MOORE, JUSTICE
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Richland County. No. 91-CF-39 Honorable Michael J. Valentine, Judge, presiding.
MOORE, JUSTICE delivered the judgment of the court. Justices Welch and Cates concurred in the judgment.
ORDER
MOORE, JUSTICE
¶ 1 Held: The trial judge did not err in granting the State's motion to dismiss the defendant's successive postconviction petition because even if we were to assume, arguendo, that the affidavit filed in support of the petition constitutes newly discovered evidence that could not have been discovered sooner through due diligence, and were to further assume, again arguendo, that the affidavit is material and not merely cumulative, it nevertheless is not of such conclusive character that, when considered along with the evidence presented at trial, it would probably change the result on retrial under the circumstances of this case. Accordingly, the trial judge correctly determined that the defendant was not entitled to a third-stage evidentiary hearing on the actual innocence claim he attempted to advance in the petition.
¶ 2 The defendant, Terry R. Hubbell, is serving a life sentence in the Illinois Department of Corrections for the murder of 14-year-old Angel Greenwood in 1983. He appeals the order of the circuit court of Richland County that granted the State's motion to dismiss his successive postconviction petition at the second stage of proceedings. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 Following a trial by jury, the defendant was convicted of the July 1983 murder of Greenwood. Because many of the circumstances surrounding the murder and the defendant's trial and conviction have been documented in our previous decisions involving the matter, we present only those facts necessary to our disposition of this appeal, which are as follows. On January 7, 2019, the defendant filed, by counsel, a motion for leave to file a successive postconviction petition. Therein, the defendant alleged "that a prosecution witness *** recently admitted to a third party that his testimony [at the defendant's trial] was fabricated," which the defendant alleged supported "a claim of actual innocence." The defendant noted that Rebecca Thomas had executed a sworn affidavit, which was attached to the motion, in which she averred that prosecution witness Jason Jackson-who testified at the defendant's trial that the defendant had told Jackson that the defendant killed Greenwood-had told Thomas that his testimony at the defendant's trial was false. In Thomas's accompanying affidavit, she averred that "[i]n or about May 2018," Jackson told her "that, when he gave evidence against [the defendant], he was not telling the truth." She averred that Jackson told her "that he believed [the defendant] had given evidence against him in another case so he implicated [the defendant] in this case," and that Jackson told her "that [the defendant] had not told him anything about harming or killing the victim in this case."
¶ 5 On January 9, 2019, the trial judge granted the defendant's request that he be allowed to file his successive postconviction petition. On March 29, 2019, the State filed a motion to dismiss the defendant's successive postconviction petition, in which the State contended that "[t]he new evidence" put forward by the defendant consisted entirely of hearsay found in an affidavit, and that in any case the purported evidence was cumulative and was not conclusive proof of the actual innocence of the defendant. On June 28, 2019, following a second-stage postconviction hearing that was held on May 7, 2019, the trial judge granted the State's motion to dismiss, ruling that because Jackson's testimony was attacked by the defendant at the defendant's jury trial, Thomas's affidavit was "cumulative to the evidence the jury heard during the trial," which attempted to attack Jackson's testimony "in the same manner." The trial judge also ruled that even if the affidavit were not cumulative, he did not believe the affidavit "would probably change the result on retrial," in light of the "much evidence *** set forth by the State and considered by the jury in addition to Jason Jackson's testimony, including expert testimony and the defendant's prior statements to law enforcement and others." On July 24, 2019, this appeal was timely filed. Additional facts will be presented as necessary throughout the remainder of this order.
¶ 6 II. ANALYSIS
¶ 7 The sole claim of error raised by the defendant in this appeal is his contention that the trial judge erred by granting the State's motion to dismiss, because, according to the defendant, his successive postconviction petition was based upon "newly discovered evidence" that "made a substantial showing of actual innocence, warranting an evidentiary hearing." The defendant contends that Jackson's testimony was" [c]entral" to the conviction of the defendant. He points to well-established precedent that holds that fact-finding is not permissible at the second stage of postconviction proceedings, and that all well-pleaded facts in a petition or accompanying affidavits must be taken as true. He argues that his petition should have advanced to a third-stage evidentiary hearing because he contends Thomas's affidavit (1) was "newly discovered and could not have been discovered sooner through due diligence," (2) was "material and non-cumulative," and (3) "would most likely change the result at trial." With regard to his assertion that the affidavit was noncumulative, the defendant contends that although witnesses at the defendant's jury trial attacked Jackson's credibility, no one provided the exact information that is provided by the affidavit: Thomas's averment that Jackson told her that he outright lied when he testified that the defendant had confessed to him that the defendant committed the murder of Angel Greenwood. With regard to his assertion that the affidavit would most likely change the result at trial, the defendant contends that the new evidence need not definitively establish his innocence, but instead need only undermine confidence in the outcome of his trial, which he contends it does, because "Jackson's testimony provided the only description, and from [the defendant] himself, as to what occurred inside the vehicle" the defendant and Angel Greenwood were alone in near the time she died. He posits that disregarding Jackson's testimony "undercuts the State's evidence at trial and could change the result" if a new trial were held.
