SECOND DIVISION May 16, 2023

No. 1-21-1588

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 JUDICIAL DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) ) Appeal from the Respondent-Appellee, ) Circuit Court of ) Cook County. v. ) ) No. 10 CR 5302 DWAYNE BAKER, ) ) Honorable Petitioner-Appellant. ) Ursula Walowski, ) Judge Presiding. )

PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court. Justices Howse and Ellis concurred in the judgment.

ORDER

¶1 Held: The circuit court erred in dismissing three of the petitioner’s ineffective assistance of trial and appellate counsel claims. The petitioner made a substantial showing that trial counsel was ineffective for failing to: (1) file a motion to suppress; (2) subpoena police and medical records that would have supported that motion; and (3) investigate, interview and present alibi witness testimony. Correspondingly, appellate counsel was ineffective for failing to raise these three issues on appeal. The circuit court properly dismissed the petitioner’s remaining claims of ineffective assistance of trial and appellate counsels and prosecutorial misconduct. No. 1-21-1588

¶2 After a jury trial in the circuit court of Cook county, the petitioner, Dwayne Baker, was

convicted of attempted first degree murder and aggravated battery with a firearm and sentenced to

40 years’ imprisonment. The petitioner now appeals from the second-stage dismissal of his petition

filed pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)).

He contends that his petition should have been advanced to the third stage of postconviction

proceedings where he made a substantial showing of: (1) ineffective assistance of trial counsel; (2)

ineffective assistance of appellate counsel; and (3) prosecutorial misconduct. For the following

reasons, we affirm in part and reverse and remand in part.

¶3 I. BACKGROUND

¶4 The record before us reveals the following relevant facts and procedural history. In March

2010, the petitioner was charged with two counts of attempted first degree murder (720 ILCS 5/8-

4(a), 720 ILCS 5/9-1(a)(1) (West 2010)) and one count of aggravated battery with a firearm (720

ILCS 5/12-4.2(a)(1) (West 2010)) for shooting the victim, Robert Richardson. The petitioner

proceeded with a jury trial at which the following evidence was adduced.

¶5 The victim, Robert, testified that he lived on the west side of Chicago and enjoyed fixing

cars. Robert used to date the petitioner’s mother and because of that relationship he had known the

petitioner for over 20 years and had spoken to him often. He called the petitioner “Smokey.”

¶6 According to Robert, on February 17, 2010, he received a telephone call from the petitioner

asking for help getting into his car because he had locked the keys inside. Robert agreed to help,

and once there, he gave the petitioner a clothes hanger to use on the car door. Robert held a

flashlight and pointed it at the locked door, until the petitioner was able to get into his car and

retrieve his keys. While the petitioner was inside his car, Robert observed him reaching under the

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car’s dashboard.

¶7 Robert testified that on the next morning, February 18, 2010, he went to his garage to work

on his son’s truck. Although Robert admitted to using heroin daily, and cocaine twice a week, he

claimed that on that morning he did not use any drugs.

¶8 While at the garage, Robert received a telephone call from the petitioner who asked him

where he was and then told him that he would be coming by. About 30 to 40 minutes later, at

around 11 a.m. the petitioner arrived at the garage. Robert’s son, Marco, was also present.

¶9 Robert was standing next to his son’s truck, working underneath the hood, when he heard

the petitioner ask “[W]here my shit at [?]” Robert turned around, but before he could respond, the

petitioner pulled out a 9-millimeter gun from his belt and shot him in the pelvis. The impact

knocked Robert off the truck and onto the floor. The petitioner walked over to where Robert was

lying on his back, and standing at his feet, extended his arm and shot him in the chest.

¶ 10 Robert averred that although he was conscious when the police and paramedics arrived, he

was in too much pain to answer any questions. He also denied speaking to hospital personnel prior

to surgery. Robert first spoke to the police two days later and identified the petitioner as the

shooter. He also identified the petitioner from a photo array.

¶ 11 On cross-examination, Robert acknowledged that he was present in court pursuant to a

subpoena and warrant, and that he had previously not come to court twice. He also admitted that

in 2012, two years after the shooting, he told two State’s Attorneys that the person who shot him

was wearing a mask. On redirect, however, Robert explained that he had lied because he was afraid

for his life and did not know “how to get protection.”

¶ 12 Robert’s son, Marco Richardson, who appeared at trial in an Illinois Department of

Corrections (IDOC) tracksuit, next testified that he was serving a four-year sentence for possession

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of a controlled substance and that he had numerous prior felony drug convictions, but that the State

had not offered him anything in exchange for his testimony at the petitioner’s trial.

¶ 13 Marco testified that he has known the petitioner for 20 years and that he calls him “Smoke.”

On the day of the shooting, Marco ran into the petitioner, who asked him about Robert’s

whereabouts. When Marco told the petitioner that he did not know where his father was, the

petitioner informed him that Robert had stolen his car radio and his money and that if they were

not returned, he was going to kill Robert.

¶ 14 Marco stated that after looking for Robert himself, he eventually went to Robert’s garage.

He was sitting in the front passenger seat of his truck, which was parked inside the garage, facing

forward, while Robert was working underneath the hood, when he saw the petitioner arrive in his

car from the back alley. The petitioner, who was wearing jeans and a white t-shirt got out of his

car, approached the passenger side of Marco’s truck, and asked Robert about the radio. According

to Marco, the petitioner then pulled out a gun and shot Robert, who fell to the floor. The petitioner

shot Robert again, this time in the chest. Marco testified that he saw the petitioner turn, get into

his car and drive off before he called 911. Marco could not recall how many shots were fired but

believed it was three or four. When asked how he was able to observe what was happening from

inside his truck when the hood was raised, Marco stated that there was a “crack in the hood”

through which he could see.

¶ 15 Marco admitted that when the police initially interviewed him at the scene, he told them

that he could not identify the shooter because he was wearing a black hood and mask. Marco

acknowledged that he initially lied to the police because he planned to handle the situation himself

and take revenge on the petitioner. An hour later, however, when he spoke to the police at the

hospital, Marco told them that the petitioner had shot his father and identified the petitioner from

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a photo array. Marco explained that he changed his mind because he had been “doing good” since

his release from prison and did not want anymore “trouble.”

¶ 16 On cross-examination, Marco admitted that he did not tell the police about the threat the

petitioner had made against his father earlier in the day because he believed it to be untrue. He

explained that his father was known and well-respected in the neighborhood and that he did not

believe that the petitioner would follow through on his promise.

¶ 17 Marco also admitted to telling the first officer at the scene, Chicago Police Officer Lewis

Montes, that he could not provide a description of the shooter because the shooter was unknown

to him. He denied, however, making this same statement to the 911 operator.

¶ 18 On cross-examination, Marco could not recall whether he told Officer Montes that the

shooter was wearing all black clothing. He also admitted that he never told Officer Montes that he

observed the shooting through a crack in his hood. While Marco initially denied that he told Officer

Montes that he observed the shooter through his passenger side mirror, because that was

impossible since “[the petitioner] was looking backwards,” he subsequently claimed that he could

“see him coming in the garage right through the mirror.” Marco further admitted that contrary to

his testimony at trial, he could not recall whether he told Officer Montes that he did not see where

the shooter went after he shot Robert because he was attending to his father.

¶ 19 Chicago Police Detective Roger Lara next testified that together with his partner Detective

Eric Reyes, he was assigned to investigate Robert’s shooting. After initially speaking to Marco at

the garage, the two detectives proceeded to Mount Sinai Hospital where Robert was being treated.

After speaking with Marco at the hospital, the detectives learned the identity of the shooter and

compiled a photo array with the petitioner’s photograph. Marco was shown that photo array and

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“immediately” identified the petitioner as the shooter.

¶ 20 Detective Lara acknowledged that the detectives were unable to speak to Robert on

February 18, 2010, because he “was listed in critical condition” and “was being treated by medical

staff at the hospital.” The detectives were similarly unable to speak to Robert on February 19,

2010, because he was intubated and sedated. They finally interviewed him on February 20, 2010,

whereupon Robert recounted what had happened and identified the petitioner as the man who shot

him.

¶ 21 Detective Lara next testified that on March 2, 2010, pursuant to an “investigative alert,”

the petitioner was taken into custody. Detective Lara spoke to the petitioner at the police station.

After reading the petitioner his Miranda rights, Detective Lara asked the petitioner if he knew

Robert. The petitioner told the detective that he knew Robert for 20 years and that he had sold him

drugs off and on in the past. Detective Lara asked the petitioner if he had seen Robert lately, and

the petitioner acknowledged that he had asked Robert for help in getting into his car because he

had inadvertently locked his keys inside. The petitioner further stated that Robert agreed to help

him and brought pry tools. However, the petitioner did not allow Robert to use the pry tools

because he was worried that they would damage his car. Instead, he used a wire hanger, while

Robert held up a flashlight so that he could see. The petitioner told the detective that he was able

to get into his car and that when he did, he “put some drugs underneath the dash and he closed the

vehicle back up.” Robert then asked him if “he was going to leave the face plate of the radio in the

car.” The petitioner responded “yes,” and they both left the area.

¶ 22 The petitioner told the detective that when he returned several hours later, he noticed that

his radio and drugs were missing and “immediately assumed” that Robert had broken into his car.

He explained that Robert had seen him place the drugs in the car, and “there were pry marks in the

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exact location where Robert was going to attempt to enter.” When the petitioner found Robert the

next morning, he confronted him, but Robert denied having the drugs and money and told the

petitioner to “get away from him.”

¶ 23 On cross-examination, Detective Lara stated that he could not recall whether he asked the

petitioner to sign a Miranda waiver prior to their conversation at the police station. In addition, the

detective admitted that after their conversation, he did not ask the petitioner to memorialize his

statement in writing or to review the detective’s notes. Finally, detective Lara admitted that during

their conversation, the petitioner denied shooting Robert and stated that he had nothing to do with

the shooting.

