People v. Simms , 2021 IL App (1st) 161067-B ( 2021 )

2021 IL App (1st) 161067THIRD DIVISION
January 20, 2021
No. 1-16-1067
THE PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 00 CR 1137
)
AHMAD SIMMS, ) Honorable
) Stanley J. Sacks,
Defendant-Appellant. ) Judge Presiding.
PRESIDING JUSTICE HOWSE delivered the judgment of the court, with opinion.
Justices Ellis and Cobbs concurred in the judgment and opinion.
OPINION
¶1 Defendant Ahmad Simms 1 appeals from the denial of his pro se motion for leave to file a
successive postconviction petition under the Post-Conviction Hearing Act (Act) (725 ILCS
5/122-1 et seq. (West 2016)). He argues he should be permitted leave to file a successive petition
because he presented an actual innocence claim based on newly discovered evidence. For the
following reasons, we reverse and remand for second stage postconviction proceedings.
¶2 I. BACKGROUND
¶3 On November 27, 1999, the body of Susie Irving was discovered inside her apartment on
the 7000 block of South Michigan Avenue. Dr. Thamrong Chira, Cook County deputy medical
examiner, testified, as an expert in forensic pathology, that he performed an autopsy on Irving
1
We note that defendant also goes by the name Ahmad Sims, as in People v. Sims, 349 Ill. App.
3d 1037 (2004) (table) (unpublished order under Illinois Supreme Court Rule 23).
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and found the cause of death to be a single, contact gunshot wound above her right forehead. Dr.
Chira recovered a bullet from Irving’s head and determined the manner of death to be homicide.
¶4 In January 2000, defendant, along with codefendants, Lino Niles and Curtis King, were
charged, by indictment, with five counts of first degree murder, six counts of home invasion, and
one count each of armed robbery, residential burglary, and possession of burglary tools. Prior to
trial, the State nol-prossed the residential burglary and possession of burglary tools charges.
Defendant and Niles were tried in separate but simultaneous jury trials. Defendant was convicted
of first degree murder, armed robbery, and home invasion. He was sentenced to a total of 60
years’ imprisonment: a 45-year term for first degree murder and two concurrent 15-year terms
for armed robbery and home invasion to be served consecutively to his murder sentence. We
affirmed on direct appeal. People v. Sims, 349 Ill. App. 3d 1037 (2004) (table) (unpublished
order under Illinois Supreme Court Rule 23).
¶5 Prior to trial, defendant filed a motion to suppress evidence, claiming that his statements
to the police were involuntarily made. The trial court denied the motion, finding that defendant
was advised of his rights and there was no credible evidence that the police violated his
constitutional rights.
¶6 Because defendant presents a claim of actual innocence based on an affidavit from Niles
purporting to state that defendant was not involved in the crime, we will, at the appropriate time,
recount in detail the evidence of defendant’s involvement in the offense presented at his jury
trial. At this juncture we provide an overview of the events that led to Irving’s death.
¶7 At trial, the State’s theory of the case was that defendant was guilty of the murder by
accountability. According to the State’s theory of the case, defendant, Niles, and King planned to
burglarize Irving’s apartment. In the afternoon of November 27, 1999, defendant, Niles, and
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King forced their way into Irving’s apartment and shot and killed her. They then removed
various items from the house, including a video cassette recorder (VCR), a coin collection, a
small baseball bat, a small television, a maroon attaché case, a small briefcase containing some
coins, a Christian Brothers brandy bottle containing coins, and a comforter. They later sold some
of the items at an auto shop nearby and left some of the items in the garbage behind the same
auto shop. Many of these items were recovered by police during their investigation, and the
items were identified as belonging to Irving. Defendant also admitted to law enforcement, via a
written statement and a videotaped statement, that he assisted Niles in breaking into and robbing
Irving’s apartment but claimed that Niles was the shooter.
