## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Adam s , 2013 IL App (1st) 111081

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. L EIVANTE ADAMS, Defe ndant-Appe llant.

District & N o. First District, Six th Division Docke t No. 1-11-1081

Filed August 23, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The den i al o f defe ndant’s motion for leave to file a succe ssive
p o s t co nviction petition was reve rsed and the cause was rema nded for further proce eding s, since defe ndant prese nted exculpatory aff idavits of three eyewitnesses of the murder of defe ndant’s former g irlfriend and at least two of the aff

idavits provided newly discovered ev i d ence setting forth a c olorable c laim of defe ndant’s ac tual innocenc e.

Dec ision Under
Review Appea l from the Circuit Court of Cook County
, No. 03-CR-13 7 9 0 ; the Hon. Stanley

J . Sacks, Judge, pr esiding

.

J udg ment Reverse d and re manded.Counsel on

Appea l Michae l J

. Pelletier, Alan D. Goldberg
, and Debor ah K. Pugh, all of State Appellate D efe nder’ s Offic e, of Chica g o, for a ppellant.

Anita M. Alvare z, State’s Attorney
, of Chicag o (Alan J

. Spellberg and Brian K. Hodes, Assistant State’s Attorney s, of counsel), for the People.

Panel PRES IDI NG J USTI CE LAMPKI

N delivere d the judgme nt of the court, with opinion.
J ustices Gordon a

nd Reyes conc urre d in the judgme nt and opinion.

OP INION

¶ 1 Def

endant L eivante Adams appea ls from the d en i al of his motion to file a succ essive 1 petition for postconviction relief

. On appea l, defe ndant contends that the trial court err ed in denying him leave to file beca use he prese nted a colora

ble claim of actua l innoc ence based

on the exculpatory aff

idavits of three eyewitnesses. For the rea sons that f ollow, w e reve rse and re mand for f

urther pr ocee dings. ¶ 2 Fo l lowing a 2004 jury trial, defe ndant was found guilty of first d egr ee m u rd er an d
sentenc ed to 45 year s in prison. On direc t appea l, defe ndant contende d that the trial court abused its discretion by admitting evidenc e of a prior crime, and that the State failed to prove him guilty beyond a rea sonable doubt. We aff irmed defe ndant’s conviction and sentenc e. People v. Adams
, No. 1-05-0908 (2006) (unpublished order under Supreme Court Rule 23). In the course of doing so, we set forth th e underly ing fac ts of the case. Those fac ts will be
repe ated he re to some e x tent due to the natur e of de fenda nt’s postconviction claims. ¶ 3 Prior to trial, the court g rante d the State’s motion to prese nt evidenc e o f a M arc h 20, 2003, domestic battery involving defe ndant and the victim, Raama Ba ker. Def endant had pleade d guilty

to this offense, a

nd the order of protec tion refe renc ed in the indictment was issued as a result of this incident. The court specific ally admitted the evidenc e to demonstrate defe ndant’s animosi ty t o wa rd t h e v ictim, intent to harm or kill her, and motive. The court found that the probative value of the evidenc e outweighed its prejudicia l value. At trial, the State prese nted the prote ctive orde r to the jury

. ¶ 4 L arr

y L ewis, the vi ct i m ’s b o y friend, testified with reg ard to the domestic battery . He testified that on Marc h 20, 2003, he was at a lounge with the victim. About 8:30 p.m., he lear ned that the victim and defe ndant wer e outside fighting. When he went outside, he saw defe ndant punchingthe victim in the fac e and br oke up the fight. H e then drove the victim

We n ote tha t the re cor d inc lud es sever al spe ll ings of def end ant ’s fi rs t name, inc lud ing 1 Lei vaunte , Lei ’vaunt é, a nd Le ivaund e.