¶ 24 Chicago Police Officer Lawrence Odomos next testified that in 2010 he was assigned to

the Fugitive Apprehension Unit and oversaw the “investigative alert” issued for the petitioner. As

part of his investigation, Officer Odomos left his contact information with the petitioner’s family

and friends. On March 2, 2010, he received a telephone call from the petitioner, and the two of

them agreed to meet at a gas station in Chicago. Officer Odomos testified that when the petitioner

arrived at the gas station, he placed him under arrest.

¶ 25 On cross-examination, Officer Odomos confirmed that the petitioner was the one who

contacted him and agreed to meet him at the gas station. He further admitted that the petitioner did

not attempt to run away when he tried to place him under arrest, and that he was cooperative “at

all times.”

¶ 26 The parties next entered into several stipulations including, that: (1) two 40-caliber shell

casings fired from the same gun were recovered from the scene of the crime; (2) Robert had a

felony conviction for possession of a controlled substance; and (3) Marco had several felony

convictions for possession of a controlled substance with intent to deliver. The parties further

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stipulated to the lengthy and detailed medical testimony of Dr. Ryan Sullivan, the surgeon who

treated Robert after the shooting. This stipulation described the medical procedures that were

performed on Robert when he arrived at the hospital. Relevant to this appeal, it established that

Robert was shot twice: once in the thigh and once in the chest below the right nipple, with an exit

wound on the lower back.

¶ 27 After the State rested, the petitioner called Detective Lara’s partner, Chicago Police

Detective Reyes. Detective Reyes acknowledged that he spoke to Marco at the garage immediately

after the shooting. He admitted that during that conversation Marco told him that he was in his

truck with the radio on when the shooter arrived and that he did not hear the shooter say anything

before firing at Robert. Instead, Marco told the detective: “The guy didn’t say anything. He just

started to shoot.” Marco also told the detective that he did not see where the shooter fled because

he was checking on his father.

¶ 28 After the petitioner rested, the parties proceeded with closing arguments. The State asserted

that two eyewitnesses had identified the petitioner as the shooter and testified consistently to the

details of the crime. The State argued that while Robert could not immediately tell anyone who

shot him because he was in an incredible amount of pain, two days after the shooting, when he

was able to speak, he identified the petitioner as the shooter and picked his photograph from a

photo array. The State similarly contended that, while Marco originally told the police that the

shooter was wearing a mask, he did so because he lived in a world of “mistrust and violence”

where people took the law into their own hands. Ultimately, the State argued, Marco came to his

senses and decided to let the police do their job.

¶ 29 In response, defense counsel argued that neither Marco nor Robert were believable

witnesses. With respect to Marco, defense counsel pointed out that regardless of what kind of

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world you lived in there were “certain principles” that everyone followed, one of which was that

if your father gets shot, you do not lie to 911 and the police, and you do not make up the description

of the shooter and say that he was wearing a mask when he was not. With respect to Robert, defense

counsel argued that he was a drug addict who had contact with “all sorts of unsavory characters,”

and that he “showed up” for court only after a warrant was issued for his arrest.

¶ 30 Defense counsel next pointed out that in contrast to Marco and Robert, the petitioner’s

actions in contacting Officer Odomos, agreeing to meet with him at the gas station, and

subsequently making a statement to the police, were evidence of an “innocent person” who

“believe[d] in the system.” Counsel further argued that, apart from Marco’s and Robert’s

inconsistent testimonies, there was no evidence whatsoever linking the petitioner to the crime.

¶ 31 In rebuttal, the State argued that the only evidence the jury needed was the testimony of

the two eyewitnesses, and that if they believed Robert and Marco, they should find the petitioner

guilty. The State further argued that if the jury had any doubt about the inconsistencies in Robert’s

and Marco’s testimonies, they should look to the petitioner’s near confession as proof of his guilt.

As the State asserted:

“Once the [petitioner] is arrested, he speaks to police. And that is how you know for a

fact that Rob[ert] and Marco *** are telling the truth because just about every single thing

the [petitioner] tells the police is exactly what Rob[ert] and Marco told the police and what

they told you.

***

The [petitioner] tells the police I hid drugs under the dashboard. That’s what Rob[ert]

said. *** [T]hen the [petitioner] gives information to the police that only the [petitioner]

would know[,] which is that he went back to his car and the drugs[,] *** were missing.

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So, the [petitioner] believes that Rob[ert] stole his stuff, and he tells the police that. I

believe Rob[ert] *** stole my stuff, so I went looking for him. Those are his words. That

is what [the petitioner] told the police. That’s what we call motive, ladies, and gentlemen.

***

The other extremely telling piece of information that proves the [petitioner] is guilty is

that according to his own words he puts himself at the scene of the shooting the day of

the shooting with Rob[ert] ***. The [petitioner] tells police, I went looking for him. I

found Rob[ert] at 14th and Tripp. I said to him, I want my stuff back. And [Robert] said, I

don’t know what you’re talking about. Get away from me. He puts himself there. The

[petitioner] essentially confessed to this crime ***.”

¶ 32 Moreover, relevant to this appeal, in rebuttal the State made three additional comments to

which defense counsel objected, but the circuit court permitted to stand. First, the State reiterated

that Robert was unable “to be interviewed or spoken to by anyone,” for two days after the shooting

because he was “practically dying” from a chest wound, had been operated on twice, and was

“unconscious” for two days “with a tube down his throat.” Second, the State argued that Robert

had changed his “version of events” because he had been “threatened on the street,” but “finally”

found the courage to come to court and tell the truth. Third, the State argued that there was no

physical evidence linking the petitioner to the crime because the petitioner “controlled the crime

scene” and took the gun with him.

¶ 33 After closing arguments, the jury retired to deliberate. During their deliberations, defense

counsel asked to note several things for the record. First, counsel objected to the State’s argument

that Robert said he was “threatened on the street.” The court responded that Robert testified that

he was afraid for his life and that the “logical inference” was that he was threatened, although “not

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necessarily” by the petitioner. Defense counsel then objected to the State’s contention that Robert

could not speak for two days after the shooting. According to defense counsel, the parties had

previously “worked out” a stipulation indicating that Robert had spoken during that time, and

consequently, it was improper for the State to imply that he could not speak for “two days straight.”

The court asked whether that stipulation was part of the record. When defense counsel indicated

that it was not, the court advised counsel not to talk about a stipulation that was not part of the

record. Defense counsel responded that the State was aware that Robert could speak, yet elicited

testimony that he could not, which was “possibly” prosecutorial misconduct. The court replied that

it could only rule on objections based upon the evidence that it heard, not the evidence that defense

counsel wished the court had heard.

¶ 34 After deliberations, the jury found the petitioner guilty of attempted first degree murder

and aggravated battery with a firearm.

¶ 35 The petitioner then filed a twenty-seven paragraph posttrial motion. In addition, defense

counsel informed the court that the petitioner wished to file a motion alleging her ineffectiveness.

The court told the petitioner to talk to his defense counsel and that he could file his motion at a

later date.

¶ 36 Relevant to this appeal, at the subsequent hearing on the petitioner’s motion for a new trial,

defense counsel argued that the State committed prosecutorial misconduct when it argued in

closing: (1) that Robert was unconscious two days after the shooting; and (2) that he was

subsequently threatened. With respect to Robert’s ability to speak at the hospital, counsel

maintained that the State had argued facts that it knew to be false when it stated that Robert could

not communicate with anyone for two days after the shooting. Once again, counsel pointed out

that the parties had entered into a stipulation that if Robert “failed to mention that he used heroin

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every day,” they would stipulate that Robert told an anesthesiologist that he used heroin, which

indicated that he could speak at the hospital. Counsel did not enter the stipulation into evidence

because Robert admitted his drug use, but believed that “[i]n retrospect” she should have put it in.

Counsel pointed out that this was an issue that the petitioner could later argue regarding her

representation. The court held that it could only attempt to correct issues that occurred at trial, “not

something that somebody thought about beforehand.” Defense counsel responded that “obviously”

she was not alleging her own ineffectiveness, but that she wanted “the next court” to be aware of

the stipulation. The court, however, reiterated that there was no stipulation in the record.

¶ 37 Defense counsel also argued that it was improper for the State to tell the jury that Robert

was threatened. The court disagreed, concluding that such a statement was a reasonable inference

based upon Robert’s testimony that he was afraid for his life and did not know where he was going

to get protection.

¶ 38 After the circuit court denied the petitioner’s motion for a new trial, the parties proceeded

with sentencing. The circuit court merged the aggravated battery with a firearm conviction into the

attempted murder conviction and sentenced the petitioner to 40 years’ imprisonment (15 years on

the attempted murder plus the mandatory 25-year firearm enhancement for his personal discharge

of the firearm during the commission of the offense).

¶ 39 The petitioner appealed his conviction and sentence. On direct appeal, he asserted that he

was denied his right to a fair trial when in closing the State argued facts that it knew to be false,

i.e., that Robert could not communicated immediately after the shooting. The petitioner further

contended that pursuant to People v. Krankel,

(1984) his case should be remanded

for an additional inquiry into his posttrial claim of ineffective assistance of trial counsel because

the circuit court failed to adequately inquire into the stipulation that defense counsel admittedly

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failed to enter. In addition, the petitioner argued that his mittimus should be corrected to reflect the

exact number of days he spent in presentence custody. On appeal, we corrected the petitioner’s

mittimus but affirmed his conviction and sentence in all other respects. People v. Baker,

.

¶ 40 We held that to the extent there was any indication that Robert could speak during the two

days after the shooting, “it merely indicated that [Robert] was able to speak to hospital personnel

in order to facilitate his treatment, it did not indicate that he spoke to police but was unable to

identify [the petitioner] as the shooter, and does not contradict the State’s argument that [Robert]

identified [the petitioner] to the police as soon as [he] could, i.e., when he was no longer intubated

and could speak.”

