## I L L I N O I S 

## O F F I C I A L 

## R E P O R T S Appellate Court

People v . Jones , 2012 IL App (1st) 093180

Appellate Court Caption THE PEOPLE OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. KENNEITH JONES, Defendant-Appellant.

District & N o. First District, Second D ivision Docke t No. 1-09-3180

Filed Rehea ring denied May

1, 2012 May 30, 2012

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

. ) The d i smissal of defe ndant’s postconviction petition following a full evidentiary hearing was aff irmed, notwiths t an ding defe ndant’s contentions that the trial court committed evidentiary err ors, his counsel fa iled to investigate and call alibi witnesses, he was innocent and t h e State committed a Brady violation, since the trial court proper ly ruled that the testimony

of the postconviction witnesses w as unre liable and not of such a conclusive char acte r that it would have resulted in a differ ent outcome, defe ndant could not establish a due proce ss vi o l ati on arising from an ey ewitness’s postconviction testimony rec anting her trial testimony that defe ndant was the murdere r, the State’s failure to disclose the exculpatory inf

o rm at ion about the rec anting ey ewitness did not constitute a Bra d

y v i o lation wher e defe ndant was identified by other
ey ewitnesses and the ey ewit ness’s uncertainty would not likely have chang ed the result, and defe nse counsel’s perf ormanc e met the objective standard of

rea sonablene ss.

Dec ision Under Review Appea l from the Circuit Court of C o o k County
, No. 96-CR-19441; the Hon. Kevin Shee han, Judge, pr esiding

.J udg ment Affirmed.

Counsel on Appea l Abishi C. Cunningha m, J r., Public Def ender
, of Chicag o (De nise Avant and Har old J

. Wins ton, Assistant Public Def ender s, of counsel), for appellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg
, J oan Fr azier, and Michele Grimaldi Ste i n , As sistant State’s Attorney s, of counsel), f

or the People.

Panel PRES IDING J USTI CE QUINN delivere d the judgme nt of the court, with opinion.
J ustices Connors and Ha

rris conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant, Kenne ith J o n es , ap p ea l s fr o m a j udg ment enter ed by the trial court that dismiss ed his postconviction petitio n af t er a full evidentiary hearing. J ones filed a timely notice of appeal on November 9, 2009, and the appea l was fully briefe d on J anuary 4, 2012. ¶ 2 On ap p eal, defe ndant arg ues that: (1) he rec eived an unfair postcon v i ct i o n h ea ri n g beca use of evidentiary err ors committed by the court; (2) he was denied eff ective assistance of counsel at his criminal trial when his counsel failed to thoroug hly investigate and call alibi witnesses and w itnesses who could ha ve cor roborated statements one Dwig ht Washington made ag ainst his penal interests; (3) his conviction should be reve rsed beca use of his claim of innocenc e; and (4) the State committed a Brady violation ( Brady v. M aryland
, 373 U.S. 83 (1963)) , which now e ntitles him to a new trial. The postconviction court held a hearing

on the petition wher e 12 witnesses testified. After hearing all the testimony
, the court denied the p o s tc o nviction petition in all respe cts. This opinion addre sses issues raised in defe ndant’s brief afte r addre ssing the rec ent case of People v. Hende rson , 2011 IL App (1st) 090923, and its application. ¶ 3 A p re l i m i n ar y re v i ew of this case reve aled that J ones had fully serve d the senten ce imposed for his conviction of first deg ree murder and he is no longe r i n the custody of t he I llinois Depa

rtment of Correc tions (I DOC) or under their supervision as a parole e. This court i s awa re of the rec ent holding in People v. Hende rson , 2011 I L App (1st) 090 9 2 3
, t h at dismiss ed Hende rson’s postconviction petition on appea l as moot when the appellate court determined that he had f

ully serve d his se ntence

. I t r easone d that beca use the defe ndant no longe r neede d the assistance of the Post-Convi ction Hea ring Act (the Act) (725 I L CS 5/122- 1 to 122-8 (West 2008)) to secur e his liberty
, he immediately lost standing under the Act. We

-2-order ed additional briefing to obtain the parties’ positions as to whether the hol d ing in

Hende rson require s the dismissal of this defendant’s a ppeal a s moot. ¶ 4 The State responde d to the issue forthrigh t l y b y stating that it was the position of the State’s Attorney ’s office that the Hende rson court’s dismiss al of defe ndant’s postconviction petition as moot on appea l was wrong and n ot g rounded in established supreme court prec edent. The State’s position is that Hende rson’s rele ase from parole s u b s eq u en t to his timely filed petition did not eliminate his standing to obtain relief pursuant to the Act and rende r his petition moot. We disag ree with the holding in Hende rs o n fo r the following

rea sons.

¶ 5 I . Summary of I llinois ’s Postconviction Procedure and Analy sis of Hende rson ’s Applicability ¶ 6 I n addition to revie w on direc t appea l following a criminal conviction, certain collater al, statutory re m edies have been made available under which criminal convictions may be challeng ed. I n I llinois the Act is one such reme dy

. Under the Act “[a]ny person imprisoned in the penitentiary may instit ute a proce eding .” 725 I L CS 5/122-1(a) (West 2008). Whil e the entire Act consists of onl y 11⁄2 pag es of text in the s t atut e books, litigation s temming from the Act has resulted in an incre dible number of court decisions since being enac ted in 1951. One such are a conce rns the time limit s within which a defe ndant must file his or her orig inal petition. Under the c urre nt statutory fra mework, a postconviction petition must be filed by the earliest of the following two dates: (1) six months a fter the conclusion of any appea l to the United States Supreme Court or six months a fter the date f or filing such appea l if none is f iled; or (2) if no direc t appea l is filed, three y ear s from the date of conviction. 725 IL CS 5/122-1(c) (West 2008). I n any instance, the petitioner may be excused from meeting these filing deadlines if it can be shown that t h e d el ay was not due to his or her culpable
neg lige nce. 725 IL CS 5/122-1(c ) (West 2008). L eg al proce eding s under the Act have been deeme d to be civil in nature. P eo p l e v. Andretich
, 244 I ll. App. 3d 558 (1993). The time periods for filing a t i m ely petition have been held to be statutes of limit ations. People v. Allen
, 322 I ll. App. 3d 724, 725 (2001) (citing People v. Bates
, 124 I ll. 2d 81, 85-86 (1988))

. A statutory civil c ause of action that is timely filed cannot be decla red moot by subsequent
events. ¶ 7 Additionally
, just as our supreme court has determined that the matter of timeliness of

a postconviction petition should be left for the State to assert ( People v. Boclair
, 202 I ll. 2d 89, 102 (2002))
, in People v. Hager
, 202 I ll. 2d 143 (2002), issued the same day as Boclair
, the supreme court reve rsed the appellate court’s sua sponte dismiss al of a postconviction petition as untimely and order ed the appellate court to limit its revie w on rema nd to whether

or not the petition was “frivolous or patently without merit.” People v. Hager
, 202 I ll. 2d at 149-50. I t would appea

r from these two decisions that the appellate court should ref rain from considering the issue of timeliness, absent a motion to di smiss bythe State and a ruling by the trial court. I t would follow that the appellate court should not decide issues of mootness of the e ntire petition absent allowing the petitioner to re spond. ¶ 8 Application of the Hende rson decision which allowed for appellate court dismiss al of a

