Illinois Official Reports 

Appellate Court

People v. Carter, 2017 IL App (1st) 151297

Appellate Court 

Caption

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

HOWARD CARTER, Defendant-Appellant.

District & No. First District, Fourth Division 

Docket No. 1-15-1297

Filed December 28, 2017

Decision Under 

Review

Appeal from the Circuit Court of Cook County, No. 95-CR-31813; the 

Hon. Mary Margaret Brosnahan, Judge, presiding.

Judgment Affirmed.

Counsel on

Appeal

Michael J. Pelletier, Patricia Mysza, and Maria A. Harrigan, of State 

Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, 

John E. Nowak, and Heather Fahrenkrog, Assistant State’s Attorneys, 

of counsel), for the People.

Panel JUSTICE GORDON delivered the judgment of the court, with 

opinion.

Justices McBride and Ellis concurred in the judgment and opinion.
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 OPINION 

¶ 1 Defendant Howard Carter appeals the third-stage dismissal of his postconviction petition. 

¶ 2 Following a bench trial, defendant was convicted of two counts of first-degree murder, one 

count of attempted murder, and one count of aggravated discharge of a firearm. After hearing 

factors in aggravation and mitigation, the trial court sentenced defendant to a term of natural 

life imprisonment in the Illinois Department of Corrections (IDOC) for the two murder 

convictions and to a consecutive sentence of 15 years’ imprisonment for attempted murder. On 

March 11, 2002, we affirmed defendant’s convictions but modified his 15-year sentence to run 

concurrently with his life sentence, rather than consecutively. People v. Carter, No. 1-99-2230 

(2002) (unpublished order under to Illinois Supreme Court Rule 23). 

¶ 3 Defendant then filed a pro se petition for postconviction relief, alleging multiple claims of 

ineffective assistance of trial counsel. Defendant’s postconviction petition proceeded to a 

second-stage review where court-appointed counsel filed (1) an amended petition, claiming 

that he is actually innocent and that his trial counsel was ineffective by preventing him from 

testifying at trial and (2) affidavits from two eyewitnesses who swore that defendant was not 

present at the time of the shooting and that someone else had shot the victims. The trial court 

dismissed the petition, finding that it was untimely, that it was not meritorious, and that 

defendant forfeited the issue regarding his right to testify. On appeal, we reversed the trial 

court’s second-stage dismissal and remanded for a third-stage evidentiary hearing on 

defendant’s claim of actual innocence. People v. Carter, 2013 IL App (1st) 110046-U. On 

remand, the trial court heard new testimony and determined that the newly discovered 

evidence would not change the result on retrial. 

¶ 4 On this appeal, defendant claims that the trial court erred and that he is entitled to a new 

trial because the newly discovered testimony of Antonio McDowell and Vaughn Peters 

implicates another man in the shooting, and thus would likely change the result on retrial. For 

the following reasons, we affirm. 

¶ 5 BACKGROUND 

¶ 6 At trial, the State argued in its opening that, on October 22, 1995, defendant raised a gun 

and fired multiple shots into a vehicle, killing two of the three occupants. The deceased were 

Devol Scott and Patrick Davis. The third occupant was Allen Williams. During its opening 

statement, the defense claimed that defendant did not shoot the victims and that he was 

incapable of firing a gun due to a hand injury. At trial, the State presented 10 witnesses, 

including the surviving victim, who identified defendant as the shooter. The trial court asked 

defendant whether he knew he had a right to testify and whether he was choosing to exercise 

his right not to testify, and defendant answered affirmatively. In his postconviction petition, 

defendant claimed that his trial counsel prevented him from testifying and that he is actually 

innocent. He supported his claims with the affidavits of two eyewitnesses who also were not 

called to testify at trial. 

¶ 7 I. Kenneth Beecham’s Testimony at Trial

¶ 8 At trial, the State called Kenneth Beecham, who testified that he is a former member of the 

Undertaker Vice Lords street gang. In October 1995, he had been a member of the gang for 
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four years and had achieved the rank of “Prince,” which is the second-in-command to the 

“Chief.” The gang was divided into two factions, separated by age, with the “Fifth Generation” 

consisting of members in their mid-20s to 30 years old and the “Sixth Generation” composed 

of members under the age of 21. Beecham was a member of the Sixth Generation. Devol Scott, 

Beecham’s cousin and best friend, was the chief of the Sixth Generation. 

¶ 9 Beecham testified that the Fifth and Sixth Generations were “at war” with each other. 

Defendant, known as “Duck,” was the chief of the Fifth Generation, but defendant did not bear 

any ill-will against Beecham. Despite the feud between the two generations, defendant and 

Scott remained friends and met with each other daily. Defendant frequently spent time near the 

intersection of Ferdinand Street and Lockwood Avenue in Chicago. 

¶ 10 Beecham testified that, in May 1995, defendant was shot multiple times, including in his 

right hand, and that defendant blamed members of the Sixth Generation for the shooting. After 

defendant was released from the hospital, he had to exercise his hand until he regained 

strength, though he was able to shake hands normally. Neither Beecham nor Scott ordered the 

shooting of defendant. On October 17, 1995, defendant told Beecham that a man known as 

“Mike-Mike” was the person that had shot him. Mike-Mike, a member of the Sixth Generation, 

was a friend of both Beecham and Scott. 

¶ 11 Beecham testified that, on October 21, 1995, he was accompanied by Allen Williams and 

Scott at the home of Patrick Davis. At the time, Allen Williams was a prince of the Fifth 

Generation, and Patrick Davis was a member of another gang, the “Gangster Disciples.” While 

they were visiting, the three men spoke with defendant, who asked them if they were going to 

take his side in the dispute with the members of the Sixth Generation. Scott replied that he had 

nothing to do with defendant’s feud, and defendant responded that he was going to kill the 

Sixth Generation. Defendant asked the three men to help him seek revenge on Mike-Mike, but 

they refused and then left. 

¶ 12 On October 22, 1995, Beecham spent the day with Williams and Scott. Around 7 p.m., they 

drove to the west side of Chicago and dropped off Beecham at his girlfriend’s residence. He 

later learned that Scott had been shot to death. On October 24, 1995, Beecham and Williams 

went to the police station to talk with the police. The next day, Beecham became employed and 

told his fellow gang members that he quit the gang. 

¶ 13 II. Allen Williams’s Testimony 

¶ 14 Allen Williams, the attempted murder victim, testified that he had been a member of the 

Undertaker Vice Lords for 13 years. The gang was divided into generational factions separated 

by age. Williams belonged to the Fifth Generation, which consisted of members between the 

ages of 20 and 25. Williams had obtained the rank of prince in the Fifth Generation, just below 

the rank of “King.” Defendant, known as “Chief Duck,” was the leader of the Fifth Generation. 

Paul Carter, also known as “Weasel,” was defendant’s brother and a member of the Fifth 

Generation. Williams’s half-brother and friend, Devol Scott, was the king of the Sixth 

Generation. Kenneth Beecham was a friend of Williams and the prince of the Sixth 

Generation. Patrick Davis, also a friend of Williams, was a member of another gang, the 

Gangster Disciples. Williams did not know Tyrone Randolph.1

 

1Randolph initially told the police and testified before a grand jury that he was an eyewitness to the 

murders, but recanted at trial. 
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¶ 15 Williams testified that defendant had a personal feud with a man known as Mike-Mike, a 

member of the Sixth Generation, who had shot defendant in the hand. Defendant wanted 

revenge against Mike-Mike and felt that the Sixth Generation gang was responsible for the 

shooting. Williams had heard defendant state on a previous occasion that he was going to kill 

members of the Sixth Generation. Though members of the Fifth and Sixth Generations had 

been fighting with each other, other members of the Sixth Generation were not involved in the 

dispute with defendant. 

¶ 16 Williams testified that, on October 21, 1995, he, Scott, and Beecham visited Davis’s home. 

The three approached defendant, who was also visiting, and defendant asked them if they were 

going to help him seek revenge against the Sixth Generation members that were involved in his 

shooting. Scott replied that he, Williams, and Beecham were not involved in defendant’s feud. 

In response, defendant shook his head and said, “Alright, that’s cool.”

