## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Alm odovar , 2013 IL App (1st) 101476

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. ROBERTO A L MODOVA R, Defe ndant-Appe llant.

District & N o. First District, F ifth Division Docke t No. 1-10-1476

Filed J anuar y 18, 2013

Held (Note : Thi s syl lab us

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

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

o r t h e

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

f t h e

rea der

. ) The first-stag e dismiss al of defe ndant’s succe ssive postconviction petition was reve rsed on the g round that the cause -and- prejudice test was satisfied by his alleg ations that the dete cti ve involved in his case influence d the identification of defe ndant through improper proce dures, and the c ause w as re manded f or sec ond-stag e proc eeding s.

Dec ision Under
Review Appea l from the Circuit Court of C ook County , No. 94-CR-24318(01); the Hon. James B. L inn, J udg e, pre siding.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Sean Col lins-Stapleton, all of State Appe llate Def

ender ’s Off

ice, of Chicag o, for a

ppellant.

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

. Spellberg
, Mary Nee dham, and Wil liam L

. Toffe nett i
, Assistant State’s Attorney s, of counsel), f

or the People.

Panel J USTI CE TAYL OR delivere d the judg ment of the c ourt, with opinion. Presiding J ustice McB ride and J ustice Howse concur red in the judgme nt and opinion.

OP INION

¶ 1 Def

endant Roberto Almodovar appea ls from a judgme nt denying his m o t i o n t o fi l e a

succe ssive postconviction petition. ¶ 2 Def

endant was char g ed with involvement in a 1994 drive-by shooting, due in part to the investigative eff

orts of De tective Rey

naldo Gueva

ra. Following trial, defe ndant was f ound
guilty of first degree murder, attempted murder, and ag g ravated battery with a firea rm, and he was sentenc ed to a term of natura l life in prison. In 1998, defe ndant filed his first petition for postconviction relief

, contending that the prosec ution had fail ed t o produce materia l evidenc e that would h ave exculpated him, in violation of Brady v. Maryland
, 373 U.S. 83 (1963). In particula

r, defe ndant all ege d that the prosec ution failed to disclose that key
prosec ution witnesses J ackue line Gra nde and Kenne lly Saez, who identified defe ndant in a l i n eup and at trial, had been shown a photogr aph of the defe ndant by Detec tive Gu ev ar a shortly befor e they viewed the lineup. After a hearing, the circ uit court denied the petition. ¶ 3 In 2010, defe ndant filed a pro se motion for leave to file a succe ssiv e p o s t co n v i ction petition. This motion is the s ubject of the instant appea l. In this motion, defe ndant allege d that newly discovere d evidenc e supported his Brady claim, namely
, evidenc e that Detec tive Gueva ra was involved in a pattern of flagrant misconduct wher eby he manipulated witnesses
to falsely identify individuals in multi ple other c ases. The circ uit court denied defe ndant’s motion, and defe ndant now appe als. For the re asons that follow, we reve rse a nd rema nd.

¶ 4 I . BA CKGROUND ¶ 5 I t is undisputed that in the ear ly morning hours of Sept em b er 1, 1994, Amy Merke s, J org e Rodrigue z, J ackue line (Jackie) Gra nde, and Kenne lly Saez wer e the victims of a driveby shooting on Chicag o’s west side. Amy and Jorge wer e fatally

shot, and J ackie was shot in the back but survive d. ¶ 6 Def

endant and his codef

endant Wil liam Ne gro n we re ch ar ged wi th the first degree

-2-murders of Amy and J org e, the attempted first degree murders of J ackie and Kenne lly
, and

the aggravated battery with a firear m of J ackie

. The S tate’s theory of t he case was that the shooting was motivated by s t reet g ang war far e. Acc ording to the State, both of the defe ndants wer e members of the g ang known as the Insane Dra g ons (Dra g ons), which was then at war with the g ang known as the Maniac L atin Disciples (Disc i p les). The shooting took place in Disciple territory
, and two of the victims, J org e and Kenne lly
, wer e members of the Disciples. Def

endant, meanwhile, raised an alibi defe nse, alleg ing that on the night of the shooting, he was at home with his aunt and his g irlfriend. He also denied being a Dra g on at the time of the shooting

. ¶ 7 The defe ndants wer e g iven a joint trial. Be cause defe nd an t ’s cl ai m s i n t h is appea l

conce rn the validity of the evidenc e supporting his conviction, the salient fac ts prese nted at trial shall be discussed below. The State had n o p h y sical evidenc e direc tly linking the defe ndants to the crime; acc ording ly
, its case cente red primarily around the testimony of the two surviving vic tims, Kennelly and Jackie, and the ir identification of the defe ndants. ¶ 8 Kenne lly testified that he had been a member of the Disciples for approximately a y ear and a half prior to the shooting. He stated that, at the time of the shooting, the Disciples and the Dra g ons wer e at war over territory –specific ally
, the street upon which Kenne lly lived. He descr ibed the corne r wher e he lived as a neutra l corne r, but one which mostly Disciples passed through. ¶ 9 Kenne lly testified that at approxima t el y 1 2 : 3 0 a.m. on September 1, 1994, he and his friends Amy
, J org e, and J ackie wer e sitti ng on his front doorstep and talking. He stated that the are a around the doorstep was “ver y open,” wit h l i gh ts in front of the doorwa y and not

m an y t re es

. Nea

r 1 a.m., he saw a blue Oldsmobile speed by

. It went into an alley
, th en

reve rsed ba ck towar d them and ca me to a stop in front of Ke nnelly ’s porc h. ¶ 10 Kenne lly stated that he walked toward the car , s t o p p i n g fi ve or six fee t awa y

. At that time, he said, he could see the driver and the rea r passeng er o n t h e driver’ s side, whom Kenne lly identified in court as Negron and the defe ndant, respe ctively

. Kenne lly said that he had not pre viously

met either of

them at the time of the shooting

. ¶ 11 Acc ording to Kenne lly
, the defe ndant said, “What’s up, folks.” Kenne lly explained that this is a ty pical g ree ting used by members of g ang s that are part of an alliance known as the “folks.” Kenne lly did not respond in kind, beca use he was frightened that defe ndant was not act u al l y a member of the folks. Instead, he said, “Who’s that? ” As soon as he spoke, the defe ndant pulled out a gun and pointed it at him. Kenne lly took cover behind another parke d

car on the street. He hear d eig ht or nine gunshots, a nd then he hear d the car skidding awa y

. He g ot up and ran inside, wher eupon he found that Amy
, J org e, and J ackie had all been shot. ¶ 12 Subsequently
, on September 12, 1994, Kenne lly testified that the police called him a nd J ackie to see a lineup of suspects. The lineup was conducte d by Detec tive Gueva ra. Kenne lly testified that Detec tive Gueva ra did not at any time te ll him who to pic k, and he and J ackie viewed the lineup separ ately

. In that lineup, Kenne lly ident i fi ed both the defe ndant and Negron. ¶ 13 C o u n s el fo r the State then elicited testimony from Kenne lly about a rec antation of his identification that he made in Marc h 1995. Kenne lly stated that his g ang leade r Ki Ki order ed

