No. 1-19-1775 Order filed January 24, 2022 First 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. 13 CR 9829 ) DAVID MYRICK, ) Honorable ) Arthur F. Hill, Defendant-Appellant. ) Judge, presiding.

JUSTICE HYMAN delivered the judgment of the court. Justices Pucinski and Walker concurred in the judgment.

ORDER

¶1 Held: We affirm the circuit court’s summary dismissal of defendant’s postconviction petition over his contention that counsel was ineffective for failing to adequately corroborate his alibi defense at trial.

¶2 David Myrick appeals the summary dismissal of his petition for relief under the

PostConviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)). He argues that the trial court

erroneously summarily dismissed his petition. He contends that he stated the gist of a claim for

ineffective assistance of trial counsel in investigating and adequately corroborating his alibi. We

affirm. Myrick has not demonstrated that counsel’s failure to adequately corroborate his alibi with No. 1-19-1775

his bank statements to have arguably prejudiced him, and there is no reasonable probability that

the outcome would have been different had his counsel introduced the bank statements.

¶3 Background

¶4 Following a jury trial, Myrick was convicted of attempted first degree murder of Joseph

Kemp and sentenced to 46 years’ imprisonment. We affirmed on direct appeal. People v. Myrick,

(unpublished order under Illinois Supreme Court Rule 23). We set

out those facts necessary to our disposition.

¶5 Private counsel represented Myrick at trial. Kemp testified that in the early morning on

October 2, 2012, he went to Allen Johnson’s house to purchase loose cigarettes. He saw Myrick,

Tony Russell, and “Sinai” on the front porch when he arrived. Kemp knew all three men and

identified Myrick in court. Two days before the shooting Kemp saw Myrick driving an Infiniti. He

gave Myrick a “head nod” to say, “what’s up.”

¶6 Kemp spoke with the men on the porch for more than a half-hour and bought two loose

cigarettes from Russell. The men were loading bags into Myrick’s white industrial van and said

they were delivering phone books out-of-state.

¶7 Kemp went to a residence across the street, known as a “drug spot,” to see his cousin.

Myrick and the other two men got into the van and drove away. As Kemp spoke with someone in

the living room, the front door opened, and Myrick stood in the doorway. Myrick, pointing a black

gun at Kemp, accused Kemp of stealing his “s***.” Kemp laughed and denied taking anything

belonging to Myrick. Then, Myrick fired the gun at Kemp, hitting him. Kemp fell to the ground;

Myrick walked toward him and continued shooting, hitting him 11 times. He spent seven weeks

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in the hospital, had 19 surgeries, and “died in the hospital three times,” so “they had to bring [him]

back to life.”

¶8 When the police arrived, Kemp told them that “David” shot him, but he did not know

Myrick’s last name. He also told them where he thought Myrick used to live. On November 15,

2012, Kemp spoke with Detective Edward Louis and again said to him that “David,” whom he had

known since elementary school and was in his grade, shot him. Kemp continued to look for a

photograph of Myrick because he knew Myrick was the shooter but did not know his last name.

Kemp described the shooter as being around 30 years old, about 5’8, and weighing 225 pounds,

with a dark complexion and short haircut. He said the shooter had a “lazy eye” “like his eye was

roaming.”

¶9 In January 2013, Kemp saw a photograph of Myrick on Facebook and recognized him as

the shooter. Kemp identified Myrick as the shooter in a physical lineup four months later. He also

identified various photographs of the residence where he was shot and the porch he stood on with

Myrick, Russell, and Sinai. Kemp acknowledged he had five convictions for manufacture and

delivery of a controlled substance.

¶ 10 On cross-examination, Kemp acknowledged that Myrick’s eyes at trial were not “roving

or crossed.” Detective Louis brought him “books” from his elementary school. Still, he did not see

a photograph of himself or Myrick. In November 2012 when Kemp spoke with Louis, he answered

questions but could not recall precisely what was asked of him because he was on medication.

Kemp acknowledged that he was informed that dying three times would affect his memory. Yet,

he clarified that he did not forget the shooter’s face and reiterated that Myrick shot him.