¶ 8 The State responds that the trial judge did not err in granting the State's motion to dismiss, because the affidavit (1) does not constitute "newly discovered evidence," (2) "was cumulative of evidence at trial," and (3) "was not of such conclusive character that it would probably change the result on retrial." With regard to its first contention, the State points to the general principle of law that to qualify as new evidence, it is the facts comprising that evidence which must be new and undiscovered as of trial, in spite of the exercise of due diligence, and that, generally speaking, evidence is not considered to be "newly discovered" when it encompasses facts already known to the defendant at trial, though the source of those facts may have been unknown, unavailable, or uncooperative. Applying this principle to the case at bar, the State posits that the defendant knew at the time of his trial that Jackson was not testifying truthfully, and that in fact the defendant testified as such as part of his defense, and also presented the testimony of another witness in his defense who attacked the credibility of Jackson's testimony. In support of its position, the State notes that no recantation by Jackson of his testimony occurred in this case, so there is no legal basis to depart from the above principle of law. Instead of a recantation, the State notes, this case involves only an affidavit from someone other than the witness in question, which this court has recently noted does not constitute recantation evidence. The State also notes that even if Thomas's affidavit were somehow construed to be recantation evidence with regard to Jackson's testimony, the fact remains that the defendant presented evidence at trial that he believed Jackson was lying, and therefore the defendant cannot invoke the newly discovered evidence rule under existing precedent.
¶ 9 With regard to its second contention, the State argues that the affidavit was cumulative of the evidence at trial because (1) it was cumulative of the defendant's trial testimony that he never made inculpatory statements to Jackson, and because Thomas was not an eyewitness to the events in question, her affidavit could not be considered noncumulative under existing case law, and (2) it was cumulative of the testimony of another witness presented by the defendant in his defense, David Sisney, who, although not allowed to testify that Jackson lied during his testimony, insinuated as much in his testimony that Jackson had revealed to him a plan to get a reduced sentence for himself in another case by claiming that the defendant confessed to Jackson that the defendant murdered Angel Greenwood.
¶ 10 With regard to its third contention, the State argues that Thomas's affidavit was not of such conclusive character that, when considered along with the evidence presented at trial, it would probably change the result on retrial. The crux of the State's argument with regard to this point is its contention that Jackson's testimony was far from central to the conviction of the defendant, because extensive other evidence of the defendant's guilt-aside from Jackson's testimony-was presented to the jury as well. The State then recounts in detail the extensive evidence that the State alleges demonstrates the defendant's guilt. The State asserts that even when Thomas's affidavit is taken as true, as it must be at this stage of proceedings, and even when questions of its hearsay nature and admissibility are not considered, as they must not be at this stage of proceedings, the defendant simply cannot show that the affidavit "undercuts the State's evidence at trial and could change the result" if a new trial were held.
¶ 11 In his reply brief, the defendant reiterates his previous arguments as to each point. With regard to the likelihood of changing the result on retrial, the defendant claims that "Jackson's testimony *** provided the State's reason and explanation for the killing," and therefore "was important evidence and key to the State's theory of what happened between [the defendant] and Greenwood" in the vehicle they were alone in near the time she died. The defendant asserts that "[t]he evidence in Thomas's affidavit contradicts the State's trial evidence," and that accordingly we "should find that the evidence in Thomas's affidavit places the trial evidence in a different light and undermines confidence in the judgment of guilt."
