2021 IL App (1st) 200040 No. 1-20-0040 Opinion filed December 22, 2021
THIRD DIVISION
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Cook County. ) Plaintiff-Appellee, ) ) v. ) No. 08 CR 16890 ) MARK ANDERSON, ) The Honorable ) Diana L. Kenworthy, Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Burke concurred in the judgment and opinion.
OPINION
¶1 Defendant Mark Anderson appeals the denial of his motion for leave to
file a successive postconviction petition. No. 1-20-0040
¶2 Defendant was convicted after a jury trial of first-degree murder and
aggravated discharge of a firearm and sentenced to a total of 51 years in the
Illinois Department of Corrections (IDOC).
¶3 On appeal, defendant argues that he set forth a colorable claim of actual
innocence based on the affidavits of two newly discovered witnesses who
identified Quentin Cooper as the person who shot and killed Darryl Hart and,
thus, the trial court erred in denying him leave to file his petition.
¶4 For the following reasons we reverse and remand to permit second-stage
proceedings.
¶5 BACKGROUND
¶6 This court has described the evidence at trial in detail in three prior
decisions, and we incorporate those decisions here by reference. People v.
Anderson, 2012 IL App (1st) 103288, ¶¶ 5-22; People v. Anderson, 2015 IL
App (1st) 140131-U, ¶¶ 3-15; People v. Anderson, 2017 IL App (1st) 143538-
U, ¶¶ 4- 20, 22.
¶7 The State’s evidence at trial established that Darryl Hart was shot and
killed shortly after 2 a.m. outside of a sub shop, as the result of a conflict
regarding who had the right to sell drugs there. At 2 a.m. on July 25, 2008,
defendant entered the sub shop with two friends, Centrell Jackson and Quentin
2 No. 1-20-0040
Cooper. The conflict with Hart began after Jackson sold two $10 bags of crack
cocaine on what Hart believed was his turf.
¶8 At trial, the State called defendant’s friends, Jackson and Cooper, as well
as a bystander named Ozier Hazziez. Defendant’s presence at the crime scene
was confirmed by all three occurrence witnesses, as well as by fingerprint and
video evidence. In the present appeal, the two affidavits that defendant
submitted in support of his actual innocence also attest to defendant’s presence
at the crime scene. However, they aver that Cooper was the shooter, not
defendant. Thus, we focus here on the trial evidence concerning the identity of
the shooter, rather than the evidence establishing defendant’s presence at the
scene.
¶9 Hazziez, the bystander, was the only witness to testify at trial that
defendant was the one who shot Hart. Jackson testified that he did not observe
who shot Hart outside the sub shop because he (Jackson) was inside the shop at
the moment of the shooting. Cooper testified before a grand jury that defendant
shot Hart but recanted when on the witness stand at trial.
¶ 10 Hazziez testified that, after finishing his job as a hotel convention
worker, he went to the sub shop, arriving shortly after 2 a.m. on July 25, 2008.
A man, later identified as Hart, was talking on a cell phone inside the shop.
After Hazziez placed his food order, three men entered and also placed their
3 No. 1-20-0040
food order. One of the three men was a “tall, skinny man” who Hazziez
identified as defendant. Another man entered, and one of the three men sold the
new arrival drugs. (Jackson later testified that he was the one who sold the
drugs.)
¶ 11 Hazziez testified that Hart began arguing with the three men, saying:
“You don’t belong around here. This is my area.” Hart subsequently stepped
outside, followed by Hazziez, and then defendant. Cooper was also outside.
Hart and defendant continued to argue while outside, and Hart said: “You
might as well shoot me.” At this moment, Hart was 5 feet away from
defendant, and defendant was 10 feet away from Hazziez. Defendant shot Hart,
who fell to the ground. As Hazziez fled in his vehicle, he heard three more
shots. Hazziez testified that he did not observe a weapon on Hart.
¶ 12 Later, at a police station, Hazziez viewed two photo arrays. From the
first array, he identified Jackson as someone who was present at the shop.
Although the second photo array included defendant, Hazziez was unable to
identify anyone from that array as a person who was present at the sub shop.
Three weeks after the offense, Hazziez viewed a physical lineup, from which he
identified defendant as the shooter.