-3-him to g o to the office of Melinda Power, who at the time was counsel for the defe nse, and

tell her that he could not identify the assailants. Kenne lly did as he was told. He testified that the statement he g ave to Power on that day was a lie. He said that if he had ref used to follow order s, the g ang would have g iven him a “violation,” which is where a “group of guy s beat
you up for like three or four minutes head to toe.” On cross-e x amination, Kenne lly admitted that when h e gav e h is statement to Power, he aver red that he was not being pressure d or forc ed into makingthat statement. ¶ 14 Kenne ll y fu rther stated on cross-e x amination that he was curr ently in jail for violation of his prob at i o n fo r an unrela ted robber

y

. A wee k befor e trial, while he was in jail, an assistant State’s Attorney came to speak to him, and that is when Kenne lly first profe ssed that his Marc h 1995 rec antation had been a lie. Kenne lly admitted that, prior t o that

conver sation, he had ne ver made any indication that he had bee n threatened or intimi dated into making his Marc h 19 9 5 re ca n t ation. On redire ct examination, he testified that the assistant State’s Attorney did not make any promises to him reg arding the dispositi on of his

own ca se in exchang e for his testimony

. ¶ 15 J ackie provided the State’s second eyewitness acc ount of the shooting. She testified that

on the night of the shooting, she, Amy
, J org e, and Kenne lly wer e sitti ng toge ther by the main
entra nce door to the apar

tment building at 3920 West Cortland. Whil e they wer e sitti ng there
, J ackie observe d a navy bl u e ca r p as s ing by and turning into an alley

. It stopped at the
entra nce of the alle y , re verse d back toward them, and st opped. J ackie testified t hat t he car stopped for “ enough time for me to look at them and r ecognize their fac es.” She identified the driver as Ne g ron and the rea

r passe ng er on the driver’ s side as the de fenda nt. ¶ 16 J ackie testified that one of the defe ndants (she was not sure which one) said, “What’s up, folks.” S he saw Kenne lly take a fewsteps toward the car and ask, “Who’s that? ” S he then

saw the defe ndant pull out a gun and start shoo t i n g at t h em

. Kenne lly fell to the g round. J org e opened the door to the apar tment building, and J org e, Amy
, and J ackie all ran inside. ¶ 17 Acc ording to J ackie
, as the three of t h em we re running up the stairway
, Amy tripped. J ackie and J org e helped Amy to her fee t. J ackie attempted to continue up the stairs, but she

was shot in the back. She beg an scre aming and heard Amy scre aming as well. J org e, who

was far ther up the stairway
, turned back and pushed J ackie to the g round, at which time he

was also shot. Eventually Kenne lly enter ed the building and helped J ackie up the stairs. She was late r take n to the hospital for trea tment of her injurie s. ¶ 18 J ackie testified that afte r her rele ase from the hospital, on September 5, 1994, Detec tive Gueva ra came to her house and showed her a photo lineup consisting of 12 photogr aphs. She stated that she identified a photogr aph of the defe ndant as the rea r passeng er who had started shooting at her, a

nd she identified a

photogr aph of N egron as the driver of the ca r. She did
not rec og nize any of the other individuals in the photos. A wee k l at er , o n September 12, 1994, Detec tive Gueva

ra called her to come to the police station to view an in-person lineup. Kenne lly came as well, but the two of them viewed the lineup separ ately

. J ackie testified that
t h er e we re seven people in the lineup, and she identified the defe ndant and Negron as t h e

men who had shot at her. As with the photo lineup, J ackie testified that she did not rec og nize
any of the other

individuals in t he in-pe rson lineup.

-4-¶ 19 The State also called Offic er Robert L ohman, the first office r to arr ive at the scene afte r

the shooting. Offic er L ohman testified that on September 1, 1994, at about 12:45 a.m., he

was on patrol when a citizen named J uan Velez approa ched and told him that there had been

a drive-by sh o o t i n g at the corne r of Har ding and Cortland. He proce eded to the scene

. He testified that althoug h it wa s night, there was a streetlig ht and a lig ht above the e ntranc e to the apartment building, so he did not have a ny difficulty seeing what was g oing on. Inside the building, he found Amy lying dead on the landing
, as well as J org e and J ackie
, who had both been shot but wer e both still alive at that time. ¶ 20 On cross-e x amination, Offic er L ohman stated that afte r speaking with Velez, Kenne lly
, and Jackie, his only

descr iption of the offe nders was that they wer e male L atinos, 16 to 20
y ear s old, w ear ing Starter jacke ts. H e had no information as to the ir hairstyle, complexion, or height. ¶ 21 The State also called Detec tive Gueva ra to the stand. Detec tive Gueva ra testified that he

was involved in the investigation of the murders of Amy and J org e. After speaking wi t h Offic ers Olszewski and Siwa about his investigation and the circ umstances of the crime, he obtained thr ee photogr aphs of Dra g ons, one of which was a photogr aph of defe ndant. He then spoke with g ang crimes specia list Wy ora and obtained a photogr aph of Negron. Using those photogr aphs, De tective Gue vara stated that he a ssembled a photo ar ray consisting of six long- haire d individua l s , i n cludi ng the defe ndant, and six short-haire d individuals, including Negron. To the best of his knowledg e, the other individuals in the photo arr ay wer e all g angaff

iliated. ¶ 22 Detec tive Gueva ra testified that on September 5, 1994, he went to J ackie ’s home to show her the photo arr ay

. He stated that he sprea d the photogr aphs on her living room table, with the photogr aphs of long- haire d individuals on one side and the photogr aphs of short-haire d individuals on the other, and asked her if she rec og nized any body from the night of the shooting. He testified that J ackie identified Negron as the driver and defe ndant as the backseat pa sseng er. ¶ 23 Detec tive Gueva ra stated that on September 11, 1994, he appre hended the defe ndant at

a street corne r fre quented by Dra g ons. Acc ording to Detec tive Gueva ra, whe n he was perf orming the booking proce dure, defe ndant identified himself as a Dra g on. Early the next morning
, Negron was also appre hended. That evening
, Detec tive Gueva ra conducte d an inperson lineup consisting of both suspects plus four or five other individuals. The individuals in the lineup wer e seate d in a room with a one-w ay mirror, and Kenne lly an d J ackie wer e broug ht into th e ad

j ac en t room one at a time. Detec tive Gueva ra testified that Kenne lly identified the defe ndants wi th no hesitation, and likewise, J ackie also identified the defe ndants. ¶ 24 On cross-e x amination, counsel for the def endants que stioned Detec tive Gueva ra about the investigative proce dure that led him to appre hend the defe ndants. Detect i v e Gu ev ara stated that he worke d the third watch, which was from 3 p.m. to 11:30 p.m. When he arr ived
at work at 3 p.m. on September 1, 1994, he was assig ned to the case

. By that time, detec tives

on earlier watche s had prepa red repor ts about the case , as is ty

pical; Detec tive Gueva

ra rea d those repor

ts to familiarize himself with the case

. He testified that he then went to the crime

-5-scene and interviewe d Kenne lly
, who told him that the sh o o t er had long hair and a

rec tangular fac e. I t wa s b as ed upon this descr iption that he obtained a photogr aph of the defe ndant on September

4, 1994. ¶ 25 Howeve r, Detec tive Gueva ra admitted that he did not take any notes re g a r d ing his alleg ed interview with Kenne lly

. No r d i d h e fi le any repor t at that time for the next watch of detec tives to rea d. Indeed, the first and only repor t he filed in the case was on September 13, 1994, afte r both defe ndants had been appre hended. He also admitted that his repor t stated that he obtained the descr iption of a suspect with long hair and a re ct an gu l ar fac e from J ackie , not from Kenne lly