-3-petition mere ly beca use the p et i t i o ner has serve d his sentenc e is troubling for another important rea son. Many o f these petitions fre quently experience delay s not found in other
cate g ories of case s befor e they rec eive final revie w. For instance, in the instant ca s e, the defe ndant was sentenc ed in 1999. Def endant’ s conviction wa s af fi rmed in 2000 on direc t appea l afte r t he fili ng of an Anders brief. People v. Jones
, No. 1 -99-1235 (Sept. 29, 2000) (unpublished order under Su p re m e C ourt Rule 23). I n Marc h 2001, defe ndant filed his postconviction petition, which was summarily dismiss ed by the trial court in J une 2001. On
appea l, this court rema nded the case for appointment of counsel and further proce eding s in J une 2005. People v. Jones
, 364 I ll. App. 3d 1 (2005). Two y ear s later, the public defe nder’ s office filed a supplemental petition to the pro s e p et i t i on on Kenne ith J ones’s behalf

. On

rema nd, the trial co u rt held an evidentiary hearing on the petition on various dates from Marc h 19, 2008 to November 4, 2009, when the circ uit cou rt denied defe ndant any relief pursuant to his postconviction petition. On appea l, it took over two y ear s for this case to be fully briefe d and re ady

for de cision. ¶ 9 The public office s char g ed with repr esenting the parties in these postconviction petitions suffe r from understaf

fing and underf

unding, wh i ch predic tably result in sever e backlog s. Whil e the instant def

endant, Ke nneith J ones, is repr esente d on appea l by the Cook County public defe nder’ s office , the State Appellate Def ender ’s office repr esents the vast majority of appellants in criminal case s, including Hende rson. A rec ent motion for extension of time filed by an assistant State Appellate Def ender repr esente d to this court that while her “off ice has eig hty (80) full-time and fourtee n (14) part-time assistant defe nders working on case s,” they are curr ently experiencing “a backlog of approximately 1043 unbriefe d case s.” People

v. Br own, No. 1-11-2009 (pending appeal ; motion for extension of time to file brief for appellant, pag es 1-2, para g raph 8, filed Fe bruary 24, 2012). The State’s Attorney ’s office ’s appellate staff has also repr esente d that its office is experiencing “a backlog of o v er 200 unassig ned ca s es , and an understaf fed Criminal Appea ls Division *** which is curr ently down 37 assistant state’s attorney s and one para leg al.” People v. McKinney
, No. 1-10-3696 (pending appeal; motion for an extension of time for the filing of the people’ s brief, pag e 2,
para g raph 10, f

iled Fe bruary

28, 2012). ¶ 10 We hold that the instant postconviction petition was timely filed an d
, as s u ch, is not

m o ot. Our decision rests on a foundation of prior I llinois Supreme Court case s wh er e t h e

co u rt h as made clea

r that all that is require d is that a petitioner must still be serving any sentenc e imposed, including any period of mandatory supervised rele ase, at the time of the initial timely filing of his petition. People v. Davis
, 39 I ll. 2d 325 (1968); People v. Carrera
, 239 I ll. 2d 241 (2010). ¶ 11 Specifica lly , the Davis court dire ctly addre ssed this issue, as follows:
“From the outset of the post-conviction hearing the State has asserted that the petition should be dismiss ed beca

use Davis was not incar cer ated at the time the cause was hear d. The State relies on the wording of the Post-Convi ction Hea ring Act which g ives ‘any
person imprisoned in the penitentiary ’ the ri gh t to alleg e a substantial denial of constitutional rig hts [citation] and this court’s comment that the leg islative intent behind this provision was ‘to make the reme dy available only to persons actua lly being deprive d of t heir li berty and not to persons who had served their sentenc es and who m ight wish

-4-to purg e their rec ords of past convictions.’ [C itation.] I n some j u ri s d i cti ons postconviction reme dies may be utiliz ed to attack unconstitutional convictions reg ardle ss of the fac t that petitioner has fully serve d his sentenc e. [C itations.] Others restric t use of this

reme dy
, usually beca

use of statutory lang uag e, to those persons actually imprisoned at the t ime of hearing

. [C itations.] As there are obvious advanta g es i n purg ing oneself of the stigma and d i s ab i l ities which attend a criminal conviction, we see no rea son to so

narr owly construe this reme dial statue as to prec lude the reme dy in every case in which the petition is not filed and the hearing completed befor e imprisonment ends.” People v. Davis , 39 I ll. 2d at 328-29. ¶ 12 I t wo u l d fr u s t ra t e j u s t ice to shut the door on the one avenue for I llinois prisoners to obtain relief from a criminal conviction on constitutional g rounds becau s e the State and Appellate Def

ender ’s office delay ed, throug h no fault of their own, a petitioner’s case for so long that he eventua lly serve s his entire sentenc e and is rele ased. The just thing to do would be to addre ss the merits of the petition on appea l, which we will do in the rema inder of this opinion.

¶ 13 I I . Procedur al B ackg round ¶ 14 On J uly 10, 1996, a 14-y ear -old g irl named Shekena Waltower was shot in the head and killed as she sat outside her home. A bench trial was held and defe ndant Kenne ith J ones was found guilty of fi rs t d egree murder and sentenc ed to 25 y ear s in prison. A di rec t appea l of J ones’s conviction followed. This court allowed defe nse counsel to withdraw as appellate counsel a nd aff

irmed defe ndant’s conviction afte r determining that there wer e no issues of
arg uable merit pursuant to Anders v. Calif ornia
, 386 U.S. 738 (1967). People v. Jones
, No.1- 99-1235 (Sept. 29, 2000) ( unpublished order under Supre me Court Rule 23). ¶ 15 On M arc h 27, 2001, defe ndant filed a pro se petition for postconviction relief alleg ing that his trial counsel’s repr esentation was constitutionally defic ient beca use counsel had (1) failed to interview certain alibi witnesses; (2) decide d not to call certain alibi witnesses that he had been informed of; and (3) ineffe ctively cross-e x ami n ed t he State’s key witnesses, including a fa i l u re to investigate t he possi bility that another person committ ed the murder

o f S h ekena Waltower. Def endant supported his pro se petition with six aff idavits and an investigative report prepa red by the State’s Attorney ’s office

. On J une 1, 2001 the trial court summarily dismiss ed defe ndant’s pro se petition on the basis of waiver and res judicata beca use eac h of the issues raised in the petition e ither was raised or could have been raised

on direc t appea l of his criminal conviction. On appeal from th e s u m m ar y dismiss al of the postconviction petition, thi s co u rt found that the pro se petition advanc ed the g ist of a constitutional claim. The summary dismiss al of the pro se petition was reve rsed and

rema nded with direc tions to the trial court that the petition be considere d in acc ordanc e with sections 122-4 throug h 122-6 of the Post-Convi ction Hea ring Act (725 IL CS 5/122-4 to 122- 6 (W es t 2 0 0 8 ))

