People v. Tyson ( 2021 )

2021 IL App (1st) 191500-UNo. 1-19-1500
Order filed October 21, 2021
Fourth Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 18004 (02)
)
ANDRE TYSON, ) Honorable
) Domenica A. Stephenson,
Defendant-Appellant. ) Judge, presiding.
JUSTICE MARTIN delivered the judgment of the court.
Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
¶1 Held: We affirm the circuit court’s dismissal of defendant’s second stage postconviction
petition over his contention that he made a substantial showing of a constitutional
claim of actual innocence based on newly discovered evidence.
¶2 Defendant Andre Tyson appeals from the circuit court’s order dismissing his second stage
petition for postconviction relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2010)). On appeal, he argues that his petition made a substantial showing of
No. 1-19-1500
a constitutional violation by setting forth a claim of actual innocence supported by newly
discovered evidence from his codefendant Leonard Brown’s affidavit. We affirm. 1
¶3 I. BACKGROUND
¶4 Following simultaneous but severed 2005 jury trials, Tyson and Brown were convicted of
the first degree murder of Rashee Lewis (Lewis). 2 Tyson was convicted under an accountability
theory and sentenced to 45 years’ imprisonment.
¶5 The evidence at trial established that on August 7, 2003, at around 2 a.m., in the vicinity
of 92nd Street and Cottage Grove Avenue in Chicago, 16-year-old Lewis was shot and killed.
Miyako Rosenthal testified she was sitting in her vehicle with a friend at that time and observed a
maroon Chevy Impala with four individuals inside drive up behind her vehicle. She then observed
a young man in a red shirt, later identified as Lewis, run northbound on Cottage Grove Avenue,
and then turn west onto 92nd Street. Lewis ran on the sidewalk toward the Impala and “appeared
scared.” Moments later, Rosenthal heard approximately nine gunshots, at which time she ducked.
She discerned a handgun was being fired out of the back window of the Impala. Following the
shooting, Rosenthal observed the Impala drive away and run a red light at 93rd Street. A police
cruiser began pursuing the Impala. Rosenthal then exited her vehicle and observed Lewis lying in
the street in a pool of blood. She did not see any weapons on or near Lewis’s body.
¶6 Chicago Police Officer Lawrence Lee, and his partner, Officer Valerio 3, heard shots fired
while on patrol in the area of 92nd Street and Cottage Grove Avenue in the early morning hours
1
In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this
appeal has been resolved without oral argument upon the entry of a separate written order.
2
Brown is not a party to the instant appeal.
3
Officer Valerio’s first name was not provided in the record.
-2-
No. 1-19-1500
of August 7, 2003. “Unknown citizens” flagged down the officers and informed them that a
maroon Impala was responsible for the shooting. After learning this information, Lee continued to
travel down Cottage Grove Avenue, where he observed the suspect Impala driving at a high rate
of speed. Lee activated his lights and pursued the Impala, which he temporarily lost sight of when
it turned a corner. However, Lee reacquired visual contact with the suspect vehicle and pulled it
over. Tyson, whom Lee identified in court, was the sole occupant in the Impala. The officers
arrested Tyson. As Officers Lee and Valerio were placing Tyson in their police cruiser, they
noticed two men, later identified as Christopher Jones and Adam Knox, hiding behind a nearby
parked vehicle.
¶7 A trace evidence analyst testified he performed gunshot residue tests on Tyson, Knox, and
Jones. All three tests were negative.
¶8 Christopher Jones testified he, Brown, and Knox were in Brown’s vehicle in the early
morning hours of August 7, 2003. After driving to a gas station near 92nd Street and Cottage Grove
Avenue, they heard eight or nine shots fired. Jones did not know where the shots came from.
Brown, who was angry about the gunshots, drove to 105th Street and Indiana Avenue, where they
observed Tyson. Brown got out of the vehicle and spoke with Tyson, who then joined them in the
Impala. Jones was “real drunk” and knew Tyson and Brown were talking but did not know what
they said. He later testified he heard something about a firearm but did not hear Tyson respond.
They drove to 107th Street and Indiana Avenue, where Tyson went inside a house and
subsequently exited the residence with a black handgun and bulletproof vest.
