No. 1-20-0250 Order filed October 13, 2021 Third 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 155 ) DWAYNE BURKE, ) Honorable ) Patrick K. Coughlin, Defendant-Appellant. ) Judge, presiding. )

JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice Ellis concurred in the judgment.

ORDER

¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is affirmed where defendant failed to state an arguable claim that his counsel on direct appeal provided ineffective assistance by failing to argue that trial counsel was ineffective for not presenting expert testimony regarding the reliability of eyewitness identifications.

¶2 Defendant Dwayne Burke appeals from the summary dismissal of his pro se petition for

relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). No. 1-20-0250

On appeal, he alleges the circuit court erred in summarily dismissing his postconviction petition

where he set forth an arguable claim that his counsel on direct appeal was ineffective for not

arguing trial counsel’s ineffectiveness based on trial counsel’s failure to present expert testimony

regarding the reliability of eyewitness identifications. We affirm.

¶3 Following a 2015 jury trial, defendant was found guilty of two counts of armed robbery

(720 ILCS 5/18-2(a)(2) (West 2008)) and sentenced, as a habitual criminal, to concurrent terms of

mandatory natural life imprisonment. See 730 ILCS 5/5-4.5-95(a) (West 2008). We affirmed on

direct appeal. People v. Burke,

. Because we set forth the facts on

direct appeal, we recount them here to the extent necessary to resolve the issue raised in this appeal.

¶4 At trial, Theresa Watt testified that on September 10, 2009, she was working at a gas station

in Dolton with her coworker Ruthie Love. Watt stood inside the enclosed cashier’s booth, which

contained two cash registers. The booth was located to the left of the gas station’s front entrance

and had a door on the end opposite from the front entrance. Only employees were allowed to enter

the cashier’s booth.

¶5 At about 3:42 p.m., a young man entered the gas station. Watt described the man as being

about five feet seven inches or five feet eight inches tall, wearing a cap, and carrying a backpack.

The man made eye contact with Watt and opened the door to the cashier’s booth. The man revealed

the handle of a firearm and said, “ ‘Give me your money and you won’t get hurt.’ ” Watt held up

her hands, stepped back, and opened the register. The man took the money in the register and then

approached Love’s register. Love likewise opened her register and stepped back¸ and the man

removed money from Love’s register. The man took some cigarettes from behind Watt and Love,

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placed the money and cigarettes in his backpack, and exited the gas station. The police were then

called and arrived on the scene.

¶6 On cross-examination, Watt clarified that the door to the cashier’s booth was located

between the two cash registers, which were about two feet from one another. The man had to walk

past Love’s register to enter the booth. Watt could not recall if the man was wearing glasses of any

kind, but testified he was not wearing gloves. The man spent no more than five minutes taking the

money from each register. Watt testified that the entire incident lasted no more than 10 minutes.

Afterwards, Love called the police, who arrived about 20 minutes later. Watt described the

offender to the police, but could not recall describing the offender’s facial hair or any other

distinctive characteristics.

¶7 Love testified consistently with Watt but added that the gas station was at the 1400 block

of East Sibley Boulevard, and additionally identified the offender in court as defendant. The first

register defendant opened was empty, so he took money from a “Lottery drawer” beneath the

register. Defendant then proceeded to take the money from Love’s register. On November 18,

2009, Love went to the police station and identified defendant from a lineup, a photograph of

which the State entered into evidence.

¶8 On cross-examination, defendant’s trial counsel asked whether the booth separated the cash

registers, and Love stated, “No.” Counsel then asked whether Love’s booth was next to Watt’s

booth “and then the door,” and Love stated, “It is one room. It is not a separate, divided room.”

She confirmed that defendant wore a cap and she “believe[d]” he wore sunglasses as well. She

also testified that the bag defendant held was a backpack, but she “didn’t look at it that hard.” Love

confirmed that she identified defendant from a lineup, but had never seen him before, and did not

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know a man with defendant’s name. Defense counsel asked how Love knew defendant’s name,

and she responded, “My subpoena.” She stated defendant was only inside the store for a “few”

minutes, and the encounter was “very brief.”

