People v. Cunningham

── People v. Cunningham ── Court: Appellate Court of Illinois Date: April 14, 2026 Category: General 2026 IL App (1st) 241398-U SECOND DIVISION April 14, 2026 No. 1-24-1398 NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County. ) v. ) No. 12 CR 16484 ) MARSHAWN CUNNINGHAM, ) Honorable ) Diana L. Kenworthy, Petitioner-Appellant. ) Judge Presiding. ______________________________________________________________________________ JUSTICE ELLIS delivered the judgment of the court. Justices McBride and D.B. Walker concurred in the judgment. ORDER ¶1 Held: Third-stage dismissal of postconviction petition affirmed. Circuit court’s finding that recantation testimony lacked credibility was not manifest error. Post- conviction counsel’s failure to retain eyewitness identification expert was not unreasonable assistance. ¶2 Petitioner Marshawn Cunningham appeals from the third-stage dismissal of his post- conviction petition. His principal argument is that the circuit court committed manifest error in finding that the victim’s recantation of his identification testimony—the sole factual basis for petitioner’s claim of actual innocence—was not credible. Alternatively, petitioner argues that post-conviction counsel did not provide reasonable assistance at the hearing, because counsel failed to retain an expert on the (un)reliability of eyewitness identifications. We affirm. No. 1-24-1398 ¶3 BACKGROUND ¶4 I. The shooting and trial evidence ¶5 Petitioner was convicted of aggravated battery with a firearm in connection with the shooting of Eddie Williams. At petitioner’s bench trial, the State’s case was based principally on the identification testimony of Williams and a second eyewitness, Anthony Ross. ¶6 The shooting took place shortly before 9:00 p.m. on August 1, 2012. Williams, Ross, and two other friends (Jimmy Simmons and Kewan Smith) were out walking near 66th and Sealy. It was starting to get dark, but not too dark to see clearly. Apart from one minor discrepancy, which the trial court found immaterial, Williams and Ross testified to the same account of the shooting that ensued. ¶7 In sum, they encountered three people on bicycles (either in the alley, according to Williams, or in the street, according to Ross). Williams and Ross were familiar with them from the neighborhood. One of them was Deshawn McKenny. And another was petitioner, whom Williams and Ross knew by his street name, “Money.” Williams first met petitioner a couple months earlier, and they had no “problem” with each other—until now. ¶8 Williams had an Icee and some cookies. Petitioner twice asked Williams for some of his Icee, and Williams twice said no. An angry petitioner responded, “you a bitch.” Petitioner’s friends urged him to “chill out” as he bickered with Williams. Instead, petitioner escalated: he got