Court of Appeals of Illinois, First District, Fourth Division
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
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
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 ...