¶ 13 Detective Sylvia Vanwitzenburg testified that, while Hazziez viewed the
second array, Hazziez stated that one of the individuals “looked familiar,” but
4 No. 1-20-0040
Hazziez was not “one hundred percent sure.” Hazziez stated that he would be
able to identify the individual if he were to see him in person.
¶ 14 Jackson testified that he went to grade school and high school with
defendant. After Jackson, Cooper and defendant arrived at the sub shop on the
night of the murder, Jackson testified that he “got into an altercation” with Hart
because he (Jackson) sold two bags of crack cocaine, worth $20, on what Hart
believed was Hart’s “turf.” While Jackson was waiting at the counter for a
soda, he heard three or four shots fired. After a few minutes, he went outside
where he observed Hart lying on the ground. Jackson did not observe Hart with
a weapon. Defendant was not outside but Cooper was,1 and Jackson and
Cooper drove home together.
¶ 15 Like Jackson, Cooper testified that he had known defendant for years and
that the three of them (Cooper, Jackson and defendant) went to the sub shop on
the night of the offense. However, Cooper testified that “nothing happened”
while he was there. Cooper testified that there was no shooting and that he and
Jackson left with defendant.
¶ 16 After Cooper’s testimony, the State introduced a written statement signed
by Cooper, as well as his grand jury testimony. Cooper had previously stated
that defendant had reached around Cooper to shoot Hart and that defendant had 1 Both Jackson and Hazziez testified that Cooper, who defendant now asserts was the shooter, was outside during the time of the shooting. 5 No. 1-20-0040
also fired at “another guy.” At trial, Cooper testified that he signed the
statement and testified before the grand jury because a detective told him that
he would be charged with the murder if he did not cooperate. The State called a
Chicago police detective who had spoken with Cooper, an assistant State’s
attorney (ASA) who had recorded Cooper’s statement, and the ASA who had
presented Cooper before the grand jury; and they all testified that they had not
coached or threatened Cooper.
¶ 17 The State’s evidence established that a jacket recovered from the scene
contained a cigarette with defendant’s fingerprint. The parties stipulated that the
cuffs of the jacket were tested for gunshot residue and that the tested areas
“may not have been in the environment of a discharged firearm.”
¶ 18 At trial, defendant exercised his right not to testify or call witnesses.
¶ 19 On August 18, 2010, a jury found defendant guilty of the first-degree
murder of Hart, the attempted first-degree murder of Hazziez, and the
aggravated discharge of a firearm. The trial court merged the aggravated
discharge of a firearm conviction with the attempted murder conviction. On
October 8, 2010, defendant was sentenced to a total of 71 years, which
included: 20 years for the first-degree murder with a 25-year firearm
enhancement, and a consecutive 6-year sentence for the attempted murder, with
a 20-year firearm enhancement. Defendant appealed, and this court reversed
6 No. 1-20-0040
the attempted murder conviction and remanded for a new trial on just that
charge. Anderson, 2012 IL App (1st) 103288, ¶ 67. Instead, the State nol-
prossed that charge on remand, and the trial court resentenced defendant to a
total of 51 years.
¶ 20 Defendant’s first postconviction petition alleged ineffective assistance of
counsel and was dismissed at the first stage. The dismissal was affirmed on
appeal in an unpublished order. Anderson, 2017 IL App (1st) 143538-U, ¶ 1.
¶ 21 On August 15, 2019, defendant sought to file a successive pro se
postconviction petition with three affidavits attached. The three affidavits were
from: (1) defendant; (2) Michelle Minniefield, and (3) Jason Burns.
¶ 22 Defendant’s affidavit, dated May 24, 2019, averred “that I did not shoot
and kill Darryl Hart on July 25, 2008[,] and that I’m innocent.”