¶9 Dolton police detective Steven Biddle testified that on November 18, 2009, he conducted

the lineup in which Love identified defendant as the offender. On cross-examination, Biddle

confirmed that according to a report containing the physical descriptions of the people in the

lineup, defendant was 5 feet 11 inches tall.

¶ 10 Defendant called Dolton police officer Bryan Caridine, who testified that he arrived at the

scene at 3:44 p.m. and spoke with Watt and Love inside the gas station. Caridine received a

description that the offender wore a tan hat, dark sunglasses, tan shirt, and black jeans. Watt and

Love gave the same description. When Caridine arrived at the gas station, no one was “pointed

out” to him as the suspect, and Caridine did not know if anyone was arrested that day. Caridine

testified that he did not inventory any evidence at the scene.

¶ 11 In closing, defendant’s trial counsel argued that the State failed to prove that defendant was

the offender. Counsel recounted that Watt described the offender as being five feet seven inches

or five feet eight inches and wearing a cap, and Love added that the offender had sunglasses.

Counsel remarked that defendant is “clearly not 5, 7 to 5, 8, not as he sits there and not as it was

documented during the lineup.” Counsel asserted that Watt and Love had never seen the offender

before, that Love testified that the incident happened very quickly, and that there was no suspect

on scene. Additionally, counsel asserted that there was no fingerprint or DNA evidence even

though the offender was not wearing gloves during the incident, and “[n]othing was recovered that

connects [defendant] to this incident.” Counsel argued that an “extremely significant” period of

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time passed between the incident and the date on which Love identified defendant from the lineup,

and defendant did not fit the description of the offender given on the date of the incident.

¶ 12 The jury found defendant guilty of two counts of armed robbery of Watt and Love

respectively. The trial court denied defendant’s motion for new trial.

¶ 13 The court imposed concurrent mandatory natural life sentences on defendant as a habitual

criminal for both armed robbery counts.

¶ 14 On direct appeal, defendant argued the State failed to present sufficient evidence that he

was the offender or that he had a firearm, the State made improper comments in closing argument,

the Habitual Criminal Act (730 ILCS 5/5-4.5-95(a) (West 2008)) violated his constitutional rights,

and his convictions violated the one-act, one-crime doctrine. We affirmed. People v. Burke,

.

¶ 15 On November 20, 2019, defendant filed a pro se postconviction petition alleging that trial

counsel was ineffective for failing to call an “identification expert witness.” He claimed only the

testimony of one “unreliable” eyewitness, necessarily Love, connected him to the armed robbery.

Defendant claimed that an identification expert would have testified that Love’s attention could

not have been focused on the assailant’s face and apparel, the object that appeared to be a firearm,

and both cash registers within the “few quick minutes” of the incident. The expert additionally

would have testified that Love could not have known exactly what the offender looked like without

his sunglasses and hat. According to defendant, the expert also would have testified that Love

would not have remembered the offender’s face by the time she viewed the lineup, and would have

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raised Love’s “age factor in far as [sic] memory and eye sight strength or lack of strengths.”1

Defendant alleged that the State failed to present any physical or video evidence, and that his trial

counsel “submitted nothing in the way of conducting a meaningful adversarial testing of the State’s

case.”

¶ 16 Additionally, defendant asserted that his trial counsel was ineffective for failing to call

witnesses “for determination of” whose prints were recovered from the scene, request evidence

regarding the recovered prints, run the recovered prints through a database, and impeach the State’s

identifying eyewitness. He also alleged that he was detained and placed in lineups based on an

unconstitutional investigative alert. Lastly, he claimed that his counsel on direct appeal was

ineffective for failing to raise the claims in his petition, and for failing to argue the trial court

abused its discretion by not allowing defendant to impeach an eyewitness with her criminal history.