. In addition, with respect to the petitioner’s Krankel argument, we held

that defense counsel never admitted that her failure to admit the alleged stipulation into evidence

denied the petitioner effective representation, and that the petitioner never expressed displeasure

with counsel’s actions during the trial.

.

¶ 41 On July 30, 2016, the petitioner filed the instant postconviction petition. After the petition

was advanced to the second stage, postconviction counsel filed an amended petition on September

20, 2020, alleging trial counsel’s ineffectiveness for the following reasons: (1) failure to file a

motion to suppress the petitioner’s inculpatory statements to the police; (2) failure to subpoena

police and medical records, which confirmed that the petitioner suffered from several seizures

while in custody; (3) failure to subpoena Oak Park Police records, which confirmed the petitioner’s

post-shooting possession of the radio faceplate, whose alleged theft by Robert motivated the

petitioner’s shooting; (4) failure to investigate, interview, or present the testimony of alibi witness

Belinda Watson-Perry; (5) failure to submit the negotiated stipulation of Mt. Sinai Hospital

anesthetist Harmony Szymanski and to call her as a witness; (6) agreeing to a confusing and largely

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irrelevant medical stipulation by Dr. Sullivan and failure to call Dr. Sullivan as a witness to clarify

the parts of his stipulated testimony that contained significant, but overlooked, statements

impeaching Marco and Robert; (7) failure to perfect the impeachment of Marco’s testimony with

police reports and to introduce his prior inconsistent statements as substantive evidence; (8) failure

to call Officer Montes, whose testimony would have contradicted the testimonies of Marco,

Robert, and Detective Lara; and (9) failure to challenge the petitioner’s firearm enhancement under

Apprendi v. New Jersey,

(2000).

¶ 42 The petitioner also alleged that his appellate counsel was ineffective for failing to raise the

aforementioned ineffective assistance of trial counsel claims on direct appeal and for failing to

challenge the sufficiency of the evidence to convict him.

¶ 43 On February 3, 2021, the petitioner filed a supplemental postconviction petition

additionally alleging that he was denied his right to a fair trial where the State committed

prosecutorial misconduct by arguing facts that were not in evidence, the objection to which was

overruled by the circuit court.

¶ 44 In support of his claims, the petitioner attached numerous documents, including, inter alia:

police reports, medical records and affidavits by himself, Belinda Watson-Perry, and his trial

counsel, Abigail Clough.

¶ 45 In his affidavit, the petitioner averred that in the early morning hours of 12:30 or 1 a.m. on

February 18, 2010, he was using a coat hanger and trying to open his car door with it because he

had locked himself out when Robert approached him and offered to help. The petitioner told Robert

that he did not need help because he had already managed to get the car open. The petitioner took

the key out of the ignition and reached under the dashboard to switch off the cut-off switch. Robert

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then left and the petitioner did not see him again until the trial.

¶ 46 The petitioner averred that on February 18, 2010, his car did not have a radio in the

dashboard because it had been removed for repair. At the time the petitioner was trying to open

the car to retrieve his keys, the radio was in the trunk of the car. According to the petitioner, no

one stole the radio, and he never accused anyone of stealing it.

¶ 47 The petitioner further attested that later that morning, at about 8:30 a.m., he called Belinda

and asked her out to brunch. She agreed and picked him up in her car near the Moo and Oink

grocery store at about 9:15 a.m. The two of them then went to the Golden Corral restaurant and

remained there between about 10 a.m. and 2 p.m. Afterwards, they went to the Sportsman Inn

where they spent the night together.

¶ 48 The petitioner further attested that a few days later, his mother informed him that the police

had been at her house and were looking for him. The petitioner’s mother telephoned him again a

few weeks later and told him that Detective Odomos wanted to speak with him. She gave the

petitioner the detective’s phone number. On March 1, 2010, the petitioner called Detective

Odomos and told him that he would be happy to speak with him, and the two agreed to meet the

following day.

¶ 49 In his affidavit, the petitioner next attested that he has long suffered from a seizure disorder,

and that he takes medication for it but that the medication does not always help. On March 1, 2010,

sometime after he spoke to Detective Odomos on the telephone, the petitioner was traveling

through Oak Park in his car when he suffered a seizure, which caused him to crash into several

parked cars. After he was arrested by Oak Park Police and charged with traffic offenses, he was

taken to Loretto Hospital where he was treated for the seizure. 1 After the Oak Park police officers

1 Those hospital records are attached to his petition and confirm that the petitioner suffered a seizure.

15 No. 1-21-1588

spoke to Detective Odomos, the petitioner was released on an I-bond.

¶ 50 The next morning, on March 2, 2010, Belinda drove the petitioner to meet Detective

Odomos. The petitioner’s father was with them. When Detective Odomos arrived at the gas station,

he told the petitioner that he was not under arrest but that he wanted to ask the petitioner some

questions. The petitioner’s father and the petitioner then accompanied Detective Odomos to the

police station in the detective’s car. When they arrived at the station, Detective Odomos asked the

petitioner’s father to wait downstairs while he took the petitioner to an upstairs room. The

petitioner stated that he was alone in the room for about an hour and that while waiting there he

had another seizure. The petitioner averred that when Detective Odomos returned, he told him that

he was not feeling well and that he “would need to do this another day.” Detective Odomos

informed the petitioner that he would have to wait for other detectives to arrive and then locked

the petitioner in the room again. While the petitioner waited, he continued to have mild seizures.

¶ 51 The petitioner attested that when the other detectives finally arrived, he felt weak and sick

and had difficulty focusing on what they were saying. After he was read his Miranda rights and

signed a paper agreeing to speak with the police, the detectives introduced themselves and

someone from the State’s Attorney’s Office. The petitioner asked the detectives “Didn’t he say I

don’t have to answer questions without my attorney being present?” When the detectives indicated

that that was correct, the petitioner told them he had nothing to say without his attorney, and the

detectives left.

¶ 52 According to the petitioner, after a while, Detective Lara returned and said he wanted to

ask the petitioner some basic questions for which he did not need an attorney. The petitioner told

Detective Lara that he did not want to speak with him and needed medical treatment because he

kept having seizures and could “barely stay alert.” Detective Lara responded that the petitioner

16 No. 1-21-1588

would get medical treatment “as soon as [he] cooperated.” He then locked the petitioner in the

room once more.

¶ 53 The petitioner stated that Detective Lara subsequently informed him that he was going to

be kept in the police station overnight for a lineup. The petitioner was permitted to give his personal

belongings to his father and was then placed in a cell. While in lockup, the petitioner had another

seizure and “was apparently taken to the hospital because, when [he] became fully conscious, [he]

was being transported back from the hospital” to the lockup. 2

¶ 54 In his affidavit, the petitioner further attested that prior to trial he informed his defense

counsel that he had been suffering from seizures while in police custody and that he had asked the

detectives for an attorney while being questioned. The petitioner also averred that he repeatedly

asked his defense counsel to file a motion to suppress his alleged statement to the police, but that

counsel refused because, according to her, the statement was “harmless.”

¶ 55 In addition, the petitioner averred that prior to trial, he informed his defense counsel that

Belinda could testify that he was having brunch with her at the Golden Corral restaurant when

Robert was shot, but that counsel told him that Belinda’s testimony was not important because

they had no receipts from the restaurant or the hotel they visited after brunch. The petitioner

suggested to his defense counsel that she send an investigator to the Golden Corral restaurant and

the Sportsman Inn because he believed that both places had video camera systems that would have

recorded them, but defense counsel refused.

¶ 56 The petitioner also averred that he wanted to testify at trial, but that defense counsel advised

him not to because she did not prepare him, and he would “mess up her case since she had

2 These medical records are also attached to the petition and confirm that the petitioner was treated at the hospital after he lost consciousness following a seizure.

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discredited the State’s witnesses and that was all the jury had to go on.”

¶ 57 In her affidavit, Belinda averred that after receiving a call from “Smokey” at about 8:30

a.m. on February 18, 2010, she picked him up from the 4800 block of Madison Street by the Moo

and Oink grocery store. From there, they went to the Golden Corral restaurant in Bolingbrook.

They arrived at the restaurant at about 10 a.m. and did not leave until about 2 p.m. Belinda stated

that from there they went to the Sportsman Inn on Cicero Avenue and 37th Street, where they

spent the night together. The next morning, at about 8 a.m. she dropped “Smokey” off at the corner

of 13th Street and Tripp Avenue.

¶ 58 In her affidavit, the petitioner’s trial counsel, Cook County Assistant Public Defender

(APD) Abigail Clough, attested that during discovery in the petitioner’s case, she received various

medical records pertaining to Robert’s treatment after the shooting. Included in these records was

a document purporting to be notes from an interview by Mount Sinai anesthetist Harmony

Szymanski. Because the notes contained what appeared to be certain statements by Robert, which

APD Clough believed would be useful in impeaching him, she contacted Szymanski and discussed

the notes with her. Szymanski confirmed the notes were from her interview with Robert.

¶ 59 APD Clough further attested that she subsequently contacted the State’s Attorneys

prosecuting the petitioner’s case and informed them of what she had discovered. She then

suggested that they contact Szymanski if they had any questions and provided them with

Szymanski’s contact information. APD Clough attested that she was later informed by the State’s

Attorneys that they had no objection to a stipulation regarding Szymanski’s testimony. APD

Clough prepared a written stipulation, which she showed to the State’s Attorneys, and they

verbally agreed to it but did not sign it.3 The stipulation was therefore never entered into the

3 The actual stipulation is not part of the record on appeal, because, as APD Clough attested in her affidavit, without a court order and pursuant to the Health Insurance Portability and Accountability Act (HIPPA) she was not permitted

18 No. 1-21-1588

evidence.