¶ 17 Williams testified that, at 8 p.m. the next day, he and Scott were in their neighborhood near 

Cicero Avenue and Quincy Street in Chicago, when they learned that defendant’s brother had 

been shot and killed. Scott drove them in Williams’s mother’s vehicle to pick up Davis at his 

home. Davis entered the vehicle and sat in the backseat. The three men wanted to offer their 

condolences to defendant in light of his brother’s death, so Scott drove them to the intersection 

of Ferdinand Street and Lockwood Avenue, where they encountered a man called “Romy,” a 

member of the Fifth Generation gang. Williams asked Romy where they could find defendant, 

and Romy pointed them to an area in the middle of the block. As Scott drove drown Ferdinand 

Street, Williams observed defendant standing near the street with five or six fellow gang 

members. 

¶ 18 Williams testified that Scott drove within 15 feet of defendant, who then raised a 

9-millimeter pistol and opened fire on the vehicle. Williams ducked in the passenger’s seat and 

heard several gunshots as Scott drove away from defendant. After a short distance, the vehicle 

crashed into the back of a van and came to a stop. When Williams attempted to pull Scott to the 

floor of the vehicle and into his lap, he observed bullet holes in Scott’s head and neck. As 

Williams attempted to exit the vehicle, he heard several more shots being fired into the 

passenger-side door and window, so he shielded himself underneath the dashboard. Once the 

gunfire stopped, three men pulled Williams from the vehicle and told him that the gunman was 

gone. The shooting took place over a span of four to six minutes, and more than 10 gunshots 

were fired. The police arrived at the scene two minutes after the shooting stopped. Williams 

refused to talk to the police at first because he felt betrayed and angry and wanted to personally 

seek revenge on defendant. 

¶ 19 Williams testified that two days after the shooting, he decided that the right thing to do was 

to talk to the police, so he and Beecham drove to the police station together. Williams told 

detectives that Scott was driving him and Davis on Laramie Avenue, when they observed 

defendant and several others standing near Ferdinand Street. Williams told Scott to drive the 

vehicle over to where the men were gathered. As the vehicle approached, defendant jumped 

back about two feet from the vehicle, raised a 9-millimeter gun, and fired several shots at the 

vehicle from a distance of 15 feet. 

¶ 20 III. Identification Testimony of Tyrone White and Patricia Scott 

¶ 21 Tyrone White testified that Patrick Davis was his cousin, and that he had last observed him 

alive on October 20, 1995. A few days later, White learned that his cousin was dead. Patricia 
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Scott testified that Devol Scott was her son, and that she had last observed him alive on 

October 22, 1995. Later that evening, the police told her that her son had died. 

¶ 22 IV. Detective Richard Maher’s Testimony

¶ 23 Detective Richard Maher testified that he is a detective with the Chicago police department 

and has been a policeman for 12 years. On October 22, 1995, he was assigned to investigate a 

homicide near the intersection of Quincy Street and Cicero Avenue in Chicago. The victim in 

that case was defendant’s brother, Paul Carter. Later that evening, Maher was assigned to 

investigate another homicide on the 5200 block of West Ferdinand Street. When Maher arrived 

at the crime scene at 9:10 p.m., he observed two ambulances, each containing one victim from 

the shooting. Maher identified one of the victims as Devol Scott. The other victim was 

identified the next day as Patrick Davis. Maher learned that a witness, Allen Williams, had 

been transported from the scene to the Area 5 Detective Division. 

¶ 24 Maher testified that he inspected the crime scene and found 11 spent shell casings and a 

bullet fragment from a 9-millimeter gun. Further down the street where a vehicle had crashed, 

he found seven additional 9-millimeter shell casings. He observed a bullet hole in the 

windshield of the vehicle, and all of the side windows except the front passenger-side had been 

shattered. Maher inspected the inside of the vehicle and found five fired bullets lodged into its 

interior. 

¶ 25 Maher testified that he interviewed Williams at the Area 5 Detective Division later that 

evening, and Williams told him that he did not observe who shot at the vehicle. On the morning 

of October 25, 1995, Williams returned to the police station, and Maher interviewed him a 

second time. Williams changed his story and told Maher that he did in fact observe the shooter, 

and identified him as a man known by the nickname “Duck.” Maher presented Williams with a 

photograph of defendant, and Williams identified defendant as the shooter. After he 

interviewed Williams, Maher drove to the Forest Park neighborhood in Chicago and arrested 

defendant. 

¶ 26 Maher testified that Detective Carothers told him that a man in custody, Tyrone Randolph, 

was an eyewitness to the shooting. Maher interviewed Randolph later that evening, and 

Randolph told him that he observed two men shooting at the vehicle and that one of the 

shooters was defendant. 

¶ 27 V. Officer Jackie Campbell’s Testimony

¶ 28 Officer Jackie Campbell testified that she was an officer in the Chicago police department. 

On the afternoon of October 24, 1995, the police arrested Tyrone Randolph for a drug offense 

and brought him to the Fifteenth District police station. As Randolph was sitting in an 

interview room, he called out to Campbell and told her that he had information about two 

murders. Randolph described the location of the shootings, and Campbell recognized the 

murders as the two that occurred on October 22, 1995. She told Randolph that she could not do 

anything for him, but that she would contact a detective to speak with him. She spoke with 

Detective Carothers and told him that there was a suspect in custody at the police station that 

claimed to have information about two murders. 
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¶ 29 VI. Detective Carothers’s Testimony

¶ 30 Detective Carothers testified that he has been a detective with the Chicago police 

department for three years and was assigned to investigate the murder of defendant’s brother. 

On October 24, 1995, Carothers received a telephone call from Campbell, and she told him that 

a man named Tyrone Randolph was in custody on a drug charge and that he claimed to have 

information about the shooting. Carothers told her that he would drive over to the police station 

to interview the suspect. 

¶ 31 Carothers testified that he arrived at the Fifteenth District police station to speak with 

Randolph later that evening. Randolph told him that he had information regarding the murder 

of defendant’s brother and that he was an eyewitness to the shooting deaths of Scott and Davis. 

Randolph asked Carothers if he could arrange a deal on his pending charges, but Carothers told 

him that he needed to hear the information first. Randolph then told Carothers that he had 

witnessed gunmen fatally shoot defendant’s brother, who Randolph knew as Weasel, in the 

west alley of Cicero Avenue near its intersection with Quincy Street. He also told Carothers 

that, later that night, he observed defendant, known as Duck, fire several shots at a vehicle near 

the intersection of Ferdinand Street and Lockwood Avenue. 

¶ 32 Carothers testified that, after this initial conversation, he took Randolph back to an 

interview room so he could provide a more thorough accounting of the events. Also present 

during the interview were Assistant State’s Attorney (ASA) James Sanford and Detective John 

McMurray, who was assigned to investigate the murder of defendant’s brother. As Randolph 

described the shootings in more detail, Carothers took notes and reported the information in a 

general progress report. He referred to Randolph as a confidential informant because Randolph 

was concerned that, as a high-ranking member of the “Mafia Insane” street gang, he could face 

retaliation for providing information to the police. 

¶ 33 Carothers testified that Randolph stated that, around 7 p.m. on October 22, 1995, he 

observed defendant’s brother running down the block of 210 South Cicero Avenue. A person 

following him raised a gun and shot at him. Another person appeared, and both offenders 

walked up to defendant’s brother and shot him numerous times as he lay on the ground. 

¶ 34 Carothers testified that Randolph told him that, after witnessing the murder, he went 

looking for defendant to find out if he had heard about his brother’s death. Randolph found 

defendant at the intersection of Ferdinand Street and Lockwood Avenue. Defendant was with 

several other black men, but the only person he recognized other than defendant was a man 

named “Von.” After he spoke with defendant, a vehicle pulled up to defendant, and Randolph 

heard him say, “I’m going to get those n***,” and “it’s going to get ugly now.” Defendant then 

raised a gun and fired numerous shots at the vehicle. Randolph did not describe the type of gun 

and said that he left the scene during the shooting. 

¶ 35 Carothers testified that Randolph promised that he would seek out additional information 

about the other shooting once he learned the names of the other men who were present at the 

scene. However, Randolph requested to be released first because he could not learn any new 

information while in custody. Carothers did not grant Randolph’s request, and Randolph then 

told him that he refused to provide any further information about either of the shootings. 

