SECOND DIVISION December 13, 2016

No. 1-14-1021

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 01 CR 25785 ) KENNETH CALHOUN, ) Honorable ) Evelyn B. Clay, Defendant-Appellant. ) Judge Presiding.

JUSTICE MASON delivered the judgment of the court, with opinion. Justice Pierce concurred in the judgment and opinion. Presiding Justice Hyman dissented.

OPINION

¶1 Following a 2005 bench trial, defendant Kenneth Calhoun was convicted of the first

degree murder of Ardeen Adams and sentenced to an aggregate term of 40 years’ imprisonment.

Calhoun appeals from the circuit court’s order denying him leave to file a second successive pro

se petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 2012)). He contends that his petition presented a colorable claim of actual innocence

based on the attached affidavits of Robert Evans, Bridget Banks, and William Robinson, the

State’s eyewitnesses, recanting their trial testimony. We affirm.

¶2 On August 27, 2001, members of the Gangster Disciples street gang were playing a dice

game near 9337 South Evans Avenue in Chicago. At about 10 p.m., a white car approached the 1-14-1021

group, and three men inside the car began shooting at the dice players. As a result of the

shooting, Adams was killed, and Anton Moore and Matthew Shorts were wounded. Calhoun and

codefendant Kevin Smith, who Evans, Banks, and Robinson identified as two of the shooters,

were charged by indictment with multiple counts of first degree murder, attempted first degree

murder, and aggravated battery with a firearm.

¶3 At a joint but severed bench trial, Evans, Banks, and Robinson provided similar

eyewitness accounts of the shooting. Evans, a former Gangster Disciple, testified that, during the

evening of August 27, he was playing dice with a group of friends, including the victims Adams,

Moore, and Shorts, under a street lamp near the intersection of South Evans Avenue and South

Lyons Avenue. At about 10 p.m., a white car approached the group and slowed down. Evans,

who was about 12 feet from the passenger side of the car, could not identify the driver of the car

but recognized Calhoun in the rear seat and codefendant Smith in the front passenger seat. Prior

to the shooting, Evans had been friends with Calhoun for about 9 or 10 years and Smith for at

least 12 years, despite their membership in rival gangs that were “at war” (Calhoun and Smith

were members of the Mickey Cobras street gang). Evans testified that Calhoun started shooting

from the back seat of the car, while Smith shot from the front passenger seat. The driver was also

shooting from the driver’s seat. Evans ran in front of the car and heard 30 to 40 shots. Evans

could not locate Adams after the shooting but saw that Moore was shot twice in the back.

¶4 Shortly after the shooting, Evans spoke with Chicago Police Detectives David Fidyk and

Scott Rotkovich about the shooting and told them that Calhoun and Smith were the shooters.

Evans later identified Calhoun and Smith from separate lineups at the police station. Evans also

identified Calhoun and Smith in open court.

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¶5 Banks testified that on August 27, 2001, she walked from her house to the group playing

dice to ask Adams, her boyfriend at the time, to come home. Adams refused, and Banks began to

walk back to her house, located about two blocks away. As Banks walked to her house, she saw

a white car approach the group and heard gunshots. During her testimony, Banks testified that

she “thought” she saw Smith in the front passenger seat of the car, but that she was not sure.

Banks denied seeing Calhoun in the car. Banks admitted telling detectives that she thought she

saw Smith in the car. She also admitted identifying Smith from a photo array and lineup. Banks’s

version of the shooting was reduced to writing by assistant State’s Attorney (ASA) Jim Lynch.

Banks admitted reading and signing the statement.

¶6 When the State confronted Banks with her statement at trial, she denied that she had

identified Calhoun as one of the shooters. Banks testified that she, Robinson, and Evans had

smoked marijuana before speaking to police. Banks was impeached with her grand jury

testimony, in which she had identified Calhoun as one of the shooters. She then admitted that she

had identified Calhoun from a lineup and that she told a detective that Calhoun was in the back

seat but that he was not shooting.

