People v. McCoy

2023 IL App (1st) 220148

FOURTH DIVISION
Order filed: February 2, 2023
No. 1-22-0148

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 86 CR 10404
)
MICHAEL McCOY, ) Honorable
) Michael Clancy,
Defendant-Appellant. ) Judge, presiding.

JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Justices Rochford and Martin concurred in the judgment and opinion.

OPINION

¶ 1 Appellant Michael McCoy (“the defendant”) appeals the circuit court’s second-stage dismissal

of his successive petition for postconviction relief filed under the Post-Conviction Hearing Act

(Act) (725 ILCS 5/122-1 et seq. (West 2018)). In the petition, the defendant raised four grounds

for relief, including a claim of actual innocence based on newly discovered evidence in the form
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of a codefendant’s affidavit averring that the defendant was not involved in the crime that led to

his convictions. Because the circuit erred in conducting its analysis of that issue, we reverse the

court’s order and remand for the defendant’s petition to be advanced to third-stage proceedings.

¶ 2 The events that led to the defendant’s convictions occurred over the course of the late evening

of April 9 and early morning of April 10, 1986. Around 11:00 p.m. on April 9, several men entered

a neighborhood liquor and grocery store in south Chicago, purchased some liquor, began drinking

in the back of the store, and harassed some customers. The store employees recognized one of the

men as Wayne Millighan, who had briefly worked at the store a week earlier.

¶ 3 A couple of hours later, around 1:00 a.m. on April 10, a witness observed Millighan arguing in

the street with another man approximately a hundred feet from the liquor store. Millighan shot the

man with whom he was arguing and then walked to the liquor store with two other men. Millighan

and the two accomplices then entered the store and proceeded to conduct an armed robbery. During

the course of the robbery, Millighan and another man entered the secured section of the store, with

Millighan going to the cash register and the other man going to a back office. The assailant who

entered the back office shot one of the store’s four employees in the head, killing him.

¶ 4 Immediately after the robbery, the three surviving employees, speaking through their best

English-speaker, collectively gave police a description of the shooter as a black male, 5’9” tall,

and approximately 28 years old. They also reported that the suspect was wearing a black jacket,

blue jeans, and gym shoes and had an earring in his left ear. The following day, the defendant, who

matched the physical description provided by the witnesses, was arrested while sitting in his car in

front of his apartment building, which was across the street from the victimized store. The

defendant was wearing a gold earring in his left ear. Subsequently, two of the store employees

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identified the defendant as the shooter in a photo array, and all three employees identified the

defendant in a lineup as having been the shooter.

¶ 5 Following a jury trial in 1989, the defendant was convicted of armed robbery and firstdegree

murder, and he was sentenced to life in prison. There was no physical evidence presented at trial

linking the defendant to the crime. The primary evidence consisted of the store employees’

identifications, as well as testimony from a police officer that a swab of a substance found on the

defendant’s shoe tested presumptively positive for the presence of blood. However, there was not

enough of a sample to conduct any further lab testing on that substance. Testimony also showed

that the assailant who kicked in the door to the secured area of the store left a shoe print on the

door that did not match the tread of defendant’s shoes. This court ultimately affirmed the

defendant’s convictions and sentence. See People v. McCoy, 238 Ill. App. 3d 240 (1992).

¶ 6 In the three decades since, the defendant has pursued numerous state and federal postconviction

remedies, including three petitions for postconviction relief, one in 1997 and two in 2000. All three

petitions were dismissed, and we affirmed all three dismissals on appeal. See

People v. McCoy, 355 Ill. App. 3d 1185 (2005) (table) (unpublished order under Supreme Court

Rule 23); People v. McCoy, 326 Ill. App. 3d 1156 (2001) (table) (unpublished order under Supreme

Court Rule 23); People v. McCoy, 294 Ill. App. 3d 1100 (1998) (table) (unpublished order under

Supreme Court Rule 23). In 2015, he was granted leave to file the instant successive petition for

postconviction relief, which he eventually filed in 2019, raising four claims for relief: (1) actual

innocence, supported by an affidavit from Millighan averring that another man, Howard Reed, was

the shooter in the robbery and that the defendant was not involved in the crime; (2) a Brady 1

1
Brady v. Maryland, 373 U.S. 83 (1963).

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violation related to the State’s alleged failure to disclose exculpatory serology evidence; (3)

ineffective assistance of trial and appellate counsel for their failures to uncover the evidence at

issue in claims one and two; and (4) cumulative error. On the State’s motion to dismiss, the circuit

court conducted a second-stage review of the petition and found that the defendant had not shown

that any of his four claims should be advanced to the third stage. Accordingly, the court dismissed

the petition. This appeal follows.