. ¶ 26 On further cross-e x amination, Detec tive Gueva ra testified initially that he did not spe ak with J ackie prior to visiti ng her house on September 5, 1994. Howeve r, he later testified that he called her ear lier on that day
, befor e visiti ng her, and she descr ibed the offe nder as having long ha ir and a

rec tangular he ad. ¶ 27 At the co n cl u s ion of Detec tive Gueva ra’ s testimony
, the State rested. Def endant then called three witnesses to establish his alibi defe nse: his aunt, Mary Rodrigue z, his g irlfriend, Azalia “Sassy” Carr illo, and himself. ¶ 28 Mary

testified that at the time of the shooting, she lived toge ther with her husband and her son; her mother and her mother’s boy friend; the defe ndant, his g irlfriend Sassy
, and their baby ; a nd her brother. Mary stated that her son was supposed to sta rt school on August 27, 1994, but it was not until August 31 that she obtained money for his tuition. She took August 31 off work so that she could pay the tuition, buy his uniform, and buy school supplies to g et him ready to start school the next day

. ¶ 29 Mary stated that she arr ived home on August 31, 1994, at around 4 p.m. She was sitting in the living room when the defe ndant came home from school at around 10:45 p.m. He asked her where Sassy was, then sat down wit h her. At aro u n d 11:15 p.m., Mary testified, Sassy came home. The defe ndant and Sassy went to their bedroom, wher e Mary could hear them arguing loudly

. Mary testified that she told them to be quiet, beca use she had to work
t h e next day and her son had to g o school the next day

. They continued arguing. Mar y ’s mother then spoke with them, afte r which they “tape red down” and came out into the living

room. Mary testified that while they wer e in the living room, Sassy ’s sister, Amaris, and her sister’s husband, Serg io, came to the house and spoke with them. Amaris and Serg io left the house for a while but then retu rn ed t o t h e living room and continued talking. Finally
, at around 1:30 a.m., Mary stated that she told Amaris and Serg io to leave and then went to bed. M ary testified that at no time did she see the defe ndant leave the house afte r he arr i v ed at 10:45 p.m. ¶ 30 Sassy
, the defe ndant’s g irlfriend, larg ely corr oborate d Mary ’s testimony

. She stated that

on August 31, 1994, she arr ived home at around 11 p .m. She had a conver sation with the defe ndant in their bedroom that turned into “a big fig ht.” L ater that night, Amaris and Serg io

came to visit . Sassy

said that Amaris a

nd Serg io stayed until 1:30 a.m., at which ti me t hey
went to bed. She testified that at no t i m e during that evening did the defe ndant leave the house. ¶ 31 Def

endant then took the stand on his own behalf

. He stated that in August 1994, he wa s

-6-working at Fa rley ’s Candy Company from 6 a.m. to 6 p.m. and also attending GED classes
at Wright J unior College on Monday and Wednesday nights. On August 31, 1994, which was

a Wednesday
, he left work ear ly at 5 p.m. to g o to c lass. After class, he took the bus home,

arr iving at around 10:45 p.m. ¶ 32 Def

endant stated that when he g ot home, he went t o t h e b ed ro o m t o see if Sassy was there

. S h e wa sn’t. He then went to the front room and waited for her to return. When she

arr ived at about 11 p.m., he asked her wher e she had been. The t wo of them then went to their bedroom and g ot into an argument. His aunt came in a couple t i m es , an d then his
g randmother came in, but he and Sassy continued arguing. At some point, Amaris and Serg io

arr ived at the house and spoke with the defe ndant and Sassy

. They stay ed at the house until 1:30 a.m. Def

endant testified that he did not leave the house at a ny time that evening

. ¶ 33 Finally
, defe ndant stated that althoug h he joined the Dra g ons when he was 18 y ear s old, he was only a member for around a y ear , and he quit in Marc h 1994. He further testified that he did not g o to 3920 West Cortland in the ear ly morning hours of September 1, 1994, and shoot two people. “I

worke d 12 hours a day ,” he said. “ I g o to night school. I

have no time to go a ny wher e.” ¶ 34 On cross-e x amination, counsel for the State asked defe ndant about cer tain statements he alleg edly made to Detec tive Gueva ra on the day of his arr est. Def endant said that he did not tell Detec tive Gueva

ra that he was a Dra g on but, rathe r, told him that he was an ex-Drag on. Def endant also denied stating that he had met with his fellow g ang members that day to lear n about a truce betwee n the Dra g ons and Disciples. Acc ording to de fenda nt, while he was in front of his grandf

ather ’s house that da

y , he sawNegron, and N egron starte d talking about the truce without being asked. Def endant later p as sed that information on to Detec tive Gueva ra. ¶ 35 Def

endant admitted that when he spoke with Detec tive Gueva ra on the day of his a

rre st, he did not tell him about the argument he alleg edly had with his g irlfriend on the night of the shootings. “At the time, I was shocked,” he explained. “I was surprised. I didn’t know what. Icouldn’t re member nothing.” On redire ct examination, defenda nt testified that he did tell Detec tive Gueva

ra that, on the night of August 31, 1994, he left work ear ly to attend a GED class from 6 to 10 p.m., took the bus home, and spent the evening with his g irlfriend. He also said he told Dete ctive Gue vara that he had no know ledg e of a double murder

. ¶ 36 The pa

rties then stipulated that, if called t o testify
, Detec tive Dombrowski would state t h at as part of the investigation in this case , he interviewe d J ackie in order to obtain a descr iption that would aid in the identification of possible offe nders. In that interview, J ackie

never told him t hat the re ar pa sseng er shooter had a long , thin face or longhair. ¶ 37 After t h e cl o s e o f t es t i mony , the jury found both defe ndants guilty on all counts. Def endant was sentenc ed to a term of natura l life in prison. We affirme d his c onviction on direc t appea l in People v. Almodovar
, No. 1 -9 6-1017 (1997) (unpublished order under Supreme Court Rule 23). ¶ 38 Def

endant filed his first petition for postconviction relief on J une 3, 1998, and, through

co u n s el
, h e filed an amende d petition on August 21, 1998. This petition is materia l to th e instant appea l, insofar as the State argues that the succe ssive postconviction petition at issue

-7-in this ca se is nothing more than a r ehash of the first postconviction petition. Ac cording ly
, we sha ll consider its contents in some detail. ¶ 39 Def

endant alleg ed that, on the day of t h e in-person lineup, J ackie and a L atino office r, presumably Detec tive Gueva ra, came to Kenne lly ’s house. Whil e outside Kenne lly ’s house, the office r alleg edly showed Kenne lly photogr aphs of the defe ndant and Negron and
repe atedly asked him, “Ar e these the guy s? ” thus influencing his and J ackie ’s subsequent l i n eu p identification. Def endant further alleg ed that Kenne lly testified ag ainst him at trial beca use the prosec utor implied that he wou l d get Ke n nelly out of jail in exchang e for his testimony

. In support of these alleg ations
, d ef en dant prese nted a sworn statement by Kenne lly