-2-to his uncle ’s h o u s e and called the police. The victim sustained a swollen eye, which he

identified in a photograph at trial. ¶ 5 Bonnie Ba

ker McCain, the victim’s mother, testified that the victim a nd defe ndant had been in a relationship a couple of year s prior to her murder on May 15, 2003, and that they had a da ug hter tog ether . About 11:30 p.m. on May 15, 2003, Bonnie rec eived a phone ca ll fr o m L arry L ewis. L arr

y informed her that the victim had been attacke d and was in t h e hospital. At the hospital, Bonnie lear ned that the victim’s arm had been broken and that her skull had been “bashe d in.” She died the following day

. Dr. Kenda ll Crowns, who perf ormed the autopsy on the victim, testified that she died as a result of homicidal ass au l t injuries consistent with beinghit with a blunt object and from f alling to the ground. ¶ 6 Terr ence Whis by
, defe ndant’s b ro t h er , t es tified that on May 15, 2003, he, his brother Anthony Oliver, and his g irlfriend, Kim Washing ton, w ere living with his mother, Ba rbar a Oliver, in Ch i ca go

. They wer e all home t hat ni ght watching a basketball g ame. Defe ndant and Toni Washington, the mother of defe ndant’s child, wer e visiti ng

. About 11 p.m., Whis by

answe red the doorbell, saw the victim walk by the house, and then returne d to his bedroom. About 20 minutes later, he he ard a rguing and went outside wher e he sa w def endant on the porch and the victim on the sidewalk. Def endan t ap proac hed the victim and they walked d o wn the street toge ther, yelling all the while. Def endant and the victim then started t o “tussle,” and the victim fell to the ground. Af t er n o t i ci n g that defe ndant had a stick in his hand, Terr ence ran toward defe ndant, who was “consta ntly” hitting the victim with the stick, and pulled defe ndant awa y from her. The victim wa s l ying on the ground motionless, and bloo d was on the ground and on her fac e. After defe ndant dropped the stick, Terr ence retrie ved it, took it home, washe d it off, and g ave it to Toni Washington. Def endant did not return home that night. ¶ 7 Terr ence acknow ledg ed g iving three differ ent statements to the police betwee n 10 a.m.

on May 17, 2003, and 9:40 p

. m

. o n M ay 1 9
, 2003, while he was being held at the police station. In his final statement, Terr ence substantially corr oborate d his trial testimony
, except for his statement that defe ndant hit the victim with a bat. When he testified befor e the g rand jury on J une 5, 2003, he stated that defe ndant had a bat in his hands when he left the house. He further tes t i fi ed that no threats or promises wer e made in exchang e for his statement, contra ry to his testimony at trial, wher e he stated that the police threatened that he would not be allowe d to le ave until he g ave a signe d statement. The assistant State’s Attorney (ASA) who pre sented Te rre nce to the grand jury verifie d his gr and jury

testimony

at trial. ¶ 8 Anthony Oliver, another brothe r of defenda nt, testified t hat about 11 p.m. on the ni g ht in question, defe ndant left the h o u s e, then returne d, say ing that the victim “shouldn’t be walking down the block.” Def endant’ s mo t h er we n t outside and told Anthony to call the police. Anthony

complied, telling the m that there w as a f ight in the alley

. Anthony did not

see defe ndant ag ain that night, but the following day
, he spoke to defe ndant on the telephone, althoug h he could not re call their c onversation. ¶ 9 On May 21, 2003, howeve r, Anthony testified befor e the grand jury that when de fenda nt called, h e as k ed i f the police had been asking questions. Def endant told Anthony that he “snappe d and started hitting [t he victim] with the bat ” b ec au s e he war ned her not to walk

-3-down his street any more, and beca

use she called him a “bitch” and s ai d s h e would walk

an y wher e she wanted. Anthony further testified that when he looked outside, he s aw t h e victim’s body lying on the g round, then saw def endant pull awa

y in a car

. The ASA who
prese nted Anthony

to the g rand jury

verifie d his gr and jury

testimony

at trial. ¶ 10 Kim Washington, Terr ence ’s g irlfriend, testified that she was outside and saw the victim walk down the s tree t. Def endant, who w as also outside, g ave the victim “a warning ,” then followed her with a bat in his h and. Kim went back into the house to g et shoes for defe ndant ’s mother, heard a “thump,” then saw the victim lying on the ground. Defenda nt

was standing next to the victim with the bat in his hands. When Terr ence grabbe d defe ndant, defe ndant droppe d the bat. Te rre nce pic ked it up and brought it ins ide the house. ¶ 11 On J une 6, 2003, Kim testif i ed b ef o re the grand jury that defe ndant came i n the house and s ai d t h at the victim was not supposed to be on the block, then grabbe d a bat from the doorwa y

