No. 1-18-2611 Order filed August 19, 2021 Fourth 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. 12 CR 7098 ) DANIEL BROWN, ) Honorable ) Maura Slattery Boyle, Defendant-Appellant. ) Judge, presiding.

JUSTICE LAMPKIN delivered the judgment of the court. Presiding Justice Gordon and Justice Martin concurred in the judgment.

ORDER

¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is affirmed when it failed to present an arguable claim of ineffective assistance of appellate counsel.

¶2 Defendant Daniel Brown appeals from the circuit court’s summary dismissal of his pro se

petition for relief filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1

et seq. (West 2018)). On appeal, defendant contends that the court erroneously dismissed the

petition because it stated an arguable claim that he was denied the effective assistance of appellate No. 1-18-2611

counsel for failure to challenge trial counsel’s deficient performance in preparing a motion to quash

arrest and suppress evidence, and to argue the trial court’s violation of Illinois Supreme Court Rule

431(b) (eff. July 1, 2012) constituted plain error where the evidence was closely balanced.

We affirm. 1

¶3 Following a jury trial, defendant was found guilty of first-degree murder (720 ILCS

5/9-1(a)(1) (West 2012)) and sentenced to 90 years in prison. The facts were detailed in our order

on direct appeal. See People v. Brown,

. We therefore relate only the

facts relevant to the instant appeal.

¶4 Defendant’s arrest arose from the fatal shooting of Eddie Coleman on the evening of March

6, 2012. Defendant then filed a motion to quash arrest and suppress evidence alleging that he was

arrested without a warrant and probable cause.

¶5 At the hearing on the motion, Chicago police detective Donald Hill testified that defendant

was arrested without a warrant on March 21, 2012. Afterwards, he was shown in lineups, and Hill

knew that the State planned to use the results at trial.

¶6 During cross-examination, Hill testified that when he arrived at the scene of the shooting

on March 6, 2012, he learned that Natasha Coleman and Kathleen Coleman witnessed the shooting

and stated that “Nu-Nu” was the shooter.2 Dominique Coleman, who did not witness the shooting,

also knew Nu-Nu. Officers Medina and DeJesus, who were at the crime scene, searched for

Nu-Nu in a police department database and generated a photograph which was shown to

1 In adherence with the requirements of Illinois Supreme Court Rule 352(a) (eff. July 1, 2018), this appeal has been resolved without oral argument upon the entry of a separate written order. 2 For clarity, we will refer to the victim and his family members by their first names. Additionally, although defendant’s nickname appears as “Nunu” and “Nu-Nu” in the record, we will use “Nu-Nu” in accordance with our order on direct appeal.

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Dominique. 3 She identified the photograph of Nu-Nu as defendant. Hill and other officers then

created a photographic array containing defendant’s photograph. Approximately three hours after

the shooting, Natasha, and Kathleen each identified defendant in photographic arrays. Hill later

relocated to a liquor store a block from the shooting and obtained a surveillance video that showed

defendant and Eddie conversing. After learning that Eddie died, Hill’s partner issued an

investigative alert for defendant. Defendant was arrested, placed in lineups, and identified by

Natasha, Kathleen and Mablelene Coleman.

¶7 During redirect, Hill acknowledged that Natasha and Kathleen identified the shooter as

Nu-Nu and that Dominique did not witness the shooting. He did not know if the database contained

more than one individual named Nu-Nu. Prior to defendant’s arrest, Hill could not connect

physical evidence from the crime scene to defendant. Nothing prevented Hill from attempting to

obtain an arrest warrant for defendant. During recross, Hill testified that before going to a hospital

with Eddie, Mablelene told Dominique that Nu-Nu was the shooter.

¶8 Trial counsel argued there was no probable cause to arrest defendant based upon two “very

shaky” identifications and no physical evidence. The State replied that Kathleen’s and Natasha’s

identification of defendant as the shooter in separate photographic arrays supported the

investigative alert that led to defendant’s arrest. The trial court denied the motion.

