No. 2-19-0241 Order filed February 19, 2021

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court ) of Winnebago County. Plaintiff-Appellee, ) ) v. ) No. 10-CF-1621 ) RICARDO JAIMES, ) Honorable ) Brendan A. Maher, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices McLaren and Birkett concurred in the judgment.

ORDER

¶1 Held: The defendant’s postconviction claim that his trial counsel was ineffective for failing to present expert testimony on eyewitness identifications was frivolous and patently without merit.

¶2 Following a jury trial, the defendant, Ricardo Jaimes, was convicted of first-degree murder

(720 ILCS 5/9-1(a)(1) (West 2010)) and attempted first-degree murder (720 ILCS 5/8-4(a), 9-

1(a)(1), (West 2010)), and sentenced to a total of 70 years’ imprisonment. In 2018, the defendant

filed a pro se postconviction petition alleging that his trial counsel was ineffective for failing to

call an expert to testify about the reliability of eyewitness identifications. The circuit court

summarily dismissed the petition as frivolous and patently without merit. The defendant appeals

from this order. We affirm.

¶3 I. BACKGROUND

¶4 We restate the evidence established at the defendant’s bench trial largely as set forth in our

disposition resolving the defendant’s direct appeal. People v. Jaimes,

.

On June 23, 2010, the defendant and his brother Isaac were charged by indictment with the first-

degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (a)(3) (West 2010)) of Demarkis Robinson and the

attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2010)) of William Patrick. The

trial court granted the defendant’s motion to sever the brothers’ trials.

¶5 Between September 24 and 27, 2012, the trial court conducted a jury trial. The State's

evidence established that Patrick had prior convictions of mob action and possession of a firearm

without a firearm owner’s identification (FOID) card and that he was a member of the Insane

Unknowns street gang, which was a rival of the Latin Kings. Robinson was his close friend and

also a member of the Insane Unknowns.

¶6 On May 27, 2010, Patrick, his aunt, Wanda Perez, and Robinson were visiting Patrick’s

grandmother’s house at 1129 6th Avenue in Rockford. While Patrick, Robinson, and Perez were

on the front porch with other family members, Perez noticed a gray Tahoe sport utility vehicle

(SUV) quickly approach and then stop near the 8th Street and 6th Avenue intersection. Perez told

Patrick and Robinson to watch the SUV. The driver’s side of the vehicle was facing the house.

Perez and Patrick noticed the driver make a hand gesture with two fingers pointing downward.

Perez did not closely view the vehicle’s occupants. Patrick explained that the hand gesture was an

act of disrespect to the Insane Unknowns. Patrick then observed the driver display a gang sign for

the Latin Kings. Patrick testified that the driver’s hand gestures were grounds to start a fight.

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¶7 Thereafter, Patrick and Robinson left Patrick’s grandmother’s house. The Tahoe had

traveled toward 7th Street, but Robinson and Patrick walked toward 9th Street. Patrick and

Robinson passed through an alley and turned onto 5th Avenue. When they exited the alley 15 to

20 minutes after first seeing the Tahoe, Patrick, while speaking on his phone, saw the Tahoe, with

the same driver, pass them very slowly. Patrick observed that the passenger had a bandana around

his face, which signified to Patrick that the occupants of the Tahoe were going to start shooting.

Patrick picked up a brick and threw it at the Tahoe so that it would keep moving. Geraldine Horton

was walking by as this occurred. She heard glass break and saw the SUV stop a few feet before a

stop sign. Lacressa Dangel was driving by as this occurred. Dangel felt and saw something hit

the back of her car on her northbound journey along 9th Street. She stopped her car north of 5th

Avenue and saw a silver SUV facing west on 5th Avenue. She observed the scene unfold through

her rearview mirror.