¶ 7 In this appeal, the defendant contests only the court’s ruling on his actual-innocence claim, and

he expressly abandons the remaining three. Because the court dismissed the defendant’s petition

at the second of the Act’s three stages, our review is focused on “whether the allegations in the

petition, liberally construed in favor of the petitioner and taken as true, are sufficient to invoke

relief under the Act.” People v. Sanders, 2016 IL 118123, ¶ 31. For a claim asserting actual

innocence, the defendant must make a “substantial showing” (Id. ¶ 37) that the evidence supporting

his claim is “newly discovered, material and not merely cumulative, and of such conclusive

character that it would probably change the result on retrial” (Id. ¶ 46 (citing People v. Ortiz, 235

Ill. 2d 319, 333 (2009))). We review the second-stage dismissal of a petition de novo. Id. ¶ 31.

¶ 8 The defendant’s actual-innocence claim is premised on an affidavit from his codefendant

Wayne Millighan. In the affidavit, Millighan avers that, although the defendant was drinking in

the liquor store with Millighan earlier in the evening on April 9, the defendant was not involved in

the robbery at the liquor store in early morning of April 10 and that the shooter was actually a man

named Howard Reed. Millighan states that his recent conversion to Christianity compelled him to

come forward with the truth.

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¶ 9 The defendant asserts that this evidence is newly discovered because Millighan would not have

been willing to incriminate himself previously and is non-cumulative because there was no other

evidence presented at trial that established these facts. The defendant also alleges that the evidence

is material and conclusive because it tends to show his innocence and because the State’s evidence

implicating him in the offense was not particularly strong. Further, the defendant argues that the

liquor store employees’ identifications were unreliable and tainted by their familiarity with the

defendant’s face from the time he spent in the store earlier in the evening, an argument that he

claims would be supported at a potential new trial by expert testimony concerning witness

identifications. Ultimately, the defendant claims that Millighan’s testimony would be of sufficient

character to undermine the witness identifications, which were the primary evidence of guilt.

However, the circuit court found that the allegations in Millighan’s affidavit are “positively

rebutted by the sworn testimony of Wayne Millighan at his own trial,” in which Millighan claimed

to have not been involved in the robbery. As we explain below, and as the State concedes, the court

erred in reaching this conclusion because a postconviction court cannot look to the record of

another proceeding to discredit evidence supporting a claim of actual innocence and because the

record in the defendant’s case does not positively rebut Millighan’s allegations.

¶ 10 In a second-stage proceeding “[w]ell-pleaded factual allegations of a postconviction petition

and its supporting evidence must be taken as true unless they are positively rebutted by the record

of the original trial proceedings.” Sanders, 2016 IL 118123, ¶ 48. And, indeed, in some cases courts

have refused to credit newly discovered evidence that is directly and conclusively contradicted by

other evidence in the original trial record. For example, in Sanders, a codefendant’s recantation

was positively rebutted by the trial record and was, therefore, not conclusive, when the recanting

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codefendant claimed that the victim had only been shot once, but the medical examiner had

testified at trial that the victim had in fact been shot twice. Id.

¶ 11 Although it is, therefore, permissible to discredit newly discovered evidence that is positively

rebutted by the trial record, the circuit court in this case found that Millighan’s allegations were

rebutted not by the record in the defendant’s case, but rather by the record in Millighan’s case.

This was not the proper analysis. “The Act itself contemplates that the trial court will look only to

the record of the subject petitioner's case.” Id. ¶ 43. Accordingly, the circuit court may not

“consider the record of proceedings not involving the petitioner whose case is before the court.”

Id. ¶ 44. Thus, the circuit court erred in concluding that the defendant had failed to establish

conclusiveness by virtue of Millighan’s allegations being in conflict with the record from his trial.

In a second-stage postconviction proceeding, such a conclusion may only be drawn from a review

of the petitioner’s case alone.

¶ 12 Further, when we look only at the defendant’s case, Millighan’s allegations are not

conclusively and positively rebutted by anything in the defendant’s trial record. The allegations

naturally conflict with the identifications made by the liquor store employees, but some degree of

conflict is to be expected in this situation. See People v. Robinson, 2020 IL 123849, ¶ 57

(“[Requiring a lack of conflict] would be fundamentally illogical. If the new evidence of innocence

does not contradict the evidence of petitioner's guilt at trial, the filing of the successive petition

would be pointless, and the purpose of the Act would be rendered meaningless, which is a result

that must be studiously avoided.”). Moreover, the witnesses’ identifications are not of the same

conclusive character as a medical examiner’s testimony regarding the number of times that a victim

had been shot, as was the case in Sanders. The mere fact that the witnesses identified the defendant

as the shooter does not positively rebut Millighan’s allegations at this stage of proceedings.