¶9 When Tyson returned to the vehicle, he got in the driver’s seat and gave the vest and firearm
to Brown, who was seated in the back passenger seat next to Jones. Knox was seated in the front
-3-
No. 1-19-1500
passenger seat. Brown directed Tyson to drive to where the shooting occurred. Brown wanted to
return to the scene because “they shot at his car,” and he was going to shoot at “them.” When they
arrived at 92nd Street and Cottage Grove Avenue, they observed one of the men who shot at them
wearing a red shirt, and Brown fired a few shots out the window of the back passenger seat. Jones
testified that Brown fired the handgun in an upward direction but “hit the young man.” The man
in the red shirt had been running away from the vehicle at the moment he was shot. Jones did not
see the man with a weapon. Following the shooting, the police were “immediately on” them. Tyson
drove the Impala to a nearby alley, and Jones, Knox, and Brown jumped out of the vehicle and
ran. Police found Jones and Knox nearby and took them to the police station, where Jones gave a
handwritten statement.
¶ 10 Jones acknowledged he previously appeared before the grand jury, where he testified that
Brown fired shots directly at the man in the red shirt. He had also testified that Brown asked Tyson
if he had a firearm and told Tyson that he wanted revenge against the people who shot at his
vehicle. Jones explained the discrepancy as resulting from a brain tumor that affected his mental
ability at the time he gave his earlier statements.
¶ 11 Adam Knox testified to a substantially similar version of events as Jones. Knox attested he
was with Jones and Brown on the night of the shooting. They heard gunshots after leaving a gas
station and drove to 105th Street and Indiana Avenue, where Tyson had been. Brown was mad and
explained to Tyson that they had been shot at while driving. Tyson entered the Impala and they
drove to 107th Street and Indiana Avenue, where Tyson lived, so they could “handle something.”
Brown asked Tyson if he had a handgun and Tyson responded “yes,” although Brown did not tell
Tyson why he wanted the firearm or what he was going to do with it. Knox acknowledged that he
-4-
No. 1-19-1500
had given a handwritten statement and testified before the grand jury. He conceded that he had
previously testified that Brown stated he wanted a firearm because they had been shot at. However,
Knox stated he did not recall testifying that Brown said he was going to “shoot them back.”
¶ 12 Both Brown and Tyson exited the vehicle at 107th Street and Indiana Avenue. When they
returned to the Impala, Knox observed that Tyson had a black handgun and bulletproof vest. Brown
sat in the back passenger seat of the vehicle with the handgun, while Tyson drove. Knox
acknowledged testifying before the grand jury that, when Tyson and Brown reentered the Impala,
they all discussed what had happened and who would shoot, with Brown volunteering to shoot
because he had the firearm.
¶ 13 When they returned to 92nd Street and Cottage Grove Avenue, a man was running toward
the vehicle as they drove down the street. Knox was seated in the front passenger seat and heard
two or three gunshots coming from behind him in the vehicle, although he acknowledged that he
told the grand jury there were three or four gunshots. He did not see anything in the hands of the
person running. After the shooting, Tyson drove off and Knox exited the Impala shortly thereafter
with Jones and Brown. Knox observed Tyson get pulled over by police, and thereafter, he and
Jones were stopped by a police officer. Knox initially lied to police about where he had been, but
he was nonetheless taken to the police station.
¶ 14 Although Knox testified at trial that Tyson did not say anything while he was in the Impala,
he acknowledged testifying before the grand jury that Tyson asked Brown if he knew who shot at
him and Tyson stated that he had a pistol. Knox further acknowledged that Tyson did not initially
have a handgun and directed Brown to go to 107th Street and Indiana Avenue, where he lived.
Knox explained the discrepancy in his testimonies by stating he was scared when he was in front
-5-
No. 1-19-1500
of the grand jury and was “actually agreeing to anything they said.” He conceded, however, that
no one told him what to say. He further acknowledged he was testifying at trial because he was
subpoenaed and did not want to be there.
¶ 15 Assistant State’s Attorney (ASA) Michael Clarke testified that he presented both Knox and
Jones to the grand jury. Clarke published portions of Knox’s grand jury testimony to the jury.
Knox had testified Brown told Tyson he got shot at and asked whether Tyson had a pistol. Brown
wanted to take the pistol to “[g]o over there and shoot them back.” Tyson asked whether Brown
knew who had shot at him and said he had a pistol. Brown told Tyson that he knew who shot at
him. The group then drove to 107th Street and Indiana Avenue to Tyson’s house. Tyson exited the
Impala, while the others waited inside the car. When Tyson returned, he had a pistol and
bulletproof vest. In the vehicle, the group discussed what was going to happen next. Brown, who
at that time possessed the handgun, said he would shoot it. Tyson drove to Cottage Grove Avenue
and 92nd Street. Clarke testified he did not tell Knox what to say before the grand jury.
