Opinion
1-22-0832
01-16-2024
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOE LINZY, 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 Cook County. No. 96 CR 6725 Honorable James B. Linn, Judge, presiding.
JUSTICE COGHLAN delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Pucinski concurred in the judgment.
ORDER
COGHLAN, JUSTICE
¶ 1 Held: We affirm the circuit court's order denying defendant leave to file a successive postconviction petition where he failed to present a colorable claim of actual innocence based on newly discovered evidence.
¶ 2 Defendant Joe Linzy appeals from an order of the circuit court denying him leave to file a second successive pro se postconviction petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2022)). On appeal, defendant contends that leave to file should have been granted because he presented evidence of actual innocence in the form of an affidavit that was newly discovered, material, and noncumulative, and that placed the trial evidence in a different light while undermining confidence in the jury's verdict. For the reasons that follow, we affirm.
¶ 3 On January 29, 1996, Doris Harris's frozen body was found inside a drum-style barbecue grill in the back yard of a house on West 78th Street in Chicago. Harris lived in a room in the house's attic, while defendant and his wife lived downstairs. Defendant was arrested and charged with first degree murder and concealment of a homicidal death. Following a 1996 jury trial, he was convicted of both crimes and sentenced to concurrent terms of 80 and 5 years in prison, respectively. We set forth the underlying facts of the case in our order on direct appeal. People v. Linzy, No. 1-97-0410 (1998) (unpublished order under Illinois Supreme Court Rule 23). Due to the nature of defendant's current claim, we repeat the trial evidence here.
¶ 4 At trial, Eugene Barnes testified that he had a romantic relationship with Harris and saw her every day or every other day. The last time he saw her was on December 14, 1995. He filed a missing person report on December 18, 1995, after a neighbor found Harris's driver's license, social security card, and keys in a dumpster in an alley about a block away from the house where she lived.
¶ 5 Chicago police officer Hicks testified that on December 18, 1995, he received a missing person complaint over the radio and responded to the address on West 78th Street. There, he met with a group of people that included Barnes, defendant, and defendant's wife, Patty Brown Johnson. After learning that Harris lived at the address, he went up to her attic room to confirm she was not there. He did not go into the first or second floor of the house, the basement, or the back yard. On cross-examination, he agreed that at one point, he was alone with Johnson in Harris's room. He did not recall seeing any blood on the stairs to the attic, and did not see anything in Harris's room to cause him to think something bad had happened to her there.
Officer Hicks's first name does not appear in the record.
¶ 6 Chicago police officer Stewart testified that on January 29, 1996, he was on patrol when he received a call of "a person down" at the house on West 78th Street. When he arrived, paramedics directed him to a barbecue grill in the back yard. He opened it and saw the frozen body of a naked woman face-down on the grill. A can of lighter fluid was stuck to the back of her head. Eventually, the fire department arrived and cut the metal bars her body was resting on so she could be removed from the grill.
Officer Stewart's first name does not appear in the record. A page of his testimony is missing from the trial transcript, but was described in our order on direct appeal.
¶ 7 Patty Brown Johnson testified that in July 1995, she and defendant moved into the house in question. Johnson had a bedroom on the second floor, and Harris lived in a room in the attic, which was accessible via stairs that led to a door next to Johnson's room. Over the next five months, Johnson saw Harris every day. She described their relationship as "fair." They argued, but also went shopping and to the laundromat together. Johnson stated that defendant and Harris did not have a relationship; they argued and Harris tried to keep her distance from him.
¶ 8 On December 15, 1995, two of Johnson's children, Essie Brown and Patrick Brown, were visiting her for the weekend. Around 11 p.m., she was in her bedroom with the children when defendant came into the room and said he was going to kill Harris. When Johnson asked why, he answered, "[B]ecause we argue all the time." Defendant changed into black clothing, white gloves, and a black ski mask. Johnson told him not to kill Harris, and he locked her and the children in the bedroom.
¶ 9 Johnson heard defendant run up the stairs. She heard defendant arguing with Harris, who called "Patty, Patty, help me," and heard defendant dragging Harris down the stairs to the second floor. Defendant opened the bedroom door. Johnson had covered herself with a sheet because she was scared. She moved the sheet slightly to reach for a cordless phone and saw that defendant had a pipe and a bat in his hands. She testified that as she reached for the phone, "he came toward me like this (indicating), and he hit me with it." When asked what he had in his hand at that time, she answered, "He had the phone in his hand and the bat and the pipe with him." Defendant told Johnson that if she called the police, he would kill her and her children. He told her not to leave the room, locked the door from the outside, and left. Johnson heard defendant dragging Harris down the stairs to the first floor. Then she heard screaming for about two to five minutes.