¶ 60 On April 29, 2021, the State filed a motion to dismiss asserting that the postconviction

petition had failed to make a substantial showing of ineffective assistance of trial and appellate

counsels and prosecutorial misconduct.

¶ 61 On November 8, 2021, the circuit court entered a written order granting the State’s motion.

The court found that the petitioner’s claims regarding trial counsel’s ineffectiveness could have

been, but were not, addressed on direct appeal and were therefore forfeited. The court further found

that the petitioner’s claims regarding prosecutorial misconduct were already raised and rejected on

direct appeal and were therefore barred by res judicata. For “the sake of argument,” the court then

addressed each one of the petitioner’s contentions and found that none had merit because the

petitioner had failed to make a substantial showing that he was prejudiced by any purportedly

deficient performance by either trial or appellate counsels. The circuit court further found that all

the statements made by the prosecutor in closing argument were proper and that the petitioner was

not substantially prejudiced by them. The petitioner now appeals.

¶ 62 II. ANALYSIS

¶ 63 On appeal, the petitioner contends that dismissal of his petition was improper because he

made a substantial showing of: (1) ineffective assistance of trial counsel; (2) ineffective assistance

of appellate counsel; and (3) prosecutorial misconduct. For the following reasons, we find that the

petitioner has only made a substantial showing of ineffective assistance of trial and appellate

counsels on three grounds.

¶ 64 At the outset, we note the familiar principles regarding postconviction proceedings. The

Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016)) provides a means by

to discuss Robert’s medical records and treatment.

19 No. 1-21-1588

which a criminal defendant may challenge his conviction on the basis of a “substantial deprivation

of federal or state constitutional rights.” People v. Tenner,

(1997); People v.

Cotto,

; People v. Tate, 2012 IL 11214, ¶ 8; People v. Hodges,

(2009); People v. Peeples,

(2002). A postconviction proceeding is not an

appeal from the judgment of conviction but is a collateral attack on the trial court proceedings.

Tate, 2012 IL 11214, ¶ 8; see also People v. Kokoraleis,

(1994) (noting that a

postconviction action “is not a substitute, or an addendum to, direct appeal.”) Accordingly, issues

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

raised, but were not, are forfeited. Tate, 2012 IL 11214, ¶ 8; People v. English,

.

¶ 65 The Act provides a three-stage process for postconviction relief. Cotto,

; see also People v. Johnson,

. At the first stage of the proceedings, the

circuit court must independently review the petition and determine whether the allegations therein,

taken as true, demonstrate a constitutional violation or whether they are frivolous or patently

without merit. Cotto,

; 725 ILCS 5/122–2.1(a)(2) (West 2016); Tate,

. If the circuit court affirmatively determines that the petition is neither frivolous

nor patently without merit or if it takes no action on the petition within 90 days after the petition

is filed and docketed, the petition must be advanced to the second stage. Cotto,

, ¶

26.

¶ 66 At the second stage of postconviction proceedings, such as here, the circuit court must

determine whether the petition and any accompanying documentation make a substantial showing

of a violation of constitutional rights. 725 ILCS 5/122-6 (West 2016); Tate, 2012 IL 11214, ¶ 10;

People v. Pendleton,

(2006); see also People v. Edwards,

, 246

20 No. 1-21-1588

(2001). In doing so, the court must not engage in fact-finding or credibility determinations but

must take as true all well-pleaded facts that are not positively rebutted by the original trial record.

People v. Domagala, 2013 IL 11368, ¶ 35; People v. Sanders,

; see also

People v. Towns,

(1998) (“In determining whether to grant an evidentiary

hearing, all well-pleaded facts in the petition and in any accompanying affidavits are taken as

true.”); see also People v. Plummer,

(2003) (“The Illinois Supreme

Court *** [has] recognized that factual disputes raised by the pleadings cannot be resolved by a

motion to dismiss at either the first stage *** or at the second stage *** [of postconviction

proceedings], rather, [they] can only be resolved by an evidentiary hearing”); see also People v.

Coleman,

(1998) (“[O]ur past holdings have foreclosed the circuit court

from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be

taken as true at this point in the proceeding.”); see also People v. Dupree,

(“The substantial showing of a constitutional violation that must be made at the second stage is ‘a

measure of the legal sufficiency of the petition’s well-pled allegations of a constitutional violation,

which if proven at an evidentiary hearing, would entitle petitioner to relief.’ (Internal citations

omitted.)”).

¶ 67 To determine whether averments are positively rebutted by the record, the inquiry is

whether it is clear from the trial record that no fact finder could ever accept the truth of the

averments. See People v. Robinson,

; People v. Simms,

. Contradictions between the petitioner’s averments and the trial evidence are not

enough, because recognizing the existence of a conflict with the trial evidence is not the same as

finding that the averments are positively rebutted. See Simms,

, ¶ 35

21 No. 1-21-1588

(citing Robinson,

).

¶ 68 Accordingly, where no substantial showing of a constitutional violation is made, the

petition is dismissed. Tate, 2012 IL 11214, ¶ 10. If, however, a substantial showing of a

constitutional violation is set forth, the petition must be advanced to the third stage for the circuit

court to conduct an evidentiary hearing. Tate, 2012 IL 11214, ¶ 10. Our review of the circuit court’s

dismissal of a postconviction petition at the second stage is de novo. Tate, 2012 IL 11214, ¶ 10;

Pendleton,

.

¶ 69 A. Ineffective Assistance of Trial Counsel

¶ 70 On appeal, just as in his petition, the petitioner makes eight separate claims of ineffective

assistance of trial counsel. He contends that counsel: (1) failed to file a motion to suppress his

inculpatory statements to the police; (2) failed to subpoena medical and police records, which

established that he suffered several seizures while in police custody; (3) failed to subpoena Oak

Park Police records, which confirmed his post-shooting possession of the radio faceplate, whose

alleged theft by Robert motivated the shooting; (4) failed to investigate, interview, or present

alibi witness testimony from Belinda; (5) failed to submit the negotiated stipulation of nurse

Szymanski regarding Robert’s ability to speak while at the hospital; (6) agreed to the confusing

and irrelevant medical stipulation of Dr. Sullivan regarding Robert’s treatment, and failed to call

Dr. Sullivan as a witness to clarify the parts of his stipulated testimony that could have

impeached Marco and Robert; (7) failed to perfect Marco’s impeachment with police records or

the testimony of Officer Montes and to request a jury instruction regarding prior inconsistent

statements; and (8) failed to challenge the petitioner’s firearm sentencing enhancement pursuant

to Apprendi,

. In addition, the petitioner contends that the cumulative effect of trial

counsel’s deficient performance prejudiced the outcome of his trial. We address each of the

22 No. 1-21-1588

petitioner’s contentions in turn.

¶ 71 It is axiomatic that every criminal defendant has a constitutional right to effective

representation of counsel. See U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims

of ineffective assistance of counsel are governed by the standard set forth in Strickland v.

Washington,

, (1984); see also People v. Lacy,

(2011); see

also People v. Colon,

(2007) (citing People v. Albanese,

(1984)

(adopting Strickland )). Under that two-prong test, a petitioner must establish both: (1) that his

counsel’s conduct fell below an objective standard of reasonableness under prevailing professional

norms; and (2) that he was prejudiced by counsel’s conduct, i.e., that but for counsel’s deficient

performance, there is a reasonable probability that the result of his proceeding would have been

different. See Lacy,

; see also People v. Ward,

(2007) (citing Strickland,

); see also Domagala,

. Failure

to establish either prong of the Strickland test precludes a finding of ineffective assistance of

counsel. See People v. Henderson,

; see also People v. Patterson,

(2005).

¶ 72 Under the first Strickland prong, the petitioner must overcome the strong presumption

that the challenged action or inaction might have been the product of sound trial strategy. Lacy,

. Under the second Strickland prong, “a reasonable probability that the

result would have been different is a probability sufficient to undermine confidence in the

outcome--or put another way, that counsel’s deficient performance rendered the result of [the

proceedings] unreliable or fundamentally unfair.” People v. Evans,

(2004);

23 No. 1-21-1588

see also Plummer,

(citing Strickland,

).

¶ 73 Where, as here, we are tasked with reviewing the second-stage dismissal of a petition

alleging ineffective assistance of trial counsel, we determine whether the petition has made a

substantial showing under the two-prong Strickland ineffectiveness test. People v. Alberts,

-78 (2008).

¶ 74 1. Failure to File a Motion to Suppress

¶ 75 On appeal, the petitioner first asserts that defense counsel was ineffective because she

failed to file a motion to suppress his statements to the police. Specifically, the petitioner argues

that his documented medical condition (i.e., his continued seizures) and his repeated requests for

counsel during his custodial interrogation rendered any alleged waiver of his Miranda rights,

during that interrogation, involuntary. He therefore contends that counsel’s failure to file and argue

a motion to suppress was objectively unreasonable and prejudiced the outcome of his trial.

¶ 76 The State, on the other hand, contends that counsel’s decision not to file a motion to

suppress was strategic because the petitioner’s statements were exculpatory, and counsel used

them as evidence of the petitioner’s cooperation with the police. The State therefore argues that

the introduction of the petitioner’s statements at trial in no way prejudiced the verdict. For the

following reasons, we disagree with the State.

¶ 77 While the decision to file a motion to suppress is generally a matter of trial strategy and

not a basis for an ineffective assistance of counsel claim, the failure to file a motion to suppress

statements may constitute ineffective representation if “there is some indication that the statements

were truly involuntary.” People v. Brickhouse,

, ¶ 40. To show that a

decision to forego filing a motion to suppress amounted to ineffective assistance, the petitioner

must demonstrate that the failure prejudiced him. People v. Woodard,

, 312

24 No. 1-21-1588

(2006). To establish prejudice, the petitioner must show that: (1) the motion to suppress was

meritorious; and (2) there is a reasonable probability that the verdict would have been different

absent the excludable evidence. Henderson,

. In other words, if the motion

would not have been futile, defense counsel’s failure to file it establishes her incompetence.

