Opinion
5-22-0184
07-11-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. CHRISTOPHER ANTHONY, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of St. Clair County. No. 93-CF-777 Honorable John J. O'Gara, Judge, presiding.
JUSTICE WELCH delivered the judgment of the court. Justices Cates and Boie concurred in the judgment.
ORDER
WELCH JUSTICE
¶ 1 Held: The trial court's dismissal of the defendant's amended successive postconviction petition is affirmed where the defendant failed to make a substantial showing of an actual innocence claim based on newly discovered evidence where the evidence that he presented was not newly discovered and conclusive and of his claim pursuant to Brady v. Maryland, 373 U.S. 83 (1963), where the evidence was not material.
¶ 2 The defendant, Christopher Anthony, appeals the second-stage dismissal of his successive postconviction petition by the circuit court of St. Clair County. On appeal, the defendant contends that the court erred in dismissing his petition without a third-stage evidentiary hearing because he made a substantial showing of an actual innocence claim with newly discovered evidence in the form of affidavits from alibi witnesses and that the State committed a violation of Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose that the alibi witnesses had given exculpatory statements to the investigating officer and by threatening these witnesses into remaining silent and not testifying at his trial. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 On September 10, 1993, the defendant was indicted for first degree murder and armed robbery for his part in the December 3, 1992, murder of Bobby Joe Connors, who was in the lobby of Lum's Chop Suey, a carry-out Chinese restaurant in East St. Louis, and the armed robbery of Connors' fiancee, Sabrina Cosey, who was waiting for Connors in a car outside of the restaurant. ¶ 5 A. Trial
¶ 6 At the January 1994 bench trial, Cosey testified about the killing of Connors. Between approximately 10 p.m. and 10:15 p.m. on December 3, 1992, Connors and Cosey stopped at Lum's Chop Suey to get some takeout Chinese food. She first observed the defendant as he stood with two other men across the street from the restaurant. Connors left Cosey in the vehicle, went inside to order, and then returned to the car to wait for the food to be prepared. As they were waiting in the vehicle, the three men crossed the street and entered the restaurant. She identified the defendant as one of those men.
¶ 7 Shortly thereafter, Connors went back inside the restaurant to pick up their food, and Cosey remained in the vehicle. She could see Connors through a window of the restaurant. She saw the men approach Connors. One of the men then said something to Connors, and he responded. Then, they all moved out of her view, but Cosey heard three gunshots and saw Connors run out of the restaurant without his jacket (he had been wearing a jacket when he went inside). Connors ran to the car and told her to get out of the car and run. He then collapsed on the street.
¶ 8 The defendant followed Connors out of the restaurant and got inside the car with Cosey before she could get away. He pulled a gun on her and told her to shut up, be quiet, and not look at him, or he would kill her. He demanded her jewelry and money; he grabbed a gold chain from around her neck and her earrings from her ears and asked if that was everything she had. After she told him that she did not have anything else, he jogged across the street with the two other men. She observed the defendant face to face for one or two minutes in the front seat of the small vehicle. An ambulance then arrived and took Connors to the hospital. Connors subsequently died from the gunshot wound.
¶ 9 A few days after the incident, Cosey identified the defendant in a photograph lineup at the jail. She also later identified the two other men involved in the shooting in a photograph lineup.
¶ 10 Tsou Fan Wang, a restaurant worker from Lum's Chop Suey who was working the night of the shooting, testified that a black man with a gun told a customer in the lobby to take off his jacket and hold up his hands. The man with the gun then pointed the gun at Wang and told her not to call anyone. Wang retreated to the kitchen, out of view of the men, and called 9-1-1. About 10 seconds later, she heard three gunshots. Wang later identified the man with the gun from a photograph lineup as the defendant, but at trial, she could not identify anyone in the courtroom as being the man who pointed the gun at her. However, Wang reaffirmed the photograph identification at the trial.
¶ 11 Sergeant Calvin Dye of the Illinois State Police testified that Cosey identified Keon Rose, through a photograph lineup, as one of the three men inside the restaurant on the night of the shooting. Sergeant Dye also noted that Wang identified the defendant, in a photograph lineup, as the man who attempted to rob Connors of his jacket and who pointed a gun at her.
¶ 12 Other testimony was presented at trial, which included testimony that Rose was arrested for an unrelated shooting, and a .38-caliber revolver was found near him. That weapon was later determined to be the murder weapon in this case. Also, the defendant testified that he did not know anything about the shooting and that he was at home with his family that night.
¶ 13 Subsequently, the trial court found the defendant guilty of first degree murder and armed robbery. Thereafter, he was sentenced to 40 years in prison on the armed robbery conviction and 80 years' imprisonment on the first degree murder conviction, sentences to run concurrently to one another and consecutively to the 20-year prison sentence he was already serving for armed robbery. The defendant appealed his sentence only, and this court found the sentence appropriate and affirmed. People v. Anthony, No. 5-94-0174 (1995) (unpublished order under Illinois Supreme Court Rule 23).