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¶ 11 Chicago Fire Department paramedic Wesley Metcalf testified he treated Kemp at the scene

and transported him to the hospital. Kemp was conscious, aware of his surroundings, and answered

questions appropriately.

¶ 12 An evidence technician photographed and recovered seven fired bullet casings from the

residence. Three casings were outside, and four were inside. Ballistics testing revealed the same

gun fired all seven casings.

¶ 13 Detective Louis testified that he spoke with Kemp in November 2012, for 10 minutes.

Bedridden, Kemp had just been released from the hospital. He could speak but was in much pain.

Kemp told him that the shooter’s eye “drifted” and explained that he knew the shooter from

elementary school. Kemp also stated that the shooter went to Morrill Elementary School and Gage

Park High School and gave Myrick’s address. Louis attempted to find “David.” In January 2013,

Louis learned Kemp saw a photograph of the shooter. Louis learned Myrick’s name and birthdate

and obtained a photograph of him based on information received. Later, Louis put out an

investigative alert for Myrick. Louis identified Myrick in court. He learned police had arrested

Myrick on April 22, 2013, and Kemp identified Myrick in a lineup on April 23.

¶ 14 On cross-examination, Louis testified he did not go to Columbus, Ohio, to investigate the

shooting because that location did not appear in the investigation.

¶ 15 Chicago police officer Michael Knight testified that on April 22, 2013, he ran the

registration on and issued a parking ticket for a “white box truck” similar to a U-Haul. After

running the registration, Knight learned the car’s owner had an investigative alert placed on him.

Based on that information, he later arrested and processed Myrick, who was 30 years old, 5’10,

weighed 220 pounds, and had short hair and a dark complexion.

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¶ 16 Myrick testified that he grew up on the 6100 block of South Maplewood Avenue. In 2012,

he owned a small business and was employed as a subcontractor delivering phonebooks “all over

the United States.” That September, he had a job delivering phonebooks in Columbus, Ohio, in his

white van, although he lived in Chicago. He traveled to Ohio with Anthony Coles. He estimated

Columbus was about a five-and-a-half-hour drive from Chicago.

¶ 17 While working in Columbus, Myrick stayed at Value Place Hilliard, a stay he paid for with

his Chase debit card. He identified (i) his hotel bill, which showed he stayed from September 12,

2012, through October 10, 2012; (ii) a receipt with his signature showing he paid with his Chase

Visa card; (iii) an occupancy agreement with his signature; and (iv) a laundry card agreement with

his signature. Myrick agreed that his signatures on the laundry agreement and Visa receipt did not

match his signature on the “registration.” He explained that he was in Columbus on October 2,

2012, but left on October 3, 2012, to deliver some equipment in Hammond, Indiana. Because he

was “in a rush for a job” in Hammond on October 3, 2012, he “signed differently” by signing his

first name only.

¶ 18 Myrick denied knowing or working with Russell and Sinai. He had never owned a gun.

Myrick acknowledged that he knew Kemp but denied shooting him. He further acknowledged that

he and Kemp attended the same elementary school but denied attending the same high school.

Myrick also denied owning an Infiniti.

¶ 19 On cross-examination, Myrick testified in 2012, that he was 29 years old, 5’10, weighed

215 pounds, and had short hair and a dark complexion. He acknowledged he had been in a dance

group with Kemp’s brother in high school and owned a white van. Myrick knew Johnson, who

lived around the corner from his Chicago home. Johnson had worked on Myrick’s van in 2012.

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Myrick knew Coles from his neighborhood but could not spell his name. He had not talked to

Coles since about a month after their job in Columbus. He acknowledged Coles stayed with him

in Ohio but that Coles’ name and signature did not appear on the hotel documents. Myrick further

admitted that the hotel documents showed “daily bills,” but there was no video of him physically

present at the hotel.

¶ 20 Each day, while working in Columbus, Myrick and Coles left the hotel to deliver phone

books. He could not recall which specific areas he delivered books on various days, but he

delivered where the contracts specified. Myrick acknowledged that the hotel had video equipment.

The hotel room was like a studio apartment, and he bought groceries every few days. But, he did

not have receipts or documents for the groceries “other than his bank history.” Myrick got gas for

his truck “[e]very day or every other day” in different areas of Columbus and used GPS to get

around. He did not have receipts for gas but had “all of the transactions on [his] Chase debit card

history account.”