. ¶ 40 Def

endant also prese nted the a f f id a v it o f Powe rs, former counsel for the defe ndant whose
repr esentation of him ended prior to trial. In her aff idavit, Powers stated that she interviewe d J ackie on April 6, 1995. J ackie alleg edly said that she had be en visited in the hospital by a police officer or officers who showed her phot og raphs of persons and told her, “These are the guy s who did it.” Powers further stated that she s ub p o en aed J ackie ’s hospital rec ords, which showed that J ackie was suspected of suffe ring from post-traumat ic stress disorder. Powers stated that she believed this condition would underc ut J ackie ’s ability to identify her assailants and inc rea se her susceptibility

to sugg estion at the time of her identification. ¶ 41 Th i s m at t er went to an evidentiar y hear ing on Fe bruar

y 8, 1999, befor e J udg e James L inn. I n support of his pe tition, the defe ndant ca lled Kenne lly and Jack Callahan, a

former assistant State’s Attorney who had been the lead attorney at the defe ndant’s trial. Powers did not testify at the hea

ring

. ¶ 42 Kenne lly

testified that ar ound 10 day s after the shooting, J ackie came to his house and

s ai d that a detec tive wanted to talk to him about the case

. Kenne lly went outside t o s p ea k with the detec tive. He could not rec all the detec tive’s name but believed that he was L atino. The detec tive told him that suspects had been arr ested for the shooting. “I g ot the impression
t hat J ackie had viewed the guy s and pointed them out,” Kenne lly said. Acc ording to Kenne lly , the detec tive then showed him two Polaroid photog raphs. Ke nnelly testified: “[The detec tive] said that he believed that these people–these wer e the guy s that did the shooting and that if I was willing to come down to a lineup to point them out. *** When Ihad the picture in my

hand, and I

was lookingand then he was say ing that these we re the guy s and all this stuff, and I looked at J ackie and she like nodded and she said, ‘Ye s, that’s them.’ And so I

went alongwith it.”
Kenne lly stated th at befor e the detec tive and J ackie told him that the photogr aphed individuals wer e the perpe trators, he would not have been able to identify them, beca use the
events of that night happene d too quickly

. He testified that he decide d to trust the detec tive and Jackie’s judg ment beca use he w anted the pe rpetrators to pay

. ¶ 43 Kenne lly stated that the detec tive then drove him and J ackie to the police station to view the lineup. During the car ride, Kenne lly said that the detec tive told him not to mention that he showed him pictures befor ehand. At the station, while viewing the li n eu p , Kenne lly

rec og nized the two people who ha d been in the photographs a nd pointed them out. ¶ 44 Kenne l l y t h en s p o k e ab o u t t h e ci rc u m s t an ce s s u rrounding his testimony at the

-8-defe ndant’s trial. At the time, Kenne lly was incar cer ated for violation of probation. Kenne lly

stated that on the day of the trial, he wa s broug ht to speak with a prosec utor. Kenne lly told the prosec utor that he wa s afr aid to testify ag ainst the def endants “ beca

use I am in jail and these guy s are in jail.” Acc ording to Kenne lly
, the prosec utor told him, “Well, I will see what I can do for you.” Although he did not direc tly promise to g et Kenne lly out of jail, Kenne lly said that his statement m ade him fe el better “bec ause I figured that he has the power to do something like that.” Thus, Kenne lly went and testified ag ainst the d efe ndants. He was rele ased f rom jail the next day

. ¶ 45 Kenne lly finally stated that his pr esent rec antation of his trial testimony had nothing to do with g ang truce s. He testified that he was no longe r a member of the Disciples, having left the g ang approx imately a wee k afte r the shooting. On cross-e x amination, counsel for the State asked Kenne lly if it was still his testimony that he rec anted his identification in Marc h 1995 under pr essure from the Disciples, even though he now claimed to have left the g ang by that point in tim e. Kenne lly responde d that it was. He explained: “I am still in the neig hborhood. *** They

can c ome and g et me whe never they want.” ¶ 46 Def

endant next called Callahan to testify

. Callahan stated that he had been the lead tria l attorney at defendant’s trial, and he was responsible for the production of di scover y to the defe nse. He said that he never informed the defen s e t h at Kenne lly had been shown photogr aphs of the defe ndants befor e viewing the lineup. He also never informed them that there wer e any implicit promises to Kenne lly that he would rec eive any thing in exchang e for testifying. ¶ 47 On cross-e x amination, Callahan testified that approximately two wee ks befor e trial, he
met with Kenne lly

. Ba sed upon Kenne lly ’s prior rec antation, Callahan expected that he was g oing to have to call him as a hostile witness. At the meeting
, Callahan showed Kenne lly his orig inal s tatement implicating the defe ndant and then his subsequent rec antation, and he asked Kenne lly which statement was the truth. Kenne lly told him that his orig inal statement

was true and exp l ai n ed t h at he had been intimi dated into g iving the rec antation by a g ang leade r. Calla h an t estified that Kenne lly never indicated that he was unsure of his identification or said that a police office r had told him who to pick out of a lineup. Callahan further stated that he said nothing to Ken n el l y that might g ive him the impression that Callahan would he lp him get a lenient sentenc e on his violation of probation. ¶ 48 The State called both Jackie and Detec tive Gueva ra to te stify

. J ackie testified that afte r she was rele ased from the hospital, on September 5, 1994, a detec tive came to her house and showed her a photo arr ay

. She testified that the detec tive never told her which photos to pick. J ackie identified the de fenda nts. The detec tive asked her, “Ar e you sure? ” and she re plied, “Ye s, I will never forg et their fac es.” She stated that this was the only occa sion upon which she wa s shown photogr aphs per taining to the c ase. ¶ 49 J ackie further testified t hat on September 12, 1994, the d et ec t i v e came to her house to bring her to the police station to view a lineup. On the way there
, they stopped by Kenne lly ’s house to pic k him up. J ackie stated that when they rea ched Kenne lly ’s house, the detec tive parke d by the alley

way and honked his horn, Kenne lly came out, and they left. J ackie and the detec tive did not leave the c ar, and the detec tive did not show J ackie any thing, nor did she

-9-see the detec tive show Kenne lly any thing. J ackie finally stated t hat, in her prese nce, the detec tive never showed Kenne lly any photogr aphs or told him who to pick out of the lineup. ¶ 50 Detec tive Gueva ra testified that on September 5, 1994, he went to J ackie ’s house to show her a photo arr ay , and she identified t wo p er s ons. On September 12, 1994, he went to her house ag ain to pick h er up an d bring her to the station to view a lineup. He then drove to Kenne lly ’s house. He saw Kenne lly looking out the wi ndow, so he honked his horn and asked him to come down. Detec tive Gueva ra stated that neither he nor J ackie g ot out of the

car

. He testified that he did not show any photogr aphs to either of them on that day
, nor did he tell either

of them who to pick in the lineup. ¶ 51 On cross-e x amination, Detec tive Gueva ra stated that, at the time he was investigating the murders of Amy and J org e, he was also investigating the murder of Carlos Olon, a member of the Dra g ons, who was killed around seven blocks awa y

. He develope d a theory that Amy and J org e mi g ht have been kill ed in reta liation for the d eath of Olon. This led hi m to look for Dra g ons who might have rea son to reta liate. He spoke to other g ang crimes office rs and was infor med that three Dra g ons had rece ntly been a rre sted in the are a whe re the shooting

occur red. One o f t h em was the defe ndant. Detec tive Gueva ra suspected that those three Dra g ons might be involved in the shooting, particula rly the defe ndant, since he lived in the

are a wher e the shooting occur red. Th u s, Detec tive Gueva ra obtained a photogr aph of the defe ndant, as well as a photogr aph of Negron, who was known as someone who hung around with the defe ndant. ¶ 52 In closing argument, counse l fo r d ef endant argued to the court that Detec tive Gueva ra had a motive to use sug g estive identification proce dures ag ainst the defe ndant and Negron, beca use of his persona l theory that they wer e the guilty parties. Counsel for defe ndant argued that this theory was mere ly a “hunch,” not based on any particula r evidenc e in the case , since the only descr iption of the offe nders at that point was that they wer e 16- to 20-year -old Hispanics we aringStarter jac kets. ¶ 53 At the close of arguments, on Marc h 9, 1999, J udg e L inn d en i ed t h e p et i t i o n fo r postconviction relief