Randolph again asked for a deal on his pending charges, and Carothers told him that he could 

not discuss it. 
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¶ 36 VII. ASA Mike Goldberg’s Testimony

¶ 37 ASA Mike Goldberg2 testified that he and Carothers met with Randolph on October 25, 

1995. Goldberg gave Randolph Miranda warnings, and Randolph repeated the information he 

had about the two murders. Goldberg memorialized the information in a written statement and 

read the statement back to Randolph to make sure it was accurate, and all three men signed it. 

Randolph told Goldberg that the police treated him fine and that they did not threaten him to 

obtain the statement. 

¶ 38 VIII. ASA James Sanford’s Testimony

¶ 39 ASA James Sanford testified that he was assigned to Judge Dennis J. Porter’s courtroom in 

1996 and was the first chair for the homicide trial of defendant’s brother. The offenders in that 

case were Dante Branch and Alfonso Caldwell. Sanford was not assigned to defendant’s case, 

which was in Judge James D. Egan’s courtroom with a different ASA. Sanford learned from 

Detective Carothers’s general progress notes that a confidential informant had provided 

information about the murder of defendant’s brother. 

¶ 40 In the fall of 1996, the attorneys representing Branch and Caldwell filed a motion for the 

State to disclose the name of the confidential informant. Sanford then met with Carothers, who 

told him that Randolph was the informant. Sanford then arranged for an interview with 

Randolph, who was still in custody. Carothers and Detective John McMurray, who was 

assigned to investigate the Paul Carter homicide, were also present for the interview. 

¶ 41 Randolph repeated the same information regarding the murders that he had previously told 

to Carothers. Sanford had a limited discussion with Randolph about making a deal, and he 

offered to drop one of Randolph’s three pending drug cases in exchange for his testimony 

concerning the shooting death of defendant’s brother. No offer was made to Randolph to 

testify in defendant’s case. The interview ended abruptly when Sanford told Randolph that he 

could not drop the drug charge until after Randolph testified. 

¶ 42 Sanford later arranged a second meeting with Randolph in an attempt to convince him to 

accept his offer to drop the drug charge after Randolph testified. However, Randolph would 

not even speak to Sanford. The murder case went to trial, and Randolph did not testify. In April 

1997, Randolph pled guilty to all three of his pending drug charges and was sentenced to 12 

years in IDOC. 

¶ 43 IX. Tyrone Randolph’s Testimony

¶ 44 At trial, Tyrone Randolph testified that he did not know defendant. Randolph was a 

member of the Mafia Insane Vice Lords, which is a faction of the Vice Lords street gang. The 

Mafia Insane Vice Lords are not affiliated with the Undertaker Vice Lords, and the two gangs 

were feuding with each other. Despite testifying that he did not know defendant, Randolph 

testified that he knew defendant was a member of the Fifth Generation of the Undertaker Vice 

Lords gang. Randolph had also observed defendant in jail, and he identified defendant in court. 

¶ 45 The State then attempted to refresh Randolph’s recollection with his grand jury testimony.3

Randolph testified before a grand jury that, at 9 p.m. on October 22, 1995, he was walking 

 

2ASA Goldberg testified that his first name was “Mike.”

3As we observe below (supra ¶ 50), Randolph’s grand jury testimony was admitted into evidence.
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down Ferdinand Street in Chicago when he observed defendant exiting a vehicle with another 

man. Randolph approached defendant and informed him that his brother, Weasel, had been 

murdered. Defendant responded that he had heard the news and that he was “fitting to address 

the business.” Randolph then left defendant and continued walking down Ferdinand Street. At

that time, he observed a vehicle drive up to defendant. Both defendant and the other man pulled 

out black 9-millimeter guns and began shooting at the oncoming vehicle. Randolph observed 

the shooting for 20 seconds until he left the scene. Randolph testified before the grand jury that 

he was treated well and not threatened by the State’s Attorney or the police.

¶ 46 At trial, Randolph testified that he remembered his grand jury testimony, but claimed that 

his story was a lie. Randolph did not remember being near the intersection of Ferdinand Street 

and Lockwood Avenue on October 22, 1995, and did not know anything about the shooting. 

¶ 47 Randolph testified that ASA Garfinkel, who presented him to the grand jury, threatened 

him. The State presented Randolph with the written statement that he gave to ASA Goldberg 

on October 25, 1995. Randolph testified that he did not recognize his signature on the 

statement and denied ever reading it or knowing what it said. 

¶ 48 Randolph testified that he was currently serving 12 years for multiple drug offenses. One of 

the offenses resulted from an incident on October 24, 1995. That day, Randolph was arrested 

and taken to the Fifteenth District police station, where Detective Curley4 questioned him. 

Randolph did not tell Curley anything about defendant or defendant’s brother. Curley told him 

that the police would drop the drug case against him if he helped them. Curley asked Randolph 

about the murders in his area because he knew that Randolph was the chief of the Mafia Insane 

Vice Lords. Even though Randolph did not have any information on the shootings, he accepted 

Curley’s offer. Curley then placed cocaine in front of Randolph and told him that he would 

face another drug charge if he did not provide Goldberg an eyewitness account of the 

shootings. Curley then told Randolph exactly what to say and instructed him on how to answer 

the questions. 

¶ 49 Randolph testified that he had lied to the grand jury because Curley threatened to falsely 

charge him with possession of six ounces of cocaine if he did not cooperate. After he testified 

before the grand jury, Randolph told Curley and the ASA that he would not lie anymore. At 

that point, he chose to reject their offer of dropping all of his pending cases in exchange for 

testifying to a fabricated story about the shootings. Instead, Randolph chose to plead guilty and 

serve a 12-year sentence. 

¶ 50 Detective Curley did not testify at trial. The following was admitted into evidence: (1) the 

transcript of Randolph’s testimony before the grand jury, (2) the postmortem examination 

reports and medical examiner’s photos of Scott and Davis, and (3) all of the bullets recovered 

from both bodies. The parties additionally stipulated that the two bullets recovered from 

Scott’s body, the five bullets recovered from Davis’s body, and the one bullet recovered from 

the scene of the crime were all 9-millimeter bullets, but the results of the Illinois State Police 

crime lab’s tests were inconclusive as to whether one or more guns were used in the shooting 

because the police did not recover a gun to compare with the bullets. 

¶ 51 The State rested, and the trial court denied defendant’s motion for a directed finding. The 

defense then rested. The trial court asked defendant whether he understood that he had a right 

 

4Detective Curley’s first name does not appear in the appellate record.
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to testify and whether he was exercising his right not to testify, and he replied affirmatively. 

The following exchange occurred: 

“THE COURT: *** Mr. Carter, your attorney is stating that you are resting. Do you 

understand you have a right to testify? You also have the right not to testify? 

 DEFENDANT: Yes, [Y]our Honor. 

 THE COURT: And you are exercising your right not to testify? 

 DEFENDANT: Yes, I am, [Y]our Honor.”

¶ 52 X. Closing, Conviction, and Sentencing 

¶ 53 During closing arguments, the defense claimed that neither Williams’s nor Randolph’s 

testimony was credible. Following closing arguments, the trial court found defendant guilty on 

both counts of first-degree murder, one count of attempted first-degree murder, and one count 

of unlawful discharge of a firearm. After considering factors in aggravation and mitigation, the 

trial court sentenced defendant to a term of natural life imprisonment for the two murders, and 

to a consecutive term of 15 years’ imprisonment for the attempted murder.

¶ 54 XI. Direct Appeal and Postconviction Proceedings 

¶ 55 Defendant appealed his convictions and sentence, claiming that the State failed to prove 

him guilty beyond a reasonable doubt and that his sentence was excessive and violated his due 

process rights under Apprendi v. New Jersey, 530 U.S. 466 (2000). We affirmed defendant’s 

convictions but modified his consecutive sentences to run concurrently. In affirming 

defendant’s convictions, we found that “[t]he trial court considered Randolph’s credibility as 

well as the circumstances surrounding his testifying and determined that the grand jury 

testimony was believable while the in-court testimony was not. The trial court also determined 

that Williams’[s] explanation for changing his story was reasonable.” Carter, No. 1-99-2230, 

slip order at 6-7. Defendant’s petition for leave to appeal was denied on October 2, 2002. 

