Opinion
No. 1-19-1712
05-07-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JAMES FIELDS, Defendant-Appellant.
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). Appeal from the Circuit Court of Cook County. No. 91 CR 20467 Honorable Lawrence E. Flood, Judge, presiding. JUSTICE ODEN JOHNSON delivered the judgment of the court.
Justices Sheldon Harris and Maureen Connors concurred in the judgment.
ORDER
¶ 1 Held: We reverse the judgment of the circuit court, where defendant has made a substantial showing of an actual innocence claim, and remand for a third stage evidentiary hearing. ¶ 2 Defendant James Fields appeals the grant of the State' motion for dismissal of his successive postconviction petition at the second stage. On appeal, defendant contends that the postconviction court erroneously dismissed his petition when it concluded that the affidavits of defendant, Alesha Parks, Andrew Rudolph, Thomas London, Celeste Brown, and James Hopkins were not newly discovered evidence. Defendant contends that his petition made the requisite showing to warrant an evidentiary hearing. For the following reasons we reverse and remand for third stage hearing.
¶ 3 BACKGROUND
¶ 4 A. Procedural Background
¶ 5 Following a jury trial, defendant was found guilty of two counts of first degree murder for the shooting deaths of Willie Range (Range) and James Campbell (Campbell) and was sentenced to two terms of natural life imprisonment without parole. His conviction and sentence were affirmed on direct appeal. People v. Fields, 285 Ill. App. 3d 1020 (1996). On June 30, 1998, defendant filed his initial postconviction petition. That petition was summarily dismissed on July 17, 1998, and defendant appealed. Appellate counsel filed a motion for leave to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987). On September 30, 1999, this court granted the motion to withdraw and affirmed the convictions on direct appeal. People v. Fields, No. 1-98-3369 (1999) (unpublished order under Supreme Court Rule 23). Our supreme court denied defendant leave to appeal on May 31, 2000. People v. Fields, 189 Ill. 2d 666 (2000). ¶ 6 On May 7, 1999, prior to this court's decision in his initial postconviction appeal, defendant filed a second postconviction petition. That petition was summarily dismissed. Defendant appealed, and appellate counsel filed a motion requesting leave to withdraw pursuant to Finley, and this court granted the motion. People v. Fields, No. 1-99-2397 (2000) (unpublished order under Supreme Court Rule 23). Defendant was denied leave to appeal by our supreme court on October 2, 2000. People v. Fields, 191 Ill. 2d 542 (2000). ¶ 7 On June 5, 2018, defendant sought leave to file his second successive postconviction petition based on newly discovered evidence. The motion was granted and the petition proceeded to the second stage. On January 14, 2019, the State filed a motion to dismiss. The trial court granted that motion on July 24, 2019. This timely appealed followed.
There is no date provided in the record as to when it was dismissed.
¶ 8 B. Factual Background
¶ 9 The following facts were detailed on appeal in People v. Fields, 285 Ill. App. 3d 1020 (1996). On June 9, 1991, the decedents were shot and killed at 439 East 111th Place in Chicago. Id. The decedents and Andrew Rudolph lived with Barbara Wiley, who was Range's sister. Id. When Wiley left the apartment at 10 p.m., Range, Campbell, and Charlie Stewart, a friend, were there. Id. Upon returning at 2:00 a.m., Wiley learned that the decedents were fatally shot. The police arrived thereafter at 2:25 a.m. Id. at 1022. ¶ 10 Doctor Mitra Kalelkar, the Assistant Cook County Medical Examiner who performed the autopsies, testified that each decedent was killed by a single gunshot wound to the head, fired from close range. Id. ¶ 11 Rudolph testified that he was asleep in the apartment at 1:30 a.m. on June 9, 1991, when he was awakened by two gunshots. Id. He looked around the apartment and saw the decedents. No one else was in the apartment, so he got up and left. Id. ¶ 12 Rudolph testified that he gave an oral statement at the police station. Id. at 1023. In that statement, he told the police that he was sleeping on the couch in the living room, when he was awakened by two gunshots. Id. He looked up and saw defendant standing in the dining room. Id. Defendant looked directly in his face, then walked out of the apartment and down the street. Id. The decedents had been shot and were lying on the dining room floor. ¶ 13 Rudolph further testified that he signed a written statement prepared by Assistant State's Attorney Daniel Lynch (ASA Lynch). Id. He admitted that he told ASA Lynch that he was sleeping on the living room couch at 1:15 a.m. on June 9, 1991. Rudolph testified that he told ASA Lynch he was awakened by the first gunshot and he heard a second gunshot three seconds later. Id. Defendant, who was standing in the dining room, turned toward Rudolph, looked at him, began to walk toward him, then turned and left the apartment. Id. Rudolph got up, saw that decedents had been shot, and smelled the gunpowder. Id. After leaving the apartment, Rudolph saw defendant get into a car and drive away. Id. ¶ 14 Rudolph testified that he told the grand jury on June 10, 1991, that the decedents and Stewart were in the apartment when he returned at 12:15 a.m. on June 9, 1991. Id. His grand jury testimony was substantially the same as his written statement to ASA Lynch. Id. At trial, Rudolph made the same admissions and denials about his grand jury testimony as he had about his written statement. Id. ¶ 15 Rudolph testified that he was intoxicated and high on marijuana at the time of the shootings and when he made his statements at the police station. Id. He testified that he gave his out-of-court statements, which were composed by the police, because the police threatened several times to charge him as an accessory to murder. Id. Rudolph also testified that he read only part of the written statement before signing it. Id. Rudolph testified that he was not able to leave the police station after making the statement and he was there for two days before he was taken to the grand jury. He testified that he was constantly called a liar for not adopting their version of events and at one point, one of the officers threw a chair in the room. ¶ 16 Chicago police Detective Jack Hines testified that his investigation produced several names of potential witnesses, but he only was able to locate Rudolph at that time. Detective Hines approached Rudolph on the street near the crime scene at approximately 5:30 a.m., a few hours after the murders on June 9, 1991. Rudolph was with a "couple of males and a female," when