. He stated that he found the testimony of J ackie and Detec tive Gueva ra to be “much more compelling” than t he testi mony of Ke nnelly , beca use of their

demea nor

on the witness stand and beca use of Kenne lly ’s history with reg ard to the case

. In that reg ard, J udg e L inn noted that Kenne lly first rec anted his identification, then rec anted his rec antation
at trial. “He seems to me to be something of a manipulative person who say s what suits him
at t he ti me,” the judge stated. Thus, h e said, he found Kenne lly ’s rendition of events to be “totally incre dible.” He also stated that he believed Callahan’s testimony that he made no promises to Kenne lly

in exchang e for

his testimony

. ¶ 54 On April 13, 2010, defe ndant filed a pro se mot i o n fo r l ea v e t o fi l e a s ucce ssive postconviction petition. I t is this motion that is at issue in the insta n t ap p eal. Def endant all ege d t hat newly discovere d evidenc e showed that Detec tive Gueva ra had employ ed
sug g esti v e identification proce dures in numerous other case s, which lent cre dibilit y to his claim that Detec tive Gueva ra had used sug g estive i d en t ification proce dures in his case

. Specifica lly , defe ndant stated:
“12. It is petitioner’s contentions that Detec tive Gueva ra has eng ag ed in a pattern of

-10-abuse t o obtain false identifications of numerous defe ndant’s [ sic ] at are a–five Police Hea dquarte rs in Chicag o. This pattern of sug g estive identification dates back to 1989. At least three defe ndant’s [ sic ], Salvador Ortiz, Ang el Rodrigue z, and J uan J ohnson had their convictions overturne d based on Gueva ra’ s illega l method of faulty identifications. See People v. Reyes, 369 I ll. App. 3d 1, 860 N.E.2d 488 (1st Dist. 2006).” ¶ 55 In support, defe ndant attache d a copy of a J une 23, 2009, Chicag o Tribune article entitled “Rec ord Verdict: For

mer Gang Member Awar ded $21 Milli on for Wrongf ul Conviction.” Acc ording to the article
, in 1989, J uan J ohnson, then a member of the Spanish Cobras g ang , was arr ested by Detec tive Gueva ra on char g es of murdering a member of a ri v al gan g. J ohnson was convicted and serve d 111⁄2 y ear s in prison befor e being retrie d and acquitted in 2004 based on testimony that Detec tive Gueva ra fra med him f

or the murde r. At the retria l, witnesses testified that Detec tive Gueva ra intimi dated them into identifying J ohnson as the killer. ¶ 56 On April 28, 2010, the circ uit court, per J udg e L inn, denied defenda nt’s motion to file

a succ essive postconviction petition. The cour t expl ained its rea soning a s follows: “[Kennelly] is one of sever al eyewitnesses. The jury has hear d this. I ’ve alre ady hear d from this witness be fore . Ifound his story wholly lackingin c redibility

. The additional information about Detec tive Gueva ra on unrelated case s I find to be completely collater al. Ag ain, I ’ve alre ady hear d the witness. The jury has hear d this witness. The jury knew a bout the first rec antation. This is now his second re canta tion.
I find that there ’s nothing here that has not alre ady been talked about at length at trial and in the previous evidentiar y p o s tconviction proce eding s. So his pro se succe ssive postconviction petition is denied.” Def endant now a

ppeals.

¶ 57 I I . ANALYSI S ¶ 58 The pe tition at is sue in this appeal is g overne d by the I llinois Post-Convi ction Hea ring Act (Act) (7 2 5 I L CS 5/122-1 et s eq. (West 2004)), which provides a reme dy to a criminal defe ndant whose constitutional rights wer e subs t an t i ally violated in his orig inal trial or sentenc ing hear ing. People v. Pitsonbarger
, 205 I ll. 2d 444, 455 (2002). A postconviction petition broug ht under the Act in a non-death-pena lty case is adjudicate d in three stag es. P eo p l e v. Edwards
, 197 I ll. 2d 239, 244 (2001). At the first stag e, the circ uit court independe ntly revie ws the petition within 90 day s of its filing and summarily dismiss es the petition if it finds it to be “fr ivolous or * * * p at en t l y without merit.” 725 I L CS 5/122- 2.1(a) (2) (West 2004). A petition will only be found to be frivolous or patently without merit if it fails to prese nt th e “ ‘gi s t of a constitutional claim.’ ” Edwards
, 197 I ll. 2d at 244 (quoting People v. Gaultney
, 174 I ll. 2d 410, 418 (1996)) ; acc ord People v. Colli ns , 202 I ll. 2d 59, 65 (2002). I f the circ uit court does not dismiss the postconviction petition at the first stag e, it advanc es to the second stag e, wher e counsel is appointed to repr esent the defe ndant and the State is allowed to file a responsive pleading

. Edwards
, 1 9 7 I l l

. 2 d at 245-46. A petition will be dismiss ed at this stag e if it fails to make a sub s t antial showing of a constitutional violation. Edwards
, 197 I ll. 2d at 246; see People v. Coleman
, 183 I ll. 2d 366,

-11-380 (1998). Finally
, if such a showing is made, the petition advanc es to the third stag e, wher e

the circ uit court will conduct an evidentiar y hear ing on its alleg ations. Edwards
, 197 I ll. 2d at 246. ¶ 59 The Act g ener ally contemplates the filing of only one postconviction petition. People v

. Ortiz
, 235 I ll. 2d 319, 328-29 (1990) (citing 725 I L CS 5/122-3 (West 2006) (“Any claim of substantial denial of constitutional rig hts not raised in the orig inal or an amende d petition is waived.” )). Howeve r, this statutory bar to succe ssive postconviction petitions will be relax ed “whe n fundame ntal fairne ss so require s.” People v. Morgan
, 212 I ll. 2d 148, 153 (2004); see Pitsonbarger
, 205 I ll. 2d at 458. Our supr em e court has identified t wo s ituations in which fundame ntal fa i rn ess will allow the filing of a succe ssive postconviction petition. First, a petitioner may satisfy the cause -and- prejudice test. Pitsonbarger
, 205 I ll. 2d at 459. As shall be discussed more fully below, “cause ” is define d as “an objective factor that impeded his

or her ability to raise a specific claim during his or her initial post-conviction proce eding s,” and “pre judice” is define d as an err or that “so infec ted the trial that the resulting conviction

or sentenc e violated due proce ss.” 725 I L CS 5/122-1(f) (West 2006); see People v. Flores
, 153 I ll. 2d 264, 279 (1992) (c iting McClesk ey v . Zant , 499 U.S. 467, 493 (1991)) . Second,

even wher e a petitioner has not met the cause -and- prejudice test, his succe ssive petition may be considere d wher e it sets forth a claim of actua l innocenc e. Ortiz
, 235 I ll. 2d at 330. Such claims are cognizable in a postconviction petition beca use it i s a v i o l ation of the I llinois Constitution’s guara

ntee of due p ro ce ss for an innocent person to be convicted. People v. W ashington
, 171 I l l