¶ 14 B. First Postconviction Petition
¶ 15 On November 25, 1995, the defendant filed a pro se postconviction petition, raising unrelated issues to those raised in the successive postconviction petition at issue here. The circuit court subsequently appointed counsel to represent him on the postconviction petition. However, the court ultimately granted the State's motion to dismiss, finding that the postconviction claims were forfeited, subject to res judicata, or otherwise based on conclusory allegations. This court affirmed the dismissal at the second stage, finding that the defendant's allegations were insufficient to warrant a third stage evidentiary hearing. People v. Anthony, No. 5-97-0918 (2000) (unpublished order under Illinois Supreme Court Rule 23).
¶ 16 C. First Successive Postconviction Petition
¶ 17 On April 19, 2001, the defendant filed a pro se petition for a writ of habeas corpus, arguing, among other things, that his trial counsel was ineffective for failing to interview and subpoena Trinetta Franks, who would have provided him with an alibi witness during the hour of the shooting. However, the defendant did not attach an affidavit from Franks to his petition. The circuit court treated the defendant's pro se pleading as a postconviction petition and dismissed it at the first stage of the postconviction proceedings. The defendant appealed the dismissal. This court subsequently granted appellate counsel's motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), finding that the defendant's successive petition was frivolous and patently without merit. People v. Anthony, No. 5-01-0719 (2003) (unpublished order under Illinois Supreme Court Rule 23).
Franks was not one of the alibi witnesses who provided an affidavit in the successive postconviction proceedings at issue here.
¶ 18 D. Second Successive Postconviction Petition
¶ 19 On August 26, 2010, the defendant filed a pro se postconviction petition based on newly discovered evidence, which is the pleading at issue in this appeal. In the pro se petition, the defendant acknowledged that this issue had not been raised in his previous filings, but he argued that the issue could not have been raised previously because the newly discovered evidence was not available at that time. The defendant indicated that two members of his family, his mother, Mary Anthony, and his cousin, Michael Foster, recently came forward to disclose evidence that was never disclosed to him or to his trial counsel, even though it was given to the investigating detective. He argued that the State deliberately withheld this exculpatory evidence to keep these witnesses from coming forward as alibi witnesses. Attached to the pro se petition were the affidavits from the defendant's mother, the defendant, and the defendant's cousin.
¶ 20 Mary Anthony's affidavit dated June 10, 2010, indicated that, on December 3, 1992, she attended a family gathering at the defendant's home with several other family members, and she was there from 10 p.m. until 11 p.m. The defendant did not leave at any point during the gathering. In September 1993, she voluntarily gave a statement to the police investigating the shooting about where the defendant was that night. However, beginning in November 1993 and leading up until the defendant's conviction, law enforcement officers physically threatened her to keep her from revealing that she was an alibi witness. The officers accosted her and confronted her at her home and in public. She never disclosed the threats to the defendant, the defendant's attorney, or the trial court. She would have come forward earlier about the defendant's location on the night of the shooting and about the physical threats if she had not been harassed, terrorized, and in fear for her life.
¶ 21 The defendant's affidavit dated June 30, 2010, indicated that he received letters from his mother and cousin in January 2010 revealing that, before his trial, they voluntarily gave statements to a law enforcement officer about where he was on the night of the shooting. This was the first time that he had heard about them giving statements. However, these letters were subsequently destroyed during a search of his prison cell.
¶ 22 Michael Foster's statement dated August 27, 2009, which was not notarized but contained a declaration pursuant to section 1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2008)), indicated that he attended the family gathering at the defendant's home on December 3 from 10 p.m. until 11:30 p.m. The defendant did not leave the house at any time during the gathering. After learning that the defendant had been charged with Connor's murder and Cosey's armed robbery, he voluntarily gave a statement to Detective Lenzie Stewart about where the defendant was that night; he gave the statement in September 1993. Thereafter, and up until the time of the defendant's conviction, he was physically threatened and harassed by various law enforcement officers, both in public and at his home. They threatened his life and threatened to charge him as an accomplice in the shooting if he ever disclosed the fact that he had given a statement to either the defendant or the defendant's attorney. They also threatened him so he would not appear at the trial proceedings if he was subpoenaed. He never disclosed the fact that he gave the statement or the threats to anyone because he feared for his life and feared being falsely convicted in the shooting.
¶ 23 On September 16, 2010, the trial court entered an order, finding that the defendant made a claim of actual innocence, ordered the defendant's pro se petition docketed for further proceedings, and appointed counsel to represent him. On October 1, 2010, the defendant filed a pro se supplemental postconviction petition raising, inter alia, a freestanding actual innocence claim based on the affidavits of his mother and cousin.
¶ 24 On January 26, 2011, the defendant filed another pro se supplemental petition based on newly discovered evidence. Attached to this petition was an affidavit from the defendant's brother, Clarence Anthony, which was dated November 19, 2010, wherein Clarence also revealed that he was threatened by law enforcement officers when he came forward as an alibi witness for the defendant. He also claimed that he never disclosed the fact that he made a written statement to the defendant or to the defendant's counsel because of the threats.
