No. 1-19-2297 Order filed November 24, 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. 11 CR 18468 ) MIGUEL HERNANDEZ, ) Honorable ) Steven Goebel, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE REYES delivered the judgment of the court. Justices Lampkin and Rochford concurred in the judgment.

ORDER

¶1 Held: We affirm the summary dismissal of defendant’s postconviction petition over his contention that he made an arguable claim of ineffective assistance of counsel for failure to present an expert in the field of eyewitness identification where defendant failed to attach supporting evidence and his claim was forfeited.

¶2 Defendant Miguel Hernandez appeals the summary dismissal of his pro se petition for

relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). He

argues that the trial court erroneously and summarily dismissed his petition where he made an No. 1-19-2297

arguable claim of ineffective assistance of trial counsel for failure to investigate and present an

expert in the field of eyewitness identification. For the following reasons, we affirm.

¶3 Following a jury trial, defendant was found guilty of the first degree murder of Eric

Galarza, Jr. (Eric Jr.) and attempted murder of Eric Galarza (Galarza). The jury found defendant

personally discharged a firearm that caused death. He was sentenced to consecutive sentences of

60 years’ imprisonment for first degree murder and 18 years’ imprisonment for attempted murder.

We set forth the facts in defendant’s direct appeal (People v. Hernandez,

), and we recite them here to the extent necessary to our disposition.

¶4 The evidence at trial established that around 7 p.m. on October 7, 2011, Christina Ignacio

(Christina), her sister Denisse Galarza (Denisse), Denisse’s husband Galarza, and the Galarzas’

three children Eric Jr., Luis, and Jayleen, all entered a vehicle parked in front of their residence on

the 900 block of Elma Avenue in Elgin, Illinois. Christina, who was driving, attempted to make a

U-turn when shots were fired at the vehicle. One of the shots hit Eric Jr., who was brought to the

hospital and later died from a gunshot wound to the head. At the time of the shooting, Denisse

noticed defendant, her second cousin, underneath a streetlight, facing the vehicle. She did not

notice a firearm in defendant’s hand but did observe flashes of light coming from his direction.

Galarza testified he also observed defendant shooting in his direction. Christina did not see the

shooter but heard Denisse scream, “It was Yagi. It was Yagi. I saw him. I saw him.” Testimony at

trial established that defendant went by the name of “Yagi.” Galarza did not recall Denisse

identifying the shooter as Yagi at that time.

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¶5 Christina drove to a nearby gas station where police were waiting. Christina testified she

informed the officers that Denisse identified Yagi as the shooter. Her statements, however, were

not memorialized in any police report.

¶6 At the hospital, Galarza told the police that the shooter looked like defendant, but did not

fully cooperate with police as he wanted to “seek [ ] revenge on my own.” Galarza acknowledged

he was a former member of the Latin Kings gang and informed police that defendant, a current

Latin Kings member, might have shot at him in retaliation for Galarza’s participation as a

confidential police informant.

¶7 Denisse acknowledged that she initially lied to police, telling them her name was “Maria

Ignacio” as she had an outstanding warrant for a DUI at the time and wanted to remain with Eric

Jr. She later provided the police her real name. Denisse told the officers at the gas station that she

“thought” the shooter was defendant but did not conclusively identify him as Galarza told her not

to say anything. At the hospital, she described the shooter to police as a bald Latino with a medium

build.

¶8 The Galarzas’ neighbor Rolando Lopez (Rolando) testified he heard five or six gunshots

on the night in question and then noticed a man in baggy, dark clothes running across the street.

Rolando observed a black Toyota Tundra make a U-turn and drive in the same direction as the

man was running.

¶9 Cory Morgan, who lived around the corner from the Galarzas, testified that, at the time of

the shooting, she was outside with her boyfriend and heard six or seven “pops or booms.” Morgan

then observed a man walking in front of her residence. The man removed his blue shirt and was

wearing a white tank top underneath. He was 10 to 15 feet away when he looked in Morgan’s

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direction, and she saw his face. She described the man as a shorter Latino with low-cut hair and a

husky build. The next day, Morgan identified defendant in a photographic array, stating she was

“80 percent” sure he was the man she noticed walking in front of her house but needed to “see the

build and other characteristics.” On October 14, 2011, Morgan identified defendant in a physical

lineup and was “[a] hundred percent” sure that defendant was the man who she saw on October 7,

2011.

¶ 10 Carlos Lopez (Carlos), defendant’s coworker, testified defendant called him around 7:40

p.m. on October 7, 2011, and invited him to Gameworks in Schaumburg, Illinois. When Carlos

arrived around 8 p.m., defendant was there with his father, Miguel Hernandez Sr. (Miguel Sr.),

and another man, whom Carlos later identified as Luis Acevedo. Defendant asked to speak

privately with Carlos and asked him to hide a handgun for the night. Defendant stated that someone

would call Carlos from a “224 number” the following day to retrieve the weapon. Carlos observed

defendant take the firearm from the floor of a Toyota Tundra, wrap it in a navy blue shirt, and

place it inside a white grocery bag. Carlos stored the bag with the handgun in his storage shed.