. 2 d 4 7 5
, 4 89 (1996); Morgan
, 212 I ll. 2d at 154. To establish actua l innocenc e in a postconviction petition, the pet i t i o ner must prese nt evidenc e that is newly discovere d, is materia l and noncumulative, and is “of such conclusive char acte r that it would probably chang e the result on retria l.” Morgan , 212 I ll. 2d at 154; se e W ashington
, 171 I ll. 2d at 489. We revie w the circ uit court’s denial of a motion to file a succe ssive postconviction petition de novo

. People v . Gutierrez , 2011 I LApp (1st) 093499, ¶ 11. ¶ 60 In this appea l, defe ndant contends that the circ uit court err ed in deny ing his motion to f

ile

a succe ssive postconviction petition. He argu es t h at his newly discovere d evidenc e of a pattern of abuse by Detec tive Gueva ra casts signific ant doubt upon Detec tive Gueva ra’ s testimony that he did no t u s e s u gg estive identification proce dures in this case and,

c o r r e s p o n d in g ly
, bolsters Kenne lly ’s testimony to the contra ry

. Thu s , d e f

e n d a nt c o nte n d s th a

t his successive pe tition bot h meets the c ause- and-pr ejudice te st and sets for th the g ist of an
actua l innocenc e cl ai m

. The State challeng es both of these asser tions. At the hear

t of the State’s challeng e i s i ts argument that defe ndant’s newly discovere d evidenc e of Detec tive Gueva ra’ s misconduct in other case s is not pertinent to the question of whether misconduct

occur red in the present case

. In this rega rd, t he S tate point s out that the onl y evidenc e that Detec tive Gueva

ra committed abuse in the prese nt case is the testimony of Kenne lly
, which

was hear d and reje cted by the court in the prior postconviction hear ing and which, acc ording to the State, there is ample rea son to doubt.

¶ 61 A. Cause a nd Prejudice ¶ 62 We beg in by considering whether t h e s u cc es sive postconviction petition in this case

-12-satisfies t he cause-a nd-pre judice test. This test is codified in sec tion 122-1(f) of the Act as follows:
“O nly one petition may be filed by a petitioner under this Article without l ea v e o f t h e court. L eave of court may be g rante d only if a petitioner demonstrates cause for his or her failure to br ing the claim in his or her initial post-conviction proce eding s and prejudice results from that failure

. For purposes of this subsection (f) : ( 1) a prisoner shows cause by identifying an objective fac tor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proce eding s; and (2) a prisoner shows prejudice by demonstrating that th e cl ai m n o t raised during his or her initial post-conviction
proce eding s so i n fected the trial that the resulting conviction or sentenc e violated due
proce ss.” 725 I L CS 5/ 122-1(f ) (West 2006).
For purposes of this appea l, the State does not dispute that if Detec tive Gueva ra actua lly did

u s e s ug g estive identification proce dures as alleg ed by defe ndant, it would constitu t e prejudice

. Instead, the State focuse s solely on the element of cause. According ly
, we s hall focus on this eleme nt as well. ¶ 63 Our supreme court, following the lead of the United States Supreme Court, has stated that

cause is prese nt wher e “the fac tual or leg al basis for a claim was not rea sonably available to

c o u nsel” during the prior proce eding s. (Interna l quotation marks omitted.) Pitsonbar ge r , 2 0 5 I ll. 2d at 460; see McClesk ey , 499 U.S. at 493-94. The State does not contend that evidenc e of Detec tive Gueva

ra’ s pattern of misconduct was rea sonably available to counsel at the time of def endant’ s prior postconviction hea ring

. Rather, the State claims that, notwithstanding the unavailability of such evidenc e at the prior postconviction hearing, the defe ndant had a full opportunity

to present his cla im of sugg estive identification procedur es at that he aring throug h the testimony of Kenne lly

. Def endant, on the other hand, arg ues that he was impeded from fully raising that claim in the prior proce ed i ng beca use he was not able to proper ly challeng e the cre dibility of Detective Guevara ’s t estimony without evidenc e of his pattern of misconduct in other c ases. ¶ 64 We agree with the defe ndant. In this reg ard, we find People v. Rey es , 369 I ll. App. 3d 1 (2006), to be highly analog ous. L ike the defe ndant in the instant case , the Rey es defe ndants

wer e con v i ct ed in larg e part due to the investigative eff orts of Detec tive Gueva

ra; they alleg ed that Detec tive Gueva ra had procur ed the evidenc e ag ainst them throug h abuse; and they filed postconviction petitions in which their only new evidenc e to support their claims of abuse was evidenc e of Detec tive Gueva ra’ s “patter

n and prac tice of misconduct” in other

case s. Id. at 11. ¶ 65 The fac ts of Rey es are as fol l o ws

. T h e defe ndants wer e char g ed with murder, ha ving signe d inculpatory s t at em ents while in police custody

. Id. at 5. Prior to trial, defe ndants moved to suppress their statements, claiming that they only signe d those statements beca use of phy s i cal coer cion by Detec tive Gueva ra. Id. After a hearing, the trial court denied their motions, finding their testimony not to be cre dible. Id. at 8. At trial, defe ndants repe ated their alleg ations of abuse by Detec tive Gueva ra. Id. at 9. Def

endants wer e never

theless convicted and their convictions aff irmed on direc t appea l. Id

. at 1 0-11. Def endants then filed
p o s t co n v i ction petitions in which they y et ag ain soug ht relief on g rounds that thei r

-13-confe ssions had been obtained throug h phy sical abuse. Id. at 11. In support of their claims,

defe ndants raised “new evidenc e” that Detec tive Gueva ra had “ ‘sy stematica l ly used improper techniques *** to coerce false statements from suspects and civili ans’ ” in other

case s. Id. Def

endants argued that this evidenc e established “ ‘a clea r pattern and prac tice of misconduct and abuse by Detec tive Rey naldo Gueva

ra.’ ” Id. The circ uit court in Rey es , like the circ uit court in the instant case , dismiss ed defe ndants’ petition s at the first stag e of postconv i ct i o n h ear ings. Id. at 22. On appea l, the Rey es court reve rsed, holding that defe ndants had suff

iciently set forth the g ist of a constitutional claim. Id. at 24. ¶ 66 Although the postconviction petitions at issue in Rey es wer e not succe ssive petitions and there fore did not have to meet the cause-a n d -p re j u dice standard, the issue on appea l was highly s i m i l ar t o the issue in the case at hand, namely
, whether the evidenc e of Detec tive Gueva ra’ s malfea sance in other cases was materia l to defe ndants’ cla i m s o f ab u se i n their particula r ca ses. In that case , as in the prese nt case , the State contende d that such evide nce

was not enough to support petitions for postconviction relief wher e the specific claims of abuse raised in those petitions had alre ady been raised and reje cted in a prior proce eding

. The issue arose in Rey es in the context of the State’s claim of res judicata
, since the issue of the voluntariness of defe ndants’ confe ssions had alre ady been decide d on direc t appea l. Id. at 15. Def endants argued that the doctrine of res judicata sh o u l d b e relax ed in light of the “ ‘substantial new evidenc e’ ” they had prese nted reg arding Detec tive Gueva ra’ s pattern and
prac tice of abuse in other case s. Id. ; see People v. Patterson
, 192 I ll. 2d 93, 1 3 9 (2000) (doctrine of res judicata can be relax ed in the interest of fund am en t al fairne ss if the defe ndant pre sents substantial new evidence that is materia l and not m ere ly cumulative, is of such conclusive char acte r that it will probably chang e the result on retrial, and the evidenc e was not discovera ble throug h due diligenc e prior to the orig inal trial). The circ uit
court reje cted this claim, stating: “ ‘As this court has ear lier found, reg ardle ss of what other defe ndants may have claimed, there is no evide nce that petitioner was beaten in this case .’ ” (Emphasis in orig inal.) Rey es , 369 I ll. App. 3d at 22. ¶ 67 Yet the Rey es court disag ree d, holding that defe ndants’ new evidenc e was rele vant and materia l beca

use it established a pattern of abuse on the part of Detec tive Gueva ra that would impeach his c redibility

