Opinion
4-21-0031
12-13-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ANDREW COE, 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 McLean County No. 14CF1141 Honorable John Casey Costigan, Judge Presiding.
CAVANAGH, JUSTICE delivered the judgment of the court. Presiding Justice Knecht and Justice Steigmann concurred in the judgment.
ORDER
CAVANAGH, JUSTICE
¶ 1 Held: When the representations of fact in his supporting affidavits are taken as true, defendant set forth a colorable claim of actual innocence, and therefore the circuit court should have granted him permission to file his successive petition for postconviction relief.
¶ 2 Having been found guilty by a jury in the circuit court of McLean County, the defendant, Andrew Coe, is serving three concurrent terms of imprisonment: 18 years for count II of the indictment, a count that charged him with unlawfully delivering a controlled substance on September 3, 2014 (720 ILCS 570/401(d)(i) (West 2014)); 18 years for count III, which charged him with unlawfully possessing a controlled substance on September 23, 2014, with the intent to deliver it (id); and 3 years for count V, which charged him with obstructing justice on September 23, 2014 (720 ILCS 5/31-4(a)(1) (West 2014)). Without moving for permission to do so, he filed in the circuit court a successive petition for postconviction relief. (This was his second 1 postconviction proceeding.) In his successive petition, he claimed to be actually innocent of count II. The court denied him permission to file the successive petition. See 725 ILCS 5/122-1 (f) (West 2020) (providing that "[o]nly one petition may be filed by a petitioner under this Article without leave of the court"). He appeals. We reverse the denial of permission to file the successive postconviction petition, and we remand this case for further proceedings.
¶ 3 I. BACKGROUND
¶ 4 In the jury trial, Detective Kevin Raisbeck testified that on September 3, 2014, Richard Velez came into the Bloomington police station and complained that Velez's roommate, Coe, had been selling cocaine. Velez signed an agreement to be a confidential source. He then used Raisbeck's cell phone, with the speaker function on, to call Coe and arrange to purchase cocaine-a controlled purchase. Raisbeck watched Velez key in the phone number: it was (309) 310-3829. Raisbeck testified that he had spoken with Coe before, both in person and by phone, and that he believed he could recognize Coe's voice. When Velez made the call from the police station, Raisbeck listened to the phone conversation. The voice on the other end of the line, Raisbeck testified, "sounded very similar to Andrew Coe's voice," although he conceded that it could have been someone else's voice. In the speaker-phone conversation, Raisbeck heard Coe tell Velez that he, Coe, still had seven grams to sell. Next, with Raisbeck still listening, Velez made phone calls to Coe's source for the cocaine, a man named Corey (last name unspecified). Velez and Corey agreed on a location for the purchase.
¶ 5 In preparation for the controlled purchase, Raisbeck searched Velez and the undercover police vehicle to confirm that there were no narcotics. He gave Velez $200 in United States currency, which had been photocopied so as to make a record of the serial numbers. Raisbeck then drove Velez to the vicinity of the agreed-upon location. As they were waiting in the 2 vehicle, Velez received a call from the same number, (309) 310-3829. It was Coe, who explained that Corey had been scared off by an unmarked police car in the area. Nevertheless, to quote from Raisbeck's testimony, Coe was still willing to "take care of" Velez. Coe and Velez agreed on another location, Locust and Catherine Streets, which was 1½ blocks from Coe's residence.
¶ 6 As Velez and Coe spoke on the phone, with the speaker function on, and as they decided on this new location for the drug transaction, their conversation was audio-recorded by a device on Velez's person. Raisbeck had Velez hold the cell phone close to his pocket so that the recording of the phone conversation would be clear. The prosecutor asked Raisbeck:
"Q. Did-on this recording, did the informant speak with some other gentleman besides Mr. Coe?
A. He may have talked with [Durrell] Harris, who actually provided the drugs to Mr. Velez. But I think that conversation was brief.
Q. Is Mr. Harris's voice on there?
A. It might be.
Q. Are you familiar with Mr. Harris's voice?
A. I have only talked to Mr. Harris once."
¶ 7 Surveillance units went to the new location, Locust and Catherine Streets. Velez returned in less than 10 minutes and handed to Raisbeck several bags of what appeared to be cocaine, People's exhibit No. 1. Also, he gave back to Raisbeck the $200-which Raisbeck had not expected to receive back, since, typically, drugs changed hands only if payment was made.