. She then saw the victim lying on the ground and watche d defe ndant hit her two or three times with the bat. The ASA who presented Kim to the grand jury verifie d her grand jury testimony

at trial. ¶ 12 Ba

rbar a Oliver, defe ndant’s mother, testified that about 11 p.m. on the night in question, defe ndant enter ed her bedroom and told her that the victim was on the block and was g oing
to call the police and attempt to have him arr ested. Ba rbar a told defe ndant to leave the house, and def endant g ot in his car and le ft. ¶ 13 Howeve r, on J une 5, 2003, Ba rbar a testified befor e the grand jury that when the victim walked down the block, she was standing on the porch and told the victim that she was not supposed t o be there. Defenda nt, who was in his car with Toni Washington, got out of t he

car , enter ed the doorwa

y to the house, and then left i m m ed i at el y

. Ba rbar a asked Kim Washington, who was on the porch with her, to g et her s h o es

. Then Bar bara hear d noises, like someone was being hit with a bat. Ba rbar a walked down the street and saw the bloodied victim lying on the g round. T erre n ce , who had also been outside, grabbe d defe ndant, and Ba rbar a told defe ndant to l ea v e. Def endant drove awa

y in his car , but called her later that night to apolog ize. Ba

rbar a further testified that no promi s es or threats wer e made in exchang e for her testimony

. The ASA wh o p rese nted Ba rbar a to the grand jury verifie d Ba rbar a’s grand jury

testimony

at trial. ¶ 14 Toni Washington, the mother of defe ndant’s son, testified that on the night in que stion, she and de fenda

nt went out to his car to talk. At that time, the y saw the victim walk by the house. Def

endant g ot out of the car , talked to the victim i n fr o n t of the house, and then walked down the street with her. After that, defe ndant drove awa y in his car and Toni drove home in her car

. Toni returned t o t h e house minutes later to return a camc order
, at which time Terr ence g ave her defe ndant’s gy m bag

. The bag contained a black g arba g e bag
, which she threw awa y without looking inside it. ¶ 15 On May 27, 2003, Toni testified befor e the grand jury that afte r defe ndant left the house, he returne d to retrie ve a bat. Def endant walked down the street with the victim, car rying the bat in his hand. When they rea ched an alley
, he war ned the victim that she was not supposed
to be on the block. They started t o wa l k awa y from eac h other, but then defe ndant turned around and hit the victim with the bat. Toni approa ched as defe ndant hit the victim with the

-4-bat six to seven times. Terr ence retrie ved the bat, brought it back to the house, washe d it off,

and put it in a black bag

. Toni left for about five minutes. When she returne d, Anthony g ave her a black gy m bag , which conta ined the bat. Toni drove back to he r apar tment a nd threw the baginto a Dumpster outside of he r complex. ¶ 16 Toni fur t h er t es t i fi ed t h at n o promises or threats wer e made in exchang e for he r t es t i m o n y , co ntrary to her statement at t rial that t he poli ce had promi sed not to charg e her with any thing and had said she could see her son ag ain if she cooper ated. The ASA who interviewe d Toni and prese nted her t o the grand jury
, testified that Toni’s grand jury testimony was not coer ced. I n addition, T oni’s attorney , Steven Weinberg
, testified that he

acc ompanied Toni when she testified befor e the grand jury
, and that prior to her testimony
, the State’s Attorney did not threaten her, nor did Toni complain that she was mistreated by the police. Weinber gfurther testified t hat he made an agree ment with the State’s Attorney that if Toni told the truth, she would not be cha rg ed with hiding the murder w eapon. ¶ 17 In his own defe nse, defe ndant testified that he had slept with the victim in 2001, but he denied having a relationship or a chil d with her. He did admit, howeve r, to occa sionally seeing her afte r their aff

air in the neighborhood or at the lounge

. On Marc h 20, 2003, he went to the lounge and aske d the victim, who was ther e, if she w ould step outside to talk to him about problems she was having with his mother and his brother, Terr ence