. Id. at 18-19. The court stated, “I f even a fra ction of the alleg ations included in t his evidenc e had been presente d prior to trial, it appea rs l ikely that Gueva

ra’ s

cre dibi l i t y would have been damag ed and defe ndants’ confe ssions would have been suppressed.” Id. at 19. Thus, the Rey es court conclude d that, “In our view, any alleg ation that Gueva ra coer ced a person to provide evidenc e is rele vant to whether defe ndants in the case at bar wer e similarly

coer ced.” Id. at 21. ¶ 68 Simi larly
, in the instant case , we find that defe ndant’s alleg ations that Detec tive Gueva ra influence d witnesses to provide identifications are rele vant to whether witnesses in the case at bar wer e simil arly influence d, since such alleg ations, if true, wo u l d d am age Detec tive Gueva ra’ s cre dibility

. As was the case in Rey es , the cre dibilit y of Detec tive Gu ev ar a is direc tly at issue with reg ard to the cruc ial question of how he procur ed the evidenc e that led
to defe ndant’s conviction. New evidenc e that attacks his cre dibilit y on that cruc ial question would be highly materia l, an d
, corr esponding ly
, the lack of such evidenc e would signific antly impede defe ndant’s ability to r aise his claim of abuse by Detec tive Gueva ra. See

-14-725 I L CS 5/122-1(f) (West 2006) (petitioner shows cause by identifying objective fac tor that

impeded his ability

to raise a specific claim duringinitial post conviction proc eeding s). ¶ 69 The S t at e re s p o n d s to Rey es by reiter ating its argument that, notwithstanding the new evidenc e of Detec tive Gueva ra’ s misconduct in other case s, the only evidenc e of misconduct in this case is the testimony of Kenne lly
, which is presumably the same as i t wa s in defe ndant’s first postconviction hear ing. Howeve r, the same dy namic was prese nt in Rey es ; the only direc t evidenc e of misconduct by Detec tive Gueva ra in that case was testimony that had alr eady

been he ard a

nd reje cted by

the finder

of fa ct at trial. The ne w evidenc e mer ely
soug ht to establish a pattern and prac tice of abuse by Detec tive Guevara
, which, if true, would have a sever e neg ative impact on the cre dibilit y of Detec tive Gueva ra’ s testimony that

no such abuse o cc u rr ed in defe ndants’ case

. Rey es , 369 I ll. App. 3d at 11. J ust as such evidenc e was materia l in Rey es , we find that defe ndant’s lack of acc ess to such evidenc e at the time of his initial po stconviction petition is a signific ant enough obstacle to constitute

cause

. ¶ 70 The State never theless argues that the instant case is less like Rey es and more like People

v. Deloney
, 341 I ll. App. 3d 6 2 1 (2 0 0 3 ), in which the court held that defe ndant failed to prese nt the g ist of a meritorious constitutional c laim r elating to a lleg ed coer cion by police. At trial, the Deloney defe ndant moved to suppress an inculpatory statement that he had made while in c ustody
, alleg ing that it ha d been coer ced and g iven as a result of police abuse. Id.
at 626. The tr i al court denied his motion. Id. Following his conviction, defe ndant filed a postconviction petition in which he raise d the same a lleg ations of abuse

. Id. In support, he attache d over 900 pag es of documents relating to other cases involvingpolice brutality
, in

an attempt to establish a g ener al pattern of police abuse and brutality that would lend support to his claim of coer cion. Id. at 628. ¶ 71 The Deloney co u rt aff irmed the dismiss al of this petition for two rea sons. First, in his postconviction petition, defe ndant claimed that he had been abused by three named police office rs. Id. at 629. Howeve r, this all eg ation was direc tly contra dicted by defe ndant’s testimony at trial, wher e he specific ally and expli citly stated that none of those three named office rs h ad b ea t en him. Id. The Deloney court, rely ing on the principle that “a postconviction p et ition is proper ly dismiss ed wher e the alleg ations contained there in are contra dicted by the rec ord from the orig inal trial proce eding s,” held that defe ndant’s petition

war rante d dismiss al insofar as he claimed that any of those three officers wer e those who abused him. Id. Second, there was no basis upon which to conclude that any of his alleg edly newly discovere d evidenc e reg arding other acts of police brutality was rele vant to his claims. Id. ¶ 72 The State argu es t h at De l o n ey is analog ous to the instant case , insofar as Ke nnelly ’s alleg ations of i mproper influence on the part of Detective Guevara are contra dicted by h i s trial testimony in wh i ch he claimed that no such influence occur red. Howeve r, we find Deloney to be d i s t i n gu i s hable in two way s. First, it would seem that the trial rec ord in Deloney did not g ive any rea son to doubt the defe ndant’s testimony when he exculpated the office rs at issue. See id. Nor is there any appar ent rea son that a defe ndant raising a claim of police brutality would choose to falsely exculp at e t he office rs who beat him. By contra st, examination of the trial rec ord in this case reve als multipl e rea sons to doubt Kenne lly ’s trial

-15-testimony

. Not only did his t es t i m o n y d i rec tly contra dict the statement that he g ave to

defe nse attorney Powers sever al months earlier, but Kenne lly only chose to rec an t that
statement a wee k befor e trial, while in jail awa iting a hear ing on his violation of probation. Thus, the trial rec ord itself is conflicted a s to the truth of Kenne lly ’s testimony . Moreove r, in Deloney
, the defe ndant prese nted nothing that would link his evidenc e of police brutality
to the particula

r office rs who interrog ated him. Id. Ba sed on this lack of connec tion, the Deloney court corr ectly found that he had failed to establish its rele vance

. Id. In the prese nt

case , the newl y discovere d evidenc e prese nted by the defe ndant relates specific ally to misconduct by Detec tive Gueva ra, who procur ed the identifications that wer e the basis of the State’s ca se at trial. Deloney is theref ore ina pposite. ¶ 73 The State next cit es P eo p l e v. C h ew , 1 6 0 I ll. App. 3d 1082, 1086 (1987) for the proposition that evidenc e which mere ly impeache s a witness g enera lly does not aff ord a basis for g ranting a new trial. Howeve r, Chew is distinguishable. T h e defe ndant in Chew was convicted of arme d robber y