. People v. Jones
, No. 1-10-3731 (June 9, 2005) (unpublished order under Supreme Court Rule 23). Two y ear s later, the public defe nder’ s office filed a supplemental petition. On October 25, 2007, the orig inal trial judge
, J udg e Sumner, order ed an evidentiary hearing on whether defe ndant’s trial counsel provided constitutio n all y in e ffe ctive assistance
,

-5-whether there was sufficie nt evidenc e of defe ndant’s actua l innocenc e and whether there was

a Brady discovery violation by the S tate. B ra d y v. Maryland
, 373 U.S. 83, 87 (1963). The hearing was conducted on various dates from Mar ch 2008 throug h November 4, 2009 and

was presided over b y J u d g e Kevin Sheehan, who hear d the testimony of 12 witnesses; 8 offe red by the defe nse and 4 offe red by the State. The court denied the petitioner any relief

on November 4, 2009. We are n o w asked to revie w the dismiss al of the postconviction petition afte r appointment of counsel and afte r a full evidentiary hearing was held on rema nd.

¶ 16 I I I . Trial F acts ¶ 17 At approximately 10 p.m. on J uly 10, 1996, Shekena Waltower wa s shot in the head in front of her home. She was the innocent victim of a g ang dispute betwee n the Cicero I nsane Vice L ords and the Four

Corner H ustler stree t gang s. At trial, the State prese nted evidenc e that defe ndant Kenne ith J ones and Keith King wer e both members of the Four Corner Hustlers g ang

. They enter ed the territory of the neig hboring Cicero I nsane Vice L ords g ang , pulled out t h ei r automatic handg uns and fired approximately 20 to 30 shots into a small
g roup of people gathere d in front of the h o m e wh er e the vi ctim, Shakena Waltower lived. None of the bullets hit any of the g ang members from the Cicero I nsan e Vi ce L ords who

wer e in front of Shekena’ s house. Howeve r, Shekena was killed almost instantly when a single bullet went throug h her he ad. ¶ 18 During defe ndant’s bench trial
, n u mer o u s w it n e s s e s te s tif

ied reg arding their obser vations that night. Sonia Easley and her 13-y ear -old daug hter, Pia Easley
, lived acr oss the street and

a few houses west from the victim, Shekena. Both m other and daug hter sat on th ei r p o rc h toge ther. Sonia enter ed her home to answe r a ring ing phone. Whil e inside, she hear d two shots, followed by a rapid series of shots. From her second- floor apar tment window, Sonia observe d the defe ndant pointing his g un in a northea sterly direc tion with fire coming out of it. She observe d him f

lee the scene on foot. Sonia positi vely identified defe ndant Kenne ith J ones three hours later

in a police lineup a s the man she sa w firing the g un in the direc tion of Shekena ’s house. ¶ 19 Pia Easley
, while sitti ng on her porch, saw two men walking eastbound down the stree t toward her. She observe d both men leave the sidewalk shortly befor e they rea ched her house and walk into the middle of the street. Shortly afte r the two men passed her, they beg an firing

nu m er o u s times in the direc tion of people g ather ed in front of Shekena’ s home. After the shooting stopped, Pia ran into the hallway of her home and from there she observe d the two

men run back in front of h er building as they fled the scene

. She had never seen t hese two

men befor e, but was able to i d en t i fy both the defe ndant and Keith King in a police lineup three hours later

. ¶ 20 The shooting was also witnessed by David Fr eema n, Der ri c k B r o o k s an d A n to

ju an Chew. David and D errick wer e Cicer o I nsane Vice L ord g ang members a nd the intended victims. David Free man and Antojuan Chew wer e cousins of the victim, Sheke na. As they stood in front of Shekena’ s house, David, Der rick and Antojuan eac h noticed two men walking east

on Fulton and a s they

g ot closer, a ll three re cog nized the two men as m ember s of t he Four Corner Hustler street g ang who lived n orth on Fulton. Cousins Der rick and Antojuan had

-6-attended Spencer Elementary School w ith the defe ndant, Kenne ith J ones, and D avid knew

both approa ch i n g men from the neig hborhood. Der rick also rec og nized Keith King as someone who ha d stolen his y oung er br other’s Mc Donald’s f ood in the rec ent past. ¶ 21 W h en the two men wer e approximately 50 fee t from the g roup g ather ed in fr o n t o f Shekena’ s home, they opened fire and shot betwee n 20 to 30 times at the g roup. Two police office rs arrived at the scene within minutes. They rec eived descriptions of the g unmen from five to eig ht people at the scene

. The witnesses described two black males. The first one was described as tall and thin and wea ring dark clothing. The second one was the same heig ht as the first and wea

ring dark c lothing, but he wa s described as he avier in build and wearing a brig ht, sequined cap. None of the witnesses p rovi ded the police with the names of the
g unmen. ¶ 22 The two office rs immediately left to conduct a sear ch of the are a an d wi t h i n a few minutes spotted the defe ndant, Kenne ith J ones, and another black male who fit the phy sical and clothing descriptions of the pair of g unmen provided by ey ewitnesses. B oth men wer e

arr ested and place d in lineups. Approxim ately three hours afte r the murder, Sonia Easley
, Pia Easley
, David Fr eeman, Der rick Br ooks and Antojuan Chew eac h took turns and positively identified def

endant, Ke nneith J ones, and K eith King as the g unmen. ¶ 23 Def

endant ca l l ed h i s mother, Demetria J ones, his g irlfriend, Cry stal J ohnson, and a friend
, An t won Fa

rmer, as alibi witnesses who testified that the defe ndant was 21⁄2 blocks

away at the time of the shooting . They wer e close enoug h that they hear d the shots fired. ¶ 24 Def

endant, Kenne ith J ones, and Keith King wer e tried toge ther in a bench trial and both

wer e convic ted of the f

irst deg ree murder of

Shekena Waltower. The trial judge g ave little weig ht to the testimony of the two Cicero I nsane Vice L ord g ang members who testified, but considere d the testimony

of the other

ey ewitnesses Sonia Ea sley , Pia Easley and Antojuan Chew, and f

ound that defe ndant’s g uilt was proven be y ond a re asonable doubt.