¶ 16 Forensic expert, Doctor John School Denton testified at trial that he had analyzed the
autopsy reports and concluded that the entry and exit wounds of the bullets were consistent with
Lewis running away from the car at the time he was shot. The bullet had traveled slightly upward
through his skull, which was consistent with a gun having been fired from a car. Lewis’s facial
lacerations, including torn lips and loose front teeth, were consistent with someone falling forward
while in forward running motion. The injuries “were not consistent with someone just dropping
and falling.” Denton noted that there was no evidence of close firing range. On cross-examination,
Denton noted it was possible, though unlikely, that the bullet that killed Lewis had ricocheted.
Denton testified that a bullet that ricochets off something before striking a person would likely be
-6-
No. 1-19-1500
more deformed and flatter than the bullet that killed Lewis. He further testified that the bullet’s
slight deformation was consistent with the deformation one would expect to see in a bullet that
had struck bone.
¶ 17 Chicago Police Detective Steven Lazzara interviewed Tyson, Jones, and Knox following
their arrests. He went with ASA Romano DiBennedetto to an address on South Burnside Avenue
in an attempt to recover the firearm used in the shooting. Their efforts proved unsuccessful.
¶ 18 ASA Romano DiBennedetto spoke with Tyson while he was in custody on August 7, 2003.
Tyson informed DiBennedetto he had tossed the handgun into a vacant lot following the murder.
Tyson accompanied DiBennedetto and Lazzara to the lot to recover the firearm; however, they
found no weapon. Following the trip to the vacant lot, DiBennedetto took a videotaped statement
from Tyson, which was published for the jury.
¶ 19 In his videotaped statement, Tyson stated that Brown was with Jones and Knox. The three
of them drove up to him in Brown’s Impala. Brown was “kind of angry, asking for a gun so he can
go back and shoot at somebody that had just shot at him.” Brown told Tyson that the shooting was
“over some females or something,” and that he needed a firearm. Tyson told Brown that he might
be able to help him and got in the Impala to go to 107th Street, where he knew a handgun was
located. Tyson retrieved a “little black gun,” which he gave to Brown. He also gave him a
bulletproof vest which he had retrieved from the same place as the handgun.
¶ 20 Brown got in the back seat of his Impala with the vest and firearm, and Tyson drove the
vehicle. Brown, Jones, and Knox gave Tyson directions back to 92nd Street and Cottage Grove
Avenue. On 92nd Street, Tyson observed a person running around the corner, so he accelerated.
Tyson heard shots as Brown “opened fire out the back window,” and observed Brown shoot the
-7-
No. 1-19-1500
handgun that he had given him. Tyson sped away to 94th Street and Burnside Avenue, where he
stopped the Impala. Brown jumped out of the Impala first, and Knox and Jones argued over who
would take the weapon before also exiting the vehicle. The handgun was still in the backseat, so
Tyson took the weapon and threw it into a vacant lot. After tossing the firearm, he was pulled over
by police. Prior to recording his videotaped statement, Tyson took DiBennedetto and some
detectives to the lot, but they found no handgun.
¶ 21 Tyson testified at trial that he was on 105th Street and Indiana Avenue around 2 a.m. on
August 7, 2003, when he observed Brown, who was in his Impala with Jones and Knox. Brown
was crying and said some people had shot at him. Brown was scared and wanted to go talk to the
shooters, so Tyson got in the Impala and drove to 92nd Street and Cottage Grove Avenue. While
driving, Tyson observed a man in a red shirt with a firearm in his hand running toward the Impala.
Tyson heard shots fired and turned around to see Brown firing a handgun into the air.
¶ 22 On cross-examination, Tyson testified that his videotaped statement followed a script that
was given to him by the police, who told him what to say so that the statements of all the witnesses
would match. Tyson testified he agreed to follow the script because the police told him he would
be permitted to leave, and would not be charged, if he cooperated. Specifically, the police told him
to say that Brown was angry, Brown stated that he had been shot at over “some females,” and
Brown asked for a firearm to go back and shoot the people who shot at him. Further, the police
instructed him to say everything in his statement pertaining to the handgun and bulletproof vest.