¶ 21 In rebuttal, Allen Johnson testified that, in 2012, he lived in the basement in the building

in which Russell lived on the second floor. Johnson was a mechanic and knew Myrick because he

fixed Myrick’s white van some six months before the shooting. On the day of the shooting, Myrick

and Sinai knocked on Johnson’s door. Russell came downstairs. Johnson spoke with Myrick for

about two minutes before going back to his apartment; Myrick said they were going to Minnesota

to deliver phone books. After returning to the basement, Johnson heard gunshots. When he walked

upstairs, police were there. Johnson did not see the shooting but was “positive” that he saw Myrick

with Russell and Sinai that day.

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¶ 22 On cross-examination, Johnson said that, after the shooting, Russell never returned to the

building where they lived. He heard Russell was wanted for a different shooting.

¶ 23 The jury found Myrick guilty of two counts of attempted first degree murder and that he

had personally discharged the gun during the commission of the offense. It also found him guilty

of aggravated battery with a firearm.

¶ 24 With the assistance of a public defender, Myrick filed a motion for new trial, alleging, in

part, ineffective assistance of trial counsel for failure to subpoena: (i) hotel staff to verify he was

staying at the hotel at the time of the shooting; (ii) a warehouse supervisor to verify Myrick worked

on October 2, 2012; (iii) video documentation to corroborate he was in Ohio; or (iv) additional

documentation or verification of Myrick’s alibi. The public defender acknowledged Myrick

submitted work invoices to trial counsel, but the invoices were not dated October 1, 2, or 3, 2012.

¶ 25 At the hearing on the motion, trial counsel testified he was hired to represent Myrick in

June 2013. He received documents from Value Place Hilliard, where Myrick alleged he was

staying at the time of the shooting. Counsel had “a lot of contact with the hotel” over the phone,

and “hotel people” and “corporate” in Kansas, who responded to his subpoena for records. When

he asked about videos, he was informed the hotel kept videos for 30 days, or possibly 24 hours.

Myrick was arrested six months after the shooting.

¶ 26 Counsel also had invoices obtained from Myrick’s girlfriend. The invoices did not list

Myrick’s name or social security number, but contained Myrick’s company’s name and his home

address, and were dated September 21 and 24, 2012. Based on the invoices, counsel attempted to

obtain a work order showing Myrick delivered phonebooks in Columbus but was unsuccessful.

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Additionally, counsel was given no information regarding Anthony Coles. He did not subpoena

hotel staff to testify.

¶ 27 The trial court denied Myrick’s motion, finding counsel did not provide ineffective

assistance. The judge merged the counts into one count of attempted first degree murder and

sentenced Myrick to 46 years’ imprisonment, which included a 25-year firearm enhancement. We

affirmed on direct appeal. Myrick,

(unpublished order under Illinois

Supreme Court Rule 23). On December 21, 2020, Myrick filed a petition for leave to appeal this

decision which the Illinois Supreme Court denied on March 24, 2021.

¶ 28 On January 15, 2019, Myrick filed a pro se postconviction petition under the Act, alleging

ineffectiveness for trial counsel’s failing to subpoena witnesses and investigate and corroborate

his alibi. He claimed that the hotel bill showed he made payments October 3 - 10. Further, he

claimed his work records reflected he had a contract to deliver equipment on October 3, and his

transaction history showed that he got gas on October 3, using his Visa debit card. Myrick alleged

counsel should have subpoenaed hotel staff and further corroborated his alibi defense.

¶ 29 Myrick alleged counsel failed to properly investigate his debit card transactions, which

were “brought up in motion for trial counsel’s file.” Further, Myrick had provided counsel with

the names of warehouse field supervisors whose signatures appeared on the tax invoices because

“the company” reported they did not retain work records after three years. He asserted counsel

should have contacted those individuals or subpoenaed documents to corroborate his trial

testimony. Myrick acknowledged that counsel introduced hotel bills and a receipt from the hotel.