¶7 On cross-examination, Banks stated that she had known all along that Calhoun and Smith

were not the shooters but that she had told police that they were in order to seek revenge against

them for a gang dispute. Banks also stated that the lighting conditions at the time of the shooting

prevented her from seeing who was inside the car. Banks testified that she saw Evans purchase

crack cocaine and marijuana from Adams about 30 minutes before the shooting. Banks also

testified that, although she had lied in front of the grand jury, she was telling the truth at trial.

¶8 Robinson testified that he was familiar with Calhoun and Smith because they all attended

the same school. On the night of the shootings, Robinson was among the group of dice players

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and saw a white car with three men inside approach. The people inside the car began shooting.

Robinson testified that it was too dark to identify the shooters. Robinson admitted that he spoke

with detectives at the police station. He stated that he told the detectives that he did not recognize

any of the men in the white car. Robinson denied telling police that Calhoun and Smith were the

shooters. He also denied viewing a lineup at the police station.

¶9 The State confronted Robinson with a statement he made to police that had been reduced

to writing in which he indicated that he saw Calhoun in the back seat of the car holding a gun.

Robinson admitted that he had signed the statement but testified that he did so only because he

had been handcuffed to a rail and was told that he could leave the police station if he signed the

statement.

¶ 10 Detectives Fidyk and Rotkovich and ASA Lynch, who interviewed Banks and Robinson,

testified about the circumstances surrounding their statements and lineup identifications of

Calhoun and Smith. The testimony of the detectives and ASA Lynch confirmed that both Banks

and Robinson had positively identified Calhoun and Smith as two of the shooters. The detectives

and ASA Lynch also testified that Robinson was not handcuffed or threatened that he would be

locked up if he did not provide a statement.

¶ 11 Calhoun and Smith then presented evidence in their defense, each adopting the evidence

presented by the other. The parties stipulated to the grand jury testimony of Lovie Brown,

Smith’s girlfriend, which was read into the record. Brown testified before the grand jury that

Smith had been residing with her and her sister Erica for a week and a half while he looked for a

job. On August 27, 2001, Brown was scheduled to work from 3 p.m. to 11 p.m., and she left the

house at about 2:15 p.m. When she left, Smith was watching television at the house. When

Brown arrived home from work at about 11:30 p.m., Smith was lying in the living room

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watching television. Brown’s sister was also home and asleep in bed. When asked if she knew

where Smith was at about 10 p.m., Brown stated that she “supposed” he was at her house.

¶ 12 Helen Banks, Bridget Banks’s mother, testified that on August 27, she was at her home,

which was located 30 to 40 feet from the scene of the shooting. At about 8 p.m., Helen was on

her front porch, looking in the direction of Adams and trying to get his attention so he could go

to the store for her. She saw a beige four-door car approach the area and heard gunshots. She

stated that there were three light-complected men in the car and that Calhoun was not one of

them. Helen testified that she had known Calhoun for “quite a while” because he had grown up

in the neighborhood. She also testified that at 8 p.m., it was still light outside so she was able to

see well enough to know that Calhoun was not one of the passengers inside the car. Helen

testified that she did not speak to police on the night of the shooting because she did not want to

be involved. She stated that she decided to come forward because she did not want to see

someone go to jail for something he did not do.

¶ 13 On cross-examination, Helen testified that when people in the neighborhood started

saying that Calhoun and Smith were the shooters, she started to speak up and told her friends and

coworkers that Calhoun and Smith were not the shooters. She acknowledged that she did not tell

the police. Helen testified that she told the detectives who came to her house to pick up her

daughter Bridget that Calhoun was not involved in the shooting. Helen stated that the detectives

did not appear to want to talk to her.

¶ 14 The parties stipulated that bullets recovered from the crime scene matched a gun found in

the possession of Earl Dunne, who was not charged in connection with Adams’s murder.

¶ 15 The court found Calhoun and Smith guilty of the first degree murder of Adams and the

attempted murder of Moore. In announcing its decision, the court stated that it found the

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eyewitness accounts and statements given to police investigators by Evans, Banks, and Robinson

credible. The court pointed out that the three eyewitnesses were familiar with Calhoun and Smith

and, after the shooting, gave statements identifying them as occupants of the white car. The court

also pointed out that all three eyewitnesses initially identified Calhoun and Smith as the shooters

from a lineup. The court found that Banks’s and Robinson’s recantations at trial were “not at all

credible” and that Helen Banks’s testimony was also not credible because she was the only

witness to testify that the shooting took place at about 8 p.m., when it was still daylight.