¶ 25 IV. Summary of the Postconviction Petition and the Hear ing ¶ 26 The postconviction evide ntiary hearing center ed ar ound whether or not it was possible that Shekena Waltower was murdere d by one of Kenne ith J ones’s now-de cea sed fellow g ang members, Dw ight Washing ton. ¶ 27 T h e s upplemental petition filed in support of the pro se petition disclosed three additional alibi witnesses, two of whom signe d aff idavits dated in J une 2006, and claimed to have evidenc e of Kenne ith J ones’s innocenc e beca use of J ones’s wher eabouts on the night of the murder and cer

tain statements Dwig ht Washington alleg edly made to them in 1996. ¶ 28 A total of 12 witnesses testified during the postconviction hearing. The eig ht w itnesses called by the defe ndant wer e Erric k Tig g s, Wil lie Evans, Pia Easley
, Fran k i e Summers, Trillia Sapp, Corey

Baug h, Calvin Davis and Charle s Buc hholz. The four witnesses c alled by the State wer e retire d Chic ago p o l ice detec tive Michae l Mason, Detec tive Michae l L andando, and two State’s Attorney ’s office investigators, Renonia Galvin and J o an n e Ry an. ¶ 29 Erric k Tig g s’s J une 2006 af fi d av it stated he was with the defe ndant and others blocks

away at the time of the shooting. Tig g s also stated that Dwig ht Washington asked him to hide

-7-a g un for him that night beca use he had shot at Cicero Insane Vice L ords and killed the g irl who was shot at 10 p.m. I n a second aff idavit signe d six months later, Tigg s stated t hat he thought of additional information and aver red that 30 minutes be fore the shooting, Dwig ht Washington told him and others that a member of the Cicero I nsane Vice L ords g ang pulled
a g un on him. Washing ton the n attempted to recr uit Tig g s and the others to he lp him catch the g ang member and hurt him. Tigg s now stated that Keith King was the only one willing to g o with D wig ht Washing ton. T igg s also stated he now rec alled that the rema ining g roup went to T igg s’s house afte r they hear d the shooting and that Washington wa s alre ady there when they arrived. Tig g s aver red that Washington ad m i tted that he and King wer e the shooters. Tig g s stated that he urg ed Washington to turn himself into police and further stated that he told all of this to J ones’s trial attorney at the start of

J ones’s trial. ¶ 30 At the postconviction hearing, Erric k Tig g s testified that he, defe ndant and others we re play ing basketba ll when Keith King and Washington, who wer e also prese nt, left. Tig g s told the court that he hear d shots 10 to 15 minutes later. The g roup then was heade d to the liquor
store when defe n d an t and King wer e arr ested on the street. Neither Tig g s nor any one else

came to their defe nse at the time of the arr est. When Tig g s arrived home about an hour later, he stated Dwig ht Washington was at his home with five other people. Tig g s testified that he did not see Dwig ht Washington with a g un all night. He was still with Washington in the

early morning hours of the next day and afte r ever y one else had left, he testified, Washington “basic ally told me he was, he went down there
, he was shooting, he think he shot somebody
, and blah, blah, and that’s about it.” Tig g s testified that two day s later, he urg ed Washington
to turn himself in. He further related that in Fe bruary 1997 he offe red to wea r a wire to prove Washington’s alleg ed admissions during an interview with an assistant State’s Attorney

. Tig g s testified at the hearing to two meeting s he had with d ef en d an t ’s trial counsel, but during cross-e x amination, he denied that he told defe ndant’s attorne y about W ashing ton’s alleg ed admissions. ¶ 31 The second affidavit was from Wil lie Evans. His affidavit stated that on the day of t he shooting he was with a g roup of men that included the de fendant and Dwig ht Washing ton. He state d Washington left the g roup. About 15 minutes later he he ard shots and de fenda nt

was still with him. He stated that defe ndant was arr ested while the g roup walked to a liquor
store. He stated that Keith King had joined them while they wer e walking

. I t was at that time that defe ndant and King wer e arr ested. Evans then t est ified that he went to Tig g s’s home. Dwig ht Washington came there at about 11:3 0 p

. m

. E v ans claimed in his aff idavit that Washington t old him he and someone else had seen “Dirty De rr i ck” that night and started shooting at him. He stated that Der rick ha d g rabbe d a little g irl to use as a shi eld as he ran

away

. Evans stated he spoke to defe ndant’s trial counsel and stated he was willing to testify but was neve r called. He testified to this at the he aring , as we ll. ¶ 32 Pia Easley
, an ey ewitness w h o p o sitively identified defe ndant in a lineup three hours af ter the murder and ag ain at trial, retra cted her positive identification of defe ndant. I n her first aff idavit, Pia aver

red that Kenne ith J ones wa s n o t o n e of the g unmen. I n an amende d aff idavit, she now aver

red that she was “now convince d that I do not know if he was one of the two” g unmen. Although she stated in her first aff idavit that defe ndant’s trial attorney

never tried to interview her, she stated in her second, amende d aff idavit that he attempted to

-8-interview her but that her mother, Sonia Easley
, also an ey ewitness, did not allow h i m to

interview her. Pia also aver red in her second aff

idavit that her vision in her left ey e was poor when she was not wea

ring g lasses. She aver

red that even though she had astig matism in her rig ht ey e, she could see out of her rig ht ey e. She also stated that the assistant State’s Attorney d i d not forc e her to testify ag ainst Kenne ith J ones at his trial. She stated she convinc ed herse lf he wa s the g unman and told the prose cutor she w as sure it was him. ¶ 33 At the hea

ring , Pia Easley

testified that she ha d a slight astig matism in her left ey e and that her rig ht ey e wa s p er fec tly fine. She stated that she could distinguish shapes at any distance. She also stated that at night she could rec og nize someone’s fac e without corr ective lenses. She admitted that she was not wea ring any corr ective ey ewe ar while testify ing at the hearing and she could see just fine. Pia stated she was still positive about her trial testimony which identi fi ed Keith King as one of the g unmen, but no longe r was as certain about her identification of Kenne ith J ones. She test i fi ed s h e was having second thoughts about her pri o r positive identification afte r having conver sations with the defe ndant’s sister, with people who claimed to know certain things b u t n ever came forwa rd to testify
, and with people who stated the real g unman that night told them he wa s the one who committed the murder. ¶ 34 Fr ankie Summers testified at the postconviction hearing that in 1996 on the night of the murder, she and her sister wer e selling food on their porch while a g roup of men, including defe ndant, wer e play ing basketball in the back. She stated that the defe ndant was there when shots wer e fired t hat nig ht. She denied eve r see ing him lea ve the area that night. Although Summers verified the signature on her aff idavit a s hers, she initially had no re collection of signing it, did not know who prepar ed it, and did not know who re quested that she sig n it. ¶ 35 Trillia Sapp testified at the postconviction hearing that Dwig ht Washington periodica lly stay ed at he r house during the summer of 1996. S he testified that on the day of the murde r when the sun was still up, Dwig ht Washington came to her home and told her he had “messed up.” She testified that later she overhe ard Washington state that he had shot the g irl. She also overhe ard him make simil ar comments to others the following day

. Sapp stated that she never told any one about overhe aring these comments until late 1 9 9 7 wh en she told a fema le assis tant State’s Att orney who had called her home looking for E rr i ck Tigg s. Sapp also testified that she never told defe ndant’s t ri al attorney about these comments she alleg edly overhe ard Washing ton make to others. ¶ 36 Corey Baug h was also called to testify at the hearing. He was in p ri s o n fo r a m u rder conviction at the time of the hearing. He t es t i fi ed that he was prese nt when Shekena Waltower was murdere d. Although police reports indicated that Ba ug h tentatively identified the defendant as one of the shooters i n the original l ineup i n 1996, he testi fied that he tol d police off icer s that defe ndant was not one of the shooter s and re peate d this to the assis tant State’s Attorney befo re h e was called to g ive g rand jury testimony in the case

. Ba ug h admitted on cross-e x amination that his testimony at this hearing was differ ent from what he previously told investigators. Baug h further testified that p o l i ce o fficers tried to coax him into identify ing defe ndant in the lineup but he ref used and stated that defe ndant was not one of the g unmen.

