Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 95 CR 31813
Honorable Mary Margaret Brosnahan, Judge Presiding.
JUSTICE delivered the judgment of the court, with opinion.
Justices McBride and Ellis concurred in the judgment and
1 Defendant Howard Carter appeals the third-stage dismissal
of his postconviction petition.
2 Following a bench trial, defendant was convicted of two
counts of first-degree murder, one count of attempted murder,
and one count of aggravated discharge of a firearm. After
hearing factors in aggravation and mitigation, the trial
court sentenced defendant to a term of natural life
imprisonment in the Illinois Department of Corrections (IDOC)
for the two murder convictions and to a consecutive sentence
of 15 years' imprisonment for attempted murder. On March
11, 2002, we affirmed defendant's convictions but
modified his 15-year sentence to run concurrently with his
life sentence, rather than consecutively. People v.
Carter, No. 1-99-2230 (2002) (unpublished order pursuant
to Supreme Court Rule 23).
3 Defendant then filed a pro se petition for
postconviction relief, alleging multiple claims of
ineffective assistance of trial counsel. Defendant's
postconviction petition proceeded to a second-stage review
where court-appointed counsel filed (1) an amended petition,
claiming that he is actually innocent and that his trial
counsel was ineffective by preventing him from testifying at
trial and (2) affidavits from two eyewitnesses who swore that
defendant was not present at the time of the shooting and
that someone else had shot the victims. The trial court
dismissed the petition, finding that it was untimely, that it
was not meritorious, and that defendant forfeited the issue
regarding his right to testify. On appeal, we reversed the
trial court's second-stage dismissal and remanded for a
third-stage evidentiary hearing on defendant's claim of
actual innocence. People v. Carter, 2013 IL App
(1st) 110046-U. On remand, the trial court heard new
testimony and determined that the newly-discovered evidence
would not change the result on retrial.
4 On this appeal, defendant claims that the trial court erred
and that he is entitled to a new trial because the
newly-discovered testimony of Antonio McDowell and Vaughn
Peters implicates another man in the shooting, and thus would
likely change the result on retrial. For the following
reasons, we affirm.
6 At trial, the State argued in its opening that, on October
22, 1995, defendant raised a gun and fired multiple shots
into a vehicle, killing two of the three occupants. The
deceased were Devol Scott and Patrick Davis. The third
occupant was Allan Williams. During its opening statement,
the defense claimed that defendant did not shoot the victims
and that he was incapable of firing a gun due to a hand
injury. At trial, the State presented 10 witnesses, including
the surviving victim, who identified defendant as the
shooter. The trial court asked defendant whether he knew he
had a right to testify and whether he was choosing to
exercise his right not to testify, and defendant answered
affirmatively. In his postconviction petition, defendant
claimed that his trial counsel prevented him from testifying
and that he is actually innocent. He supported his claims
with the affidavits of two eyewitnesses who also were not
called to testify at trial.
7 I. Kenneth Beecham's Testimony at Trial
8 At trial, the State called Kenneth Beecham, who testified
that he is a former member of the Undertaker Vice Lords
street gang. In October 1995, he had been a member of the
gang for four years and had achieved the rank of
"Prince, " which is the second-in-command to the
"Chief." The gang was divided into two factions,
separated by age, with the "Fifth Generation"
consisting of members in their mid-20s to 30 years old and
the "Sixth Generation" composed of members under
the age of 21. Beecham was a member of the Sixth Generation.
Devol Scott, Beecham's cousin and best friend, was the
chief of the Sixth Generation.
9 Beecham testified that the Fifth and Sixth Generations were
"at war" with each other. Defendant, known as
"Duck, " was the chief of the Fifth Generation, but
defendant did not bear any ill-will against Beecham. Despite
the feud between the two generations, defendant and Scott
remained friends and met with each other daily. Defendant
frequently spent time near the intersection of Ferdinand
Street and Lockwood Avenue in Chicago.
10 Beecham testified that, in May 1995, defendant was shot
multiple times, including in his right hand, and that
defendant blamed members of the Sixth Generation for the
shooting. After defendant was released from the hospital, he
had to exercise his hand until he regained strength, though
he was able to shake hands normally. Neither Beecham nor
Scott ordered the shooting of defendant. On October 17, 1995,
defendant told Beecham that a man known as
"Mike-Mike" was the person that had shot him.
Mike-Mike, a member of the Sixth Generation, was a friend of
both Beecham and Scott.
11 Beecham testified that, on October 21, 1995, he was
accompanied by Allen Williams and Scott at the home of
Patrick Davis. At the time, Allen Williams was a prince of
the Fifth Generation, and Patrick Davis was a member of
another gang, the "Gangster Disciples." While they
were visiting, the three men spoke with defendant, who asked
them if they were going to take his side in the dispute with
the members of the Sixth Generation. Scott replied that he
had nothing to do with defendant's feud, and defendant
responded that he was going to kill the Sixth Generation.