¶ 25 On February 1, 2011, the defendant filed a motion to withdraw Michael Foster's affidavit because it was not notarized. The circuit court did not rule on this motion, but the parties and the court addressed the contents of this affidavit in later proceedings.
¶ 26 Between May 2011 and February 19, 2019, the case was repeatedly continued, and the defendant submitted multiple requests for information on its status. On February 19, 2019, the defendant's appointed counsel filed a motion for clarification and for extension of time, advising that he had resigned from his employment as special counsel for postconviction petitioners and that new counsel should be appointed for the defendant. On July 18, 2019, the trial court appointed new postconviction counsel.
¶ 27 Thereafter, following a series of continuances, which included the COVID-19 shutdown, the defendant's counsel filed an amended petition on July 17, 2020. In the amended petition, counsel argued that, inter alia, the defendant had an actual innocence claim based on the three affidavits establishing an alibi defense that would have been available but for the conduct of the investigating officer. The amended petition also argued that the State committed a Brady violation by suppressing exculpatory evidence, specifically the statements of the defendant's mother, cousin, and brother. The petition contended that, had these witnesses been disclosed to the defendant's counsel, they would have supported his alibi defense in the face of weak identifying testimony.
¶ 28 On August 21, 2020, the State filed a motion to dismiss, which argued that the defendant's claims were barred by res judicata. Specifically regarding the actual innocence claim, the State argued that the specific evidence was not newly discovered, and it would not change the result on retrial. The State denied the allegation that it had suppressed exculpatory evidence, noting that there was no evidence that it had acted in bad faith. The State noted that the only affidavit that was actually written by the affiant was Michael Foster's affidavit. The other two affidavits were authored by the defendant in his own handwriting, but they were written from the point of view of the affiants and were signed by them. Noting that the affidavits were dated August 27, 2009, November 19, 2010, and June 10, 2010, the State expressed confusion as to why it took the three witnesses nearly two decades to come forward as alibi witnesses since the defendant knew about them at the time of trial. Although the State recognized that the witnesses made claims of threats and harassment against them, the State argued that bare allegations of police intimidation or misconduct without evidence in support were unfairly distortive and without merit. The State contended that the defendant's claim of a Brady violation was barred by res judicata, was refuted by the record, and was simply without merit.
¶ 29 On September 22, 2020, the defendant's counsel filed a response to the State's motion to dismiss and a certificate of compliance pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). In the response, counsel argued that the defendant's actual innocence claim should not be analyzed as a freestanding claim of actual innocence because the exculpatory evidence was withheld and suppressed by police. Thus, the defendant contended that it amounted to a constitutional violation in its own right that took it outside the purview of a freestanding actual innocence claim.
¶ 30 The defendant also contended that his Brady claim was not barred by res judicata because none of the evidence concerning the suppression of the statements from the alibi witnesses was in the trial record or available to the defendant until the affiants came forward in 2009 and 2010. The defendant noted that, while the State may argue that the defendant was aware of his alibi defense, it cannot argue that he was aware of the State's suppression of the three statements before his trial or of the efforts of the state actors to threaten and intimidate the witnesses from testifying. Thus, the defendant contended that these arguments could not have been raised in his direct appeal or in his first postconviction petition. Moreover, the defendant argued that the suppressed alibi evidence of three witnesses would undermine the confidence in the outcome of his trial as his conviction was based on weak and contradictory eyewitness identification.
¶ 31 On October 21, 2020, the trial court held a hearing on the amended successive postconviction petition. During the hearing, the State argued that the evidence was not newly discovered, not material and noncumulative, and not of such character that the result on retrial would likely be different. The State noted that the defendant had presented affidavits from three different individuals claiming to have been harassed and threatened by state actors, which was the reason they did not come forward earlier. However, the State argued that an allegation was not true just because it was made, and there was no evidence presented to corroborate the claims.
¶ 32 In response, the defendant's counsel argued that, if the claim was a freestanding actual innocence claim, there would be a much higher hurdle to overcome. However, counsel argued that, in examining the defendant's contentions, "[we are] dealing with *** allegations that are supported by affidavit of suppression of exculpatory evidence on the behalf of law enforcement." Counsel acknowledged that the defendant knew that he had an alibi defense but argued that he did not have notice of the efforts by law enforcement to suppress the exculpatory statements of his alibi witnesses. Counsel noted that the suppressive activity included not telling the prosecution about the witnesses and threatening the three witnesses against testifying. Thus, counsel argued that there was a Brady violation in that exculpatory information was deliberately suppressed and requested that the court view it as a Brady claim rather than a freestanding actual innocence claim that could have been brought earlier. Counsel then contended that the claim was not available until the affidavits were produced and that, taking them as true, there was a reasonable probability that the outcome of the trial would have been different had the witnesses testified, which was a much lower bar than a freestanding actual innocence claim.