¶ 8 Soon, Coe followed up with a telephone call to Velez. The call was from the same number, (309) 310-3829. Coe told Velez that he needed $200 to reimburse Corey for the cocaine. 3 After texting Coe that he was on his way, Velez met with Coe to drop off the cash. Detective Scott Lake testified that he watched Velez enter the building at 909½ West Mulberry Street and exit the building about five minutes later. Upon returning to the car, Velez no longer had the $200. He handed over the recording device to Raisbeck, and it was still on. The recording was People's exhibit No. 8. The prosecutor asked Raisbeck:
"MR. RIGDON: Detective, during some of the early portions of that recording, you could hear a voice ask, ['D]id you rob someone, did you rob an['] - expletive. Are you able to say whose voice you believe to have been in that recording that made that statement?
A. That's the voice that I believe is very similar to Mr. Coe's voice.
Q. And that's based on your multiple interactions with the defendant at this point?
A. Yes."
¶ 9 On cross-examination, Coe (who had elected to represent himself in the jury trial) asked Raisbeck:
"Q. Who is the individual that specifically, on September 3, 2014, hand-delivered crack-cocaine to you?
A. It was Mr. Velez acting as a police informant.
Q. And who did Mr. Velez get the crack-cocaine from?
A. Durrell Harris.
Q. Didn't get it from Mr. Coe, correct?
A. No.4
Q. No physical evidence that Mr. Coe gave Richard Velez crack-cocaine on September 3rd of 2014, correct?
A. Other than the phone calls that I heard and then the in-person meeting with Mr. Velez paying Mr. Coe.
Q. Mr. Velez told you he got it from who? The crack-cocaine.
A. We witnessed that he got the crack-cocaine from Mr. Harris, and then recorded conversations where Mr. Velez made a payment to Mr. Coe, the defendant.
MR. COE: Was the defendant in the video that you're referring to?
A. The surveillance video?
Q. Yes.
A. No. I do not believe he was.
Q. Did you see Mr. Coe with the [sic] Durrell Harris on September 3, 2014?
A. No, I did not.
Q. But you don't have no physical evidence that the voice that you heard on the audio recording is the defendant, Mr. Coe?
A. Well, I was not there in the apartment when the video or the audio was made or on the other end of the phone call. So I can't say a hundred percent sure that it is Mr. Coe's voice. But it sounds similar to what I know Mr. Coe's voice to sound like on the phone.5
Q. Out of a percentage, one and a hundred, what percentage would you put on that?
A. Very high.
Q. High as what?
A. 95 percent.
Q. So 5 percent room left in there that it's not Mr. Coe's voice?
A. Yes."
¶ 10 Raisbeck testified that on September 4, 2014, after the controlled purchase, he tried to reach Coe by calling (309) 310-3829. No one answered. Soon afterward, however, Raisbeck received a text message from that number. The text message inquired who he was. The prosecutor asked Raisbeck:
"Q. Did you respond to that text message?
A. Yes. We had a series of text message conversations. I explained who I was, and then the text messages stopped. I explained who I was and why I was contacting him and then the text messages stopped. I tried calling the phone number again, and the phone number was no longer in service.
Q. Did you attempt, subsequent to September 4th, to make contact with the defendant?
A. On September 5th, I contacted Mr. Velez and learned that Mr. Coe had got a new phone number. And on Monday, September 8th, I contacted the new phone number that was provided by Mr. Velez.6
Q. And did you-were you successful in contacting the defendant through the new phone number?
A. Yes, I was.
Q. And did you have a conversation, text, voice, or otherwise with the defendant at that time?
A. Again, it was a text message conversation. I asked Mr. Coe if he was ready to meet now.
MR. RAISBECK: And then through a series of text messages, Mr. Coe agreed to meet with me on Tuesday, the 9th of September.
¶ 11 On September 9, 2014, Raisbeck met with Coe in an undercover police vehicle and attempted to recruit him as a confidential source. Another Bloomington detective, Stephen Brown, was present in the vehicle. At that time, Coe admitted to the two detectives that he had been selling cocaine for Corey, who had been fronting him "eighth ounces, quarter ounces, and half-ounces of crack-cocaine." (We quote from Raisbeck's testimony.) Coe told them he had to pay Corey between $200 and $250 per eighth of an ounce of cocaine and that any additional money that Coe made from the sales was his own profit. Coe further told the detectives that the last time Corey fronted him cocaine was September 3, 2014. Coe gave the detectives a physical description of Corey as well as Corey's telephone number.
