next court date, Ang ela advised the j udg e about what J ames said. In addition, Ashley told her guardia n ad litem
, Kimberly Timmerwilke, but nothing w as done. ¶ 59 At t h i s p o int in Ang ela’ s testimony
, defe nse counsel objected and asked that Ang ela’ s testimony be stricken. Acc ording to defe nse counsel, he nev er rec eived notice of: (1) Ang ela’ s August 2001 writ t en s t at ement; (2) Ang ela’ s statements in court about J ames’s threats; or (3) Ashley ’s conver sation with Timmerwilke. The State explained that Ang ela’ s August 2001 written statement was not part of defe ndant’s file but was part of the file in the

case ag ainst Hubert. In addition, there w as no transcript of the visitation hearingin which 2 Ang ela advised the court that J ames had threatened her in the jail. The court denied defe nse

Huber t was cha rged wit h har ass ing a w i t nes s for con ta ct ing Angela. Angela’ s wri tt en 2
st at ement was pr epa re d i n co nj unc ti on wi th tha t i nvest igati on.

-12-counsel’s reque st to strike Ang ela’ s testimony

. Howeve r, the court continued the case so that

counsel could put his motions in writing

. Def ense counsel indicated that he wanted to speak with Ashley , Stone, and Timmerwilke. ¶ 60 At the next cour t date, the parties advised the court that there wer e no transcripts of the hearing in which Ang ela repor ted J ames’s th re at s. In addition, the court was advised that Timmerwilke had written a letter to J ames’s attorney , dated November 11, 2008. The State had provided Timmerwilke’s letter to defe nse counsel. Timmerwilke’s letter stated that she
met with Ashley and Ang ela on November 6, 2008. During that meeting
, Ashley stated that “her fathe r [J ames] threatened to kill her step-father [L arr y ] so that her mom [Ange la] would

come back to he r fathe r [J ames] a nd if that did not work, he [J ames] would kill her mother [Ange la] and then he [J ames] would have the two children all to himself.” The letter further stated that Ang ela “conf

irmed the events at the jail.” Def ense counsel advised the court that Timmerwilke ref

used to speak with him, so he rele ased her from a subpoena. In ad d i t i o n , defe nse counsel advis ed t h e court that he had spoken with Ashley

. Def ense counsel ag ain moved to strike ce rtain portions of Ang ela’ s testimony , and the c ourt denied this motion. ¶ 61 The que stioning of Ang ela resumed. Ang ela testified that she told Timm erw ilke of her visit with J ames at t h e jail and his plan to sign an aff idavit taking the entire blame for Cornell’s murder so that defe ndant could g o fre e and kill L arr y

. Ashley communicated this same infor

mation to Timm erw ilke. ¶ 62 On cross-e x amination, Ang ela testified that she wrote the J uly 26, 2001, letter in hopes of rec eiving the Bla zer or money from defe ndant’s family
, and also beca use she felt threatened. She c ould not remember if Huber t told her what to say

in the letter.

¶ 63 3. Detec tive Br uno ¶ 64 Detec tive Eric B runo testified reg arding his O ctober 4, 2000, interview of J ames at the police station a fter Cornell’s death. At first, J ames did not want to g ive a written statement beca use he said he could hear defe ndant being interviewe d in another room. The police asked J ames if he wanted t o see defenda nt, and both defen d an t an d J am es were broug ht into the hall. The two looked at eac h other for a few m oments but d i d not speak. After that, J ames provided a written statement. Detec tive Br uno ty ped as J ames “wa s g oing throug h the story ,” and then he handed J ames a printed version. J ames made a couple of corr ections, which he initialed befor e signing the written statement. Nothing was added to the statement; it was in J ames’s words. During the interview, J ames asked for food, drinks, cig are ttes, and a bathroom bre ak. All of this was g iven to him. ¶ 65 On cr oss-examination, Detective B runo t estified that J ames had been in custody about seven hour s when he provided the state ment.