. They eventua lly beg an hitting eac h other, but the fight was broken up. Def endant went to his mother’s house, and shortly there afte r, the victim and her boy friend drove up and “slammed” into his mother’s renta l c ar. Def

endant eventua lly turned himself in a nd pleade d guilty to dome stic battery

. ¶ 18 Def

endant testified that on the night in question, he was watchinga baske tball g ame at his mother’s house. After war ds, he and Toni Washington walked out to his car , which was parke d acr oss the street, to discuss their son. They saw the victim walk by
, then slow down
to “have words” with his mother and his brother Terr ence , who wer e standing on the porch. Def endant a pproac hed the victim a

nd they walked south tog ether , discussing the problems she was having with Terr ence and defe ndant’s mother. When they re ac h ed a v aca nt lot, defe ndant turned around and walked back to the house. Def endant’ s mother told de fenda nt and Toni to leave
, and they did. D efe ndant denied that he had a ba seball bat, hit the victim with a bat, or that he murder ed her . No other e vidence was pre sented by the def ense. ¶ 19 The jury found defe ndant guilty of first degree murder. The trial court enter ed judg ment

on the verdic t. The court subsequently found defe ndant death- penalty elig ible, but sentenc ed him to 45 y ear s’ imprisonment in light of the mitiga ting e vidence prese nted. ¶ 20 In 2007, following our decision on direc t appea l, defe ndant filed a pro se postconviction petition alleg ing, among other things, that his trial counsel was ineffe ctive for failing to move to dismiss his indictment due to a speedy trial violation or to prese rve the issue for appellate revie w by raising it in a posttrial motion. Shortly there afte r, defe ndant filed a supplemental
pro se postconviction petition raising multipl e claims o f prosec utorial misconduct, i neff ective assistance of trial and appellate counsel, and judicial bias. The trial co u rt summarily dismiss ed both the initial petition and the supplemental p et i t ion. Def endant
appea led, contending that he had set forth the g ist of a claim of ineffe ctive assistance of trial

-5-counsel based on counsel’s omissions with reg ard to speedy trial violations. We aff irmed the
t ri al court’s judgme nt. People v. Adams
, No. 1-07-3215 (2009) (unpublished order u n d er Supreme Court Rule 23). ¶ 21 In 2010, defe ndant filed a pro se petition for relief from judgme nt pursuant to section 2- 1 4 01 of the Code of Civil Procedur e (735 I L CS 5/2-1401 (West 2010)). The t ri al co u rt dismiss ed th e p et ition sua sponte

. On appea l, we aff irmed, but direc ted the cler k of the circ uit court to corr ect the mitti mus to ref lect the appropriate amount of prese ntence custody

cre dit. People v . Adams , 2011 I LApp (1st) 101034-U

. ¶ 22 In November 2011, defe n d an t m o v ed fo r l ea v e t o fi l e a s u cc essi ve petition for postconviction relief

, arguing that the State failed to disclose both that his car was examined fo r fo re nsic evidenc e and the results of that testing. Def endant also argued that his trial counsel was ineffe ctive for failing to obtain the results of the State’s fore nsic testing and for failing to hire ex perts to conduc t their own for ensic e x amination of the c ar. The t rial court denied leave to file. We g rante d appellate counsel’s motion to withdraw as counsel and aff irmed the judgment of the c ircuit court. People v . Adams , 2013 I LApp (1st) 120213-U

. ¶ 23 In Fe bruar

y 2011, defe ndant fi l ed t h e i n s t an t motion for leave to file a succ essive postconviction petition, in which he alleg ed actua l innocenc e based on new l y discovere d evidenc e in the form of affidavi t s o f t h ree potential witnesses i dentifying someone else as the victim’s murdere r. Def endant asser

ted that his supporting aff idavits “would appea

r to be ‘new ly discovere d’ evide nce that was not ava ilable to the petitioner at the time of the trial,

or when petitioner filed his initial petition for post-conviction relief .” He stated, “In addition, the evidenc e could not have been discovere d by the petitioner sooner through due diligenc e, and the aff

idavits are materia l and non-cumulative and are of such conclusive char acte r that had the jury known of this evidenc e, this would probably chang e the result on retria l.” Def endant further asser

ted that the aff

idavits could not have been discovere d sooner through due diligenc e “due to his incar cer ation