¶ 23 Minniefield’s affidavit, dated January 4, 2018, also asserted: “he’s
innocent.” Specifically, her affidavit averred:
“On July 25, 2008[,] at approximately 2 a.m. I was coming from my
friend’s house with another friend of mine. We were walking out
towards 71st and Jeffrey to catch the bus and as we were walking I seen
[sic] several men standing in front of Orbitz Submarine Shop. As I got
closer I then noticed [defendant] and his friend Centrell [Jackson] from
around the neighborhood. I didn’t like [defendant] to[o] much because
7 No. 1-20-0040
him [sic] and my brother had several altercations. So as we were about
to walk past one of the guys that was out there[,] a dark heavy[-]set guy
whom I also seen [sic] from the neighborhood pull[ed] out a gun and shot
one of the men in front of the store. I instantly turned around and ran in
the opposite direction. I never talked to the police because I really didn’t
want to get involved in the situation. Then one day I had heard from a
friend that [defendant] was in jail for the shooting that I had seen that
night. I [am] writing to help [defendant] because I know he’s innocent of
this crime. That’s why I am now coming forward to help him.”
¶ 24 Like Minniefield, Burns also averred that a heavy-set man was the
shooter but Burns identified the shooter by name as Quentin Cooper. Burns’
affidavit, dated April 2, 2018, stated:
“On July 25th, 2008, I (Jason Burns) was visiting my girlfriend’s
friend on 71st & Euclid when I decided to go to the restaurant across the
street[,] Orbitz Sub Shop. As I walked outside I noticed [defendant]
Mark Anderson whom I had a previous altercation with standing in front
of the restaurant with 3 other men[2] so I decided to wait for the crowd to
2 Burns does not identify the “3 other men” who defendant was standing with. Later in his affidavit, Burns avers that Quentin Cooper shot one of the men, thereby apparently accounting for two of the three men: (1) Cooper; and (2) the victim. However, the third man remains unidentified in Burns’ affidavit, although 8 No. 1-20-0040
clear[,] not wanting another altercation. While standing in front of the
building waiting on the crowd to clear[,] I saw [defendant] walk inside
the restaurant & a few minutes after he exited[,] a heavy[-]set dark[-
]skinned man who I also know to be Quentin Cooper pulled out a gun &
shot one of the men that was out there with them. He also shot 2 or 4
additional times in the direction of [defendant] & the other guy that was
with them. I went back inside the building & even though I saw the
incident that occurred, did not contact the police because I did not want
to get involved. A couple [of] months later[,] I heard that [defendant]
had been locked up for the shooting. Although I did not see [defendant]
shoot anybody[,] I did not contact the police due to the fact that at the
time [defendant] & I were dating the same girl who we had a verbal &
physical altercation over & we did not like each other. Because of this[,]
I felt there was no reason to come forward. It wasn’t until I recently
received 35 year[s] for 1st degree murder & I talked to & saw [defendant]
that I decided to come forward.”
¶ 25 Referring to Minniefield’s and Burns’ affidavits, defendant’s motion for
leave to file asserted: “Both newly discovered affidavits support [defendant’s]
claim of actual innocence.” However, defendant’s petition argued: “Affidavits
Burns does aver that, after Cooper shot the victim, Cooper shot “in the direction of” defendant and this “other guy that was with them.” 9 No. 1-20-0040
from Michelle Minniefield, Jason Burns and Charles Johnson all identify
another man as being the shooter.” Defendant’s brief to this court concedes that
there were, in fact, only two affidavits submitted from other witnesses. His
brief explains: “Though [defendant’s] motion refers to three affidavits, he did
not receive the third affidavit attesting to his innocence until after his motion
was filed.”
¶ 26 Although defendant’s motion and one-line affidavit asserted his actual
innocence, his petition set forth ineffectiveness claims, namely, the
ineffectiveness of his trial counsel for failing to obtain an expert witness
concerning eyewitness identifications, and the ineffectiveness of his appellate
counsel for failing to raise this issue on appeal. On the current appeal,
defendant has abandoned his ineffectiveness claims and argues only a claim of
actual innocence.
¶ 27 On November 1, 2019, the trial court issued a six-page order denying
defendant leave to file his petition. The order observed that defendant “filed the
instant post-conviction petition alleging ineffective assistance of trial counsel
and appellate counsel.” After examining both of these claims, the court found
that these claims did not merit leave to file. Since these claims are not at issue
on this appeal, there is no need to reiterate the trial court’s reasoning here.
10 No. 1-20-0040
¶ 28 On November 27, 2019, defendant placed a pro se notice of appeal in the
institutional mail of his prison, and the notice was received and filed by the trial
court on December 9, 2019. In a written order dated December 20, 2019, the
trial court found that defendant’s notice of appeal was “timely per proof of
service,” and this appeal followed.
