FOURTH DIVISION June 26, 2014

No. 1-11-1783

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 92 CR 22439 ) McCLAIN SANDERS, ) Honorable ) James B. Linn, Defendant-Appellant. ) Judge Presiding.

JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment and opinion.

OPINION

¶1 Following a jury trial, defendant McClain Sanders was convicted of first degree murder

and aggravated kidnapping and sentenced to concurrent terms of 60 and 15 years in prison,

respectively. Defendant now appeals from the dismissal, on motion of the State, of his second

successive postconviction petition. On appeal, defendant contends that his petition should have

advanced to an evidentiary hearing because he presented newly discovered evidence that

established a substantial claim of actual innocence. For the reasons that follow, we conclude that

the trial court properly dismissed defendant’s petition.

¶2 The evidence at trial showed that on the evening of April 14, 1992, a group of people

including the victim, Jonas Cooks, gathered at the Chicago home of Donald Barfield. Some drug 1-11-1783

transactions occurred, after which the victim was accused of "beating" or cheating the others on

the deals. The victim was tied up, duct taped, placed in the trunk of a car, taken to an abandoned

building, and shot. The victim, who was not found for several days, died of multiple gunshot

wounds to the head. Defendant, Aaron May, Gary Bingham, and Barfield were tried separately

on numerous charges arising from the victim's kidnapping and murder.

¶3 Donald Barfield testified that on the day in question, he was at his house with the victim,

William Ramseur, Cheryl Lathan, Joe Booker, a woman named "Dee Dee," and a man named

Tyrone. At some point, a group of three men, known to him only as Pork Chop, Big Red, and

Little Red, came to the house. In court, Barfield identified defendant as Big Red. After

conversing with the men, Barfield and the victim went out to buy cocaine. When they returned

they gave the drugs to Pork Chop, whose money they had used for the purchase. Defendant,

Pork Chop, and Little Red left for a while but then returned to the house as well. Pork Chop,

who had a gun, asked the victim for their money back because the cocaine they received was "no

good." Barfield testified that Little Red also had what "looked like a gun" and that there was a

gun on the table near where defendant was sitting. The victim indicated that he would return the

money, but not right away because he could not get in contact with "the guy" right at that time.

Pork Chop asked Barfield to tie the victim up. Dee Dee brought Barfield some rope and

electrical cords and helped Barfield tie the victim's hands and feet to a chair. Barfield

subsequently untied the victim's hands so he could make a telephone call, but Pork Chop

snatched the phone from the victim. Pork Chop and Little Red ordered Barfield to open his back

door. Pork Chop, Little Red, and defendant then forced the victim out the back door.

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¶4 William Ramseur, who stated that he worked for Barfield selling cocaine, testified

consistently with Barfield. According to Ramseur, Pork Chop, Big Red, and Little Red came to

the house and discussed some "business" with Barfield. After various comings and goings, Pork

Chop, Little Red, and Big Red returned to the house with guns and indicated they wanted their

money back "because they had been beat." Ramseur testified that Barfield and a woman named

Dee Dee tied the victim to a chair with extension cords and put a pillow case and duct tape over

his face. Following further conversation with Pork Chop, Barfield determined that he had not

received his cut of the money from the victim, so he told Pork Chop to take the victim and "do

what you want to do with him." Barfield untied the victim and the three men took him out the

back door.

¶5 Gary Bingham testified that his nickname was Pork Chop, defendant's nickname was Big

Red, and Aaron May's nickname was Little Red, and that the three of them had a drug business

together. On the day in question, Bingham and May went to Donald Barfield's house, where

Bingham hoped to obtain cocaine. First, Barfield and the victim went out and returned with

some rock cocaine. Then, Bingham and the victim went out to procure powder cocaine. After

doing so, Bingham and the victim parted ways.

¶6 Bingham gave the drugs to May, who subsequently reported to Bingham that he had tried

to cook the powder cocaine but it "weren't right." May also called defendant. Bingham,

defendant, and May gathered in front of defendant's mother's house. Defendant went inside and

returned with three handguns, which he distributed to the group so that they were each armed.

The group then drove to Barfield's house. Bingham testified that they went inside, told the

victim that the weight was not right, and demanded their money back. The victim acknowledged

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that Bingham had been shorted and said he would call his sister to try to get some money to

"straighten this out," but Bingham snatched the phone out of the victim's hand. Barfield then tied

the victim's hands and feet to a chair with an extension cord and duct tape. The victim's mouth

was duct taped briefly, but the tape was removed when Barfield asked that the victim be allowed

to talk. The victim asked Barfield to help him, but Barfield said he did not have enough money.