he confirmed he was in fact, Rudolph. Detective Hines took Rudolph to the station and he spoke with him at 7 a.m. on the same day. Rudolph told the Detective that he saw defendant in the apartment and that defendant's arm was pointing downward toward Range, who had been shot and was lying under the table. Id. at 1023-24. Defendant looked at Rudolph, then walked out of the apartment. Id. at 1024. After Rudolph saw both victims shot on the dining room floor, he went outside where he saw defendant get into a car and drive away. Id. Hines testified that there was no indication that Rudolph was intoxicated or high on drugs when he gave his statement. Id. Hines denied threatening Rudolph with charges or mistreating him in any way. Id. ¶ 17 Detective Hines testified that Rudolph asked to stay overnight because he was scared to go back to the neighborhood. He testified that he offered to take him home and return to pick him up the following day. ¶ 18 On cross-examination, Detective Hines testified that eventually he was able to interview other witnesses on the day in question. He subsequently told Rudolph that their stories were conflicting with his. Rudolph then made a second statement. Detective Hines testified that the subsequent statement is the one the Detective was talking about on the stand and that was conducted approximately 11 hours after he initially arrived at the station. He testified that he did not reduce any statement made by Rudolph to writing. Detective Hines testified that he did not do anything other than allow Rudolph to stay overnight because of defendant's concerns for his safety. He testified that although he has heard of the protective custody program that the State's Attorney's Office had, he did not know how that operated. He also never reduced to writing that Rudolph feared for his life if he left the police station on June 9, 1991. ¶ 19 ASA Lynch testified that he took a written statement from Rudolph on June 9, 1991, and over defendant's objection, he read the entire statement to the jury. Id. Assistant State's Attorney Nancy Black (ASA Black), over defendant's objection, read Rudolph's entire grand jury testimony to the jury after she testified that Rudolph did not complain about any mistreatment by the police prior to the grand jury hearing. Id. ¶ 20 Alesha Parks testified that she had been dating defendant for a year prior to June 9, 1991. Id. On that date, Parks and defendant walked to 439 East 111th Place in Chicago. Id. After Janice White, Range, and another woman let them into the building, White and defendant had a conversation, but Parks could not hear what was being said. Id. When White, Range, and the other woman went upstairs to a second-floor apartment, Parks and defendant remained on the first floor. Id. Parks denied that she saw defendant take a gun out of his waistband and put it on a ledge. Id. White reappeared shortly thereafter. Id. Parks testified that White did not come downstairs to talk with defendant, but instead, stayed on the second floor and summoned him. When defendant went upstairs, Parks left to get a jacket and did not return to the building. ¶ 21 Parks gave a written statement to ASA Lynch, which contradicted her trial testimony. Parks stated that defendant came to her house at 12:40 a.m. on June 9, 1991. They then walked to 439 East 111th Place. Id. Once they were inside the vestibule at that location, Parks saw defendant take a gun out of his waistband and put it on the steps. Id. Sometime later, White, Range, and another woman came into the building and went upstairs while Parks and defendant continued to talk on the first floor. Id. White then came downstairs and told them that they could get comfortable in the room upstairs, but it would cost a rock of crack cocaine. Id. ¶ 22 Defendant and White went into the second floor apartment while Parks waited in the hallway. Id. at1024-25. Parks heard White and defendant arguing with Range, who wanted an extra rock of crack for himself. Id. at 1025. Defendant came out to the hallway and told Parks that "they were trying to play him" and "he should go and kill all four of them." Id. After White came out and told defendant that she would get some crack from Rudolph, defendant went into the kitchen with White, Range, and Campbell; while Parks sat on the living room couch. Id. Campbell sat down at the dining room table to eat his noodles, but Range and defendant continued to argue. Id. ¶ 23 After White and the other woman left, Range told Parks to leave. Id. Parks testified that she told ASA Lynch that defendant, Range, Campbell, and Rudolph were the only people in the apartment when she left. Id. As Parks was walking on the street, she heard two loud gunshots and then saw defendant come out of the building. Id. Defendant had a gun, which he put in his waistband. Id. Defendant walked over to two men, Snake and Jimmy, and said, "I shot him. Come on. He's dead," then he got into a car and drove away. Id. ¶ 24 At trial, Parks testified that her prior statements at the police station and to the grand jury were coerced. Id. When she returned home from the police station, she told her parents that she had given a false statement. Id. They told her to tell the truth to the grand jury, but when Parks met with ASA Black prior to the grand jury hearing, she reluctantly agreed to testify in conformance with her statements at the police station. Id. ¶ 25 Parks told the grand jury that she had been dating defendant on and off for three years when he came to her house in the early morning hours of June 9, 1991. Id. Parks told him that her mother would not allow her to leave the block, so they walked to 439 East 111th Place. Id. When they entered the vestibule at that location, he pulled a revolver out of his waistband and put it on the ledge. Id. Shortly thereafter, White, Range, and a woman named Annette came into the building. Id. White hugged defendant and then sat on the ledge to talk. Id. Defendant tried to cover the gun with his arm. Id. ¶ 26 White asked defendant if he wanted privacy and he told her "no" and stayed with Parks on the first floor, as everyone went upstairs. Id. A moment later, defendant went to the second floor and knocked on the apartment door. Id. White told him that it would cost him some cocaine or $10 for a room. Id. When he told her he had neither, White and defendant went to talk to Range while Parks stood near the bathroom door where she could hear Range and defendant arguing. Id. ¶ 27 Shortly afterwards, defendant and Parks went into the hallway, defendant told her that the people inside were begging for cocaine and that "he should go in there and shoot all four of them, and maybe they would have a better life." Id. at 