Around 9:15 p.m., defendant called Carlos to ensure he had hidden the firearm.

¶ 11 The following day, Carlos received a phone call from a 224 number around 10 a.m.

Acevedo retrieved the handgun from Carlos and drove away. A few minutes later, defendant called

him to ensure the man had picked up the weapon. Defendant later admitted to Carlos that he had

shot at a man who had “snitched on them” but accidentally shot a child. Carlos acknowledged he

did not initially divulge that information to police. Carlos, however, later told police everything

after they questioned him and told him he could be charged with conspiracy.

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¶ 12 The evidence established that a black Toyota Tundra registered to Miguel Sr., without

paying the toll, drove through a toll booth near the Galarzas’ residence at 7:13 p.m. on October 7,

2011. Further, video surveillance footage from Gameworks, which was narrated by Carlos,

depicted defendant, Carlos, Acevedo and Miguel Sr. inside the facility on the evening of October 7,

2011.

¶ 13 Cell phone analyses established defendant’s phone was used less than a mile away from

the 900 block of Elma Avenue between 4:10 p.m. and 7:02 p.m. on October 7, 2011, and then

thereafter detailed movement of the phone towards Schaumburg, Illinois and eventually that the

phone was near Gameworks. The analysis of Acevedo’s phone also established that he made calls

in Elgin shortly before the shooting, and a call near Gameworks shortly after the shooting. It further

established that Acevedo’s phone was near Carlos’ residence on the morning of October 8, 2011.

Further analyses established that prior to and after the shooting, defendant, Carlos, and Acevedo

made calls to each other on October 7 and 8, 2011.

¶ 14 For the defense, Timothy Crenshaw, Morgan’s boyfriend, testified he observed an

individual walking around the corner toward them wearing a white shirt, but did not notice his

face.

¶ 15 Officer McMahon testified that Christina initially identified herself as “Justina Ignacio” to

the police at the gas station. She described the shooter as a short, bald man standing at the corner

near the house. 1 Christina did not tell McMahon that she heard Denisse yell, “It’s Yagi shooting

at us.”

1 Officer McMahon’s first name is not contained in the record.

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¶ 16 On cross-examination, McMahon testified Denisse told him her name was “Maria

Ignacio,” and it was “possible” that he confused Christina and Denisse in his report. Although his

report indicated Christina had an active warrant for her arrest, he realized when he returned to the

station that Christina did not have a warrant out for her arrest. He, however, did not correct his

report.

¶ 17 Detective Tom Wolek testified that Christina did not inform him she heard Denisse yell,

“It’s Yagi shooting.” Denisse identified herself to him as “Maria Ignacio.”

¶ 18 Defendant testified that he was a member of the Latin Kings. In the afternoon of October

7, 2011, Acevedo, who was also a member of the Latin Kings, approached him and his father while

they were cleaning Miguel Sr.’s Toyota Tundra. Defendant, Acevedo, and Miguel Sr. entered the

Toyota Tundra to go to a bar. Defendant testified Acevedo instructed him to park on a street near

Galarza’s residence. Acevedo exited the vehicle, and defendant subsequently heard gunshots.

Defendant drove away. He saw Acevedo running nearby and picked him up. Acevedo was wearing

a white, sleeveless shirt, with a blue shirt wrapped around his hand to conceal a handgun.

¶ 19 Defendant then drove to Gameworks. Acevedo ordered him to make a call, and defendant

complied because he was afraid Acevedo would shoot him. Defendant called Carlos to meet him

at Gameworks. Defendant gave Carlos the weapon wrapped in a plastic bag and stated someone

with a 224 area code would call him regarding the handgun. Carlos subsequently left. Defendant

then called his girlfriend, Juanita Ortiz, who met him at Gameworks. They left together to go to

Juanita’s house as he feared gang retaliation if he returned to his own house. Defendant did not

pay attention to the fact he left his father with Acevedo and testified he just wanted to get away

from Acevedo. Defendant acknowledged that he knew the Latin Kings wanted to retaliate against

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Galarza for being a confidential informant. He, however, denied knowing that Acevedo intended

to shoot Galarza that evening.

¶ 20 The jury found defendant guilty of the attempted murder of Galarza and first degree murder

of Eric Jr. The jury further found defendant committed the offenses while personally discharging

a firearm. The trial court sentenced defendant to consecutive sentences of 18 years for attempted

murder and 60 years for first degree murder. We affirmed on direct appeal. Hernandez,

.

¶ 21 On May 23, 2019, defendant filed a pro se postconviction petition under the Act, alleging,

in relevant part, that trial counsel was ineffective for failing or refusing to obtain an eyewitness

identification expert. Defendant asserted an expert “could have” “provide[d] information to the

jury about the scientific basis of various relevant aspects of perception and memory” to assist the

jury in assessing the reliability of the eyewitness testimony in his case. Defendant set forth a litany

of information the expert “could have” testified to or explained, including that confident witnesses,

like Morgan, were not always accurate.

¶ 22 On August 9, 2019, the circuit court summarily dismissed defendant’s petition.

¶ 23 We allowed defendant leave to file a late notice of appeal on March 11, 2020.

