What is newly discovered evidence? (People v. English, 2014 IL App (1st) 102732-B)

People v. English, 2014 IL App (1st) 102732-B (June 18, 2014) Cook Co., 3d Div. Affirmed.
(Modified upon denial of rehearing 7/30/14.). Syllabus: Defendant was properly denied leave to file a successive postconviction petition alleging his actual innocence based on the claim that the State’s three inculpatory witnesses recanted their trial testimony and claimed that the inculpatory testimony was the result of police abuse. Since the allegations of defendant’s petition were not sufficiently specific to meet the procedural requirements of a successive petition alleging actual innocence, the evidence defendant proposed to present did not qualify as newly discovered evidence for purposes of the Post-Conviction Hearing Act, and there was no evidence corroborating defendant’s claims of police misconduct.

This case provides a good illustration of what is necessary to meet the threshold procedural requirements for filing a successive post-conviction petition.

“To be entitled to relief under the Act, a defendant must demonstrate a substantial deprivation of his constitutional rights in the proceedings that produced his conviction. People v. Morgan, 212 Ill. 2d 148, 153 (2004). The Act contemplates the filing of only one postconviction petition. Morgan, 212 Ill. 2d at 153. “Any claim of substantial denial of constitutional rights not raised in the original or an amended petition is waived.” 725 ILCS 5/122-3 (West 2010). The supreme court, however, has carved out an exception to this rule, relaxing the bar to successive postconviction petitions when fundamental fairness requires. Morgan, 212 Ill. 2d at 153. Generally, for a reviewing court to consider a defendant’s successive postconviction petition on its merits, the defendant must show both “cause” for his or her failure to raise the claim in the initial postconviction petition and “prejudice” resulting from this failure. People v. Pitsonbarger, 205 Ill. 2d 444, 459-60 (2002). Even if the defendant cannot meet the cause-and-prejudice test, the court may consider the successive petition if the defendant can show that consideration is “necessary to prevent a fundamental miscarriage of justice.” Pitsonbarger, 205 Ill. 2d at 459. To demonstrate a fundamental miscarriage of justice, the defendant must show actual innocence. To obtain relief under a theory of actual innocence based on “newly discovered” evidence, the defendant must offer evidence that was not available at the original trial and that could not have been discovered sooner through diligence. Morgan, 212 Ill. 2d at 154. In order to be considered, the evidence must be material, noncumulative, and of such a conclusive nature, that it would probably change the result on retrial. People v. Washington, 171 Ill. 2d 475, 489, (1996).” English, 2014 IL App (1st) 102732-B ¶35-36

The “newly discovered evidence” that defendant presented here were five-year-old and ten-year-old affidavits from State witnesses who testified in connection with a previous murder case, where those witnesses indicated that they were subjected to police misconduct, and two dated newspaper articles indicating that a “naming Detective McWeeny as one of the former Area 2 detectives that had been granted immunity in the investigation into police misconduct at Area 2.”

The Court held that the evidence that defendant submitted with his petition did not meet the “newly discovered” evidence test. The Court reasoned that the claims concerning police misconduct supported by the affidavits, which were five and ten years old, respectively, could have been raised in defendant’s original post-conviction petition. Furthermore, the newspaper articles indicating that the detective received immunity did not directly link to the claims made in those affidavits because the affidavits did not identify that particular detective as being the perpetrator of the police misconduct. Therefore, taken together, this evidence would not “probably change the result on re-trial,” as is required to meet the threshold requirement for a successive petition based on actual innocence under the Act.

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