¶ 33 The State then argued that the affidavits from the witnesses were not credible because it took so long for them to come forward, and two of the three affidavits were written in the defendant's own handwriting and from his own point of view. After hearing argument, the trial court took the matter under advisement.
¶ 34 On December 8, 2020, the trial court entered a written order, dismissing the defendant's amended successive postconviction petition. In the order, the court found, inter alia, that the defendant's actual innocence claim was not based on newly discovered evidence, noting that the defendant's counsel conceded this at the hearing. The court also found that the evidence was not credible. The court noted that the defendant presented three affidavits from his family members claiming to have been with him at a family gathering on the night of the shooting. However, the court found that there was no doubt that the defendant knew about his alibi at trial, which suggested that reasonable diligence could have resulted in the presentation of their testimony at his trial. The court noted that, while the affidavits indicated that the witnesses were intimidated and threatened into not coming forward with their testimony, there was no explanation as to why the defendant's counsel did not attempt to subpoena them since the defendant would have known their identities.
¶ 35 The trial court found this case similar to People v. Edwards, 2012 IL 111711, ¶¶ 35-37, in which the supreme court analyzed a similar situation where defendant knew of the alibi at the time of trial, but the witnesses were not voluntarily willing to come forward to testify. However, the court noted that there was no attempt to subpoena them, and no explanation as to why subpoenas were not issued. Id. ¶ 36. The supreme court concluded that the efforts expended were insufficient to satisfy the due diligence requirement, that the alibi evidence could have been discovered earlier through the exercise of due diligence, and the evidence therefore was not newly discovered. Id. ¶ 37. Similarly, in the present case, the court found that the defendant was fully aware of his alibi defense, but he had offered no explanation as to why he did not attempt to subpoena the alibi witnesses to testify. Thus, the court found that the evidence was not newly discovered, and the defendant's freestanding actual innocence claim failed.
¶ 36 As to the defendant's Brady claim, the trial court noted that it was incredible that the alibi witnesses did not complain of law enforcement coercion until after almost two decades after the defendant's trial. The court also noted that only one witness mentioned specific police officers, and no evidence was provided that the State or state actors suppressed this evidence. The court then found that, although the defendant encouraged the court to analyze the claim pursuant to Brady, the appropriate standard to evaluate the claim was as an actual innocence claim. Applying that standard, the court found that the defendant had not presented newly discovered evidence, that was material and noncumulative, and that was of such conclusive character that it would probably change the result on retrial. Thus, the court concluded that the defendant had not presented sufficient facts and allegations that would support his assertion of State suppression of material evidence or witness testimony. The court, therefore, concluded that the defendant failed to make a substantial showing of a violation of his constitutional rights and dismissed his amended successive petition.
¶ 37 On January 11, 2021, the defendant filed a pro se petition for rehearing, asking the trial court to reconsider the dismissal of his postconviction petition. On February 28, 2022, the trial court denied the defendant's pro se motion as untimely and lacking substantive grounds for reconsideration. On March 22, 2022, the defendant filed a notice of appeal. Since the defendant's pro se petition for rehearing was file stamped January 11, 2021, more than 30 days after the dismissal of his amended postconviction petition, his counsel filed a motion for a supervisory order in the Illinois Supreme Court, seeking to perfect jurisdiction for appeal. On October 31, 2022, the supreme court entered a supervisory order, instructing this court to treat the defendant's notice of appeal as a properly perfected appeal from the dismissal of his postconviction petition.
¶ 38 II. ANALYSIS
¶ 39 On appeal, the defendant argues that his successive postconviction petition made a substantial showing of an actual innocence claim with newly discovered evidence in the form of affidavits from his alibi witnesses. The defendant also contends that his petition made a substantial showing that the State violated its obligation to disclose exculpatory evidence and engaged in threatening behavior to prevent his alibi witnesses from testifying.
¶ 40 A. Second-Stage Postconviction Rules
¶ 41 The Post-Conviction Hearing Act (Act) allows an incarcerated defendant to challenge his conviction by asserting that his conviction was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122-1 (West 2018). The Act sets forth a three-stage process for adjudicating defendant's claims. People v. Cage, 2013 IL App (2d) 111264, ¶ 9. At the first stage, the circuit court independently reviews the petition to determine whether it is frivolous or is patently without merit. Id.; 725 ILCS 5/122-2.1 (West 2018).
¶ 42 If the petition is not dismissed for being frivolous or patently without merit, it advances to the second stage of the proceedings, at which an indigent defendant is entitled to appointed counsel, the petition may be amended, and the State may answer or move to dismiss. People v. Thomas, 2013 IL App (2d) 120646, ¶ 5. At this stage, the circuit court must determine whether the petition and any accompanying documentation make a substantial showing of a constitutional violation. People v. Dupree, 2018 IL 122307, ¶ 28. If no such showing is made, the petition is dismissed. Id. If, however, a substantial showing of a constitutional violation is set forth, the petition is advanced to the third stage, where the circuit court conducts an evidentiary hearing. Id.