¶8 Evelyn Parks testified that on November 27, 1999, she lived with her 84-year-old sister,
Susie Irving, in an apartment on the 7000 block of South Michigan Avenue in Chicago. On that
day, Parks left the apartment between 11:30 a.m. and noon. When she returned home about 6
p.m., she learned that the apartment had been broken into and Irving had been killed via a
gunshot wound to the head. Items missing from the apartment included a VCR, a coin collection,
a small baseball bat, a small television, a maroon attaché case, a small briefcase containing some
coins, a Christian Brothers brandy bottle containing coins, and a comforter.
¶9 Anthony Hawkins, the nephew of Parks and Irving, testified that he lived in the apartment
above them. He left the building that day about 10:45 a.m. He returned to the apartment about 2
p.m. with his daughter, niece, and nephew, and he saw that the basement door latch was broken.
His niece saw Irving lying on the floor in the apartment. Hawkins saw blood on her head and
noticed that her walker had been tipped over. He then called 911. He also testified that there was
some damage to his own apartment door.
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¶ 10 Chicago police detective Michael Baker testified that he investigated Irving’s murder.
About 3:15 p.m. on November 27, 1999, he was directed to Irving’s address. Upon approaching
the apartment, he noticed some damage to the door. He then saw Irving’s body on the floor and
observed that the apartment was in disarray. He also later observed damage to the basement
door, the second-floor door, and the exterior door to the basement.
¶ 11 About 10:45 p.m. that day, Baker received an anonymous phone call that led him to
search a dumpster and garbage cans on the property of J&B Auto Repair, located just two
buildings away from Irving’s apartment building. Inside the dumpster, Baker found a purple
attaché case, a vinyl case, and a broken Christian Brothers brandy bottle with coins in it. He also
found a comforter and a small baseball bat inside a garbage can. Photographs of these items were
later shown to Parks, who identified them as being taken from her apartment.
¶ 12 Chicago police forensic investigator Thomas Ginnelly testified that he was assigned to
the crime scene at Irving’s apartment building. During a search of the living room for firearms
evidence, he located a cartridge case underneath a couch cushion. The case was from a .25-
caliber gun.
¶ 13 The jury found defendant guilty of first degree murder, armed robbery, and home
invasion. Defendant moved for a new trial, which the trial court denied. The court then sentenced
him to a 45-year term for first degree murder and two concurrent 15-year terms for armed
robbery and home invasion to be served consecutively to his murder sentence.
¶ 14 Defendant filed a direct appeal, arguing that the trial court erred in denying him his right
to confront and cross-examine a witness at trial regarding the witness’s bias or motive for
testifying. This court affirmed his conviction and sentence and directed his mittimus to be
corrected. Sims, 349 Ill. App. 3d 1037.
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¶ 15 On July 8, 2005, defendant filed a postconviction petition under the Act, which raised
several claims. The trial court determined that the petition was frivolous and patently without
merit and summarily dismissed his petition on August 15, 2005. On appeal, this court affirmed
that order, after granting appointed counsel’s motion for leave to withdraw pursuant to
Pennsylvania v. Finley, 481 U.S. 551 (1987). People v. Simms, No. 1-05-3100 (unpublished
summary order under Illinois Supreme Court Rule 23(c)).
¶ 16 On September 29, 2011, defendant filed a pro se petition for habeas corpus relief. The
trial court denied defendant’s petition on October 6, 2011. This court affirmed, after granting
appointed counsel’s motion for leave to withdraw pursuant to Finley. People v. Simms, No. 1-11-
3528 (2012) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 17 On April 19, 2013, defendant filed a pro se motion for leave to file a successive
postconviction petition, along with an affidavit from Niles. We discuss Niles’s affidavit in detail
below. In the motion, defendant raised numerous claims, including that (1) law enforcement
officers had no legal basis to arrest him, (2) his confession was involuntary, (3) his constitutional
rights were violated when the State unlawfully amended his indictment, (4) he was denied his
right to a fair trial, (5) he was denied effective assistance of counsel, and (6) the trial court
prevented the jury from considering defendant’s defense by instructing the jury to disregard that
evidence.
