Nos. 1-15-1735 & 1-17-2176, cons. Opinion filed September 30, 2020

FOURTH 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. 97 CR 23668(01) ) LEON FIELDS, ) The Honorable ) Arthur F. Hill, Jr., Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Lampkin and Burke concurred in the judgment and opinion.

OPINION

¶1 This consolidated appeal involves two successive postconviction petitions by

defendant Leon Fields, age 20, stemming from the same case. Defendant appeals from a

second stage dismissal of one petition and from the trial court’s denial of leave to file another

petition.

¶2 Defendant was convicted by a jury of first degree murder and attempted first degree

murder in connection with a shooting on July 19, 1997, which resulted in the death of Derryl

Hood and a leg injury to Curtis Hood. Codefendant Rodney Toney, who opted for a Nos. 1-15-1735 & 1-17-2176 (cons.)

simultaneous bench trial, was acquitted. Defendant received consecutive sentences of 60

years and 20 years for first degree murder and attempted first degree murder, respectively.

¶3 Defendant’s successive petitions assert a claim of actual innocence. In support, he

attaches the affidavits of two witnesses, Renee Fitzgerald and Crystal Johnson, who averred

that he was not one of the shooters. Fitzgerald’s affidavit was attached to defendant’s first

successive petition, which was dismissed at the second stage; Johnson’s affidavit was

attached to his second successive petition, which defendant was denied leave to file.

¶4 For the following reasons, we reverse and remand for a third-stage evidentiary

hearing.

¶5 BACKGROUND

¶6 At trial, the State’s evidence included the testimony of two eyewitnesses, Deron

James and Curtis Hood, who identified defendant as one of the shooters. In addition, the

State presented other-crimes evidence showing that one of the guns used in the shooting

matched a gun used in an earlier, unrelated shooting of Michael Welch, who testified that

defendant shot him. The defense case included the testimony of an alibi witness, Mary

Taylor, and the testimony of defense investigators, Mort Smith and Felicia Smith, that Curtis

Hood had provided a pretrial statement recanting his prior identification of defendant to

police.

¶7 Defendant was tried with codefendant Rodney Toney in a severed but simultaneous

trial, where defendant was tried to a jury and Toney was tried to the court. The State’s

principal witnesses, Deron James and Curtis Hood, were both convicted felons and members

of the Four Corner Hustlers gang. Deron James was in a wheelchair as the result of an earlier

shooting.

2 Nos. 1-15-1735 & 1-17-2176 (cons.)

¶8 The State’s evidence established that on July 19, 1997, at 11:30 p.m., Derryl Hood, 1

Curtis Hood, and Deron James were standing in front of a nightclub on Madison Street in

Chicago, talking to Jimmie Johnson, when Curtis Hood turned around and said, “Look out,”

there is “Shorty Light Skin.” Curtis Hood testified that he observed five men, including

defendant, approaching with guns. “Shorty Light Skin” is defendant’s nickname. Derryl

Hood pushed James out of James’s wheelchair and onto the ground, immediately before the

shooting began. James testified that before Derryl Hood pushed him out of his wheelchair,

James observed defendant approaching. Curtis Hood ran and was shot in the leg. When

Curtis Hood turned, he observed defendant standing over Derryl Hood as defendant shot

Derryl Hood twice, once in the face and once in the neck. Similarly, James testified that he

observed defendant shoot Derryl Hood twice. Both Deron James and Curtis Hood identified

defendant as the shooter from a photo array the day after the shooting and from a lineup on

August 5, 1997. Derryl Hood subsequently died from his wounds.

¶9 Eight months after the shooting, Curtis Hood signed a statement recanting his

identification of defendant as one of the shooters. At trial, Curtis Hood testified that, on April

15, 1998, a man named Curtis Brown drove him, at gunpoint, to a McDonald’s restaurant,

where he met with defense investigator Mort Smith and Smith’s assistant, Felicia Smith.

Curtis Hood testified that Brown sat with him and held a gun against his side as he provided

his statement. The gun was concealed in a pocket. Curtis Hood conceded at trial that he did

not inform the defense investigators that Curtis Brown was holding a gun to his side.