¶9 During jury selection, when the trial court asked the venire if anyone did not understand

and accept that the presumption of innocence was not overcome unless the State proved the

defendant’s guilt beyond a reasonable doubt, juror L.L. stated, “I don’t understand.” The trial court

replied, “I’ll get to that in a second. Other than Ms. [L.L.], is there anyone that does not understand

3 The transcript does not include these officers’ first names.

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and accept that principle? Please raise your hand at this time *** no one has raised their hand.”

The court continued to question the venire pursuant to Supreme Court Rule 431(b).

¶ 10 During individual questioning, the trial court asked L.L. about her age, employment,

education, residence, marital status, and whether she, a family member, or close friend had been a

victim of a crime, involved in a criminal case, or a party to a lawsuit. The court asked if she knew

lawyers, judges, or police officers, whether she ever visited anyone detained or incarcerated, and

how she received the news. L.L. responded in English, generally providing one-word answers. She

responded affirmatively when the judge asked whether she would weigh the credibility of

witnesses without regard to their occupations and would listen to all the evidence and apply the

law as instructed in a fair and impartial manner.

¶ 11 Later, in chambers, the trial court stated:

“One preliminary matter. Ms. [L.L.]. While beginning questioning she raised her

hand indicating—she stated that she had trouble understanding English. The Court placed

the same questions to her as every other juror, she answered appropriately. She did not

indicate at any time struggling with anything, so the Court will not strike her for cause.”

¶ 12 Trial counsel did not ask the court to further question L.L. or to excuse her for cause.

Thereafter, a jury was selected.

¶ 13 At trial, Taheerah Abdullah, Eddie’s girlfriend, testified that she and Eddie walked from

the home of Eddie’s Aunt Mablelene to a store where Eddie spoke with men from the

neighborhood, including Nu-Nu. Abdullah identified defendant in court as Nu-Nu. Eddie and

defendant spoke in the parking lot and were “kind of hostile.” After a woman who was with

defendant spat on her, Abdullah returned to Mablelene’s house. Later, while on the porch, she

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heard a gunshot and saw Nu-Nu, whose arm was extended, chasing Eddie. There was another

gunshot and Eddie yelled, “ouch.” Abdullah ran inside because she thought Nu-Nu was “coming

after” her. She later identified defendant in a lineup.

¶ 14 Kathleen, Eddie’s aunt, testified that as she exited her parked vehicle, she saw Nu-Nu

chasing Eddie. At trial, Kathleen identified defendant, whom she knew from the neighborhood, as

Nu-Nu. Defendant, wearing a purple hoody, shot Eddie in the back. Eddie fell to the ground,

defendant jumped over him, turned, and shot him again. Kathleen yelled, and defendant looked

toward her. Defendant then shot at a light pole and left. When police officers arrived, she told them

that Nu-Nu shot Eddie. Kathleen later identified Nu-Nu in a photographic array. At trial, she

testified that defendant was the subject of that photo. On March 21, 2012, she identified defendant

in a lineup.

¶ 15 Natasha, Eddie’s cousin, testified that she saw Eddie being chased by defendant, who held

a firearm. She identified defendant, whom she knew from school, in court. Natasha heard a gunshot

and saw Eddie fall. Defendant then jumped over Eddie, turned, and shot him again. She heard

Kathleen’s voice and saw defendant fire at a light pole as he ran away. Natasha told police that

Nu-Nu shot Eddie, and subsequently identified Nu-Nu in a photographic array. She later identified

defendant in a lineup.

¶ 16 Mablelene, defendant’s aunt, testified that after hearing gunshots, she went to the front

door where her daughter Natasha was standing. There, she saw Nu-Nu, whom she identified in

court as defendant, running with a firearm in his hand, so she called 911. When Dominique arrived,

Mablelene told her that Nu-Nu shot Eddie. Dominique then spoke to police officers. During cross-

examination, Mablelene acknowledged that she did not see defendant shoot Eddie.