¶ 66 4. Rebuttal Wi tnesses ¶ 67 On rebuttal, J ames admitted that Ang ela and Ashley visited him in jail in October 2008. Howeve r, J ames denied telling Ang ela and Ashley that he p l anned to write an aff idavit taking all responsibility for the crime, ge t defe ndant out of prison, and have defenda nt kill

-13-L arr y

. J ames admitted telling Ang ela “a long time ag o that [he] did sign an aff idavit.” In the aff idavit, dated Dece mber 3, 2002, J ames took full re sponsibili ty for the crime and denied
any involvement by

defe ndant. ¶ 68 Huber

t was also called as a rebuttal witness. After defen d an t ’s t ri al
, An gel a called defe ndant’s mother, Mattie, who then called Huber t. After that, the family t al k ed to defe ndant’s “postconvicti on attorney ,” who came to Mattie’s house. The attorney g ave Huber t authorization to talk to Ang ela, beca use it wa s afte r defe ndant’s trial. A couple of day s later, Ang ela called Hubert to tell him that she would be si gning a l etter an d to come pick it up. Ang ela knew Huber t throug h his g odsister, Kylas Glaze, wh o wa s a friend of Ang ela’ s. Huber

t then went to Ang ela’ s house early in the morning
, picked up the letter, and
g ave it to defe ndant’s attorney

. Huber t denied threatening Ang ela to write the letter, though he wa s later c harg ed with hara ssing a witness. He also denied offer ing Ang ela a bribe of a Bla zer or money to write the letter. Huber t pled guilty to the hara ssment c harg e beca use he

was on parole
, which resulted in him being arr ested and “locke d up.” Huber t admitted having prior convic tions of drugoffe nses and be ing on pa role for arme d robber

y

. ¶ 69 Mattie testified last. Mattie spoke twice with Ang ela on the phone and asked Ang ela to write a letter on defenda

nt’s behalf

. Mattie asked Ang ela to wr ite a letter beca use Mattie’s
g oddaughter, who watche d Ang ela’ s children, told Mattie that Ang ela was not her “norma l self” during defe ndant’s trial and that Ang ela had said that she had been “thre atene d” about losing her children if she did not testify

. Ang ela told Mattie that she would do what she could
to help defendant. The idea of having Ang el a p re p ar e a letter came from the attorney who visited Mattie’s house and whom the family considere d hiring on defe ndant’s behalf

. They did not end up hiring the attorney , beca use he was too expensive; Mattie could not reme mber his name. Mattie never threatened Ang ela or offe red to g ive her a Bla zer or money ; she was not financia lly

able to do so. ¶ 70 T h e t ri al co urt d en i ed d ef en d ant’s postconviction petition on J uly 1, 2011. In it s memorandum of decision, the court made numerous finding s. Reg arding Ang ela, the court found as follows. Ang ela’ s testimony at defe ndant’s trial was “consistent and cre dible”; her letter/af fidavit subsequent to her trial testimony was “n o t cr ed ible”; her testimony at the evidentiar y hearing was “cr edible and consistent in that she was induced or influence d to sign the aff idavit, based on her belief that she would be reta liated ag ainst if she didn’t sign the aff idavit e x culpating ” defe ndant, but that the aff idavit was “untrue ”; and at the evidentiar y hearing “her manner and demea nor while testify

i ng was sincere
, plausible and cre dible.” Conversely
, the court found J ames’s “testi m o n y i n t h is cause to be entirely incre dible in

ever y respe ct.” Acc ording to the court, the “conte nt” of J ames’s testimony was “incr edible” and his “manne r while testifying lacke d cre dibilit y .” The court found that the “seque nce of
events purportedly underlying J ame s Ha ck l er’ s coming forwa rd and g iving testimony to

ex cu l pate” defe ndant was “entire ly incre dible.” Specifica lly
, the court found that J ames’s testimony was “ illogica l and improbable in light of all the other e vidence in the case ,” and the n ew l y discovere d evidenc e of actua l innocenc e was “entire ly improbable, implausible and incr edible in eve ry

respe ct.” ¶ 71 Def

endant timely

appea led.