¶ 43 At the second stage, the inquiry into whether the postconviction petition contains sufficient allegations of constitutional deprivations does not require the circuit court to engage in any fact- finding or credibility determinations. Id. ¶ 29. These determinations will instead be made at the evidentiary stage of the litigation. Id. Also, the court examines the petition to determine its legal sufficiency and any allegations not affirmatively refuted by the record must be taken as true. Id.
¶ 44 In this case, the petition at issue was a successive petition. The Act contemplates the filing of only one postconviction petition. 725 ILCS 5/122-1(f) (West 2018); Edwards, 2012 IL 111711, ¶ 22. Generally, any claims of substantial denial of constitutional rights that are not raised in the first petition are forfeited. 725 ILCS 5/122-3 (West 2018). However, there are two bases upon which the bar against successive petitions has been relaxed for fundamental fairness. People v. Taliani, 2021 IL 125891, ¶ 55. The first is the cause-and-prejudice test, which is codified in the Act. 725 ILCS 5/122-1(f) (West 2018). The second exception is the fundamental miscarriage of justice exception, which requires defendant to demonstrate actual innocence. Taliani, 2021 IL 125891, ¶ 55.
¶ 45 Under the cause and prejudice exception, leave of court may only be granted if "a petitioner demonstrates cause for his or her failure to bring the claim in his or her initial post[ ]conviction proceedings and prejudice results from that failure." 725 ILCS 5/122-1 (f) (West 2018). If the circuit court determines that a showing of cause and prejudice has been made and allows the successive petition to be filed, then the petition advances to the three-stage process under the Act. People v. Bailey, 2017 IL 121450, ¶ 26. At second-stage postconviction proceedings, the State may move to dismiss the successive postconviction petition on any grounds, including defendant's failure to show cause and prejudice for not raising the claims in the initial postconviction petition. Id. ¶ 18. A claim of actual innocence in a successive petition need not meet the cause-and-prejudice test. People v. Ortiz, 235 Ill.2d 319, 330 (2009).
¶ 46 The defendant's successive petition was dismissed at the second stage. The dismissal of a postconviction petition without an evidentiary hearing is reviewed de novo. People v. Sanders, 2016 IL 118123, ¶ 31.
¶ 47 B. Actual Innocence Claim
¶ 48 A freestanding actual innocence claim raised in a successive postconviction petition is an extraordinary remedy. People v. Coleman, 2013 IL 113307, ¶ 94. To succeed on a claim of actual innocence, the evidence of actual innocence must be (1) newly discovered, (2) not discoverable earlier through the exercise of due diligence, (3) material and not merely cumulative, and (4) of such conclusive character that it would probably change the result on retrial. Sanders, 2016 IL 118123, ¶ 24. Newly discovered evidence is evidence that was discovered after the trial and that could not have been discovered earlier through the exercise of due diligence. People v. Robinson, 2020 IL 123849, ¶ 47. Evidence is material if it is relevant and probative of defendant's innocence. Id. Noncumulative evidence adds to the information that the fact finder heard at trial. Id. Moreover, the conclusive character element refers to evidence that, when considered along with the trial evidence, would probably lead to a different result. Id. This last element is the most important element of an actual innocence claim. Id.
¶ 49 The ultimate question is whether the newly discovered evidence places the trial evidence in a different light and undermines the court's confidence in the judgment of guilt. Id. ¶ 48. The new evidence need not be entirely dispositive; and probability, rather than certainty, is the key in considering whether the fact finder would reach a different result after considering the trial evidence along with the new evidence. Id. The United States Supreme Court has emphasized that such claims must be supported with new reliable evidence-whether the evidence be exculpatory scientific evidence, trustworthy eyewitness accounts, or critical physical evidence-that was not presented at trial. Schlup v. Delo, 513 U.S. 298, 324 (1994); Edwards, 2012 IL 111711, ¶ 32.
¶ 50 1. Claim Fails for Lack of Support
¶ 51 Initially, the State contends that the defendant's actual innocence claim fails for lack of support because, although the alibi witness affidavits were attached to his pro se successive postconviction petition, they were not attached to the amended petition filed by his counsel nor were they incorporated by reference into the petition. However, the State has forfeited this argument on appeal because it was not raised in either the State's written motion to dismiss or at the hearing on the motion to dismiss. See People v. Cruz, 2013 IL 113399, ¶ 20. Moreover, we note that the allegations in the defendant's successive postconviction petition were based on these affidavits, postconviction counsel referenced the affidavits in the amended petition, the State specifically addressed the substantive allegations made in the affidavits when making its arguments in support of dismissal, and these arguments were relied on by the trial court when it dismissed the petition. Thus, we reject the State's argument that the actual innocence claim fails for lack of support.