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¶ 17 Dominique testified that after receiving a call that Eddie had been shot, she went to her

aunt Mablelene’s home. There, Mablelene told her Nu-Nu shot Eddie. Dominique identified

defendant in court as Nu-Nu. She told officers at the scene that she was told Nu-Nu was the shooter

and could identify him and showed them his photo on Facebook.

¶ 18 Chicago police officer Kevin Fry testified that Dominique stated that Mablelene identified

the shooter as Nu-Nu and showed him a photograph of Nu-Nu. Dominique was taken to a squad

car where other officers ran a search and retrieved a photo of Nu-Nu. Dominique confirmed that

this was the person she was told was the shooter. Fry relayed defendant’s name to a detective and

identified defendant in court as the person in the photograph.

¶ 19 Chicago police detective William Meister testified that he and his partner interviewed

Kathleen and Natasha at a police station the night of the shooting. Natasha and Kathleen identified

the shooter as Nu-Nu, and Natasha gave a physical description. After officers at the crime scene

indicated that defendant had been identified as Nu-Nu, Meister created a photo array that included

a photo of defendant. Natasha and Kathleen separately viewed the array and identified the photo

of defendant as Nu-Nu.

¶ 20 Hill testified consistently with his testimony at the hearing on the motion to suppress,

including that he obtained a store surveillance video. That video showed defendant wearing a black

jacket over a purple hoody and conversing with Eddie. This footage was admitted into evidence

and published without objection.

¶ 21 The State presented additional evidence, through the testimony of Chicago police officers

and a forensic DNA expert, that defendant was arrested pursuant to an investigative alert and could

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not be excluded as contributing to DNA recovered from items at the crime scene. The jury found

defendant guilty of first-degree murder.

¶ 22 Defendant filed a motion for a new trial alleging, in pertinent part, that the trial court erred

when it denied the motion to quash arrest and suppress evidence because the police lacked probable

cause to arrest him. The court denied the motion, and following a hearing, sentenced defendant to

90 years in prison.

¶ 23 On direct appeal, defendant contended, in relevant part, that the trial court failed to conduct

an adequate voir dire of venire member L.L., who indicated she did not understand a fundamental

principle of the right to a fair trial before an impartial jury. Defendant admitted forfeiting this issue

but requested plain error review because it affected the fairness of his trial and challenged the

integrity of the judicial process. In the alternative, defendant contended he was denied effective

assistance by trial counsel’s failure to preserve this issue for appeal.

¶ 24 We determined that the trial court failed to comply with Supreme Court Rule 431(b) and

People v. Zehr,

(1984), when it did not ascertain whether L.L. understood and

agreed with the second Zehr principle and possibly the third and fourth Zehr principles, but found

no abuse of discretion in the trial court’s conclusion that the voir dire of L.L. demonstrated she did

not struggle to understand English and was competent to serve as a juror. Brown,

, ¶ ¶ 39-41. Moreover, defendant failed to meet his burden under the second prong of

plain error review when he cited no authority establishing that L.L.’s statement during voir dire

admitted a “ ‘lack of understanding of one of the essential qualifications of a juror,’ ” and

defendant presented no evidence of L.L.’s bias. Id. ¶ 41.

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¶ 25 We also determined that defendant was not denied effective assistance when trial counsel

failed to preserve this error for review, as defendant did not establish that counsel’s decision to

accept L.L. as a juror was not a matter of trial strategy. Id. ¶¶ 45-48. Further, “the evidence was

more than sufficient to prove defendant guilty beyond a reasonable doubt, and there was no

evidence that L.L. rejected the principle that the State does not overcome defendant’s presumption

of innocence unless the State proves his guilt beyond a reasonable doubt.” ¶ 48. Ultimately, we

corrected the mittimus while affirming the circuit court in all other aspects. Id. ¶¶ 85-87.