¶ 78 In the present case, taking as we must, the unrebutted allegations in the petitioner’s

pleadings, as true, we find that the petitioner has made a substantial showing that his statements to

the police were made involuntarily, and that therefore trial counsel’s decision not to file a motion

to suppress was unreasonable and prejudiced the outcome of his trial.

¶ 79 The fifth amendment of the United States Constitution (U.S. Const., amend. V) and article

I, section 10, of the Illinois Constitution (Ill. Const. 1970, art. I § 10) guarantee that “[n]o person

*** shall be compelled in any criminal case to be a witness against himself.” In Miranda v.

Arizona,

(1966), the United States Supreme court extended the fifth

amendment privilege against self-incrimination to custodial interrogations and required that an

accused be warned that he has the right to remain silent, he has a right to an attorney, and that any

statement given may be used against him in the court of law. See also People v. Winsett,

.

¶ 80 It is axiomatic that under Miranda, a custodial statement is inadmissible at trial, unless the

State demonstrates, by a preponderance of the evidence, that the statement was preceded by the

accused’s: (1) voluntary, knowing, and intelligent wavier of his right not to be compelled to testify

against, or incriminate, himself; and (2) his waiver of the right to have an attorney present during

the interrogation. Miranda,

; see also People v. Buschauer,

; People v. Soto,

; People v. Cook,

No. 1-21-1588

108, 120 (2004).

¶ 81 Where, as alleged here, after being Mirandized, the accused invokes his right to counsel,

the police must stop the interrogation until an attorney can be present and may not reapproach him

for further interrogation until counsel is made available to him. Edwards v. Arizona,

(1981); Miranda,

; Winsett,

. This bright-line rule was

first established by the United States Supreme Court decision in Edwards,

. In

that case, the defendant requested counsel during an interrogation and the police ceased their

questioning but returned the next day telling the defendant that they wanted to talk to him.

. After the officers read the defendant his Miranda warnings again, the defendant agreed to

speak with them, but it was not clear what prompted him to do so.

The Supreme Court held that

the defendant’s subsequent statement was obtained in violation of his fifth amendment right to

counsel in that once the defendant asserted his right to counsel all questioning must cease until

counsel is obtained.

.

¶ 82 The underlying rationale of this rule is well established. By invoking the right to an have

an attorney present during questioning the accused “has indicated that he considers himself unable

to deal with the pressures of custodial interrogation without legal assistance.” People v. Hicks,

(1989); see also People v. Baker,

(1993); People v.

Schuning,

(2010); People v. Fierstine,

. “ ‘In the absence of such a bright-line prohibition, the authorities through “badger[ing]” or

“overreaching”—explicit or subtle, deliberate, or unintentional—might otherwise wear down the

accused and persuade him to incriminate himself notwithstanding his earlier request for counsel’s

assistance.’ ” Baker,

(quoting Smith v. Illinois,

(1984)); see

also Schuning,

; Fierstine,

. As such, where

26 No. 1-21-1588

an accused has invoked his right to an attorney during police questioning, rather than solely his

right to remain silent, and assuming there is no break in custody, “his later waiver of the right to

counsel upon police-initiated reinterrogation will not be given legal cognizance.” Baker,

; see also Schuning,

; Fierstine,

. Instead, any statements made afterwards will be presumed to be involuntary and will be

inadmissible as substantive evidence at trial. Winsett,

; Schuning,

; Fierstine,

.

¶ 83 However, for this rigid bright-line rule to apply, the accused must actually invoke his right

to counsel. Fierstine,

; see also Davis v. United States,

(1994) (citing Smith,

). To do so, an accused must express his desire for

the presence of counsel “sufficiently clearly that a reasonable police officer in the circumstances

would understand the statement to be a request for an attorney.

If the accused’s statement “is

ambiguous or equivocal *** in light of the circumstances” the rule does not apply, and the officers

may continue questioning the suspect.”

¶ 84 Moreover, even if an accused clearly invokes his right to counsel, he may subsequently

waive that right by initiating further communications, exchanges, or conversations with the police.

People v. Coleman,

. When the accused reinitiates contact after an

invocation of the right to counsel, the burden remains on the State to show that subsequent events

indicated a waiver of the right to have counsel present. Id (citing Oregon v. Bradshaw,

(1983). Reinitiation only occurs when the accused, not the police, reopens dialogue

with the authorities. Coleman,

; Edwards,

.

¶ 85 This determination involves a two-part inquiry. Coleman,

.

First, the State must show that the accused initiated the conversation in a manner evincing a

27 No. 1-21-1588

willingness and desire for generalized discussion about the investigation. Id.; see also Hicks

. Second, the court must determine whether the accused voluntarily, knowingly, and

intelligently waived his right to counsel.

¶ 86 To be voluntary, the waiver must be free and deliberate, and not “the product of

intimidation, coercion or deception.” Soto,

. To be knowing, the

waiver must be “made with full awareness of the nature of the rights being waived and the resulting

consequences of those rights.”

In other words, while an accused need not know and understand

all the far-reaching legal and strategic effects of waiving his rights or appreciate how widely or

deeply an interrogation may probe, he must at least understand basically what those rights

encompass and minimally what their waiver will entail. People v. Braggs,

(2003).

¶ 87 This determination will depend on the totality of circumstances in each case. People v.

Bowman,

(2002). Relevant factors that may be considered include: the

accused’s age, intelligence, education, experience, background, mental capacity, and physical

condition at the time of the interrogation; the duration of the interrogation; whether the accused

received Miranda warnings prior to giving the statement; whether physical or mental abuse was

employed against him; and the legality of his detention. See People v. Nicholas,

(2005); see also Buschauer,

.

¶ 88 Where it appears from the totality of the circumstances that the accused’s will to remain

silent was inappropriately overborne, the statement will be deemed involuntary. Id.; see also

Bowman,

(A confession is involuntary where “the defendant’s will was

overborn *** so that the confession cannot be deemed the product of a rational intellect of free

28 No. 1-21-1588

will.”).

¶ 89 In the instant case, in his affidavit, the petitioner alleged that during his custodial

interrogation he experienced numerous seizures, which made it impossible for him to concentrate

on what was being said and that he repeatedly informed the detectives that he both needed medical

treatment and wished to speak to an attorney before talking to them. The petitioner therefore asserts

that he clearly invoked his right to counsel and that any statements he made to police afterwards

were therefore presumptively involuntary. We agree.

¶ 90 According to the petitioner’s uncontested affidavit, after waiting inside the police station

interview room for about an hour and experiencing a seizure, the petitioner told Detective Odomos

that he was not feeling well and “would need to do this another day.” Detective Odomos was aware

that on the previous day, the petitioner was hospitalized for a seizure so severe that it caused him

to crash his car. Detective Odomos, however, informed the petitioner that he needed to wait for

additional detectives to arrive and locked him in the room again. The petitioner attested that while

waiting, he continued to have mild seizures. When the additional detectives arrived, the petitioner

felt weak and sick and had difficulty focusing on what was being said. The petitioner further

averred that after being Mirandized, he inquired whether he needed to answer any questions

without his attorney. Once he was advised that he did not, the petitioner explicitly told the

detectives that he had nothing to say to them without his lawyer being present.

¶ 91 According to the petitioner’s affidavit, however, Detective Lara subsequently entered the

interview room and told the petitioner that he wanted to ask him some basic questions for which

he did not need an attorney. The petitioner again reiterated that he did not wish to speak to the

detective and that he needed medical treatment because he continued to have seizures and could

“barely stay alert.” According to the petitioner, however, despite these requests, Detective Lara

29 No. 1-21-1588

neither stopped the interview to wait for the petitioner’s counsel, nor called for a physician. Instead,

he told the petitioner that he would get medical treatment “as soon as [he] cooperated,” with the

police. Detective Lara subsequently locked the petitioner in the interview room again.

¶ 92 In his affidavit, the petitioner further attested that after being transported to the lockup, he

had another seizure during which he lost consciousness and for which he had to be transported to

the hospital for treatment. In support, the petitioner attached medical records confirming his

treatment for this seizure and for the one he experienced the previous day when he crashed his car

in Oak Park, and of which Detective Odomos was made aware.

¶ 93 Based on the totality of these circumstances, and taking as we must the unrebutted and

well-pleaded allegations in the petition as true, we are compelled to conclude that the petitioner

made a substantial showing that any statements he made to Detective Lara were made

involuntarily. The petitioner demonstrated both that he clearly invoked his right to counsel and

that despite his diminished mental capacity resulting from his ongoing seizures, the police

deliberately ignored his repeated requests for medical treatment in an attempt “ ‘to wear [him]

down *** and persuade him to incriminate himself notwithstanding his earlier request for

counsel’s assistance.’ ” Baker,

(quoting Smith v. Illinois,

(1984)); see also Schuning,

; Fierstine,

;

Bowman,

(A statement will be deemed involuntary where a suspect’s will

is “overborn” in such a manner that the statement “cannot be deemed the product of a rational

intellect or free will.”).

¶ 94 Nothing in the record suggests that the petitioner reinitiated communication with the police

once Detective Lara entered the interview room. Nor does the record positively rebut the

petitioner’s averment that because of his diminished mental capacity caused by the repeated

30 No. 1-21-1588

seizures he was having while in custody, he could not knowingly waive his Miranda rights nor his

original request for the presence of counsel. At trial, Detective Lara testified that after he entered

the interview room, he read the petitioner his Miranda rights from a preprinted card but admitted

that he could not recall whether he had the petitioner sign a waiver form. The detective further

acknowledged that after he spoke with the petitioner, he never asked him to memorialize his

statement (in writing or any other format) or to review the detective’s notes. What is more, the

detective was never asked and therefore never testified about the petitioner’s medical condition or

whether the petitioner requested the presence of an attorney during this interview. See Simms,

(“recognizing the existence of a conflict with the trial evidence is not

the same as finding that the *** evidence is positively rebutted”).

