No. 1-19-1899 Order filed May 14, 2021 Fifth Division

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 10 CR 19174 ) ALLAN KUSTOK, ) Honorable ) John J. Hynes, Defendant-Appellant. ) Judge, presiding.

JUSTICE ROCHFORD delivered the judgment of the court. Presiding Justice Delort and Justice Hoffman concurred in the judgment.

ORDER

¶1 Held: The circuit court’s grant of the State’s motion to dismiss defendant’s postconviction petition is affirmed where defendant forfeited his claim of ineffective assistance by failing to raise it on direct appeal and, forfeiture notwithstanding, defendant failed to make a substantial showing of prejudice.

¶2 Defendant Allan Kustok appeals from the circuit court’s grant of the State’s motion to

dismiss his postconviction petition at the second stage of proceedings, claiming that the petition

made a substantial showing of ineffective assistance of trial counsel. We affirm. No. 1-19-1899

¶3 Defendant was charged with six counts of first degree murder (720 ILCS 5/9-1 (West Supp.

2009)) arising from the September 29, 2010 shooting death of his wife, Anita Kustok, at their

house in Orland Park, Illinois.

¶4 At trial, Patricia Fleming, a registered nurse, testified that she was working at Palos

Community Hospital on September 29, 2010. At approximately 6:50 a.m., she saw defendant

standing outside holding something wrapped in sheets and blankets that resembled the shape of a

person. Fleming went outside and spoke to defendant, who was upset and stated repeatedly that

his wife shot herself.

¶5 Defendant told Fleming that his wife woke him early that morning because she was

concerned someone had tried to break in. Defendant checked the house and told her no one was

there. Later that morning, he went to the bathroom, heard a loud explosion, and then found his

wife shot. He discharged the remaining bullets from the murder weapon, then laid by her.

¶6 On cross-examination, Fleming testified that defendant told her he had purchased a firearm

because his wife had asked him to buy it for their anniversary. He did not know the firearm was in

the bed that morning.

¶7 Dr. Elizabeth Hatfield testified that she was working at the Palos Community Hospital

emergency room when defendant arrived with his wife’s deceased body wrapped in several sheets

and blankets. Defendant told Hatfield that at 3:30 a.m., his wife woke him, said she heard a noise,

and asked him to investigate. Defendant checked the house and went back to sleep. She woke him

again at 5 a.m. and said she had to be up in 30 minutes. Just before 5:30 a.m., defendant heard a

gunshot and saw his wife in a pool of blood. Defendant laid by her. Hatfield asked why defendant

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did not call 911, and he said he “knew she was dead.” Defendant fired the remaining bullets and

then “cleaned her up.”

¶8 Officer Larry Davids testified that on September 29, 2010, he went to Palos Community

Hospital and administered a gunshot residue (GSR) kit on defendant. Defendant told Davids that

he went to the bathroom at 5 a.m. and then came back to bed, where his wife said she had another

30 minutes before she had to wake up. Defendant fell asleep, then awoke to “just one bang.” He

turned, saw blood, and tried to wipe it up. He took the firearm, which was lying on his wife’s chest

with her right hand over or near it, held it to his head, then fired toward an armoire. Defendant

discarded the firearm and used a towel to wipe his wife. He sat and held her, then placed her in the

front seat of his vehicle and drove to the hospital. Defendant stated he purchased the firearm for

their anniversary, and never before fired it.

¶9 Officer Jeff Cavender testified that on September 29, 2010, he arrived at Palos Community

Hospital, viewed Mrs. Kustok’s body, and found “powder burns” and “starring around the wound,”

which suggested that the firearm was in “close proximity” to her face when fired. Cavender noticed

“reddish-brown dots” on both lenses of defendant’s glasses.

¶ 10 Defendant told Cavender that he went to the bathroom at 5 a.m., returned to bed and fell

asleep, then woke to a gunshot. He rolled over and saw his wife “with her head to the right facing

towards him with her arms across her chest, right over left, a handgun in her right hand.” Cavender

asked defendant why he did not call for help, and he responded that “he knew his wife would not

want a scene there and he knew that she was dead.” Defendant said he waited approximately 1½

hours before driving his wife to the hospital. He further stated that he kept his glasses in the

bathroom and did not wear them to the bedroom when he returned around 5 a.m. Before leaving

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the hospital, Cavender took possession of defendant’s clothes, which included scrubs and a t-shirt,

and an envelope containing defendant’s glasses.