. ” In support of his petition, defe ndant attache d aff idavits ex ecute d by

Muhammad Will iams, Brige tte Rush, and Tijatta Wil liams. ¶ 24 In his a ffidavit, dated September 1, 2010, Muhammad Wil liams stated that betwee n 11 p.m. and 12 a.m. on the night in question, he wa s driving pa st the sceneof the c rime whe n he saw four or five people in the middle of the street. As he g ot closer, he saw “a man about 6’0”–6’ 1” in height, light brown complexion, wit h braids, beating someone on the ground with a baseba ll bat.” Muhammad quickly turned down an alley and went home. He lear ned the next day that someone had been killed at the location wher e he witnessed the beating
, but did not call the police. He explained that he did not fee l he coul d h av e been of any help beca use he did not know the perpe trator. Acc ording to Muhammad’s aff idavit, months later, h e found out defe ndant had been arr ested for the murder. He did not know defe nd an t “per sonally” but “did know of him” bec ause he had see n defe ndant playing ba sketball at a park. Muhammad aver

red that the man he saw commit murder “wa s definitely not” defe ndant. Muhammad stated that h e m o v ed to California for a few year s, and when he moved back to Chicag o, he found out defe ndant was in p ri s o n fo r the murder he had witnessed. He still did not g o to the police beca use he thought he could g et into trouble for
not contac ting them earlier. Muhammad stated that he was coming forwa rd now beca

use he knew de fenda

nt was innoce nt and his conscienc e had be en we ighingon him.

-6-¶ 25 In an aff idavit date d S ep t em b er 14, 2010, Brige tte Rush aver red that on the night in question, she went to defe ndant’s mother’s home to g et information about a job. Def endant’ s mother, Anthony Oliver, Kim Washington
, and Terr ence Whis by wer e in the house; defe ndant and Toni Washington wer e sitti ng in defe ndant’s car

. Whil e Brige tte was writing down details about the job, someone beg an arguing o u t s ide of the house. Brige tte saw defe ndant’s mother g o outside and hear d her tell d ef en d ant to leave

. Brige tte stepped out onto the porch and saw defe ndant g et into his car and drive off. Terr ence and the victim wer e in the middle of th e s t re et , arguing. Def endant’ s mother repe atedly told Terr ence to come inside, but he ref

used. The victim started walking down the street and Terr ence followed her. At this point, Brige tt e s aw “Mike, Dominick and sever al other men who wer e friends of Terr ence ” standing near the alley

. Mike, who had a bat in his hands, walked up to the victim and hit her over the head. The victim fell to the ground and Mike repe atedly hit her with the bat. Then Mike dropped the bat, and he and “the other guy s” ran from the scene

. Terr ence picked the bat up from the ground and ran into the house with it. Brige tte went into the house
to g et her key s and purse. Terr ence grabbe d her by the throat, put a gun to her head, and said, “Ke ep your mouth shut or the same thingwill happen to you.” Af ter Te rre nce le t go of her neck, B rig ette lef

t immediately

. ¶ 26 Brige tte stated t h at Chicag o police detec tives contac ted her about the murder and that defe ndant and “seve ral people involved in his case ” asked her to come forth and tell what she witnessed. Howeve r, due to Terr ence ’s threat and out of fea r for her own and her children’ s lives, she ref

used to cooper ate with the police or g et involved. Brige tte stated, “De spite still being afr aid and fea

rful of Terr ence and his fr i en d s I ’ve decide d to come forwa rd and tell what happe ned bec ause it’s the right thingto do.” ¶ 27 Tijatta Wil li am s , i n an af fi d av it dated Dec ember 7, 2010, stated that on the night in
qu es t i o n, she was walking past the scene of the crime and saw a crow d of people in the middle of the street near the alley

. She saw “Mike” walk up to a woman and strike her over the hea d wi t h a bat. The woman fell and Mike struck her sever al more times. When the

crow d beg an to dispe rse, Tijatta left the are a. Tijatta stated that she did not repor t what she

saw to the police b ec au s e s h e wa s scar ed of being killed by Mike if she did so. She also stated that she did not see defe ndant at the scene on the night of the beating

. At an unspecifie d time, she ran into defe ndant’s sons and their mother at a mall, felt bad for them, and fe lt compelled to tell about the incident that put def endant in prison. ¶ 28 The trial c ourt denied de fenda nt’s motion to fil e a suc cessive postc onviction petition. ¶ 29 On appea l, defe ndant contends that t h e t ri al co u rt err ed in denying him leave to file beca use he prese nted a colora ble claim of actua l innocence based on the exculpatory aff idavits of Muhammad Wil liams, Brige tte Rush, and Tijatta Wil liams, who all attested that they saw someone other than defe n d an t commit the murder of which he was convicted. Noting that his conviction was based solely on the t es t i m o n y o f eyewitnesses, defe ndant
argues that the aff

iants’ potential testimony would h av e ca s t strong doubt on his guilt by identifying a differ ent perpe trator. Def endant asser

ts that the aff

idavits prese n t ed newly discovere d, materia l, non- cumulative evidenc e that would most likely chang e the result on retria l.