¶8 Patrick, Horton, and Dangel watched as: (1) the Tahoe’s passenger door opened; (2) a

passenger exited and walked toward the back of the vehicle; and (3) the passenger used two hands

to hold, point, and fire a firearm four or five times. Dangel believed that the gun looked like a

skinny BB gun and that the shooter was a Hispanic male. Patrick believed that the firearm looked

like a rifle, and he heard five to eight shots fired. He ducked behind a tree, and Robinson veered

off into an alleyway. At trial, Horton described both the driver and the passenger as Hispanic.

¶9 Shortly after Robinson and Patrick left, Perez heard what sounded like one close gunshot.

She then called Robinson’s father, Samuel, and told him that she heard a gunshot and that Robinson

and Patrick had been walking toward his house. In response to the phone call from Perez, Samuel

ran toward the area where the shots were fired. About 15 to 20 minutes later, Samuel found

Robinson near the scene. Samuel saw that Robinson was in and out of consciousness and he called

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911. Robinson told Samuel, “that damn Richard shot me.” From a previous discussion with his

son, Samuel had learned that Richard and Robinson had been in a fight at Rockford East High

School, Richard was a Latin King who attended that school, and Robinson had encountered

Richard at Perez’s mother’s house a month before the shooting.

¶ 10 Police officers responded to the scene and discovered five spent .22-caliber shell casings

in the street. Robinson was transported to Swedish American Hospital, where he was pronounced

dead.

¶ 11 Dr. Mark Peters performed an autopsy on Robinson. Dr. Peters opined that Robinson died

of a gunshot wound to the abdomen that caused internal bleeding, hemorrhagic shock, and blood

loss. Though such an injury could cause instant death, a person could walk and live with such an

injury for 30 minutes before dying. Dr. Peters recovered from Robinson’s body a bullet that

appeared consistent with .22-caliber ammunition.

¶ 12 On May 28, 2010, Patrick spoke to Rockford police officers about the incident and gave

his statement. He was upset, shaking, and crying. In his statement, Patrick did not mention that

he threw a brick at the silver Tahoe or that Robinson walked up to the vehicle and spoke to the

occupants. Though he had not seen the driver before, Patrick knew that the driver was a Latin

King, based upon the display of the Latin Kings’ gang sign. From a photo array, Patrick identified

the defendant as the driver of the Tahoe and Isaac as the shooter. On that same day, Rockford

police officers interviewed Dangel. Dangel identified Isaac as the shooter, but she was not able to

identify the driver of the vehicle.

¶ 13 On May 29, 2010, the police arrested both the defendant and Isaac. The police discovered

the defendant’s Tahoe at the house where he was arrested. When the Tahoe was inspected, the

police found a spent .22-caliber casing under the rear passenger seat.

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¶ 14 Patrick and Perez subsequently identified the defendant’s Tahoe as the one they saw on the

day of the shooting. Both Horton and Dangel told the police that the defendant’s Tahoe looked

like the one involved in the shooting.

¶ 15 Illinois State Police forensic scientist David Welte compared the five spent cartridges

found on the street with the one found in the Tahoe. He concluded that all six casings were fired

from the same .22-caliber firearm. Although he determined that the bullet recovered from

Robinson was the same caliber as the six casings, he could not determine if it was fired from the

same firearm, because, as the firearm used in the shooting was never recovered, he was not able

to compare it to that firearm.

¶ 16 On February 7, 2011, Patrick went to the office of the defendant’s attorney, David Vella.

He was accompanied by someone who identified himself as a Vice Lord from Chicago. Patrick

told Vella that the written statement he had given to the police was false. He told Vella that he

could not identify the driver or the shooter, because hoods and masks covered their faces. At trial,

Patrick testified that his statement to Vella was false and that he had made it because he had been

threatened.

¶ 17 In September 2012, Patrick told an assistant State’s Attorney that he did not want to testify.

Patrick explained that people had threatened him. He was concerned about his safety. Patrick

indicated that he could still identify the driver of the Tahoe from a photo array, but not the shooter.

(At trial, he testified that he could identify the shooter as well.) Patrick also made no reference to

Robinson talking to the occupants of the Tahoe. (At trial, he testified that Robinson and the

occupants said a couple of words when the vehicle first pulled up.)