¶ 10 About an hour later, defendant came back to the bedroom. He had blood on his face, clothes, and shoes, and was carrying Harris's nightgown, which was bloody. Defendant removed his clothes and put them, along with the pipe and bat, in a garbage bag. Johnson testified as follows as to what happened next:
"I raised up out the bed, and I was crying. And I asked him, I said, I know you didn't -- excuse me. I said, I know you didn't kill Miss Harris.
And then he looked at me, and he smiled, and he said, we killed her.
And I said, we?
And he said that -- that he had beat her and burnt her and put her in the garbage can -- I mean, excuse me -- in the barbecue grill."Defendant then repeated his instruction to Johnson not to leave the room, locked the bedroom door from the outside, and left.
¶ 11 Johnson testified that she never called the police about what happened because she was afraid of defendant. When the police came to the house on December 18, 1995, she showed an officer Harris's bedroom. She was alone with the officer in the attic but did not tell him about Harris at the time because she did not want anything to happen to her or, especially, to her children. Although defendant no longer lived at the house with her after January 4, 1996, she did not call the police because she was afraid and "it seemed like somebody had been watching the house, you know, his friends." On January 29, 1996, after Harris's body was found, Johnson spoke with detectives at a police station.
¶ 12 On cross-examination, Johnson stated that her son, Patrick, slept through the entire incident. She clarified that defendant "was coming towards" her with the bat as she reached for the phone, but that he did not hit her with the bat. When confronted with her grand jury testimony, "He hit me in the head with it," she denied she had made that statement. She answered further questions from defense counsel as follows:
"Q. And you have told us that [defendant] said he smashed her head in?
A. We.
Q. We smashed her head in?
A. Yes.
Q. You're saying that he was talking about more than just him?
A. Right.
***
Q. Did you tell him you didn't believe that she was dead?
A. I said -- I asked him to myself, to myself, but when I asked him and he gave me a smile and told me he did, that we did."
¶ 13 Johnson agreed that the reason defendant was no longer living with her after January 4, 1996, was because he was in jail. Nevertheless, she did not say anything about the incident to the police or Barnes because defendant told her she "couldn't say nothing to nobody" and she was afraid. Johnson admitted that, at the time of trial, she was still married to defendant, wrote to him, and visited him every other week.
¶ 14 Johnson acknowledged that in December 1995, her children were not able to live with her full-time and she was "engaged in a process with the court system so that they could come back and live with [her] full time." Johnson agreed that the "most important" thing to her was getting her children back and stated that she had been working toward that goal since 1992. She also agreed that in January 1996, when the police interviewed her at the station, they told her that her keeping her children depended on her talking to the police. They then kept her overnight at the station and told her she "had to stick with this story through the grand jury testimony if [she] ever wanted to get [her] kids back."
¶ 15 On re-direct examination, Johnson stated that she had told two coworkers with whom she was friends about her suspicions that defendant had killed Harris. On re-cross examination, she explained that she did not ask them for help because she did not want to put them in jeopardy of being hurt.
¶ 16 Essie Brown testified that on December 15, 1996, she was 13 years old and visiting Johnson for the weekend. That night, she and her brother, Patrick, were in Johnson's bedroom when defendant entered and told Johnson he was going to kill Harris because Harris was "messing with [Johnson's] business." Defendant put on black clothing, white gloves, and a black mask. He then left the bedroom with a bat and a flat piece of metal, locked the door from the outside, and told them not to leave the bedroom.
¶ 17 Brown heard defendant run up the stairs to the attic room where Harris lived. Defendant and Harris argued, but Brown could not make out what they were saying. Brown heard Harris screaming and saying, "[H]elp, Patty, help," and heard defendant dragging Harris down the stairs while Harris screamed. Defendant opened the bedroom door. Harris was lying face-down on the stairwell and repeated, "[H]elp, Patty, help." Johnson picked up the phone. Defendant, who was holding the bat and the piece of metal, told Johnson to give him the phone. When Johnson refused, he came toward her with the bat raised. Johnson put a blanket over her head and defendant took the phone. Defendant instructed Johnson and Brown not to leave the bedroom, left, and locked the door behind him.