People v. Carter, 201 Ill. 2d 580 (2002) (table). 

¶ 56 As noted, on July 28, 2005, defendant filed a pro se petition for postconviction relief. 

Defendant’s postconviction petition proceeded to a second-stage review, and court-appointed 

counsel filed an amended petition on March 18, 2010. In his amended petition, defendant 

claimed that his trial counsel was ineffective for not allowing him to testify at trial. Defendant 

claims that he would have testified that he was not present at the time of the shooting and that 

he was incapable of firing a gun due to a hand injury. Defendant also claimed actual innocence 

based on affidavits of two newly discovered eyewitnesses, Antonio McDowell and Vaughan 

Peters, who swore that defendant was not present at the time of the shooting and that another 

man had shot at the victim’s vehicle. Defendant also claimed that he was not culpably 

negligent for filing his petition late because he relied on his counsel on direct appeal to either 

file his petition for him or provide him with filing deadlines. 

¶ 57 In his affidavit, McDowell swore that he observed a man known as “Volli” shoot the 

victims, and that defendant was not present at the time of the shooting. In 1995, McDowell was 

a member of the Undertaker Vice Lords gang, and he knew defendant, Williams, Scott, Davis, 

and Randolph. On October 22, 1995, McDowell spent time with defendant, then with Scott, 

and later with Scott and Davis at Davis’s home. Later that evening, McDowell was standing 

with several other members of the Undertaker Vice Lords gang near the intersection of 
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Ferdinand Street and Lockwood Avenue. He did not observe defendant or Randolph, who was 

a member of the rival Mafia Insane Vice Lords gang, on the corner. 

¶ 58 McDowell observed Scott in the front seat of a vehicle stopped on Ferdinand Street, but he 

was unable to observe the other passengers. As Scott drove the vehicle toward the group of 

men, Volli appeared from behind a tree, pulled a bandana up to cover his face, and fired at the 

vehicle several times. McDowell fled during the shooting, but later came back to determine 

who had been shot. He never told the police what he observed. Sometime later, McDowell was 

convicted of first-degree murder, attempted murder, and aggravated vehicular hijacking—all 

unrelated to the shooting in the instant case—and was sentenced to prison terms of 59, 29, and 

15 years, respectively. In 2003 or 2004, he learned that defendant had been convicted of the 

murders of Scott and Davis. While he was incarcerated, McDowell met defendant at a prayer 

meeting at the prison where both were confined and told defendant that he observed Volli 

shoot the victims. 

¶ 59 Vaughan Peters also swore in his affidavit that defendant was not present during the 

shooting. In 1995, Peters was a member of the Undertaker Vice Lords. On October 22, 1995, 

he learned that defendant’s brother had been killed. Peters then drove to Ferdinand Street 

between Lockwood Avenue and Laramie Avenue, but defendant was not there when he 

arrived. While he was at Ferdinand Street and Lockwood Avenue, Peters called defendant to 

offer his condolences. 5

 Defendant was at the home of his girlfriend, Lyda, during the 

telephone conversation. 

¶ 60 Peters observed several other gang members standing on the corner, including Volli, who 

was drunk and “acting crazy.” Randolph, a member of the rival Mafia Insane Vice Lords gang, 

was not on the street. As Peters walked away from the group of men, he heard a gunshot. He 

turned and observed Volli holding a gun.6

 As Peters ran away, he heard several more shots 

being fired, and he left the neighborhood. A day or two later, Peters learned that Scott had been 

shot to death on Ferdinand Street and that defendant had been arrested for the murder. Peters 

then left town. He did not talk with the police about what he observed because he thought that 

defendant would be released, since “everybody knew” that defendant was not there. Peters was 

incarcerated in 1996 and released in 2005. Peters is currently serving a four-year sentence for 

unlawful possession/use of a weapon by a felon. A photograph of Volli was attached to both 

affidavits. 

¶ 61 The trial court dismissed defendant’s postconviction petition on December 9, 2010, finding 

that the petition was untimely and that defendant forfeited the issue regarding his right to 

testify because he should have raised the issue on direct appeal. The trial court also found that 

defendant’s claim for ineffective assistance of counsel was without merit because he told the 

trial court that he understood and was exercising his right not to testify. Additionally, the trial 

court found that defendant’s claim of actual innocence was without merit because neither 

affidavit constituted newly discovered evidence of actual innocence. Defendant appealed, 

asking us to remand for a third-stage evidentiary hearing, which we did. The third-stage 

evidentiary hearing began April 24, 2014, and ended on April 9, 2015. 

 

5

Peters did not state whose telephone he used to place the call or whether it was a cellular telephone 

or a landline. 

6

Peters did not state whether he observed Volli fire the gun. 
- 11 - 

¶ 62 XII. Antonio McDowell’s Evidentiary Hearing Testimony

¶ 63 A. Direct Examination 

¶ 64 At the hearing, Antonio McDowell testified that he is currently serving time at Stateville 

Correctional Center for first-degree murder, attempted murder, and vehicular hijacking. 

McDowell testified that he had been a member of the Undertaker Vice Lords at the time of the 

shooting in October 1995. McDowell knew Howard Carter, Allen Williams, and Devol Scott, 

who were also members of the Undertaker Vice Lords. McDowell also knew Patrick Davis, a 

member of the Gangster Disciples, and Tyrone Randolph, a member of the Mafia Vice Lords. 

¶ 65 McDowell testified that, in June 1995, he observed stitches in defendant’s damaged hand. 

McDowell also noticed that defendant could barely walk and that he had difficulty standing up 

straight. These injuries were due to defendant having been shot. 

¶ 66 McDowell testified that, on the evening of October 22, 1995, he was standing near the 

intersection of Ferdinand Street and Lockwood Avenue with other members of the Undertaker 

Vice Lords, including Vaughan Peters, “Shawn,” and “Reggie Rock.” McDowell did not 

observe Randolph or defendant in the area at this time. McDowell witnessed a vehicle pull up 

in the vicinity and recognized the driver as Devol Scott. McDowell testified that he and Scott 

were close friends. McDowell then observed a man named Volli emerge from behind a tree 

wearing a bandana. Volli opened fire on the vehicle. Immediately following the shooting, 

McDowell ran from the scene. He returned to the scene later that evening, but did not talk to 

the police. McDowell identified Volli in court through a photograph marked as Defense 

Exhibit No. 6. 

¶ 67 McDowell testified that he learned of defendant’s conviction in this case sometime around 

2003 or 2004, while serving time at Menard Correctional Center. Later, at a religious service in 

Stateville Correctional Center, he observed defendant and told him about Volli and that he 

knew defendant was innocent. 

¶ 68 B. Cross-Examination 

¶ 69 McDowell testified that he had been in prison for 17 years, belonged to the Fifth 

Generation faction of the Undertaker Vice Lords at the time of the shooting, and left the gang 

after seven years in prison. McDowell testified that he had known defendant for four years at 

the time of the shooting. In May 1995, defendant had the rank of chief in the Fifth Generation, 

and Devol Scott was chief of the Sixth Generation. Kenny Beecham was second in command 

under Scott with the title of prince. Allen Williams, another associate of McDowell’s, was 

prince of the Fifth Generation. McDowell also knew Patrick Davis, a member of the Gangster 

Disciples. 

¶ 70 McDowell testified that Mike-Mike, a member of the Sixth Generation, led by Devol Scott, 

attempted to murder defendant in May 1995. After this murder attempt, defendant lost the 

respect of the Fifth Generation for not retaliating against Mike-Mike. Subsequently, defendant 

was no longer considered chief of the Fifth Generation. This political rift was further 

exacerbated by the fact that nobody in the Fifth Generation respected their prince, Allen 

Williams. Eventually, the Sixth Generation took over leadership of the Fifth. 

¶ 71 McDowell testified that, after the murder attempt in June 1995, he observed stitches in 

defendant’s right hand and that defendant was walking with a hunched back. McDowell said 

that defendant had a limited range of motion in the fingers on his injured hand. The severity of 
- 12 - 

defendant’s injuries remained unchanged each time he met defendant in July, August, 

September, and October of that year. 