1 Since both victims, Derryl and Curtis, share the last name of Hood, we will refer to them by both their first and last names. Since there is later testimony concerning a Curtis Brown, we cannot simply use first names. 3 Nos. 1-15-1735 & 1-17-2176 (cons.)

¶ 10 In his statement, which was admitted into evidence, Curtis Hood stated that he named

defendant as one of the shooters because he “had a beef” with defendant and wanted “to get

back” at him, but that defendant was not one of the shooters.

¶ 11 At trial, Curtis Hood recanted his pretrial statement to defense investigators. He

testified that, after he returned home from the McDonald’s restaurant, he called the police.

Detective Richard Maher testified that Curtis Hood paged him the following day, April 16,

1998. Curtis Brown was subsequently charged with witness intimidation and acquitted of that

charge.

¶ 12 Forensic investigator Carl Brasic, who was employed by the Chicago Police

Department, testified that he recovered a total of ten 9 mm. and five .380 cartridge casings

from the crime scene. Firearms examiner Lisa Peloza, who was employed by the Illinois

State Police at the time of the offense, 2 testified that, based on her examination of the

recovered firearm evidence, at least two separate 9 mm. handguns and one .380 caliber

handgun were involved in this shooting. Peloza further testified that a 9 mm. handgun used in

this shooting was also used in a prior shooting on January 11, 1997, involving a victim

named Michael Welch.

¶ 13 Michael Welch, a convicted felon, testified that on January 11, 1997, defendant shot

him twice and that, a year later, he identified defendant from a photo array and a lineup.

Defendant was subsequently acquitted for the Welch offense.

¶ 14 Peggy Green testified that she was present at the scene of the shooting with her friend

Renee Fitzgerald, but Green was unable to identify any of the shooters. Green testified that

2 At the time of trial, Peloza was working at the Central Regional Crime Laboratory in Phoenix, Arizona. 4 Nos. 1-15-1735 & 1-17-2176 (cons.)

Fitzgerald told her that Fitzgerald had “seen those people get shot.” However, the defense

objected to the hearsay, and the trial court sustained the objection. Green testified that a

police officer heard Fitzgerald telling Green “what had happened” and then the officer

“grabbed” them both and transported them to a police station. When Green was asked if she

knew where Fitzgerald was “today,” Green replied that Fitzgerald had “moved out of town.”

¶ 15 In its case, the defense first called defense investigators Mort Smith and Felicia

Smith, who had obtained Curtis Hood’s statement before trial. Mort Smith testified that he

knew Curtis Brown and that Curtis Brown was not present at the McDonald’s restaurant that

day. Felicia Smith testified that, when she and Mort Smith first arrived, Curtis Hood was

sitting in a booth next to an African American male, but that this man ordered some food and

left. Felicia Smith testified that Curtis Hood was relaxed while providing his statement.

¶ 16 Defendant’s last witness was Mary Taylor, an alibi witness. Taylor testified that she

was employed as a cargo agent with Globe Aviation, that there had been a basketball

tournament on Saturday, July 19, 1997, and that, after the tournament, she was on her porch

with her children and grandchildren and their friends, including defendant, from 10:30 p.m.

to 1 a.m.

¶ 17 After listening to the evidence, closing arguments, and jury instructions, a jury found

defendant guilty of first degree murder and attempted murder. After considering factors in

aggravation and mitigation, the trial court sentenced defendant to consecutive terms of 60

years and 20 years, for a total of 80 years with the Illinois Department of Corrections

(IDOC). This court affirmed his convictions and sentences on direct appeal. People v. Fields,

No. 1-00-2650 (Ill. Aug. 20, 2002) (unpublished order under Illinois Supreme Court Rule

23).

5 Nos. 1-15-1735 & 1-17-2176 (cons.)

¶ 18 On August 12, 2005, defendant filed his initial pro se postconviction petition alleging

Brady violations. See Brady v. Maryland,

(1963) (suppression by the

prosecution of evidence favorable to an accused violates due process, irrespective of the good

or bad faith of the prosecutor). Defendant alleged that the State failed to disclose that

Michael Welch received a $25,000 payment from the State’s Attorney’s Victim Witness

Assistance program. 3 This court affirmed the trial court’s first-stage dismissal of his petition

where the petition lacked supporting documentation. People v. Fields, No. 1-06-0006 (Ill.