¶ 11 Andre Blue, an evidence technician for the Cook County Sheriff’s Police Department,

testified that on September 29, 2010, he went to Palos Community Hospital and photographed

Mrs. Kustok, administered a GSR kit to her hands, and viewed defendant’s glasses, which had

reddish-brown spots on the lenses.

¶ 12 Officer Troy Siewert testified that he responded to the Kustok house on September 29,

2010, at approximately 7:11 a.m. He was the first to arrive. The house was empty and showed no

signs of forced entry.

¶ 13 Ronald Sachtleben, a crime scene investigator for the Cook County Sheriff’s Police

Department, testified that he was assigned to the Kustok house on September 29, 2010. He

described the condition of the master bedroom that morning, including that the doorframe had a

brownish-red substance on it. There were two pillows with apparent “drops of blood” near a

nightstand south of the bed, as well as drops of blood on the carpet east of those pillows. The bed

had what looked like a “large blood stain” on the northwest corner, and another pillow on top of

it. Next to a nightstand north of the bed, there were five stacked pillows, each of which appeared

to have bloodstains. One pillow had a hole from which Sachtleben recovered a “copper-jacketed

lead projectile.”

¶ 14 North of the nightstand, Sachtleben saw a firearm on the floor. On the north wall of the

bedroom, he saw an armoire with five bullet holes in it. In the master bathroom, he found a pair of

blue shorts, a white mat, two towels in the sink, and two towels in the bathtub, all with apparent

bloodstains. Sachtleben also searched the basement and recovered a brown paper bag that

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contained a box of 25 live rounds of ammunition from inside a filing cabinet, as well as a “black

pistol box” from underneath a tool bench.

¶ 15 Shawn Weiss, a project manager at LabCorp, testified that he conducted DNA analysis on

samples from the glasses. Weiss concluded that the glasses had a major female DNA profile from

which Mrs. Kustok could not be excluded.

¶ 16 Kelly Krajnik, a forensic scientist for the Illinois State Police, testified that she performed

DNA testing on multiple items related to the investigation, including a t-shirt, shorts, two

pillowcases, and a firearm. Each item had blood on it that matched Mrs. Kustok’s DNA profile.

On redirect, Krajnik testified that she did not locate defendant’s DNA in the samples from the

firearm.

¶ 17 Jeff Parise, a forensic scientist specializing in firearms for the Illinois State Police, testified

that in November 2011 he tested the firearm used in the incident. The firearm had single-action

and double-action trigger modes and safety measures to prevent it from discharging accidentally.

The firearm should not discharge if dropped while in single-action mode.

¶ 18 Mary Wong, a forensic scientist for the Illinois State Police, testified that she received GSR

samples from the back of Mrs. Kustok’s and defendant’s left and right hands. Wong concluded

that Mrs. Kustok may not have discharged a firearm with either hand, but that defendant’s left-

hand sample indicated that he either discharged a firearm, was in the vicinity of a discharged

firearm, or contacted a primer GSR-related item.

¶ 19 Dr. Hiliary McElligott testified that she performed Mrs. Kustok’s autopsy. Mrs. Kustok

was 5’5’’ and weighed 130 pounds. She had a gunshot injury to her left cheek. The wound was

surrounded by stippling, which indicated that the firearm was discharged “a number of inches”

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from her face. Due in part to the lack of soot near the wound, Dr. McElligott concluded that the

firearm was discharged 6 to 24 inches from Mrs. Kustok’s face, with a trajectory “from the left to

the right and slightly downward.” The bullet exited the back of Mrs. Kustok’s head, on the right

side. Dr. McElligott determined that the cause of death was a gunshot wound to the face, and the

manner of death was homicide.