¶ 29 ANALYSIS
¶ 30 I. An Actual Innocence Claim
¶ 31 Defendant submitted his petition pursuant to the Post-Conviction Hearing
Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)), which provides a statutory
remedy for criminal defendants who claim that their constitutional rights were
violated at trial. People v. Edwards, 2012 IL 111711, ¶ 21.
¶ 32 Although our supreme court has made clear that the Act contemplates
only one postconviction proceeding, “[n]evertheless, [the supreme] court has, in
its case law, provided two bases upon which the bar against successive
proceedings will be relaxed.” Edwards, 2012 IL 111711, ¶ 22. Those two bases
are: (1) cause and prejudice and (2) actual innocence. Edwards, 2012 IL
111711, ¶¶ 22-23. Thus, the bar against successive petitions is overcome if
defendant can (1) satisfy the Pitsonbarger cause and prejudice test (People v.
Pitsonbarger, 205 Ill. 2d 444, 459 (2002); 725 ILCS 5/122-1(f) (West 2018)) or
(2) show evidence of actual innocence. People v. Sanders, 2016 IL 118123,
11 No. 1-20-0040
¶ 24. Defendant, who is attempting to file a successive petition, has alleged only
¶ 33 The evidence supporting an actual-innocence claim must be (1) new,
(2) material and noncumulative, and (3) of such a conclusive character that it
would probably change the result on retrial. People v. Allen, 2015 IL 113135,
¶ 22; People v. Coleman, 2013 IL 113307, ¶ 96. “New means the evidence was
discovered after trial and could not have been discovered earlier through the
exercise of due diligence.” Coleman, 2013 IL 113307, ¶ 96.
¶ 34 “Material means the evidence is relevant and probative of the petitioner’s
innocence.” Coleman, 2013 IL 113307, ¶ 96. To be material, the evidence
“need not, standing alone, exonerate the defendant; rather, it must tend to
‘significantly advance’ his claim of actual innocence.” People v. Stoecker, 2014
IL 115756, ¶ 33 (quoting People v. Savory, 197 Ill. 2d 203, 213 (2001)).
“Noncumulative means the evidence adds to what the jury heard.” Coleman,
2013 IL 113307, ¶ 96. In the case at bar, the State concedes that defendant’s
proposed evidence is material and noncumulative. People v. Ortiz, 235 Ill. 2d
319, 335-36 (2009) (an eyewitness account that “directly contradicted the prior
statements of the two eyewitnesses for the prosecution” was material and
noncumulataive).
12 No. 1-20-0040
¶ 35 Conclusive means that the additional evidence, “when considered along
with the trial evidence, would probably lead to a different result.” Coleman,
2013 IL 113307, ¶ 96. “Probability, not certainty, is the key ***.” Coleman,
2013 IL 113307, ¶ 97. A piece of new evidence is conclusive if it “would
probably change the result on retrial, either by itself or in conjunction with”
other new evidence also presented by the petitioner. Sanders, 2016 IL 118123,
¶ 53; Coleman, 2013 IL 113307, ¶¶ 104-08 (considering together the statements
of all the new witnesses presented by the defendant). 3
¶ 36 II. Standard of Review
¶ 37 Defendant is first seeking leave of court to file his petition. “[L]eave of
court to file a successive postconviction petition should be denied only where it
is clear from a review of the petition and attached documentation that, as a
matter of law, the petitioner cannot set forth a colorable claim of actual
innocence.” Sanders, 2016 IL 118123, ¶ 24.