Aug. 31, 2007) (unpublished order under Illinois Supreme Court Rule 23).

¶ 19 On October 25, 2011, defendant moved to file a pro se successive postconviction

petition alleging actual innocence. The trial court granted defendant’s motion to file, and his

counsel filed an amended petition supported by an affidavit by Fitzgerald. 4 In her affidavit,

Fitzgerald averred that, immediately prior to the shooting, she observed “four dark-skinned

adult men armed with guns” approaching the nightclub and that, “[a] few seconds” later, she

heard gunshots and ducked down. Once the shooting stopped, Fitzgerald retrieved her friend

Peggy Green from inside a nearby liquor store, and the two women returned to their vehicle.

After a bystander informed the police that Fitzgerald had observed the shooting, the police

placed both Fitzgerald and Green under arrest, handcuffing them and driving them to a police

station. The officers stated that they were being arrested for disorderly conduct, although

their conduct had not been disorderly. At the station, Fitzgerald was questioned by Detectives

3 On September 29, 1999, defendant filed a pretrial motion for disclosure, stating that he believed that funds had been disbursed to one or more of the State’s witnesses and seeking disclosure of those funds. 4 Defendant submitted an affidavit by Fitzgerald with his pro se 2011 affidavit, and counsel submitted a second Fitzgerald affidavit with the subsequent amended petition in 2013. Since the State concedes in its brief that the second affidavit is “substantially the same as” the first affidavit, “only providing more details,” we describe only the second affidavit above. 6 Nos. 1-15-1735 & 1-17-2176 (cons.)

Mohan and Pollusky, 5 who showed her a photo of “a light-complected African American

male who looked to be about 18 or 19.” Although they asked her “to identify the subject of

the photograph as someone [she] had seen on the street that night, [she] refused.” Fitzgerald

explained that the men she had observed “were older” and “much darker in skin tone.”

Although the “detectives became upset,” they “eventually released” Fitzgerald and Green.

¶ 20 Fitzgerald further averred that, the following morning, she was driving down the

street when the two detectives stopped her and “commanded” her to follow them back to the

police station. They showed her the same photo and were “pressuring” her to identify “the

boy” in the photo as one of the shooters. The detectives told Fitzgerald “that they knew who

[she] was and that they knew the father of [her] children was a man named Willie Lloyd and

that he was a Chief of a street gang. They threatened that if [she] did not cooperate, [she]

would lose her children to DCFS.”

¶ 21 Fitzgerald averred that, on the following Monday, July 21, 1997, she had her third

encounter with the same detectives. They forced their way through a gate in her mother’s

fenced yard and stated “ ‘B***, you’re going to testify for us, whether you like it or not.”

The detectives were so loud that her mother came outside and told them that if they did not

exit her property, she would file a complaint.

¶ 22 Her fourth encounter with the same two detectives occurred in the middle of August,

when they “grabbed” her, transported her to the police station, and again “threatened that if

[she] did not cooperate, [she] would lose [her] children to DCFS.” Fitzgerald averred:

“I was distraught and fearful that the detectives would in fact be able to have my

children taken away if I did not go along with their demands. I believed at this point

5 The affidavit does not provide the detectives’ first names. However, a Detective Richard Maher and a Detective John Pallohusky both testified at trial. 7 Nos. 1-15-1735 & 1-17-2176 (cons.)

that if I wanted to keep my children and not be continually hunted and harassed by

these detectives, I had no other option but to identify the boy in the picture.”

¶ 23 Fitzgerald averred that the detectives came looking for her again but she was able to

avoid them because she did not want to testify. She hoped that the identification would be

enough such that the police would not cause her to lose her children, but she lost custody

anyway. Fitzgerald moved to Minnesota in order “to get past this whole ordeal.” 6 After

several years in Minnesota, she returned to Illinois and attended a funeral in 2009 where she

encountered defendant’s mother. When defendant’s mother showed her a photo of her son,

Fitzgerald recognized him as the same boy in the photo that the detectives had kept showing

her.