¶ 20 Dr. McElligott ruled out suicide and accident as manners of death. She discounted suicide

because the gunshot injury was on the left side of Mrs. Kustok’s face, the firearm was found in her

right hand, and her hand was on her chest. She believed that it was “an unlikely scenario to reach

across one’s body and fire with the right hand toward the left side of the face.” The stippling also

indicated that Mrs. Kustok did not commit suicide because self-inflicted gunshot wounds are

typically contact wounds. Additionally, Dr. McElligott believed that defendant’s presence at the

time of the shooting and his delay in requesting medical treatment made suicide unlikely.

Dr. McElligott discounted accident as the manner of death for “many” of the same reasons she

rejected suicide.

¶ 21 John Riggio, the manager of a gunshop, testified that he sold the firearm to defendant in

June 2009. Defendant told Riggio that he was purchasing the firearm for target shooting.

Defendant did not mention home defense as reasons for the purchase.

¶ 22 Five witnesses who knew Mrs. Kustok, including her brother, daughter-in-law, friends, and

a neighbor, testified that they had no knowledge that she had a firearm in the house. Testimony

also demonstrated that Mrs. Kustok was planning a surprise birthday party for her sister for

October 2010, had made a doctor’s appointment for a date after September 29, 2010, and had not

exhibited a noticeable change in her typically positive disposition prior to the incident.

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¶ 23 The State introduced testimony from five women with whom defendant had varying

degrees of extramarital interaction. Ms. V testified that she had a five-year affair with defendant

that was ongoing at the time of the incident, during which defendant expressed dissatisfaction with

his marriage. Ms. K testified that she had a sexual encounter with defendant in July 2010. Ms. H

testified that she met defendant at a mall in July 2010 and had coffee with him, at which time he

stated he was not happy in his marriage. Ms. G testified that she met defendant at a restaurant and

had subsequent dates with him in August 2010. During their time together, defendant made sexual

advances towards her and relayed that he and the victim were only together for their children and

would divorce soon. Ms. R testified that days before the incident, she had lunch with defendant,

kissed him afterwards, and made plans for another date.

¶ 24 Rod Englert testified as the State’s expert in blood pattern analysis and crime scene

reconstruction. On December 16, 2010, Englert created a reconstruction of the shooting in a police

garage using the photographs and measurements from the scene. Englert testified that certain

bloodstains on the t-shirt defendant wore at the hospital were “consistent with impact spatter from

high velocity mist from gunshot,” and not consistent with transfer stains, which are “slow” and

have no “energy connected” to the stain. Similarly, the shorts recovered from the master bathroom

had “individual impact spatter stains consistent with [a] gunshot.” Englert also examined a pair of

glasses and photographs thereof and concluded that one of the lenses had “the appearance of

blood” that was “consistent with *** high energy gunshot impact spatter.” The firearm contained

impact spatter on each side, which would not occur if the firearm discharged while “laying *** on

the surface of the bedding.”

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¶ 25 Englert concluded that Mrs. Kustok was shot from the north side of the bed. There were

no burn marks or soot deposits on the pillow in which the bullet was located, which suggested that

the firearm “wasn’t laying on [a] pillow when the shot was fired,” meaning that the shooting was

not accidental. Englert also found no evidence of soot on the “pillow or any of the bedding.”

Englert believed that had Mrs. Kustok shot herself, high velocity impact blood spatter would have

appeared on her arm, which dries very quickly, her arms would not have fallen crossed on her

chest with the firearm in her right hand, and her hands likely would have been positive for primer

GSR. Accordingly, he ruled out a self-inflicted shot based in part on the spatter patterns and the

lack of blood or soot on her hand and arms. He ruled out accident “[b]ased on the blood on both

sides [of the firearm], the lack of burning, soot, burning of the sheet or pillowcase.” Additionally,

had defendant wiped soot from Mrs. Kustok’s body with a towel, Englert would have expected to

find that soot on a towel, but did not.

¶ 26 Englert opined that the position in which defendant claimed to find Mrs. Kustok was not

possible. The reconstruction demonstrated that the stains on defendant’s shirt could not have

resulted from him lying next to Mrs. Kustok when the firearm accidentally discharged or from

defendant being in the bathroom when the shooting occurred. Based on the high velocity impact

spatter on the shirt, shorts, and glasses, someone other than Mrs. Kustok fired the shot while

standing above her, wearing those items, and holding the firearm four inches to four feet from her

face.