¶ 12 On September 23, 2014, Brown went to Rosie's Pub, on Front Street in Bloomington, for lunch. Brown testified that as he was leaving the restaurant, he saw Coe in the foyer. Coe was on his cell phone, and Brown overheard Coe giving someone directions to the restaurant. Brown got into his vehicle and watched and waited. A car pulled up to Rosie's Pub, 7 and Coe got in the backseat of the car. Brown moved his vehicle to a better vantage point, but he still could not see what was happening in the car. After two minutes, Coe got out of the car, which then drove away. Brown followed the car, and while he and the car were waiting at a stop light, he saw a passenger in the car hand a small white object to the driver. Brown believed he had just witnessed a drug transaction. He knew that Coe was on parole. Brown then returned to Rosie's Pub and, to quote from his testimony, requested another police officer to "make contact with Andrew Coe and see what was going on, basically."
¶ 13 Aaron Veerman, a Bloomington police officer assigned to the street crimes unit, went to Rosie's Pub to investigate Coe. At Veerman's request, Coe accompanied him outside the restaurant. Veerman searched Coe's person and found a cell phone and, beneath the waistband of Coe's pants, a baggie. Inside the baggie were 10 baggie corners, each of which contained what appeared to be a chunk of crack cocaine. Veerman laid the baggie on the roof of his squad car and placed the cell phone on top of the baggie so that the baggie would not be blown away.
¶ 14 Another Bloomington police officer, Jerad Johnson, assisted Veerman with Coe's arrest. As Veerman was putting him in handcuffs, Coe lunged toward the bag of suspected cocaine, which was still on the roof of the squad car, and as Johnson put it in his testimony, "grabbed it *** with his mouth." Johnson took Coe by the jaw and ordered him to spit out the baggie. Veerman wrestled Coe to the ground. Even after Johnson sprayed him on the mouth with pepper spray, Coe refused to spit out the evidence. The police officers were finally able to remove the baggie, People's exhibit No. 2, from Coe's mouth, but he had succeeded in swallowing most of the suspected cocaine that had been inside the baggie. Out of concern that Coe would suffer an overdose, the police officers called an ambulance, which took him to OSF St. Joseph Medical Center. In the hospital, Coe refused medical treatment. 8
¶ 15 Brown spoke with Coe at the hospital. Coe told him that the baggie had contained crack cocaine and pills and that he had obtained the cocaine from Velez. Coe explained that the people in the car at Rosie's Pub had come merely to collect a debt that Coe owed them.
¶ 16 In the hospital, Brown did another search of Coe's person and found $56 in cash in a front pants pocket. A $20 bill and a $10 bill were folded separately from the remaining $26. Brown testified that, in his experience, drug dealers folded the cash from each sale separately, instead of folding it all together, so as to avoid having to pull out all of their cash.
¶ 17 An Illinois State Police forensic scientist, Michelle Dierker, described People's Exhibit No. 1 (the merchandise from the controlled purchase) as five hand-knotted plastic "corner bags." In one of the knotted baggie corners was a chunky, off-white substance that weighed a tenth of a gram. Dierker testified that it tested positive for cocaine.
¶ 18 Another Illinois State Police forensic scientist, Denise Hanley, testified that People's exhibit No. 2 (retrieved from Coe's mouth) contained off-white chunks weighing less than a tenth of a gram. They likewise tested positive for cocaine.
¶ 19 Neither Velez nor Harris testified in the jury trial.
¶ 20 After the evidence was concluded and the parties made their closing arguments, the circuit court instructed the jury. The jury instructions included an explanation of legal accountability:
"A person is legally responsible for the conduct of another person when either before or during the commission of an offense and with the intent to promote or facilitate the commission of the offense he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the planning or commission of the offense.9
A person commits the offense of Unlawful Delivery of a Controlled Substance when he, or one for whose conduct he is legally responsible, knowingly delivers a substance containing a controlled substance. To sustain the charge of Unlawful Delivery of a Controlled Substance, the State must prove the following proposition: That the defendant or one for whose conduct he is legally responsible knowingly delivered a substance containing cocaine, a controlled substance."
¶ 21 The jury found Coe guilty of the two drug offenses and of obstructing justice. On July 25, 2016, after denying his posttrial motion, the circuit court sentenced Coe to 18 years' imprisonment for the drug offenses and 3 years' imprisonment for obstruction of justice, ordering that the prison terms were to run concurrently.
¶ 22 Coe took a direct appeal. On March 20, 2019, the appellate court affirmed his convictions and sentences. People v. Coe, 2019 IL App (4th) 160713-U.