¶ 30 In support of his petition, Myrick attached bank statements from Chase Bank, showing

transactions from September and October 2012. Relevant here, the Chase bank statements showed

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a debit card transaction in Columbus on October 2, 2012, and three debit card transactions in

Hammond, Indiana, on that same day, all by a debit card assigned to Myrick. Additionally, Myrick

attached the hotel invoice from Value Place Hilliard, the articles of incorporation for QC

Management Corporation showing Myrick was the registered agent, tax documents for QC

Management Corporation, tax invoice sheets, and route recap sheets.

¶ 31 On February 28, 2019, the circuit court entered a written order dismissing Myrick’s

petition. The circuit court found Myrick failed to state the gist of a constitutional claim because he

failed to show prejudice resulting from counsel’s failure to investigate his bank statements.

Specifically, the bank records showed a purchase in Ohio and another purchase in Hammond,

Indiana, on October 2. The court noted that Myrick’s petition did not mention he was in Hammond,

a 50-minute drive from Chicago—information “more damaging to [Myrick’s] alibi defense.” Thus,

the court concluded “[t]he choice not to put [Myrick] in the vicinity of the Chicagoland area on

October 2, 2012, tends to benefit [Myrick].”

¶ 32 On February 8, 2019, Myrick filed a petition for relief from judgment under section 2-

1401 of the Code of Civil Procedure. The circuit court dismissed his petition on June 20, 2019.

The appeal from that dismissal is currently pending in case number 1-20-057).

¶ 33 Analysis

¶ 34 On appeal, Myrick contends that the trial court erroneously dismissed his petition because

he stated the gist of a claim of ineffective assistance of trial counsel for failure to investigate and

corroborate his alibi defense.

¶ 35 The Act sets forth a three-stage process for criminal defendants to challenge their

convictions based on constitutional violations. People v. Beaman,

(2008).

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Myrick’s petition for postconviction relief was summarily dismissed at the first stage. At the first

stage, a defendant’s petition survives summary dismissal 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.” Hodges, 234 Ill. 2d at 17; Tate,

. Defendant

has the burden to satisfy both prongs. People v. Coleman,

(1998). Where

we can dispose of an ineffective assistance claim on the absence of prejudice, we need not address

whether counsel’s performance was objectively reasonable. People v. Lacy,

(2011).

¶ 36 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 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). We review the summary dismissal of a postconviction petition de novo. Hodges,

.

¶ 37 On appeal, Myrick does not claim counsel was ineffective for failing to call alibi witnesses.

Instead, Myrick argues counsel was arguably deficient for failing to discover and present his bank

records which showed transactions made in Hammond and Columbus on the days before and the

night of the shooting. He asserts prejudice because the case turned on credibility since no physical

evidence tied him to the shooting, and the documents would have supported his testimony and

undermined Kemps’ unreliable identification.

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¶ 38 Counsel has a professional duty to conduct “reasonable investigations or to make a

reasonable decision that makes particular investigations unnecessary.” People v. Domagala,

(quoting Strickland, 466 U.S. at 691). This duty arises from “counsel’s basic

function ‘to make the adversarial testing process work in the particular case.’ ” Id. (quoting

Strickland, 466 U.S. at 690). This duty encompasses the obligation to independently investigate

possible defenses. Id. (citing People v. Kokoraleis,

(1994)) (finding

duty to investigate possible defenses is “subset” of defense counsel’s obligations)). When a

defendant claims counsel failed to investigate, we judge that claim “against a standard of

reasonableness given all of the circumstances, ‘applying a heavy measure of deference to counsel’s

judgments.’ ” Kokoraleis,

(quoting Strickland, 466 U.S. at 691). Failure to

investigate constitutes ineffective assistance of counsel where the record demonstrates counsel had

reason to know, from an objective standpoint, the availability of a possible defense. Domagala,

.

¶ 39 As an initial matter, the State argues Myrick forfeited his ineffectiveness claim by failing

to raise it on direct appeal. The State also argues that Myrick waived this claim by failing to include

in his postconviction petition that appellate counsel was ineffective for failing to raise the claim

on direct appeal. We disagree. “Issues raised and decided on direct appeal are barred by res

judicata, and issues that could have been raised but were not are forfeited.” People v. Lenoir,

. But, the Chase bank documentation attached to Myrick’s

postconviction petition was outside the record and therefore could not have formed the basis of an

ineffective assistance claim on direct appeal. See People v. Brown,

, ¶ 42

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(where facts relating to postconviction claim do not appear in original appellate record, res judicata

and waiver do not operate as bar to that claim).