1026. White reappeared and told defendant that Rudolph, who was sleeping on the couch, had some cocaine. Id. Defendant went back into the kitchen while Parks sat on the couch. Id. Range and Campbell continued to argue while Parks saw Campbell come into the dining room with a bowl and start eating. Id. ¶ 28 White and Annette left, and Range then told Parks to leave. Id. As she was leaving, she overheard defendant remind Range that he used to sell drugs to Range's brother. Id. She did not see anyone with a gun in the apartment, but shortly after she left the building, she heard two gunshots, then saw defendant coming down the street. Defendant put a gun in his waistband, then told Jimmy and Snake that he "just shot him, they're dead." Defendant then got into a car and left. Id. ¶ 29 On cross-examination, Parks testified that after expressing that she was not going to lie, ASA Black told her she better not "pull this stunt" or she would go to jail, on the way to the grand jury. Parks testified that she never saw defendant with a gun and he never told her he killed anyone. Parks testified that at the police station, she was locked in a room for six to seven hours before anyone spoke with her. She was never given food and at one point was "banging on the door" to be let out to use the bathroom, but no one came. She testified that Detective Hines told her she was lying when she told him she didn't know about the murders. Detective Hines was later joined by Detective Storck and they both threatened to charge her as an accessory unless she told them what they wanted. ¶ 30 ASA Lynch read Parks' written statement to the jury in its entirety, and ASA Black testified about the circumstances surrounding Parks' grand jury testimony but did not read it to the jury. Id. ASA Black denied threatening Parks with jail time. Id. ¶ 31 The State presented evidence of defendant's arrest to prove guilt of consciousness. Chicago Police Detective Michael McDermott (McDermott) testified that on July 25,1991, he was executing a warrant for the arrest of defendant. He, along with several other colleagues, were in the area of 5915 South Marshfield in Chicago. His role was to watch the perimeter of the building. When he heard his colleagues announce themselves, he heard a noise and saw defendant straddling a windowsill on the second floor with one arm and leg out. He proceeded to inform his colleagues that defendant was coming out and instructed defendant to go back inside, which he did. The State contended that defendants attempt to escape was evidence of guilt. ¶ 32 On cross-examination, defendant's counsel attempted to elicit testimony from McDermott regarding defendant's statements upon his arrest. Upon objection by the State, defendant presented an offer of proof that if permitted, McDermott would testify that defendant denied any involvement in the murders; and that defendant was present for an argument on January 9, 1991, but he had nothing to do with the killings. The proposed testimony would rebut the evidence presented by the State regarding defendant's alleged consciousness of guilt. However, the trial court found that the statement was an admission against one's penal interest that would be self-serving, consistent with defendant's plea of not guilty, and would not be an exception to the hearsay rule. ¶ 33 Chicago Police Detective David Friel testified that on June 12, 1991, he went to 220 West 108th Place in Chicago. At that location he encountered a woman who identified herself as defendant's mother. She told him that defendant was not home and he handed her his business card. Defendant never contacted him. On July 25, 1991, he went to 5915 South Marshfield in Chicago along with several other officers. He received information that indicated defendant would be at that location and summoned others to secure the perimeter. Detective Friel was at the front door of the residence when he knocked and stated it was the police. He then heard shouts from outside stating that defendant was fleeing. Detective Friel forced the first floor door and proceeded up the stairway to the second floor. He once again announced himself to no avail and forced open that door. Detective Friel testified that once inside, he identified defendant to be the subject of the arrest warrant and arrested him. ¶ 34 On cross-examination, he testified that on June 12, 1991, he was given the location of 220 West 108th Place in Chicago, by his supervisor. He could not remember the exact physical characteristics of the woman identified as defendant's mother. Detective Friel told her to call him if she got in contact with defendant. After giving her his card, he had no further contact with her. Detective Friel testified that he had no knowledge as to whether defendant's mother informed him of his visit. ¶ 35 Defendant presented the testimony of Park's parents, Jerri and Chester Parks, who testified that the police took their daughter and questioned her at the police station. Id. Mrs. Parks stated that her daughter told her she was forced to make a false statement to the police, and she encouraged her to tell the truth in the future. Id. Neither knew Parks had formed a relationship with defendant. ¶ 36 After the State's witness's testimony, at 6:45 p.m., the defense counsel objected to closing arguments being heard before the next morning. Id. The trial court asked the jury whether they wanted to continue that evening. Because they answered affirmatively, the closing arguments were heard and the jury began its deliberations at 8:26 p.m., over the defense's objection. Id. At 10:45 p.m. or 10:46 p.m., the trial court informed the parties that it had earlier told the sheriff to tell the jury that at 10:45 p.m. transportation would be waiting to take them to their hotel accommodations. Id. When the sheriff did so, the jury asked if they could have another 10, 15, or 20 minutes. Id. While defense counsel was making his objections, at 10:50 p.m., the jury rang the buzzer to indicate that it had reached a verdict. Id. The jury was brought into the courtroom, but the sheriff informed the court that one of the jurors was upset in the restroom. Id. The jury was taken back to the jury room and returned 30 seconds later with all the jurors present. Id. The jury found defendant guilty of two counts of first degree murder. ¶ 37 Defendant was convicted of the first degree murders of Range and Campbell. Id. Subsequently, at defendant's sentencing hearing, the trial court found that defendant was eligible for the death penalty, but that sufficient mitigating factors precluded him from being sentenced to death. Id. Instead, he was sentenced to two terms of natural life imprisonment without parole. Id.