. Id. at 10 8 4

. T h e primary witness ag ainst him at trial was the complainant, who testified that he was g oing to vis i t a friend at 4112 West Taylor when defe ndant and his codef

endants approa ched him with a gun and took his money

. Id. After his conviction, defe ndant moved for a new trial on the basis of a newspa per article which stated that the house at 4112 West Taylor was a drug house. Id. at 1085. The Chew court found that his moti on was c orre ctly

denied, stating : “The alleg edly new evidenc e here is collater al and no t i n an y way materia l to the issue of whether the complainant was robbed at gunpoint by the defe ndants. Nor is there
any basis upon which to conclude that evidenc e in reg ard to the Tay lor Street house would have chang ed the outcome of the trial. Even if the evidenc e reg arding the sale of drug s at 4112 West Taylor would tend to impeach Rocking ham, evidenc e which mere ly impeache s a witness does not aff ord a basis for g ranting a new trial. [C itation.] Ba sed on questions asked of both the complainant and Offic er J ones reg arding drug sales at the Taylor Street addre ss, it also appea rs that d efendant knew about the evidenc e prior to trial; thus we find no abuse of discretion in the t rial court’s ref usal to g rant the motion for a new tria l.” Id. at 1086.
I t is appar ent that the impeachme nt at issue in Chew was on a wholly co l l at era l issue–the
nature of the place which the complainant was visiti ng–which would have l i t t l e, i f any , impact upon the cre dibility of his acc ount of the robber y itself. By contra st, the impeachme nt at issue in t h e ca s e at h and is direc tly pertinent to the centr al issue of whether Detec tive Gueva ra improperly influence d the witness identifications that wer e used to con vict the defe ndant. Moreove r, the Chew court noted that the impeachme nt evidenc e in that case was known to the defe ndant prior to trial, wher eas in the prese nt case , there is no contention that the defe ndant could rea sonably have lear ned of Detec tive Gueva

ra’ s pattern of misconduct befor e his first postconviction hea ring

. ¶ 74 The State additionally argues that defe n d an t h as fa i l ed t o p re s en t t h e gi s t o f a constitutional c laim be cause the only positive e vidence that Detec tive Gueva ra improperly influence d the lineup identifications in this ca s e is the testimony of Kenne lly
, whose

cre dibilit y is highly suspect. I t is true that Kenne lly ’s testimony is far from unimpeache d. The

rec o rd reflects that he initially identified defe ndant at the lineup conducte d by Detec tive

-16-Gueva ra (whatever the circ umstances of that lin eu p m ight have been)
, then rec anted his identification of defe ndant to defe nse attorney Powers, rec anted that rec antation a t tr ial under oath, and rec anted y et a third time at defe ndant’s postconviction hear ing. Howeve r, Kenne lly ’s lack of cre dibility actua lly highlights the importance of evidenc e ca sting doubt on Detec tive Gueva

ra’ s cre dibilit y

. In the abse nce of the latter, it would be no sur prise if a finder of fac t were to find Detec tive Gueva ra to be far

more c redible tha

n Kenne lly , as did the circ uit court in ruling upon defe ndant’s initial postconviction petition. B y contra st, it is plausible that a fi nder of fac t could view the evidenc e of Detec tive Gueva ra’ s pattern of misconduct as leve ling the playing field betwe en him and Ke nnelly in terms of cr edibility

. Conversely
, the lack of evidenc e as to that pattern of misconduct would impede defe ndant’s

a b il it y to bring his claim that Detec tive Gueva ra improperly influence d Kenne lly a n d Ja c k ie ’ s identifications of him. ¶ 75 Thus, we find that defe ndant’s succe ssive postconviction petition meets the cause -andprejudice test. In p ar t icular, defe ndant has shown that cause exis ts by “identify ing an objective fac tor that impeded his or her ability t o raise a specific claim during his or her initial post-conviction proce eding s” (725 I L CS 5/122-1(f) (West 2006)), namely
, the lack of evidenc e as to Detec tive Gueva ra’ s al l ege d pattern and prac tice of improperly influencing

w it n e s s id e n tif ications of suspects that he targ eted. Acc ording ly
, the circ uit court’s first-sta g e dismiss al of de fenda

nt’s postconviction petition mustbe re verse d.

¶ 76 B. A ctual Innocenc e ¶ 77 Beca u s e we fi n d t h at defe ndant has met the cause -and- prejudice test as set forth in section 122-1(f

) of the Act and in Pitsonbarger
, we need not rule upon defe ndant’s alternate argument, namely
, that the evidenc e set forth in his succe ssive postconviction peti t ion is sufficie nt to constitute a claim of actua l innocenc e. Howeve r, we note that a strong argument could be made that defe ndant’s succ essive petition would meet this standard a s well. ¶ 78 As ment i o n ed ea rl i er , t o establish actua l innocenc e in a postconviction petition, the defe ndant must prese nt evidenc e that is newly discovere d, is materia l and noncumulative, and is “of such conclusive char acte r that it would probably chang e the result on retria l.” Morgan
, 212 I ll. 2d at 154; see W ashington
, 171 I ll. 2d at 489. The alleg ations of Detec tive Gueva ra’ s pattern and prac tice of misconduct as prese nted in the instant pe tition ar e newly discovere d, sin ce, as noted, the State does not even contend that such evidenc e would

rea sonably

have been available to de fenda nt a t the time of his first postconviction hear ing. They are also materia l and noncumulative, insofar as they would neg atively impact Detec tive Gueva ra’ s cre dibilit y

for the r easons that have bee n discussed above

. ¶ 79 As to whether defe ndant’s newly discovere d evidenc e is “of suc h conclusive chara cter that it would probably chang e the re s u l t on retria l” ( Morgan
, 212 I ll. 2d at 154; see W ashington
, 171 I ll. 2d at 489), we note that the State’s c ase ag ainst defe ndant is a rguably quite tenuous. No phy sical evidenc e links the defe ndant to the shooting. Rather, at trial, the State relied upon the eyewitness identifications of Kenne lly and J ackie
, as o b t ai n ed by Detec tive Gueva

ra. As was noted by defe nse counsel at trial, Kenne lly and J ackie had only

a brief opportunity to see the perpe trators, and the shooting occur red at night, althoug h there

-17-was some testimony that lighting in the are a was adequate. Thus, the State’s evidenc e in that

reg ard was not overwhelming. Moreove r, there was testimony at trial that cast doubt upon 1 Detec tive Gueva

ra’ s method of obtaining those identifications. Detec tive Gueva ra testified that he obtained a descr iption of the defe ndant from Kenne l l y and J ackie
, both of whom supposedly told him that the shooter had long hair and a rec tangular head. Howeve r, this was called into question by the testimony of Offic er L ohman and Detec tive Dombrowski. Offic er L ohman, the first office r on the scene , testified that when he spoke with Kenne lly and J ackie
, the only descr iption he obtained of the offe nders was that they wer e male L atinos, 16 to 20
y ear s old, wea

ring Starter jacke ts. L ikewise, Detective Dombrowski stated that when he interviewe d J ackie
, she never told him that the rea r passeng er shooter had a long , thin face

or long hair. In light of these conflicting statements, it is at least arguable that, if the jury had known about De tective Guevar a’s hist ory of improper ly

influencingwitnesses, they might have g iven more weight to the testimony of Offic er L ohman and Detec tive Dombrowski than Detec tive Gueva

ra, and they might have g iven more weight to the testimony of defe ndant’s alibi witnesses than to the identifications that Detec tive Gueva ra procur ed and that wer e the backbone of the State’s c ase.

¶ 80 I I I . CONCLUSI ON ¶ 81 Thus, for the fore go i n g re asons, we reve rse the circ uit court’s first-stag e dismiss al of defe ndant’s succ essive postconviction petition and re mand for se cond-stag e proc eeding s.

¶ 82 Reverse d and re manded.

We not e at thi s j unc tur e tha t the St a te ar gues tha t K enn el ly’s te st imony at the 1
pos tc onvict ion hea ri ng, as re can ta ti on te st imony
, is inh er ent ly unr el iable (s ee Peop le v. Ste idl
, 177 I ll

. 2d 239, 260 (19 97) ); however
, to the ext ent tha t is true, the same woul d app ly to K enn el ly’s tr ia l
te st imony , si nce th atis a r eca nta ti on a s we ll

.
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