-14-¶ 72 I I . ANALYSI S

¶ 73 Def

endant makes two arguments as to why the trial court err ed by not granting him a new trial afte r the third-stag e evidentiar y hearing. First, he argues that the trial court usurped the role of the jury in f

inding that J ames’s testimony was incre dible. Second, defe ndant argues that, even if the trial court properly assessed J ames’s cre dibilit y , its denial of a new trial was manifestly err oneous beca use J ames’s testimony was not materia lly impeache d by the State. ¶ 74 Under the Post-Convi ction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq. (West 2004)), individuals convicted of criminal off en s es may challeng e their convictions based on constitutional violations. People v. Domagala
, 2013 I L 1136 8 8
, ¶ 3 2

. Su c h violations include fre estan d i n g cl aims of actua l innocenc e, based on newly discovere d evidenc e. People v. Brown
, 2013 I L App (1st) 091009, ¶ 50. The Act provides a three -stag e proce ss for adjudication of postconviction petitions ( People v. English
, 2013 I L 112890, ¶ 23), and, here
, this court rema

nded the case for a third-stag e evidentiar y hearing on defe ndant’s claim of
actua l innocenc e (see Carter
, No. 2-06-1012)

. At a third-stage ev i dentiary hearing, “the circ uit court serves as the fact finder, and, t here fore
, it is the court’s function to deter mine witness cre dibility , decide the weight to be given testim ony and evidence, and re solve any evidentiar y conflicts.” Domagal

a , 2 0 1 3 I L 113688, ¶ 34. “Af ter an evidentiar

y hearing wher e fac t-finding and cre dibilit y deter minations are involved, the circ uit court’s decision will not be re verse d unless it is m anife stly err oneous.” English , 2013 I L112890, ¶ 23. ¶ 75 For new evidenc e to war rant a new trial, the eviden ce m u s t : (1) be of such conc lusive char acte r that it will probably chang e the result on retria l; (2) be materia l to t h e i s s u e, not

mere ly cumulative; and (3) have been discovere d since trial and be of such char acte r that the defe ndant in the exercise of due diligenc e could not have discovere d it ear lier. Brown
, 2013 I L App (1st) 091009, ¶ 50. New evidenc e need not n ec es s ar ily establish the defe ndant’s innocenc e. People v. Gonzalez
, 407 I ll. App. 3d 1 0 2 6
, 1 0 3 4 (2 0 11). I nstead, a new trial is

war ran t ed if all of the fac ts and surrounding circ umstances, including the new evidenc e,

war rant closer scrutiny to deter mine the guilt or innocenc e of the defe ndant. Id. Requests for

a new trial based on newly discovere d evidenc e are not looked upon with favor by the courts and must be closely

scrutinized. Id. ¶ 76 At the outset, we note that well -e s t ab l i s h ed ca s e l aw ru n s counter to defe ndant’s
argument that the trial court should not have independe ntl y d et ermined that J ames’s testimony was not cre dible (and t h at An g ela’ s testimony was). In third-stag e evidentiar y hearings, as our supreme court has noted, issues can in v o l v e eit her cre dibility and fac tual deter minations or pure questions of law, wher e no new evidenc e is prese nted. See English
, 2013 I L 112890, ¶ 23; People v. Beaman
, 229 I ll. 2d 56, 72 (2008). The standard of revie w to be applied depends on the nature of the issue prese nted: cre dibi l i t y an d fac tual deter minations will not be reve rsed unless they are manifestly err oneous, and pure questions of law a re r eviewe d de novo

. English , 2013 I L 112890, ¶ 23; Beaman , 229 I ll. 2d at 72. ¶ 77 The purpose of the third-stag e evidentiar y hearing in this case was to deter mine whether the new evidenc e was of such conclusive char acte r that it would probably chang e the result

on retria l. In order t o m ak e t h i s deter mination, the trial court was require d to assess the

