Opinion
No. 1-16-2250
02-14-2020
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD WILLINGHAM, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County.
No. 95 CR 20771
Honorable Brian Flaherty, Judge Presiding.
PRESIDING JUSTICE MIKVA delivered the judgment of the court.
Justices Cunningham and Harris concurred in the judgment.
ORDER
¶ 1 Held: Dismissal of postconviction petition at second stage affirmed where petitioner failed to make a substantial showing of ineffective assistance of trial counsel, ineffective assistance of appellate counsel, or actual innocence.
¶ 2 Following a jury trial, Edward Willingham was convicted of the first degree murder of Shiquita Fleming and the attempted murder and aggravated battery with a firearm of Maurice Scott. These convictions were affirmed on direct appeal. People v. Willingham, 298 Ill. App. 3d
1164 (1998) (table) (unpublished order under Supreme Court Rule 23). Mr. Willingham filed a postconviction petition asserting claims of (1) ineffective assistance of trial counsel, (2) ineffective assistance of appellate counsel, and (3) actual innocence. The circuit court dismissed the petition at the second stage, finding Mr. Willingham failed to make a substantial showing of a constitutional violation. Mr. Willingham now challenges that dismissal. For the following reasons, we affirm the circuit court's dismissal of Mr. Willingham's postconviction petition.
¶ 3 I. BACKGROUND
¶ 4 Mr. Willingham's convictions stem from a shooting that occurred at around 4:30 p.m. on June 20, 1995, in Chicago Heights. Albert Adams and Tyjuan Turner were charged as codefendants but are not parties to this appeal.
¶ 5 There was no question that Mr. Willingham arrived at the scene where members of his gang—the Gangster Disciples—and a rival gang—the Four Corner Hustlers, or Solid Fours—were engaging in fist fights. Mr. Willingham also does not dispute that he and his two codefendants fired shots at the rival gang members. Mr. Willingham's defense at trial was that he shot in self-defense. The State's witnesses claimed that Mr. Willingham and his codefendants were the only shooters and that Mr. Willingham shot at unarmed individuals.
¶ 6 Mr. Willingham testified that on the date of the incident, he planned to go to Mr. Adams's house to sell three guns to someone named "Spider." Mr. Willingham put the guns in a white plastic bag and got a ride from someone to the house. Mr. Willingham testified that when they arrived, no one was in front of the house and Spider's car was not there, so they drove to 435 Hickory Street in Chicago Heights, where Mr. Adams's cousin lived, and where Mr. Adams frequently hung out.
¶ 7 Mr. Willingham testified that as he approached the house, he noticed a large crowd of 30
to 35 people fighting in the driveway. He saw Mr. Adams and Mr. Turner, also Gangster Disciples, pick up a third person who was knocked down. As they did so, "the crowd started reaching in." Mr. Willingham got out of the car a few houses away and put a gun in his waistband because he knew the street was Solid Four territory.
¶ 8 According to Mr. Willingham, Jermaine Fleming, a Solid Four member, approached him with four or five other men behind him and stated, "I got your ass now." Mr. Willingham knew Mr. Fleming to carry a gun and testified that he had recently been shot at by Mr. Fleming. Mr. Willingham lifted his shirt and showed Mr. Fleming that he had a gun in his waistband. Mr. Willingham then heard gunshots. Though Mr. Willingham did not see a gun in Mr. Fleming's hands, he thought that the shots had come from either Mr. Fleming or one of the men standing behind Mr. Fleming. Mr. Willingham testified that he then took his gun from his waistband and shot at Mr. Fleming, but his gun did not go off. He heard more shots and fled, dropping the bag containing the two guns he had hoped to sell.
¶ 9 Mr. Willingham testified that, as the crowd fled east down the street, he saw Jerrett McCullor, a Solid Four, chasing Mr. Adams and Mr. Turner and firing a gun in their direction. Fearing that Mr. Adams or Mr. Turner would be killed, Mr. Willingham fired his own gun at Mr. McCullor until he ran out of bullets.
¶ 10 Mr. Willingham testified that he and Mr. Turner then ran into Mr. Adams's house and hid their guns in the basement. Mr. Willingham said he found out an hour later that Shiquita Fleming and Maurice Scott were shot during the incident. He turned himself in 10 days later.