¶ 18 Brown heard defendant descending the stairs. She stated that Harris "kept screaming and screaming" and "got louder and louder as she [was] going towards the basement." Brown heard a loud noise, after which Harris stopped screaming and the dogs, which were kept in the basement, started barking. About an hour later, defendant returned to the bedroom. He removed his bloody clothes and put them in a big, black bag along with the bat, the piece of metal, and Harris's nightgown. As to what happened next, Brown testified, "My mother asked him did he kill Miss Harris, and he said, we smashed her head in, we're going to burn her." Defendant specified that he was going to put Harris in the grill, and told Johnson that if she went to the police, he would kill her "and her kids." He then left with the bag. The next morning, Brown saw defendant in the basement. He was mopping up blood on the floor. Defendant told her to go back upstairs "or else."
¶ 19 Several weeks later, police officers took Brown to a police station and separated her from Johnson. She told them everything she knew about what happened to Harris. Afterwards, the police took her and Johnson back to the house. Officers searched the house and found a mask. She told the officers it was the mask she had seen defendant wearing on December 15, 1996.
¶ 20 On cross-examination, Brown agreed that she did not tell the police and an assistant state's attorney that the screaming stopped after she heard a loud sound but, rather, related to them that she heard the dogs barking and "all of a sudden, the screaming stopped." Brown also acknowledged that in her grand jury testimony, she stated that Harris was screaming, defendant went to the basement, and "then a couple of minutes later, it stopped." In court, Brown maintained that she had heard a loud sound. She did not tell any of the adult supervisors at the group home where she was living anything about Harris. She agreed that she had talked with Johnson about coming to court, but denied that she talked with Johnson about what her testimony would be.
¶ 21 On re-direct examination, Brown explained that she did not tell anyone about what happened to Harris because she was scared of defendant. She further stated that she was afraid of defendant "[b]ecause of what he used to do to my mother."
¶ 22 Mary Uckerman, the medical examiner who performed Harris's autopsy, testified that the cause of death was a gunshot wound that entered her chin and exited her forehead. Other external injuries included a laceration on her left leg, several pressure abrasions on the front of her chest and knees, and burned skin on her ears, forehead, chin, and neck. Uckerman noted multiple fractures to the bones of Harris's face, which she agreed possibly could have occurred "by way of blunt force trauma at or about the same time as the gunshot wound." She also agreed that the leg laceration was consistent with blunt force trauma.
¶ 23 On cross-examination, Uckerman agreed that she did not indicate anything about blunt force trauma in her autopsy notes. She clarified that the pressure abrasions she noted had resulted from the way Harris's body was resting on the grill. Further, Uckerman agreed that the leg laceration was five eighths of an inch long; that Harris had no broken ribs, arms, legs, toes, or fingers; that Harris's neck was intact; and that Harris had long, clean fingernails.
¶ 24 On re-direct, Uckerman explained that Harris's skull had multiple comminuted fractures, that is, it was fractured on more than three sides. She again agreed that it was possible the fractures to the bones of Harris's skull occurred from blunt force trauma just prior to the gunshot wound. She also agreed that the "huge injury to the exit wound *** also could cause the comminuted fractures."
¶ 25 Chicago police officer John Naujokas, a forensic investigator with the mobile crime laboratory, testified that he was assigned to process the scene outside for fingerprints on January 29, 1996. He did not find any fingerprints on the grill. The next day, when he returned to photograph the inside of the house, he did not observe any blood on the stairwells or in the basement during his visual inspection.
¶ 26 The parties stipulated that James Tracy, an expert in firearm identification, examined an object taken from Harris's body and determined it to be a lead fragment, not suitable for comparison. The parties also stipulated that Jerry Karlic, an employee of the Chicago police department's latent fingerprint development unit found no fingerprints on the lighter fluid container or metal bars cut from the grill.
¶ 27 Chicago police detective Phil Pesavento testified that he was assigned to the case on January 29, 1996. When he arrived at the house, he saw a woman's body inside an oil drum that had been converted into a barbecue pit. While he was at the scene, the fire department arrived and removed the body. Pesavento learned that a missing person's report had been filed on Harris, who lived at that address, and notified her brother. The brother came to the scene, examined the body, and said that it was Harris, but could not be positive because of the injuries to the face. Pesavento next located Johnson, who gave him names of three of Harris's friends. Johnson and the friends were transported to the station and interviewed. Johnson told Pesavento that she had information concerning Harris's death and gave a statement implicating defendant in the murder.