-15-cre dibilit y of J ames and the other witnesses. Our supreme court has descr ibed the role of the

tri al court as follows: “the circ uit court serve s as the fac t finder, and, there fore
, it is the court’s function to deter

mine witness cre dibilit y , decide the weight to be g iven testimony and evidenc e, and resolve any evidentiar y conflicts.” Domagala
, 2013 I L 113688, ¶ 34; see also Gonzalez
, 407 I ll. App. 3d at 1036 (“Cre dibility deter minations such as this [at a third-stag e evidentiar y hearing] are proper ly made by the trier of fac t, and we have no basis in the rec ord for second- guessing the trial court’s judgme nt.”). There fore
, we disag ree that the trial court somehow exceede d its bounds by discrediting J ames’s testimony and cred i t i n g Ang ela’ s testimony

. Indeed, the trial court’s role, in deter mining whether defe ndant was entitled to a

new trial afte r the evidentiar y hearing, was to weigh the witnesses’ testimony
, make

cre dibilit y

deter minations, and resolve c onflicts in the evidenc e. ¶ 78 In support o f h i s p o s i t i o n that the court should not have itself deter mined J ames’s

cre dibilit y , defe ndant relies on three case s: People v . Ortiz , 235 I ll. 2d 319 (2009); People

v. Molstad
, 101 I ll. 2d 128 (1984); and People v. W ashington
, 256 I ll. App. 3d 445 (1993), aff’d
, 171 I ll. 2d 475 (1996). Under these case s, defe ndant argues, t he tr i al co urt ’s t ask, at most, was to make “a prelimi nary deter mination of whether a rea sonable fact-f inder could believe” J ames at a new trial. We disag ree and discuss ea ch ca se in turn. ¶ 79 In Ortiz
, the defe ndant raised a claim of actua l innocenc e in a succe ssive postconviction petition. The newly discov ered evidenc e consisted of an eyewitness, Her nandez, coming forwa rd 10 y ear s after

the incident and de nying that the defe ndant had a ny thing to do with the beating or shooting of the victim. Ortiz
, 235 I ll. 2d at 326. The trial court g rante d a thirdstag e evidentiar

y hearing but then de termined that He rnande z’s testim ony was insufficient
to war ran t a n ew t ri al. Id. at 327. The trial court made no finding s reg arding Her nandez’s

cre dibilit y but mere ly found that his tes t i mony was cumulative of that of two other
eyewitnesses. Id. at 334-35. The two eyewitnesses had g iven statements to police 3 implicating the defe ndant in the incident and then rec anted those statements. Id. at 323-34. The supreme court deter

mined that the trial court’s finding that Her nandez’s testimony was cumulative of the testimony in which the tw o eyewitnesses rec anted their statements was manifestly

err oneous. Id. at 336. The court rea soned t hat “[ t] he fact finder will be char g ed with determiningthe cr edibility of the witnesse s in light of the newly discovere d evidenc e and with balanc ing the conflictingeyewitness ac counts.” Id. at 337. ¶ 80 Whil e defe ndant cites Or t i z fo r t h e p ro p o s i t i o n that “it is not the function of a postconviction court to make the ultimate deter mination of a defe ndant’s guilt or innocenc e; t h at function is for the finder of fac t at a new trial,” this is not a fair rea ding of Or t i z

. I n Ortiz
, t h e t ri al court denied the defe ndant a new trial on the sole basis that Her nandez’s testimony was cumulative; the court did not make a cre dibilit y deter mination as to whether it was of such conclusive char acte r that it would probably chang e the result on retria l (the
prong of the test for a new trial at issue here ). There fore
, to rea d Ortiz as a restric tion on the trial court’s ability to make cre dibilit y deter minations or resolve conflictin g t es t i m ony is

As st at ed abo ve, whet h e r new eviden ce is cumulat ive is one of the pro ngs of the te st for 3 grant ing a n ew tri al

.
-16-inacc urate

. Though the trial court could have assessed Her nandez’s cre dibilit y , as stated, it denied the de fenda

nt a new trial on the basis that his testimony was c umulative. ¶ 81 T h e s ec o n d ca s e relied on by defe ndant, Molstad
, did not involve a postconvict i o n petition (or third-stag e evidentiar y hearing) but rathe r a posttrial motion befor e sentenc ing. At the def

endant’ s trial for ag g ravated battery and criminal dama g e to the victim’s ca r, the victim’s g irlfriend testified that she saw the defe ndant striking the back window of the car