¶ 38 It is presumed that the new evidence will contradict the evidence of
defendant’s guilt at trial; otherwise “the purpose of the Act would be rendered
meaningless.” Robinson, 2020 IL 123849, ¶ 57. “For new evidence to be
3 Our supreme court has “specifically rejected the total vindication or exoneration standard” set forth in the lower court opinion of People v. Savory, 309 Ill. App. 3d 408, 415 (1999). People v. Robinson, 2020 IL 123849, ¶ 55 (citing Savory, 197 Ill. 2d 203, 213 (2001) (specifically rejecting the “complete vindication” standard set forth in the lower court’s opinion)). 13 No. 1-20-0040
positively rebutted” at the leave-to-file stage, “it must be clear from the trial
record that no fact finder could ever accept the truth of that evidence, such as
where” the trial record “affirmatively and incontestably demonstrate[s]” the
new evidence “to be false or impossible.” Robinson, 2020 IL 123849, ¶ 60. As
an example of what would rise to the level of false or impossible, the supreme
court cited a case where the new evidence asserted that the victim had been shot
only once, but the autopsy evidence at trial established that he had been shot
multiple times. Robinson, 2020 IL 123849, ¶ 59 (discussing Sanders, 2016 IL
118123, ¶ 59).
¶ 39 Once leave to file a successive petition is granted, the petition is docketed
for subsequent second-stage proceedings. Sanders, 2016 IL 118123, ¶ 28.
Thus, at this earlier leave-to-file stage, the petition does not have to make the
“substantial showing” that will later be required at a second-stage hearing, after
counsel has been appointed. Robinson, 2020 IL 123849, ¶ 58.
¶ 40 When no evidentiary hearing has been held, as in the case at bar, a
reviewing court’s standard of review is de novo. Sanders, 2016 IL 118123,
¶ 31; see also Robinson, 2020 IL 123849, ¶¶ 38-39 (“the denial of leave to file a
successive postconviction petition premised on a claim of actual innocence” is
de novo). De novo consideration means that we perform the same analysis that a
14 No. 1-20-0040
trial judge would perform. People v. Carrasquillo, 2020 IL App (1st) 180534,
¶ 107.
¶ 41 As an initial matter, the State asserts that defendant’s pro se petition
failed to assert an actual innocence claim. We do not find this argument
persuasive because, first, the sole point of defendant’s one-line affidavit is to
assert his actual innocence. Second, the sole purpose of his two supporting
affidavits is to assert defendant’s innocence and support his actual innocence
claim. Third, his motion for leave to file argues: “Both newly discovered
affidavits support [defendant’s] claim of actual innocence.” Fourth, since our
review is de novo, we owe no deference to the trial court, and we perform the
same analysis that the trial court would have done, if it had examined this
claim. Carrasquillo, 2020 IL App (1st) 180534, ¶ 107. Thus, we proceed to
consider defendant’s actual innocence claim. Carrasquillo, 2020 IL App (1st)
180534, ¶ 107.
¶ 42 III. Conclusive
¶ 43 Since the “conclusive character of the new evidence is the most
important element of an actual innocence claim,” we address it first. Robinson,
2020 IL 123849, ¶ 47.
¶ 44 We must accept the averments in the proposed affidavits as true, unless
“no fact finder could ever accept the truth of that evidence,” such as where an
15 No. 1-20-0040
affiant asserts the victim was shot only once and the autopsy report establishes
that he died from multiple gunshot wounds. Robinson, 2020 IL 123849, ¶ 60.
“Credibility findings” and determining whether a witness is “reliabl[e]” may
not be made at this stage but must wait for a third-stage evidentiary hearing.
Robinson, 2020 IL 123849, ¶ 61.
¶ 45 A. Minniefield’s Affidavit
¶ 46 Minniefield’s affidavit avers that she and a friend were walking toward
the corner of 71st Street and Jeffrey Boulevard, in order to “catch” a bus.
Jefferson Boulevard is a north-south street, and 71st Street is an east-west
street, and the sub shop where the crime occurred is on 71st Street, just west of
the intersection. If Minniefield was walking toward the intersection, as she
avers, and “about to” pass the shop, as she also avers, then she was walking east
on 71st Street.
¶ 47 Minniefield avers, as she was walking, she observed several men
standing in front of the sub shop. She avers that, as she drew closer to the shop,
in her walk toward the bus stop, she was able to observe defendant and Jackson.
When she arrived in the point in her walk when she was “about to walk past”
the shop, she witnessed the shooting “in front of the store.” The shooter was
not defendant but “a dark heavy[-]se guy,” who she also knew from the
16 No. 1-20-0040
neighborhood. When the shooting began, she “instantly turned around and ran
in the opposite direction,” which would have been west on 71st Street.