¶ 27 On cross-examination, Englert testified that after he had formed his opinion, the State

contacted him with concerns that one of the pillowcases had a substance on it that appeared to be

soot. Englert subsequently conducted a visual examination of the pillowcase on March 28, 2012,

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and determined that the substance was clotted blood, not soot. Englert did not perform a sodium

rhodizonate test to detect the presence of lead on the pillowcase and did not recommend that one

be performed. He acknowledged that his opinion that the gunshot could not have been self-inflicted

or accidental was partially “because of the absence of soot.”

¶ 28 Trial counsel moved for sodium rhodizonate testing of the pillowcase that Englert had

examined. The trial court denied the request because the defense could have and should have

performed the testing prior to trial.

¶ 29 The State rested, and the court denied defendant’s motion for mistrial and a directed

verdict.

¶ 30 Sarah Kustok, Mrs. Kustok’s daughter, testified she did not notice any change in her

mother’s demeanor prior to the shooting. Sarah occasionally stayed with Mrs. Kustok when

defendant traveled for business. Mrs. Kustok did not like to be alone and had discussed burglaries

in the area with Sarah in the months before September 2010. Sarah, Mrs. Kustok, and defendant

all planned for Sarah to spend the evening of September 30, 2010, at the Kustok house.

¶ 31 On the morning of September 29, 2010, Sarah’s brother called and said defendant needed

help and was at Palos Community Hospital. Sarah went to the hospital, where her brother met her

and told her that Mrs. Kustok was dead. Sarah asked to see defendant, but police officers denied

the request. She later told the police that she did not know anything regarding defendant’s

extramarital affairs or whether her parents had a firearm in the home.

¶ 32 Paul Kish, defendant’s expert in bloodstain pattern analysis, testified that he analyzed the

shirt, shorts, pillows and pillowcases, firearm, and glasses, and concluded that there was

insufficient data available to position defendant at the time the firearm discharged. Based on Kish’s

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analysis, the bloodstains on the shirt were transfer stains. Similarly, Kish concluded that the

bloodstains on the firearm were “all consistent with it being in contact with bloody objects on both

sides.” He did not believe the nature of the bloodstains on the shorts could be determined to a

reasonable degree of scientific certainty and testified that the glasses had “no bloodstain pattern

analysis value.” Kish further testified that an area of “black deposition” on the pillowcase Englert

examined on March 28, 2012, had “no physical qualities of being blood,” and should have been

subjected to a sodium rhodizonate test.

¶ 33 On cross-examination, Kish acknowledged that he knew before trial of Englert’s review of

the disputed pillowcase on March 28, 2012. Kish had access to the pillowcase before trial, and

could have requested the sodium rhodizonate test, but did not.

¶ 34 Matthew Noedel, defendant’s expert in crime scene reconstruction and ballistics, testified

to his general disagreement with Englert’s reconstruction. Noedel testified that it is not uncommon

for firearms such as the one in this case to accidentally discharge while in single-action trigger

mode. Based on the stippling pattern on Mrs. Kustok’s cheek, Noedel believed the firearm was

three to six inches from her face when it discharged.

¶ 35 Following closing arguments, the jury found defendant guilty of first degree murder.

¶ 36 Defendant filed a motion for a new trial and a motion requesting that the sodium

rhodizonate test be performed on the pillowcase at issue. The trial court permitted the test by

agreed order.

¶ 37 On November 20, 2014, during a hearing on defendant’s motion for a new trial, the defense

called Nicole Fundell, a forensic scientist for the Illinois State Police. Fundell testified that she

completed the sodium rhodizonate test on the pillowcase and found that three areas were positive

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for the presence of lead. Fundell also performed testing using the firearm involved in the incident

and a pillow similar to the one at issue and reproduced a similar deposit pattern on the test pillow.