¶ 12 We need not resolve the first two contentions of the defendant, because we agree with the State that even if we were to assume, arguendo, that the affidavit is newly discovered evidence that could not have been discovered sooner through due diligence, and even if we were to further assume, again arguendo, that the affidavit is material and not merely cumulative, it nevertheless is not of such conclusive character that, when considered along with the evidence presented at trial, it would probably change the result on retrial. We begin with the following well-established principles of law. The dismissal of a postconviction petition-including a successive postconviction petition-at the second stage of proceedings is reviewed de novo. See, e.g., People v. Sanders, 2016 IL 118123, ¶ 31. That is the case because "[t]he question raised in an appeal from an order dismissing a postconviction petition at the second stage is whether the allegations in the petition, liberally construed in favor of the petitioner and taken as true, are sufficient to invoke relief under the" applicable statutory scheme. Id. Because "there are no factual issues at the dismissal stage of the proceedings, the question is essentially a legal one, which requires the reviewing court to make its own independent assessment of the allegations of the petition and supporting documentation." Id. The standards for assessing the adequacy of a postconviction petition at the second stage of proceedings are the same for successive and initial petitions. Id. ¶ 37. The petition "must make a substantial showing of actual innocence such that an evidentiary hearing is warranted." Id. In assessing the petition for purposes of a motion to dismiss," [a] ll well-pleaded factual allegations must be taken as true." Id.
¶ 13 As the State points out, the Illinois Supreme Court recently has reiterated that "[t]o establish a claim of actual innocence, the supporting evidence must be (1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it would probably change the result on retrial." People v. Robinson, 2020 IL 123849, ¶ 47. Moreover, "the conclusive character element refers to evidence that, when considered along with the trial evidence, would probably lead to a different result," and "is the most important element of an actual innocence claim." Id. The ultimate question for a court "is 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." Id. ¶ 48. Viewed this way, the newly discovered evidence does not have to "be entirely dispositive to be likely to alter the result on retrial," because" [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. We note that in addition to these points made in its recent decision in Robinson, the Illinois Supreme Court, in Sanders, conducted an analysis of the prior evidence at the defendant's trial and concluded that in light of that evidence, the recantation evidence offered in support of the defendant's actual innocence claim, even when taken as true, simply was not of such conclusive character as to probably change the result on retrial, and that accordingly the defendant had failed to make a substantial showing of a claim of actual innocence that entitled him to survive the State's motion to dismiss and to proceed to a third-stage evidentiary hearing. Sanders, 2016 IL 118123, ¶¶ 47-55.
¶ 14 In this case, as the State aptly notes, if one were to completely exclude Jackson's trial testimony on the basis of Thomas's claim-taken as true-that Jackson lied at trial, nevertheless a "mountain of evidence" that overwhelmingly demonstrated the defendant's guilt was properly presented to the jury. That mountain of prior evidence included, but was not limited to, the following: (1) testimony from multiple witnesses who connected the defendant to Angel Greenwood near the time of her death, (2) the defendant's own admission that he was with Angel at the time she died, (3) overwhelming and uncontradicted physical evidence from multiple medical and law enforcement witnesses that Angel's death could not have happened in the "accidental" manner the defendant claimed it did, (4) testimony from multiple witnesses about the defendant's attempts to seek an alibi and otherwise act in a deceptive manner with regard to the night Angel was murdered and the circumstances surrounding her murder, all of which showed a consciousness of guilt, and (5) testimony from multiple witnesses about allegedly inculpatory statements made by the defendant in their presence at various times after the murder but prior to the apprehension and charging of the defendant. As the State correctly summarizes," [e]ven if [the] defendant did not confess to Jackson in 1991, all of the rest of the evidence against him stands undisturbed by Thomas's affidavit." There is simply no reasonable way for this court to conclude that Thomas's affidavit "undercuts the State's evidence at trial and could change the result" if a new trial were held. It does not and it could not. Likewise, there is no reasonable way for this court to conclude that Thomas's affidavit "places the trial evidence in a different light and undermines the court's confidence in the judgment of guilt," or that there is any probability at all that "the fact finder would reach a different result after considering the prior evidence along with the new evidence." See Robinson, 2020 IL 123849, ¶ 48. Accordingly, the trial judge did not err when he granted the State's motion to dismiss the defendant's successive postconviction petition.
¶ 15 III. CONCLUSION
¶ 16 For the foregoing reasons, we affirm the order of the circuit court of Richland County that granted the State's motion to dismiss the defendant's successive postconviction petition.
¶ 17 Affirmed.
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