. Molstad
, 101 I ll. 2d at 13 1

. P ri o r to sentenc ing, the defe ndant’s attorney filed a posttrial motion to either reopen th e ca s e or obtain a new trial based on the affidavits of five of t he defe ndant’s codefe ndants stating that the defe ndant had not bee n prese nt at the time of t he attack. Id. at 132. The trial court denie d that motion without conducting an evidentiar y hearing. See People v. Molstad
, 112 I ll. App. 3d 819, 821 (1983) (appe llate court explaining
proce dural history of case ). The supreme court held that the trial court abused its discretion by deny ing the defe ndant’s motion for a new trial to consider the newly discovere d evidenc e. Molstad , 101 I ll. 2d at 136-37. W ith respec t to the new evide nce, the supreme c ourt stated
t h at “this does not mean that [t he defe ndant] is innocent, mere ly that all of the fact s an d surrounding circ umstances, including the testimony of the codef endan t s , s hould be scrutinized more closely

to determine the guilt or innocence ” of the defe ndant. Id. at 136. ¶ 82 Def

endant argues that the above- quoted statement in Molstad is consistent with the final
prong of the test for g ranting a new trial, which is that the evidenc e m u s t be of such conclusive char ac ter that it will probably chang e the result on retria l. Whil e defe ndant’s
statement is corr ect, there is nothing in Molstad limit ing the trial court’s ability to assess witnesses’ cre dibilit y or resolve conflicting testimony in making this deter mination. In other words, the trial court may assess the cre dibilit y of new witnesses or conflicting witnesses to deter mine whether the new evidenc e is of such co n cl u s ive char acte r that it will probably chang e the result on retria l. Ag ain, the trial court in Molstad did not mak e cr ed i b ility assessments (it did not even conduct an evi d en t iary hearing)
, not beca use i t could not
, but beca use it so chose. ¶ 83 L ast, in W

ashington
, the defe ndant filed a postconviction peti t i o n b ased in part on the testimony of a witness named Ma

rtin who implicated someone othe r than the de fenda nt in the murder of the victim. W ashington
, 256 I ll. App. 3d at 446. The court co n du cted an evidentiar y hearing and gra

nted t he defenda

nt a new t rial on the basis of t his evidenc e. Id. at 447. The appellate court affirmed, stating t hat, although t he trial court was not required
to make an initial deter mination of Martin’s cre dibility befor e d ec i ding whether her testimon y wa s o f such conclusive char acte r t o probably chang e the result on retria l, as t he State urg ed, it was “cle ar that the court found Martin cre dible for sever al rea sons.” Id. at 448. Once ag ain, nothing in W ashington bars a

trial court f

rom assessinga witness’s c redibility

or resolving conflicts in the evidenc e in deter mining whether a defe ndant is entitled to a new trial. ¶ 84 Reg arding cre dibilit y deter minations at a third-stag e evidentiary h ea ri n g, this court’s decision in Gonzalez is instructive. There
, the defe ndant also claimed that the trial court err ed b y d en y i n g h i m a new trial afte r an evidentiar y hearing on his claim of actua l innocenc e. Gonzalez
, 407 I ll. App. 3d at 1026-27. In denying the defe ndant’s motion for a new trial, the trial court found the new witness’s testimony incre dible and “ ‘worthless.’ ” Id. at 1035. This

-17-court distinguished Molstad on this basis, noting that, unlike the trial court in Molstad
, which

did not assess the new witnesses’ cre dibilit y , the trial court in Gonzalez did assess the new witness’s cre dibilit y