¶ 18 The trial court addressed each claim individually and denied defendant leave to file the
successive petition, concluding that defendant failed to satisfy the cause-and-prejudice test or to
set forth a colorable claim of actual innocence. Defendant now appeals, arguing the trial court
should have granted him leave to file a successive postconviction petition and that petition
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should advance to second-stage postconviction proceedings because Niles’s affidavit constitutes
newly discovered evidence that states a colorable claim of actual innocence.
¶ 19 As a threshold matter, we note that defendant did not explicitly raise a claim of actual
innocence in his motion for leave to file a successive petition. However, because postconviction
petitions are to be liberally construed and the content of Niles’s affidavit is sufficient to raise a
claim of actual innocence, we will address whether the court erred in denying defendant leave to
file a successive petition. See People v. Pack, 224 Ill. 2d 144, 150 (2007) (stating postconviction
petitions are to be “ ‘liberally construed to afford a convicted person an opportunity to present
questions of deprivation of constitutional rights’ ”) (quoting People v. Correa, 108 Ill. 2d 541,
546 (1985)).
¶ 20 II. ANALYSIS
¶ 21 The Act permits a defendant to collaterally attack a conviction by asserting it resulted
from a “substantial denial” of his constitutional rights. 725 ILCS 5/122-1(a)(1) (West 2016).
However, the Act does not contemplate the filing of successive postconviction petitions. People
v. Edwards, 2012 IL 111711, ¶ 22. As such, “[s]uccessive postconviction petitions are disfavored
under the Act,” and a defendant must first obtain leave of the court under one of two exceptions.
People v. Jones, 2017 IL App (1st) 123371, ¶¶ 41, 45. In order to file a successive petition, the
defendant’s petition must satisfy the cause-and-prejudice test or it must state a colorable claim of
actual innocence. People v. Jackson, 2016 IL App (1st) 143025, ¶ 19. The latter claim is
permitted because “a wrongful conviction of an innocent person violates due process.” People v.
Williams, 392 Ill. App. 3d 359, 367 (2009). When a defendant raises a claim of actual innocence
“leave of court should be granted when the petitioner’s supporting documentation raises the
probability that ‘it is more likely than not that no reasonable juror would have convicted him in
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the light of the new evidence.’ ” Edwards, 2012 IL 111711, ¶ 24 (quoting Schlup v. Delo, 513
U.S. 298, 327 (1995)). The requirements for establishing a claim of actual innocence are as
follows:
“[T]he defendant must present new, material, noncumulative evidence that is so
conclusive it would probably change the result on retrial. [People v. Washington,
171 Ill. 2d 475, 489 (1996)]. New means the evidence was discovered after trial
and could not have been discovered earlier through the exercise of due diligence.
See [People v. Burrows, 172 Ill. 2d 169, 180 (1996)]. Material means the
evidence is relevant and probative of the petitioner’s innocence. People v. Smith,
177 Ill. 2d 53, 82-83 (1997). Noncumulative means the evidence adds to what the
jury heard. [People v. Molstad, 101 Ill. 2d 128, 135 (1984)]. And conclusive
means the evidence, when considered along with the trial evidence, would
probably lead to a different result. [People v. Ortiz, 235 Ill. 2d 319, 336-37
(2009)].” People v. Coleman, 2013 IL 113307, ¶ 96.
To this end, “all well-pleaded facts that are not positively rebutted by the trial record are taken as
true.” People v. Harper, 2013 IL App (1st) 102181, ¶ 38. We review a trial court’s ruling on a
motion for leave to file a successive postconviction petition de novo. People v. Bailey, 2017 IL
121450, ¶ 13.
¶ 22 Here, defendant claims that he has presented a colorable claim of actual innocence based
on Niles’s affidavit. Defendant argues this affidavit tends to exonerate him in the commission of
these offenses.