¶ 17 Defendant attached to his petition Freedom of Information Act (FOIA) requests that he

made for copies of “fingerprints and DNA reports,” witness statements, investigative alerts,

warrants, “investigative notes” and reports, and photographs of the lineup and crime scene.

Defendant also attached the FOIA responses he received and further letters he sent in reply.

¶ 18 Additionally, defendant attached an affidavit, averring that he “tried to obtain*** through

the FOIA the crime scene investigative reports of the collection of evidence from the crime scene

in particular, recovery of prints and DNA.” He also stated he requested a copy of an investigative

alert that was issued for his arrest, and any warrants for his arrest. However, defendant claimed he

did not receive the materials as to his case in Dolton.

1 The transcript of Love’s 2015 trial testimony established she was then 64 years old, making her 58 years old at the time of the 2009 robberies.

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¶ 19 On December 13, 2019, the circuit court summarily dismissed defendant’s postconviction

petition as frivolous and patently without merit. The court found in relevant part that defendant’s

trial counsel made “repeated attempts” to cast doubt on the identification of defendant as the

offender. After recounting the many ways in which counsel engaged in this trial strategy, the court

stated it was “unable to conclude that trial counsel’s performance and strategy were so unsound

and amounted to a complete failure to conduct any meaningful adversarial testing.” The court also

found that defendant failed to allege he was arguably prejudiced by the failure to call an

identification expert, observing that this court previously found that “ ‘all five of the Biggers

factors weigh in favor of the reliability of Love’s identification of defendant’ ” (Burke,

, ¶¶ 24-29). Additionally, the court found that defendant failed to support his

claim with any evidence or an affidavit from an identification expert, and also failed to explain the

absence of these materials.

¶ 20 On appeal, defendant argues that the circuit court erred in summarily dismissing his pro se

postconviction petition, where he stated an arguable ineffective assistance of counsel claim.

Namely, he asserts that his counsel on direct appeal was ineffective for failing to state an

ineffective assistance claim against trial counsel, who in turn was ineffective for failing to present

expert testimony regarding the reliability of eyewitness identifications.

¶ 21 The Act provides a three-stage method for persons under criminal sentence to “assert that

their convictions were the result of a substantial denial of their rights under the United States

Constitution or the Illinois Constitution or both.” People v. Hodges,

(2009).

Here, the circuit court summarily dismissed defendant’s postconviction petition at the first stage.

At the first stage of postconviction proceedings, “[t]he allegations of the petition, taken as true and

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liberally construed, need only present the gist of a constitutional claim.” People v. Brown,

(2010). This standard presents a “low threshold,” and “[a] petitioner need present only

a limited amount of detail and is not required to include legal argument or citation to legal

authority.” (Internal quotation marks omitted.)

¶ 22 The Act authorizes the circuit court to summarily dismiss a petition at the first stage

through a written order where “the court determines the petition is frivolous or is patently without

merit.” 725 ILCS 5/122-2.1(a)(2) (West 2018). A postconviction petition is “frivolous or patently

without merit” where it “has no arguable basis either in law or in fact.” Hodges,

-

12. A petition lacks an arguable basis in law or in fact where it “is based on an indisputably

meritless legal theory or a fanciful factual allegation.”

. “An example of an indisputably

meritless legal theory is one which is completely contradicted by the record,” and “[f]anciful

factual allegations include those which are fantastic or delusional.”

. We review de

novo the summary dismissal of a postconviction petition. People v. Tate,

.

¶ 23 As an initial matter, the Act requires that a postconviction petition be both verified by

affidavit (725 ILCS 5/122-1(b) (West 2018)) and supported by “affidavits, records, or other

evidence supporting its allegations or shall state why the same are not attached” (725 ILCS 5/122-2

(West 2018)). The failure to comply with these requirements is “fatal” and “by itself justifies the

petition’s summary dismissal.” (Internal quotation marks omitted.) People v. Collins,

(2002).