¶ 48 The State argues that none of the other evidence at trial indicates that a
woman and another person walked past the sub shop at any point before, during
or after the shooting. However, this argument mischaracterizes Minniefield’s
affidavit. She did not aver that she walked past the shop; rather, she averred
that she was “about to” walk past it but, when the shooting occurred, she
instantly turned around and ran in the opposite direction.
¶ 49 The State argues that Minniefield averred that Jackson was outside the
shop during the shooting, while all the other evidence at trial established that he
was inside the shop when shots were fired. Again, this argument
mischaracterizes Minniefield’s affidavit. Minniefield’s affidavit indicates that,
as she was walking east, she observed Jackson outside the shop. As she
continued walking and drew even closer, the shooting occurred. She does not
aver that Jackson was outside the shop at the moment the shots were fired.
¶ 50 B. Burns’ Affidavit
¶ 51 Burns avers that he was visiting a friend who lived near the corner of
71st Street and Euclid Avenue. This corner is almost directly across the street
from the sub shop, and Burns averred that he decided to go to the sub shop
“across the street.” However, when Burns walked outside, he observed
17 No. 1-20-0040
defendant standing outside the shop with three other men, and he decided to
wait “for the crowd to clear.” While waiting across the street, Burns observed
defendant walk inside the shop and exit it again. Burns was paying particular
attention to defendant because Burns had previously had an “altercation” with
defendant. Defendant was the reason that Burns had decided to wait, rather
than cross the street to the shop. A few minutes after defendant exited the shop,
Burns observed “a heavy[-]set dark[-]skinned man,” whom Burns knew to be
Quentin Cooper, pull out a gun and shoot another man. Cooper also shot two or
four times in the direction of defendant and another man who was also out
there. After the shooting, Burns “went back inside” the building that he had
just exited.
¶ 52 The State argues that the evidence at trial establishes that the second
person whom the shooter aimed at was not defendant but Hazziez, thereby
contradicting Burns’ affidavit. This argument flies in the face of a prior opinion
by this court, where we overturned defendant’s conviction for the attempted
murder of Hazziez. Anderson, 2012 IL App (1st) 103288, ¶ 67. We overturned
defendant’s conviction because the jury instruction regarding this offense was
confusing and “the evidence regarding whether defendant fired the gun in the
direction of Hazziez was closely balanced.” Anderson, 2012 IL App (1st)
103288, ¶ 66. We found that a reversal was required where “the jury could
18 No. 1-20-0040
have found that defendant attempted to kill, and then succeeded in killing Hart,”
rather than attempting to kill someone else. Anderson, 2012 IL App (1st)
103288, ¶ 66. An argument that the evidence establishes a fact, when we
reversed, in part, due to close evidence on just that fact, is not a persuasive
argument.
¶ 53 C. Other Evidence at Trial
¶ 54 If Burns’ and Minniefield’s affidavits are believed, as we must do at this
early stage, they would provide two eyewitnesses that Cooper was the shooter,
not defendant. Both Jackson and Hazziez testified that Cooper was outside the
shop at the time of the shooting. In his written statement, Cooper claimed that
defendant actually had to reach around him in order to shoot Hart. However,
the forensic evidence introduced by the State at trial indicated that defendant’s
jacket “may not have been in the environment of a discharged firearm.”
¶ 55 The State had two eyewitnesses to the murder: the bystander, Hazziez,
who was initially unable to identify defendant as the shooter; and the recanting
Cooper, who testified at trial that “nothing happened” while he was there. At
trial, Cooper testified that he arrived with defendant and left with defendant,
and that no shooting occurred at all.
¶ 56 “[T]he conclusive character element requires only that the petitioner
present evidence that places the trial evidence in a different light and
19 No. 1-20-0040
undermines the court’s confidence in the judgment of guilt.” Robinson, 2020
IL 123849, ¶ 56. If believed, these two new eyewitnesses place the trial
evidence in an entirely different light.
¶ 57 IV. Newly Discovered
¶ 58 Next, we examine whether the evidence was newly discovered, since the
State concedes that the affidavits are material and noncumulative.
¶ 59 Before we examine the affidavits themselves, we observe that the State
argues for an outdated definition of “newly discovered” that our supreme court
has affirmatively rejected. The State cites People v. Barnslater, 373 Ill. App.