¶ 16 The court later sentenced Calhoun to 20 years’ imprisonment on the murder conviction,

plus an additional 20 years for personally discharging a firearm, for an aggregate term of 40

years’ imprisonment on the first degree murder count. Calhoun appealed, contending that (1) the

trial court violated his right to due process because his trial was heard on a piecemeal basis over

a span of 16 months, (2) the trial court abused its discretion in not granting Smith a second

continuance to obtain another alibi witness, which also prejudiced Calhoun’s defense, and (3) he

was denied his sixth amendment right to effective assistance of counsel based on counsel’s

failure to object to the fact that the State briefly put on one “nonessential” witness shortly before

the 120-day statutory speedy trial deadline but then did not present additional witnesses for

another month. This court affirmed Calhoun’s conviction and sentence. People v. Calhoun, No.

1-07-0007 (2008) (unpublished order under Supreme Court Rule 23).

¶ 17 On April 21, 2011, Calhoun filed a pro se postconviction petition, arguing that the first

degree murder statute and Public Act 84-1450 were unconstitutional and violated the prohibition

against ex post facto laws (U.S. Const., art. I, § 9), thus rendering his conviction and sentence

void. He also argued that prosecutors fabricated his indictment and arraignment by misleading

the grand jury. The circuit court summarily dismissed the petition, finding the issues raised

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therein frivolous and patently without merit. Calhoun appealed, and this court affirmed the

circuit court’s order after granting appellate counsel’s motion to withdraw pursuant to

Pennsylvania v. Finley,

(1987). No. 1-11-1786 (2012) (unpublished summary order

under Supreme Court Rule 23(c)).

¶ 18 On July 17, 2012, while his appeal from the summary dismissal of his initial

postconviction petition was pending, Calhoun sought leave to file a pro se successive

postconviction petition. In his successive petition, Calhoun argued that his trial counsel was

ineffective for failing to investigate allegations of police coercion. Calhoun also purported to

raise a claim of actual innocence based on newly discovered evidence. In support of his actual

innocence claim, Calhoun attached the affidavits of Banks and Robinson, recanting their

identifications of him as one of the shooters. In her affidavit, dated December 1, 2010, Banks

stated that Calhoun was innocent of Adams’s murder and that, on the date of the murder, “there

was [sic] a lot of people out there shooting.” Banks averred that she knew Calhoun and Smith

were not the shooters and that the Gangster Disciples street gang wanted Calhoun and Smith “out

of the way.” She also averred that detectives told her that she would be locked up if she did not

identify Calhoun as the shooter. The detectives also asked her if she needed anything in

exchange for her testimony to which she said “no.” Banks further stated that Evans accepted

money and cigarettes from the detectives in exchange for his testimony.

¶ 19 In his affidavit, dated July 11, 2011, Robinson averred that Calhoun and Smith were not

the shooters and that they were not at the scene of the shooting. Robinson stated that “they lied

on [Calhoun and Smith]” because “they knew they didn’t like each other.” Robinson also averred

that Evans told him that the detectives were paying him.

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¶ 20 The court denied Calhoun leave to file his successive petition, finding that he did not set

forth a freestanding claim of actual innocence and that he failed to satisfy the cause and prejudice

test. Calhoun appealed, and this court affirmed the circuit court’s order after granting appellate

counsel’s motion to withdraw pursuant to Finley. No. 1-12-3578 (2014) (unpublished summary

order under Supreme Court Rule 23(c)).