¶ 52 2. Newly Discovered Evidence
¶ 53 The defendant argues that the affidavits of his three alibi witnesses qualify as newly discovered. First, he contends that newly discovered evidence is not limited to unknown evidence as it can include evidence that may have been known but could not have been presented earlier. He argues that the affidavits did not merely state that the witnesses would not have come forward; instead, the affidavits indicated that the witnesses would not have testified even if subpoenaed because they were threatened into remaining silent. Thus, he argues that their refusal to testify was not a mere rejection but a categorical refusal to testify under any circumstances, and no amount of diligence would have forced them to testify.
¶ 54 In support of his position, the defendant cites People v. Ayala, 2022 IL App (1st) 192484, ¶ 135, which also addressed the issue of whether affidavits of potential witnesses at trial were considered newly discovered when defendant knew about the witnesses, but the witnesses were unavailable to testify because of State misconduct. There, the appellate court found that one witness was unavailable at trial because he asserted his fifth amendment right against selfincrimination. Id. ¶ 136. The court noted that it was well settled that no amount of diligence could force a witness to violate their fifth amendment right to avoid self-incrimination if the witness did not choose to do so. Id.
¶ 55 The appellate court also found that defendant's allegations of State coercion and affiant's averments of fear of State retaliation were sufficient to deem certain witnesses unavailable to testify at trial. Id. ¶ 137. In making this decision, the court noted that newly discovered evidence included testimony from a witness who essentially made himself unavailable as a witness out of fear of retaliation. Id. The court then noted that identified witnesses had averred that they were baselessly arrested for participating in the offense, threatened, physically abused by the police, and feared being prosecuted for the murders. Id. The court found that the legitimacy of the affiants' fears and whether they rendered these witnesses unavailable to testify at trial should be ascertained at an evidentiary hearing to determine their credibility. Id. Thus, the court concluded that these affidavits were newly discovered. Id. ¶ 143.
¶ 56 The State in the present case argues that it was illogical for the defendant to claim that the alibi evidence was new since he obviously knew of his alibi at the time of the trial, i.e., he knew that, at the time of the shooting, he was at a family gathering where the identified family members were present. As for the argument that the witnesses made themselves unavailable at trial because of State coercion, the State contends, citing People v. Fields, 2020 IL App (1st) 151735, ¶ 47, that a witness is unavailable where a defendant has no reason to suspect that the explanation for the witness's absence at the trial was due to police threats and intimidation. However, the State argues that the defendant had reason to suspect that there was a nefarious reason why his family members would not testify for him when he knew that they were at his house on the night of the shooting.
¶ 57 The State also argues that, for newly discovered evidence, the focus is on whether the defendant used due diligence to discover the evidence before trial. However, there was no indication that the defendant ever reached out to his relatives to determine why they would not testify on his behalf. Thus, the State contends that the defendant did not show due diligence. Moreover, the State contends that the defendant also knew that he had alibi witnesses at the time that he filed his initial postconviction petition, and thus, he had an obligation to reach out to those witnesses to see if they would file an affidavit corroborating his testimony that he was at home that night.
¶ 58 In response, the defendant contends that the focus is not on whether the defendant used due diligence to attempt to discover why the evidence was not available. Instead, the defendant argues that the focus is on whether the evidence could have been made available through the exercise of due diligence. Since the witnesses indicated that they would not have testified because of police threats and intimidation, they made themselves unavailable, and no amount of due diligence would have secured their attendance at trial.
¶ 59 After carefully considering the evidence, we cannot say, like the court did in Ayala, that no amount of due diligence by the defendant could have compelled the alibi witnesses to come forward with the statements in their affidavits, especially at the time that the defendant filed his initial postconviction petition. At his trial, the defendant testified that he was at home with his family on the night of the shooting. However, there was no indication in the record that the defendant requested his relatives, which included his mother, brother, and cousin, to testify on his behalf about how they were also at his home that night. Nor was there any indication that he had asked them to provide affidavits in support of his initial postconviction petition, but they refused. Thus, the affidavits were silent as to whether the defendant asked them to testify, or if he did ask, whether he asked them why they refused his request. The defendant knew that his family members were alibi witnesses for him as he claimed they were together that night, but the record is silent as to any explanation for why their failure to testify was not further investigated.
¶ 60 In making this decision, we recognize the affiants' claims that they were threatened and coerced into remaining silent by state actors, and the First District's decision in Ayala. However, we find Ayala distinguishable based on the individual facts of this case. The witnesses indicated that they were physically threatened up until the defendant's conviction, but there did not appear to be any indication that those threats continued beyond the defendant's conviction in January 1994. Thus, there was no indication as to why the witnesses were still too afraid to come forward at the time the defendant filed his initial postconviction petition in November 1995 or his subsequent filing in April 2001.