¶ 24 In conclusion, Fitzgerald averred:

“I did not see [defendant] on July 19, 1997. I saw the four gunmen none of whom

was [defendant] and none of whom even resemble [defendant]. I made a false

identification of [defendant] as one of the gunmen because and only because of

threats and harassment from the police. It is my certain belief that [defendant] is

innocent of this crime.”

Defendant’s amended petition included a copy of the program for the funeral that Fitzgerald

averred that she attended.

¶ 25 On April 21, 2015, the trial court granted the State’s second-stage motion to dismiss.

The court stated only “[t]hat the Defendant, the Petitioner, hasn’t brought forward enough to

satisfy the dictates of actual innocence. Also the cause and prejudice test is not met.” On May

6 Fitzgerald’s affidavit does not state when she moved to Minnesota. 8 Nos. 1-15-1735 & 1-17-2176 (cons.)

21, 2015, defendant filed a timely notice of appeal that was assigned appeal number 1-15-

1735.

¶ 26 On January 18, 2017, defendant moved for leave to file a second pro se

postconviction petition asserting actual innocence. His petition was supported by an affidavit

from Crystal Johnson in which she averred that she had observed the shooting, that she knew

defendant from the neighborhood, and that defendant was not one of the shooters. Johnson

averred, in relevant part:

“While talking with some people on the sidewalk not that far from [the nightclub],

about 4 guys in dark clothes walked by with guns and started shooting. I ran in the

opposite direction eventually making it to my home. Later I learned that Daryl Hood

had been killed that night on Madison. I knew Daryl Hood from the area because he

and his so call[ed] people controlled the gang in my neighborhood.

During December of 2015, I got in contact with an old friend, Tiffany Thomas.

We ended up talking about a childhood friend of her and her family name Kerry

who’s in jail which they thought would be coming home soon.

During our conversation, it became clear that she was speaking about the night at

[the nightclub] in the summer of July, 1997. I informed her that I saw the guys walk

past me that night. It was 4 guys wearing dark clothing carrying guns. To make sure

we were talking about the same Kerry, Tiffany had me look up a picture of

[defendant] (Kerry) on the [IDOC] website. [Defendant] (Kerry) pretty much looked

the same as he did approximately 20 years ago. After verifying his identity, I’m 100%

sure that Kerry wasn’t one of the shooters that I saw walking on the sidewalk that

night on Madison Street ***.”

9 Nos. 1-15-1735 & 1-17-2176 (cons.)

Defendant’s petition also included an affidavit from Tiffany Thomas corroborating Johnson’s

description of Johnson’s conversation with Thomas and a copy of Fitzgerald’s previously

submitted affidavit.

¶ 27 On June 9, 2017, the trial court denied defendant leave to file. In its written order, the

trial court found that Johnson’s affidavit was both newly discovered and noncumulative, and

thus, the first two prongs of the actual innocence test were satisfied. However, the trial court

found that Johnson’s affidavit, by itself, was not of such a conclusive character that it would

change the result at trial. The trial court gave three reasons. First, the affidavit did not specify

the exact date of the shooting. Second, although Johnson averred that she witnessed four men

with guns “shooting,” she did not specifically state that she observed the victims being shot.

Lastly, the State’s evidence at trial was overwhelming.

¶ 28 On September 26, 2017, this court allowed defendant’s late notice of appeal and

assigned it appeal number 1-17-2176. On January 24, 2019, defendant moved to consolidate

appeal numbers 1-15-1735 and 1-17-2176 on the ground that they “concern precisely the

same subject matter: the denial of [defendant’s] successive postconviction petitions

containing claims of actual innocence based on newly discovered evidence.” This court

granted defendant’s motion, and this consolidated appeal followed.

¶ 29 ANALYSIS

¶ 30 I. An Actual Innocence Claim

¶ 31 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq (West 2018))

contemplates the filing of “[o]nly one petition *** without leave of the court.” 725 ILCS

5/122-1(f) (West 2018); People v. Sanders,

, ¶ 24. Any claim not in the

original petition, or an amended version of it, is waived. 725 ILCS 5/122-3 (West 2018);

10 Nos. 1-15-1735 & 1-17-2176 (cons.)

Sanders,

, ¶ 24. However, this bar against successive petitions is overcome if

defendant can (1) satisfy the Pitsonbarger cause and prejudice test (People v. Pitsonbarger,

(2002); 725 ILCS 5/122-1(f) (West 2018)) or (2) show evidence of

actual innocence. Sanders,

. In the case at bar, defendant claims actual

innocence.