¶ 95 Under this record, we conclude that a motion to suppress based on a Miranda violation

would have had merit. Accordingly, we fail to perceive any strategic reason for counsel’s failure

to file one.

¶ 96 In this respect, we strongly disagree with the State’s assertion that counsel chose not to file

the motion because the petitioner’s statements were exculpatory (or as she indicated to the

petitioner “harmless”) and because she intended to use them as evidence of the petitioner’s

cooperation with the police.

¶ 97 While it is true that according to Detective Lara, in his statement to police, the petitioner

denied any involvement in Robert’s shooting, the remainder of his statement undeniably provided

the police with key and detailed evidence of his motive to shoot Robert and placed him at the scene

of the crime minutes before the shooting occurred. At trial, Detective Lara testified that during his

interview with the petitioner, the petitioner told him that he was with Robert the day before the

shooting because Robert had helped him open his vehicle after he had locked himself out.

31 No. 1-21-1588

According to the petitioner’s statement to the police, for that purpose Robert brought pry tools, but

the petitioner refused to let him use them because he did not want his car damaged. While there,

Robert noted the car radio faceplate and observed the petitioner place drugs inside his car.

According to the petitioner’s statement to Detective Lara, when he subsequently discovered that

his radio faceplate and drugs were missing, he immediately assumed that Robert had taken them

because Robert had seen where he had placed the drugs and the “pry marks” on the petitioner’s

car were exactly where Robert had intended to use his tools to open it. The petitioner also told the

detective that on the morning of the shooting, he went to confront Robert at his garage and to

demand his drugs and radio back.

¶ 98 While Marco similarly testified that on the morning of the shooting, the petitioner was

seeking out Robert because he believed that Robert had stolen his radio, the petitioner’s statement

to the police provided the only evidence that the petitioner had sold drugs to Robert in the past and

that on the morning of the shooting he believed that Robert had stolen his drugs. Accordingly, the

petitioner’s statement not only corroborated the State’s theory of what happened to cause the

petitioner to seek out Robert but provided the much stronger motive that the shooting was driven

by Robert’s theft of the petitioner’s drugs.

¶ 99 What is more, the State’s own repeated reliance on the petitioner’s statement to the police

to establish the petitioner’s drug-theft related motive, and to corroborate the often-inconsistent

testimonies of Robert and Marco, demonstrates both the statement’s inculpatory nature and how

crucial it was to the State’s case. As the State’s rebuttal closing argument reveals:

“The [petitioner] according to his own words to the police is a drug dealer and has sold

32 No. 1-21-1588

drugs to Rob[ert].

***

Once the [petitioner] is arrested, he speaks to police. And that is how you know for a

fact that Rob[ert] and Marco *** are telling the truth because just about every single thing

the [petitioner] tells the police is exactly what Rob[ert] and Marco told the police and what

they told you.

***

The [petitioner] tells the police I hid drugs under the dashboard. That’s what Rob[ert]

said. *** [T]hen the [petitioner] gives information to the police that only the [petitioner]

would know[,] which is that he went back to his car and the drugs[,] *** were missing.

So, the [petitioner] believes that Rob[ert] stole his stuff, and he tells the police that. I

believe Rob[ert] *** stole my stuff, so I went looking for him. Those are his words. That

is what [the petitioner] told the police. That’s what we call motive, ladies, and gentlemen.

***

[H]ow convenient that every single thing that [the petitioner] told the police is exactly

what Robert *** told the police except for that last little part, the part about trying to kill

him. The other extremely telling piece of information that proves the [petitioner] is guilty

is that according to his own words he puts himself at the scene of the shooting the day of

the shooting with Rob[ert] ***. The [petitioner] tells police, I went looking for him. I

found Rob[ert] at 14th and Tripp. I said to him, I want my stuff back. And [Robert] said, I

don’t know what you’re talking about. Get away from me. He puts himself there. The

[petitioner] essentially confessed to this crime and brings himself all the way up to the

33 No. 1-21-1588

point of the shooting.”

¶ 100 Since it is apparent from the prosecutor’s comments that the State itself deemed the

petitioner’s statement to the police to be “essentially” a confession, we find disingenuous the

State’s present argument that trial counsel chose not to exclude the statement because of its

exculpatory nature. We similarly find no merit in the State’s suggestion that it was reasonable for

counsel to permit the State to introduce the petitioner’s statement at trial because it evidenced his

cooperation with the police. Nothing prevented counsel from arguing that the petitioner was an

innocent person because he cooperated with the police without the introduction of his statement to

Detective Lara. There was ample evidence offered at trial that the petitioner reached out to

Detective Odomos, agreed to meet with him at the gas station, and made no attempt to flee when

the detective placed him into custody. In fact, Detective Odomos explicitly testified that

throughout his investigation the petitioner remained cooperative “at all times.”

¶ 101 Moreover, we further find that but for counsel’s omission, there is a reasonable probability

that the outcome of the petitioner’s proceedings would have been different. Contrary to the State’s

position, the evidence at the petitioner’s trial was far from overwhelming. Without the petitioner’s

admission to having a strong motive to shoot Robert and to having been with Robert at the scene

of the crime immediately prior to the shooting, the only evidence connecting the petitioner to the

crime came from two unreliable witnesses, one of whom was an admitted heroin addict and the

other who was a convicted drug dealer. Moreover, both eyewitnesses provided conflicting

identifications of the shooter and admitted that at some point they told the authorities that they

neither recognized the shooter, nor could identify him because he wore a mask. In addition, the

eyewitness’s ability to see the shooter was challenged at trial, with Robert admitting that he never

saw the shooter before he was shot, and Marco acknowledging that he observed the entire incident

34 No. 1-21-1588

either from a “crack” in the lifted hood of his truck or from the passenger-side mirror. Finally,

Robert admitted that he testified at the petitioner’s trial only because a subpoena was issued for

his arrest. Under this record, we believe that had counsel filed a motion to suppress the petitioner’s

incriminating statements, the State would have been prevented from: (1) establishing that the

shooting was motivated by Robert’s theft of the petitioner’s drugs; (2) corroborating that the

petitioner went to see Robert on the morning of the shooting; and (3) arguing that the petitioner as

good as confessed to the crime. Absent this evidence, there was a reasonable probability that the

outcome of the petitioner’s trial would have been different. Se Evans, 209 Ill. 2d at 220 (“a

reasonable probability that the result would have been different is a probability sufficient to

undermine confidence in the outcome”).

¶ 102 Accordingly, we conclude that the petitioner has made a substantial showing of trial

counsel’s ineffectiveness based on counsel’s failure to file a motion to suppress.

¶ 103 2. Failure to Subpoena Police and Medical Records Regarding His Medical Condition

¶ 104 For these same reasons, we further find that counsel’s failure to subpoena the petitioner’s

medical records and the Oak Park Police records demonstrating his medical condition prior to and

on the day of his interrogation constitute ineffective representation.

¶ 105 In his affidavit, the petitioner averred that he informed his counsel about having seizures

prior to and during his interrogation. He told counsel that the day before he made his statement to

police, he had a seizure so severe that he lost consciousness and crashed his car in Oak Park, for

which he was arrested and subsequently treated at Loretto Hospital, and of which Detective

Odomos was informed. Both the Oak Park police records and the Loretto Hospital medical records,

attached to the petition, confirm that the petitioner suffered from a seizure disorder, and that he

experienced a severe seizure just one day before he was arrested by Detective Odomos. The

35 No. 1-21-1588

petitioner also informed counsel of the mild seizures he continued to have during his custodial

interrogation. He also told counsel that while in lock up, he was hospitalized after he lost

consciousness from another seizure. Medical records from this hospital, also attached to the

petition, confirm that the petitioner experienced seizures during his time in police custody.

¶ 106 While generally counsel’s decisions to subpoena medical and police records are matters of

trial strategy (People v. Johnson,

(1986)), where counsel was aware that the

petitioner suffered seizures, for which he was hospitalized prior to and while in police custody,

and that this impacted his ability to voluntarily, knowingly, and intelligently waive his Miranda

rights, we find no strategic reason for her failure to obtain them. It is undeniable that the

introduction of such records would have supported a motion to suppress the petitioner’s

inculpatory statements to police, without which, as already discussed above, there was a reasonable

probability that the outcome of the petitioner’s proceedings would have been different.

Accordingly, because counsel’s failure to subpoena these records prejudiced the petitioner, we find

that the petitioner has made a substantial showing of counsel’s deficient performance. See

Domagala,

.

¶ 107 3. Failure to Subpoena Police Records Regarding the Car Radio

¶ 108 The petitioner next avers that counsel was similarly ineffective because she failed to

subpoena Oak Park police records, which would have demonstrated, that contrary to Detective

Lara’s testimony, the petitioner’s car radio was never stolen. According to the petitioner, these

police records establish that when he crashed his car in Oak Park, he was in possession of the radio

faceplate, whose alleged theft by Robert motivated the shooting. We disagree.

¶ 109 In his affidavit the petitioner alleged that his radio was never stolen and that at the time

Robert helped him open his car, the radio was in the trunk because he was taking it to be repaired.

36 No. 1-21-1588

The petitioner further alleged that, contrary to Marco’s testimony at trial, he never accused anyone

of stealing his radio. Even if we take the petitioner’s unrebutted and well-pleaded allegations as

true, the petitioner cannot demonstrate that the radio faceplate found in his car on March 1, when

he was arrested by the Oak Park police department after suffering from a seizure and crashing his

car, is the same faceplate that he allegedly had in his trunk on February 18, prior to the shooting.