¶ 23 Tyson denied that they drove to 107th Street and that Brown asked him for a firearm to
shoot the people who shot at him. He emphasized Brown only wanted to return to the area to speak
with the shooters. Tyson did not see a handgun in the Impala when the three men jumped out, did
-8-
No. 1-19-1500
not toss it, and did not know what happened to it. He went over his statement with police for “a
long time.” He could not remember whether the ASA also told him what to say. When asked about
his trip to the vacant lot with the ASA and police detectives, Tyson testified he “fooled” the ASA
when he said he would show them where the handgun was located, and only said that because the
police told him to say it. Tyson denied knowing where Brown obtained the weapon and maintained
he did not observe it until Brown started shooting.
¶ 24 Tyson testified he first gave a statement to police shortly after his arrest, in which he denied
that he gave Brown the weapon and stated he did not know about the handgun. At some point, his
story to the police changed, based on the promises they made that he would be released. Tyson did
not tell the police anything that he testified to at trial because the police gave him a script when he
denied knowing anything about the firearm.
¶ 25 In rebuttal, Detective Lazzara testified he did not tell Tyson what to say after he was
arrested and did not promise Tyson he would be released. He denied giving Tyson a script of what
to say. Tyson took Lazzara to where he said he threw the handgun, and Lazzara did not tell him to
say that to “fool” the ASA. Tyson never stated he observed Lewis with a handgun. Lazzara
acknowledged Tyson initially stated he did not know where Brown got the firearm, but Tyson later
changed his statement after Lazzara confronted him with the other witnesses’ statements regarding
where Brown obtained the firearm.
¶ 26 The jury found Tyson guilty of first degree murder based on a theory of accountability.
The trial court sentenced Tyson to 30 years’ imprisonment for first degree murder, with an added
15-year firearm enhancement, for an aggregate sentence of 45 years. We affirmed Tyson’s
-9-
No. 1-19-1500
conviction on direct appeal. People v. Brown, Nos. 1-06-0034 and 1-06-0035 (cons.) (Dec. 9,
2009) (unpublished order pursuant to Illinois Supreme Court Rule 23). 4
¶ 27 On March 2, 2011, Tyson filed an initial pro se postconviction petition pursuant to the Act,
wherein he raised constitutional claims related to (1) the jury instructions issued at trial, (2) the
police interrogation that led to his video statement, (3) prosecutorial misconduct, and (4) the
ineffective assistance of appellate counsel for failing to raise various issues. Tyson attached to his
petition a notarized affidavit from Brown, dated July 2012. In the affidavit, Brown averred (1) he
was not present and had nothing to do with Lewis’ murder; (2) he did not obtain a handgun from
Tyson and his previous statements were “due to [his] mental health problems” and police coercion;
and (3) he would testify to the aforementioned statements if he was called as a witness, “like [he]
would have befor[e] [Tyson] went to trial but [he] was denied the opportunity by [Tyson’s] trial
attorney.”
¶ 28 The circuit court summarily dismissed the petition on June 1, 2011. On appeal, this court
remanded for further proceedings pursuant to an Agreed Motion for Summary Disposition because
the circuit court did not rule on the petition within 90 days, as required by the Act. People v. Tyson,
1-11-1910 (July 31, 2012) (dispositional order).
¶ 29 On remand, the circuit court appointed postconviction counsel and docketed the petition
for second stage proceedings. On October 25, 2017, counsel filed a supplemental petition, in
support of Tyson’s pro se petition, that incorporated Tyson’s petition “by reference.” The
4
This court consolidated Tyson’s direct appeal (No. 1-06-0035) with codefendant Brown’s direct
appeal (No. 1-06-0034). Pursuant to supervisory orders from our supreme court, this court vacated earlier
decisions in the consolidated cases. See People v. Brown, Nos. 1-06-0034 and 1-06-0035 (cons.) (Sept. 25,
2008) (vacated May 12, 2009, pursuant to People v. Brown, Nos. 107422 (Jan. 28, 2009) and 107433 (Mar.
25, 2009)); People v. Brown, Nos. 1-06-0034 and 1-06-0035 (cons.) (May 14, 2009) (vacated Dec. 2, 2009,
pursuant to People v. Brown, No. 108698 (Sept. 30, 2009)).
- 10 -
No. 1-19-1500
supplemental petition alleged, in relevant part, that Tyson was actually innocent and did not give
Brown a firearm on the night in question.
¶ 30 Tyson attached to the supplemental petition a second notarized affidavit from Brown, dated
March 2016. In that affidavit, Brown averred: (1) he told Tyson’s trial attorney before trial that he
wanted to testify for Tyson, but he was not called as a witness; (2) if called, he would have testified
that Tyson did not give him a firearm, Tyson “did not have any information or knowledge that a
crime was going to happen,” and Tyson had nothing to do with the crime that occurred; (3) his
statements to police about Tyson were forced and coerced by the police, and he did not feel well
at the time; (4) at the time he made the statements, he was diagnosed with severe depression, which
the detectives knew; (5) he had asked police for an attorney and was told he would be released if
he said “certain things,” and his trial attorney convinced him it was best to “stick to the story [he]
said at the police station; and (6) “[t]he things that [he] said about [Tyson] were untrue.”