The most consistent pattern was from a discharge distance of three inches away. Fundell testified

that some part of the pillowcase must have been exposed at the time of the shooting for the detected

lead deposit to form. There was, however, no bullet hole in that pillowcase or pillow. She

concluded that the firearm was not lying on a pillow and was a distance greater than contact but

less than six inches from the victim at the time of discharge.

¶ 38 On cross-examination, Fundell acknowledged a “possibility” that had the firearm been

discharged five other times in the bedroom, those shots could be equally likely to have left the lead

spots. She also acknowledged the lead may have been deposited on the pillowcase when it was

moved.

¶ 39 Noedel also testified for defendant on November 20, 2014. Based on Fundell’s testing,

Noedel now believed that the firearm likely discharged closer than two inches from Mrs. Kustok’s

face. He described the presence of lead as a “game changer” because “now we have to reconstruct

with this pillow as involved in the event.” He contended that Englert’s testimony that the firearm

could not have been “at or adjacent to an intervening surface” could be “completely wrong” in

light of the new test results on the pillowcase. The presence of lead on the pillowcase raised a

question as to whether the blood on the firearm was “spatter from the shooting versus other

transfers.” Noedel testified that Englert’s reconstruction, and his opinions generated therefrom,

were invalidated by Fundell’s test results.

¶ 40 The court denied defendant’s motion for a new trial, finding that the sodium rhodizonate

test results did not meet the standard for newly discovered evidence because the test could have

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been performed before trial with the exercise of due diligence, and the evidence was merely

cumulative. The court further found that the evidence was not sufficiently conclusive because

“overwhelming” evidence aside from Englert’s testimony supported the guilty verdict.

¶ 41 Following a hearing, the court sentenced defendant to 60 years’ imprisonment for first

degree murder (720 ILCS 5/9-1 (West Supp. 2009)).

¶ 42 Defendant appealed his conviction, arguing that the trial court erred by allowing evidence

of his extramarital contacts and “incorrectly denied his posttrial motion for a new trial based upon

newly discovered evidence.” Kustok,

, ¶ 2. We affirmed, finding in

relevant part that defendant’s newly discovered evidence claim failed because the trial court did

not abuse its discretion by finding that the evidence at issue was discoverable prior to trial through

the exercise of due diligence.

.

¶ 43 On December 22, 2017, through counsel, defendant filed the present postconviction

petition, in which he argued that trial counsel was ineffective for failing to perform the sodium

rhodizonate test prior to trial. He argued that counsel’s conduct had already been established as

objectively unreasonable because both the trial court and this court had found counsel did not

exercise due diligence. Defendant further argued that he was prejudiced by trial counsel’s allegedly

deficient conduct because had the jury been informed of the sodium rhodizonate test results,

Englert’s reconstruction would have been revealed as “entirely incorrect,” and his testimony

rendered incredible. On February 23, 2018, the court docketed the petition for second-stage review.

¶ 44 The State moved to dismiss defendant’s petition, and defendant filed a response. The

postconviction court granted the State’s motion and dismissed defendant’s petition. The court

found that defendant forfeited the claim of ineffective assistance of trial counsel by not raising it

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on direct appeal and not alleging in his postconviction petition that appellate counsel was

ineffective for failing to raise the issue. The court also found that defendant could not make a

substantial showing of either prong of an ineffective assistance claim.

¶ 45 On appeal from the dismissal of his postconviction petition, defendant now argues that the

court erred because the petition made a substantial showing of ineffective assistance of trial

counsel for failure to conduct the sodium rhodizonate test before trial.

¶ 46 The purpose of a postconviction proceeding is to permit inquiry into constitutional issues

involved in defendant’s original conviction and sentence that were not, and could not have been,

previously adjudicated on direct appeal. People v. English,

. Issues raised

and decided on direct appeal are barred by res judicata, and issues that could have been raised on

direct appeal, but were not, are forfeited.

