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People v. Carter

Court of Appeals of Illinois, First District, Fourth Division

December 28, 2017

HOWARD CARTER, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 95 CR 31813 Honorable Mary Margaret Brosnahan, Judge Presiding.

          GORDON JUSTICE delivered the judgment of the court, with opinion. Justices McBride and Ellis concurred in the judgment and opinion.



         ¶ 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 People v. Carter, No. 1-99-2230 (2002) (unpublished order pursuant to Supreme Court Rule 23).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.

         ¶ 5 BACKGROUND

         ¶ 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 the gang.

         ¶ 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 Randolph.[1]

         ¶ 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 Scott

         ¶ 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 died.

         ¶ 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 defendant.

         ¶ 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 the suspect.

         ¶ 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 Avenue.

         ¶ 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[2] 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 brother.

         ¶ 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.[3] 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 ...

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