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People v. Perry

Court of Appeals of Illinois, First District, Fourth Division

December 21, 2017

CORDELL PERRY, Defendant-Appellant.

          Appeal from the Circuit Court of Cook County. No. 05 CR 11283 Honorable Charles P. Burns, Judge Presiding.

          JUSTICE McBRIDE delivered the judgment of the court, with opinion. Presiding Justice Burke and Justice Gordon concurred in the judgment and opinion.



         ¶ 1 Defendant Cordell Perry appeals the trial court's second stage dismissal of his successive petition for postconviction relief, arguing that his postconviction counsel rendered unreasonable assistance by withdrawing a supporting affidavit and tacitly agreeing to dismissal of his petition and that the $105 costs assessment must be vacated.

         ¶ 2 Following a jury trial, defendant was convicted of first degree murder in connection with the shooting of the victim, Denzel Calhoun, on April 1, 2005, at Magnum Motors at Cicero and Wabansia Avenues in Chicago. Defendant was sentenced to a term of 65 years in prison, which included a mandatory enhancement for discharging a firearm.

         ¶ 3 At trial, Latavia Hayden testified that on April 1, 2005, she was with her boyfriend, Calhoun, at Magnum Motors because Calhoun was selling his car and buying a new one. While Calhoun filled out paperwork, Hayden stepped onto the balcony to smoke a cigarette and noticed defendant standing on the corner. Hayden and Calhoun left the office to transfer Calhoun's belongings from his old car to his new one. As Calhoun walked between two SUVs, shots were fired, and Calhoun fell to the ground. Defendant stood in one spot as he fired one shot to Calhoun's head and three or four shots at Calhoun's body.

         ¶ 4 Hayden identified defendant as the shooter by his nickname, Bushwick, to police that afternoon. She subsequently identified defendant in a photo array, a lineup, and in court. Hayden admitted that she told her friend, Keisha Reese, that she did not see the shooter's face. Hayden testified that she said that to Reese because Reese would discuss their conversation with other people. Hayden also testified that she knew a man named Vernon Holman from the neighborhood, but she denied seeing him at the car lot. The trial court sustained the State's objection to questions regarding any prior relationship Hayden may have had with Holman.

         ¶ 5 Holman testified that he knew Hayden and defendant, and that he sold drugs near Magnum Motors. On April 1, 2005, while cutting through the car lot, he saw Hayden talking to a man who looked like Calhoun, whom he had not met. As Holman passed by, he noticed defendant, who was wearing a coat and a black hoodie, standing alone between two vans on the lot. As Holman walked toward Wabansia Avenue, he heard three or four shots, at which point he ran home. Holman had two prior felony convictions for murder and possession of a controlled substance with intent to deliver. On April 2, 2005, Holman was arrested on a drug charge and initially denied knowing about the Calhoun shooting. Holman gave information to the police about the shooting several days later. Holman also had a pending misdemeanor charge. He testified that the State had not promised him anything for his testimony. An assistant public defender testified that on May 11, 2007, Holman told her that he had not seen defendant in the car lot on April 1, 2005, and was afraid of being charged with perjury.

         ¶ 6 Boykin Gradford testified that he and his wife were driving on Cicero Avenue when he heard shots. Gradford saw a short, stocky African-American man wearing a black hoodie and a white "do-rag" standing behind an SUV on the lot, with his arm outstretched and a gun in his hand. Gradford also saw the victim standing between two parked cars, approximately three to four feet away from the shooter. He saw the victim fall to the ground and did not recall any shots fired thereafter. On April 7, 2005, Gradford viewed a lineup and thought defendant looked like the shooter but was not 100% certain. The viewing was recorded by police as a "negative lineup." Officer Robert Bullock testified that his case report did not reflect Gradford saying he saw a man with a gun. Detective Stanley Colon testified that when he interviewed Gradford on April 1, 2005, Gradford did not mention seeing a gun fired or someone running with a gun.

         ¶ 7 After police arrested defendant on April 6, Detective Michael Barz interviewed him. Detective Barz testified that defendant admitted he was at the scene of the shooting, but he denied seeing who fired the shots. Defendant further stated that he recognized Calhoun as the man who killed his friend, Anderson Thomas, also known as "Shug." Defendant had a tattoo on his arm that read "RIP Shug."

         ¶ 8 A certified copy of Calhoun's 1993 murder conviction was entered into evidence.

         ¶ 9 The jury found defendant guilty of first degree murder, and the court sentenced him to 65 years in prison. On direct appeal, defendant argued that the trial court excessively restricted his attempts to cross-examine the State's witnesses and present a theory of defense, the trial court erred in refusing defense counsel's request for a jury instruction on the meaning of the reasonable doubt standard, and the trial court erred in refusing defense counsel's request for the jury to be given an addict instruction regarding Holman. This court affirmed defendant's conviction and sentence on direct appeal. People v. Perry, No. 1-07-2761 (2009) (unpublished order under Supreme Court Rule 23).

         ¶ 10 In July 2010, defendant filed his pro se postconviction petition, raising several allegations of ineffective assistance of trial counsel. Specifically, the petition alleged (1) the failure to investigate and call several witnesses, including forensic witnesses, witnesses who would have testified that Hayden had been romantically involved with defendant's brother, which ended when defendant exposed Hayden's infidelity, and that Hayden was romantically involved with Holman at the time of Calhoun's murder, and a witness who witnessed Holman admitted to committing the murder, (2) trial counsel refused to allow defendant to testify at trial and coerced him to waive his right to testify, (3) trial counsel presented a defense theory he knew to be false, and (4) cumulative error based on these allegations. Defendant attached four affidavits, one from himself and three from potential witnesses, but none were notarized. The trial court summarily dismissed defendant's petition in September 2010. Defendant appealed, and this court affirmed the dismissal. People v. Perry, 2012 IL App (1st) 103225-U.

         ¶ 11 In April 2013, defendant filed his pro se successive postconviction petition asserting a claim of actual innocence. In support of his petition, defendant attached an affidavit purportedly from Hayden. In the affidavit, Hayden averred that she did not see who shot Calhoun. She identified defendant "after pressure" from the police and the assistant State's Attorney (ASA). She was given defendant's name from detectives. Hayden stated that prior to defendant's trial, she was advised by the ASA with the details of her testimony, including that she was not forced to identify defendant. She further averred that she was now willing to testify that she did not see defendant shoot Calhoun and she did not see who killed Calhoun. She "falsely testified and identified [defendant] at his trial, because [she] had already lied in [her] statement ...

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