¶ 23 We first address whether Niles’s affidavit constitutes new evidence. Niles’s affidavit did
not specifically state why defendant could not have obtained his testimony sooner, nor did
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defendant allege what efforts he had taken to obtain this new account previously. See People v.
Barnslater, 373 Ill. App. 3d 512, 525 (2007) (concluding that the evidence was not “newly
discovered” because defendant did not show that the victim’s recantation could not have been
obtained earlier). However, as a codefendant, Niles had a “fifth amendment right to avoid self-
incrimination,” and thus, “[n]o amount of diligence could have forced him to violate that right if
he did not choose to do so.” Edwards, 2012 IL 111711, ¶ 38; People v. Molstad, 101 Ill. 2d 128,
135 (1984); Harper, 2013 IL App (1st) 102181, ¶ 42. We find the affidavit constitutes new
evidence. We also find, and the State does not argue to the contrary, that the affidavit is both
material and noncumulative. Niles’s averments are relevant and also potentially probative of
defendant’s innocence. The evidence is also not cumulative because no one at trial testified that
defendant was not involved in the offenses, which goes to an ultimate issue in the case. See
People v. Ortiz, 235 Ill. 2d 319, 336 (2009) (citing Molstad, 101 Ill. 2d at 135).
¶ 24 Turning to the question of whether Niles’s affidavit is so conclusive it would probably
change the result on retrial, we initially stated that we would rely on our supreme court’s decision
in Sanders, 2016 IL 118123, and the decision by the United States Supreme Court in Schlup, 513
U.S. 298. Following our giving of “careful[] consider[ation of] what it means for the evidence to
be “taken as true unless positively rebutted by the record” and for the evidence to “probably lead
to a different result” (People v. Simms, 2020 IL App (1st) 161067, ¶ 24), we “d[id] not find that
Niles’s affidavit constitutes conclusive evidence that would probably lead to a different result at
trial” (id. ¶ 44).
¶ 25 On September 30, 2020, our supreme court issued a supervisory order directing this court
to vacate our judgment and to “consider the effect of [its] opinion in People v. Robinson, 2020 IL
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123849, on the issue of whether defendant presented a colorable claim of actual innocence based
on the affidavit presented with the motion for leave to file a successive post-conviction petition.”
¶ 26 In Robinson, our supreme court addressed the question of whether the evidence in that case
“was of such conclusive character as would probably change the outcome on retrial.” Robinson,
2020 IL 123849, ¶ 54. Our supreme court began noting that the lower courts “erred in applying an
incorrect standard when considering the sufficiency of [the] affidavits.” Id. ¶ 55. Our supreme
court found the lower courts had erred in “employing a standard that requires evidence of total
vindication or exoneration to support a claim of actual innocence” (id. ¶ 55), by “erroneously
premis[ing] its decision on a ‘conflicting evidence’ standard” (id. ¶ 57), and because the lower
courts erroneously “believed that the evidence in the supporting affidavits was positively rebutted
simply because it was contradicted by the evidence presented at trial (id. ¶ 60). The correct
standards and analytical framework (see id. ¶ 61) do not employ a “total vindication or exoneration
standard” but instead only require that the evidence “tend[] to significantly advance” the claim of
actual innocence. Id. ¶ 55. “[T]he new evidence supporting an actual innocence claim need not be
entirely dispositive to be likely to alter the result on retrial. [Citation.] Rather, the conclusive-
character element requires only that the petitioner present evidence that places the trial evidence
in a different light and undermines the court's confidence in the judgment of guilt. [Citation.]”
(Emphasis added.) Robinson, 2020 IL 123849, ¶ 56. The new evidence cannot be “positively
rebutted” by the record but the analytical framework for that determination is not whether the
newly discovered evidence “was contradicted by the evidence presented at trial.” Id. ¶ 60. Instead,
at the leave to file a successive petition phase of proceedings, this standard requires that “it must
be clear from the trial record that no fact finder could ever accept the truth of that evidence, such
as where it is affirmatively and incontestable demonstrated to be false or impossible.” Id. Viewing
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the newly discovered evidence this way, then, “[i]n assessing whether a petitioner has satisfied the
low threshold applicable to a colorable claim of actual innocence, the court considers only whether
the new evidence, if believed and not positively rebutted by the record, could lead to acquittal on
retrial.” Id.