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¶ 13 Having determined that the circuit court in this case conducted a flawed analysis of the

defendant’s claim, we must now apply the correct analysis. See id. ¶ 61. First, Millighan’s affidavit

is indeed newly discovered, as the defendant could not have been expected to obtain such

selfincriminating evidence from Millighan earlier. See People v. Molstad, 101 Ill. 2d 128, 134–35

(1984) (finding that self-incriminating post-trial affidavits from codefendants qualified as newly

discovered). Second, Millighan’s assertions are material because, if they are true and believed by

a jury, as we must assume they would be at this stage in proceedings, they would undermine the

State’s evidence of guilt and would tend to show the defendant’s innocence. See Coleman, 2013

IL 113307, ¶ 96 (“Material means the evidence is relevant and probative of the petitioner's

innocence.”). Third, the allegations are non-cumulative, as the trial record does not otherwise

contain this account of the evening in question. See id. (“Noncumulative means the evidence adds

to what the jury heard.”).

¶ 14 Lastly, Millighan’s proffered testimony, if true, is of such conclusive character that it would

probably produce a different result on retrial. For this element, “the question is whether the

evidence supporting the postconviction petition places the trial evidence in a different light and

undermines the court's confidence in the judgment of guilt.” Robinson, 2020 IL 123849, ¶ 48.

Millighan’s allegations in this case satisfy that requirement. If a jury were to believe Millighan’s

testimony that he was involved in the robbery and if it were to believe his claim that the defendant

was not involved in any way, then it is hard to believe that the jury would still convict the defendant

based solely on the contrary identifications of the store employees. Cf. People v. Wilson, 2022 IL

App (1st) 192048, ¶ 75 (“If taking [that] affidavit testimony as true means anything at all, it must

mean that a juror, hearing from [the new witness] at a hypothetical retrial, would believe his

testimony.” (alterations and emphases in original) (quoting People v. Brooks, 2021 IL App (4th)

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200573, ¶ 44)). Given the limited evidence of guilt presented at trial, which consisted only of the

employees’ identifications and the presumptive blood test, an exoneration from Millighan would

probably change the result if a jury were to hear and believe his testimony. At the very least,

Millighan’s allegations place the trial evidence in a different light and undermine confidence in

the verdict. Accordingly, the defendant has made a substantial showing of actual innocence

sufficient to advance his petition to a third-stage evidentiary hearing.

¶ 15 While the State concedes that result, it asserts that two other pieces of evidence that the

defendant discusses in his petition, specifically expert testimony regarding witness identifications

and a 2013 serology test that allegedly showed that the substance on the defendant’s shoe was not

blood, do not qualify as newly discovered evidence of actual innocence. However, the

actualinnocence claim in the defendant’s petition relies only on Millighan’s affidavit and not these

other pieces of potential evidence, so we will not address this issue. To the extent that the State’s

argument on this issue might be asking for a ruling that this additional evidence should not be

admissible at the third-stage evidentiary hearing on the defendant’s actual-innocence claim, we

will not provide an advisory opinion regarding the admissibility of evidence at a future hearing

when that question has not yet been litigated below. See People v. Stitts, 2020 IL App (1st) 171723,

¶ 33 (declining to opine on a future evidentiary question that the circuit court had not yet had an

opportunity to address); People v. Latimer, 403 Ill. App. 3d 595, 599–600 (2010) (declining to

opine on a future evidentiary question that was outside of the scope of the order on review).

¶ 16 For the foregoing reasons, we reverse the order dismissing the defendant’s successive petition

for postconviction relief and remand for the circuit court to conduct third-stage proceedings on the

petition.

¶ 17 Reversed and remanded with instructions.

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People v. Michael McCoy, 2023 IL App (1st) 220148

Decision Under Review: Appeal from the Circuit Court of Cook County,
86 CR 10404, Honorable Michael Clancy.
Judge, presiding.

Attorneys for Appellant: Debra Loevy, Lauren Myerscough-Mueller
EXONERATION PROJECT
311 N. Aberdeen Street, 3rd Floor
Chicago, IL 60607
(312) 789-4955

Attorneys for Appellee: Kimberly M. Foxx, State’s Attorney of Cook County
Enrique Abraham, Paul E. Wojcicki, Amy McGowan – Asst.
State’s Attorneys, Of Counsel
309 Richard J. Daley Center
Chicago, IL 60602
(312) 603-5496

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