¶ 32 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,

; People v. Coleman,

. “New means the evidence was discovered after trial and could not have been discovered

earlier through the exercise of due diligence.” Coleman,

. “Material

means the evidence is relevant and probative of the petitioner’s innocence.” Coleman,

. 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,

. “Noncumulative means the evidence adds to what

the jury heard.” Coleman,

. Conclusive means that the additional

evidence, “when considered along with the trial evidence, would probably lead to a different

result.” Coleman,

. “Probability, not certainty, is the key ***.”

Coleman,

. 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,

; Coleman,

,

11 Nos. 1-15-1735 & 1-17-2176 (cons.)

¶¶ 104-08 (considering together the statements of all the new witnesses presented by

defendant). 7

¶ 33 II. Standard of Review

¶ 34 With respect to one of defendant’s successive petitions, he is first seeking leave of

court to file it. “[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,

. 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,

. “For new evidence to be 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,

. 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,

(discussing Sanders,

, ¶ 59). Once leave to file a successive

petition is granted, it is docketed for second-stage proceedings. Sanders,

,

¶ 28.

7 In its brief to this court, the State cited People v. Savory,

(1999), for the proposition that evidence of actual evidence is evidence that totally exonerates a defendant. However, our supreme court “specifically rejected the total vindication or exoneration standard” set forth in that appellate case. Robinson,

(citing People v. Savory,

(2001) (specifically rejecting the “complete vindication” standard set forth in the lower court’s opinion)). 12 Nos. 1-15-1735 & 1-17-2176 (cons.)

¶ 35 One of defendant’s two petitions was dismissed at the second stage. The issue at the

second stage is whether the petitioner made “a substantial showing of actual innocence such

that an evidentiary hearing is warranted.” Sanders,

. At the second

stage, the allegations in the petition are “liberally construed in favor of the petitioner.”

Sanders,

. “All well-pleaded factual allegations must be taken as true.”

Sanders,

. “[T]here are no factual issues” at the second stage. Sanders,

. “Credibility determinations may be made only at a third-stage

evidentiary hearing.” Sanders,

.

¶ 36 At the second stage, a court considers only the proofs attached by defendant to his

petition and the record of his original trial proceedings. Sanders,

, ¶¶ 45, 48.

The Act specifically requires the petitioner to attach to his petition “affidavits, records or

other evidence supporting the petition’s allegations or state why the same are not attached.”

Sanders,

, ¶ 45 (citing 725 ILCS 5/122-2 (West 2014)). The court must

accept as true both the petition’s allegations and its supporting evidence “unless they are

positively rebutted by the record of the original trial proceedings.” Sanders,

,

¶ 48. By the record, the Act means “ ‘the court file of the proceeding *** and any transcripts

of such proceeding.’ ” Sanders,

, ¶ 43 (quoting 725 ILCS 5/122-2.1(c) (West

2014)); see also Robinson,

(“the trial record”).

¶ 37 When no evidentiary hearing is held, a reviewing court’s standard of review is

de novo. Sanders,

. Thus, our standard of review with respect to both

petitions is de novo. Robinson,

(“the denial of leave to file a

successive postconviction petition premised on a claim of actual innocence” is de novo);

Sanders,

(a second-stage dismissal is reviewed de novo). De novo

13 Nos. 1-15-1735 & 1-17-2176 (cons.)

consideration means that we perform the same analysis that a trial judge would perform.

People v. Carrasquillo,

.

¶ 38 III. Newly Discovered

¶ 39 Although defendant attached other affidavits to his petitions, he argues on appeal only

that the affidavits of Renee Fitzgerald and Crystal Johnson are (1) newly discovered and

(2) material and noncumulative. Thus, we consider only these affidavits on appeal. Points not

argued are waived. People v. Cardona,

; Ill. S. Ct. R. 341(h)(7) (eff.