¶ 47 A petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2016))

is considered in three stages. Id. ¶ 23. The postconviction court dismissed defendant’s petition at

the second stage of proceedings. At the second stage, the State may move to dismiss the petition,

and the court must decide if the defendant’s petition makes a substantial showing of a

constitutional violation. People v. Dupree,

. The court does not make

factual findings or credibility determinations at the second stage. Id. ¶ 29. The substantial showing

of a constitutional violation “is a measure of the legal sufficiency of the petition’s well-pled

allegations of a constitutional violation, which if proven at an evidentiary hearing, would entitle

petitioner to relief.” (Emphasis omitted.) People v. Domagala,

. We review

the court’s dismissal of a postconviction petition at the second stage de novo. Dupree,

.

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¶ 48 The postconviction court here ruled that defendant had forfeited his claim of ineffective

assistance by failing to raise it on direct appeal. Defendant argues that fundamental fairness

requires review of his ineffectiveness claim because such a claim is disfavored on direct appeal

and is more properly brought in a collateral, postconviction proceeding. See English,

(a court may relax forfeiture rules where required by fundamental fairness).

¶ 49 Claims of ineffective assistance of counsel may be better suited to collateral proceedings

than direct appeal where the record on appeal does not permit a full review of the issue. See People

v Bew,

(2008). Here, though, the appellate record permitted a full review of

the ineffectiveness issue on direct appeal. Not only was trial counsel’s conduct respecting the

sodium rhodizonate test discussed thoroughly during the trial, but there was also a separate

posttrial hearing at which the conduct was again discussed at length and consideration was given

to the potential relevance and impact that the test results could have during a new trial.

Accordingly, the appellate record did not preclude defendant from raising the ineffectiveness issue

on direct appeal and therefore we find no fundamental unfairness in deeming the claim forfeited

for raising it for the first time on postconviction.

¶ 50 Defendant argues that in finding his claim forfeited, the postconviction court relied on

People v. Veach,

, which held that “defendants are required to raise ineffective

assistance of counsel claims on direct review if apparent on the record.” Id. ¶ 46. Defendant

contends that because Veach was decided after he filed his direct appeal, he should be allowed to

rely on the case law prior to Veach which provided that an ineffectiveness issue can only be

brought on collateral review. This is a mischaracterization of the law, however, as it was well-

established in Illinois before Veach that when the facts required to evaluate counsel’s conduct

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appeared in the record on appeal, the traditional rules of default applied if the defendant failed to

raise an ineffective assistance claim on direct appeal. See People v Tate,

(citing People v. Erickson,

(1994)). To the extent defendant posits that he could

not have brought the ineffectiveness claim on direct appeal because the record does not show “how

Englert would have responded to test results showing that his reconstruction was incorrect,” we

note that Englert underwent extensive cross-examination, including specific questions about

whether the pillowcase at issue had soot or bloodstains, and the effect the answer would have on

his reconstruction. Moreover, defendant’s experts testified that Englert’s reconstruction was

inaccurate, and Kish specifically testified that the pillowcase should have been subjected to the

sodium rhodizonate test. Given this record, the ineffective assistance claim should have been raised

on direct appeal.

¶ 51 We note that the forfeiture rules may also be relaxed when the forfeiture results from

ineffective assistance of appellate counsel (English,

), but defendant did not

raise such a claim in his petition and thus cannot raise it now. See People v. Jones,

(2004). 1

¶ 52 In sum, we find that defendant forfeited his claim of ineffective assistance of trial counsel

for failing to raise it on direct appeal, and the postconviction court’s decision to dismiss his petition

may be affirmed on that basis alone. Even if defendant had not forfeited the claim, however, his

petition would still not warrant advancement to the third stage of postconviction proceedings.

1 Defendant also makes the bare assertion that postconviction counsel was ineffective for failing to include a claim of ineffective assistance of appellate counsel in his postconviction petition. Due to defendant’s failure to clearly state this argument or cite any relevant authority, he has forfeited this contention. See People v. Oglesby,

. Notwithstanding, this claim fails because there is no prejudice from postconviction counsel’s alleged failure, as we explain herein.

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¶ 53 Criminal defendants have a constitutional right to effective assistance at trial. U.S. Const.,

amends. VI, XIV; Ill. Const. 1970, art. I, § 8. To establish an ineffective assistance of counsel

claim, defendant must demonstrate that counsel’s conduct was deficient, and that this deficient

conduct prejudiced him such that there was a reasonable probability the result at trial would have

been different but for the conduct. Domagala,

(citing Strickland v.