. Id. Citi n g Mo lstad
, this court rea soned that, althoug h new evidenc e need not nece ssarily establish the defe ndant’s innocenc e, it must establish a basis for closer scrutiny of the defe ndant’s guilt. Id. at 1036 (citing Molstad
, 101 I ll. 2d at 136). Be cause the

new witness’s testimony had not met that bar, howeve r, the trial court’s decision finding that the new e vidence did not warra nt a new tr ial was not manife stly err oneous. Id. ¶ 85 For all of these rea sons, we reje ct defe ndant’s argument that the trial court oversteppe d its role b y i n d ep endently assessing the cre dibilit y of J ames and the other witnesses and deter mining that def

endant wa s not entitled to a new trial. ¶ 86 De fe n d an t ’s s ec o n d (a n d l ast ) argument on appea l is that the trial court’s de cision denying him a ne w trial wa s manifestly err oneous. Specific ally , defe ndant first ar gues t hat the State failed to impeach J ames in any meaning ful manner and that he wrote the aff idavit 15 months a fter his guilty plea, whic h was a “perilous time” when the appea ls of his guilty plea we re pe nding. ¶ 87 As we stated in response to defe ndant’s first arg ument , i t wa s up to the trial court to

assess the witnesses’s cre dibility and resolve conflicts in the evidenc e. Thoug h J ames did not testify at defe ndant’s trial, he did provide a written statement to police shortly after the incident, on October 4, 2000. Howeve r, J ames’s t es t imony at the third-stag e evidentiar y hearing completely contra dicted his written statement, causing the trial court to resolve this conflict and weigh the statement ag ainst his testimony

. See People v. Jones
, 2012 I L App (1st) 093180, ¶ 63 (g ener ally
, a witness’s rec ant ati on of his or her testimony is viewed as inhere ntly unreliable ). In doing so, the trial court found that J ames’s testimony was “entire ly incre dible in ever

y respe ct,” a

nd that “his manner

while testifying la cked c redibility .” ¶ 88 The trial court’s credibility deter mination wa s s up ported by the evidence presented by the State, which, contra

ry to defe ndant’s asser

tion, did impeach J ames’s testimony reg arding why his October 2000 statement was not tru e. In contra st to J ames’s testimony that police added information to his October 2000 statement, kept him in a small room for 16 hours, and denied h i m food and drink, Detec tive Br uno testified that defe ndant was provided food, drinks, cig are ttes, and a bathroom brea k. In addition, Detec tive Br uno testified that nothing

was a dded to J ames’s state ment, which James initi aled a nd signe d. ¶ 89 Moreove r, althoug h J ames said t h at he wrote the aff idavit when he was appea ling his
guilty plea, and thus had something to lose, by the time of the third-stag e evidentiar y hear ing J ames’s appea ls had been resolved, and he had nothing (leg ally ) at stake. More importantly
, the trial court did not find cre dible J ames’s rea son for coming forward an d writ ing the aff idavit. Although J ames testifie d that he came forwar d beca use he was “caught” and “in prison” and was now try

ing to do the rig ht thing, the trial court found the “seque nce of events purportedly

underlying”J ames’s de cision to come for war d “entire ly

incre dible.” ¶ 90 In addition, also contra ry to defe ndant’s asser

tion, the State offe red Ang ela’ s testimony
to impeach J ames a s to his real motivation for coming forwa rd. Ange la t estified that, afte r she and J ames divo rc ed i n 2 0 0 2
, s he was order ed in 2008 to visit J ames at the jail with Ashley

. At the visit, James told Ang ela that he had been in c ontact with defe ndant and that

-18-he wanted defe ndant to be rele ased from prison so that he could “take car e of” L arr y

. Then, Ang ela would be “fr ee to c ome down ther e and be with him.” I f t hat di d not work, Ang ela would be take n car e of a s well, and James would have the children to himself. ¶ 91 R ega rd i n g An gela’ s testimony
, defe ndant argues that her testimony as to J am es ’s motivation for coming forwa rd was “fa ci al l y incre dible” and not supported by Timmerwilke’s letter to J ames’s attorney , and he p o i nts out that this court noted that her testimony at trial had be en strong ly impeache d by

the def ense. ¶ 92 Be g inning wi t h T i m m er wi l ke’s letter to J ames’s attorney , defe ndant is incorre ct in
arguing that it did not support Ang ela’ s testimony