¶ 23 On January 8, 2018, while his direct appeal was pending, Coe petitioned, pro se, for postconviction relief. The circuit court summarily dismissed the petition as frivolous and patently without merit. See 725 ILCS 5/122-2.1(a)(2) (West 2018). On April 29, 2020, by summary order pursuant to Illinois Supreme Court Rule 23(c) (2) (eff. Apr. 1, 2018), the appellate court affirmed the summary dismissal.
¶ 24 On August 19, 2019, while his appeal in the initial postconviction proceeding was pending, Coe petitioned for relief from the judgment in his criminal case, pursuant to section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2018)). He attached to his petition an affidavit by Antoine Parker. In his affidavit, Parker averred as follows:
"On September 3, 2014 late evening I was at apartment 909½ W. Mulberry, Bloomington, IL with a associate of mine name Darrel nickname Rello. While at10
the apartment I witnessed Rello arrange a drug deal over his cell phone with some guy he addressed by Richard. Rello asked me to walk with him down the back alley of the apartment which I did but then I returned to the apartment without Rello. After Rello returned to the apartment approximate two hours later while we were in the kitchen a tall slim guy about my height walked through the front door into the kitchen and handed Rello some money before I left to smoke a ciggarrette [sic] on the front porch. I voluntarily offered to sign a affidavit regarding what I know and witnessed. Andrew was not at this apartment when this transpired."
¶ 25 Coe claimed that Parker's affidavit proved him, Coe, to be actually innocent of count II, unlawfully delivering cocaine on September 3, 2014. Coe contended, for the following reasons, that the affidavit conclusively negated his guilt of that offense even on a theory of accountability: (1) Raisbeck admitted that Harris, not Coe, delivered the cocaine to Velez on September 3, 2014; (2) the State nevertheless alleged that Coe was legally responsible for the drug transaction because he accepted the $200 as payment for the cocaine; (3) Raisbeck admitted that he did not see Velez hand the $200 to Coe and that, as a matter of fact, Raisbeck was not present in the apartment at 909½ West Mulberry Street when Velez paid the $200; (4) Parker averred that "a tall slim guy about [his] height walked through the front door into the kitchen and handed Rello"-that is, Harris-"some money"; and (5) Coe, according to Parker, was not in the apartment when Velez paid the $200.
¶ 26 The State moved for the dismissal of the section 2-1401 petition. In its motion, the State made three arguments. First, the State argued that the petition should be dismissed pursuant to section 2-619(a)(5) of the Code of Civil Procedure (id. § 2-619(a)(5)) because the petition was barred by the two-year period of limitation in section 2-1401(c) (id. § 2-1401(c)). Second, the State 11 argued that the petition should be dismissed pursuant to section 2-615(a) of the Code of Civil Procedure (id. § 2-615(a)) because the purportedly new evidence (Parker's affidavit) was pervaded by inadmissible hearsay and because it was not evidence "of such a conclusive character" that it would "probably change the result on retrial" (People v. Davis, 2012 IL App (4th) 110305, ¶ 26). The "tall slim guy" in Parker's affidavit was unidentified, and it was unclear, from the affidavit, why this "tall slim guy" handed the money to Rello. Third, the State argued that the petition should be dismissed because the evidence in Parker's affidavit could "have been discovered prior to trial by the exercise of due diligence." Id.
¶ 27 On August 11, 2020, the circuit court granted the State's motion to dismiss the section 2-1401 petition. The court agreed with all three reasons for dismissal that the State had urged. First, the court found that the petition was untimely. Second, the court was unpersuaded that Parker's affidavit "amount[ed] to actual innocence." Even if everything Parker said in his affidavit were accepted as true, "there was still sufficient evidence for the trier of fact to find defendant guilty by way of accountability." Third, the court agreed with the State that Coe, in the exercise of due diligence, could have discovered Parker before the trial. Harris and "Richard" were known to Coe before the trial, the court observed, and since Parker allegedly was with Harris and "Richard," "[d]ue diligence in interviewing and subpoenaing these individuals would have disclosed Mr. Parker." Therefore, the court granted the State's motion to dismiss Coe's section 2-1401 petition for relief from judgment. Coe did not appeal the dismissal.