¶ 26 On August 27, 2018, defendant filed a pro se postconviction petition alleging, in relevant

part, ineffective assistance for trial counsel’s failure to challenge defendant’s arrest based upon an

investigate alert or object to a juror who did not understand “the 2nd Zehr principle.” Defendant

asserted that had trial counsel challenged defendant’s arrest pursuant to an investigative alert, the

motion to quash arrest and suppress evidence would have been granted. Defendant further alleged

ineffective assistance of appellate counsel for not raising this issue on direct appeal or arguing

“first prong” plain error for the jury selection claim. On October 18, 2018, the circuit court denied

defendant postconviction relief.

¶ 27 On appeal, defendant contends that the circuit court erred because the petition made an

arguable claim that he was denied effective assistance when appellate counsel failed to argue that

trial counsel was ineffective for not challenging defendant’s arrest on the basis of an investigative

alert or the jury selection claim under the closely-balanced prong of the plain error rule.

¶ 28 The Act provides a procedural mechanism through which a defendant may assert a

substantial denial of his constitutional rights in the proceedings which resulted in his conviction.

725 ILCS 5/122-1 et seq. (West 2018). At the first stage of proceedings under the Act,

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the defendant files a petition, which the circuit court independently reviews and, taking the

allegations as true, determines whether it is frivolous or is patently without merit. People v. Tate,

. A petition should be summarily dismissed as frivolous or patently without

merit only when it has no arguable basis in either fact or law. People v. Hodges,

(2009). A petition lacks an arguable basis in fact or law when it “is based on an indisputably

meritless legal theory or a fanciful factual allegation.”

. Fanciful factual allegations are

those which are “fantastic or delusional,” and an indisputably meritless legal theory is one that is

“completely contradicted by the record.”

. We review the summary dismissal of a

postconviction petition de novo.

.

¶ 29 When considering a claim of ineffective assistance of counsel at the first stage of

postconviction proceedings, the defendant must show both that counsel’s performance was

arguably deficient, and that he was arguably prejudiced by counsel’s deficient performance.

at

17 (citing Strickland v. Washington,

(1984)).

¶ 30 Defendant first contends that he was denied effective assistance on direct appeal when

counsel did not raise trial counsel’s failure to challenge defendant’s arrest based upon an

investigative alert specifically under the Illinois Constitution.

¶ 31 Claims of ineffective assistance of appellate counsel are judged against the same two-

pronged Strickland standard. People v. Simmons,

, ¶ 48. To succeed,

a defendant must show counsel’s failure to raise an issue on direct appeal was objectively

unreasonable, and that he was prejudiced by this decision. People v. Harris,

(2002). In other words, defendant must establish that but for counsel’s error, there is a reasonable

probability that his appeal would have been successful. People v. English,

.

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¶ 32 Generally, counsel’s decision not to raise an issue on appeal receives substantial deference.

Harris,

. It is not incompetence to refrain from raising issues which, in counsel’s

judgment, are without merit, unless counsel’s appraisal is patently wrong. People v. Simms,

(2000); see also People v. Williams,

(2004) (rather than

raise “every conceivable issue on appeal,” appellate counsel “exercise[s] professional judgment to

select from the many potential claims of error that might be asserted”). Absent a showing that the

underlying issue is meritorious, a defendant is not prejudiced by appellate counsel’s failure to raise

it on appeal. People v. Barrow,

(2001).

¶ 33 Here, defendant argues that trial counsel’s failure to rely on People v. Hyland,

, to argue that his arrest pursuant to an investigative alert was unconstitutional

constituted deficient performance. Therefore, defendant concludes he was denied effective

assistance on direct appeal when counsel failed to raise this meritorious issue.

¶ 34 “Probable cause for an arrest exists when the totality of the facts and circumstances known

to the officer is such that a reasonably prudent person would believe that the suspect is committing

or has committed a crime.” (Internal quotation marks omitted.) People v. Braswell,

. “An arrest without probable cause or a warrant based thereon violates” both

the United States and Illinois constitutions. People v. Lee,

(2005). A defendant

bears the initial burden of proof, and once he shows a prima facie case of an unconstitutional arrest,

the burden shifts to the State to show his warrantless arrest was based on probable cause. Simmons,

. However, the ultimate burden of proof remains with the defendant.