¶ 11 Twenty-one spent nine-millimeter cartridge casings and two bullets were recovered from the scene. A bullet was also recovered from Ms. Fleming's body and from her mother's purse. Ms. Fleming's mother, Shirley Fleming, was with her when she was shot. An expert in firearm
identification testified that the evidence was consistent with the firing of three to five different guns.
¶ 12 During the State's case, both Mr. McCullor and Jermaine Fleming denied carrying or shooting a weapon that day. The State also put on testimony about the fist fights between members of the two gangs, including testimony from a number of Solid Four members as well as other eyewitnesses who did not belong to either gang, including Shirley Fleming. The State's witnesses testified that it was after the last fist fight had broken up and the crowd had started to disperse that Mr. Willingham drove up, exited his car, and pulled three guns from a white plastic bag, giving one to Mr. Adams and one to Mr. Turner. According to these witnesses, the three men then shot, unprovoked, into the dispersing crowd, killing Ms. Fleming and injuring Mr. Scott. The State's witnesses all testified that no one else was armed with guns that day.
¶ 13 During the State's closing argument, it emphasized that Mr. Willingham's version of events was uncorroborated. In his own closing argument, Mr. Willingham's counsel questioned the trustworthiness of the State's witnesses, whom he argued were all affiliated with the Solid Fours or Ms. Fleming's family.
¶ 14 The jury found Mr. Willingham guilty of first degree murder, attempted murder, and aggravated battery with a firearm. The jury verdict forms did not specifically list Maurice Scott as the victim of the attempted murder charge or the aggravated battery with a firearm charge. However, the jury was read the indictment during voir dire, which did indicate that Mr. Scott was the victim of those two offenses, and the prosecutor stated during opening argument, "I'm going to ask you to go back to the jury room and sign the guilty verdict forms for first degree murder of Shiquita Fleming, of attempt murder of Maurice Scott, who was also shot in the leg, and aggravated battery of a firearm as it relates to Maurice Scott." Mr. Willingham received consecutive sentences
of 60 years for the murder and 30 years for the attempted murder, with the aggravated battery with a firearm charge merging with the attempted murder conviction.
¶ 15 Mr. Willingham appealed, arguing (1) the prosecutor's closing argument denied him due process by improperly shifting the burden of proof from the State to him and (2) the trial court committed sentencing errors. This court affirmed Mr. Willingham's convictions on direct appeal (Willingham, slip order at 5) and our supreme court denied his petition for leave to appeal on February 3, 1999 (People v. Willingham, 182 Ill. 2d 570 (1999)).
¶ 16 Mr. Willingham filed a pro se postconviction petition in December 1999. The circuit court advanced the petition to the second stage and appointed counsel to represent Mr. Willingham. Counsel filed a supplemental petition alleging (1) trial counsel was ineffective for not calling Robert Johnson, Gentry Johnson, and Tyrone Bennett as witnesses, who, according to their affidavits, would have testified that Mr. Scott, Mr. McCullor, and another Solid Four named Kevin Fleming were all armed with guns on the afternoon in question; (2) appellate counsel was ineffective for failing to argue that the jury instructions were erroneous; and (3) Mr. Willingham was actually innocent based on an affidavit signed by Jacobi Adams stating that Jermaine Fleming was armed on the afternoon of June 20, 1995, and shot at Mr. Willingham first.
¶ 17 The State filed a motion to dismiss the petition, arguing that Mr. Willingham's claims of ineffective assistance of trial and appellate counsel were meritless and he had failed to make a substantial showing of actual innocence. The court granted the motion to dismiss on July 31, 2015, and denied Mr. Willingham's motion to reconsider on August 12, 2016. Mr. Willingham now appeals.
¶ 18 II. JURISDICTION
¶ 19 Mr. Willingham filed his timely notice of appeal on August 12, 2016. We have jurisdiction
pursuant to article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Supreme Court Rules 606 and 651, governing criminal appeals and appeals from final judgments in postconviction proceedings (Ill. S. Ct. R. 606 (eff. Mar. 20, 2009); R. 651(a) (eff. Dec. 1, 1984)).