¶ 28 On October 20, 2020, Coe filed a successive petition for postconviction relief, again asserting his actual innocence of count II. In the successive petition, he denied he was in Harris's apartment on September 3, 2014, and he denied making a drug deal with Velez. Coe submitted his 12 own affidavit, in which he averred that he had spoken with Harris on the telephone and that, in the phone conversation, Harris had made some admissions. We quote from Coe's affidavit:
"Mr. Harris confessed to me that on September 3, 2014 Richard paid him $200 at apartment 909½ W. Mulberry for crack cocaine he gave to Richard on Locust Street. Harris admitted that he lied about my involvement surrounding the September 3, 2014 drug deal because he was threatened by an interrogating officer with prison time. Harris admitted that he originally told the detective who interrogated him that I wasn't even at the apartment or that I gave him drugs to sell but that the officer kept telling him that I did and as a result he went along with the story and falsely accused me of giving him drugs to keep from going to prison. I am innocent of this crime."
¶ 29 In addition to his own affidavit, Coe submitted a second affidavit by Parker, in which Parker averred that, for the following reasons, he would not have been discoverable to Coe at the time of the trial: (1) Parker was in Bloomington only during the afternoon of September 3, 2014; (2) Parker returned to Belleville, Illinois, the evening of September 3, 2014; (3) neither Harris nor Coe knew Parker's Belleville address; and (4) Parker had not been in Bloomington since September 3, 2014. Parker further represented as follows:
"Again, Mr. Coe was not there at the residence of 909½ W. Mulberry on September 3, 2014 when I observed Richard pay Darrell a drug payment following a drug deal.
I watched Darrell set this deal up over the phone. Mr. Coe is innocent and had nothing to do with this crime because I was there."
Coe also resubmitted Parker's previous affidavit. 13
¶ 30 On December 30, 2020, the circuit court denied permission to file the successive postconviction petition. In the court's view, the new affidavits still did not preclude a guilty verdict on a theory of accountability. Also, the court remained unconvinced that Parker could not have been discovered earlier by the use of due diligence.
¶ 31 II. ANALYSIS
¶ 32 A. Filing the Successive Petition Without Moving for Permission to Do So
¶ 33 Section 122-1(f) of the Post-Conviction Hearing Act provides that "[o]nly one petition may be filed by a petitioner under this Article without leave of the court." 725 ILCS 5/122-1(f) (West 2020). Coe filed a successive petition for postconviction relief without first seeking permission to do so. Even so, a circuit court may treat the unauthorized filing of a successive petition as a motion for permission to file it, and the court may rule accordingly-as the court did in the present case. See People v. Sanders, 2016 IL 118123, ¶ 25.
¶ 34 B. Res Judicata
¶ 35 The State argues that because of the circuit court's decision on Coe's section 2-1401 petition, the doctrine of res judicata bars his successive petition for postconviction relief. If, however, the successive petition presents substantial new evidence of actual innocence, res judicata should be relaxed. See People v. Patterson, 192 Ill.2d 93, 139 (2000). So, the question comes down to whether the successive petition presents substantial new evidence of actual innocence (and as we soon will discuss, "substantial" and "new" are terms of art).
¶ 36 C. The Elements of a Claim of Actual Innocence
¶ 37 Generally, there can be only one postconviction proceeding by a defendant and no subsequent one by that defendant. See People v. Robinson, 2020 IL 123849, ¶ 42. There are two 14 exceptions to that rule, which is to say, there are two ways by which a defendant can establish a right to bring a successive postconviction proceeding. Id.
¶ 38 One way is by showing "cause" and "prejudice": cause for omitting the claim in the initial postconviction proceeding and prejudice resulting from the omission (725 ILCS 5/122-1(f) (West 2020)). Robinson, 2020 IL 123849, ¶ 42. Section 122-1(f) of the Act defines "cause" and "prejudice" more fully as follows:
"For purposes of this subsection (f): (1) a prisoner shows cause by identifying an objective factor that impeded his or her ability to raise a specific claim during his or her initial post-conviction proceedings; and (2) a prisoner shows prejudice by demonstrating that the claim not raised during his or her initial post-conviction proceedings so infected the trial that the resulting conviction or sentence violated due process." 725 ILCS 5/122-1(f) (West 2020).