Defendant asked the three men to help him seek revenge on
Mike-Mike, but they refused and then left.
12 On October 22, 1995, Beecham spent the day with Williams
and Scott. Around 7 p.m., they drove to the west side of
Chicago and dropped off Beecham at his girlfriend's
residence. He later learned that Scott had been shot to
death. On October 24, 1995, Beecham and Williams went to the
police station to talk with the police. The next day, Beecham
became employed and told his fellow gang members that he quit
13 II. Allen Williams' Testimony
14 Allen Williams, the attempted murder victim, testified
that he had been a member of the Undertaker Vice Lords for 13
years. The gang was divided into generational factions
separated by age. Williams belonged to the Fifth Generation,
which consisted of members between the ages of 20 and 25.
Williams had obtained the rank of prince in the Fifth
Generation, just below the rank of "King."
Defendant, known as "Chief Duck, " was the leader
of the Fifth Generation. Paul Carter, also known as
"Weasel, " was defendant's brother and a member
of the Fifth Generation. Williams' half-brother and
friend, Devol Scott, was the king of the Sixth Generation.
Kenneth Beecham was a friend of Williams and the prince of
the Sixth Generation. Patrick Davis, also a friend of
Williams, was a member of another gang, the Gangster
Disciples. Williams did not know Tyrone
15 Williams testified that defendant had a personal feud with
a man known as Mike- Mike, a member of the Sixth Generation,
who had shot defendant in the hand. Defendant wanted revenge
against Mike-Mike and felt that the Sixth Generation gang was
responsible for the shooting. Williams had heard defendant
state on a previous occasion that he was going to kill
members of the Sixth Generation. Though members of the Fifth
and Sixth Generations had been fighting with each other,
other members of the Sixth Generation were not involved in
the dispute with defendant.
16 Williams testified that, on October 21, 1995, he, Scott,
and Beecham visited Davis's home. The three approached
defendant, who was also visiting, and defendant asked them if
they were going to help him seek revenge against the Sixth
Generation members that were involved in his shooting. Scott
replied that he, Williams, and Beecham were not involved in
defendant's feud. In response, defendant shook his head
and said, "Alright, that's cool."
17 Williams testified that, at 8 p.m. the next day, he and
Scott were in their neighborhood near Cicero Avenue and
Quincy Street in Chicago, when they learned that
defendant's brother had been shot and killed. Scott drove
them in Williams's mother's vehicle to pick up Davis
at his home. Davis entered the vehicle and sat in the
backseat. The three men wanted to offer their condolences to
defendant in light of his brother's death, so Scott drove
them to the intersection of Ferdinand Street and Lockwood
Avenue, where they encountered a man called "Romy,
" a member of the Fifth Generation gang. Williams asked
Romy where they could find defendant, and Romy pointed them
to an area in the middle of the block. As Scott drove drown
Ferdinand Street, Williams observed defendant standing near
the street with five or six fellow gang members.
18 Williams testified that Scott drove within 15 feet of
defendant, who then raised a 9mm pistol and opened fire on
the vehicle. Williams ducked in the passenger's seat and
heard several gunshots as Scott drove away from defendant.
After a short distance, the vehicle crashed into the back of
a van and came to a stop. When Williams attempted to pull
Scott to the floor of the vehicle and into his lap, he
observed bullet holes in Scott's head and neck. As
Williams attempted to exit the vehicle, he heard several more
shots being fired into the passenger-side door and window, so
he shielded himself underneath the dashboard. Once the
gunfire stopped, three men pulled Williams from the vehicle
and told him that the gunman was gone. The shooting took
place over a span of four to six minutes, and more than 10
gunshots were fired. The police arrived at the scene two
minutes after the shooting stopped. Williams refused to talk
to the police at first because he felt betrayed and angry and
wanted to personally seek revenge on defendant.
19 Williams testified that two days after the shooting, he
decided that the right thing to do was to talk to the police,
so he and Beecham drove to the police station together.
Williams told detectives that Scott was driving him and Davis
on Laramie Avenue, when they observed defendant and several
others standing near Ferdinand Street. Williams told Scott to
drive the vehicle over to where the men were gathered. As the
vehicle approached, defendant jumped back about two feet from
the vehicle, raised a 9mm gun, and fired several shots at the
vehicle from a distance of 15 feet.
20 III. Identification Testimony of Tyrone White and Patricia
21 Tyrone White testified that Patrick Davis was his cousin,
and that he had last observed him alive on October 20, 1995.
A few days later, White learned that his cousin was dead.
Patricia Scott testified that Devol Scott was her son, and
that she had last observed him alive on October 22, 1995.