Because in that two-week period, the petitioner was not under arrest, he was free to replace the

faceplate with a new one even if it had been stolen by Robert. Accordingly, the petitioner has not

made a substantial showing that this portion of the Oak Park police records had the potential to

change the outcome of his trial. See Henderson,

(Failure to establish either

prong of the Strickland test precludes a finding of ineffective assistance of counsel); see also

Patterson,

.

¶ 110 4. Failure to Investigate and Present Alibi Witness Testimony

¶ 111 On appeal, the petitioner next contends that counsel was ineffective because she failed to

investigate, interview, and present Belinda’s alibi witness testimony. He claims that had counsel

sufficiently investigated Belinda and presented her alibi testimony at his trial there was a

reasonable probability that the outcome of his proceedings would have been different.

¶ 112 The State, on the other hand, responds that because counsel was aware of Belinda’s

potential alibi testimony and chose not to present her as a witness at trial, we must presume that

her choice was strategic. Furthermore, according to the State, because Belinda’s alibi testimony

would have been inconsistent with the petitioner’s statement to Detective Lara, presenting an alibi

defense would have harmed counsel’s overall trial strategy, i.e., showing the petitioner’s innocence

based on his cooperativeness with the police. For the following reasons, we disagree with the State.

¶ 113 While typically counsel’s decisions concerning which witnesses to call are matters of trial

37 No. 1-21-1588

strategy and are immune from ineffective assistance of counsel claims (People v. Wilborn, 2011

IL App (1st) 09802, ¶ 79), such strategic decisions “may be made only after there has been a

‘thorough investigation of law and facts relevant to plausible options.’ ” People v. Gibson,

(quoting Strickland,

). Trial counsel has a professional duty

to conduct “reasonable investigations or make reasonable decisions that make[] particular

investigations unnecessary.” Domagala,

. This duty derives from counsel’s

basic function “to make the adversarial testing process work in the particular case.” Strickland,

. The duty includes the obligation to independently investigate any possible

defenses. Kokoraleis,

(the duty to investigate possible defenses is a “subset” of

defense counsel’s overall obligations).

¶ 114 “Where the record establishes that counsel had reason to know, from an objective

standpoint, that a possible defense [such as an alibi defense] was available, failure to investigate

fully can constitute ineffective assistance of counsel.” (Internal citations and emphasis omitted.)

Brown v. Sternes,

(7th Cir. 2002); see e.g., People v. Bolden,

(holding that defense counsel’s failure to investigate and contact alibi witnesses

constituted objectively unreasonable assistance); People v. Brown,

(2002)

(same).

¶ 115 In assessing the reasonableness of an attorney’s investigation:

“a court must consider not only the quantum of evidence already known to counsel, but

also whether the known evidence would lead a reasonable attorney to investigate further.

Even assuming [trial counsel] limited the scope of [her] investigation for strategic reasons,

Strickland does not establish that a cursory investigation automatically justifies a tactical

decision ***. Rather, a reviewing court must consider the reasonableness of the

38 No. 1-21-1588

investigation said to support that strategy.” Wiggins v. Smith,

(2003).

¶ 116 Accordingly, where “trial counsel’s investigation of a potential alibi defense” is

“unreasonably limited” trial counsel’s decision not to present an alibi defense is “too-ill-informed

to be considered reasonable.” Stitts v. Wilson,

(7th Cir. 2013).

¶ 117 Moreover, even where counsel conducts a thorough investigation, failure to present

exculpatory evidence of which she is aware is objectively unreasonable. See e.g., People v. King,

(2000) (“[C]ounsel’s tactical decisions may be deemed ineffective

when they result in counsel’s failure to preset exculpatory evidence of which [s]he is aware,

including the failure to call witnesses whose testimony would support an otherwise uncorroborated

defense.”); see also Brown,

(same); People v. Bass,

(“Where a defendant’s attorney is aware of exculpatory evidence and does not present

it, counsel can be deemed ineffective”).

¶ 118 In the present case, accepting as true the unrebutted facts set forth in the petitioner’s

affidavit and additional supporting documentation, we find that the petitioner has made a

substantial showing that defense counsel was ineffective for failing to investigate and/or present

Belinda as an alibi witness. In his affidavit, the petitioner attested that he informed his defense

counsel that he had an alibi and that at the time of the shooting (between 10 a.m. and 2 p.m. on

February 18) he was with Belinda at the Golden Corral restaurant in Bolingbrook. The petitioner

further informed counsel that from there he and Belinda proceeded to the Sportsman’s Inn, where

they spent the night together. Belinda’s affidavit, also attached to the petition, confirms the

petitioner’s version of events. The petitioner informed counsel that both Belinda and he wished to

testify at his trial. In addition, he told counsel that he believed that both the Golden Corral

restaurant and the Sportsman’s Inn had video surveillance cameras, which could prove his

39 No. 1-21-1588

whereabouts with Belinda at the time of the shooting. The petitioner averred that he asked counsel

to obtain this footage, but that counsel refused. Instead, she informed the petitioner that she did

not want him to testify at trial and that any testimony that Belinda could offer was not important

because she was the petitioner’s girlfriend and because they “did not have any receipts to support

their testimony.”

¶ 119 Under this record, we find that counsel’s failure to interview Belinda and investigate the

Golden Corral restaurant to determine whether it had surveillance cameras which could establish

the petitioner’s whereabouts at the time of the crime, rose to the level of ineffective assistance. See

e.g., Wiggins, 539 U.S. at 525 (where a defendant’s alibi was that he was at a nightclub at the time

of the shooting, where there are presumably many people, “we cannot fathom a reason” that would

justify counsel’s decision to interview only a single alibi witness without exploring whether there

might be others at the venue who could provide credible alibi testimony.”); Raygoza v. Hulick,

(7th Cir. 2007) (finding that counsel acted deficiently where “[h]ad [he] gleaned

the information from [the defendant’s mother] about the evening party that was easily available

for the asking, he would have learned that this was not a case where only the mother was willing

to vouch for the defendant’s alibi. To the contrary, witnesses both related and unrelated to the

[defendant] could have been called.”)

¶ 120 Contrary to the State’s position, there was nothing strategic about counsel’s failure to

conduct an adequate investigation under these circumstances. Nothing prevented counsel from

arguing that the petitioner had an alibi while simultaneously also advancing the theory that he was

innocent because he cooperated with the police. As already discussed above, any issues with the

petitioner’s alleged statement to Detective Lara would have been resolved by the filing of a motion

to suppress. Belinda’s exonerating testimony could only have aided the petitioner and provided

40 No. 1-21-1588

him with a much stronger defense than the one offered by counsel at trial.

¶ 121 Moreover, in light of the weak evidence of the petitioner’s guilt, there is more than a

reasonable probability that but for counsel’s failure to investigate and call Belinda as an alibi

witness the outcome of the petitioner’s trial would have been different. Had the jury been presented

with evidence of the petitioner’s alibi, it would have had a basis upon which to acquit. See People

v. Makiel,

(2005) (holding that the defendant was entitled to an

evidentiary hearing on his claim that counsel was ineffective for failing to subpoena the separately

tried codefendant where questions of fact existed as to counsel’s failure to investigate and whether

failure to call this witness rendered his trial fundamentally unfair where the record reflected no

strategic reason for counsel’s failure to call the witness and questions of fact could only be resolved

by consideration of matters outside of the record); see also People v. House,

(1990) (holding that based on the closeness of the evidence, counsel’s failure to conduct an

investigation that would have established that the victim described someone other than the

defendant at the scene, constituted ineffective assistance of counsel, which likely affected the

outcome of the defendant’s trial); People v. Coleman

(1994) (holding

that counsel’s failure to interview witnesses and “pursue information in his possession,” which

indicated that the crime had been committed differently from what the victim had reported

supported the defendant’s claim of ineffective assistance of counsel).

¶ 122 Accordingly, we find that the petitioner has made a substantial showing of counsel’s

ineffectiveness on this basis, and that the dismissal of this claim was improper.

¶ 123 5. Failure to Submit the Negotiated Stipulation of Nurse Szymanski

¶ 124 On appeal, the petitioner next contends that trial counsel was ineffective because she failed

to submit the negotiated stipulation of nurse Szymanski. According to the petitioner, Szymanski

41 No. 1-21-1588

would have testified that she spoke with Robert before his surgery, on February 18, 2010, thereby

impeaching Detective Lara’s testimony and preempting the State’s argument that Robert could not

make an identification for two days after the shooting because he was intubated and unable to

speak. For the following reasons, we disagree.

¶ 125 At the outset, the State concedes that although counsel’s failure to introduce nurse

Szymanski’s stipulation into the record was already discussed during trial, in the petitioner’s

posttrial motion, and on direct appeal, because that stipulation was never entered into the record,

res judicata does not bar us from considering this issue now. See Tate, 2012 IL 11214 (issues that

were raised on direct appeal are procedurally barred under the doctrine of res judicata). While the

petition does not include the actual stipulation, it attaches APD Clough’s affidavit, which

corroborates her averments regarding the stipulated content, such that the content is properly

before this court and part of the record for the first time. Accordingly, in the absence of an objection

from the State, we evaluate the merits of the petitioner’s claim.

¶ 126 “It is unequivocal that the use of stipulations, in and of itself, does not establish ineffective

assistance of counsel.” People v. Coleman,

(1998). Nonetheless, an untrue

stipulation or one entered erroneously may amount to deficient representation.

.

¶ 127 Here, the petitioner argues that because during jury deliberations defense counsel herself

acknowledged that she made a mistake in not entering the negotiated stipulation, the record

affirmatively shows that her performance was deficient.

¶ 128 Initially, we disagree with the petitioner’s characterization of the record. While it is true

that during jury deliberations defense counsel acknowledged that in hindsight, she should have

entered the stipulation into the evidence, later while making this same argument at the hearing on

her motion for a new trial, counsel expressly stated that she was “obviously” not alleging her own

42 No. 1-21-1588

ineffectiveness.