¶ 21 On December 17, 2013, Calhoun sought leave to file the second pro se successive

postconviction petition that is the subject of this appeal. In his second successive petition,

Calhoun alleged that he was actually innocent of Adams’s murder. In support of his actual

innocence claim, Calhoun attached the same affidavits from Banks and Robinson that he

attached to his pro se successive postconviction petition. Calhoun also attached an affidavit from

Evans, recanting his identification of Smith. Evans’s affidavit was obtained by Smith’s

postconviction counsel. Calhoun’s motion for leave to file his successive petition represented

that he had obtained Evans’s affidavit in July 2013 “through outside help.” The motion did not

recite that Calhoun had done anything to attempt to investigate the statements in Banks’s or

Robinson’s affidavits from 2010 and 2011 regarding Evans accepting money and other

incentives to testify against Calhoun or that he had attempted to contact Evans to obtain further

information.

¶ 22 In Evans’s affidavit, dated August 1, 2012, Evans averred that following his testimony at

trial he began to have “doubts” about his “identifications.” His doubt arose following a

conversation with Banks, who told him that she was “sure” Smith was not the shooter. Evans

then spoke to an unnamed acquaintance who told him that one of the shooters was a person

named “Spanky.” One month after trial, Evans was in a car and someone pointed out Spanky.

Upon seeing Spanky, who looked a bit like Smith, it came to Evans that Spanky was the person

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he saw shooting from the white car and not Smith. According to Evans’s affidavit, his mistaken

identification of Smith had been bothering him for some time, but he did not know who to

inform of his error until the summer of 2012, when he met his friend Reggie, who was also

friends with Smith. Reggie told Evans that Smith wanted to contact him. Evans gave Reggie his

phone number and told Reggie that he wanted to help Smith because he knew that Smith was not

the shooter. Smith called Evans and arranged for Evans to meet his public defender. Evans later

prepared the affidavit recanting his identification of Smith. Other than its reference to

“identifications,” Evans’s affidavit says nothing about his testimony against Calhoun.

¶ 23 On March 7, 2014, the circuit court entered a written order denying Calhoun leave to file

the second successive postconviction petition. The court treated Evans’s affidavit as though it

recanted Evans’s identification of both Smith and Calhoun and found that it was not of such

conclusive character that it would probably change the result on retrial, given Evans’s extensive

identification testimony at trial.

¶ 24 On appeal, Calhoun contends that his petition presented a colorable claim of actual

innocence based on the affidavits of Evans, Banks, and Robinson, which were of such conclusive

character that they are likely to change the result on retrial. In support of his argument, Calhoun

relies on our recent decision in People v. Smith,

. In Smith, we reversed

the second-stage dismissal of Smith’s initial postconviction petition and remanded the matter for

an evidentiary hearing after concluding that Smith made a substantial showing that the

allegations in Evans’s affidavit identifying a third person as the shooter constituted newly

discovered evidence that would probably change the result on retrial. Id. ¶¶ 19, 21. As we

discuss below, the conclusion that Smith was entitled to an evidentiary hearing on his initial

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postconviction petition bears little, if any, relevance to the trial court’s denial of leave to file

Calhoun’s second successive postconviction petition.

¶ 25 The Act generally contemplates the filing of only one postconviction petition and

provides that “ ‘[a]ny claim of substantial denial of constitutional rights not raised in the original

or amended petition is waived.’ ” People v. Ortiz,

, 328-29 (2009) (quoting 725

ILCS 5/122-3 (West 2006)). This statutory bar to a successive postconviction petition will be

relaxed when fundamental fairness requires. Id. at 329. Fundamental fairness allows the filing of

a successive petition where the petition complies with the cause and prejudice test. Id. As our

supreme court recognized in People v. Davis:

“[A] defendant faces immense procedural default hurdles when bringing a successive

postconviction petition. Because successive petitions impede the finality of criminal

litigation, these hurdles are lowered only in very limited circumstances. [People v.]

Tenner, 206 Ill. 2d [381,] 392 [(2003)]. One such basis for relaxing the bar against

successive postconviction petitions is where a petition can establish ‘cause and prejudice’

for the failure to raise the claim earlier. *** ‘Cause’ refers to some objective factor

external to the defense that impeded counsel’s efforts to raise the claim in an earlier

proceeding. ‘Prejudice’ refers to a claimed constitutional error that so infected the entire

trial that the resulting conviction or sentence violates due process. 725 ILCS 5/122-1(f)

(West 2012). [Citations.] Both prongs must be satisfied for the defendant to prevail.”