¶ 72 McDowell testified that he was with defendant on October 22, 1995. Defendant had visited 

McDowell at McDowell’s home during the daytime. At the end of defendant’s visit, 

McDowell drove defendant to defendant’s home in Forest Park, approximately six hours prior 

to the shooting. That evening, McDowell was hanging out by Ferdinand Street and Lockwood 

Avenue with other members of the Fifth Generation, including Vaughan, Shawn, and 

Volli—who had been present at the intersection for at least an hour prior to the shooting. 

McDowell observed Devol Scott pull up in a vehicle. Volli then came out from behind a tree, 

put a bandana up around his face, and began shooting at the vehicle that Devol Scott was 

driving. McDowell observed Volli firing a 9-millimeter handgun in his right hand. McDowell 

heard multiple shots as he took off running to his home. Thirty minutes later, McDowell 

returned to the scene of the shooting and learned that Davis and Scott had been murdered. 

¶ 73 McDowell testified that he was aware that defendant had been arrested and charged with 

the murder of Scott and Davis shortly after October 22, 1995. McDowell learned of 

defendant’s conviction sometime in 2003 or 2004 while serving time at Menard Correctional 

Center. McDowell kept the information he had about Volli to himself until he noticed 

defendant in a prayer meeting at Stateville Correctional Center in 2008, which was the first 

time he had noticed defendant since the shooting in October 1995. 

¶ 74 At one of these prayer meetings, McDowell told defendant that he knew who was 

responsible for the murders of Scott and Davis. After a few months of consideration, 

McDowell told defendant he would help him because the threat of harm befalling McDowell 

or his family no longer existed because Mike-Mike was dead. 

¶ 75 C. Redirect Examination 

¶ 76 McDowell clarified that he and defendant did not live in the same tier at Stateville 

Correctional Center when they met in 2008. On the day of the murder, he did not talk to the 

police because he was afraid of Volli, who had a reputation for shooting people, and McDowell 

feared for his family’s safety and his own. 

¶ 77 D. Recross-Examination 

¶ 78 McDowell testified that he and defendant observed each other only every two weeks in 

prison because they resided in different buildings. The only time they would run into each 

other was at prayer meetings. McDowell noticed defendant one or two times at the prayer 

meetings before telling him that he knew the true identity of Scott and Davis’s killer. 

McDowell feared going to the police with this information because Volli was a threat to him 

and Mike-Mike and other members of the Sixth Generation were a threat to him and his family. 

¶ 79 McDowell then stated that he did not discover that Volli had been killed until he spoke with 

investigators. When asked why he was comfortable helping defendant if he was unaware that 

Volli was dead, McDowell claimed that the threat of Volli injuring his family no longer existed 

in 2008 because he had learned through talk from the streets that Volli had changed and was no 

longer frequenting McDowell’s neighborhood. McDowell then stated that the threat he felt 

from Volli was personal and that Volli did not know his family. McDowell did not come 

forward with information about Volli because he felt threatened by other members of the Sixth 
- 13 - 

Generation, except for Mike-Mike who was deceased. 

¶ 80 XIII. Vaughan Peters’s Evidentiary Hearing Testimony 

¶ 81 A. Direct Examination 

¶ 82 At the hearing, Vaughan Peters testified that he is currently employed as an assistant at 

Megabus. Peters was a member of the Undertaker Vice Lords at the time of the murder and 

knew defendant. After defendant was shot, Peters observed that defendant could not stand up 

straight or move quickly, and that defendant’s hands were swollen.

¶ 83 Peters testified that, on October 22, 1995, he went to Ferdinand Street and Laramie Avenue 

because Weasel, a fellow gang member and defendant’s brother, had been killed earlier in the 

day. Peters was hanging out and drinking with other gang members, including Young T, Volli, 

and Freddy Pie. Tyrone Randolph, a member of the Mafia Insanes, was not present that day 

since the Undertaker Vice Lords and Mafia Insanes were at war. Peters did not observe 

defendant there so he called defendant at defendant’s girlfriend’s home in Forest Park. 

¶ 84 Peters testified that he was walking toward the corner of Ferdinand Street and Laramie 

Avenue when he first heard gunshots. After the first shot, Peters observed Volli walking 

toward the street with a gun, and then Peters ran to his grandmother’s house. Peters estimates 

that he heard more than 10 shots as he ran away. 

¶ 85 Peters testified that he learned of the murders the next day when he returned to the block 

and some people informed him who had been killed. Peters then left town for three to four 

days. Peters never went to the police with the information he had about Volli. 

¶ 86 B. Cross-Examination 

¶ 87 On cross, Peters testified that he belonged to the Fifth Generation faction of the Undertaker 

Vice Lords at the time of the murder, but he left the gang in 2004. Defendant had the rank of 

king in the Fifth Generation. Defendant did not conduct any meetings as king or exercise any 

leadership roles. Peters was unsure as to whether there was a leader of the Sixth Generation. 

The Fifth Generation and the Sixth Generation factions were at war. Eddie Richardson, 

nicknamed “Hineef,” was the leader of all the Undertaker Vice Lords factions. 

¶ 88 Peters testified that the last time he observed defendant was a few weeks after defendant 

was shot. Due to his gunshot wounds, defendant appeared to walk like an old man and could 

barely stand up. On the night of the shooting, Peters still considered defendant to be the king of 

the Fifth Generation. 

¶ 89 Peters testified that, on the night of the murder, he arrived on Ferdinand Street around 5 

p.m. or 6 p.m. He remembers seeing Volli, Young T, and Freddy Pie there—all members of the 

Fifth Generation. Volli and Peters were good friends, and everyone present was discussing the 

murder of Weasel, defendant’s younger brother. Peters and 13 or 14 of his fellow gang 

members decided to call defendant to express their condolences for Weasel’s death. Peters did 

not recall whether they used a house phone or a pay phone to speak with defendant. 

Defendant’s girlfriend, Lyda, answered the phone and then handed it to defendant. Peters 

spoke with defendant, but did not remember who dialed or whether Volli spoke with 

defendant. 

¶ 90 Peters testified that he heard the first gunshot when he was walking to a restaurant on the 

corner. Peters observed Volli with a gun walking towards the street, but Peters did not witness 
- 14 - 

Volli pull the trigger. Peters then ran to his grandmother’s house, and he did not discover until 

the next day that Devol Scott had been shot. Three to four days later, Peters learned that 

defendant was arrested for the murders. At the time that Peters learned that defendant was 

going to trial, Peters was incarcerated. Peters learned of Volli’s death sometime between 1996 

and 2005 during Peters’s incarceration at Stateville Correctional Center. Peters was unaware 

why the public defender’s office showed up at Stateville Correctional Center, asking him 

questions about the shooting. Peters had not reached out to anyone regarding defendant and the 

shooting. The last time Peters observed Volli was the night of the shooting. 

¶ 91 C. Redirect Examination 

¶ 92 Peters testified that he knew a man named “Tone” in the Undertaker Vice Lords, but Peters 

referred to him as “Tidy Bowl.”7 Tone was one of the people hanging out on Ferdinand Street 

on the night of the shooting. Peters also knew a man with the nickname “Rayskee.”8 Rayskee 

was not on Ferdinand Street on the night of the shooting. Peters did not observe Young T or 

Freddy Pie with a weapon, and he never observed defendant during Peters’s own incarceration 

at Stateville Correctional Center. 

¶ 93 D. Recross-Examination 

¶ 94 Peters testified that McDowell and Williams did not have any rank in the Undertaker Vice 

Lords. Peters last observed McDowell a month or two after the shooting. 

¶ 95 XIV. Mary Clements’s Evidentiary Hearing Testimony

¶ 96 A. Direct Examination 

¶ 97 Mary Clements testified that she is currently employed as a supervisor of investigations 

with the Cook County public defender’s office. Clements became involved in defendant’s case 

when an investigation request came into the public defender’s office in December 2009. 

Initially, Clements was tasked with notarizing defendant’s affidavit and interviewing Antonio 

McDowell. Clements interviewed McDowell at Stateville Correctional Center three times 

between 2009 and 2010. During an interview with McDowell, Clements learned about 

Vaughan Peters and Volli. 