Barfield then searched the victim's pockets. When he found some money, he accused the victim

of "stuffing on" him and indicated that Bingham, May, and defendant could take the victim

away.

¶7 According to Bingham, defendant suggested that they take the victim from Barfield's

house. Bingham and defendant dragged the victim through the kitchen and out the back door,

while May drove the car to the back of the house. After Barfield closed the door, May helped

defendant and Bingham put the victim in the trunk. Bingham then drove to an abandoned

building. While Bingham and May stood by the car, defendant picked the victim up out of the

trunk, carried him inside the doorway of the building, and shot him twice.

¶8 On cross-examination, Bingham acknowledged that he had been convicted for the

victim's murder, but had not yet been sentenced. When asked about his understanding of the

possible penalties he was facing, he stated, "By I ain't the shooter, I wasn't really worried about

nothing. *** By I took a bench trial, 30 years at the most." Bingham also stated that no one had

"worked out no deal" with him regarding sentencing. He explained that he decided to testify

because he "figured if I'm going to get sentenced, I want to get sentenced for something I did, not

something I didn't do." On redirect, Bingham reiterated that no one promised him anything or

made any agreements with him in exchange for testifying.

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¶9 Defendant testified that he knew who Bingham was because they had gone to high school

together, but did not know him personally and never had any business relations with him.

Defendant denied being at Barfield's house on the day in question, denied removing the victim

from Barfield's house, and denied shooting the victim. He also denied being called Big Red and

denied knowing that May, who was his nephew, was known as Little Red. Defendant testified

that on the night in question, he was at home with his girlfriend, her friend, and the women's

children. Defendant's girlfriend also testified that defendant was at home with her during the

time in question.

¶ 10 The jury found defendant guilty of first degree murder and aggravated kidnapping. The

trial court entered judgment on the verdict and subsequently sentenced him to concurrent terms

of 60 and 15 years in prison, respectively.

¶ 11 We affirmed defendant's conviction and sentence on direct appeal. People v. Sanders,

No. 1-94-0306 (1996) (unpublished order under Supreme Court Rule 23). In 1997, defendant

filed a pro se postconviction petition. The trial court dismissed the petition as untimely and we

affirmed the trial court's judgment. People v. Sanders, No. 1-97-1117 (1998) (unpublished order

under Supreme Court Rule 23).

¶ 12 In 1999, defendant, through counsel, filed a successive postconviction petition. In the

petition, defendant alleged that the State knowingly introduced perjured testimony from

Bingham. Specifically, defendant asserted that Bingham, contrary to his testimony at trial, had

testified pursuant to a deal with the State. Codefendant Aaron May raised the same claim in a

petition brought pursuant to section 2-1401 of the Code of Civil Procedure. 735 ILCS 5/2-1401

(West 1998). The trial court awarded both defendant and May an evidentiary hearing, at which

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Bingham testified at length regarding conversations he had with a detective while in jail

regarding whether, in exchange for helping identify the person who shot Bingham's brother in an

unrelated case, he would receive a "deal" at trial and/or sentencing for Cook's murder. In the

course of testifying, Bingham indicated that despite his belief at the time of defendant's and

May's trials that he had secured two deals, one with the detective and one with assistant State's

Attorneys, he testified at both trials that he had made no deals for his testimony. The detective

testified, denying that he had promised to help Bingham with his murder case. Following the

evidentiary hearing, the trial court denied both defendant's successive postconviction and May's

section 2-1401 petition, finding the detective "a very credible witness" and Bingham "a very

incredible witness." We affirmed the trial court's judgment in separate orders. People v. May,

No. 1-00-3535 (2002) (unpublished order under Supreme Court Rule 23); People v. Sanders, No.

1-00-3942 (2003) (unpublished order under Supreme Court Rule 23).

¶ 13 In 2010, defendant filed an attorney-drafted pleading titled "Defendant's Verified Post-

Conviction Petition," claiming newly discovered evidence of actual innocence. Defendant noted

in the petition that Bingham was the only witness to testify at trial that defendant was the person

who shot the victim, that no physical evidence implicated him, and that he had not confessed.

Defendant then asserted that he had obtained newly discovered evidence of actual innocence,

including, as relevant to the instant appeal, an assertion by Patricia DeRamus that Bingham alone

took the victim out of the house, and an admission by Bingham that he alone kidnapped and

killed the victim and that defendant was not present for the drug transactions that took place

earlier on the day of the murder. Defendant asserted that this evidence was not available at the

time of trial and could not have been discovered earlier through due diligence. Specifically, he

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stated that DeRamus' life was threatened by Bingham, but "she has now overcome her fear and

come forward," and that the "sworn testimony of Bingham is the first time he has admitted his

perjury under oath regarding the fact that Defendant did not participate in the offense."