Later that evening, the police told her that her son had
22 IV. Detective Richard Maher's Testimony
23 Detective Richard Maher testified that he is a detective
with the Chicago police department and has been a policeman
for 12 years. On October 22, 1995, he was assigned to
investigate a homicide near the intersection of Quincy Street
and Cicero Avenue in Chicago. The victim in that case was
defendant's brother, Paul Carter. Later that evening,
Maher was assigned to investigate another homicide on the
5200 block of West Ferdinand Street. When Maher arrived at
the crime scene at 9:10 p.m., he observed two ambulances,
each containing one victim from the shooting. Maher
identified one of the victims as Devol Scott. The other
victim was identified the next day as Patrick Davis. Maher
learned that a witness, Allen Williams, had been transported
from the scene to the Area 5 Detective Division.
24 Maher testified that he inspected the crime scene and
found 11 spent shell casings and a bullet fragment from a 9mm
gun. Further down the street where a vehicle had crashed, he
found seven additional 9mm shell casings. He observed a
bullet hole in the windshield of the vehicle, and all of the
side windows except the front passenger-side had been
shattered. Maher inspected the inside of the vehicle and
found five fired bullets lodged into its interior.
25 Maher testified that he interviewed Williams at the Area 5
Detective Division later that evening, and Williams told him
that he did not observe who shot at the vehicle. On the
morning of October 25, 1995, Williams returned to the police
station, and Maher interviewed him a second time. Williams
changed his story and told Maher that he did in fact observe
the shooter, and identified him as a man known by the
nickname "Duck." Maher presented Williams with a
photograph of defendant, and Williams identified defendant as
the shooter. After he interviewed Williams, Maher drove to
the Forest Park neighborhood in Chicago and arrested
26 Maher testified that Detective Carothers told him that a
man in custody, Tyrone Randolph, was an eyewitness to the
shooting. Maher interviewed Randolph later that evening, and
Randolph told him that he observed two men shooting at the
vehicle and that one of the shooters was defendant.
27 V. Officer Jackie Campbell's Testimony
28 Officer Jackie Campbell testified that she was an officer
in the Chicago police department. On the afternoon of October
24, 1995, the police arrested Tyrone Randolph for a drug
offense and brought him to the 15th District police station.
As Randolph was sitting in an interview room, he called out
to Campbell and told her that he had information about two
murders. Randolph described the location of the shootings,
and Campbell recognized the murders as the two that occurred
on October 22, 1995. She told Randolph that she could not do
anything for him, but that she would contact a detective to
speak with him. She spoke with Detective Carothers and told
him that there was a suspect in custody at the police station
that claimed to have information about two murders.
29 VI. Detective Carothers's Testimony
30 Detective Carothers testified that he has been a detective
with the Chicago police department for three years and was
assigned to investigate the murder of defendant's
brother. On October 24, 1995, Carothers received a telephone
call from Campbell, and she told him that a man named Tyrone
Randolph was in custody on a drug charge and that he claimed
to have information about the shooting. Carothers told her
that he would drive over to the police station to interview
31 Carothers testified that he arrived at the 15th District
police station to speak with Randolph later that evening.
Randolph told him that he had information regarding the
murder of defendant's brother and that he was an
eyewitness to the shooting deaths of Scott and Davis.
Randolph asked Carothers if he could arrange a deal on his
pending charges, but Carothers told him that he needed to
hear the information first. Randolph then told Carothers that
he had witnessed gunmen fatally shoot defendant's
brother, who Randolph knew as Weasel, in the west alley of
Cicero Avenue near its intersection with Quincy Street. He
also told Carothers that, later that night, he observed
defendant, known as Duck, fire several shots at a vehicle
near the intersection of Ferdinand Street and Lockwood
32 Carothers testified that, after this initial conversation,
he took Randolph back to an interview room so he could
provide a more thorough accounting of the events. Also
present during the interview were Assistant State's
Attorney (ASA) James Sanford and Detective John McMurray, who
was assigned to investigate the murder of defendant's
brother. As Randolph described the shootings in more detail,
Carothers took notes and reported the information in a
general progress report. He referred to Randolph as a
confidential informant because Randolph was concerned that,
as a high-ranking member of the "Mafia Insane"
street gang, he could face retaliation for providing
information to the police.
33 Carothers testified that Randolph stated that, around 7
p.m. on October 22, 1995, he observed defendant's brother
running down the block of 210 South Cicero Avenue. A person
following him raised a gun and shot at him. Another person
appeared, and both offenders walked up to defendant's
brother and shot him numerous times as he lay on the ground.