¶ 98 Clements discovered that Peters was at Stateville Correctional Center by running his name 

through the IDOC website. Clements learned from Peters that Volli was deceased. Peters 

found a letter from Volli that indicated that Volli’s real first name was Savalas. Clements took 

that information and used Accurate and Westlaw CLEAR to find every Savalas in Chicago. 

Clements found a Savalas Brewer who was from the south side of Chicago and deceased. 

Clements then obtained a photograph of Brewer from the jail’s computer system, IMACS, 

which was identified as Defense Exhibit No. 6. Clements contacted the emergency contact 

person listed on Brewer’s CLEAR report and spoke to Brewer’s mother, who confirmed 

Brewer’s death. Clements took the photograph of Brewer and showed it to defendant, 

 

7

“Tone” and “Tidy Bowl” are nicknames of Antonio McDowell, one of defendant’s newly 

discovered witnesses. 

8

“Rayskee” is the nickname of Allen Williams, the attempted murder victim. 
- 15 - 

McDowell, and Peters between 2009 and 2010.9

¶ 99 B. Cross-Examination 

¶ 100 Clements testified that she had three meetings with McDowell at Stateville Correctional 

Center and presented an affidavit to McDowell on her third visit. Clements met with Peters 

three times as well, twice at Stateville Correctional Center and once at East Moline 

Correctional Center. Clements did not inquire about the current gang membership of Peters or 

McDowell. Clements testified that she found out that Volli was Savalas Brewer and that 

Brewer’s mother stated that Brewer died in December 2003 on Lake Street. 

¶ 101 Clements testified that McDowell was uncertain of whether Volli was dead, but that Peters 

knew that Volli was deceased. Peters gave Clements the information that Volli had been killed 

on Lake Street and that he had a brother named Romey, a fact which Clements corroborated 

during her conversation with Brewer’s mother. Clements testified that Peters showed her an 

envelope, addressed to Peters, that had Savalas in the return information. Clements believed it 

was an old letter because it was not addressed to Stateville Correctional Center, the prison that 

Peters was in at the time of his interview with Clements. 

¶ 102 XV. Defendant’s Evidentiary Hearing Testimony

¶ 103 A. Direct Testimony 

¶ 104 Defendant testified that he had prior convictions in 1991 and 1992 for a weapons offense 

and a robbery offense. Defendant was shot approximately 11 times on May 11, 1995, and 

treated at Mt. Sinai Hospital, where he had surgery on his stomach, hand, and left lung. 

Defendant was informed by a doctor that the bullet that hit his hand exploded upon impact, 

causing severe damage. The doctors attached a metal apparatus to defendant’s hand, which 

was removed near the end of July or the beginning of August 1995. After the shooting, 

defendant could no longer walk properly, use his right hand, or raise his left arm. In September 

1995, defendant could not hold a glass or make a fist with his right hand or walk very far or 

long. 

¶ 105 On the evening of October 22, 1995, defendant’s grandmother called him and told him that 

his brother had been shot and killed. Defendant testified that he was at home when he received 

the call and that he did not leave his home after speaking to his grandmother. Defendant 

testified that Devol Scott, one of the murder victims, was like a little brother to him and that 

defendant did not blame Scott for shooting defendant because Scott was in North Dakota at 

that time. Defendant did not know Patrick Davis, who was the other murder victim. Defendant 

had a close relationship with Allen Williams, the attempted murder victim, because Williams’s 

father helped raise defendant and taught both Williams and defendant about how the streets 

work. Defendant denied shooting Scott, Williams, and Davis. 

¶ 106 B. Cross-Examination 

¶ 107 On cross, defendant testified that he was shot 11 times on the evening of May 11, 1995, in 

front of the corner store on Gladys and Cicero Avenues. Defendant was a member of the 

 

9Clements’s testimony does not state whether defendant, McDowell, and Peters identified the man 

in the photograph as Volli, to her, at that time. 
- 16 - 

Undertaker Vice Lords when he was shot and had the rank of “King” of the Fifth Generation. 

Defendant was made king of the Fifth Generation when he was 15 years old, seven years prior 

to being shot. Defendant was responsible for keeping order within the Fifth Generation and 

mediating any conflicts that arose. Allen Williams, the attempted murder victim, was 

defendant’s second in command and had full authority to settle disputes in defendant’s 

absence. While defendant was in the hospital recovering from his gunshot wounds, Williams 

was in command of the Fifth Generation. 

¶ 108 Defendant testified that Devante Branch was the chief of the Sixth Generation Undertaker 

Vice Lords and that Kenny Beecham was the prince of the Sixth Generation. Defendant 

reported to Eddie Richardson, nicknamed “Hineef,” who was the king of all generations of the 

Undertaker Vice Lords. Defendant claims that Branch’s and Beecham’s roles were never 

officially commissioned by anyone else in the gang. The Sixth Generation was also in turmoil 

as they did not like their chief, Devante Branch, and instead chose to respect Devol Scott—a 

Sixth Generation member who did not have any rank. The Fifth and Sixth Generations had 

non-violent arguments from time to time in 1995. 

¶ 109 Defendant did not know who shot him on May 11, 1995. Defendant believed at least two 

shooters were involved because he was shot on the right side of his body and the left side of his 

neck. The police told defendant that he was shot with two different guns, but they were able to 

identify only one of them as a 9 millimeter. A woman named Sinbad, who lived on the corner 

where defendant was shot, informed defendant that a man with the nickname “Mike-Mike” 

shot him. Sinbad also told defendant that Chucky may have been involved, but she was not 

sure. Defendant tried to persuade Sinbad to talk to the police or the State’s Attorney’s office 

but Sinbad did not want to be involved. Defendant had met Mike-Mike at Branch’s house in 

1994. Mike-Mike belonged to the Traveler Vice Lords in 1994, but switched his affiliation to 

the Sixth Generation Undertaker Vice Lords shortly thereafter. Chucky was also an 

acquaintance of defendant and a member of the Fifth Generation, who spent most of his time 

hanging around with the Sixth Generation. 

¶ 110 Defendant testified that he was shot because Mike-Mike, Branch, and Chucky were trying 

to establish more power and authority over their territory on Cicero Avenue. All members of 

the Undertaker Vice Lords were allowed to deal drugs on Cicero Avenue and keep all the 

proceeds for themselves. Defendant believed that the shooting was less about a war between 

the two factions and more about absolving regular gang members of any responsibility to those 

in positions of power within the gang. After defendant was released from the hospital, he was 

no longer considered the king of the Fifth Generation, primarily due to the fact that other gang 

members viewed him as weak. Defendant discovered who shot him sometime in July 1995. 

¶ 111 Defendant testified that he went to rehabilitation at Mt. Sinai Hospital for about two 

months. Defendant stopped going because people he relied upon to drive him stopped showing 

up and defendant refused to take the bus anywhere. 

¶ 112 Defendant testified that he never knew who shot his brother, but that Branch was charged 

with the shooting and eventually incarcerated for it. Defendant did not own a vehicle so his 

friends would drive him around. An Undertaker named Ja-Rule was defendant’s primary 

driver, and defendant trusted him because Ja-Rule was not from Cicero Avenue. Defendant did 

not have any security detail, but did carry a .38-special revolver with him for protection from 

rival gangs like the Mafia Insane Vice Lords, who had been at war with the Undertaker Vice 

Lords since 1992. 
- 17 - 

¶ 113 Defendant’s brother, nicknamed Weasel, had finished serving a house arrest sentence a day 

or two before he was shot and killed. Weasel would demand that members of the Sixth 

Generation give him a portion of the profits generated from their drug sales on Cicero Avenue. 

Due to Weasel’s relationship with defendant, Sixth Generation members would comply with 

Weasel’s demands. 

¶ 114 Defendant testified that he quit the Undertaker Vice Lords 13 or 14 years ago while at 

Stateville Correctional Center. 

¶ 115 C. Redirect Examination 

¶ 116 On redirect, defendant testified that, after his release from the hospital, he resided in Forest 

Park with his girlfriend, Lyda Belk. Defendant was not shot in his left hand, although most of 

his injuries occurred on the left side of his body. Defendant had injuries on the left side of his 

chest and underwent surgery on his left lung. Defendant was also shot beneath his armpit, and 

Belk would help him wash because defendant could not raise his arm up. Defendant testified 

that members of the Fifth Generation were not required to give defendant a portion of their 

drug sales. 