-9-¶ 37 Calvin Davis also testified at the postconviction hearing claiming to be an ey ewitness to

the murder. He is a four- time convicted felon. He admitted that he did not tell any one what he witnessed until 11 y ear s afte r the murder. He was interviewe d by S t at e’ s Attorney investigators and told them he learned that Dwig ht Washington was one of the g unmen from

an unnamed friend. He testified that he knew the def en d an t from the neig hborhood and beca use he was there on the night of the murder and saw what happene d, he knows defe ndant was not one of

the g unmen. ¶ 38 Def

endant’ s trial counsel, former Assistant Public Def ender Charles Buc hholz, t estified
at the postconviction hearing. Buc hholz testified that afte r being apprised of Tig g s’s

s ta te me n t p o s s ibly implicating Dwig ht Washington, he met with Washingt o n at Co o k Co u n ty jail pri or to trial. He observe d that Washington and defe ndant share d a simil ar heig ht and build. He informed Washington of the alleg ations possibly implicating him, and further added that he did not believe his client committed the murder. He also asked W as h i ng ton why he was letting one of his f ellow g ang members g et blamed for something Washing ton did. Washington responde d with a shrug

. Buc hholz conclude d, in his profe ssional opinion, that no benef

it would result from calling Washing ton as a witness at J ones’s trial. ¶ 39 Buc hholz testified that he interviewe d all 19 witnesses that defe ndant’s mother provided
to him, visited the scene , revie wed all investigative reports and all of the witn es s es’ statements, revie wed the l i n eup identifications and rea d the g rand jury testimony and
persona lly co n d u ct ed interviews of key witnesses. Buc hholz testified that he never hear d Calvin Davis mentioned while prepa ring for trial. Buc hholz testified as to why he did not call

certain witnesses who subsequently testified at the postconviction hear ing. Ba sically
, the alibi witnesses contra dicted themselves and eac h other as to key fac ts, like whether and when Kenne ith J ones and Keith King wer e with them. Corey Baug h was not called beca use of his tentative identification of defe ndant during the lineup. One of the alibi witnesses seeme d to not do a g ood job during trial testimony and Buc hholz did not w ant to hurt the defe nse any more than had already been done with this witness’s trial testimony by calling more of the

same. ¶ 40 T h ree months afte r Buc hholz testified, the defe n s e m o v ed t o ad m i t Bu ch h o l z ’s subsequent aff

i d av i t as additional evidenc e in support of the postconviction petition. Buc hholz aver

red that it was his belief that the defe ndant did not commi t t h e m u rd er of Shekena Waltower. The court ref used to admit Buc hholz’s aff idavit into evidenc e, holding that trial counsel’ s persona l opinion reg arding his client’s g uilt was irrele vant. ¶ 41 T h e S t at e called four witness at the postconviction hearing. Retired Chicago p o l i ce detec tive Michae l Mason testified that he was prese nt when Pia Easley
, an ey ewitness at the trial and an equivocating witness at the postconviction hear i n g, p o sitively identified the defe ndant in the 1996 lineup. He stated that Pia never ex p ressed any doubt as to her identification and no one instructed her that she m ust pick out two people. He also had no

rea son to question whether Pia ha d any vision problems. ¶ 42 Detec tive Mason also testified reg arding Corey Bau gh ’s postconviction testimony . He testified that Ba

ug h tentatively identified the defe ndant in the 1996 lineup. Mason specific ally denied putting any pressure on Baug h to positively identify defe ndant. He also

-10-testified that Baug h never identified Keith King in the lineup. Baug h also never ref err ed to any names or said he knew one of the g unmen. Further, M as o n stated that Baug h never claimed to have seen e ither of the two g unmen’s fa ces. ¶ 43 The State ca l l ed De t ec tive Michae l L andando reg arding Erric k Tig g s’s postcoviction testimony

. Detec tive L andan d o was prese nt during the 1997 interview of Erric k Tig g s in relation to this murder. He u n equivocally testified that the possibili ty of Tig g s wea ring a

rec ording device was never mentioned b y h i m , T i g g s or t he assist ant S tate’s Attorney

. He also stated tha

t D w ig h t Washing ton was the only person ever named or interviewe d reg arding
any alleg ed admission made by Washington t o a third party

. Detec tive L andando testified that he talked to Washington and he denied making any statements to any one that implicated him in the m urder of S hakena Waltower. W ashingt o n stated t hat on the day of t he murder he play ed basketba ll for m o st of the day and was home taking a shower and ironing his clothes when the murder occur red. Washington stated he learned of the murder later from Erric k Tig g s and that Tig g s would say anything that g ang office rs told him to s ay

. ¶ 44 S t ate’s Attorney ’s office investigator Renonia Galvin testified at th e p o s t co n v i ct i o n hearing as to her intervie ws of Frankie Summers, Corey Baug h and C alvin Davis. Frankie Summers corr ecte d her aff idavit to indicate her belief that t h e m u rd er occur red at 8 p.m. instead of when it actua lly occur red at 10 p.m. Corey Baug h told her that he was prese nt and when g unmen started shooting he immediately ran away and fell to the g round. Calvin Davis did not tell Investig ator Galvin that he was able to see th e g unmen’s fac es and never mentioned their c omplex ions. ¶ 45 State’s Attorn ey ’s office investigator J oanne Ry an testified about her interviews with three postconviction witnesses, Wi ll ie E v an s , T ril lia Sapp and Erric k Tig g s. Evans stated that he hear d the shots betwee n 6:30 p.m. and 7 p.m., and clarif i ed it as about the time it was “starting to g et dark.” Trill ia S app st ated to Investig ator Ry an that it was sti ll light outs ide when Dw ight Washing ton arrive d at her home and it was still light when Errick T igg s and the others arrived. Sapp stated she overhe ard Dwig ht Washington state he had “messed up” and overhe ard others tell Washington to turn himself in. Erric k Tig g s told I nvestig ator Ry an that at 6 p.m or 7 p.m. he was with a g roup and that Dwig ht Washington and Keith King left the are a. Appro x imately 15 minutes afte r they left, Erric k Tig g s hear d shots fired. Tig g s place d Kenne ith J ones with him at the time he hea rd those shots at 6:15 p.m. or 7:15 p.m. ¶ 46 At the conclusion of the hear ing, J udg e Sheehan found that defe ndant’s trial “counse l’s perf ormanc e fell well within the competenc y standards of Strickland. ” S t r i ckland v. W ashington
, 466 U.S. 668 (1984). The court found the testimony of Tig g s, Sapp and Evans failed to mee t the criteria for reliability outlined in Chambers v. Mississippi , 410 U.S. 284 (1973). The court held that the bench trial was not a “close ly balanc ed” case and reje cted the defe nse’s arg ument that the testimony of Tig g s, Sapp and Evans could be used to corr oborate

eac h other. The court found the testimony of both Baug h and Davis incre dible. I t found that their testimony s contra dicted eac h other’s and the other admitted evidenc e from the criminal trial and postconviction hearing. The court also found that d ef en d ant failed to prese nt a fre estanding claim of actua l innocenc e because the s ame evidence used t o support a claim of innocenc e was also used to support his claim of ineffe ctive assistance of counsel. For all the above rea sons, the court de nied def endant’ s postconviction petition.