¶ 61 The defendant could have learned, with due diligence, that his alibi witnesses, who were family members, were being silenced and coerced into not testifying for him, or at least, that there was something suspicious in the fact that they would not testify on his behalf when they were supposed to be with him on the night of the shooting. However, as noted above, there is no indication that the defendant asked them to testify or that the defendant's attorney attempted to secure their attendance at trial, but they refused. Thus, we find this case distinguishable from Ayala since the witnesses were the defendant's family members, the defendant knew that these family members were at his house on the night of the shooting, there was no indication that they were even asked to testify or provide affidavits during postconviction proceedings, and these family members remained silent about the defendant's location that night for approximately 15 or 16 years after his convictions.
¶ 62 Moreover, the defendant contends that actual innocence evidence has been considered even when it was discoverable when it would be fundamentally unfair to ignore it, such as when evidence was not submitted in a prior proceeding due to no fault of defendant. In support, the defendant cites People v. Warren, 2016 IL App (1st) 090884-C, ¶ 130, in which the First District Appellate Court concluded that it would be fundamentally unfair to deny defendant an opportunity to present evidence that technically was not newly discovered but was not available to him because his counsel would not submit the evidence or create a record of the evidence. Relying on this case, the defendant here contends that it would be a miscarriage of justice to deny the defendant his day in court due to the alleged unlawful conduct of state actors. However, we decline to extend Warren to this situation for the same reasoning as set out above. Accordingly, after carefully reviewing the record, we conclude that this evidence was not newly discovered. However, assuming arguendo, that this evidence was newly discovered evidence, we will address the remaining actual innocence requirement that was not conceded by the State.
The State conceded that the affidavits provided evidence that was material and was not cumulative.
¶ 63 3. Conclusive
¶ 64 The defendant contends that the evidence contained in the affidavits would likely change the result on retrial because the State's evidence linking him to the offense was weak, and the alibi witnesses' testimony would otherwise support his uncorroborated testimony. In arguing that the State's evidence was weak, the defendant notes that there was no physical evidence linking him to the shooting as the pistol used was found in Rose's possession when Rose was detained by police weeks later; the restaurant employee was unable to identify the defendant at trial; and although Cosey identified the defendant at trial, she had testified that the robbery was of a brief duration, and the defendant pulled a gun when he entered the vehicle, which could impact her ability to make a credible identification.
¶ 65 Further, the defendant argues that an identification of a stranger is untrustworthy, and Cosey was unlikely to change her story at trial because, when she identified the defendant at the trial, he was the only person in the courtroom who was shackled and dressed in an orange jumpsuit. However, if, at retrial, the jury were to hear the alibi witnesses' testimony, the outcome would probably be different because there would be three witnesses corroborating the fact that the defendant was at home at the time of the shooting. Even if it was not dispositive, it would place the trial evidence in a different light and would undermine the confidence in the finding of guilt.
¶ 66 When analyzing conclusiveness, the relevant question is whether it is more likely than not that no reasonable juror, hearing and believing the newly discovered evidence, alongside all the other evidence presented at trial, could convict defendant. People v. Brooks, 2021 IL App (4th) 200573, ¶ 44. At the second stage of the postconviction proceedings, we must take all well-pleaded facts in the defendant's petition and in the affidavits that are not positively rebutted by the record as true. People v. Watson, 2022 IL App (5th) 190427, ¶ 33. Thus, the court must determine only whether the new evidence, if believed and not positively rebutted by the record, could lead to acquittal on retrial. Robinson, 2020 IL 123849, ¶ 60.
¶ 67 During the trial in this case, testimony was presented that Cosey positively identified the defendant as the man who jumped in her fiance's car and robbed her at gunpoint in a photograph lineup that occurred a few days after the incident. Although the defendant contends that her identification was unreliable because she was being held at gunpoint, she was also able to identify the remaining two suspects that were involved in the shooting; one of which was found, weeks later, with the weapon used during the shooting in his vicinity. Also, the restaurant employee that was working on the night of the incident identified the defendant in a photograph lineup as the man who pointed a gun at her while she was standing behind the counter. Although the employee could not identify anyone in the courtroom as being the man who pointed the gun at her, she reaffirmed the photograph identification at trial.
¶ 68 In contrast, the defendant testified that he was at home with his family on the night of the shooting, and the affidavits now corroborate his testimony. However, even taking these affidavits as true, which we are required to do at this stage in the proceedings, we conclude that this evidence was not of such conclusive character that they would probably change the result on retrial. One witness identified the defendant as one of the men that went inside the restaurant and then subsequently robbed her; during the robbery, she was face to face with the defendant in the small confines of a vehicle. The other witness affirmatively placed him inside the restaurant during the shooting. Thus, the evidence used to find the defendant guilty of armed robbery and first degree murder based on a theory of accountability was overwhelming. Accordingly, we affirm the trial court's dismissal of the actual innocence claim.
¶ 69 C. Brady Claim
¶ 70 We next address the defendant's claim that the State violated Brady when it allegedly failed to disclose that alibi witnesses had given exculpatory statements to the investigating detective before the defendant's trial, and its agents threatened and harassed these witnesses to prevent them from testifying at trial.