Defendant asserted that the newly discovered evidence was of such conclusive character that it

would probably change the result on retrial, as it exonerated him and would "certainly create

grave doubts regarding Defendant's guilt in the mind of the trier of fact."

¶ 14 Defendant attached to the petition an affidavit executed by DeRamus. DeRamus averred

in the affidavit that she was known as "DD." She stated that she, Barfield, and the victim were at

Barfield's house on the day in question. Bingham came to the house, arranged a narcotics

transaction with the victim, and then left the house with the victim. The victim subsequently

returned to the house, followed by Bingham approximately 45 minutes later. Bingham, who was

holding sandwich baggies containing white powder, stated that the cocaine was garbage and

struck the victim in the head with a gun. Bingham marched the victim out the back door at

gunpoint. When Bingham returned, he stated that he had killed the victim and threatened to kill

"anybody at the house who told anyone what had taken place." DeRamus averred that at all

times, Bingham acted alone. DeRamus further stated that she was afraid to come forward earlier

because she was pregnant, had nine children, and Bingham knew where to find her. However,

she had since "undergone therapy and mentoring" and realized she must come forward to clear

her conscience and try to make amends for remaining silent for years.

¶ 15 Defendant also attached excerpts of Bingham's testimony at a 2007 evidentiary hearing

on codefendant May's successive postconviction petition. In the excerpts, Bingham testified that

when he went to Barfield's house on the day in question to purchase cocaine, the house was "full

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of people," including the victim, "DD," "William Ransom," and "somebody else." Bingham

made his purchase, left, attempted to cook the cocaine, and then returned to the house to demand

his money back. After Barfield tied and duct taped the victim, Bingham carried the victim out of

the house by himself and put the victim in the trunk of his car. He then, by himself, took the

victim to an abandoned building and shot him. According to Bingham's testimony, May was not

present for the drug transactions, kidnapping, or killing of the victim. Bingham also testified that

"the State" indicated it would work out a sentencing deal with him if he testified against May and

placed May at the scene.

¶ 16 The State filed a motion to dismiss the second successive petition for postconviction

relief, and defendant filed a reply. Following argument, the trial court granted the motion to

dismiss. In the course of doing so, the trial court noted that it had heard Bingham's testimony at

the evidentiary hearing on codefendant May's successive postconviction petition and "found the

man to be a complete liar. Totally incredible and not worthy of belief."

¶ 17 On appeal, defendant contends that his successive petition should have advanced to an

evidentiary hearing because he presented newly discovered evidence -- namely, Bingham's

testimony from May's evidentiary hearing and Patricia DeRamus's affidavit, both of which

indicated Bingham alone kidnapped and killed the victim -- that established a substantial claim

of actual innocence. Defendant argues that Bingham's testimony was newly discovered insofar

as it was a recantation that took place after trial and that DeRamus's affidavit was newly

discovered because she had only recently overcome her fear of coming forward. He asserts that

the trial court should have taken these pieces of evidence as true, erred in making a credibility

determination regarding Bingham's testimony, and completely failed to address DeRamus's

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affidavit. Defendant argues that Bingham's testimony and DeRamus's affidavit, taken as true, are

of such conclusive character that they would have a reasonable probability of changing the

outcome of his case on retrial, and that therefore, he has made a substantial showing of actual

innocence and is entitled to an evidentiary hearing.

¶ 18 For a petitioner to be entitled to an evidentiary hearing on a successive petition, he must

make a substantial showing of a constitutional violation. People v. Lofton,

. Our review of the dismissal of a petition without an evidentiary hearing is de

novo. People v. Childress,

(2000).

¶ 19 The Post-Conviction Hearing Act (Act) contemplates the filing of only one

postconviction petition. 725 ILCS 5/122-3 (West 2010). Any issues that were decided on direct

appeal or in the original postconviction petition are barred by the doctrine of res judicata, and

issues that could have been, but were not, raised in the original proceeding or original

postconviction petition are waived. People v. Davis,

; People v. Blair,

(2005). However, a defendant may overcome these procedural hurdles to filing a

successive postconviction petition in limited circumstances. Davis,

, ¶ 14. As

relevant in the instant case, one basis for relaxing the bar against successive postconviction

petitions is where a petitioner sets forth a claim of actual innocence. People v. Ortiz,

(2009). Evidence supporting an actual innocence claim must be newly discovered,

material, noncumulative, and of such conclusive character as would probably change the result

on retrial. Ortiz,

. Claims of actual innocence must be supported " 'with new

reliable evidence -- whether it be exculpatory scientific evidence, trustworthy eyewitness

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accounts, or critical physical evidence -- that was not presented at trial.' " People v. Edwards,

, (quoting Schlup v. Delo,

(1995)).