¶ 27 The only evidence in support of petitioner’s successive postconviction petition at issue in
this case is Niles’s affidavit. Given its importance, we set out the affidavit in its entirety:
“I, Lino Niles do hereby declare & affirm that the following information
within this affidavit is true and correct in substance and in facts:
To whom it may concern I submit this affidavit in the form of a letter
asking that it be taking as being true on the merits of my reasons of which I
sincerely apologize for, or me including Droopy/Ahmad Simms in the case of
which I committed murder. Some say that people do things out of fear because of
the surrounding circumstances of those events [unreadable/stricken] taken place. I
on the other hand chose differently and act simply out of ‘revenge’, and told the
police that Droopie/Ahmad was with me when I did the murder-home invasion-
armed robbery. I included him because I thought when police took guys to the
police station in a sweep off my block and question’d them, that Droopie/Ahmad
Simms was with the guys tellin [sic] the police about me[,] knowing that I didn’t
mess with nobody else on that block but him at that time. And Yes I considered
Droopy at that time my best friend and felt that it was the ultimate betrayal for
him to tell on me [unreadable] one I trusted other than myself out on these streets.
However Droopie/Ahmad Simms knew about what happened just like everybody
else because it happened in the hood. I just lied about certain things that whereas
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he really cared not to know. But I never told him I was the one who did it in no
shape form or fashion, I just told him that I needed his help in selling some stuff
so that I could get some money in my pocket. In the end the fact of the matter is, I
lied to the police about Droopie/Ahmad Simms being involved to shift the blame
from myself by all means possible. Even to the point where I took the police
where he would spend the night before his mother would come & pick him up to
go back home out the city. I told police he had the gun and that he had some of
the stuff that I took out of the [apartment] hoping in the end by me doing so that I
would be able to walk free or at least do a little time. But coming t [sic] the
conclusion of things after everything was put on the table *** now realize in all
my effortless rationale attempts that I actually caused an innocent person to be
locked up who had absolutely no involvement whatsoever. I know I have surely
lost a friend but one thing for sure that I will not lose is ‘my dignity’ to do right as
a man, no matter how long it has taken me to say the truth or will take me to say
the truth.
I am truly sorry for getting Droopie locked up and I accept full
responsibility of my actions in doing so. For my selfish means and ways of being
free I even witness’d my sacrifices getting afflicted upon Droopie/Ahmad Simms
by the police and know that the police had believed everything that I told them to
the point they would go to those extreme measures just to get to the truth even if it
wasn’t the truth. I also apologize for him going through that physical abuse and
any other abuse he may had or have suffered. I don’t know in the end of what
would be the outcome of me now admitting to the murder but just know that me
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and my other co-defendant Curtis King was the only two involved. Whether you
believe me or not, and I’m not trying to be disrespectful when I say this, ‘is totally
up to you.’ Am so in the event of everything that I’ve admitted to, not reaching
[unreadable] hands of Droopie/Ahmad Simms in time. I just want to go on record
and said that I’m sorry for getting you locked up and I hope that you can find it
within your heart to forgive me if this [unreadable].
Pursuant to 28 U.S.C. 1746, 18 U.S.C. 1621 or 735 ILCS 5/1-109, I
declare under penalty of perjury, that everything contained herein is true and
accurate to the best of my knowledge and belief. I do declare and affirm that the
matter at hand is not taken either frivolously or maliciously and that I believe the
foregoing matter is taken in good faith.”
¶ 28 Our first task is to determine whether these statements are positively rebutted by the
record. To make that determination we must ask whether it is “clear from the trial record that no
fact finder could ever accept the truth of [this] evidence.” Robinson, 2020 IL 123849, ¶ 60.