¶ 28 The next day, Pesavento located Brown and brought her and Johnson to the police station, where they were separated. After talking to Brown, Pesavento called an assistant state's attorney, who took statements from both Johnson and Brown. After the statements, Pesavento took Johnson and Brown back to the scene and searched the house again based on the information they had provided. A black ski mask was recovered, which Brown and Johnson identified as the one defendant wore on the night of the murder.
¶ 29 Pesavento interviewed defendant at the police station on February 16, 1996. After advising defendant of his Miranda rights, Pesavento told defendant that he had already spoken with Brown and Johnson concerning the events of December 15, 1995. Defendant replied that he did not remember killing Harris or telling Brown and Johnson that he had, but did remember arguing with Harris often. He then asked to speak to an assistant state's attorney, so Pesavento ended the interview and called for one.
¶ 30 Assistant State's Attorney Sharon Opryszek testified that on February 16, 1996, she received a call concerning a homicide investigation and spoke with defendant, who had specifically requested to speak with an assistant state's attorney. After being advised of his Miranda rights, defendant told her that he did not remember telling either Brown or Johnson that he was going to kill Harris, but that that did not mean he did not say it, only that he did not remember. Defendant also said that he drank alcohol every day and that he did not like Harris because she was "always messing with him and his family's life." Defendant said he was sorry for putting his family through "all of this," that he had not been able to sleep "since this happened," and that "sometimes the devil makes you do certain things." Finally, he told Opryszek, "I am not going to admit that I did it but I am not going to say I didn't, you have my family's statements." Defendant then terminated the interview.
¶ 31 On cross-examination, Opryszek admitted that she did not take any notes during her interview with defendant. She also agreed that she had some knowledge of the case before she spoke with defendant and that she focused the conversation on the date Harris was killed.
¶ 32 For the defense, Andrea Marshall, a caseworker who worked as a liaison between families and the Department of Children and Family Services (DCFS), testified that she was assigned to work with Johnson and her children on October 21, 1995. She visited the family two or three times a week, but never saw defendant or any evidence that a man lived in the house. Marshall explained that her agency was planning to pay for childcare services for the family. To that end, Johnson was tasked with finding someone able to care for the children, and she submitted Harris's name. On December 18, 1995, Johnson and Harris were supposed to meet with Marshall and two caseworkers from DCFS regarding the childcare situation, but Johnson arrived at the meeting with someone else. Marshall did not learn that Johnson was married until June 1996.
¶ 33 The jury found defendant guilty of first degree murder and concealment of a homicidal death. The trial court found the murder was committed in a brutal and heinous manner and sentenced defendant to concurrent terms of 80 and 5 years in prison, respectively.
¶ 34 On direct appeal, defendant challenged the sufficiency of the evidence, arguing that Johnson and Brown were unreliable and unbelievable witnesses. We affirmed. People v. Linzy, No. 1-97-0410 (1998) (unpublished order under Illinois Supreme Court Rule 23).
¶ 35 In 1999, defendant filed a pro se petition for postconviction relief under the Act, alleging, among other things, that his trial counsel was ineffective for failing to object to post-mortem photographs of Harris being published to the jury, and that his appellate counsel was ineffective for failing to raise the claim on direct appeal. The circuit court appointed counsel, who, in 2001, filed a supplemental petition raising a sentencing claim based on Apprendi v. New Jersey, 530 U.S. 466 (2000). The State filed a motion to dismiss, which the circuit court granted. On appeal, defendant contended that he made a substantial showing of ineffective assistance of trial and appellate counsel and that his mittimus should be amended to reflect the correct amount of presentence custody credit. We ordered an amended mittimus and affirmed, concluding that, "in light of the overwhelming evidence of defendant's guilt," the result of the trial would not have been different even if the photographs had not been published to the jury. People v. Linzy, No. 104-2060 (2006) (unpublished order under Illinois Supreme Court Rule 23).
¶ 36 In 2007, defendant filed a pro se pleading he titled "Petition for Post-Conviction, Section 2-1401, and Void Judgment Relief," citing the Act and section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2006)). In the pleading, he argued that the murder and sentencing statutes were unconstitutionally vague. The circuit court, characterizing the pleading as a successive post-conviction petition, "denied" it as patently without merit. On appeal, we granted appointed counsel's motion to withdraw pursuant to Pennsylvania v. Finley, 481 U.S. 551 (1987), and affirmed. People v. Linzy, No. 1-07-1477 (2008) (unpublished order under Illinois Supreme Court Rule 23).