-11-¶ 47 V. Analy sis

¶ 48 A. Standard of Review ¶ 49 Kenne ith J ones was aff orded a full evidentiary hearing on the constitutional issues raised in his postconviction petition. Whil e neither party su b m i t ted a standard of revie w for this
court to apply to our revie w of this hearing, the manifestly err oneous standard is the char acte ristic appellate standard of revie w for finding s of fac t ma de by a trial judge arising from a postconviction hearing. People v. Coleman
, 183 I ll. 2d 366, 384-85 (1998). A judge ’s ruling on a postconviction petition following an evidentiary hear ing is entitled to substantial defe renc e. People v. Scott
, 194 I ll. 2d 268, 276 (2000). Our supreme c ourt has determined that the judge’ s ru ling on a postconviction petition afte r an evidentiary hearing must be aff irm ed u n l ess it is manifestly err oneous. People v. Scott
, 194 I ll. 2d at 276; People v. Morgan
, 187 I ll. 2d 500, 528 (1999). A trial judge commits a manifest err or when the err or is clea r, plain, evident and indisputable. People v. Ortiz
, 235 I ll. 2d 319, 333 (2009) (quoting P eo p l e v. Morgan
, 212 I ll. 2d 148, 155 (2004))

. For a revie wing court to find that a trial judge ’s decision is manifestly err oneou s , it must find that the decision is not based on the evidenc e, is arbitra

ry and is unrea sonable. People v. Leach
, 245 I ll. App. 3d 644 (1993). The burden of convincing a revie wing court that a trial court’s decision was manifestly err oneous is a hea vy one. People v. Gorman
, 207 I ll. App. 3d 461 (1991). I t is this standa rd we apply in our deter

mination of the court’s final ruling following the postconviction hearing in this

case

.

¶ 50 B. The Fairness of the Postconviction Evidentiar y Hea ring ¶ 51 We addre ss defe ndant’s contention that he did not rec eive a fair postconviction hearing and his arg ument of err or in key evidentiary ruling s which he submits su p port his postconviction petition. The trial court allowed eac h of the 12 witnesses to te stify in f ull at the postconviction hear

ing. I t is the analy sis and ruling s reg arding their testimony that are at issue. Much of the evidenc e that was subsequently criticized in the trial co u rt ’s ultimate ruling surrounde d defe ndant’s at t empt to show that Dwig ht Washington, a now-de cea sed fellow g ang member, was the rea l murdere r of Shekena Waltower and that the defe ndant had an alibi for 10 p.m. whe n Shekena w as murder ed. ¶ 52 T h e ru l es o f ev i d en ce ar e n o t ab an d o n ed d u ri ng an evidentiary hearing on a postconviction petition. Whether or not evidenc e is admitted during any hearing is within the sound discretion of the trial court. Such ruling s are not reve rsed unless there is a clea r sh o wi n g of abuse of discretion by the trial court. People v. Tenney
, 205 I ll. 2d 411, 436 (2002). Our supreme court has stated that “[a]buse of discretion is the most defe rential standard of revie w–next to no revie w at all–and is there fore traditionally rese rved for decisions made by a trial judge in overse eing his or her courtroom or in m ai n t ai n i n g the
prog ress of a trial.” (I nternal quotation marks o m i t t ed

. ) In re D.T.
, 212 I ll. 2d 347, 356 (2004). I n this case , an abuse of discretion would exis t only if the trial court’s evidentiary

-12-ruling s are “ar bitrary
, fanc iful or unrea sonable” or when “no rea sonable [person] would take the view adopted by

the trial cour

t.”(Interna l quotation marks omitted.) People v. Donoho
, 204 I ll. 2d 159, 182 (2003). ¶ 53 C. Our Analy sis of Testimony Criticiz ed by

the Trial Court in I ts Final Ruling ¶ 54 Rely ing on Chambers v. Mississippi
, 410 U.S. 284 (1973), the court reje cted statements alleged l y m ade by Kenne ith J ones’s now-de cea sed fellow g ang member, Dwig ht Washington, to others. It is arg ued that Washington’s statements wer e self-inc riminating and

now show that Washington, not Kenne ith J ones, murdere d Shekena Walt o we r. T h e court hear d the witnesses testify in full at the postconviction hearing to Dwig ht Washington’s alleg ed stateme nts, which, it is arg ued, implicate him in the murder

. ¶ 55 Ge nera lly
, unsworn, out-of-c ourt statements made by a dece ased witness or a witness who is bey o n d the court’s jurisdiction are inadmissible hear say , even if the statement purportedly made by the dece ased or unavailable witness is ag ainst his penal interest. People

v. McCallister
, 193 I ll. 2d 63, 100 (2000). This g ener al rule acknow ledg es that to hold otherwise would “ ‘tempt[ ] every one acc used of a crime to introduce perjure d testimony that

a third party , then dece ased or bey ond the jurisdiction of the court, had decla red that he, and

n o t t h e ac cused, had committed the crime.’ ” People v. Tenney
, 205 I ll. 2d 411, 433 -3 4 (2002) ( quoting People v . Lettrich , 413 I ll. 172, 178 (1952)). ¶ 56 Kee p i n g i n mind that a leg al rule is rar ely a rule unless there is an exception, hear say statements may be admitted as justice require s provided they can be shown to be trustworthy

. People v. Tenney
, 205 I ll. 2d at 433-34; People v. Anderson
, 3 6 7 I l l

. Ap p

. 3d 653, 664 (2006). I llinois courts have adopted and applied the four criteria outlined by the United States Suprem e C ourt in Chambers v. Mississippi
, 410 U.S. 284, 300-01 (1973), to demonstrate trustworthiness of hear say such as the purported out-of-c ourt statements at tributed to Washington. The four criter ia used to determine if a h ea rs ay statement falls within the exception are as follows: (1) it was made spontaneously to a close acquaintance sh o rt ly following the crime; (2) it was corr oborate d by other evidenc e; (3) it was self-inc riminating and ag ainst the decla

rant’s i n t er est ; and (4) there is adequate opportunity for crossexamination of the decla

rant. Chambers , 410 U.S. at 300-01. ¶ 57 The exis tence of all four Chambers criter ia is not a condition pr ece dent for a stateme nt to come within the exception and be admitted. People v. Tenney
, 205 I ll. 2d at 435-36. Howeve r, g ener ally
, if o ne or more of the criter ia, but not all four, are met, the hear say statements are held to be insufficiently trustworthy

. People v. Gallano
, 354 I ll. App. 3d 941, 957 (2004). I n I llinois
, the key to whether the hear s ay i s admissible “is whether the d ec l aration was made under circ umstances that provide ‘consider able assura nce’ of its reliability by objective indicia o f tr u s tw o r th in e s s