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¶ 18 The State introduced evidence that the defendant was a Latin King. The State also

introduced testimony from an expert on street gangs, who explained the significance of gang

members’ hand gestures and their rivalries with other gangs.

¶ 19 Following the denial of his motion for a directed verdict, the defendant presented two

witnesses. Rockford police officer Courtney Tillman Listhrup, a school liaison officer at East

High School, testified that on May 14, 2010, Isaac complained to her that someone had broken the

driver’s-side and rear windows of his Chevy Suburban. Officer Jeffrey Schroeder was called to

impeach Patrick’s testimony by identifying the differences between Patrick’s statements given in

May 2010, and September 2012.

¶ 20 At the close of the trial, the jury found the defendant guilty of first-degree murder and

attempted first-degree murder. Following the denial of his posttrial motion, the trial court

sentenced the defendant to a total of 70 years’ imprisonment. The defendant thereafter filed a

timely notice of appeal.

¶ 21 On direct appeal, the defendant argued that the evidence was insufficient to convict him,

the trial court erred in allowing evidence of his past gang activity, and trial counsel was ineffective

for eliciting evidence in support of the State’s case. Jaimes,

¶¶ 24, 36,

48, 61. This court affirmed the defendant’s conviction and sentence. Id. ¶ 69.

¶ 22 On December 3, 2018, the defendant filed a pro se postconviction petition pursuant to the

Post-Conviction Hearing Act (Act) (725 ILCS 5/122 et seq. (West 2018)). The defendant argued,

in relevant part, that trial counsel was ineffective in failing to call an expert on the reliability of

eyewitness identifications at trial to challenge Patrick’s testimony that the defendant was the driver

of the vehicle at the scene of the shooting. Further, the defendant asserted that appellate counsel

was ineffective in failing to raise this issue on direct appeal.

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¶ 23 In support, the defendant attached an affidavit from Geoffrey Loftus, a psychology

professor at the University of Washington in Seattle. In his affidavit, Loftus stated that, at over

400 trials worldwide, he had been found qualified to testify as an expert in memory and perception.

Loftus stated that expert testimony on eyewitness identifications can help a jury assess the

reliability of an eyewitness memory. Loftus further opined that a number of things could have

affected the reliability of Patrick’s eyewitness identification, such as multiple factors competing

for his attention at the time of the shooting, the short duration of the event, the inaccuracy of cross-

racial identifications, and the stress of the event. Further, post-event factors such as the line-up

procedures and other suggestive information could also have influenced Patrick’s eyewitness

testimony.

¶ 24 On February 28, 2019, the trial court dismissed the petition as frivolous and patently

without merit. The trial court found that, due to the state of the case law at the time of the

defendant’s trial, the defendant could not establish that his trial counsel’s performance was

deficient. Specifically, the trial court found that the defendant could not establish that the failure

to call an expert witness on the reliability of eyewitness identification was not the result of

reasonable professional judgment or overcome the presumption that such decision was the result

of sound trial strategy. Because the defendant could not establish ineffective assistance of trial

counsel, the trial court concluded that the defendant could also not establish ineffective assistance

of appellate counsel. The defendant filed a timely notice of appeal from this order.

¶ 25 II. ANALYSIS

¶ 26 On appeal, the defendant argues that the trial court erred in summarily dismissing his

postconviction petition at the first stage. The defendant contends that he presented the gist of a

constitutional claim that his trial counsel was ineffective in failing to present expert testimony

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regarding the fallibility of eyewitness identifications and that appellate counsel was ineffective in

not raising this issue on direct appeal. The defendant asserts that this type of expert testimony was

particularly relevant in this case because the defendant made no inculpatory statements and

Patrick’s testimony suffered from numerous flaws.

¶ 27 Postconviction proceedings contain three stages. People v. Hodges,

(2009). At the first stage, the circuit court, within 90 days of the petition’s filing, determines,

taking the allegations as true, whether the petition is frivolous or is patently without merit.