¶ 38 C. Direct Appeal
¶ 39 On direct appeal, defendant claimed that: (1) he was denied a fair trial by the State's improper use of out-of-court statements; (2) the trial court impermissibly hastened the verdict by telling the jury that their transportation was waiting, and; (3) he was not proven guilty beyond a reasonable doubt. We found that the witness's prior statements were sufficiently inconsistent with the trial testimony to warrant its admission at trial and that the admission of witness's testimony about defendant's prior drug sales was harmless error. The witness's written statement regarding defendant's confession was not admissible. The trial court's statement that transportation was waiting for jury did not coerce the guilty verdict. Lastly, we found that the evidence presented sustained a conviction. We affirmed defendant's conviction and sentence. People v. Fields, 285 Ill. App. 3d 1020 (1996).
¶ 40 D. Postconviction Proceedings
¶ 41 As noted above, defendant's initial postconviction petition was filed on June 30, 1998. The petition alleged: (1) that the State knowingly used perjured testimony in order to obtain defendant's conviction; (2) the State suppressed evidence that was favorable to defendant that was material and crucial, and; (3) ineffective assistance of trial and appellate counsel. That petition was summarily dismissed on July 17, 1998. ¶ 42 On May 7, 1999, prior to this court's decision in his first initial postconviction appeal, defendant filed a second postconviction petition. That petition alleged: (1) the State used perjured evidence when it read Parks' written statement into evidence because she told them that she testified falsely at the grand jury; (2) the State withheld evidence about Parks' admission of false testimony, and; (3) ineffective assistance of trial and appellate counsel. In support of defendant's ineffective assistance of counsel claims, defendant attached two affidavits to the petition to show that trial counsel was ineffective for failing to call alibi witnesses. Willie Dean and James Hopkins both provided affidavits dated April 21, 1999 and stated that defendant was with them at the time of the murders. This petition was subsequently dismissed.
¶ 43 E. Second Stage Postconviction Proceedings
¶ 44 On June 5, 2018, defendant sought leave to file his second successive postconviction petition. The petition contained a claim of actual innocence. The petition attached six affidavits belonging to: defendant, Alesha Parks, Andrew Rudolph, Thomas London, Celeste Brown, and James Hopkins. The affidavits of Parks and Rudolph reiterated that they were coerced into making false statements by the police and the State. In support of the actual innocence claim, defendant argued that the affidavits of Brown, London, and Hopkins were newly discovered evidence that supported his claim of actual innocence. Defendant indicates he knew these people from the neighborhood at the time of the murders. Those three affidavits indicated that Steven Taylor ("Step"), was responsible for the murders. ¶ 45 Defendant argued that Step's involvement is newly discovered. Step was not mentioned on any of the police reports, no witnesses ever identified him, and he was never identified at trial. For the same reasons, defendant argues the evidence is noncumulative in character. Defendant argued that Brown, London, and Hopkins "actively concealed their knowledge" because they were afraid of Step who was a "shot caller." Defendant argued that the new evidence was material because it showed Step's guilt and defendant's innocence. Lastly defendant argues that given the lack of evidence presented at trial and the introduction of the accounts of London, Brown, and Hopkins, the jury could have reached a different result on retrial. ¶ 46 London's affidavit was dated March 27, 2015. In it, London averred that Step was his friend around the time of the murders and that he knew both Step and defendant from growing up in the neighborhood. One night, in the summer of 1991, Step came over his to place and was drunk. Step told London that he had "killed two people over down the hill on Vernon." London averred that Step kept repeating that he killed someone and appeared to be nervous and regretful of his decision. Step decided to go to a motel that night. About a week later Step told London that he intended to "lay low": at that point it was well known in the community that the murders occurred, and that Step was the killer. London averred that "at some point," he went to Cook County jail to see defendant. Defendant told London that he did not commit the murders and London responded that he knew he was innocent. London indicated that he might have mentioned Step at that time. London also mentioned that he was never contacted by any attorney on behalf of defendant and if he would have been contacted, he would have told them what Step said. ¶ 47 Brown's affidavit was dated March 5, 2016. In it, Brown averred that on the night of the murders, she was on Vernon Street near 111th Place, visiting some friends. She went to a corner store on Vernon and 111th Place to purchase some items. On her way to the store, she passed Snake, defendant and Jimmy, all of whom she knew from the neighborhood. When she got to the store, it was closed; however, she was able get an employee named Garret, who was still inside, to open the store back up so she could purchase her items. On her way back to her friends' place, she heard two gunshots as she approached 111th Place. Shortly after hearing the gunshots, she saw Step running down 111th Place and Vernon street with a black handgun in his right hand. Brown averred that no one from the State or defense contacted her. She never told anyone about what she saw that night because she was scared. ¶ 48 Hopkins' affidavit was dated August 13, 2016. In it, Hopkins averred that his nickname around the time of the murders was Jimmy. He remembered the night of the murders. He recalled there being a lot of people out that night, including Brown, who he was dating at the time. He also noticed