¶ 20 III. ANALYSIS
¶ 21 The Post-Conviction Hearing Act (Post-Conviction Act or Act) permits any imprisoned person to institute a proceeding asserting that "a substantial denial of his or her rights under the Constitution of the United States or of the State of Illinois or both" occurred during the proceeding which resulted in his or her conviction. 725 ILCS 5/122-1(a)(1) (West 2014). A postconviction action is a collateral attack on the criminal proceedings. People v. Tate, 2012 IL 112214, ¶ 8.
¶ 22 Postconviction proceedings are divided into three stages. Id. ¶ 9. A petition is dismissed at the first stage if it is "frivolous or [] patently without merit." People v. Hodges, 234 Ill. 2d 1, 10 (2009). If the petition passes that threshold, it moves to the second stage and counsel is appointed if the defendant is indigent. Tate, 2012 IL 112214, ¶ 10. The defendant must then make a substantial showing of a constitutional violation in order to progress to the third stage, where the circuit court conducts an evidentiary hearing. Id. At the second stage, "all well-pleaded facts that are not positively rebutted by the trial record are to be taken as true" (People v. Pendleton, 223 Ill. 2d 458, 473 (2006)) and it is therefore inappropriate for a court to make findings of fact or credibility determinations at this stage (People v. Coleman, 183 Ill. 2d 366, 385 (1998)). A second-stage dismissal of a defendant's petition is subject to de novo review. People v. Brown, 2015 IL App (1st) 122940, ¶ 44.
¶ 23 Mr. Willingham argues on appeal that the circuit court erred in finding that his postconviction petition did not make a substantial showing of (1) ineffective assistance of trial counsel for failing to call witnesses who would also have supported Mr. Willingham's self-defense
theory, (2) ineffective assistance of appellate counsel for failing to challenge the Illinois Pattern Jury Instructions given in connection with the charges against him for attempted murder and aggravated battery with a firearm, and (3) actual innocence based on newly discovered evidence that supported Mr. Willingham's self-defense theory. We address each argument in turn.
¶ 24 A. Ineffective Assistance of Counsel
¶ 25 Mr. Willingham first argues that both his trial and appellate counsel were ineffective. A defendant is guaranteed the right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill. Const. art. I, § 8. Counsel is ineffective when he or she performs deficiently and there is a reasonable probability that the defendant was prejudiced by the deficient performance. Strickland v. Washington, 466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504, 526 (1984) (adopting the Strickland standard in Illinois); People v. Caballero, 126 Ill. 2d 248, 269 (1989) (applying the Strickland standard to appellate counsel).
¶ 26 Counsel's performance is deficient when it falls below "an objective standard of reasonableness." Strickland, 466 U.S. at 688. "Judicial scrutiny of counsel's performance must be highly deferential." Id. at 689. Further, "matters of trial strategy are generally immune from claims of ineffective assistance of counsel." People v. Smith, 195 Ill. 2d 179, 188 (2000). Counsel's performance is prejudicial when "there is a 'reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' " People v. Domagala, 2013 IL 113688, ¶ 36 (quoting Strickland, 466 U.S. at 694). "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
¶ 27 1. Trial Counsel
¶ 28 Mr. Willingham argues that his trial counsel was ineffective for failing to call three witnesses who would have corroborated his testimony that he acted in self-defense. While the
affidavits that Mr. Willingham has provided from those three witnesses suggest that their testimony might have lent some support for his self-defense claims, Mr. Willingham fails to meet the high burden of making a substantial showing that there is a reasonable probability that, had they testified, the outcome at trial would have been different.
¶ 29 According to his affidavit, if Robert Johnson was called to testify, he would have stated that he saw a fight break out between a member of the Gangster Disciples and a member of the Solid Fours, and that other gang members from both sides joined the fight. He attempted to leave the area, but Mr. Scott, Mr. McCullor, and a third Solid Four blocked his car. According to Robert Johnson, all three Solid Fours had guns. Gentry Johnson would have testified that he also saw armed Solid Four members, including Maurice Scott and Kevin Fleming. Robert and Gentry Johnson both left the scene before the shooting started.
¶ 30 According to his affidavit, Tyrone Bennett would have testified that he was at 435 Hickory Street with four other Gangster Disciples when a crowd of Solid Fours approached. Mr. Bennett attested that Mr. Scott, who was armed at the time, asked him to fight a Solid Four one-on-one. Mr. McCullor was also present and armed. The fight soon became a free-for-all, and Mr. Bennett was on the ground being attacked when he heard shots fired. He did not see who was shooting.