May 25, 2018).

¶ 40 In addition, the State did not argue in its brief to this court that Johnson’s affidavit

was not newly discovered or that the trial court was incorrect in finding that it was. Again,

points not argued are waived. Cardona,

; Ill. S. Ct. R. 341(h)(7) (eff.

May 25, 2018). At oral argument before this court, the State conceded that Johnson’s

affidavit was, in fact, newly discovered. Thus, we must determine only whether Fitzgerald’s

affidavit was newly discovered.

¶ 41 In support of its argument that Fitzgerald’s affidavit was not newly discovered, the

State attached material that was not part of the court file to its motion to dismiss and argued

this material during oral argument before this court. As we noted above, when considering a

petitioner’s supporting documents at the second stage, we accept them as true, “unless they

are positively rebutted by the record of the original trial proceedings.” Sanders,

, ¶ 48. By the record, the Act means “ ‘the court file of the proceeding *** and any

transcripts of such proceeding.’ ” Sanders,

, ¶ 43 (quoting 725 ILCS 5/122-

2.1(c) (West 2014)); see also Robinson,

(“the trial record”). In a

14 Nos. 1-15-1735 & 1-17-2176 (cons.)

footnote in its brief to this court, the State argues that it would be unfair to bar the State from

submitting evidence at this stage.

¶ 42 The purpose of the first two stages is to determine whether an evidentiary hearing is

even necessary. To the extent that the State believes that it must introduce other evidence to

counter defendant’s claims, then it may introduce that material at a third-stage evidentiary

hearing. That is what an evidentiary hearing is for.

¶ 43 Unlike the State, a defendant is required by statute to attach supporting affidavits and

documents to his petition. Sanders,

, ¶ 45 (citing 725 ILCS 5/122-2 (West

2014)). The court’s task is to consider the material he submitted against the court file and

trial transcripts in order to decide whether an evidentiary hearing is even warranted. Thus, we

do not consider, at this early stage, any other materials.

¶ 44 The State also argues that the court file establishes that the defense knew prior to trial

that Fitzgerald was a possible witness, since she was listed on the State’s answer to

discovery. 8 On December 4, 1997, which was almost two years prior to the start of trial,

defendant moved for the preservation and production of handwritten interview notes by the

police concerning a number of individuals, including Fitzgerald. Defendant’s motion stated

that “[t]he State has previously produced documents containing interviews with” Fitzgerald,

among others. However, what this motion establishes is that the defense knew Fitzgerald was

a possible State witness and, at this time, she was still identifying defendant as a shooter.

¶ 45 Defendant argues that Fitzgerald’s move rendered her unavailable and that no due

diligence on defendant’s part could have made her testify, in light of her fears and the

8 The State’s answer to discovery, listing Fitzgerald, is not in the record, and the State’s brief does not provide a record cite for it. However, the record shows that the defense knew she was a possible witness, since the defense sought the police’s handwritten notes concerning her. 15 Nos. 1-15-1735 & 1-17-2176 (cons.)

intimidation by the police, which we must accept as true at this stage. In response, the State

argues that neither the record nor Fitzgerald’s affidavit bears this out.

¶ 46 Newly discovered evidence is evidence that could not have been obtained earlier

through due diligence. See Coleman,

. It includes testimony from a

witness who “essentially made himself [or herself] unavailable as a witness” by moving out

of state (People v. Ortiz,

(2009)) or who had been made unavailable

through threats or intimidation to not testify. People v. White,

. For example, in People v. Harper,

, the witness’s

affidavit “attested that his trial testimony was a lie and that police officers threatened him to

obtain the testimony.” This court found, “[c]learly, due diligence could not have compelled

[the witness] to testify truthfully.” Harper,

; see also People

v. Smith,

(“no amount of due diligence would have allowed

[defendant] to secure [the eyewitness’] recantation of his identification prior to trial”).