-7-¶ 30 T h e P o s t -Conviction Hea ring Act (Ac t) (725 I L CS 5/122-1 et seq

. (W es t 2 0 1 0 )) contemplates the filing of only one postconviction proce eding

. People v. Edwards
, 2012 I L 111711, ¶ 22. Howeve r, our s upreme court has provided two bases upon which the bar
ag ainst succe ssive proce eding s may be relax ed. Id

. The fi rs t b as i s is when a defe ndant establishes “ca

use and prejudice ” for failing to raise the claim earlier. Id

. The second is the “funda mental miscarr iag e o f

ju stice” exception, under which the defe ndant must show actua l innocenc e. Id

. ¶ 23. When a defe ndant claims actua l innocenc e, the question is whether his motion and supporting documentation set forth a colora ble claim; that is, whether they raise the probability that it is more likely than not that no rea sonable juror would have convicted him in light of the new evidenc e. Id

. ¶¶ 24, 31, 33. The evidenc e supporting t h e claim of
actua l innocenc e must be (1) newly discovere d; (2) materia l and not mere ly cumulative; and (3) of such conclusive char acte r that it would probably chang e the result on retria l. Id

. ¶ 32. We revie w the denial of leave to file a succe ssive petition de novo

. People v. Edwards
, 2012 I LApp (1st) 091651, ¶ 25. ¶ 31 As to the first el em en t , ev i d en ce i s considere d “new ly discovere d” if it has bee n discovere d since trial and if the defe ndant could not ha ve discovere d it soone r through due diligenc e. People v. Ortiz
, 235 I ll. 2d 319, 334 (2009). Def endant asser

ts that the aff

idavits of Muhammad Williams, Brig ette Rush, and Tij atta W illiams constitute newly discovere d evidenc e beca

use they could not have been discovere d prior to trial. He argues that beca use he left the scene of the crime befor e it occur red, he would not have known that these witnesses happene d to b e p re sent at the time of the offe nse, and that he had no way of knowing what these eyewitnesses had seen until they voluntarily came forwa rd long afte r the crime had occur

red. The S tate maintains that while t he affidavits may have been executed by new source s, they do not pr esent any new fac ts that w ere unknown to defe ndant prior to trial. Wit h reg ard to Brige tte Rush, the S tate further argues that defendant knew ab o u t her
at the time of his tria l, a s evidenc ed by her state ment that defe ndant had asked her to c ome forth but she ref

used to g et involved. Def

endant counter s that Brige tte’s lack of cooper ation indicates that he was not privy to her knowle dg e of the crime. ¶ 32 We first addre ss the aff idavits provided by Muhammad Wil liams and Tijatta Wil liams. Be cause Brige tte Rush, unlike Muhammad and Tijatta, aver red that she was known to defe ndant prior to trial, we will consider her aff idavit separately

. ¶ 33 Taking t h e i n fo rmation contained in Muhammad’s and Tijatta’s aff idavits as true, the circ umstance that they eac h passed by the sceneof the crime and witnessed someone other than defe ndant committing the murder was not discovere d until year s afte r the offe nse, when they came forwa

rd and signe d their aff

idavits in 2 0 1 0

. Prior to Muhammad and Tijatta comingforwa

rd, def endant would not have had any rea son to seek them out. Accordingto d efendant’s trial testimony
, he was not at the scene at the time the victim was beate n

. There fore , he would not have known Muhammad a nd Tijatta had ha

ppened to pa ss by and witness the crime. Fur

ther, nothing indicates that either o f t h es e witnesses spoke with defe ndant or the pol ice about what they observe d. In these circumstance s, we find that the evidenc e was discovere d since trial and could not have been discovere d earlier through due diligenc e. ¶ 34 The second require ment for a succe ssful claim o f ac tu al i n n o cence is that the newly