¶ 40 Similarly, the State’s argument that counsel’s decision not to present Myrick’s bank

statements was strategic, and thus virtually unchallengeable, is unavailing. Arguments regarding

counsel’s trial strategy relate to second stage proceedings, where counsel represents both parties,

“and where the petitioner’s burden is to make a substantial showing of a constitutional

violation.” Tate,

.

¶ 41 Turning to the merits, Myrick argues that, while counsel supported his alibi defense by

presenting evidence of the hotel invoice, counsel was ineffective for failing to investigate further

to support using his bank statements. We are unpersuaded. We find Myrick failed to demonstrate

he was arguably prejudiced by counsel’s failure to adequately corroborate his alibi with his bank

statements because no reasonable probability exists that the outcome would have been different

had they been introduced. Lacy,

(noting that, if we can dispose of

defendant’s ineffective assistance of counsel claim because he or she suffered no prejudice, we

need not address whether counsel’s performance was objectively reasonable). While Myrick

denied being in Chicago at the time of the shooting, the trial evidence overwhelmingly

demonstrated guilt. The evidence showed Myrick at Johnson’s house in Chicago with Russell,

Sinai, and Kemp in the early morning hours on October 2.

¶ 42 At trial, Kemp and Myrick admitted they had known each other since elementary school.

Johnson and Myrick admitted they knew each other because Johnson, a mechanic, had worked on

Myrick’s car. Kemp testified that he spoke with Russell, Sinai, and Myrick for over a half-hour on

Johnson’s porch that morning before Kemp went to a house across the street. Johnson testified

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similarly—Myrick was at his house that morning, and Myrick, Russell, and Sinai were on his

porch. Kemp and Johnson testified that Myrick, Russell, and Sinai had discussed delivering phone

books. Kemp saw Myrick and the other men load phone books into Myrick’s white van.

¶ 43 Once at the house across the street, Kemp saw Myrick in the front doorway, where Myrick

accused Kemp of stealing from him before firing multiple shots in Kemp’s direction. Kemp was

shot 11 times. Kemp identified Myrick as the shooter. He had known Myrick since childhood.

Johnson placed Myrick across the street from the scene of the shooting. He had known Myrick

from working on his car. According to the paramedic that treated him, Kemp was lucid after the

shooting, knew where he was, and answered questions appropriately.

¶ 44 By contrast, Myrick testified that he was working in Ohio and supported his testimony with

the hotel invoice. But as the trial court pointed out, Myrick’s bank statements show that he

purportedly made purchases in Ohio and Hammond on the day of the shooting. Because the bank

statements do not show the time he made the purchases, they would not have established Myrick’s

presence in Ohio. Further, counsel had already introduced the hotel invoice showing Myrick stayed

at the hotel from September 12, 2012, through October 10, 2012. In addition, the jury heard

testimony of witnesses who knew Myrick and identified him as the shooter or nearby at the time

of the shooting.

¶ 45 We reject Myrick’s claim that Kemp’s identification of him was unreliable. Kemp testified

that hospital staff informed him his memory could be affected by his surgeries; nevertheless, Kemp

was lucid after the shooting and had known Myrick since elementary school. Moreover, Kemp’s

description of the shooter—5’8, 225 pounds, short hair, and a dark complexion—supports

Myrick’s description of himself at trial and the description by the officer who arrested and

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processed Myrick. Kemp also knew where Myrick lived, confirmed by Myrick’s testimony.

Further, Johnson’s testimony supported Kemp’s that Myrick was at Johnson’s home rather than in

Ohio. Thus, ample corroborating evidence supports Kemp’s identification of Myrick and

undermines Myrick’s alibi.

¶ 46 In light of the evidence against him, Myrick fails to show that he was arguably prejudiced

by counsel’s failure to corroborate his alibi defense with his bank statements. See People v. Veach,

(failure to satisfy either Strickland prong precludes finding of ineffective

assistance of counsel).

¶ 47 Affirmed.

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