¶ 31 Mr. Willingham argues that the testimony of these additional witnesses would have corroborated his own version of events—that Jermaine Fleming and the Solid Fours were armed and were the initial aggressors—and if the jury had heard that evidence, it is reasonably probable that the outcome of the trial would have been different.
¶ 32 The State urges us to resolve this matter by proceeding directly to the prejudice prong of Strickland. See Strickland, 466 U.S. at 697 (if it is easier to resolve an ineffectiveness claim based on a failure to demonstrate prejudice, a court need only address the prejudice prong). The State
argues that Mr. Willingham cannot show prejudice because he cannot make a substantial showing of a reasonable probability that the additional testimony would have changed the outcome of the trial. The State supports its argument by citing to this court's opinion on direct appeal, in which we rejected Mr. Willingham's claim that the prosecutor improperly shifted the burden of proof because "there was overwhelming evidence against defendant." Willingham, slip order at 3. The State also argues that the proposed testimony "cannot directly account for why [Mr. Willingham], or codefendants [Mr.] Turner and [Mr.] Adams, fired the guns" because two of the potential witnesses were not even at the scene when the shooting started and the third could not see who was shooting.
¶ 33 In support of its argument that Mr. Willingham cannot make the necessary showing of prejudice from the failure to call these three witnesses, the State cites People v. Brown, 2015 IL App (1st) 122940, ¶ 16, where the defendant was convicted of unlawful use of a weapon by a felon after a police officer saw him on a porch with a machine gun. In Brown, a single witness testified at trial that the defendant did not have a weapon that day. Id.¶ 12. The defendant argued in his postconviction petition that his trial counsel was ineffective for failing to call three other witnesses who would have corroborated that witness's testimony. Id. ¶ 24. The court found the defendant could not meet the prejudice prong of Strickland because none of the proposed witnesses definitively stated that the defendant was not holding a gun. Id. ¶¶ 57-59. Rather, one witness would have testified that the defendant was holding a bottle, another would have testified that he did not definitively see the defendant with a gun, and the final witness testified that another individual had a gun. Id.
¶ 34 As in Brown, Mr. Willingham's proposed witnesses cannot provide direct evidence of self-defense. None of these proposed witnesses saw any of the shooting. While these witnesses do
support Mr. Willingham's own testimony that the Solid Fours were armed, none of them "directly contradict the evidence," which in this case came from multiple State witnesses, that Mr. Willingham approached an ongoing gang fight, armed with three guns, and shot first. Id. ¶ 58. Accordingly, Mr. Willingham has failed to make a substantial showing of a reasonable probability the result of his trial would have been different had Mr. Willingham's proposed witnesses testified. Domagala, 2013 IL 113688, ¶ 36.
¶ 35 2. Appellate Counsel
¶ 36 Mr. Willingham also argues that the jury instructions for attempted murder and aggravated battery with a firearm given at his trial were erroneous and he has therefore made a substantial showing that his appellate counsel's failure to brief this issue on appeal resulted in a denial of effective assistance of counsel. On this issue, we disagree with Mr. Willingham's premise that the court erred in giving these jury instructions.
¶ 37 Jury instructions are erroneous if an ordinary person would find them misleading or confusing. People v. Herron, 215 Ill. 2d 167, 187-88 (2005). Where, as here, purported errors in jury instructions were not objected to at trial and not raised in a posttrial motion, they are generally forfeited. Id. at 175. However, Illinois Supreme Court Rule 451(c) (eff. April 8, 2013) provides an exception to this rule for errors in jury instructions that constitute "substantial defects." This rule is coextensive with and interpreted identically to the plain-error clause of Illinois Supreme Court Rule 615(a) (eff. Jan. 1, 1967). People v. Cavazos, 2015 IL App (2d) 120171, ¶ 71.
