The appellant in People v. House, 2020 IL App (3d) 170655, appealed the decision of the trial court dismissing his post-conviction petition at the second stage of post-conviction proceedings, arguing on appeal that the circuit court erred by denying the petition because House had made a substantial showing of actual innocence. The Appellate Court of Illinois Third District ultimately reversed the decision of the Circuit Court of Peoria County and remanded for further proceedings.

Jumar House was charged with and convicted of attempted first-degree murder, aggravated battery with a firearm, and unlawful possession of a weapon by a felon. Id. at ¶ 3. At the bench trial, evidence was introduced showing three men standing near the vehicle where the shooting occurred, being chased by another man in a black coat and black hat. Id. at ¶ 7. Video evidence showed the man in the coat and hat discharging a firearm in the direction of the three men being chased. One of the three men seen in the video, Nicholas Pannell, testified that he and House had known one another and had exchanged unpleasant words prior to the shooting. A few days after the shooting, Pannell identified House from a photographic lineup. Id. at ¶ 8. Testimony by Detective Timothy Moore established that Pannell had initially lied about his presence at the scene of the shooting, stating he was not in the area when it had occurred. However, upon introduction of the surveillance footage of the shooting, Pannell then admitted to being present and identified House as the shooter. Testimony also established that Pannell was awaiting sentencing in an unlawful possession of a weapon by a felon case of his own. Id. at ¶ 9-10.

On the day of the shooting, House was arrested for DUI by Officer Scott Hulse. No weapons were found in his vehicle, yet Officer Hulse did testify that he was dressed in a black jacket and black hat at the time of arrest. Id. at ¶ 11. The victim in the shooting, Gates, testified that he did not see who shot him, as he was running from the scene and had not even realized that he’d been shot until returning home and removing his coat. Gates also acknowledged a prior felony conviction for unlawful possession of a firearm by a felon. Id. at ¶ 12. House did not testify at trial. House was convicted on all three charges and sentenced to 33 years’ imprisonment for attempted murder and a concurrent term of 8 years’ imprisonment for possession of a weapon by a felon.

On direct appeal, House’s convictions and sentences were affirmed. Id. at ¶ 13-14. House then filed a post-conviction petition, which raised a claim of actual innocence based on newly discovered evidence contained in six attached affidavits. Id. at ¶ 15. One affidavit, provided by Mario Davis, averred that he had witnessed the shooting and appellant was not the shooter. Another, provided by Albert Prince averred that in June of 2011, Detective Timothy Moore had approached House and told him that he would “do whatever to send him back to prison.” Id. at ¶ 17.

Additional eyewitness accounts contended that House was not the shooter, that defense counsel had failed to follow through on a key investigative promise to hire a private investigator, and, most notably, that Pannell told Kenwaun Murray that “he lied about [House] being involved in the shooting because he couldn’t do all the time that Peoria County was going to give him for his gun charge.” Id. at ¶ 20. The State filed a motion to dismiss the petition, arguing that it was legally deficient and did not address claims of actual innocence. Attached to the motion was an affidavit from Assistant State’s Attorney Brian Fitzimmons, which averred that the State did not make an offer to Parnell in exchange for his testimony in this case.

The State then filed an amended motion to dismiss, arguing that the affidavits provided by House did not support allegations of ineffective assistance of counsel, were immaterial, and were insufficient to have changed the outcome of the case. Id. at ¶ 22. Later, House provided an affidavit from Corey Hunter, an eyewitness to the shooting, who claimed he could identify the shooter, which was not House. The State’s motion was granted. This appeal followed.

On appeal, House argued that the court erred in dismissing his post-conviction petition at the second stage of proceedings because he had made a substantial showing of actual innocence based on newly discovered evidenced that another individual committed the crime. Id. at ¶ 27. In reviewing the record, the appellate court acknowledged that at the second stage of proceedings, the court is tasked only with ruling on the legal sufficiency of the petition’s allegations. Id. at ¶ 28. As such, at the second stage, courts must take all well-pleaded facts that are not positively rebutted by the record as true.

In order for a claim of actual innocence to advance to a third-stage evidentiary hearing, a petition (and supporting documents) must make a substantial showing that the evidence is newly discovered, material and not merely cumulative, and of such conclusive character that it would probably change the result on retrial. Id. at ¶ 29.

On the requirement that all evidence be newly discovered, the court found that because all of the affidavits were sworn between September 2014 and September 2017, the dating indicates that the material was generally undiscoverable at the time of the trial. Moreover, the court found, specifically in regard to the affidavit from Hunter, the affiant explained his reluctance to come forward and participate in the case. Id. at ¶ 30. The court found no evidence in the State’s or defendant’s witness disclosures that any of the affiants were available to testify at the time of trial. The court explained further that the legitimacy of the explanations of failing to come forward earlier are a matter for third-stage proceedings. Therefore, the court held that appellant had made a substantial showing that the evidence was newly discovered.

On the requirement that the evidence was material and not merely cumulative, the court noted that the State solely argued that Murray’s affidavit was immaterial and did not address the others. On Murray’s affidavit, the court determined that because Pannell was the sole eyewitness to identify House as the shooter, his motivations to falsely identify defendant as the shooter is material to the determination of appellant’s innocence. Id. at ¶ 31.

Finally, on the requirement that the evidence be of such a conclusive character that it would probably change the result on retrial, the court held that (because the surveillance video only provided a limited view of the shooter) the refutation of Pannell’s identification testimony possesses the potential to lead to a different result. Id. at ¶ 32.

Ultimately, viewing the affidavits together and liberally construing them in favor of the appellant, the Third District appellate court concluded that House made a substantial showing of actual innocence and that the Circuit Court of Peoria County erred in dismissing his petition. As such, the court reversed and remanded the dismissal for third-stage proceedings.