People v. Davis,

, ¶ 14.

In particular, a defendant seeking leave to file a successive postconviction petition must

demonstrate cause for failing to raise the claim in his initial postconviction petition. 725 ILCS

5/122-1(f) (West 2012); People v. Simon,

, ¶ 65.

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¶ 26 Our supreme court has also recognized a second category of successive postconviction

petitions that warrants relaxation of the procedural bar: those raising a fundamental miscarriage

of justice. People v. Pitsonbarger,

(2002). A successive postconviction

petition that sets forth a claim of actual innocence falls into this latter category and is not subject

to the general cause and prejudice test. Id.; Ortiz, 235 Ill. 2d at 330. Rather, when a successive

postconviction petition based upon a claim of actual innocence is filed, “leave of court should be

denied only where it is clear, from a review of the successive petition and the documentation

provided *** that, as a matter of law, the petitioner cannot set forth a colorable claim of actual

innocence.” People v. Edwards,

. Stated differently, “leave of court should

be granted when the petitioner’s supporting documentation raises the probability that ‘it is more

likely than not that no reasonable juror would have convicted him in the light of the new

evidence.’ ”

(quoting Schlup v. Delo,

(1995)).

¶ 27 The elements of a successful claim of actual innocence require that the evidence

supporting the claim must be (1) newly discovered, (2) material, (3) not merely cumulative, and

(4) of such conclusive character that it would probably change the result on retrial. Edwards,

(citing Ortiz, 235 Ill. 2d at 333). In People v. Coleman,

, our supreme court clarified that “[n]ew means the evidence was discovered after trial and

could not have been discovered earlier through the exercise of due diligence. [Citation.] Material

means the evidence is relevant and probative of the petitioner’s innocence. [Citation.]

Noncumulative means the evidence adds to what the jury heard. [Citation.] And conclusive

means the evidence, when considered along with the trial evidence, would probably lead to a

different result. [Citation.]” As we recognized in Smith, in order to constitute a claim of actual

innocence, the new evidence must vindicate or exonerate the petitioner: “[it] must do more than

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merely call into question the sufficiency of the evidence adduced at trial. People v. Coleman,

.” Smith,

.

¶ 28 We first address whether Calhoun’s petition sets forth, as he contends, a claim of actual

innocence. Because the trial court has already considered and rejected the sufficiency of Banks’s

and Robinson’s affidavits in connection with Calhoun’s first successive petition, a ruling we

affirmed on appeal, those affidavits cannot possibly be “newly discovered.” Further, the

recantations in Banks’s and Robinson’s affidavits mirrored, in large part, their recantations at

trial, so they are cumulative. Therefore, we confine our analysis to whether Evans’s affidavit

supports a claim of actual innocence.

¶ 29 As it relates to Calhoun, Evans’s affidavit, at most, raises a claim that shortly after trial,

Evans began to doubt his “identifications.” Even assuming the plural “identifications” refers to

Calhoun as well as Smith, the remainder of the affidavit pertains only to Smith and identifies a

third party who Evans claims was the front passenger seat shooter. The affidavit provides no

facts regarding Calhoun, nor does it identify anyone else who Evans believes was the rear

passenger seat shooter. Evans’s affidavit, therefore, cannot support an actual innocence claim by

Calhoun. Rather, it raises another sufficiency of the evidence argument, i.e., Calhoun contends

that Evans’s posttrial “doubts” about his identification of Calhoun undermine Evans’s trial

testimony in which he positively identified Calhoun as the backseat shooter. Thus, the claim

raised by Calhoun in his second successive petition is substantially identical to the one he raised

in his earlier petition.

¶ 30 The evidence here is akin to that presented by the defendant in People v. Collier,

(2008). In Collier, the defendant, who was convicted of first degree murder

following a drive-by shooting, filed a second successive postconviction petition and attached to it

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affidavits of three witnesses recanting their trial testimony.

The first witness averred that he

falsely identified the defendant at trial, while the second witness claimed that she fabricated her

testimony to match the first witness.