¶ 47 The record establishes first that State witness Peggy Green testified that Fitzgerald

moved out of town prior to trial. Second, Green’s trial testimony finds some support in the

court file. On September 10, 1999, defendant moved for disclosure on the ground that, the

day before in open court, the State had indicated that one or more of its witnesses was “out of

town” but that the State’s prior answer to discovery did not indicate any out-of-town

witnesses. We do not have a transcript for September 9, 1999; thus, the record does not

disclose which State witnesses, if any, had moved. Although Fitzgerald’s affidavit does not

state when she moved out of town, this document lends some corroboration to Green’s trial

testimony that Fitzgerald had moved out of town prior to trial. Third, Fitzgerald’s affidavit

avers that she successfully hid from the police to avoid testifying at trial. She averred that she

16 Nos. 1-15-1735 & 1-17-2176 (cons.)

moved out of town to leave behind “this ordeal” of police intimidation and threats 9 to take

her children, which ultimately succeeded. Lastly, to the extent that defendant was aware of

Fitzgerald as a witness, she had demonstrated no intent of recanting her pretrial identification

to the police at the time of trial, and defendant had no reason to suspect that the reason for

her false identification in the first place was threats and intimidation by the police. See

Harper,

.

¶ 48 In an actual innocence claim, it is “the evidence in support of the claim” that “must be

‘newly discovered,’ ” not necessarily the source. See People v. Edwards, 2012 IL 11171,

¶ 32. As a result, an affidavit from a witness may be newly discovered, even when the

defense knew of the witness prior to trial. White,

. 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.

White,

.

¶ 49 For the foregoing reasons, we find that the statements in Fitzgerald’s affidavit were

newly discovered.

¶ 50 IV. Material and Noncumulative

¶ 51 As we observed above, material evidence is evidence that is relevant and probative of

the defendant’s innocence, and noncumulative means that it adds to what the jury heard.

Coleman,

.

9 We are not finding that Fitzgerald’s statements of police intimidation are true, but rather we must accept them as true at this stage of the proceedings. 17 Nos. 1-15-1735 & 1-17-2176 (cons.)

¶ 52 Fitzgerald’s and Johnson’s affidavits are material and noncumulative because now

two eyewitnesses would testify that defendant was not one of the shooters, whereas no

eyewitness testified to that at his original trial.

¶ 53 The State claims that Fitzgerald’s affidavit was not material, arguing, first, that she

never averred in her affidavit that defendant was not present. This is incorrect. Fitzgerald

stated: “I again affirm that I did not see [defendant] on July 19, 1997.” Second, the State

argues that she did not observe the shooting itself. Fitzgerald averred: “I saw four dark-

skinned adult men in hoodies armed with guns approaching *** toward the club entrance. A

few seconds after I saw the men, I heard what sounded like gunshots and immediately

ducked down.” In light of the short time frame of just “a few seconds,” her observations are

still material. Sanders,

(we construe defendant’s allegations “liberally”

and in his “favor”).

¶ 54 With respect to Johnson’s affidavit, the State argues, first, that Johnson did not

observe the shooting. This is incorrect. Johnson averred that she observed four men

“shooting.” Second, the State argues that her affidavit is not material because it did not

provide the exact date of the shooting, describing the date only as a night in July 1997.

However, her affidavit left no doubt which date she was describing, since she averred that

she later learned that it was the night Derryl Hood was killed. While this might be a source

for cross-examination, it is not a sufficient basis to find her affidavit immaterial. Thus, we

find that both affidavits are material and noncumulative.

¶ 55 V. Of a Conclusive Character

¶ 56 Lastly, we consider the probability of the new evidence to “change the result on

retrial either by itself or in conjunction with” other new evidence also presented by the

18 Nos. 1-15-1735 & 1-17-2176 (cons.)

defendant. Sanders,

; Coleman,

(considering together the statements of all the new witnesses presented by defendant).

¶ 57 At a retrial, defendant would have potentially two eyewitnesses testifying that he was

not one of the shooters, in addition to the alibi witness whom he previously called. At this

stage, we accept the eyewitnesses’ averments as true. See Sanders,

. At

a retrial, their credibility would be judged against the State’s evidence. State witness Curtis

Hood identified defendant but then recanted to defense investigators and recanted again at

trial when he recanted the recantation. These repeated about-face reversals make him not the

strongest witness. As for Michael Welch’s testimony, it is questionable what impact it would

have as other-crimes evidence at a retrial, in light of defendant’s subsequent acquittal of that

offense. See People v. Ward,

(the trial court abused its discretion by

refusing to admit evidence of an acquittal where the offense had been introduced as other-

crimes evidence). It is not even certain that it would be admissible, in light of the fact that the

trial court would have to carefully weigh its probative value against its undue prejudice. 725

ILCS 5/115-7.3 (West 2018); Ward,

.