¶ 37 On April 18, 2022, defendant filed the pleading at issue in this appeal, a successive pro se postconviction petition. In the petition, he asserted, in relevant part, a claim of actual innocence based on "an exculpatory affidavit by a newly discovered eyewitness to the commission of a murder by someone other than [defendant]." Defendant argued that "until just recently," he was unaware that there was an eyewitness to Harris's murder and, therefore, he could not have discovered the witness sooner.
¶ 38 Defendant supported his petition with an affidavit signed by a person with the first name Anton and a last name that the parties agree is indecipherable but the circuit court conjectured was "Kanernov." In the affidavit, Anton averred that at about 12 p.m. on December 15, 1995, in the "rear" of the house in question, he "saw Michael Groves drag a woman, named Doris Harris, to a barbecue grill, at which time he stuffed her body face down into the barbecue grill." Anton did not see anyone else in the area. He stated he was coming forward now because notices posted by Reverend Eugene Horton had recently come to his attention. Anton contacted Horton, who instructed him to look at a photograph of defendant on the Illinois Department of Corrections website. Anton did so and then informed Horton that defendant was "not the man [he] saw forcing Doris Harris into the barbecue grill."
¶ 39 Defendant also attached several letters with the letterhead "Men and Women in Christ, Assn.," listing Horton as chairman. The letters describe the association as a not-for-profit corporation seeking "executive clemency relief' for defendant, "a terrorized community resident."
¶ 40 On May 2, 2022, the circuit court denied defendant leave to file the successive petition. The court characterized the supporting affidavit from Anton as bare-bones and incomplete, stating as follows:
"I need a lot more information about who Michael Groves-who this person is, who the affiant is and how he-what more he can say about this matter, a lot more about Michael Groves and how he knows who Michael Groves is, when this came to his attention, who Reverend Horton is.
There are a lot more details that are missing other than this very bare-bones claim that he has made."
¶ 41 Defendant filed a timely notice of appeal.
¶ 42 On appeal, defendant contends that leave to file the successive petition should have been granted because he presented evidence of actual innocence in the form of an affidavit that was newly discovered, material, and noncumulative, and that placed the trial evidence in a different light while undermining confidence in the jury's verdict.
¶ 43 The Act contemplates the filing of only one postconviction petition. People v. Edwards, 2012 IL 111711, ¶ 22. However, our supreme court has provided two bases upon which the bar against successive proceedings may be relaxed. Id. The first basis is when a defendant establishes "cause and prejudice" for failing to raise the claim earlier. Id. The second is the "fundamental miscarriage of justice" exception, under which the defendant must show actual innocence. Id. ¶ 23. When a defendant claims actual innocence, the question is whether his petition and supporting documentation set forth a colorable claim; that is, whether they raise the probability that it is more likely than not that no reasonable juror would have convicted him in light of the new evidence. Id. ¶¶ 24, 31, 33. The evidence supporting the claim of actual innocence must be (1) newly discovered; (2) material and not merely cumulative; and (3) of such conclusive character that it would probably change the result on retrial. Id. ¶ 32. The conclusiveness of the evidence is the most important element of an actual innocence claim. People v. Sanders, 2016 IL 118123, ¶ 47. We review the denial of leave to file a successive postconviction petition de novo. People v. Robinson, 2020 IL 123849, ¶ 40.
¶ 44 Here, we need not determine whether Anton's affidavit is newly discovered, material, or noncumulative. This is because we find that defendant's proposed new evidence is not conclusive. ¶ 45 The element of conclusiveness contemplates whether the proposed new evidence, when considered along with the trial evidence, would probably lead to a different result on retrial. People v. Coleman, 2013 IL 113307, ¶ 96. Our supreme court examined this element in detail in Robinson, 2020 IL 123849, a case involving the leave-to-file stage where the defendant had presented newly discovered evidence of actual innocence.
¶ 46 In Robinson, our supreme court clarified that there is no requirement that the new evidence be entirely dispositive or support total vindication or exoneration in order to be likely to alter the result on retrial. Id. ¶¶ 48, 55-56. "Rather," the Robinson court explained, "the conclusive-character element requires only that the petitioner present evidence that places the trial evidence in a different light and undermines the court's confidence in the judgment of guilt." Id. ¶ 56. Probability, not certainty, is key in determining whether the fact finder would reach a different result after considering the trial evidence along with the new evidence. Id. ¶ 48. Leave to file should be granted where the supporting documentation raises the probability that it is more likely than not that no reasonable juror would have convicted the defendant in light of the new evidence. Id. ¶¶ 44, 50. Prior to third-stage proceedings, all well-pled allegations in the petition and its supporting affidavits that are not positively rebutted by the trial record are to be taken as true, and the court is precluded from making factual and credibility determinations. Id. ¶¶ 45, 61.