¶ 31 On June 6, 2018, the State filed a motion to dismiss Tyson’s petition and argued, inter alia,
that Tyson’s claim of actual innocence failed because Brown’s affidavit did not qualify as newly
discovered evidence and was “directly rebutted by evidence that came out at trial.”
¶ 32 On June 26, 2019, the circuit court, in a written order, granted the State’s motion to dismiss
Tyson’s petition. Tyson timely appealed.
¶ 33 II. ANALYSIS
¶ 34 On appeal, Tyson argues his petition made a substantial showing of a constitutional
violation by setting forth a claim of actual innocence supported by newly discovered evidence, in
the form of Brown’s second affidavit.
- 11 -
No. 1-19-1500
¶ 35 The Act provides for a three-stage process by which a defendant may assert his conviction
was the result of a substantial denial of his constitutional rights. People v. Beaman, 229 Ill. 2d 56,
71 (2008). At the first stage, the trial court must review the postconviction petition and determine
whether “the petition is frivolous or is patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West
2010). If the petition is not dismissed within 90 days at the first stage, counsel is appointed, and it
advances to the second stage. 725 ILCS 5/122-2.1(a), (b) (West 2010).
¶ 36 This case involves the second stage of postconviction proceedings. At the second stage,
the dismissal of a petition is warranted only when the allegations in the petition, liberally construed
in light of the original trial record, fail to make a substantial showing of a constitutional violation.
People v. Hall, 217 Ill. 2d 324, 334 (2005). At this stage, the trial court is “concerned merely with
determining whether the petition’s allegations sufficiently demonstrate a constitutional infirmity
which would necessitate relief under the Act,” (People v. Coleman, 183 Ill. 2d 366, 380 (1998)),
and “all well-pleaded facts that are not positively rebutted by the trial record are to be taken as
true.” (People v. Pendleton, 223 Ill. 2d 458, 473 (2006)). The defendant “bears the burden of
making a substantial showing of a constitutional violation.” Id. We review the trial court’s second
stage dismissal of Tyson’s postconviction petition de novo. Id.¶ 37 The wrongful conviction of an innocent person violates due process under the Illinois
Constitution and, thus, a freestanding claim of actual innocence is cognizable under the Act “and
should be resolved as any other brought under the Act.” See People v. Washington, 171 Ill. 2d 475,
489 (1996). To succeed on a claim of actual innocence, a petitioner must present evidence that is
(1) newly discovered, (2) material and noncumulative, and (3) of such a conclusive character that
- 12 -
No. 1-19-1500
it would probably change the result on retrial. People v. Coleman, 2013 IL 113307, ¶ 96 (citing
Washington, 171 Ill. 2d at 489).
¶ 38 Newly discovered evidence is evidence that was discovered after trial and could not have
been discovered sooner through the exercise of due diligence. People v. Robinson, 2020 IL
123849, ¶ 47. Material evidence is evidence which is relevant and probative of the defendant’s
innocence. Id. Noncumulative evidence adds to the information that was presented to the fact
finder at trial. Id. The conclusive character element refers to evidence that, when considered
together with the trial evidence, would probably lead to a different result on retrial. Robinson, 2020
IL 123849, ¶ 47 (citing Coleman, 2013 IL 113307, ¶ 96). The conclusive character of the new
evidence is the most important element of an actual innocence claim. Id.¶ 39 Regarding the conclusive character element, ultimately, we ask “whether the evidence
supporting the postconviction petition places the trial evidence in a different light and undermines
the court’s confidence in the judgment of guilt.” Robinson, 2020 IL 123849, ¶ 49 (citing Coleman,
2013 IL 113307, ¶ 97). The new evidence is not required to be “entirely dispositive to be likely to
alter the result on retrial.” Id. “Probability, rather than certainty, is the key in considering whether
the fact finder would reach a different result after considering the prior evidence along with the
new evidence.” Id.¶ 40 Here, we find Tyson failed to make a substantial showing of a claim of actual innocence.