¶ 24 On appeal, defendant contends the circuit court erred in summarily dismissing his petition

as he made an arguable claim that trial counsel was ineffective for failing to investigate and present

an eyewitness identification expert in support of the defense theory of misidentification where the

State’s case relied heavily on eyewitness testimony.

¶ 25 The Act sets forth a three-stage process as a means for criminal defendants to challenge

their convictions based on constitutional violations. People v. Beaman,

(2008).

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Defendant’s petition for postconviction relief was summarily dismissed at the first stage, where

the trial court independently reviews the petition, taking the well-pleaded allegations as true, and

determines whether the petition is frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2)

(West 2018); People v. Robinson,

. A petition may be summarily dismissed

as “frivolous or patently without merit only if the petition has no arguable basis either in law or in

fact.” People v. Hodges,

(2009); People v. Tate,

. A claim

has no arguable basis when it is based on an indisputably meritless legal theory, such as one

completely contradicted by the record, or a fanciful factual allegation, such as those that are

fantastic or delusional. People v. Brown,

(2010).

¶ 26 To survive the first stage, a petition need only present the gist of a constitutional claim.

People v. Allen,

. Presenting a “gist” of a constitutional claim is a low

threshold, and only limited detail is necessary for the petition to proceed beyond the first stage of

postconviction review, as opposed to setting forth a claim in its entirety. Hodges,

;

People v. Williams,

(2006). We review the summary dismissal of a

postconviction petition de novo. Hodges,

. We review the trial court’s judgment

and not the reasons cited for the judgment, and we may affirm the trial court on any basis supported

by the record. People v. Munoz,

(2010).

¶ 27 Initially, we note that the Act requires that a postconviction petition be 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 purpose of this evidentiary requirement is to ensure

a defendant’s postconviction allegations are “capable of objective or independent

corroboration.” People v. Hall,

(2005). The failure to comply with this

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requirement is “fatal” and “by itself justifies the petition’s summary dismissal.” (Internal quotation

marks omitted.) People v. Collins,

(2002).

¶ 28 Defendant failed to comply with this requirement, as he did not attach any affidavit or other

evidence supporting his claim and failed to explain the unavailability of these supporting materials.

While there is no question that an expert can provide useful information to the trier of fact

regarding the reliability of eyewitness identifications (see People v. Lerma,

),

defendant’s contentions relate only to what an expert “could” have testified. Thus, his ineffective

assistance claim based on counsel’s failure to present an identification expert who allegedly would

have testified in defendant’s favor is unsupported and speculative. Accordingly, the circuit court

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

¶ 29 Additionally, the State argues defendant forfeited his claim as it could have been raised on

direct appeal. We agree. A postconviction proceeding is a collateral proceeding rather than an

appeal of the underlying judgment and allows review of constitutional issues that were not, and

could not have been, adjudicated on direct appeal. People v. Towns,

(1998).

Claims that could have been raised on direct appeal are barred. Robinson,

.

¶ 30 Defendant contends trial counsel provided ineffective assistance for failing to call an expert

in eyewitness identification in support of his misidentification theory of defense. Specifically,

defendant alleges an expert in eyewitness identification could have (1) drawn attention to common

misconceptions about eyewitness testimony; and (2) explained how Morgan’s lineup identification

of defendant deviated from best practices because it was conducted by the lead detective and

Morgan had previously seen defendant in a photo array.

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¶ 31 In People v. Navarro,

, the defendant raised this identical issue

in a motion for leave to file a successive postconviction petition under the Act. This court

concluded that the defendant could not establish cause for failing to raise his claim earlier because

the case law permitting the use of expert testimony on the issue of eyewitness identification “was

available to the defendant at the time of direct appeal in 2007, and he should, and could, have

raised the issue in that appeal.” Navarro,

.

¶ 32 Although Navarro concerned a successive petition, and therefore a different standard for

progressing under the Act, we find it instructive in the instant case where defendant raises the same

issue, which could have and should have been asserted on direct appeal. Despite defendant’s claim

to the contrary, trial counsel’s failure to call an eyewitness expert is apparent on the face of the

record. As we pointed out in Navarro, the authority permitting the use of expert eyewitness

testimony was decided in 1990 (see People v. Enis,

(1990)), and was therefore

available at the time of defendant’s trial in 2014. In fact, defendant acknowledges there was “ample

legal authority at that time [of trial] to support the admission of expert testimony on

misidentifications.” See People v. Allen,

(2007); see also People v.

Starks,

; People v. McGhee,

. Given

that defendant could have raised his claim on direct appeal, but did not, we find his claim is barred.

See Robinson,

.

¶ 33 We note that, in his petition, defendant did not claim that appellate counsel was ineffective

for failing to raise on direct appeal trial counsel’s ineffectiveness regarding the expert.

Accordingly, we must honor his forfeiture of ineffective assistance of trial counsel claim. See e.g.,

People v. English,

(in proceedings under the Act, the doctrines of res

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judicata and forfeiture are relaxed “where the forfeiture stems from the ineffective assistance of

appellate counsel”). The circuit court could properly dismiss his petition on this basis.

¶ 34 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 35 Affirmed.

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