¶ 20 In the instant case, we find that neither Bingham's testimony nor DeRamus's affidavit

justifies granting an evidentiary hearing.

¶ 21 First, we cannot agree that Bingham's testimony that he alone kidnapped and killed the

victim constitutes reliable, trustworthy evidence. Bingham made these statements at the

evidentiary hearing on codefendant May's successive postconviction petition. In denying May's

successive petition, the trial court noted that it had previously heard Bingham testify at the

evidentiary hearing on May's section 2-1401 petition and defendant's first successive petition,

and found that Bingham's testimony was not credible, honest, or compelling. The trial court

found, inter alia, that Bingham had said different things at different times and was still not

believable. See People v. May, No. 1-08-1962, order at 11 (2010) (unpublished order under

Supreme Court Rule 23). When presented with the instant petition, the trial court recalled that it

had already heard Bingham's recantation of his trial testimony and had "gone through this with

him at length, ad nauseam." The court stated, "I found the man to be a complete liar. Totally

incredible and not worthy of belief." Thus, the testimony upon which defendant is currently

relying has already been found unreliable and untrustworthy following a full evidentiary hearing.

In these circumstances, we cannot imagine a scenario where the trial court would grant defendant

postconviction relief based on hearing Bingham testify yet again at another evidentiary hearing.

¶ 22 We are mindful of defendant's argument that the trial court was required to accept

Bingham's testimony as true and that, therefore, the court made an improper credibility

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determination when it rejected the testimony. In support of this argument, defendant cites the

following language in People v. Knight,

(2010):

"The standard, at the second-stage of postconviction

proceedings, is that all well-pled allegations are taken as true

unless positively rebutted by the record of the proceedings.

[Citation.] The standard refers only to the record in the

proceedings from which the defendant is seeking postconviction

relief and not any other, related proceedings."

Knight cites no authority for the proposition that a trial court may not look to related proceedings

when determining whether allegations are rebutted by the record, and our research has revealed

no other cases so holding. In the circumstances of this case, where the evidence defendant is

relying upon is testimony given at an evidentiary hearing in a related proceeding, we decline to

follow the rule announced in Knight. The trial court heard Bingham's full testimony at a

postconviction evidentiary hearing and found it unreliable and untrustworthy. We agree with the

State that defendant should be estopped from relying upon the testimony given at that hearing

while simultaneously claiming that the trial court may not also consider the conclusion it reached

at that proceeding regarding the reliability of the evidence. We will not remand for what would

be a futile and meaningless third-stage evidentiary hearing.

¶ 23 With regard to DeRamus's affidavit, we find that it is not of such conclusive nature that it

would probably change the result on retrial. See Ortiz,

. Newly discovered

evidence is considered to be of a conclusive nature if it raises the probability that, in light of the

new evidence, it is more likely than not that no reasonable juror would have convicted the

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defendant. Edwards,

. In her affidavit, DeRamus averred that Bingham,

"a/k/a 'Porkchop,' " engaged in a narcotics transaction with the victim at Donald Barfield's house,

left, but later returned, whereupon he brandished a gun and marched the victim out of the house.

According to DeRamus, "At all times that I saw, Bingham acted alone." In contrast to DeRamus'

version of events, there was substantial credible evidence adduced at trial that Bingham did not

act alone. Donald Barfield testified that defendant, whom he knew as Big Red, came to his

house with men he knew as Pork Chop and Little Red, and that once there, all three men engaged

in narcotics transactions and together forced the victim from the house. William Ramseur

similarly testified that men called Pork Chop, Big Red, and Little Red conducted some

"business" with Barfield, left the house, but then returned with guns. According to Ramseur, the

three men together took the victim out the back door of the house. Given this evidence, we

cannot find that DeRamus's proposed testimony would probably change the result on retrial.

That is, DeRamus's affidavit does not raise the probability that, if she testified, it is more likely

than not that no reasonable juror would have convicted defendant. See Edwards,

.

¶ 24 For the reasons explained above, we conclude that defendant failed to make a substantial

showing of actual innocence. Accordingly, we affirm the order of the circuit court of Cook

County granting the State's motion to dismiss defendant's second successive postconviction

petition.

¶ 25 Affirmed.

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