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¶ 35 The parties do not dispute that defendant’s arrest was warrantless. Therefore, the State was

required to demonstrate that the arrest was based on probable cause, and therefore legally justified.

¶ 36 An arrest without a warrant is valid only when supported by probable cause. People v.

Grant,

. Police have probable cause to arrest an individual when the facts

known to the officer at the time of the arrest are sufficient to lead a reasonably cautious person to

believe that the individual committed a crime.

Whether probable cause exists depends on the

totality of the circumstances at the time of the arrest.

An officer’s factual knowledge, based on

his or her police experience, is relevant to determining probable cause.

Probable cause is

governed by commonsense considerations, and the calculation concerns the probability of criminal

activity rather than proof beyond a reasonable doubt.

¶ 37 While an arrest may be based on information beyond the arresting officer’s personal

knowledge, the State must show that the information reflected facts sufficient to show probable

cause. See Hyland,

. “An arresting officer may rely on information

received in an official police communication, provided that the officer who issued the

communication had probable cause to arrest.” Simmons,

.

¶ 38 After reviewing the record, we conclude that the State presented sufficient evidence to

establish that the police had probable cause to arrest defendant for shooting Eddie. At the hearing

on the motion to quash arrest and suppress evidence, Hill testified that when he arrived at the crime

scene, he learned that Natasha and Kathleen witnessed the shooting and identified the shooter as

Nu-Nu. Additionally, although Dominique did not witness the shooting, she was told by Mablelene

that Nu-Nu was the shooter, knew Nu-Nu, and provided officers with a photograph of Nu-Nu. Hill

further testified that fellow officers generated a photograph which was shown to Dominique, and

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she identified the subject as Nu-Nu. Several hours later, Natasha and Kathleen identified defendant

in separate photographic arrays as the shooter. After learning of Eddie’s death, Hill’s partner issued

an investigative alert for defendant.

¶ 39 Thus, at the time of defendant’s arrest, he had been identified in photographic arrays as the

shooter by two eyewitnesses to the shooting. Although Hill did not obtain an arrest warrant, the

facts known to him when the investigative alert was issued were sufficient to establish probable

cause to arrest defendant. Grant,

.

¶ 40 Defendant, however, relies on Hyland to support his argument that appellate counsel

should have challenged trial counsel’s failure to attack defendant’s arrest on the basis of an

investigative alert in the motion to quash arrest and suppress evidence.

¶ 41 In that case, the defendant was approached by two officers based on an investigative alert

stating that he violated an order of protection. Hyland,

. The officers

performed a custodial search that recovered a firearm.

The defendant was arrested and charged

with unlawful use of a weapon by a felon and unlawful possession of a firearm by a street gang

member. Id. ¶ 3.

¶ 42 At the hearing on the defendant’s motion to quash to arrest and suppress evidence, the State

presented the testimony of the arresting officers, who approached the defendant based on the

investigative alert, but lacked personal knowledge of the facts underlying its issuance. Id. ¶¶ 5-6.

We reversed the trial court’s denial of the motion, finding that the State “presented no evidence

that the underlying facts of the investigative alert established probable cause to arrest defendant,

either from the officer who issued the investigative alert or from the individual who obtained the

protective order that defendant allegedly violated.” Id. ¶ 25.

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¶ 43 In the case at bar, unlike Hyland, the State presented the testimony of Hill, the detective

assigned to investigate the shooting, who described the steps that he, his partner, and other officers

took in order to identify defendant as the shooter. Hill’s testimony regarding what officers knew

prior to the issuance of the investigative alert is much more detailed than the testimony presented

in Hyland and reflected Hill’s personal knowledge of the case.