¶ 24 Defendant failed to comply with these requirements, as he submitted no affidavit or

evidence supporting the claim in his petition that he now appeals, and failed to explain the

unavailability of these supporting materials. While defendant attached an affidavit and copies of

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his FOIA requests regarding other claims in his petition, none of these materials relate to his

ineffective assistance claim premised on counsel’s failure to present an identification expert who

allegedly would have testified in defendant’s favor. Thus, his contentions regarding what the

expert testimony would have been are unsupported and entirely speculative. The circuit court was

justified in summarily dismissing defendant’s claim on this basis alone.

¶ 25 Defendant’s failure to comply with the Act’s procedural requirements notwithstanding, the

trial court also properly dismissed his ineffective assistance of trial and appellate counsel claims

as frivolous and patently without merit.

¶ 26 Defendant’s postconviction ineffective assistance of trial counsel claim is forfeited. The

claim is premised on trial counsel’s failure to present an expert witness regarding the unreliability

of eyewitness identifications. Trial counsel’s failure to present such an expert witness is evident

from the trial record. Defendant therefore could have raised the claim on direct appeal, and his

failure to do so results in its forfeiture. People v. Petrenko,

(2010) (“issues

that could have been raised on direct appeal but were not are forfeited” in a postconviction

proceeding).

¶ 27 To circumvent that waiver, defendant alleged ineffective assistance of appellate counsel

for failing to raise trial counsel’s ineffectiveness on direct appeal. See

(forfeiture rules are

relaxed with respect to postconviction claims stemming from appellate counsel's ineffectiveness).

We find defendant did not state an arguable claim of ineffective assistance of appellate counsel.

¶ 28 The sixth amendment to the United States Constitution (U.S. Const., amend. VI) guarantees

those accused of crime the right to the effective assistance of counsel. People v. Cole,

. To prevail on an ineffective assistance claim, a defendant must establish that (1)

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“counsel’s performance was objectively unreasonable under prevailing professional norms,” and

(2) “there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’ ” People v. Cathey,

(quoting

Strickland v. Washington,

(1984)).

¶ 29 To satisfy the deficiency prong, the defendant must show that counsel’s performance was

so deficient that counsel “was not functioning as the ‘counsel’ guaranteed by the sixth

amendment.” People v. Easley,

(2000). In doing so, “the defendant must

overcome the strong presumption that the challenged action or inaction might have been the

product of sound trial strategy.”

To satisfy the prejudice prong, the defendant must show “actual

prejudice, not simply speculation that defendant may have been prejudiced.” People v. Patterson,

. “A ‘reasonable probability’ is defined as a showing sufficient to undermine

confidence in the outcome, rendering the result unreliable or fundamentally unfair.”

This same

standard applies to claims asserting ineffective assistance of counsel both at trial and on direct

appeal. People v. Pitsonbarger,

(2002).

¶ 30 At the first stage of postconviction proceedings, “a petition alleging ineffective assistance

may not be summarily dismissed if (i) it is arguable that counsel’s performance fell below an

objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced.”

(Emphases and internal quotation marks omitted.) Tate,

.

¶ 31 Here, defendant alleges counsel on direct appeal was ineffective for not raising an

ineffective assistance claim that his trial counsel failed to present testimony of an expert witness

regarding the reliability of eyewitness identifications. However, where a defendant raises an

ineffective assistance claim against appellate counsel, defendant cannot be said to have incurred

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prejudice from counsel’s failure to raise an issue if that issue lacks merit. See People v. Edwards,

(2001). Accordingly, we first determine the merits of defendant’s claim

that trial counsel was ineffective.

¶ 32 Decisions regarding which witnesses to call at trial ultimately rest with trial counsel, and

as matters of trial strategy, they are “generally immune from claims of ineffective assistance of

counsel.” People v. Reid,

(1997). “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.” People

v. Hamilton,

(2005).

¶ 33 In support of his argument that trial counsel should have called an expert witness, defendant

relies heavily on People v. Lerma,

, in which our supreme court found the circuit

court abused its discretion in denying the defendant’s request to admit expert testimony regarding

the reliability of eyewitness identifications. Id. ¶¶ 25-32. As this court has noted, the issue

considered by the Lerma court—whether the trial court abused its discretion in rejecting proffered

expert testimony—is “manifestly different” from the issue before us now, i.e., whether defendant’s

counsel was ineffective for failing to present the testimony of an identification expert. People v.