¶ 117 D. Recross-Examination 

¶ 118 Defendant testified that in October 1995 he was able to make a fist with his left hand. He no 

longer had the pins in his right hand, and he washed himself without assistance. Defendant 

lived at his girlfriend’s mother’s house in Forest Park until his arrest on October 25, 1995. 

Defendant’s friend Tweet drove him to Forest Park after he was released from his hospital stay.

¶ 119 XVI. Trial Court’s Ruling

¶ 120 On April 9, 2015, the trial court concluded that the new evidence presented by defendant 

lacks credibility and, when scrutinized in the context of the entire trial record, it was not so 

persuasive that it would probably change the result on retrial. The trial court found that it 

defied logic to think that McDowell and Peters were completely oblivious to the fact that 

defendant had been convicted of first degree murder. Based on their status as fellow gang 

members and eyewitnesses, McDowell and Peters both had an interest in learning who had 

been implicated, and their testimony that they never sought out this information was highly 

incredible. The trial court also observed that McDowell personally knew Allen Williams, who 

testified as a State’s witness against defendant. The trial court also found that defendant’s 

testimony lacked overall credibility, noting that defendant’s alibi directly conflicted with 

Peters’s testimony. Peters testified that defendant was at his girlfriend’s home when the 

shooting occurred, while defendant testified that he was at his own home at the time. For these 

reasons, the trial court found that defendant failed to establish the denial of a constitutional 

right by a preponderance of the evidence. Thus, the trial court granted the State’s motion for a 

directed finding and dismissed the postconviction petition. 

¶ 121 ANALYSIS 

¶ 122 On appeal, defendant claims that the trial court erred in dismissing his postconviction 

petition after a third-stage evidentiary hearing. Defendant claims that McDowell’s and Peters’s 

testimony—implicating another man in the shooting of Devol Scott, Patrick Davis, and Allen 
- 18 - 

Williams—is noncumulative, conclusive evidence that would likely change the result on 

retrial. For the following reasons, we affirm. 

¶ 123 I. Stages of Postconviction Proceeding 

¶ 124 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2014)) provides that a 

defendant may challenge his or her conviction or sentence for violations of federal or state 

constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006) (citing People v. 

Whitfield, 217 Ill. 2d 177, 183 (2005)). To be entitled to postconviction relief, a defendant 

bears the burden of establishing that a substantial deprivation of his constitutional rights 

occurred at his original trial. People v. Waldrop, 353 Ill. App. 3d 244, 249 (2004); 725 ILCS 

5/122-1(a) (West 2014). 

¶ 125 In noncapital cases, the Act provides for three stages. Pendleton, 223 Ill. 2d at 471-72. At 

the first stage, the trial court has 90 days to review a petition and may summarily dismiss it, if 

the trial court finds that the petition is frivolous and patently without merit. 725 ILCS 

5/122-2.1(a)(2) (West 2014); Pendleton, 223 Ill. 2d at 472. If the trial court does not dismiss 

the petition within that 90-day period, the trial court must docket it for further consideration. 

725 ILCS 5/122-2.1(b) (West 2014); Pendleton, 223 Ill. 2d at 472. 

¶ 126 If the petition survives initial review, the process moves to the second stage, where the trial 

court appoints counsel for the defendant when a defendant cannot afford counsel. 725 ILCS 

5/122-4 (West 2014). Appointed counsel may make any amendments that are “necessary” to 

the petition previously filed by the pro se defendant. People v. Perkins, 229 Ill. 2d 34, 42 

(2007). After defense counsel has amended the petition, the State may file a motion to dismiss 

or an answer. 725 ILCS 5/122-5 (West 2014); Pendleton, 223 Ill. 2d at 472. If the State moves 

to dismiss, the trial court may hold a dismissal hearing, which is still part of the second-stage. 

People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). 

¶ 127 To advance to the third stage, a petitioner must make a “substantial showing,” which can be 

accomplished by relying on the record in the case or by supplying supporting affidavits. 

Coleman, 183 Ill. 2d at 381. The trial court is foreclosed from engaging in any fact-finding 

because all well-pleaded facts must be taken as true at the second stage of the proceedings. 

People v. Wheeler, 392 Ill. App. 3d 303, 308 (2009) (citing Coleman, 183 Ill. 2d at 380-81). 

“[W]hen a petitioner’s claims are based upon matters outside the record, the [Act] does not 

intend such claims be adjudicated on the pleadings.” People v. Snow, 2012 IL App (4th) 

110415, ¶ 15.

¶ 128 If the trial court denies the State’s motion to dismiss, or if the State chooses not to file a 

dismissal motion, then the State “shall” answer the petition. 725 ILCS 5/122-5 (West 2014); 

Pendleton, 223 Ill. 2d at 472. Unless the trial court allows further pleadings (725 ILCS 5/122-5 

(West 2014)), the proceeding then advances to the third stage, which is an evidentiary hearing. 

725 ILCS 5/122-6 (West 2014); Pendleton, 223 Ill. 2d at 472-73. In the case at bar, the trial 

court originally dismissed defendant’s petition at the second stage, but the appellate court 

reversed and remanded for a third-stage evidentiary hearing. 

¶ 129 An evidentiary hearing is held only where the allegations of the postconviction petition 

make a substantial showing that a defendant’s constitutional rights have been violated and 

those allegations are supported by affidavits, records, or other evidence. Waldrop, 353 Ill. App. 

3d at 249. The affidavits that accompany a postconviction petition must identify with 

reasonable certainty the sources, character, and availability of the alleged evidence supporting 
- 19 - 

a defendant’s allegations. Waldrop, 353 Ill. App. 3d at 249. At the evidentiary hearing, the trial 

court “may receive proof by affidavits, depositions, oral testimony, or other evidence,” and 

“may order the [defendant] brought before the court.” 725 ILCS 5/122-6 (West 2014). 

¶ 130 In the case at bar, the trial court dismissed defendant’s postconviction petition after a 

third-stage evidentiary hearing where new evidence was introduced through the testimony of 

two witnesses. Defendant appeals and asks us to remand for a new trial, or, in the alternative, to 

reverse the trial court’s order allowing the State’s motion for a directed finding and remand the 

case for a continuation of the third-stage hearing. 

¶ 131 II. Standard of Review 

¶ 132 At a third-stage evidentiary hearing, the defendant bears the burden of making a substantial 

showing of a constitutional violation. People v. English, 406 Ill. App. 3d 943, 951 (2010).10

When a petition is advanced to a third-stage evidentiary hearing, where fact-finding and 

credibility determinations are involved, we will not reverse a trial court’s decision unless it is 

manifestly erroneous. People v. English, 2013 IL 112890, ¶ 23. If no fact-finding or credibility 

determinations were necessary at the third-stage, and the issues presented were all pure 

questions of law, we apply a de novo standard of review, unless the judge who presided over 

the postconviction proceedings had some special expertise or familiarity with defendant’s trial 

or sentencing and that familiarity had some bearing on the disposition of the postconviction 

petition. English, 2013 IL 112890, ¶ 24; People v. Beaman, 229 Ill. 2d 56, 72 (2008). In the 

case at bar, since new evidence was presented at the evidentiary hearing and the trial court was 

required to make credibility determinations, our standard of review is the manifest error 

standard. English, 2013 IL 112890, ¶¶ 23-24; English, 406 Ill. App. 3d at 952. “ ‘Manifestly 

erroneous means arbitrary, unreasonable and not based on the evidence.’ ” People v. Ceja, 204 

Ill. 2d 332, 347 (2003) (quoting People v. Wells, 182 Ill. 2d 471, 481 (1998)). 

¶ 133 III. Actual Innocence 

¶ 134 The wrongful conviction of an innocent person violates due process under both the United 

States Constitution (U.S. Const., amend. XIV, § 1) and the Illinois Constitution (Ill. Const. 