Annette, Janice, and Lidia. That night he was just hanging around 111th Place and Vernon Street having a good time and drinking with Snake and other people he could not remember. At some point, defendant drove up and started hanging out with them. Prior to hearing gunshots, Hopkins saw Step heading towards 111th Place and Vernon Street. After the gunshots, which sounded as if they were coming from the area of 111th Place and Vernon Street, he then saw Step running toward 111th Street. Hopkins also stated that Rudolph approached him and the others he was with and stated something to the effect of "motherfuckers shot in the house." Rudolph appeared to be "trembling a bit" and "nervous and scared." The police arrived and went into the apartment with Range's sister. ¶ 49 Hopkins admitted that he knew Step at the time of the shooting but was not close with him. Step was new to the neighborhood because he had just gotten out of prison, but he was known to be a "shot caller:" meaning he had pull to get things done if he wanted. This status is why Hopkins nor others in the neighborhood pointed him out as the murderer to the police: "those were dangerous times." Hopkins also added that he was never contacted by the police or the defense. ¶ 50 Rudolph's affidavit was dated September 26, 2016. In it, he averred that he was sleeping when he heard a gunshot go off. He did not see the shooter, but he did see shadows before another gunshot went off. He then closed his eyes and pretended to be asleep. As he sensed the shooter getting closer to him, he started to snore. He kept his eyes closed for what he estimated was 10 minutes and left the apartment in fear. He went outside and eventually saw Jimmy and told him what happened. Jimmy walked with Rudolph to the house of his girlfriend at the time, which was down the street. A bunch of people were gathered at that house, but he only remembered Jimmy and his ex-girlfriend's mother Nell. ¶ 51 Before Rudolph saw Jimmy, he recalled seeing a man named Tim who was on a bike. Tim asked Rudolph if Annette and Janice were upstairs, and he told him no they were not. Rudolph saw Tim go towards 439 East 111th Place. As Tim left 439 East 111th Place he stated, "these bitches set me up" and "they up there dead." Tim proceeded to call the police using a payphone. Shortly thereafter, Rudolph heard a loud scream, and he knew it was Barbara. News of the shootings reached the group outside of his ex-girlfriend's place and the crowd started to gather outside 439 East 111th Place; Jimmy and Rudolph did not join them. A police officer then asked Rudolph to accompany him to the police station. At the police station, Rudolph told them he never saw the shooter. He described what happened next consistently to what he testified to at trial. He stated that after he testified truthfully at the grand jury, the Detectives became upset and told him to find his own way home. He averred that he does not know Step. ¶ 52 Parks' affidavit was dated September 24, 2016. In it, she averred that defendant picked her up from her house and they went to 439 East 111th Place as she testified to. On the corner of 111th Place, she saw a group of people and only recognized Jimmy and Snake. She and defendant went upstairs where she saw Rudolph and Campbell. After a few minutes she left alone because she was on punishment and could not be gone from home long. She saw a man named Tim and heard gunshots on her way home. When she got home, she went to bed and was awakened by the police. She denied that she and defendant went looking for a room and never heard any conversations or arguments regarding a room. Parks also denied that Defendant made any statements about killing anybody to her or to anyone else in her presence. She never saw him with a gun, nor did she see him drive off in a car. Consistent with her trial testimony, she also stated that the police treated her badly during the process. ¶ 53 Defendant's affidavit is dated May 17, 2018. In it, he stated that he was in the vestibule of 439 East 111th Place with Parks, White, Range and Campbell. White was looking for cocaine, but defendant did not have any. Consistent with Parks' testimony, defendant averred that he was not looking for a room that night. Defendant alleges that Parks left the building first, and he left a few seconds afterwards. Defendant was around the corner when the gunshots rang out that night. Defendant averred that he did not shoot the victims and he told the police that he was innocent. Defendant averred he never tried to hide from the police and did not try to escape out a window. ¶ 54 Defendant's motion for leave to file a successive postconviction petition was granted and the petition proceeded to the second stage. On January 14, 2019, the State filed a motion to dismiss. The postconviction court granted that motion on July 24, 2019. This timely appealed followed. ¶ 55 On January 14, 2019, the State filed a motion to dismiss defendant's postconviction petition. The State argued that defendant's petition did not meet the standards for an actual innocence claim and that his additional claims were barred by res judicata. The State argued that the affidavits of Park and Rudolph were not newly discovered because it was evidence that the court had already heard, which was that they recanted their original statements. London's statement was not newly discovered because it indicated he told defendant while he was in Cook County about knowing who committed the murders. Hopkins' affidavit was not new because it stated that defendant was present with him on the date in question and therefore this was known to defendant. Brown's affidavit lacked the character of a conclusive nature because it only said she saw Step and heard shots but did not see the shooting. Lastly, the State argued that claims regarding bad police work, coerced witness statements, legal errors and pressuring the jury to make a decision by telling them transportation was waiting to take them to a hotel were in the record and previously addressed by this court. Therefore, defendant is barred by