Macklin,

. Accordingly, we are not persuaded by defendant’s

reliance on Lerma.

¶ 34 Moreover, prior to Lerma, it was “common practice in Illinois” to exclude expert testimony

on the reliability of eyewitness identification. Lerma,

. Pre-Lerma, the “trend

in Illinois [was] to preclude expert testimony on the reliability of eyewitness identification on the

ground that it invades the province of the jury as trier of fact.” People v. McGhee, 2012 IL App

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(1st) 093404, ¶ 54. Given that defendant’s trial occurred before Lerma was decided, there is no

arguable basis for concluding that counsel’s performance was deficient because counsel did not

present expert testimony on the reliability of eyewitness identifications. See Macklin,

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

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

¶ 35 There likewise is no arguable basis for concluding that defendant was prejudiced by

counsel’s decision. Putting aside the fact that defendant’s contentions regarding what an

identification expert would have testified are purely speculative, defendant claimed that an

identification expert would have challenged Love’s ability to focus on the details of the incident

and defendant’s face given the encounter’s “quick” duration. He claimed the expert would have

raised that Love could not know what the offender looked like without cap and sunglasses, her age

affected her eyesight and memory, and she could not have remembered his face by the time she

viewed the lineup. However, beyond defendant’s claim regarding how Love’s age may have

affected her sight and memory, defendant’s petition did not identify any challenges to his

identification that his trial counsel did not already raise.

¶ 36 Trial counsel extensively cross-examined Love, eliciting testimony that defendant wore a

cap and sunglasses at the time of the incident, that Love had not known defendant prior to the trial,

and that Love’s encounter with defendant was “very brief.” See People v. Blue,

(2001) (“Cross-examination is the principal means by which the believability of a witness and the

truth of his testimony are tested.”) (Internal quotation marks omitted.)). Then, in closing, the crux

of trial counsel’s argument was to call into question Love’s ability to accurately identify defendant,

asserting inter alia that she would not have been able to remember the offender’s identity by the

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time she viewed the lineup. We find defendant failed to set forth an arguable claim that an

identification expert would have contributed any more than trial counsel in challenging the

reliability of Love’s identification of defendant. See Patterson,

(defendant

must show actual prejudice, not simply speculation).

¶ 37 Further, as we previously found on defendant’s direct appeal, all of the factors outlined in

Neil v. Biggers,

(1972), for determining the reliability and sufficiency of a witness’s

identification weigh in favor of Love’s identification being reliable and sufficient to establish

defendant’s identity as the offender. People v. Burke,

, ¶¶ 24-29.

Namely, (1) Love had the opportunity to view defendant at close range for a few minutes and was

able to recall what defendant was wearing; (2) Love gave a significant degree of attention, as she

was able to recall specifics regarding the time defendant entered and his actions within the store;

(3) Love’s description of defendant reflected no substantial inaccuracies; (4) Love demonstrated

no uncertainty in identifying defendant during the lineup and at trial; and (5) only a little over two

months passed between the time of the armed robbery and the lineup identification. In light of the

strength of Love’s identification of defendant as the offender, defendant cannot claim that he was

arguably prejudiced by the lack of expert testimony regarding the reliability of eyewitness

identifications.

¶ 38 In sum, we find the circuit court properly summarily dismissed defendant’s postconviction

petition, as defendant failed to state an arguable claim that trial counsel was ineffective for failing

to call an identification expert at trial. By extension, defendant also failed to set forth an arguable

claim that his counsel on direct appeal was ineffective for not raising trial counsel’s ineffectiveness

on this issue, as such a challenge would have lacked merit. See Edwards,

.

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¶ 39 For the foregoing reasons, we affirm the judgment of the circuit court.

¶ 40 Affirmed.

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