. Consist ent with Ang ela’ s testimony at the hearing, T immerwilke’s letter, which is part of the record, state d that she met with Ashley and Ang ela afte r their visit with J ames at the jail. During that meeting
, Ashley stated that J ames had threatened to kill L arr y and said that, if that plan did not work, then he would kill An g ela so that he could have both children to himself. The letter further stated th at Timmerwilke met with Ang ela, who confirme d Ashley ’s acc ount of what transpire d during the visit at the jail. ¶ 93 T i m m er wi l k e’ s letter lends cre dibilit y to Ang ela’ s tes t i m o n y re gar d i n g J am es ’s motivation for taking all the blame for Cornell’s death. Thoug h Timmerwilke’s letter did not mention that J ames s ai d that defe ndant would kill L arr y , the letter was consistent with J ames’s overa ll plan to g et defe ndant out of prison so that he could “take car e” of L arr y and fre e up Ang ela to be with him. In addition, Ang ela testified that she told Timmerwilke that J ames’s plan was to g et defe ndant out of jail so that he could kill L arr y

. As previously stated, it was up to the trial court to assess Ang ela’ s cre dibilit y at the evidentiar y hearing. The court found her testimony cre dible and consistent and her demea nor s i n ce re , plausible, and

cre dible. See Gonzalez
, 407 I ll. App. 3d at 1035 (cr edibility deter minations at a third-stag e evidentiar y hearing are proper ly made by the trier of fac t, and we have no basis in the rec ord for se cond-guessingthe trial cour t’s judgme nt). ¶ 94 The trial court also deter mined that Ang e la ’ s te s ti mo n y at defe ndant’s trial was c onsistent and cre dible. In rea ching this conclusion, the court considere d Ang ela ’s t es timony at the third-stag e evidentiary hearing in r elation to her te stimony at def endant’ s trial. At the time of the ev i d enti ary hearing, Ang ela had divorce d J ames and been sober for four y ear s. The evidentiar y hearing oc curr ed 10 year s after the incident, and with the exception of the Jul y 26, 2001, letter that she wrote afte r sh e was threatened by Huber t, Ang ela never denied defe ndant’s involvement in the incident. The court was persua ded that Ang ela was induced

or influence d to sign the J uly 26, 2001, letter, based on her fea r of reta liation by Huber

t. I n addition, Ang ela’ s August 2, 2001, written statement to police explained why she wrote the J uly 26, 2001, letter a

nd supported that her

testimony

at def endant’ s trial was true

. ¶ 95 At defe ndant’s trial, Ang ela tes t i fi ed th at , af t er t h e i n cident, during J ames’s a nd defe ndant’s dis cussion of what happene d, defe ndant admit ted hi tting C ornell wit h his gun and firing a couple of shots at him. James a lso a dmitted f iring a couple of shots at Corne ll. At the evidentiar

y hearing, Ang ela testified that, even though she was awa re that J ames killed Cornell, defe ndant “wa s there ” and “had s o mething to do with it.” Ba sed on Ang ela’ s testimony at defe ndant’s trial, her August 2, 2001, written statement to police, her testimony

-19-at t he evidentiary hearing, and Ti mmerwilke’s letter, the trial c ourt’s cr edibility finding as

to Ang ela wa s not manifestly err oneous. ¶ 96 Finally
, defe ndant argues that t he same trial court did not preside over his trial and his postconviction proce eding s. Whil e it is pref era ble to have the same court preside over both
proce eding s, the court in this case considere d the trial transcripts and was able to assess the witnesses’ credibility at t he evidentiary hearing. For the rea sons stated, we cannot say that the court’s decision denying defe ndant a new trial on the basis o f t h e n ewly discovere d evidenc e wa s manifestly

err oneous.

¶ 97 I I I . CONCLUSI ON ¶ 98 For the fore g oing rea sons, the judgme nt of the Winnebag o C o u n t y ci rc u i t co u rt is aff irmed.

¶ 99 Affir

med.

-20-