. ” ( In tern a l q u o ta

ti o n marks omitted.) People

v. Abrego
, 371 I ll. App. 3d 987, 992 (2007) (quoting People v. Bruel
, 111 I ll. 2d 58, 67 (1986))

. ¶ 58 Be cause Dwig ht Washington is now dead, the above- mentioned fourth Chambers fac tor cannot be met. There is no opportunity
, adequate or otherwise, to cross-e x amine Washington about the statements attributed to him by others at the postconviction hearing. What we do

-13-know from the testimony of defe ndant’s trial attorney , Buc hholz, at that same hearing is that

he met with Washington prior to Kenne ith J ones’s criminal trial. Washington was also alive during the pendency of t he trial. Buc hholz questioned W ashing ton, who was incar cer ated, about information Buc hholz obtained that indicated Washington may have been the g unman. Washington provided an alibi and denied being the g unman. Additionally
, the State pursued this theory that Washington may have been one of the two g unmen based on information Erric k Tig g s supplied to the State that implicated Washington. Prior to defe ndant’s criminal trial, Detec tive L andando also interviewed Washington. He provided Detec tive L andando with the identical alibi he gav e to Buc hholz. Ag ain, Washington denied having any involvement in Shakena Waltower’s murder, reinfor cing Buc hholz’s appropriate trial strateg y to neither call Washington as a witness nor pursue this avenue of defe nse with other witnesses. Detec tive L andando testifi ed t o W ashing ton’s denial at the postconviction hearing. ¶ 59 T h e ci rcuit court analy zed the postconviction testimony from the witnesses who w er e implicating Washington throug h statements h e alleg edly made under the three rema ining Chamber s cr iteria and found that Buc hholz did not provide ineffe ctive assistance at trial wher e the testimony of Tig g s, Evans and Sapp would not qualify fo r admi ssion under Chambers beca

use the court could not find the requisite “conside rable assura nce” of
t rustworthiness that Washington actua lly made these statements. People v. Anderson
, 367 I ll. App. 3d 653, 668-69 (2006). Washington’s alleg ed statements would not q u al i fy for admission at any

retrial for the sa me re ason. ¶ 60 Kenne ith J ones is also attempting to est ab l i s h a cl ai m of actua l innocenc e based on alleg ed new ly discovere d evidenc e in the form of the samewitnesses’ testimony reg arding
statements Washington alleg edly made following the murder and b efore trial. Newly discovere d evidenc e in support of a defe ndant’s innocenc e is a cog nizable postconviction petition claim as a matter of I llinois constitutional justice. People v. Johnson
, 205 I ll. 2d 381, 392 (2002); see People v. W ashington
, 171 I ll. 2d 475 (1996). Howeve r, our supreme court has cautioned that the newly discovere d evidenc e m u s t , i n fact, be new, materia l, noncumulative and so conclusive that it would probably chang e the result at trial. People v. Johnson
, 205 I ll. 2d 381, 392 (2002). Newly discovere d evidenc e is de fined as “ ‘evide nce that was unavailable at trial and cou l d n o t have been discovere d sooner throug h due diligenc e.’ ” People v. Snow
, 2012 I L App (4th) 110415, ¶ 21 (quoting People v. Harris
, 206 I ll. 2d 293, 301 (2002))

. Evidence is not deeme d newly discovere d evidenc e when the petition “ ‘pre sents fac ts alre ady known to a defe ndant at or prior to trial, though the source of these fac ts may have been unknown, unavailable or uncooper ati v e. ’ ” People v. Snow
, 2012 I l App (4th) 110415, ¶ 21 (quoting People v. Colli er , 387 I ll. App. 3d 630, 637 (2008))

. Clearly
, the statements attributed to Washington are neither new nor conclusive wher e Buc hholz was awa

re of them and the postconviction court found they wer e not trustworthy

. ¶ 61 Additional witnesses te s ti f ie d a t the postconviction hearing to attempt to buttress the alibi defe nse prese nted at defe ndant’s criminal trial. That portion of the testimony was cumulative and could have been discovere d sooner. People v. Harris , 206 I ll. 2d 293 (2002) (a ffirme d the dismiss al of the claim of actua l innocenc e without an evidentiary hearing)

. I n any event, the additional alibi information and the rema ining portion of the witnesses’ testimony wer e

-14-held by the postconviction court to be contra dictory to eac h other an d to the testimony at

trial. Additionally
, at l east two of t h e wi t n es ses, Evans and Tigg s, provided affidavits t hat did not match their in-cou rt t estimony

. Def endant’ s criminal trial attorney , Buc hholz, testified that he chose not to call any additional alibi witnesses during the criminal trial afte r the initial alibi witnesses had discrepancies and did poorly on t h e wi tness stand. Further, Der rick Br ooks, a witness at the scene of the murder who testified during the criminal trial, stated that he knew Washington and Washington was not one of the two g unmen who wer e shooting the night Shekena Waltower was murdere d. Additionally
, Br ooks testified that he submitt ed a statement to defe ndant’s trial attorney that exonerated defe ndant beca use he was made to believe by defe ndant’s friends that if he did not do so they would reta liate ag ainst him. For all the fore g oing rea sons, the trial court proper ly ruled that the testimony from the various postconviction witnesses was unreliable and cert ai n l y not of such a conclusive char acte r that it would probably result in a diffe rent outcomeat re trial.

¶ 62 D. Recantation Testimony of Ey ewitness ¶ 63 Gene rally
, a witnes s ’s rec antation of his or her prior testi mony is viewed as inhere ntly unreliable

. People v. Steidl
, 177 I ll. 2d 239, 260 (1997). A court should not g rant a new trial

on that basis except in extraordinary circ umstances. People v. Steidl
, 177 I ll. 2d at 260; see also People v. Caldwell
, 218 I ll. App. 3d 1007, 1010 (1991); People v. Nash
, 36 I ll. 2d 275, 284 (1966). Most importantly for the instant case , rec antation evidenc e, standing alone, does
not rise to the level of a constitutional violation that would entitle a convi ct ed person to a postconviction evidentiary hearing, let alone postconviction relief

. People v. Brown
, 169 I ll. 2d 94, 106 (1995); People v. Steidl
, 177 I ll. 2d at 260; People v. Caldwell
, 218 I ll. App. 3d 1007 (1991). Our supreme court has long rea soned that “[i] n the absenc e of an alleg ation of the knowing use of false testimony
, or at least some lack of diligenc e on the part of the State, there [i s] no involvement by the State i n the false testimony to establish a viol ation of due
proce ss. [C itation.] Wit hout such involvement, the action of a witness falsely testifying is an action of a private individual for which there is no reme dy under the due proce ss cl au s e. ” People v. B r o w n , 1 69 I ll. 2d at 106. Be cause defe ndant cannot establish any due proce ss violation, he is not entitl ed t o relief based on Pia Easley ’s postconviction testimony that,
y ear s later, she is simply no longe r sure that defe ndant was one of the g unmen who murdere d Shekena Waltower

. I n any event, even without Pia’s ey ewitness account, there were other
ey ewitnesses who identified defe ndant at his criminal trial, including one, Antojuan Chew, who had known de fendant since g rammar school.