¶ 29 To aid our determination we first pull from Niles’s affidavit what Niles actually says
about defendant’s “actual innocence” of the crimes for which he was convicted, Niles’s affidavit
avers about defendant that:
(1) Niles acted out of revenge when he told police defendant was with him
when Niles committed the murder, home invasion, and armed robbery. (However,
Niles did not say that defendant was not with him when Niles committed the
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murder, home invasion, and armed robbery. Niles could mean he acted out of
revenge in revealing defendant’s participation.) 2
(2) Niles “included” defendant because Niles thought defendant was
informing the police about Niles. (What Niles thought defendant was telling
police about him is admittedly unclear.)
(3) Defendant knew about the crime “just like everybody else.” (Niles
does not say this is the only reason defendant knew about the crime, and as will
be revealed later in Niles’s affidavit, neighborhood gossip was not the only reason
defendant knew about the crime.)
(4) Niles lied to defendant about “certain things” that defendant did not
want to know. (What things Niles lied about is unknown.)
(5) Niles never told defendant he (Niles) “was the one who did it;” Niles
only told defendant Niles needed defendant’s help to sell some things. (Did what,
exactly is open to interpretation: it might mean firing the fatal shot. Niles may
2
Notably, in Edwards, our supreme court considered whether the petitioner in that case set forth a
colorable claim of actual innocence or, “[i]n other words, did [the] petitioner’s request for leave of court
and his supporting documentation raise the probability that it is more likely than not that no reasonable
juror would have convicted him in the light of the new evidence,” where the petitioner relied on the
affidavit of a codefendant who averred the petitioner “ ‘had nothing to do with this shooting’ and was
neither ‘a part [of nor] took part in this crime.’ ” Edwards, 2012 IL 111711, ¶¶ 31, 39. Our supreme court
found the affidavit did not raise the probability that, in light of that new evidence, it is more likely than
not that no reasonable juror would have convicted the petitioner because the evidence was “not ‘of such
conclusive character that it would probably change the result on retrial’ [citation]. [Citations.]” Id. ¶ 40.
Our supreme court noted that the petitioner “critically [did] not assert that [the] petitioner was not present
when the shooting took place” and the affiant’s “averment in his affidavit that he was the principal
offender ‘does little to exonerate [the] defendant who *** was convicted of the murder under the theory
of accountability.’ ” (Emphasis omitted.) Id. ¶ 39.
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have told defendant he needed defendant’s help to sell the things they planned to
take from Irving together.) 3
(6) Niles lied to police about defendant being “involved.” (Niles does not
say what involvement, or level of involvement, he lied about. He may mean he
lied about defendant having any involvement, or any involvement in the execution
of any discrete element of the crime, leaving open the possibility of defendant’s
“involvement” in any portion of the crime from its planning to the disposal of its
proceeds.)
(7) Niles told police defendant had the gun and some proceeds from the
crime to downplay his own culpability. (We note that Niles’s motive for pointing
police in defendant’s direction does not exonerate defendant.)
(8) Niles caused an “innocent” person to be locked up because defendant
“had no involvement whatsoever.” (Niles does not say what, exactly, defendant is
“innocent” of. And again, “involvement” in what is left vague. Defendant may
have had no “involvement whatsoever” in the decision to pull the trigger, or in
physically taking the proceeds of the robbery, and still assisted Niles to gain entry
for the purpose of taking the items Niles told defendant he needed to sell to get
some money in his pocket.)
(9) “I don’t know in the end of what would be the outcome of me now
admitting to the murder but just know that me and my other co-defendant Curtis
King was the only two involved.” (Niles does not unequivocally state that only he
3
To be accountable, defendant had to intentionally help plan or commit the crimes “either before
or during the commission of [the] offense[s].” 720 ILCS 5/5-2(c) (West 2016).
