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,

; People v. Anderson,

, ¶¶ 3-15; People v. Anderson,

-

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,

. 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,

, ¶ 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,

.

¶ 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,

. Those two bases

are: (1) cause and prejudice and (2) actual innocence. Edwards,

. Thus, the 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. People v. Sanders,

,

11 No. 1-20-0040

¶ 24. Defendant, who is attempting to file a successive petition, has alleged only

actual innocence.

¶ 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,

; 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,

.

¶ 34 “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,

(quoting People v. Savory,

(2001)).

“Noncumulative means the evidence adds to what the jury heard.” Coleman,

, ¶ 96. In the case at bar, the State concedes that defendant’s

proposed evidence is material and noncumulative. People v. Ortiz,

(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,

. “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,

(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,

.

¶ 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,

. “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,

(1999). People v. Robinson,

(citing Savory,

(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,

. 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,

).

¶ 39 Once leave to file a successive petition is granted, the petition is docketed

for subsequent second-stage proceedings. Sanders,

.

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,

.

¶ 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,

; see also Robinson,

(“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,

.

¶ 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,

. Thus, we proceed to

consider defendant’s actual innocence claim. Carrasquillo,

.

¶ 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,

.

¶ 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,

.

“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,

.

¶ 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,

. 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,

. 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,

. 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,

. 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,

(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,

; People v. Fields,

.

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,

.

¶ 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,

.

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,

(quoting People v. White,

). 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,

(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

Cite as: People v. Anderson,

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.

24