1970, art. I, § 2), and thus, a defendant can raise in a postconviction proceeding a freestanding 

claim of actual innocence based on newly discovered evidence. People v. Ortiz, 235 Ill. 2d 

319, 334 (2009); People v. Washington, 171 Ill. 2d 475, 489 (1996). To assert a claim of actual 

innocence based on newly discovered evidence, a defendant must show that the evidence is (1) 

newly discovered, (2) material and not merely cumulative, and (3) capable of changing the 

result on retrial. Ortiz, 235 Ill. 2d at 333-34. In his postconviction petition, defendant claims 

that he is actually innocent based on the testimony of the two witnesses who testified that he 

was not the shooter. The trial court divided its analysis into two parts: “first, the Court 

consider[ed] the new evidence presented by petitioner and conclude[d] that this evidence lacks 

credibility; and second, the Court scrutinize[d] the new evidence in the context of the entire 

trial record and determine[d] that the new evidence is not so persuasive that it would probably 

change the result of retrial.” We analyze the trial court’s finding using the framework of the 

 

10Although the appellate court case of English in this sentence and the supreme court case of 

English cited in the next sentence share the same name, the two cases are different cases concerning 

different defendants. 
- 20 - 

three-prong test articulated in Ortiz.

¶ 135 A. Newly Discovered Evidence 

¶ 136 As noted, the trial court did not explicitly address whether McDowell’s and Peters’s 

testimony constituted newly discovered evidence. The trial court did find that “[t]heir 

purported lack of knowledge defies common sense and human experience, which places an 

imprimatur of unreliability upon the testimony of McDowell and Peters.” 

¶ 137 Our supreme court has defined newly discovered evidence as “evidence [(1)] that has been 

discovered since the trial and [(2)] that the defendant could not have discovered sooner through 

due diligence.” Ortiz, 235 Ill. 2d at 334. Defendant argues that the testimony of these two 

witnesses is newly discovered because McDowell and Peters claim that they did not learn of 

defendant’s conviction until 2003 or 2004, and defendant could not have known who 

witnessed the shooting because he was not there. The State argues that McDowell’s and 

Peters’s purported lack of knowledge about defendant’s conviction defies common sense and 

human experience. 

¶ 138 We understand the trial court’s determination to be that, had the testimony been credible, it 

would have been considered newly discovered. We discuss the credibility of McDowell and 

Peters under the third prong, which addresses whether their testimony would change the result 

at trial. 

¶ 139 B. Material and Noncumulative 

¶ 140 Regarding the second prong, the trial court found that the testimony of McDowell and 

Peters is material and noncumulative. Our supreme court has held that “[e]vidence is 

considered cumulative when it adds nothing to what was already before the jury.” Ortiz, 235 

Ill. 2d at 335. See also People v. Molstad, 101 Ill. 2d 128, 135 (1984). Testimony is not 

cumulative when it would create new questions in the mind of the trier of fact. People v. Ortiz, 

385 Ill. App. 3d 1, 11 (2008); People v. Williams, 392 Ill. App. 3d 359, 369 (2009). Both 

witnesses testified regarding the ultimate issue of whether defendant was the shooter, and there 

was no other testimony at trial excluding defendant as the shooter. However, as discussed 

below in the analysis of whether the new evidence is capable of changing the result on retrial, 

their testimony, while material and noncumulative, is not sufficient to undermine confidence 

in the outcome of the original proceeding. 

¶ 141 C. Incapable of Changing the Result on Retrial 

¶ 142 As to the third prong, the Illinois Supreme Court has found that newly discovered evidence 

is capable of changing the result on retrial when “the evidence of defendant’s innocence would 

be stronger when weighed against the recanted statements of the State’s eyewitnesses.” Ortiz, 

235 Ill. 2d at 337. On retrial, “[t]he fact finder will be charged with determining the credibility 

of the witnesses in light of the newly discovered evidence and with balancing the conflicting 

eyewitness accounts.” Ortiz, 235 Ill. 2d at 337. Our supreme court noted that “ ‘this does not 

mean that [defendant] is innocent, merely that all of the facts and surrounding circumstances, 

including the testimony of [defendant’s witnesses], should be scrutinized more closely [at a 

retrial] to determine the guilt or innocence of [defendant].’ ” Ortiz, 235 Ill. 2d at 337 (quoting 

Molstad, 101 Ill. 2d at 136 (finding that the defendant’s newly discovered evidence of five 
- 21 - 

codefendants, who would testify that he was not present at the crime scene, would probably 

change the result on retrial when balanced against the testimony of a single eyewitness 

implicating the defendant)). Under a manifest-error standard, we find that the trial court’s 

ruling, which was based almost exclusively on a credibility determination, was not arbitrary or 

unreasonable. Ceja, 204 Ill. 2d at 347. 

¶ 143 As the trial court observed, both McDowell and Peters observed the shooting, yet did not 

come forward with information until many years after defendant’s conviction. McDowell 

claims this is because he did not learn of defendant’s conviction until he met him in prison in 

2003 or 2004. Peters claims he was aware that defendant had been arrested, but was sure that 

defendant would not have been convicted because every person present at the shooting knew 

that defendant was not involved. McDowell and Peters were both friends of defendant; they all 

belonged to the same gang and had hung out together prior to the night of the shooting. 

Therefore, the trial court reasoned, McDowell and Peters had a significant interest in learning 

who had been implicated in the shooting, and their testimony that they never knew of 

defendant’s conviction until years later was incredible. Furthermore, McDowell and Peters 

both personally knew Allen Williams, the attempted murder victim, who was a member of 

their gang and a State’s witness against defendant. The trial court found it incredible that 

neither McDowell nor Peters would have an interest in a case where a member of their own 

gang took the stand against their former leader. 

¶ 144 Defendant likens the account of the shooting provided by McDowell and Peters at the 

evidentiary hearing to the testimony provided by Hernandez in People v. Ortiz. In Ortiz, 

Hernandez, an eyewitness with new evidence of the defendant’s actual innocence, came 

forward on his own volition after meeting the defendant’s mother in Chicago and telling her 

that he knew defendant was not guilty. Ortiz, 235 Ill. 2d at 327. Hernandez had left the state 

shortly after the occurrence. Ortiz, 235 Ill. 2d at 327. However, McDowell’s and Peters’s 

explanations for coming forward differ dramatically from Hernandez’s explanation. On 

cross-examination, McDowell testified that an investigator from the public defender’s office 

met with him and brought the affidavit that he signed. Then, on redirect, McDowell testified 

that he did not come forward after the shooting because he was afraid of Volli, the alleged 

actual killer. On re-cross, McDowell testified that Volli actually was not a threat because Volli 

did not know his family and was not from the same neighborhood. Peters admitted that he 

knew defendant had been arrested for the shooting, yet he did not go to the police. 

¶ 145 Defendant argues that the trial court incorrectly stated that McDowell and Peters “never 

asked around or figured out who had been charged with the murders.” Indeed, McDowell and 

Peters both testified that they were aware of defendant’s arrest shortly after the shooting; 

however, this discrepancy does not have a significant impact on the trial court’s credibility 

determination. Peters’s knowledge of defendant’s arrest strengthens the distinction between 

the witness in Ortiz, who came forward on his own volition, and Peters, who did not make any 

attempt to clear defendant’s name until he was approached by the public defender’s office. 

Peters had no idea why the public defender’s office reached out to him because he had not 

reached out to anyone regarding the shooting. McDowell waited 13 years, and only came 

forward with his information when he observed defendant at a prayer meeting in prison. The 

trial court found this testimony to be lacking in credibility. 

¶ 146 Defendant also argues that the distinction drawn in the trial court’s order between 

defendant’s testimony that he was at home and Peters’s testimony that defendant was at his 
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girlfriend’s house is one without difference, since he lived at his girlfriend’s home. However, it 

does not change the credibility determination of the trial court because it found that 

defendant’s testimony “at the evidentiary hearing was cumulative of other evidence presented 

at trial, and therefore [was] not supportive of his actual innocence claim.” Thus, the distinction 

was not a factor in the trial court’s credibility determination of McDowell and Peters.

¶ 147 We remanded for the specific purpose of making a credibility determination, and the trial 

court did just that, finding neither McDowell nor Peters to be credible. For the foregoing 

reasons, we cannot find that the trial court’s ruling was manifestly erroneous.

¶ 148 CONCLUSION 

¶ 149 For the aforementioned reasons, we find that the trial court’s ruling was not manifestly 

erroneous, and thus we affirm the trial court’s third-stage dismissal of defendant’s 

postconviction petition. 

¶ 150 Affirmed.