3d 512, 523 (2007), and related cases for the proposition that it is the facts that
must be newly discovered rather than the evidence of those facts. The State
argues that,“[s]ince defendant was present during the shooting, the identity of
the shooter was known to him” and, thus, this fact is not newly discovered.
However, our supreme court has found that an affidavit is still newly
discovered, even when the defendant knew of the witness earlier and knew what
facts the witness could testify to, if no amount of due diligence could have
forced that witness to come forward and swear to those facts earlier. Edwards,
2012 IL 111711, ¶ 38; People v. Fields, 2020 IL App (1st) 151735, ¶ 48.
20 No. 1-20-0040
¶ 60 For evidence to be newly discovered, it must be that the evidence “could
not have been discovered earlier through the exercise of due diligence.”
Coleman, 2013 IL 113307, ¶ 96.
¶ 61 The State argues that, since defendant was present, he must have known
who was also present. Burns avers that he was waiting in front of a building
across the street, when he witnessed the shooting. This court may take judicial
notice of the fact that 71st Street is a major thoroughfare, with double train
tracks running down the center of it. Burns avers that, after the shooting, he
“went back inside” the building that he had just exited.
¶ 62 The State does not explain why defendant would have been scanning the
other side of a wide thoroughfare, or how defendant could have observed Burns
immediately after the shooting, when Burns averred he ducked back inside a
building. Similarly, the State does not explain why defendant would have taken
note of Minniefield, who had not yet walked past the shop, and who, like Burns,
immediately turned and fled.
¶ 63 If an unknown, unobserved and unrecorded witness chooses not to come
forward, there is no amount of due diligence that can force him or her to come
forward to “get involved.” See Fields, 2020 IL App (1st) 151735, ¶ 48.
Minniefield avers that she did not contact the police because she “really didn’t
want to get involved.” She explained that she was “now coming forward”
21 No. 1-20-0040
because she heard that defendant was in jail for the shooting, and she wanted to
help him because she knew he was innocent.
¶ 64 Like Minniefield, Burns avers that he did not contact the police “because
[he] did not want to get involved.” A couple of months after the shooting, Burns
learned that defendant had been arrested for the shooting but Burns did not
contact the police because “at the time [defendant] & I were dating the same
girl,” and Burns and defendant had “a verbal & physical altercation over” her.
Because of this, Burns did not like defendant and “felt there was no reason to
come forward.” However, Burns “recently” talked to defendant and “decided to
come forward.”
¶ 65 “If ‘no amount of [due] diligence by defendant could have compelled
[the witness] to testify to the statements in his affidavit’ at trial, then the
affidavit constitutes newly discovered evidence.” Fields, 2020 IL App (1st)
151735, ¶ 48 (quoting People v. White, 2014 IL App (1st) 130007, ¶ 22). In the
case at bar, where the two new eyewitnesses did not previously admit to
witnessing the shooting, where it is unlikely that defendant or others would
have observed or noticed them, and where they insured their anonymity by their
immediate flight from the scene, we find that defendant has satisfied the low
bar at this stage for alleging newly discovered evidence. See Ortiz, 235 Ill. 2d at
334 (eyewitness was newly discovered where he previously “did not admit to
22 No. 1-20-0040
*** having witnessed the incident,” where he “would not have been seen by
defendant,” and where he left the area).
¶ 66 CONCLUSION
¶ 67 Where defendant has satisfied the very low bar at this stage for two of the
three requirements, and the State has conceded the third, we must reverse and
remand for docketing of this petition to permit second-stage proceedings to go
forward.
¶ 68 Reversed and remanded.
23 No. 1-20-0040
No. 1-20-0040
Decision Under Review: Appeal from the Circuit Court of Cook County, No. 08-CR- 16890; the Hon. Diana L. Kenworthy, Judge, presiding.
Attorneys James E. Chadd, Douglas R. Hoff, and Arianne Stein, of State for Appellate Defender’s Office, of Chicago, for appellant. Appellant:
Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique for Abraham, Brenda K. Gibbs, and Amy M. McGowan, Assistant Appellee: State’s Attorneys, of counsel), for the People.