People v. Fields , 2020 IL App (1st) 151735 ( 2020 )

2020 IL App (1st) 151735Nos. 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.
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¶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.
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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
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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).
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¶ 18 On August 12, 2005, defendant filed his initial pro se postconviction petition alleging
Brady violations. See Brady v. Maryland, 373 U.S. 83, 87 (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.
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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
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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
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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, 2016 IL 118123, ¶ 24. Any claim not in the
original petition, or an amended version of it, is waived. 725 ILCS 5/122-3 (West 2018);
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Sanders, 2016 IL 118123, ¶ 24. However, this bar against successive petitions is overcome if
defendant can (1) satisfy the Pitsonbarger cause and prejudice test (People v. Pitsonbarger,
205 Ill. 2d 444, 459 (2002); 725 ILCS 5/122-1(f) (West 2018)) or (2) show evidence of
actual innocence. Sanders, 2016 IL 118123, ¶ 24. 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, 2015 IL 113135, ¶ 22; People v. Coleman, 2013 IL 113307,
¶ 96. “New means the evidence was discovered after trial and could not have been discovered
earlier through the exercise of due diligence.” Coleman, 2013 IL 113307, ¶ 96. “Material
means the evidence is relevant and probative of the petitioner’s innocence.” Coleman, 2013
IL 113307, ¶ 96. To be material, the evidence “need not, standing alone, exonerate the
defendant; rather, it must tend to ‘significantly advance’ his claim of actual innocence.”
People v. Stoecker, 2014 IL 115756, ¶ 33. “Noncumulative means the evidence adds to what
the jury heard.” Coleman, 2013 IL 113307, ¶ 96. Conclusive means that the additional
evidence, “when considered along with the trial evidence, would probably lead to a different
result.” Coleman, 2013 IL 113307, ¶ 96. “Probability, not certainty, is the key ***.”
Coleman, 2013 IL 113307, ¶ 97. A piece of new evidence is conclusive if it “would probably
change the result on retrial, either by itself or in conjunction with” other new evidence also
presented by the petitioner. Sanders, 2016 IL 118123, ¶ 53; Coleman, 2013 IL 113307,
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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,
2016 IL 118123, ¶ 24. It is presumed that the new evidence will contradict the evidence of
defendant’s guilt at trial; otherwise “the purpose of the Act would be rendered meaningless.”
Robinson, 2020 IL 123849, ¶ 57. “For new evidence to be positively rebutted” at the leave-
to-file stage, “it must be clear from the trial record that no fact finder could ever accept the
truth of that evidence, such as where” the trial record “affirmatively and incontestably
demonstrate[s]” the new evidence “to be false or impossible.” Robinson, 2020 IL 123849,
¶ 60. As an example of what would rise to the level of false or impossible, the supreme court
cited a case where the new evidence asserted that the victim had been shot only once, but the
autopsy evidence at trial established that he had been shot multiple times. Robinson, 2020 IL
123849, ¶ 59 (discussing Sanders, 2016 IL 118123, ¶ 59). Once leave to file a successive
petition is granted, it is docketed for second-stage proceedings. Sanders, 2016 IL 118123,
¶ 28.
7
In its brief to this court, the State cited People v. Savory, 309 Ill. App. 3d 408, 415 (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, 2020 IL 123849, ¶ 55 (citing People v. Savory, 197 Ill. 2d 203, 213 (2001)
(specifically rejecting the “complete vindication” standard set forth in the lower court’s opinion)).
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¶ 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, 2016 IL 118123, ¶ 37. At the second
stage, the allegations in the petition are “liberally construed in favor of the petitioner.”
Sanders, 2016 IL 118123, ¶ 31. “All well-pleaded factual allegations must be taken as true.”
Sanders, 2016 IL 118123, ¶ 37. “[T]here are no factual issues” at the second stage. Sanders,
2016 IL 118123, ¶ 31. “Credibility determinations may be made only at a third-stage
evidentiary hearing.” Sanders, 2016 IL 118123, ¶ 42.
¶ 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, 2016 IL 118123, ¶¶ 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, 2016 IL 118123, ¶ 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, 2016 IL 118123,
¶ 48. By the record, the Act means “ ‘the court file of the proceeding *** and any transcripts
of such proceeding.’ ” Sanders, 2016 IL 118123, ¶ 43 (quoting 725 ILCS 5/122-2.1(c) (West
2014)); see also Robinson, 2020 IL 123849, ¶ 45 (“the trial record”).
¶ 37 When no evidentiary hearing is held, a reviewing court’s standard of review is
de novo. Sanders, 2016 IL 118123, ¶ 31. Thus, our standard of review with respect to both
petitions is de novo. Robinson,2020 IL 123849, ¶¶ 38-39 (“the denial of leave to file a
successive postconviction petition premised on a claim of actual innocence” is de novo);
Sanders, 2016 IL 118123, ¶ 31 (a second-stage dismissal is reviewed de novo). De novo
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consideration means that we perform the same analysis that a trial judge would perform.
People v. Carrasquillo, 2020 IL App (1st) 180534, ¶ 107.
¶ 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, 2013 IL 114076, ¶ 19; 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, 2013 IL 114076, ¶ 19; 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, 2016 IL
118123, ¶ 48. By the record, the Act means “ ‘the court file of the proceeding *** and any
transcripts of such proceeding.’ ” Sanders, 2016 IL 118123, ¶ 43 (quoting 725 ILCS 5/122-
2.1(c) (West 2014)); see also Robinson, 2020 IL 123849, ¶ 45 (“the trial record”). In a
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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, 2016 IL 118123, ¶ 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.
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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, 2013 IL 113307, ¶ 96. It includes testimony from a
witness who “essentially made himself [or herself] unavailable as a witness” by moving out
of state (People v. Ortiz, 235 Ill. 2d 319, 334 (2009)) or who had been made unavailable
through threats or intimidation to not testify. People v. White, 2014 IL App (1st) 130007,
¶¶ 20-22. For example, in People v. Harper, 2013 IL App (1st) 102181, ¶ 42, 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, 2013 IL App (1st) 102181, ¶ 42; see also People
v. Smith, 2015 IL App (1st) 140494, ¶ 19 (“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
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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, 2013 IL App (1st) 102181, ¶ 42.
¶ 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, 2014 IL App (1st) 130007, ¶ 20. 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, 2014 IL App (1st) 130007, ¶ 22.
¶ 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, 2013 IL 113307, ¶ 96.
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
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¶ 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, 2016 IL 118123, ¶ 31 (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
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defendant. Sanders, 2016 IL 118123, ¶ 53; Coleman, 2013 IL 113307, ¶¶ 104-08
(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, 2016 IL 118123, ¶ 48. 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, 2011 IL 108690, ¶ 49 (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, 2011 IL 108690, ¶ 35.
¶ 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, 2017 IL App (5th) 150398,
¶ 10 (“the circuit court’s orders are proper materials for judicial notice”); People v. Alvarez-
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Nos. 1-15-1735 & 1-17-2176 (cons.)
Garcia, 395 Ill. App. 3d 719, 726-27 (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, 2016 IL 118123, ¶ 33 (“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, 2016 IL
118123, ¶ 42. At this early stage, we construe defendant’s allegations “liberally” and in his
“favor.” Sanders, 2016 IL 118123, ¶ 31.
¶ 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
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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, 2019 IL 122327, ¶ 47 (an
appellate court may act “[b]ased on the particular issue raised *** in the interests of judicial
economy”); People v. Ames, 2019 IL App (4th) 170569, ¶ 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.
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No. 1-15-1735
Cite as: People v. Fields, 2020 IL App (1st) 151735Decision 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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