¶ 38 Under the plain error doctrine, a reviewing court may consider an error not properly preserved if there was a clear and obvious error and either (1) the evidence is so closely balanced that the jury may have convicted based on the error or (2) the error "is so serious that it affected the fairness of the defendant's trial and challenged the integrity of the judicial process, regardless
of the closeness of the evidence." People v. Sargent, 239 Ill. 2d 166, 189 (2010). Whether jury instructions fail to accurately reflect the applicable law is subject to de novo review. People v. Anderson, 2012 IL App (1st) 103288, ¶ 34. Mr. Willingham argues that both prongs of the plain error doctrine are met. But in order for either prong of the doctrine to apply, there must have been some error. People v. Hanson, 238 Ill. 2d 74, 115 (2010).
¶ 39 Supreme Court Rule 451(a) (eff. April 8, 2013) requires that applicable Illinois Pattern Jury Instructions, Criminal, "shall be used," unless the trial court determines that a particular instruction "does not accurately state the law." Modifications to the instructions are appropriate when a court must "accommodate unusual facts or intervening changes in the laws." (Internal quotation marks omitted.) People v. Edmondson, 2018 IL App (1st) 151381, ¶ 63.
¶ 40 The pattern jury instruction for attempted murder given at Mr. Willingham's trial stated, "the State must prove *** [t]hat the defendant *** performed an act which constituted a substantial step toward the killing of an individual [and that he did such act] with the intent to kill an individual." Illinois Pattern Jury Instructions, Criminal, No. 6.07X (3d ed. 1992). The aggravated battery with a firearm instruction stated, "the State must prove *** [t]hat the defendant *** knowingly caused any injury to another person *** by discharging a firearm." Illinois Pattern Jury Instructions, Criminal, No. 11.24 (3d ed. Supp. 1996). Mr. Willingham argues both instructions were inadequate because they failed to specifically name the victim, Maurice Scott.
¶ 41 Jury instructions for attempted murder generally do not specify a victim's name, "nor is there a place for the victim's name in the Illinois Pattern Jury Instructions." People v. Malone, 37 Ill. App. 3d 185, 191 (1976). Indeed, the pattern instructions intentionally refer to "an individual" to allow for the doctrine of transferred intent. Edmondson, 2018 IL App (1st) 151381, ¶ 65. This doctrine also applies to aggravated battery. See People v. Dorn, 378 Ill. App. 3d 693, 698-99
(2008). We have recognized that a trial court should deviate from the Illinois Pattern Jury Instructions and include a specific victim's name if this is necessary to accommodate unusual facts that might otherwise confuse the jury. Edmondson, 2018 IL App (1st) 151381, ¶ 63.
¶ 42 Mr. Willingham argues that the facts of his case are the kind of unusual facts that could confuse and jury and are "identical" to People v. Anderson, 2012 IL App (1st) 103288—a case decided almost 14 years after his appeal—in which this court reversed an attempted murder conviction based on the trial court's failure to specify the name of the victim in the instruction. In Anderson, the defendant was charged with first degree murder, attempted first degree murder, and aggravated discharge of a weapon. Id. ¶ 1. The incident leading to these charges occurred at a sandwich shop a few hours after midnight, where an altercation broke out between the defendant and another individual, ending with the defendant shooting and killing the other individual. Id. ¶¶ 6-7. A witness saw the shooting and then fled in his car. Id. He heard more shots but did not see any bullet holes in his car and did not see in what direction the shots were fired. Id. ¶¶ 7-8. The jury instructions for the attempted murder charge did not indicate that the defendant was being tried for the attempted murder of the fleeing witness. Id. ¶ 24. The jury found the defendant guilty of all three offenses. Id. ¶ 27. On appeal, the defendant argued that the attempted murder instruction should have included the witness's name because the jury could have misunderstood the charges and convicted him of attempted murder because he shot at the murder victim. Id. ¶ 56. The court in Anderson agreed, finding that, "under the narrow set of facts of this case," the jury instructions were erroneous. Id. ¶ 64. The court reversed under the first prong of the plain error doctrine, finding that given the almost complete lack of evidence that the defendant shot at the fleeing witness, it was possible the jury's verdict resulted from its incorrect belief that it could convict the defendant of both murder and attempted murder of the same victim. Id. ¶¶ 65-66.
¶ 43 We agree with the State that these facts are easily differentiated from Mr. Willingham's case. In Anderson, there was effectively no evidence that the defendant attempted to murder the fleeing witness, who was the subject of the attempted murder charge. It is unclear if the defendant was even aware of the eyewitness's presence or ever shot in that man's direction. The eyewitness was not shot and all that he could testify to was that he heard shots as he fled the sandwich shop. Id. ¶ 65. Here, by contrast, Mr. Scott was actually hit with a bullet, making it readily apparent to the jury that he was the victim of a separate shooting from that of the murder victim.