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and King robbed Irving’s apartment, or murdered her, or that defendant
committed no crimes related to the offenses. Niles notably did not mention the
robbery and home invasion.)
¶ 30 We note again the trial court convicted defendant of first degree murder on the basis of
accountability, home invasion, and armed robbery. The following evidence of those crimes
pertinent to our current inquiry was adduced at defendant’s trial: According to Parks’s testimony
the offenders gained entry to Irving’s building through the basement door. The crime occurred
between 11 a.m. and 2 p.m. According to witness Raymond Orange’s testimony, at around 1:15
p.m. on the day of the murder defendant and Niles walked out of Irving’s building, walked to the
garbage, and returned to Irving’s building. One of them had something under his arm. According
to Jimmy Minter’s testimony, defendant and Niles came to Minter’s auto shop located just two
buildings north of the scene of the crime sometime after 3 p.m. on the day of the crime. Minter
testified a pry bar was missing from his toolbox that afternoon. Defendant sold Minter a VCR.
Niles was in possession of a bag of coins and a purple attaché case. Parks testified that coins, a
VCR, and maroon attaché case were missing from Irving’s apartment.
¶ 31 Detective Baker testified the basement door, the door to Irving’s apartment, and the door
to the second-floor apartment were damaged.
¶ 32 Additionally, defendant gave two statements to police, both of which were substantially
the same. In the first statement defendant told police he saw Niles at Minter’s auto shop on the
morning of the murder, and Niles told defendant that Niles had been stalking Irving because
Irving had won the lottery. Defendant and Niles went to Irving’s home. Defendant had a pry bar,
and Niles had a gun. Defendant told police that the basement door to Irving’s home looked like
Niles had previously tried unsuccessfully to pry open the door. Defendant and Niles then broke
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the basement door open and entered. Defendant told police he and Niles went upstairs, pried
open the foyer door, and entered Irving’s apartment. Defendant told police that Irving started
screaming and Niles put a pillow over her face and shot her in the head. Defendant then grabbed
the VCR and other items, while Niles took coins and anything else he could find. According to
defendant’s statement, he then took the VCR and a television outside then returned to the
apartment. When defendant returned, Niles told defendant to try to get into the second-floor
apartment. Defendant tried, but he and Niles fled when he heard noises outside. Defendant told
police he and Niles took the contraband to the auto shop, where defendant sold the VCR and
television to Minter. Niles told defendant to dispose of the gun. Defendant took a bus to his
aunt’s home, where he sold the gun on the street.
¶ 33 Assistant State’s Attorney Thomas Darman testified that he interviewed defendant on
December 2, 1999, and defendant told him a similar version of events that he told Baker. After
Darman interviewed Curtis King, he spoke with defendant again. Defendant told him the same
version as before, except now he included that King served as a lookout. King also helped them
remove items from the apartment.
¶ 34 In assessing whether the evidence in support of the successive postconviction petition is
positively rebutted by the evidence adduced at trial we make the following observations:
(1) Based on the timeline and positive identification, Orange testified
defendant was with Niles when Niles committed the murder, home invasion, and
armed robbery.
(2) Niles’s statement as to why he informed police about defendant is not
a fact that can be refuted.
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(3) There is evidence in the record defendant knew about the crime
because he participated. Orange testified defendant was present. Minter testified
defendant sold him proceeds from the robbery. Orange’s statement is consistent
with the statement defendant gave police, and defendant’s statement is consistent
with the physical condition of the doors in Irving’s building.
(4) Niles’s statement that he lied to defendant about “certain things” is not
a fact that can be refuted.
(5) What Niles did or did not tell defendant is not refuted.
(6) Niles’s statement that he lied to police about defendant being
“involved” is not a fact that can be refuted.
(7) Niles’s statement as to why he informed police about defendant is not
a fact that can be refuted.
(8) Niles’s statement that defendant is “innocent” and that Niles lied to
police about defendant being “involved” is not refuted.