¶ 47 Defendant argues that Anton's affidavit is so conclusive that it is likely to change the result on retrial. He contends that the State's case was not "airtight" where it consisted largely of the "biased testimonies" of Johnson and Brown, Harris's injuries were inconsistent with her having been dragged down two flights of stairs, and his own statements about the incident were not detailed or specific. He argues that where no physical evidence linked him to the murder, his conviction rested heavily on the testimony of Johnson and Brown, neither of whom witnessed the murder or actually saw him harm Harris.
¶ 48 Defendant asserts that Johnson's testimony in particular "should be called into question" because she had a motive to lie where the police told her that keeping her children depended on her talking to the police. When considering the trial evidence in light of Anton's affidavit, defendant argues, the affidavit raises the probability that it is more likely than not that no reasonable juror would have convicted him had the jury known the information it contained. He concludes that, where Anton directly refuted the State's theory that defendant killed Harris and disposed of her body, his affidavit places the trial evidence in a different light and undermines the court's confidence in the judgment of guilt. We disagree.
¶ 49 Here, as we observed twice in our decision affirming the dismissal of defendant's first postconviction petition, the evidence of defendant's guilt was overwhelming. See People v. Linzy, No. 1-04-2060, slip op. at 5, 6 (2006) (unpublished order under Illinois Supreme Court Rule 23). Johnson and Brown testified that defendant came into Johnson's bedroom, said he was going to kill Harris, and locked them in. They heard him go upstairs to the attic, argue with Harris, and drag her down the stairs to the second floor. Then, defendant, who was holding a bat and a metal pipe, stopped at Johnson's room, took her phone from her, locked them in again, and dragged Harris down more stairs while she screamed. About an hour later, defendant returned to Johnson's bedroom with blood on his clothes, carrying Harris's nightgown. He put his clothes, the nightgown, the bat, and the pipe into a garbage bag. Johnson asked him if he killed Harris. According to Johnson, he said, "[W]e killed her" and, "We smashed her head in," and also said that he had beat Harris, burned her, and put her in the barbecue grill. According to Brown, he said, "[W]e smashed her head in, we're going to burn her," and that he was going to put Harris in the grill. Brown subsequently saw defendant mopping up blood in the basement, and Harris's body was later found inside a drum-style grill in the back yard.
¶ 50 Nothing in Anton's affidavit contradicts Johnson's and Brown's testimony. Anton averred that he saw a man named Michael Groves-who was not defendant-drag Harris to the barbecue grill and "stuff" her body inside, and that he did not see anyone else in the area. Even taking Anton's affidavit as true, which we must, it does not conflict with Johnson's and Brown's version of events. Rather, Anton's averments add to the narratives presented by Johnson and Brown.
¶ 51 Both Johnson and Brown testified that defendant spoke in the plural when he told them about killing Harris. Brown stated that defendant said, "[W]e smashed her head in, we're going to burn her." Similarly, Johnson testified on direct examination that defendant said, "[W]e killed her." When asked for clarification on cross-examination, Johnson reiterated that defendant used the pronoun "we," agreed that he said, "We smashed her head in," and agreed that defendant "was talking about more than just him." Anton's affidavit adds to Johnson's and Brown's testimony by providing a possible identity of a person who comprised part of the "we" of defendant's statements to them regarding events that happened out of their earshot. Moreover, while Anton averred that he did not see anyone else "in the area," he provided no information as to the length of time he observed the back yard, and he did not witness anything that happened inside the house. In short, his averments do not conflict with the evidence presented at trial but, instead, provide a more complete picture of the crime.
¶ 52 We cannot say Anton's affidavit raises the probability that it is more likely than not that no reasonable juror would have convicted defendant in light of the new evidence, or that it is probable that a fact finder would reach a different result after considering the prior evidence along with the newly discovered evidence. See Robinson, 2020 IL 123849, ¶¶ 44, 48, 50. That is, Anton's affidavit does not place the trial evidence in a different light or undermine our confidence in the finding of guilt. See id. ¶¶ 48, 56. Defendant has not presented a colorable claim of actual innocence. See id. ¶ 44. Accordingly, the circuit court correctly denied defendant leave to file his successive petition.
¶ 53 For the reasons explained above, we affirm the judgment of the circuit court.
¶ 54 Affirmed.