. The third witness swore that detectives and an

ASA manipulated his statement so as to destroy the defendant’s alibi defense.

. In

affirming the circuit court’s order denying defendant leave to file the second successive petition,

this court held that the winesses’ “affidavits measured against their trial testimony address

considerations of credibility that go to reasonable doubt, not actual innocence.”

.

“However, ‘actual innocence’ is not within in the rubric of whether defendant has been proved

guilty beyond a reasonable doubt. [Citation.] Rather, the hallmark of ‘actual innocence’ means

‘total vindication,’ or ‘exoneration.’ [Citation.].”

.

¶ 31 Evans’s “doubts” about his identification of Calhoun, assuming they exist, do not support

a freestanding claim of actual innocence. Consequently, Calhoun was required to satisfy the

cause and prejudice test in order to obtain leave to file his second successive postconviction

petition. Under the circumstances here, we find that the trial court properly denied leave to file

the second successive postconviction petition.

¶ 32 It is unclear whether an abuse of discretion or de novo standard of review applies to

decisions granting or denying leave to file a successive petition subject to the cause and

prejudice test. The language of the statute implies an abuse of discretion standard when it

provides that “[l]eave of court [to file a successive petition] may be granted” only if the

petitioner demonstrates cause and prejudice. (Emphasis added.). 725 ILCS 5/122-1(f) (West

2012). And a trial court’s determinations regarding a petitioner’s cause for failing to raise a claim

earlier and prejudice resulting from the inability to proceed on that claim certainly sound like

discretionary rulings. But some courts have concluded that de novo review is appropriate because

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the question under the Act regarding successive petitions concerns the application of a statutory

standard. See People v. Almodovar,

(applying de novo standard

of review). And our supreme court has not resolved the issue. Edwards,

(declining to decide whether an abuse of discretion or de novo standard of review applies to

decisions granting or denying leave to file a successive petition raising a claim of actual

innocence). However, applying either standard in this case, our conclusion is the same. See, e.g.,

Simon,

.

¶ 33 Calhoun cannot satisfy the cause and prejudice test. With respect to cause for failure to

raise this claim earlier, by July 17, 2012, when Calhoun filed his first successive postconviction

petition, he had both Banks’s and Robinson’s affidavits, which, in addition to repeating their trial

recantations, asserted that Evans had been paid by the police for his testimony against Calhoun.

Such information, if true, would put any reasonable person on notice of the possibility (indeed,

the likelihood given Banks’s and Robinson’s recantations of their identification of Calhoun) that

Evans’s identification testimony was likewise suspect. But neither the first nor the second

successive postconviction petition contains any representations regarding efforts Calhoun made

to contact Evans, either through Banks or Robinson, with whom he was apparently in touch, or

by other means. And if we take Evans’s affidavit at face value, shortly after Smith and Calhoun’s

trial, he was more than willing to rectify his misidentification; he just did not know who to

contact. There is thus nothing in the record to explain why Calhoun was unable to raise this issue

in his first successive petition or why he needed to rely only on Evans’s affidavit filed in Smith’s

case in support of his second successive petition. See People v. Pitsonbarger,

(2002) (“cause” in the context of a successive postconviction petition “refers to any

objective factor, external to the defense, which impeded the petitioner’s ability to raise a specific

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claim in the initial postconviction proceeding”). Consequently, Calhoun has not demonstrated

cause for his failure to raise this issue earlier.

¶ 34 By the same token, Calhoun cannot establish prejudice due to his inability to present

Evans’s belatedly tendered affidavit because, at the time the trial court denied leave to file the

first successive petition, the court was undoubtedly aware of Banks’s and Robinson’s assertions

regarding Evans being paid for his testimony, yet it denied leave to file, a ruling that we affirmed

on appeal. Thus, because the trial court was already aware of information casting doubt on

Evans’s testimony when it denied leave to file Calhoun’s first successive petition, Calhoun

cannot establish prejudice, particularly in light of the fact that Evans’s affidavit contains such

scant reference to his identification of Calhoun.

¶ 35 In short, under any standard of review, the trial court correctly concluded that Calhoun

could not overcome the “immense procedural default hurdles” to his second successive petition.