the doctrine of res judicata on those matters. ¶ 56 On February 25, 2019, defendant filed a response arguing that he had only one claim, which was actual innocence. Defendant acknowledged that the affidavits of Rudolph and Parks did not satisfy the newly discovered standard. However, defendant argued that the affidavits of Hopkins, Brown, and London satisfied all of the requirements for actual innocence by being newly discovered, material, and noncumulative. ¶ 57 In response to the State's argument that London's affidavit is not newly discovered because of the statement "I might have mentioned Step," when he visited defendant in Cook County was premature. Defendant argued that London's statement, that he might have mentioned Step to defendant, necessitates the factfinding that occurs in a third stage evidentiary hearing. ¶ 58 Defendant argued that the State's contention that Brown's affidavit is unlikely to change the results on a retrial is unpersuasive. At 2nd stage, defendant argued, the only thing required is probability and not certainty, which puts the evidence in a different light, citing to People v. Coleman, 2013 IL 11307, as support. Defendant argued that Browns account, which placed Step with a gun in his hand, in the vicinity of the murders right after she heard gunshots, puts the evidence in a different light. ¶ 59 Lastly, defendant argued that the State's contention that Hopkins' affidavit is evidence that is not new because it should have been known to defendant at trial, makes an assumption that is not contained in the facts. Although the facts stated that Hopkins and defendant saw each other that night, the facts did not show that defendant was present when gunshots rang out and when Step appeared. Defendant argued that this conclusion requires factfinding. Further, the fact that Hopkins did not see Parks that night is not a contradiction. Both Parks and defendant stated they were with each other at the time of the murders. Defendant argued that this just meant that Hopkins saw defendant at a time that other than when he heard the gunshots and saw Step. Defendant argued that this was further proof that the affidavit is newly discovered. ¶ 60 On April 2, 2019, a hearing on was held on the State's motion to dismiss. On July 24, 2019, the postconviction court issued its ruling granting the State's motion to dismiss. The court found that newly discovered evidence meant that it must be evidence that was not available at defendant's trial and that he could not have discovered sooner. The affidavits of Parks and Rudolph were not newly discovered because their recantations were heard previously. The court found Brown's affidavit did not meet the definition of newly discovered evidence but without further explanation. The court further determined that Brown never alleged that she saw the shooting but rather that she heard gunshots and saw Step. Hopkins' affidavit was found not to be newly discovered because defendant was with Hopkins on the night in question and thus that information was not new to defendant. London's affidavit was found not to be newly discovered because he told defendant after he was arrested and in Cook County jail. The court ruled that any and all other claims were barred by res judicata and/or waived.
Also known as Willie Dean.
Hopkins' affidavit also states that Parks was not present, however, in contradiction, her affidavit states she was.
¶ 61 ANALYSIS
¶ 62 On appeal, defendant contends that the postconviction court erroneously dismissed his actual innocence claim and that it required a third stage evidentiary hearing. Defendant makes many of the same arguments he set forth in his petition and response to the State's motion to dismiss. Defendant contends that the trial court improperly engaged in factfinding at the second stage when it determined that the affidavits of London and Hopkins were not newly discovered. Additionally, he contends that the court only made a finding that Brown's affidavit was not new, but did not address whether it was material or of conclusive character. ¶ 63 The State contends that defendant failed to meet his burden in showing a substantial violation occurred as he did not set forth a colorable claim of actual innocence; therefore, a third stage hearing was not warranted. The State makes the contention that the affidavits do not establish a claim of actual innocence because they are not newly discovered, material, or of conclusive character, and that defendant failed to exercise due diligence. ¶ 64 In defendant's reply brief, he contends that the State and the court focused on whether the evidence presented was newly discovered. Specifically, the State argued Hopkins' and London's affidavits were not newly discovered and Browns' affidavit was not conclusive. Defendant contends that the State's attempt to argue that the affidavits are not material, cumulative or conclusive is not allowed at this stage, citing Geaslen v. Berkson, Gorov & Levin, 155 Ill. 2d 223 (1993), as support.
¶ 65 A. The State's New Arguments
¶ 66 As a preliminary matter, we will address defendant's contention that the State may not raise new theories on appeal, which were not raised at the trial court. Our supreme court has held that it is an error for the appellate court to consider new theories or claims on appeal which were not brought in front of the trial court because it deprives the non-moving party the chance to address such matters in their pleadings. Geaslen v. Berkson, Gorov & Levin, 155 Ill. 2d 223, 230-31 (1993). We believe this applies to the moving and nonmoving parties. Here, while the postconviction court did not expand its analysis beyond whether the evidence was newly discovered, the state nonetheless argues on appeal that the evidence was not material and lacked a conclusive character. The State's brief expands on elements that the postconviction court did not even contemplate and if addressed previously, defendant and the postconviction court might have addressed the specific elements contained therein. Thus, the State's new arguments will not be considered.