¶ 44 As we have recognized several times, the fact pattern in Anderson is unusual. See, e.g., Edmondson, 2018 IL App (1st) 151381, ¶ 74; People v. Cavazos, 2015 IL App (2d) 120171, ¶ 79. As the court in Edmondson explained:
"We never held that juror confusion is probable, or that the IPI instructions must be modified, whenever a shooting gives rise to an attempted-murder charge against one victim and another charge against a different victim. Rather, as the Second District noted in distinguishing Anderson, our conclusion that the IPI instructions were erroneous in that case was shaped by the fact that the evidence was 'closely balanced,' and in a rather unusual way." Edmondson, 2018 IL App (1st) 151381, ¶ 74.
¶ 45 It is also significant that the jury was informed who the victim of the attempted murder charge was by the indictment, which was read during voir dire, opening statement, and closing arguments. People v. Valadovinos, 2014 IL App (1st) 130076, ¶¶ 34-35. See also People v. Stevenson, 198 Ill. App. 3d 376, 381-82 (1990) (finding that comments made by both the State and defense counsel were sufficient to overcome ambiguity in the jury instructions).
¶ 46 Mr. Willingham also argues that the instruction given in his case improperly failed to tell the jurors that, to find him guilty, they had to determine he possessed the specific intent to kill Mr.
Scott, and not Ms. Fleming. However, a conviction for attempted murder can be based on transferred intent. People v. Hill, 276 Ill. App. 3d 683, 688 (1995). A specific intent to kill must be shown, but not the intent to kill a particular person. Id. It is for this reason that the requisite intent has routinely been found in cases where a defendant shoots someone while firing into a crowd, even if he or she was not aiming at the person who was shot. People v. Loera, 250 Ill. App. 3d 31, 44 (1993); see also People v. Garcia, 407 Ill. App. 3d 195, 201-02 (2011) (intent to kill found where the defendant fired two bullets in the direction of an occupied car and a crowded street); People v. Carvajal, 241 Ill. App. 3d 886, 896 (1993) (intent to kill apparent where the defendants fired their guns into a crowd of rival gang members); People v. Mendez, 221 Ill. App. 3d 868, 877 (1991) (same). The jury in this case was thus properly instructed on the law of attempted murder.
¶ 47 There having been no error for appellate counsel to raise on direct appeal, Mr. Willingham has failed to show plain error under either prong and thus has no basis for his claim of ineffective assistance of appellate counsel.
¶ 48 B. Actual Innocence
¶ 49 Mr. Willingham's remaining argument is that he has made a substantial showing of actual innocence by presenting newly discovered evidence that Jermaine Fleming possessed a weapon on June 20, 1995, and that Jermaine shot first. While this evidence also might have supported Mr. Willingham's contention that he was acting in self-defense when he fired at Jermaine Fleming, Mr. Willingham has failed to make the necessary showing to succeed on a claim of actual innocence.
¶ 50 The Post-Conviction Act is not a vehicle for retrying a defendant's guilt or innocence. People v. Carroll, 45 Ill. App. 3d 1063, 1067 (1977). However, "a claim of newly discovered
evidence showing a defendant to be actually innocent of the crime for which he was convicted is cognizable as a matter of due process." People v. Washington, 171 Ill. 2d 475, 488-89 (1996). To proceed on a claim of actual innocence based on newly discovered evidence, the supporting evidence must be new, material, noncumulative, and sufficiently conclusive, such that it would probably change the result on retrial. Id. at 489. Evidence is newly discovered if it "has been discovered since the trial and *** the defendant could not have discovered it sooner through due diligence." People v. Ortiz, 235 Ill. 2d 319, 334 (2009). Evidence is material if "it is probative of a question before the trier of fact" (People v. Favors, 254 Ill. App. 3d 876, 888 (1993)) and cumulative if it adds nothing to what was already before the jury (Ortiz, 235 Ill. 2d at 335). A claim of actual innocence is "a claim that the defendant is free of any criminal involvement, either in the crime for which he was convicted or any lesser included offense." (Emphasis in original.) Evans, 2017 IL App (1st) 143268, ¶ 30.