Davis,

. The dissent’s speculation that perhaps Calhoun could have done

better if only a lawyer had been appointed to represent him conflates the standards applicable to

initial and successive postconviction petitions. We do not here apply the low “frivolous and

patently without merit” threshold by which the sufficiency of an initial postconviction petition is

evaluated. Edwards,

(rejecting evaluating the sufficiency of initial and

successive petitions by the same standard because it “ignores the well-settled rule that successive

postconviction petition actions are disfavored by Illinois courts”).

¶ 36 It is only by ignoring the significant procedural and substantive distinctions between

Smith and Calhoun that the dissent is able to contend that Calhoun is receiving disparate

treatment compared to his codefendant. But a different analysis undeniably applies to Smith’s

initial postconviction petition as opposed to Calhoun’s second successive petition and while

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Evans’s affidavit establishes a colorable claim of actual innocence as it pertains to Smith, that

same affidavit, under even the most liberal interpretation, raises only another sufficiency of the

evidence argument as to Calhoun. Calhoun is not hobbled by his pro se status but, rather, by his

inability to satisfy the cause and prejudice test, which even the most talented lawyer could not

overcome.

¶ 37 For the reasons stated, we affirm the judgment of the circuit court.

¶ 38 Affirmed.

¶ 39 PRESIDING JUSTICE HYMAN, dissenting:

¶ 40 When Calhoun’s codefendant, Kevin Smith, used Robert Evans’s affidavit to support a

claim of actual innocence, this court remanded for an evidentiary hearing on his postconviction

petition. See People v. Smith,

. But the underlying evidence and

factual similarities between Smith’s and Calhoun’s cases show that their different fates on appeal

have nothing to do with any difference in culpability between the two men, as I will explain. I

respectfully disagree with the majority and would reverse the trial court’s judgment and remand

for second-stage postconviction proceedings so that counsel may be appointed to represent

Calhoun.

¶ 41 The majority states that Evans only recanted his identification of Smith, not of Calhoun.

Evans’s affidavit states that he and his friends decided that “Kevin and Kenny” (Smith and

Calhoun) were two of the shooters but Evans began having doubts about his “identifications”

after he testified at trial and did not remember if he ever told a prosecutor that he had doubts

about those “identifications.” Since Evans made two identifications at trial—one of Smith and

one of Calhoun—and uses the plural, to say his recantation does not refer to both codefendants

adopts a strained interpretation of the words Evans used.

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¶ 42 The majority and the State make much of the fact that the latter parts of the affidavit

focus on Evans’s identification of Smith, while not mentioning Calhoun by name. Of course it

does not mention Calhoun by name. Evans wrote the affidavit at the behest of Smith and Smith’s

appointed postconviction attorney. Smith and his attorney were not concerned about Calhoun’s

misidentification by Evans but only Smith’s.

¶ 43 Since the affidavit refers to both codefendants (albeit with more detail as to Smith), we

must determine whether it meets the actual innocence standard: (i) newly discovered,

(ii) material and not merely cumulative, and (iii) of such conclusive character that it would

probably change the result on retrial. Edwards,

. Evans’s affidavit is plainly

“newly discovered,” as Evans says that he did not doubt his identifications before trial and he did

not tell anyone of his doubts until 2012. There was no opportunity for Calhoun to obtain Evans’s

recantation before trial. It is material because Evans was the main witness against Calhoun (as

the other state witnesses had recanted) and not cumulative because Evans had never recanted

before. See Smith,

.

¶ 44 The majority rejects Calhoun’s claim on the third factor: whether the affidavit is

sufficiently conclusive. When Smith presented this affidavit, the Smith court held that it

demonstrated a probability sufficient to undermine confidence in the outcome because without

any physical evidence, “Evans’s testimony was the strongest evidence against Smith.” Smith,

. That reasoning applies equally and leads to the same conclusion

for Calhoun. Further, Evans’s recantation was more than “mere impeachment” because the

recantation exonerated Smith and named a different perpetrator. Id. ¶ 23. (Again, the affidavit

concerned Smith and hence did not contain much detail about Calhoun.)