Even assuming Brown’s affidavits are newly discovered, material, and noncumulative, they are
not of such a conclusive character that, “when considered along with the trial evidence,”
(Robinson, 2020 IL 123849, ¶ 49), they would probably change the result on retrial. See Coleman,
2013 IL 113307, ¶ 96. As set forth below, the overwhelming evidence at trial shows Tyson not
- 13 -
No. 1-19-1500
only gave Brown the handgun knowing he intended to seek revenge against the people who had
initially shot at Brown’s Impala, but Tyson also drove Brown to the scene to accomplish that
revenge shooting. Even taking Brown’s averments in the affidavits as true, as we must, they do
not place this trial evidence in a different light or undermine confidence in the verdict.
¶ 41 At trial, both Jones and Knox testified that, following the shooting directed at Brown’s
Impala, they encountered Tyson, who thereafter entered the Impala. Brown told Tyson that
someone shot at his vehicle. Jones testified that Brown wanted to go back to the scene because
“they shot at his car” and he was going to shoot at “them.” He also acknowledged that he testified
before the grand jury that Brown asked Tyson for a handgun because he wanted to exact revenge.
Both Jones’s and Knox’s testimonies established the four men proceeded to 107th Street and
Indiana Avenue, where Tyson exited the Impala and returned with a firearm and bulletproof vest.
Tyson gave these items to Brown, who then used the firearm to shoot Lewis after Tyson drove the
Impala back to the scene of the initial shooting. Knox’s grand jury testimony was admitted and
showed that the men discussed who would be the shooter, and Brown volunteered.
¶ 42 This evidence corroborated Tyson’s videotaped statement, in which he acknowledged that
he gave Brown the handgun, drove Brown back to the area of the first shooting, and later attempted
to discard the weapon following the shooting of Lewis. In his statement, Tyson also admitted that
Brown was angry when he approached Tyson on 105th Street and requested a handgun to retaliate
against the people who had shot at his vehicle. Tyson then provided a handgun to Brown.
See People v. Simpson, 2015 IL 116512, ¶ 36 (“It has been observed that ‘a confession is the most
powerful piece of evidence the State can offer, and its effect on a jury is incalculable.’ ”
(quoting People v. R.C., 108 Ill. 2d 349, 356 (1985)). Although Tyson later claimed his statement
- 14 -
No. 1-19-1500
was fabricated and coerced by police, we note the trial court denied his motion to suppress his
statement prior to trial. Jones’s and Knox’s testimonies also corroborated Tyson’s testimony that
he got in the Impala with Brown, drove to where Brown said shots had been fired at him, and then
observed Brown firing the weapon.
¶ 43 Given this evidence, Brown’s varying inconsistent averments are not of such a conclusive
character that they would probably change the guilty findings on retrial if he were to testify. See
e.g., People v. Collins, 2021 IL App (1st) 170597, ¶¶ 58-60 (affidavit offering “scant details of the
crime and fail[ing] to admit any responsibility in the murder” is a “ ‘benign gesture’ ” and lacked
conclusive character necessary to change result on remand (quoting People v. Jones, 399 Ill. App.
3d 341, 366 (2010)). In Brown’s first affidavit, which was incorporated into Tyson’s supplemental
petition by reference, Brown averred he was not present at the scene, had nothing to do with
Lewis’s shooting, and did not receive a handgun from Tyson. In his second affidavit, he averred
Tyson did not give him a handgun, did not know a crime was about to occur, and had nothing to
do with that crime. As an initial matter, it is unclear how Brown could know Tyson had nothing to
do with the shooting if Brown himself was not there. Further, not only do Brown’s averments
conflict with Knox’s and Jones’s testimonies, but they also conflict with Tyson’s own testimony,
which placed Brown in the vehicle shooting the firearm. Where, as here, the newly discovered
evidence merely adds conflicting evidence to the evidence presented at trial and is not of such a
conclusive character that it would probably change the result on retrial, it is insufficient to satisfy
the substantial showing requirement to advance the postconviction petition to third stage
proceedings. See Robinson, 2020 IL 123849, ¶ 58 (citing People v. Sanders, 2016 IL 118123,
¶¶ 48, 52, 55 (finding at second stage proceedings that, where the new evidence merely added
- 15 -
No. 1-19-1500
“conflicting evidence to the evidence adduced at trial,” the new evidence was not of such
conclusive character as would change the result on retrial)).
¶ 44 III. CONCLUSION
¶ 45 Accordingly, we find Tyson has failed to make a substantial showing of a claim of actual
innocence and his petition was therefore properly dismissed at second stage proceedings.
¶ 46 Affirmed.
- 16 -