¶ 64 E. The De fendant’s Alleg ed Brady Violation Claim ¶ 65 Pursuant to the due proce ss clause of the fourtee nth amendment, the State must disclose
to the defe nse any exculpatory e vidence
, including information that could be used to impeach

a witness. Brady v. Maryland
, 373 U.S. 83, 87 (1963). Brady require s that if the State does
not disclose evidenc e, the nontender ed evidenc e must be both favor able to the acc used and materia l befor e relief can be allowed. Fa vorable ev i d en ce is materia l “only if there is a

rea sonable probability that, had the evidenc e been disclosed to the defe nse, the result of the

-15-proce eding would have been differ ent.” United States v. Bagley
, 473 U.S. 667, 682 (1985).

¶ 66 The re canting ey ewitness, Pia Easley , testified at the pos tconviction hearing that when she met with the prosec utor she related her unc erta inty as to the identity of Kenne ith Jones

as one of the g unmen, but chose J ones beca use she was told by police at the lineup that she
must choose two people. Def endant arg ues that his trial counsel was never informed that Pia Easley was uncertain about her identification and submits that the State’s failure to disclose exculpatory information concerning Pia Easley was a Brady violation that should result i n

a new trial. Despite Pia Easley ’s belated claim, Detec tive Mason testified that he never told Pia she had to identify two people at the l i n eup, that Pia never expressed doubt as to her identification of the defe ndant as the g unman and never tentatively identified the defe ndant based only on build. He unequivoca lly stated that Pia’s identifications of the two g unmen at the lineup wer e positive. I n her second, amende d aff idavit, Pia Easlely aver

red that she told the prosec utor that she was sure Kenne ith J ones was one of the g unmen. Given the differing versions of Pia Easley ’s acc ounts of events contained in h er two aff idavits, her trial testimony and her postconviction hearing testimony
, t h e t ri al court was well within its discretion to r ejec t the Brady violation c laim that w as based entirely on her postconviction testimony
, which lacke d cre dibilit y and was rebutted by other testimony at the hearing. I n any event, the c ourt determined that Pia E asley ’s now-prof essed uncertainty reg arding her tria l testimonywas not of such streng th that it would probably have chang ed the trial outcome. Def endant wa s adequately

identified by

other e y ewitnesses at trial and a 13-y ear -old g irl’s flee ting doubt, even if it was expressed to the State, would be insufficiently materia l to bring about a diff

ere nt outcome at trial.

¶ 67 F. Alleg ation of Ineff ective A ssistance of Counsel ¶ 68 I n I llinois
, claims of ineffe ctive assistance of trial counsel are judge d by the standard set forth in St r i ck l a nd v. W

ashington
, 466 U.S. 668 (1986). People v. Coleman
, 183 I ll. 2d at 397. I n order to prevail on his claim, defendant must first establish that his trial attorney ’s perf ormanc e was defic ient in that “counse l made err ors so s er ious that counsel was not functioning as ‘counse l’ g uaranteed defe nda n t b y th e Six th Amendment.” (Interna l quotation marks omitted.) People v. Coleman
, 183 I ll. 2d at 397. There is a strong presumption that the action or inaction by a trial attorney was the product of sound trial strateg y and not incompetence. People v. Coleman
, 183 I ll. 2d at 397 (citing People v. Barrow
, 133 I ll. 2d 226, 247 (1989))

. ¶ 69 I n t h i s ca s e, there is a claim that trial counsel failed to adequately investigate the alibi defe nse and t his prec luded him from calling Wil lie Evans, Fr ankie Summers and Erric k Ti ggs in defe ndant’s criminal trial. This was rebutted by defe ndant’s attorney ’s postconviction testimony and others. Def endant’ s trial attorney testif ie d a t th e p o s tc o n v ic ti on hearing to both his pretria l actions and his trial strateg y which evolved as the trial unfolded. He persona lly interviewe d sever al of the prosec ution’s witnesses, including the ey ewitness, S o n i a Easley

. He attempted to interview 13-y ear -old ey ewitness Pia Easley
, but was preve nted from doing so by her mother, Sonia. He interviewe d all 19 witnesses identified by defe ndant’s mother. He also spoke with Evans and Tig g s, who failed to ever tell him about

-16-Washington’s alleg ed statements implicating him in the murder. He persona lly interviewe d

Dwig ht Washington in jail. ¶ 70 Buc hh o l z t es t i fi ed t h at he revie wed every criminal report, all statements, the lineup
proce dure and identifications, the g rand jury testimony and other test results. He develope d

a trial strateg y of attacking the persona l identifications and prese nting the alibi witnesses. Baug h was not interviewe d as no o n e p rese nt at the scene ever identified Baug h as being
prese nt. I n any event, the postconviction court found Baug h, a convicted murdere r, and his postconviction testimony incre dible as it c ontradicte d ballistics e vidence and photos of the murder scene. The alibi witnesses at the evidentiar y hearing contra dicted themselves and others who wer e called and not called at trial. Def endant’ s trial attorney made a rea sonable strateg ic dec ision not t o call more a libi witnesses. Additionally , the postconviction court’ s ruling excluding the aff idavit of Buc hholz’s persona l opinio n re g arding his client’s innocenc e was a proper one. I f the shoe wer e on the other foot, and Buc hholz had prepa red

an aff idavit stating he firmly believed his client was g uilty
, it would have been met with the identical objection the State made and would have been equally inadmissible. It is axiom atic that in our sy stem of justice, it is the tri er o f fac t who resolves fac tual disputes and determines whether

the State has prove n its case be y ond a re asonable doubt. ¶ 71 W e h o l d t h at d ef en s e co u n s el ’s p er fo rm ance met the objective s t an d ar d o f

rea sonablene ss. People v. Manning
, 241 I ll. 2d 319, 326 (2011). We cannot find one instance wher e defe nse counsel was defic ient in his defe nse, let alone an instance wher e any claimed defic iency prejudice d the defe ndant. Manning
, 241 I ll. 2d at 326. In any event, prejudice can only b e s h o wn when there is a rea sonable probability that, but for defe nse counsel’s unprofe ssional err ors, the outcome of the trial would have been differ ent. Manning
, 241 I ll. 2d at 326. Given the State’s strong case involving indepe ndent ey ewitnesses, the re w as no such re asonable probability of a diff ere nt outcome other tha n a convic tion. ¶ 72 For all of these above rea sons, defe ndant has failed to meet his burden of demonstrating he had r ece ived ineff

ective a ssistance of c ounsel.

¶ 73 VI . Conclusion ¶ 74 Fa

r from bein g m an i fe s t l y er ro neous, the trial judge ’s final decision dismiss ing the defe nd an t ’s postconviction petition following a full evidentiary hearing was strong ly supported by the admissible evidenc e and was leg ally proper

. There fore
, we aff irm the circ uit court’s or der dismissing the postc onviction petition.

¶ 75 Affirmed.

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