-8-discovere d supporting evidenc e be materia l and not mere ly cumulative. Evidence is deeme d

cumulative if it does not add any thing to what was previously befor e the jury

. Ortiz
, 235 I ll. 2d at 335. Evidence is not cumulative if it would cre ate new questions in the mind of the trier of fa ct. People v . W

illiams , 392 I ll. App. 3d 359, 369 (2009). ¶ 35 Her e, viewing the fac ts alleg ed in Muhammad’s and Tijatta’s aff idavits as true, e vidence that someone other than defe ndant killed the victim and that defe ndant was not prese nt at the

scene is cer

tainly materia l. See People v. Lofton
, 2011 I L App (1 s t ) 1 0 0118, ¶ 38. Both aff idavits conce rn the ultimate issu e of whether defe ndant was the person who beat the victim to death. The aff

idavits would also add to what was previously befor e the jury in that the jury had hear d defe ndant’s testimony that he left the scene befor e the victim was killed, but had hear d no evidenc e pointing to the identity of an alternate perpe trator. Muhammad’s and T i j atta’s attestations exonerating defe ndant are sufficie nt to cre ate a new question of defe ndant’s innocence in the ey es of the j ury

. See W illiams
, 392 I ll. App. 3d at 370. Thus, defe ndant has made a showing that the evidenc e contained in Muhammad’s and Tijatta’s aff idavits is material and not mere ly cumulative. ¶ 36 The third and final require ment is that the evidenc e must be so conclusive that it would probably ch an ge t h e result on retria l. Edwards
, 2012 I L 111711, ¶ 32. Evidence of actua l innocenc e must support total vindication o r exoneration, not mere ly prese nt a rea sonable doubt. Lofton
, 2011 I L App (1st) 100118, ¶ 40; People v. Gree n , 2012 I L App (4th) 101034, ¶ 36. Where the statement of a witness is both ex onerating a nd contra dicts a State witness, it can be c apable of produc ing a differ ent outcome on r etrial. Ortiz , 235 I ll. 2d at 336-37. ¶ 37 In the instant case , defe ndant testified at trial that he walked and talked with the victim, but left the are a befor e she was beate n. Both Muhammad and Tijatta corr oborate this version of events, which would exonerate defe ndant. Muhammad stated that the man he saw commit murder was not defe ndant and offe red a phy sical description o f the perpe trator. Tijatta identified the murdere r as “Mike,” and ev en s t at ed that she did not see defe ndant at the

scene

. The evidenc e offe red b y M uhammad and Tijatta would be capa ble of chang ing the result on retria l beca

use, wher e there was no p hy sical evidenc e implicating defe ndant and defe ndant did not confe ss, the evidence of defe ndant’s innocence would be strong er when weighed ag ainst the contra dictory testimony g iven by the State’s eyewitnesses. See Ortiz
, 235 I ll. 2d at 337. ¶ 38 The State maintains that defe ndant’s supporting aff idavits wou ld n o t p r o b a

bly chang e the result on retria l beca

use they contrad i cted his own trial testimony

. Specifica lly
, the State
notes that defe ndant testified t h at h e wa lked and talked with the victim, but left the are a befor e s h e was beate n, and that Muhammad and Tijatta attested that they passed by the murder scene , but “contr ary to defe ndant’s testimony
, neither of these aff iants saw defe ndant

on the s tree t that night.” We disagree with the S t at e t h at a contradiction exis ts. Acc ording
to defe ndant’s testimony
, he left t h e s ce ne befor e the victim was beate n. Muhammad and Tijatta aver

red that they passed by the scene during the beating

. Taking the statements as true, Muhammad and Tijatta could have arrived at the scene afte r defe ndant left. The State’s
argument is unpersuasive. ¶ 39 Having deter

mined that Muhammad’s and Tijatta’s aff idavits provide newly

discovere d

-9-evidenc e, we need not resolve the question of wh et h er Brige tte’s aff idavit, by itself, constitutes newly discovere d evidenc e. Defenda nt has set for

th a colorable claim of actual innocenc e based on two of t h e attache d aff idavits. That is, defe ndant’s succe ssive postconviction petition has raised the probability that it i s m ore likely than not that no

rea sonable juror would have convicted him i n light of the new evidenc e, if cre dible. See Edwards
, 2012 I L 111711, ¶ 24. Acc ording ly
, the trial court err ed in deny ing leave to file the

succe ssive petition. W e re verse and re mand for f urther postc onviction proce eding s. ¶ 40 Fo r t he reasons ex plained above, we reve rse the judgme nt of the circuit court o f C o o k County

.

¶ 41 Reverse d and re manded.

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