¶ 44 Defendant also relies on People v. Bass,

, ¶ 43, for the proposition

that an arrest based solely on an investigative alert is unlawful under the Illinois Constitution even

where the investigative alert is supported by probable cause. In People v. Bass,

, however, our supreme court recently found that the traffic stop that led to the discovery of

the investigative alert issued for the defendant was unreasonably extended and the motion to

suppress should therefore have been granted. Having affirmed this court’s decision to reverse the

defendant’s conviction and remand for a new trial, the supreme court declined to “express any

opinion on limited lockstep analysis, its application to warrants or investigatory alerts, or the

constitutionality of investigative alerts,” and vacated the “portions of the appellate [court] opinion

dealing with these issues” Id. ¶¶ 27, 29-31.

¶ 45 Here, defendant’s arrest was supported by probable cause in that two witnesses identified

him as the shooter by nickname and in photographic arrays. Thus, defendant’s warrantless arrest

did not violate the Illinois Constitution on that basis. Accordingly, defendant cannot show he was

prejudiced by trial counsel’s failure to challenge defendant’s arrest pursuant to an investigative

alert. As the issue was not meritorious, defendant cannot establish that he was arguably prejudiced

by appellate counsel’s failure to raise it on direct appeal.

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¶ 46 Defendant next contends that he was denied effective assistance on direct appeal when

appellate counsel did not challenge the trial court’s failure to comply with Supreme Court Rule

431(b) under the first prong of the plain error rule. He concludes that he was prejudiced because

the evidence at trial was “not overwhelming,” and such an argument would have been successful.

¶ 47 The plain error doctrine permits this court to consider an unpreserved error when (1) the

evidence was so closely balanced that the error alone threatened to tip the scales of justice against

the defendant, or (2) the error was 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. Piatkowski,

(2007). The first step in plain error review is to

determine whether an error occurred. See People v. Hood,

(without error,

there can be no plain error).

¶ 48 On direct appeal, as discussed, we determined the trial court failed to comply with Supreme

Court Rule 431(b) when it did not ascertain whether L.L. understood and agreed with the second

Zehr principle and possibly the third and fourth Zehr principles but found no abuse of discretion

in the trial court’s conclusion that its voir dire of L.L. demonstrated she did not struggle to

understand English and thus was competent to serve as a juror. Brown,

. Contrary to defendant’s position on appeal, however, the result of his direct appeal would

not have been different had appellate counsel argued that the evidence was closely balanced.

¶ 49 To determine whether the evidence was closely balanced, we “must evaluate the totality of

the evidence and conduct a qualitative, commonsense assessment of it within the context of the

case.” People v. Sebby,

. This requires “an assessment of the evidence on the

elements of the charged offense or offenses, along with any evidence regarding the witnesses’

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credibility.”

Our supreme court has held evidence is close when a factfinder is left to resolve a

credibility contest, which occurs when both the State and defense present credible versions of

events and neither version is corroborated or contradicted by extrinsic evidence. Id. ¶ 63; see also

People v. Naylor,

(2008) (“Given these opposing versions of events, and the

fact that no extrinsic evidence was presented to corroborate or contradict either version, the trial

court’s finding of guilty necessarily involved the court’s assessment of the credibility of the two

officers against that of defendant.”).

¶ 50 In the case at bar, the evidence was not closely balanced when Kathleen and Natasha

testified that defendant shot Eddie and Mablelene placed defendant at the scene of the shooting

holding a firearm. Additionally, Abdullah testified that defendant and Eddie engaged in a “hostile”

discussion at a store prior to the shooting, and that she saw defendant chasing Eddie with an

extended arm and heard gunshots and Eddie yell “ouch.” Moreover, a surveillance video showed

defendant and Eddie conversing that night, and defendant contributed to DNA recovered from the

crime scene. The trier of fact was not required to resolve a contest of credibility when the State

presented a credible version of events which was corroborated by a surveillance video and physical

evidence. Sebby,

. As the evidence was not closely balanced, defendant

cannot establish that he was prejudiced by appellate counsel’s decision not to raise this issue on

direct appeal. See Barrow,

.

¶ 51 As defendant has failed to establish that he was arguably denied the effective assistance of

counsel on direct appeal, the circuit court properly denied him postconviction relief. Hodges,

. We therefore affirm the judgment of the circuit court of Cook County.

¶ 52 Affirmed.

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