¶ 51 Jacobi Adams's affidavit states that he was in a car with Jermaine Fleming on June 20, 1995, and Jermaine Fleming hid a gun under his seat. After they exited the car, he saw Jermaine Fleming, as the initial aggressor, shoot at Mr. Willingham, and Mr. Willingham, after dropping the plastic bag containing the two other guns, fire back at Mr. Fleming.
¶ 52 Mr. Willingham argues that this affidavit is new, material, noncumulative evidence that is conclusive of his innocence. In response, the State argues that the affidavit does not totally exonerate Mr. Willingham. The State also says that this affidavit fails to qualify as newly discovered evidence but does not develop that argument in its brief. We will assume therefore that it is newly discovered and could not have been discovered sooner through due diligence. We agree with the State, however, that it is not sufficiently exculpatory to support Mr. Willingham's claim of actual innocence.
¶ 53 Even in reference to the shot that Mr. Willingham fired at Jermaine Fleming, this new evidence did not necessarily establish that Mr. Willingham acted in self-defense. In a factually similar case, our supreme court has recognized that a defendant, even though he did not fire the first shot, still failed to show he acted in self-defense when he armed himself and deliberately entered into a conflict with members of a rival gang. People v. Lewis. 32 Ill. 2d 391, 397 (1965). The court reasoned:
"[T]he defendant said that when he saw the [rival] gang approaching he ran to the basement to get the rifle and then returned to the intersection. Other members of the defendant's gang fled the scene when they saw the members of the other gang approaching, but instead of avoiding the conflict, the defendant *** armed himself with a deadly weapon and returned to the scene. The deliberate return to the conflict is inconsistent with a claim of self-defense." Id.
¶ 54 Here, Mr. Willingham drove to Hickory Street and saw members of his gang fighting with members of another gang. Instead of driving off, he pulled over, put a gun in his waistband, grabbed a bag containing two more guns, and approached the rival gang members. As in Lewis, these actions are not necessarily consistent with self-defense.
¶ 55 Moreover, Mr. Adams's affidavit is silent regarding the shots that witnesses testified Mr. Willingham fired at Mr. McCullor, as well as the shots Mr. Willingham's co-defendants, Mr. Adams and Mr. Turner, fired that afternoon—with weapons that witnesses testified Mr. Willingham brought to the scene. Mr. Willingham could be found guilty on an accountability theory for these shootings, as well as for the shots he fired personally. 720 ILCS 5/5-2(c) (West 1996) ("A person is legally accountable for the conduct of another when *** he solicits, aids, abets, agrees or attempts to aid, such other person in the planning or commission of the offense").
Mr. Adams's affidavit provides nothing that would probably change the result on retrial as to Mr. Willingham's guilt—as a principal or on a theory of accountability—of one or more of the crimes he was charged with. It therefore cannot be said that Mr. Adams's affidavit clears Mr. Willingham of any crime. Evans, 2017 IL App (1st) 143268, ¶ 30 (a defendant must be clear of any criminal involvement for an actual innocence claim to succeed).
¶ 56 Mr. Willingham asks us to follow People v. Sparks, 393 Ill. App. 3d 878 (2009). However, Sparks involved a first-stage dismissal of a postconviction petition. Id. at 879. The standard for a first-stage dismissal is whether the petition is frivolous or patently without merit—whether it states the gist of a claim—not whether the defendant has made a substantial showing to support such a claim, the latter representing a much higher burden. Tate, 2012 IL 112214, ¶¶ 9-10. Further, in Sparks the defendant, according to newly discovered evidence, was simply walking alone down the street when he was attacked by two armed men. Sparks, 393 Ill. App. 3d at 884. He did not arm himself and his companions and knowingly approach a fight. Both the procedural posture and the facts of Sparks are categorically different from what is presented here.
¶ 57 In short, the evidence proffered by Mr. Willingham does not satisfy the requisite high standard for a substantial showing of actual innocence.
¶ 58 IV. Conclusion
¶ 59 For the reasons above, Mr. Willingham has failed to make a substantial showing of a constitutional violation. We affirm the second-stage dismissal of his postconviction petition.
¶ 60 Affirmed.