(9) Niles’s statement that he and King were the only two “involved” is not
refuted.
¶ 35 Under the Robinson standard, we find the newly discovered evidence in Niles’s affidavit
is not positively rebutted by the record. While there are contradictions between the averments in
the affidavit and the trial evidence, contradictions are not enough to cause defendant to fail this
part of the test “because recognizing the existence of a conflict with the trial evidence is not the
same as finding that the new evidence is positively rebutted.” On the contrary, nothing in the trial
record makes Niles’s averments “incontestably *** false or impossible.” Robinson, 2020 IL
123849, ¶ 60. As stated above we recognize the indefiniteness in many of Niles’s averments. For
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example, Niles’s statement that defendant is “innocent” and that Niles lied to police about
defendant being “involved” is not necessarily exonerating without knowing what Niles believes
defendant is “innocent” of (The murder? The home invasion? The robbery? All of the above?) or
what Niles allegedly lied about defendant being involved in. (For example, Niles could plausibly
mean “involved” in the murder but not that he lied about defendant being “involved” in the home
invasion and robbery.) That is of no matter at the leave to file stage of postconviction proceedings
at which “all well-pleaded allegations in the petition and supporting affidavits that are not
positively rebutted by the trial record are to be taken as true. [Citations.]” Robinson, 2020 IL
123849, ¶ 45, see also People v. Coleman, 183 Ill. 2d 366, 380 (1998) (“when a petition is filed
invoking Sanders, 2016 IL 118123, ¶¶ 37, 42 (“credibility is not an issue at the second stage of
postconviction proceedings”).the act, the trial court shall examine the petition with a view to
determining whether the allegations of fact, liberally construed in favor of the petitioner, and taken
as true, make a showing of imprisonment in violation of the Federal or State constitution,”).
Finally, “[i]n deciding the legal sufficiency of a postconviction petition, the court is precluded
from making factual and credibility determinations. [Citations.]” Robinson, 2020 IL 123849, ¶
45.
¶ 36 Next, we must determine whether that new evidence “is so conclusive that it is more
likely than not that no reasonable juror would find [the petitioner] guilty beyond a reasonable
doubt.” Sanders, 2016 IL 118123, ¶¶ 47, 52-53. In assessing whether defendant “has satisfied the
low threshold applicable to a colorable claim of actual innocence” we may ask “only whether the
new evidence *** could lead to acquittal on retrial.” Robinson, 2020 IL 123849, ¶ 60. To answer
that question, “we ascertain whether the supporting affidavits raise the probability that it is more
likely than not that no reasonable juror would have convicted [defendant.]” Id. ¶ 61.
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¶ 37 In this case, under the Robinson standard, we find that Niles’s affidavit constitutes
conclusive evidence that would probably lead to a different result at trial. Niles averred he lied to
police about defendant’s involvement in the crime, that he and King were the only two people
involved in the crime, and, most importantly, that defendant is innocent. Niles’s statement that he
and King were the only two “involved,” although not clear, could be considered exonerating. We
cannot say that taking these averments as true, as we must, we think it more likely than not that
no reasonable juror would have convicted defendant of these crimes.
¶ 38 Niles’s affidavit, taken as true, even with all its vagueness and uncertainty, is, pursuant to
Robinson, of such conclusive character as would probably change the result on retrial. Thus,
defendant has carried “his burden to make a substantial showing of a claim of actual innocence.”
Sanders, 2016 IL 118123, ¶ 55. Furthermore, “the legislature did not intend to authorize partial
dismissals of pro se postconviction petitions.” People v. Patton, 315 Ill. App. 3d 968, 975 (2000).
Accordingly, the judgment of the circuit court of Cook County is reversed and the cause is
remanded for further postconviction proceedings, consistent with this opinion.
¶ 39 III. CONCLUSION
¶ 40 For the reasons set forth above, we reverse the judgment of the circuit court of Cook
County and remand this case for further proceedings.
¶ 41 Reversed and remanded..
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