If

the court does not summarily dismiss the petition as frivolous or patently without merit, the petition

advances to the second stage, where counsel may be appointed, and the State is allowed to file a

motion to dismiss.

If the petition advances to the third stage, the court will hold an evidentiary

hearing. People v. Edwards,

(2001).

¶ 28 Because most petitions at the first stage are drafted by defendants with little legal

knowledge, the threshold for survival is low. People v. Torres,

(2008). To

survive summary dismissal, a pro se petitioner need only raise the “gist” of a constitutional claim.

People v. Coleman,

, 380 n. 2 (1998). The “gist” standard is a low threshold, and

to meet this standard, the petition need only set forth a limited amount of detail and need not

include formal legal arguments or citations to legal authority. Edwards,

. A pro

se postconviction petition can be dismissed as frivolous or patently without merit when it has “no

arguable basis either in law or in fact.” Hodges,

. A petition lacks an arguable

basis either in law or in fact when it is based on an indisputably meritless legal theory or a fanciful

factual allegation.

A trial court’s first-stage dismissal is reviewed de novo. People v.

Carballido,

.

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¶ 29 An allegation of ineffective assistance in a postconviction petition is considered under the

familiar standard set forth in Strickland v. Washington,

(1984). To prevail on a claim

of ineffective assistance under Strickland, a defendant must show both that counsel’s performance

was objectively unreasonable and that the deficient performance resulted in prejudice to the

defendant. Hodges,

. The consideration of an ineffective-assistance claim in the

postconviction context is slightly different, in that, to survive the first stage of postconviction

review, the petition must allege that (1) it is arguable that counsel’s performance fell below an

objective standard of reasonableness, and (2) it is arguable that the defendant was prejudiced by

the deficient performance.

¶ 30 In the present case, the trial court did not err in summarily dismissing the defendant’s

postconviction petition. The defendant’s trial occurred in 2012. At that time, Illinois case law

generally precluded expert testimony on the reliability of eyewitness identification because such

testimony was viewed as invading the province of the jury as the trier of fact. People v. McGhee,

(citing People v. Enis,

(1990) (citing

cases)). In fact, the McGhee court noted that it was “unaware of *** any Illinois cases in which

an attorney ha[d] been deemed ineffective for failing to offer, or a trial court has been found to

have abused its discretion for refusing to allow, expert testimony on [eyewitness identifications].”

Id. ¶ 55.

¶ 31 We acknowledge that since McGhee, our supreme court held, in People v. Lerma,

, that the trial court abused its discretion in granting the State’s motion in limine to

bar the testimony of an expert on the reliability of eyewitness identifications. In Lerma, the trial

took place at some point between the charged offense, which occurred in 2008, and the time the

defendant was sentenced in 2012. Id. ¶¶ 3, 5. The Lerma court acknowledged that, at the time of

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the defendant’s trial, expert testimony on the reliability of eyewitness identifications was being

routinely excluded, partly because of skepticism previously expressed by the supreme court.

¶

24 (citing Enis,

). In determining that the trial court abused its discretion in

barring the proffered testimony, the Lerma court recognized that expert testimony on the reliability

of eyewitness identifications had “moved from novel and uncertain to settled and widely

accepted.”

¶ 32 Nonetheless, the issue in the present case is distinct from that in Lerma. Whether a trial

court abused its discretion in rejecting proffered expert testimony is a different question than the

one presented here, namely, whether defense counsel’s performance was objectively unreasonable

based on the failure to call an expert witness at trial. “Decisions concerning which witnesses to

call at trial and what evidence to present on defendant’s behalf ultimately rest with trial counsel.”

People v. West,

(1999). It is well settled “that a reviewing court will be highly

deferential to trial counsel on matters of trial strategy, making every effort to evaluate counsel’s

performance from his perspective at the time, rather than through the lens of hindsight.” People

v. Perry,

(2007). A mistake in trial strategy or an error in judgment will not

render representation constitutionally defective.