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¶ 45 Beyond Smith’s analysis, the affidavit also outlines several weaknesses in Evans’s

identifications, which apply in all respects to Calhoun as well. Evans only viewed the shooters

by a “glimpse of light from the street lights” during the evening hours. Because they were upset

over the victim’s death, Evans and his friends “decided” that Smith and Calhoun were the

shooters; Evans wanted to blame someone. And Smith and Calhoun were members of a rival

gang that, according to Evans’s trial testimony, had been “at war” with Evans’s gang. Evans

misidentified Smith, despite having known Smith and Calhoun for many years, because he saw a

shooter with “a lot of hair” and knew that Smith “had a lot of hair.” Taken as true, Evans’s

affidavit admits that his powers of identification were poor, that he concluded Smith was

responsible based on little evidence, and that he was motivated to blame Smith and Calhoun.

And Evans’s misidentification of Smith makes his identification of Calhoun less credible. To

repeat, while the affidavit contains more details as to Smith, it is also sufficiently “conclusive” in

regard to Calhoun. See People v. Ortiz,

(2009) (where newly discovered

evidence directly contradicts recanted testimony of two State witnesses, and no physical

evidence tied defendant to murder, “all of the facts and surrounding circumstances *** should be

scrutinized more closely to determine the guilt or innocence of [defendant]” (internal quotation

marks omitted)).

¶ 46 Moreover, the difference in detail can be attributed to the different procedural histories of

Calhoun’s and Smith’s postconviction cases. The evidence against these two men was exactly

the same. What appears to have led to the ambiguity in the Evans affidavit as to Calhoun is that

Calhoun first alleged that he was actually innocent in 2012. At that time he used the Banks and

Robinson affidavits as support. The trial court did not allow his petition to go forward. When

Smith used the Banks and Robinson affidavits to support his own postconviction petition, the

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trial court found Smith’s evidence compelling enough to appoint him counsel; only with an

attorney’s assistance was Smith able to obtain Evans’s affidavit, which this court then found

sufficient to warrant further proceedings.

¶ 47 The two codefendants’ fortunes diverged in their postconviction proceedings. If Calhoun

had had appointed counsel after his 2012 postconviction petition (based on the Banks and

Robinson affidavits), that attorney presumably could have contacted Evans and obtained an

affidavit from him supporting Calhoun’s claim—or, at the very least, stating that he was now

unsure about his identifications. At this point, I can see no reason why this court should have

appointed counsel for Smith but rejected counsel for Calhoun outright.

¶ 48 The weakness of the State’s case against Calhoun and Smith also argues for allowing

Calhoun’s postconviction petition to go forward. The State relied only on the testimony of three

eyewitnesses, all of whom were asked to identify two men in a moving car several hours after

sunset (the shooting took place at about 10:00 p.m., while the sunset was at 7:32 p.m.), during

the firing of dozens of gunshots. There was no physical evidence inculpating either Calhoun or

Smith—in fact, the only physical evidence seemed to link the crime to another man, who was not

charged. At trial, two of the three eyewitnesses recanted their earlier identifications. Thus, the

only positive identification of either Smith or Calhoun came from Evans, a member of a rival

gang, and he now has recanted both of those identifications. (It is true that Robinson and Banks’s

recantations have already been rejected by the trial court, but Evans’s recantation should inspire

us to reexamine them. If Evans also had recanted at trial, this might have affected the trial court’s

conclusion that Robinson and Banks were not credible.) The majority’s conclusion leaves open

the possibility that Smith could be declared actually innocent and walk free while Calhoun would

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remain imprisoned, though the evidence against him is no more persuasive than the evidence

against Smith.

¶ 49 I believe Calhoun has been dealt a grave injustice. A reversal would merely require

Calhoun receive the benefit of appointed counsel, as Smith had, and, presumably, the

opportunity to obtain an affidavit from Evans focusing on him. We can speculate and presume

and assume about what Evans might say, but rather than run the risk of two codefendants

suffering different fates on a matter of chance, Calhoun should be given the same opportunity as

Smith to prove his innocence with the assistance of counsel.

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