¶ 39 The second, alternative way to gain the right to bring a successive postconviction proceeding is by "assert[ing] a fundamental miscarriage of justice based on actual innocence." Robinson, 2020 IL 123849, ¶ 42. This is the way that Coe has chosen. If a defendant moves for permission to file a successive petition asserting actual innocence, the defendant must do more than show that the proposed successive petition is nonfrivolous. Id. ¶ 43. In other words, the burden is not so light as it would be if the defendant had filed, pro se, an initial petition for postconviction relief. An initial petition would survive for further proceedings unless the court found it to be "frivolous or patently without merit." Id. A defendant seeking permission to file a successive petition claiming actual innocence has a heavier burden than merely avoiding the characterization "frivolous or patently without merit." Id. On the other hand, though, the defendant need not, as of yet, "make a substantial showing of actual innocence"-the showing the defendant will have to 15 make later, in the second stage, if the circuit court grants permission to file the successive petition and the State then moves to dismiss the successive petition. Id. So, the burden on Coe, at this time, is of intermediate heaviness.
¶ 40 He has the burden of "set[ting] forth a colorable claim of actual innocence" (emphasis added) (id. ¶ 44), and we decide de novo whether he has done so (see id. ¶ 40). "Colorable" means "seemingly valid or genuine." (Emphasis added.) Merriam-Webster's Online Dictionary, https://www.merriam-webster.com/dictionary/colorable (last visited Nov. 17, 2021). We settle for appearances at this early, permission-seeking stage of the postconviction proceeding. That is to say, "all well-pleaded allegations in the [successive] petition and supporting affidavits that are not positively rebutted by the trial record are to be taken as true." Robinson, 2020 IL 123849, ¶ 45. An allegation is positively rebutted by the trial record only if it is "clear from the trial record that no fact finder could ever accept the truth of that evidence, such as where it is affirmatively and incontestably demonstrated to be false or impossible." Id. ¶ 60. Unless the allegation is so spurious that every reasonable trier of fact would reject it, a court must refrain from "making factual and credibility determinations" when deciding whether to grant permission to file a successive petition asserting actual innocence. Id. ¶ 45.
¶ 41 Keeping in mind that at this early stage we are largely indifferent to believability, we must decide whether the evidence supporting the successive petition is "(1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would probably change the result on retrial." Id. ¶ 47. The supreme court has explained:
"Newly discovered evidence is evidence that was discovered after trial and that the petitioner could not have discovered earlier through the exercise of due diligence. [Citation.] Evidence is material if it is relevant and probative of the petitioner's16
innocence. [Citation.] Noncumulative evidence adds to the information that the fact finder heard at trial. [Citation.] Lastly, the conclusive character element refers to evidence that, when considered along with the trial evidence, would probably lead to a different result. [Citation.] The conclusive character of the new evidence is the most important element of an actual innocence claim. [Citation.]
Ultimately, 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. [Citation.] The new evidence need not be entirely dispositive to be likely to alter the result on retrial. [Citation.] Probability, rather than certainty, is the key in considering whether the fact finder would reach a different result after considering the prior evidence along with the new evidence. [Citation.]" Id. ¶¶ 47-48.
¶ 42 Coe's affidavit is not "new evidence." If, as he asserts in his affidavit, he had nothing to do with the sale of cocaine to Velez on September 3, 2014, he, Coe, would have known that fact before the trial. Harris, whose admissions Coe purports to repeat in his affidavit, was arrested for selling the cocaine to Velez that day. We see no reason why, in the exercise of due diligence, Harris would have been unreachable before the trial.
¶ 43 But Parker's affidavits are new evidence. Taking the representations in his second affidavit to be true, he apparently was unreachable by due diligence. According to Parker, neither Coe nor Harris knew where he lived in Belleville, and after September 3, 2014, he never returned to Bloomington.
¶ 44 Also, again taking Parker's affidavits to be true, Raisbeck's identification of Coe's voice in the phone conversations is unreliable. According to Parker, it was Harris, not Coe, who 17 dealt with Velez ("Richard") on the phone. Raisbeck, on the other hand, testified that, in every call, he recognized Coe's voice. Parker denied that Coe was present in 909½ West Mulberry Street when Velez came in and paid the $200. According to Parker, Velez paid Harris, and Coe was not even in the apartment. But Raisbeck testified that, in the audio recording of the payment in the apartment, he recognized Coe's voice. Raisbeck and Parker cannot both be right. The guilty verdict on count II rested heavily upon Raisbeck's voice identification. Parker's affidavits, taken as true- as they must be taken at this stage of the postconviction proceeding-would undermine confidence in Raisbeck's voice-identification testimony and probably would change the outcome on count II.
¶ 45 III. CONCLUSION
¶ 46 For the foregoing reasons, we reverse the circuit court's judgment, and we remand this case for further proceedings.
¶ 47 Reversed and remanded. 18