. “Only if counsel’s trial strategy

is so unsound that he entirely fails to conduct meaningful adversarial testing of the State’s case

will ineffective assistance of counsel be found.”

¶ 33 In the present case, in light of the prevailing case law at the time of the defendant’ trial—

cautioning against the use of expert testimony on eyewitness identifications—and the deference

owed on matters of trial strategy, trial counsel’s failure to procure such expert testimony did not

arguably fall below an objective standard of reasonableness. See People v. Macklin,

(“Representation based on the law prevailing at the time of trial is adequate,

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and counsel is not incompetent for failing to correctly predict that the law will change.”); see also

People v. Lawson,

(affirming first stage dismissal of postconviction

petition because trial counsel’s failure to call an expert witness on eyewitness identifications could

not be considered objectively unreasonable); People v. Sauseda,

(holding, on direct appeal, that trial counsel’s failure to call an expert witness on eyewitness

identifications was not unreasonable); McGhee,

(affirming second

stage dismissal of postconviction petition, holding that it was not unreasonable for defense counsel

to decline to present expert testimony regarding the reliability of eyewitness identification because

Illinois courts, in practice, rejected such evidence). Trial counsel was entitled to consider that

expert testimony on eyewitness identifications was routinely rejected. Further, as a matter of trial

strategy, counsel was entitled to consider that presenting such an expert witness could be met with

a counter-expert, who could have bolstered the accuracy of Patrick’s eyewitness identification.

People v. Hamilton,

(2005) (“Counsel’s failure to call an expert witness

is not per se ineffective assistance, even where doing so may have made the defendant’s case

stronger, because the State could always call its own witness to offer a contrasting opinion.”).

Trial counsel could also have considered that there were many other bases to attack the reliability

of Patrick’s testimony as he was a gang member, had prior convictions, and had at one point

recanted his identification of the defendant as the driver. Trial counsel did in fact vigorously

challenge the reliability of Patrick’s testimony at trial on these bases.

1 “This court may rely on the reasoning in a nonprecedential decision because nothing in

the language of Illinois Supreme Court Rule 23(e) prevents a court from doing so.” People v.

Ingram,

, ¶ 21 n.1.

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¶ 34 In addition, there is no arguable basis for concluding that the defendant was prejudiced by

trial counsel’s failure to call an expert witness. Because of the prevailing law at the time, it was

common practice to deny motions to admit expert testimony on the reliability of eyewitness

identifications. People v. Young,

(affirming denial of petition for

leave to file a successive postconviction, holding that the defendant could not establish prejudice

because, even if trial counsel had moved to admit expert testimony on the reliability of eyewitness

identifications, it was common practice at the time to deny such requests). Further, the defendant’s

conviction did not rest entirely on Patrick’s eyewitness identification. There was also other

evidence relevant to the defendant’s guilt: Dangel identified the defendant’s brother as the shooter;

Perez, Dangel, and Horton identified the defendant’s car as similar to the car involved in the

shooting; a shell casing found in the defendant’s car matched the casings found at the scene of the

crime; and Samuel testified that Robinson stated that “Richard” had shot him. Moreover, even

after Lerma, it still remains the law in Illinois to use the Biggers factors (Neil v. Biggers,

(1972)) for the purpose of assessing the reliability of eyewitness identification

testimony. Macklin,

. This court addressed these factors on direct

appeal and held that they supported a determination that Patrick’s identification testimony was

reliable. Jaimes,

. In light of the foregoing, there is no

reasonable probability that the result of the defendant’s trial would have been different if trial

counsel had presented expert testimony concerning the reliability of eyewitness identifications.

As there is no arguable merit to the defendant’s claim that his trial counsel was ineffective for

failing to present such testimony, the trial court did not err in summarily dismissing the defendant’s

postconviction petition.

¶ 35 III. CONCLUSION

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¶ 36 For the reasons stated, the judgment of the circuit court of Winnebago County is affirmed.

¶ 37 Affirmed.

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