¶ 67 B. Standard of Review
¶ 68 The Postconviction Act provides a way for offenders to assert that their convictions were a result of a substantial deprivation of their rights pursuant to either the United States or Illinois Constitution, or both. People v. Rivera, 2016 IL App (1st) 132573, ¶ 17. This action is not a direct appeal, but rather, a collateral attack on the trial court proceedings. Id. ¶ 69 There are three stages provided for in postconviction proceedings. Id. At the first stage, the trial court may summarily dismiss a petition if it is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018). ¶ 70 At the second stage, in order to advance to the third stage, a petitioner must make a "substantial showing," which can be accomplished by relying on the record provided by the case or by accompanying affidavits. People v. Coleman, 183 Ill. 2d 366, 381 (1998). The trial court cannot engage in any fact-finding, because all well pleaded facts must be taken as true at the second stage of the proceedings. Id. at 380-81. ¶ 71 At this stage, counsel is appointed if the petitioner is indigent, and the State may answer or move to dismiss the petition. 725 ILCS 5/122-5 (West 2018). "By moving to dismiss the petition, the State challenges the sufficiency of the pleadings as a matter of law." People v. Rivera, 2016 IL App (1st) 132573, ¶ 19. "Since there are no factual issues at the dismissal stage of the proceedings, the question is essentially a legal one, which requires the reviewing court to make its own independent assessment of the allegations of the petition and supporting documentation." Id. All well-pleaded facts that are not positively rebutted by the trial record are to be taken as true at a dismissal hearing." Id. We review the dismissal of a second stage postconviction petition de novo. Id. ¶ 72 If the petition proceeds to the third stage and is not dismissed, a hearing is held where defendant may present evidence in support of the petition. Id. at ¶ 20. "At a third-stage evidentiary hearing, the trial court acts as the finder of fact, determining the credibility of witnesses and the weight to be given particular testimony and resolving any conflicts in the evidence." Id. "Throughout the second and third stages of a post-conviction proceeding, the defendant bears the burden of making a substantial showing of a constitutional violation." Id. ¶ 73 In this case, defendant's petition was dismissed on the State's motion at the second-stage. Thus, our review is de novo. Id. at ¶ 19. "Where a defendant raises a claim of actual innocence, the relevant inquiry at the second stage of post-conviction review is whether defendant has made a substantial showing of actual innocence so as to warrant an evidentiary hearing." Id. at ¶ 29.
¶ 74 C. Actual Innocence
¶ 75 An actual innocence claim requires evidence that is newly discovered, materially relevant and not cumulative, and be of such conclusive character as to change the result on retrial. People v. Robinson, 2020 IL 123849, ¶ 47. Evidence is newly discovered if it was discovered after trial and defendant could not have discovered it earlier through the exercise of due diligence. Id. Evidence is material when it is probative and relevant to defendant's defense. Id. Noncumulative evidence is evidence that would add to the information already heard at trial. Id. Evidence that has a conclusive character is "evidence that, when considered along with the trial evidence, would probably lead to a different result." Id. ¶ 76 The question we are faced with, "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." Id. at ¶ 48. "The new evidence need not be entirely dispositive to be likely to alter the result on retrial." Id. "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." Id.
¶ 77 1. Newly Discovered
¶ 78 Defendant contends that the trial court erred in finding that the affidavits of London, Hopkins, and Brown were not newly discovered. The State contends that the affidavits demonstrate that defendant was aware of these potential witnesses on the date in question and, therefore, they are not newly discovered and could have been produced sooner by defendant. Newly discovered evidence is evidence that has been discovered since trial and that could not have been discovered sooner by defendant. Robinson, 2020 IL 123849, ¶ 47. ¶ 79 We agree with the State's contention that London's affidavit is not newly discovered. At some point while defendant was still in Cook County jail, London had a telephone call with defendant wherein London told defendant that he knew he was innocent. London also stated that he "might" have told defendant about Step during that conversation. London also referenced a subsequent telephone conversation with defendant after the conviction, wherein he told defendant that "Step did it." This court takes judicial notice that defendants are typically housed at Cook County jail prior to conviction and sentencing. Thus, a reasonable inference is that the first conversation took place prior to the conviction and or sentencing. London's second phone contact with defendant was after his conviction but before 2013 when he was contacted by Ben Elson. While it is unclear exactly when the second more definitive conversation took place, we find that the first conversation wherein London told defendant that he knew he was innocent, should have caused defendant and his counsel to investigate the extent of London's knowledge further at that time: while defendant was still at county jail. London averred, he would have told defendant's defense counsel about the information contained in his affidavit sooner if they had contacted him. Thus, we find that defendant did not exercise due diligence in producing this evidence. Id. ¶ 80 Similarly, Hopkins' affidavit also cannot be considered newly discovered evidence. Defendant contends that Hopkins also made himself unavailable out of fear of retribution by Step and his associates. However, the State argued, and the trial court rightly found that the Hopkins affidavit is not newly discovered because defendant was with Hopkins the night of the shooting, and therefore knew or had reason to know that Hopkins may have had information related to his case. In fact, Defendant stated in his pro se postconviction petition that he does not deny that he was with "Jimmy Mack (Hopkins) and Snake and a few others when they heard two gun shots." Unlike Brown, defendant was aware of Hopkins' presence on the night of the murders. Even if Hopkins made himself unavailable, defendant was still required to assert a level of due diligence. Regardless of whether defendant was with Hopkins for the duration of the crime, defendants petition and affidavit do not indicate that he