¶ 71 Under Brady, the State has a constitutional obligation to disclose evidence that is both favorable to the accused and material either to guilt or to punishment. People v. Burt, 205 Ill.2d 28, 46-47 (2001). Evidence is material if there is a reasonable probability that disclosure of the evidence would have altered the outcome of the proceeding. People v. Anderson, 375 Ill.App.3d 990, 1011 (2007). A reasonable probability of a different result is one sufficient to undermine confidence in the outcome. Id. To establish a Brady violation, a defendant must show that (1) the undisclosed evidence is favorable to defendant because it is either exculpatory or impeaching, (2) the evidence was suppressed by the State either willfully or inadvertently, and (3) defendant was prejudiced because the evidence is material to guilt or punishment. Burt, 205 Ill.2d at 47.
¶ 72 Initially, the State here contends that the defendant has failed to demonstrate cause and prejudice. In making this argument, the State argues that the defendant "would have this Court believe that this claim already passed the 'cause and prejudice' test when the [trial] court originally docketed his second successive postconviction petition for further review." However, the State argues that the record demonstrates that the trial court docketed the claim as a freestanding claim of actual innocence. The State acknowledges that it did not seek dismissal at second-stage proceedings based on cause and prejudice but argues that it could not do so when the petition was docketed as one sounding in actual innocence. However, the State argues that it is proper for us to review the defendant's successive postconviction petition for cause and prejudice because the defendant is arguing on appeal that the postconviction court erred in not analyzing his claim as a Brady violation.
¶ 73 As support for its contention that the postconviction court docketed the defendant's claim as an actual innocence claim, the State points to the court's September 16, 2010, order that docketed the defendant's successive petition for further proceedings. In that order, the court stated, "[defendant] makes a claim of actual innocence," and appointed him counsel. Moreover, in further support, there is nothing in the record to demonstrate that the court engaged in any cause and prejudice analysis regarding the Brady claim.
¶ 74 In response, the defendant contends that the State forfeited any argument concerning cause and prejudice because it failed to seek dismissal on that basis in the postconviction proceedings. The defendant argues that, regardless of the postconviction court's construction of the claim, the State had ample notice that the defendant was raising a Brady claim as the defendant's initial pro se petition, and some of his subsequent pro se supplemental filings, explicitly invoked and discussed Brady. Further, appointed counsel's amended petition separately argued that the State suppressed exculpatory evidence in violation of Brady, and the State responded to that amended petition without arguing dismissal based on cause and prejudice.
¶ 75 After reviewing the record, we agree with the defendant that the State has forfeited this argument because it had the opportunity to seek dismissal, at the second stage postconviction proceedings, of the separately alleged Brady claim on cause and prejudice grounds, and it failed to do so. See Ayala, 2012 IL App (1st) 192484, ¶ 104. Thus, we will not address the State's cause and prejudice argument.
¶ 76 As for the Brady claim, the State, in its appellee brief, only contests the presence of the third requirement for establishing a Brady violation, i.e., defendant was prejudiced because the evidence is material to guilt or punishment. Thus, we will only focus on this requirement. The defendant contends that he was prejudiced by the alleged failure to disclose the alibi witnesses because he was unaware that his family members had provided exculpatory statements to the investigating detective until long after he was convicted, and he was denied their testimony at trial. The defendant argues that, had the evidence been disclosed to the defense, the result of the proceeding would have been different or, at a minimum, the alibi witnesses' testimony would have rendered the evidence against him closely balanced rather than overwhelming.
¶ 77 The defendant noted that, at trial, there was only one witness linking him to the robbery and shooting, Cosey, and her encounter with him lasted a couple of minutes at most. Also, there was no physical evidence linking him to the offenses as the weapon used in the shooting was found with Rose. The defendant argues that the allegedly withheld evidence would not merely impeach Cosey, but the witnesses' testimony would corroborate his trial testimony that he was at home with his family at the time of the incident. Thus, the defendant contends that, had the evidence been disclosed, it would have created at least a reasonable probability that the confidence in the outcome of the trial would be undermined.
¶ 78 However, we find that the purported exculpatory evidence contained in the alibi witnesses' affidavits cannot be considered material. As discussed with respect to the defendant's actual innocence claim, we do not find any reasonable probability that the result of the proceeding would have been different, even if the jury heard testimony consistent with the affidavits. In turn, the defendant cannot meet the materiality requirement of a Brady claim. See People v. Green, 2012 IL App (4th) 101034, ¶ 40 ("even if defendant's claim were new, defendant could not meet the Brady materiality test because, as we explained in rejecting defendant's claim of actual innocence, no reasonable probability exists that the result of his trial would have been different"). Accordingly, we affirm the trial court's dismissal of the defendant's Brady claim.
¶ 79 III. CONCLUSION
¶ 80 For the reasons stated, we affirm the circuit court's judgment dismissing the defendant's successive amended postconviction petition without an evidentiary hearing.
¶ 81 Affirmed.