Washington,

(1984)). A “reasonable probability” is a probability sufficient to

“undermine confidence in the outcome.” People v. Enis,

(2000). Defendant

must demonstrate both prongs, and if the “claim can be disposed of on the ground that the

defendant did not suffer prejudice, a court need not decide whether counsel’s performance was

constitutionally deficient.” People v. Evans,

(1999).

¶ 54 We find that defendant’s petition does not make a substantial showing of prejudice, and

thus the postconviction court did not err in granting the State’s motion to dismiss. First, defendant

has failed to make a substantial showing that Englert’s testimony at trial was so dependent on the

lack of lead on the pillowcase that there is a reasonable probability that the results of the sodium

rhodizonate test would have changed the verdict.

¶ 55 Englert was clear that he based his conclusions on a number of factors, not just the absence

of lead on the pillowcase. These factors included the blood spatter evidence from the shirt, shorts,

eyeglasses, firearm, and carpet, in addition to the spatter on the pillows and the lack of soot and

powder burns on the pillowcase. The presence or lack of lead on the pillowcase does not

significantly impact Englert’s testimony regarding the blood spatter on the shirt as being consistent

with the shooter standing above the victim. Nor does it impact the testimony that there was high

velocity impact spatter on either side of the firearm and no powder burns on the bedding, or any

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of the pillows or pillowcases, which, according to Englert, ruled out a scenario where the firearm

discharged accidentally while lying on a surface. Similarly, the presence or absence of lead has no

impact on Englert’s opinion that the eyeglasses showed signs of high velocity impact spatter. The

jury heard Kish’s and Noedel’s criticisms of Englert’s reconstruction and the above conclusions,

including testimony from Kish that sodium rhodizonate testing should have been performed

because the pillowcase stains at issue looked like soot, and ruled in favor of the State.

¶ 56 On this record, there has been no substantial showing of prejudice, i.e., of a reasonable

probability that the sodium rhodizonate test results would have materially impacted the jury’s

weighing of the expert testimony and changed the outcome of the trial. We agree with the

postconviction court that the test result evidence would be merely cumulative to Kish’s and

Noedel’s disagreements with Englert as expressed at trial.

¶ 57 Defendant’s claim of ineffective assistance also fails because he failed to make a

substantial showing that Englert’s testimony was so central to the State’s case that there is a

reasonable probability the jury would have reached a different conclusion had Englert’s

reconstruction and testimony been discredited at trial by the admission of the sodium rhodizonate

test results. Instead, myriad additional evidence supported defendant’s guilt. Dr. McElligott

testified unequivocally that the victim died of a homicide, not suicide or accident, and that the

firearm was 6 to 24 inches from the victim’s face when it discharged. The jury would have been

justified to rely on this testimony alone to conclude that someone besides Mrs. Kustok fired the

shot that killed her.

¶ 58 Other testimony from five witnesses confirmed that defendant actively pursued

extramarital affairs and expressed unhappiness in his marriage, providing a motive for murdering

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his wife, and the sodium rhodizonate test results would have no effect on how the jury weighed

this evidence. Furthermore, the State introduced uncontroverted evidence that defendant altered

the crime scene, cleaned the victim’s body, never called the police or an ambulance, and waited

45 to 90 minutes before he drove her to the hospital. The jury could reasonably interpret this

evidence as suggestive of guilt because it reflected defendant’s intent to inhibit the authorities’

investigation.

¶ 59 In light of the significant evidence of defendant’s guilt, he has failed to make a substantial

showing of prejudice based on counsel’s alleged ineffectiveness in failing to conduct the sodium

rhodizonate test before trial. Accordingly, as defendant forfeited the ineffectiveness issue by not

raising it on direct appeal and also failed to make a substantial showing of prejudice, the

postconviction court did not err in granting the State’s motion to dismiss.

¶ 60 For the foregoing reasons, the postconviction court’s grant of the State’s motion to dismiss

is affirmed.

¶ 61 Affirmed.

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