¶ 58 Defendant asks us to take judicial notice of his acquittal in the Welch offense, and we

do. Illinois Rules of Evidence permit a court to “take judicial notice, whether requested or

not.” Ill. R. Evid. 201(c) (eff. Jan. 1, 2011). “A judicially noticed fact must be one not subject

to reasonable dispute ***.” Ill. R. Evid. 201(b) (eff. Jan. 1, 2011). Although the State asks us

not to take judicial notice, it does not dispute that the acquittal occurred. Thus, this fact is not

apparently subject to reasonable dispute. See Koshinski v. Trame,

(“the circuit court’s orders are proper materials for judicial notice”); People v. Alvarez-

19 Nos. 1-15-1735 & 1-17-2176 (cons.)

Garcia,

(2009) (the appellate court may take judicial notice of

records kept by Illinois courts).

¶ 59 In sum, for identification evidence at a retrial, the State would be relying primarily on

the testimony of Deron James. At a retrial, a factfinder would have to weigh the testimony of

this convicted felon and gang member against the testimony of defendant’s three exonerating

witnesses—namely, the two eyewitnesses and one alibi witness.

¶ 60 To the extent that the State argues that Fitzgerald’s affidavit is not credible because

“recantation testimony” is suspect, this argument is a double-edged sword for the State.

Sanders,

(“recantation testimony is regarded as inherently unreliable”).

At trial, Curtis Hood recanted his prior signed statement to defense investigators, which itself

was a recantation of the prior identification that he provided police. In addition, Fitzgerald

has yet to testify, so she cannot be accused of testifying falsely.

¶ 61 The State argues that, since Curtis Hood testified that there were five shooters while

Fitzgerald and Johnson averred there were only four, it is possible that Fitzgerald and

Johnson overlooked a fifth man, who could have been defendant. However, Johnson averred

that she observed the men “shooting” and there were only four of them. Thus, defendant’s

new evidence directly contradicts the State’s evidence at trial and creates a credibility contest

that needs to be resolved at a hearing and by a factfinder, which this court is not. “Credibility

determinations may be made only at a third-stage evidentiary hearing.” Sanders,

. At this early stage, we construe defendant’s allegations “liberally” and in his

“favor.” Sanders,

.

¶ 62 For the foregoing reasons, we find that defendant has made a substantial showing that

the new evidence has the probability to lead to a different result at retrial. Sanders, 2016 IL

20 Nos. 1-15-1735 & 1-17-2176 (cons.)

118123, ¶ 37 (the issue at the second stage is whether the petitioner made “a substantial

showing of actual innocence such that an evidentiary hearing is warranted”).

¶ 63 In the interests of judicial economy, and in light of the fact that defendant appended

both the Fitzgerald and Johnson affidavits to his last petition, we reverse and remand both

petitions for a third-stage evidentiary hearing. People v. Buffer,

(an

appellate court may act “[b]ased on the particular issue raised *** in the interests of judicial

economy”); People v. Ames,

, ¶ 21 (“considerations of judicial

economy *** apply with equal force in the appellate court”).

¶ 64 CONCLUSION

¶ 65 In conclusion, we reverse and remand for a third-stage evidentiary hearing.

¶ 66 Reversed and remanded.

21 Nos. 1-15-1735 & 1-17-2176 (cons.)

No. 1-15-1735

Cite as: People v. Fields,

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 97-CR- 23668(01); the Hon. Arthur F. Hill Jr., Judge, presiding.

Attorneys James E. Chadd, Patricia Mysza, and Christopher G. Evers, of for State Appellate Defender’s Office, of Chicago, for appellant. Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. for Spellberg and Annette Collins, Assistant State’s Attorneys, of Appellee: counsel), for the People.

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