34 Carothers testified that Randolph told him that, after
witnessing the murder, he went looking for defendant to find
out if he had heard about his brother's death. Randolph
found defendant at the intersection of Ferdinand Street and
Lockwood Avenue. Defendant was with several other black men,
but the only person he recognized other than defendant was a
man named "Von." After he spoke with defendant, a
vehicle pulled up to defendant, and Randolph heard him say,
"I'm going to get those n***s, " and
"it's going to get ugly now." Defendant then
raised a gun and fired numerous shots at the vehicle.
Randolph did not describe the type of gun and said that he
left the scene during the shooting.
35 Carothers testified that Randolph promised that he would
seek out additional information about the other shooting once
he learned the names of the other men who were present at the
scene. However, Randolph requested to be released first
because he could not learn any new information while in
custody. Carothers did not grant Randolph's request, and
Randolph then told him that he refused to provide any further
information about either of the shootings. Randolph again
asked for a deal on his pending charges, and Carothers told
him that he could not discuss it.
36 VII. ASA Mike Goldberg's Testimony
37 ASA Mike Goldberg testified that he and Carothers
met with Randolph on October 25, 1995. Goldberg gave Randolph
Miranda warnings, and Randolph repeated the
information he had about the two murders. Goldberg
memorialized the information in a written statement and read
the statement back to Randolph to make sure it was accurate,
and all three men signed it. Randolph told Goldberg that the
police treated him fine and that they did not threaten him to
obtain the statement.
38 VIII. ASA James Sanford's Testimony
39 ASA James Sanford testified that he was assigned to Judge
Dennis J. Porter's courtroom in 1996 and was the first
chair for the homicide trial of defendant's brother. The
offenders in that case were Dante Branch and Alfonso
Caldwell. Sanford was not assigned to defendant's case,
which was in Judge James D. Egan's courtroom with a
different ASA. Sanford learned from Detective Carothers's
general progress notes that a confidential informant had
provided information about the murder of defendant's
40 In the fall of 1996, the attorneys representing Branch and
Caldwell filed a motion for the State to disclose the name of
the confidential informant. Sanford then met with Carothers,
who told him that Randolph was the informant. Sanford then
arranged for an interview with Randolph, who was still in
custody. Carothers and Detective John McMurray, who was
assigned to investigate the Paul Carter homicide, were also
present for the interview.
41 Randolph repeated the same information regarding the
murders that he had previously told to Carothers. Sanford had
a limited discussion with Randolph about making a deal, and
he offered to drop one of Randolph's three pending drug
cases in exchange for his testimony concerning the shooting
death of defendant's brother. No offer was made to
Randolph to testify in defendant's case. The interview
ended abruptly when Sanford told Randolph that he could not
drop the drug charge until after Randolph testified.
42 Sanford later arranged a second meeting with Randolph in
an attempt to convince him to accept his offer to drop the
drug charge after Randolph testified. However, Randolph would
not even speak to Sanford. The murder case went to trial, and
Randolph did not testify. In April 1997, Randolph pled guilty
to all three of his pending drug charges and was sentenced to
12 years in IDOC.
43 IX. Tyrone Randolph's Testimony
44 At trial, Tyrone Randolph testified that he did not know
defendant. Randolph was a member of the Mafia Insane Vice
Lords, which is a faction of the Vice Lords street gang. The
Mafia Insane Vice Lords are not affiliated with the
Undertaker Vice Lords, and the two gangs were feuding with
each other. Despite testifying that he did not know
defendant, Randolph testified that he knew defendant was a
member of the Fifth Generation of the Undertaker Vice Lords
gang. Randolph had also observed defendant in jail, and he
identified defendant in court.
45 The State then attempted to refresh Randolph's
recollection with his grand jury testimony. Randolph
testified before a grand jury that, at 9 p.m. on October 22,
1995, he was walking down Ferdinand Street in Chicago when he
observed defendant exiting a vehicle with another man.
Randolph approached defendant and informed him that his
brother, Weasel, had been murdered. Defendant responded that
he had heard the news and that he was "fitting to
address the business." Randolph then left defendant and
continued walking down Ferdinand Street. At that time, he
observed a vehicle drive up to defendant. Both defendant and
the other man pulled out black 9mm guns and began shooting at
the oncoming vehicle. Randolph observed the shooting for 20
seconds until he left the scene. Randolph testified before
the grand jury that he was treated well and not threatened by
the State's Attorney or the police.
46 At trial, Randolph testified that he remembered his grand
jury testimony, but claimed that his story was a lie.
Randolph did not remember being near the intersection of
Ferdinand Street and Lockwood Avenue on October 22, 1995, and
did not know anything about the shooting.
47 Randolph testified that ASA Garfinkel, who presented him
to the grand jury, threatened him. The State presented
Randolph with the written statement that he gave to ASA
Goldberg on October 25, 1995. Randolph testified that he did
not recognize his ...