pursued Hopkins regarding this evidence. Hopkins averred that he was never contacted about this case before the trial. Defendant made no effort to exercise due diligence even though he knew Hopkins could be a potential witness. Robinson, 2020 IL 123849, ¶ 47. Thus, Hopkin's affidavit can not be considered newly discovered. ¶ 81 Notwithstanding, the requirement that a defendant must show due diligence when it comes to the discovery of supporting evidence, defendant's successive postconviction petition does not assert any due diligence in seeking this supporting evidence from London and Hopkins. London averred that if he were approached about what he knew, he would have spoken out. However, London was not pursued even though he expressed what he knew to defendant before and after his conviction. Hopkins' affidavit, taken as true, indicates no one sought him out as witness at trial; defendant does not claim to have demonstrated any diligence despite knowing him to be a potential witness. Id. ¶ 82 Contrary to the postconviction court's finding, we agree with defendant that Brown's affidavit is newly discovered. Brown's affidavit states that after she left the store and walked toward 111th place and Vernon, she heard the gunshots and saw Step, with a gun in his hand, running away from 111th Place. The State contends that Brown was known to the defendant since she claimed she walked past him on the way to the store prior to the shooting. Although Brown admits that she passed defendant on her way to the store, there is no indication whether she or defendant saw one another after she returned from the store. As such, defendant would not have known to inquire of Brown if, to his knowledge, she had left the block before the shooting. ¶ 83 Further, Brown made herself unavailable out of fear of Step, the "shot caller." Our supreme court has held that evidence that was previously made unavailable because the witness stays silent out of fear is considered newly discovered when the defendant is unaware that they are a witness. People v. Ortiz, 235 Ill. 2d 319, 334 (2009). In Ortiz, a witness moved to another state and waited ten years before coming forward. Id. The court noted that the defendant was unable to see that the witness observed the crime because of where he was standing when the murder occurred. Id. Similarly, here, the record does not indicate whether defendant saw or knew that Brown had returned from the store. Additionally, Brown stated in her affidavit that she did not tell anyone what she saw because she was scared and "didn't want to get in the middle of something", but now wants "to make things right." Incidentally, it is worth noting that Step is now deceased. As with Ortiz we cannot require defendant to seek out a witness he did not know he should have pursued. Since it appears that defendant was unaware of Brown's presence and possible observations at the time of the shooting, and she stayed silent out of fear of Step, this evidence must be considered newly discovered. Id. ¶ 84 As rationalized above, the affidavits of London and Hopkins lack the requisite due diligence for newly discovered evidence. Therefore, we will only continue to evaluate Brown's affidavit for a claim of actual innocence.
The postconviction court did not give and support or analysis for its finding that Brown's affidavit did not constitute newly discovered evidence. --------
¶ 85 2. Material and Noncumulative
¶ 86 In the absence of the postconviction courts findings regarding whether Brown's affidavit is material and noncumulative of what was presented at trial, we find that Brown's affidavit was in fact material and noncumulative. Evidence is material when it is probative and relevant to defendant's defense. Robinson, 2020 IL 123849, ¶ 47. Noncumulative evidence is evidence that would add to the information already heard at trial. Id. Viewing the facts in Brown's affidavit as true, it strongly suggests that someone else, namely Step, could have committed the murders; thereby, making the affidavit probative of defendant's innocence and thus material. No evidence of this character was presented at trial, and therefore, this affidavit is noncumulative in nature.
¶ 87 3. Conclusive Character
¶ 88 We also find the Brown affidavit to be of a conclusive character. Evidence that has a conclusive character is "evidence that, when considered along with the trial evidence, would probably lead to a different result." Robinson, 2020 IL 123849, ¶ 47. The standard is probability not certainty that a factfinder would reach a different result considering the new and old evidence. Id. The State contends that Brown's affidavit does not advance a claim of actual innocence of defendant and the fact that she saw Step running down the street with a gun near the scene of the crime is irrelevant. At trial, the State's only eyewitnesses were Parks and Rudolph who recanted earlier statements causing the State to impeach them with said statements in order to implicate defendant. Parks and Rudolph recanted those statements and testified that they were coerced into making them. Parks testified she was locked in a room at the police station for almost a day; was unable to call her mother or use the bathroom; was not given food; and was threatened with being charged in relation to the murders herself. Rudolph testified that he was held against his will for approximately 48 hours; observed an officer exhibit an act of aggression; and was threatened with being charged in relation to the murders himself. These recantations along with the lack of any physical evidence that point to defendant do not take much to be outweighed, and Brown's affidavit does that. The affidavit coupled with the initial trial evidence creates the probability that a factfinder could reach a different result at trial. Id. The affidavit provided the identity of a shooter that was not introduced at trial. Although no one witnessed the shooting, Brown indicates that she heard two gunshots and then saw Step with a gun fleeing the area. We find this evidence to be highly relevant and places the trial evidence in a different light and certainly undermines the court's confidence in the judgment of guilt. Robinson, 2020 IL 123849, ¶ 48. Since there is no evidence outside of the recanted statements, we find Brown's affidavit to be newly discovered, material, and noncumulative such that a third-stage evidentiary hearing is warranted.
¶ 89 CONCLUSION
¶ 90 We find that the postconviction court erred in granting the State's motion to dismiss defendant's postconviction relief petition at the second stage. Defendant made a substantial showing of actual innocence which warrants a third stage evidentiary hearing. ¶ 91 Reversed and remanded.