¶ 129 Regardless, even if we presume that counsel’s performance was constitutionally

inadequate, the petitioner has failed to make a substantial showing that he was prejudiced by

counsel’s conduct. See Henderson,

(Failure to establish either prong of the

Strickland test precludes a finding of ineffective assistance of counsel).

¶ 130 Had Szymanski’s stipulation been entered into the evidence there is no reasonable

probability that the outcome of the petitioner’s trial would have been different. Evans,

. The Szymanski stipulation would merely have suggested that Robert was able to speak to

hospital personnel about his treatment before he was able to speak to police and identify the

petitioner as his assailant. Nothing in that stipulation would have established that the petitioner

spoke to police but was unable to identify the petitioner as the shooter. Nor would it have

contradicted the State’s subsequent argument that Robert identified the petitioner to the police as

soon as he could, i.e., when he was no longer intubated and could speak. Accordingly, we find that

the petitioner has failed to establish counsel’s ineffectiveness on this basis.

¶ 131 In coming to this conclusion, we have considered the decision in People v. Meija,

(1993) cited by the petitioner and find it inapposite. There, the State’s case against the

defendant consisted of the testimony of two “sole eyewitnesses to what transpired” and there were

police reports that reveled “that they perhaps witnessed nothing.”

. While defense counsel

was aware of three witnesses whose testimony could completely impeach the two eyewitness

accounts, instead of calling them to testify, he stipulated to their testimony.

On appeal, we

found that counsel was constitutionally deficient because his “failure to exact full mileage from

the impeaching police reports seriously undermined the adversarial process[.]”

.

¶ 132 In the present case, unlike in Meija, Szymanski’s stipulation could not have directly

43 No. 1-21-1588

impeached Robert’s identification of the petitioner as the shooter. Whether Robert made that

identification on the day of the shooting or two days after he was treated at the hospital, was

irrelevant and could not have made a difference to the outcome of the petitioner’s trial.

Accordingly, Meija does not apply.

¶ 133 6. Submission of Confusing and Irrelevant Stipulation by Dr. Sullivan

¶ 134 The petitioner next contends that counsel was ineffective because she agreed to the

submission of the often “confusing and irrelevant medical stipulation” of Robert’s treating

surgeon, Dr. Sullivan, which described in minutia every single procedure performed on Robert

upon his arrival at the hospital on February 18. According to the petitioner, counsel failed to realize

that Dr. Sullivan’s stipulated testimony significantly undercut Robert’s and Marco’s version of the

shooting. Robert and Marco both testified that the petitioner first shot Robert in the pelvis, and

then in the chest while Robert was lying on the ground. According to the petitioner, however, Dr.

Sullivan’s stipulated testimony regarding the entrance and exit wounds conclusively established

that because the bullet entered just below the right nipple, traveled downward, and exited the lower

back, the petitioner could not have shot Robert while Robert was lying on the ground, but rather

must have shot him a second time while he was still standing.

¶ 135 We initially disagree with the petitioner’s interpretation of Dr. Sullivan’s stipulated

testimony. Dr. Sullivan’s stipulation nowhere explicitly states that the bullet that entered Robert’s

chest just below the right nipple traveled downward. Moreover, nothing in that stipulation

suggests, let alone establishes that even if the bullet travelled downward, such a trajectory would

be impossible if the petitioner were standing over Robert. Such an argument is mere conjecture.

¶ 136 However, even presuming that the petitioner’s interpretation is correct, and that counsel

failed to realize the significance of Dr. Sullivan’s testimony, the petitioner has failed to make a

44 No. 1-21-1588

substantial showing that counsel’s failure to call Dr. Sullivan as a witness instead of agreeing to

the submission of the stipulation, had the potential to change the outcome of his trial. See

Henderson,

. Nothing in Dr. Sullivan’s testimony would have negated that

the petitioner shot Robert twice at close range or that as a result Robert suffered serious injuries,

including a hemothorax, a grade 4 liver injury, a left femur fracture and a 4 cm rent in his

diaphragm. Whether the second shot came in quick succession as Robert was still standing or after

he fell to the ground, the evidence of two close-range shots was more than sufficient to permit the

jury to find the petitioner guilty of attempted murder. Accordingly, because the petitioner has

failed to establish prejudice, we conclude that he cannot succeed on an ineffectiveness of counsel

claim on this basis. See Henderson,

.

¶ 137 7. Failure to Perfect Marco’s Impeachment with Police Records or the Testimony of

Officer Montes and Failure to Request a Jury Instruction

¶ 138 The petitioner next contends that counsel was ineffective for failing to perfect Marco’s

impeachment and by failing to request that the jury be properly instructed on prior inconsistent

statements. Specifically, the petitioner claims that Officer Montes’ police report directly

contradicts Marco’s testimony in two relevant. First, while Marco testified that he heard three or

four gunshots inside the garage, the police report quotes him as saying that the shooter fired two

shots. Second, although Marco testified that he watched the entire crime through the gap between

his upraised hood and the dashboard of his truck, according to the police report, he told Officer

Montes that he watched the incident in his side view mirror. The petitioner therefore argues that

Officer Montes’ police report could have been used on cross-examination to challenge Marco’s

credibility and introduced as substantive evidence of his prior inconsistent statements. The

petitioner therefore argues that counsel’s decision not to introduce this police report or to call

45 No. 1-21-1588

Officer Montes as a witness constituted ineffective representation.

¶ 139 In addition, the petitioner asserts that there was a danger of the jury being confused and

unsure about how counsel’s unverified attempts to impeach Marco regarding these two facts

should be considered. The petitioner contends that counsel should have requested that the jury be

instructed on prior inconsistent statements because the instruction given failed to inform them

that the believability of a witness could be challenged by evidence of prior inconsistent

statements. For the following reasons, we disagree.

¶ 140 It is axiomatic that the purpose of impeaching evidence is to attack the credibility of a

witness and not to establish the truth of the impeaching evidence. Robinson,

(citing People v. Bradford,

(1985)). Counsel’s decision on whether and

how to cross-examine or impeach a witness is generally a matter of trial strategy, which will not

by itself support a claim of ineffective assistance of counsel. People v. Bell,

; People v. Salgado,

(1994). When assessing the

importance of the failure to impeach for purposes of Strickland, “the value of the potentially

impeaching material must be placed in perspective.” People v. Jimerson,

(1989); see also Salgado,

; People v. Layton,

.

¶ 141 In addition, the failure to request specific jury instructions constitutes ineffective

assistance only when such failure was not the result of trial strategy. People v. Gill,

(2005). People v. Falco,

. Decisions regarding

choice of jury instructions generally enjoy a strong presumption that they reflect sound trial

strategy, rather than incompetence, and are thus immune from claims of ineffective assistance of

counsel. Falco,

. Failure to request a particular jury instruction

46 No. 1-21-1588

may be grounds for a finding of ineffective assistance of counsel only where the instruction was

so critical to the defense that its omission denied the petitioner his right to a fair trial.

¶ 142 In the instant case, the petitioner has failed to rebut the presumption that counsel’s

decision not to call Officer Montes or use his police reports to impeach Marco was anything but

trial strategy. The record reveals that on cross-examination, counsel thoroughly questioned

Marco regarding the inconsistencies in his original statement to Officer Montes and his

subsequent testimony at trial. Counsel got Marco to admit that he told Officer Montes that he

could not provide a description of the shooter because the shooter was unknown to him and

because he was wearing a mask. Counsel also got Marco to admit that he did not tell the police

about the threat the petitioner had made against his father earlier in the day because he believed

it to be untrue.

¶ 143 Counsel had no strategic reason to introduce Officer Montes’ police report in response to

the petitioner’s testimony regarding how many shots he “believed” were fired, because that

report would have only supported the State’s theory of the case that the petitioner fired two

shots. Similarly, counsel had no strategic reason to introduce Marco’s prior inconsistent

statement regarding his ability to view the shooting. At trial, counsel already got Marco to admit

that he never told Officer Montes that he saw the shooting through a crack in the raised hood of

his truck but instead watched it through his passenger side mirror. Since counsel already

impeached Marco on this issue, it was reasonable for her to believe that the introduction of

Officer Montes’ police report or testimony would be redundant and therefore unnecessary.

¶ 144 For these same reasons, we conclude that counsel’s decision not to include a jury

instruction regarding prior inconsistent statements did not rise to the level of ineffective

47 No. 1-21-1588

representation. In the instant case, the jury was instructed in the following manner:

“Only you are the judges of the believability of the witnesses and of the weight to be

given to the testimony of each of them. In considering the testimony of any witness, you

may take into account his ability and opportunity to observe, his memory, his manner

while testifying, any interest, bias, or prejudice he may have, drug usage, and the

reasonableness of his testimony considered in the light of all the evidence in the case.”

¶ 145 Contrary to the petitioner’s contention, this instruction sufficiently informed the jury that

they were the arbiters of the witnesses’ credibility. Specifically, the instruction stated that in

considering a witness’s believability, the jury should consider a witness’s “memory” and the

“reasonableness” of his testimony in light of the other evidence offered at trial. Because the jurors

here certainly heard evidence that Marco lied to the police about the most crucial piece of evidence

necessary to the State’s case, i.e., the identity of the shooter, they could evaluate his testimony

regarding the number of shots fired and the position from which he observed the shooting in

context of that evidence and in determining his overall credibility. There is nothing that the

petitioner’s proposed jury instruction would have added to the jury’s understanding of credibility

that could have changed the result of his trial. Accordingly, we find that the petitioner’s contention

of ineffective assistance of counsel on this basis must fail. See Falco,

(where a jury instruction is not so critical to the defense that its omission denies the petitioner

his right to a fair trial, counsel’s failure to request the instruction does not rise to the level of

ineffective representation).

¶ 146 8. Failure to Object to the Firearm Enhancement Under Apprendi

¶ 147 In his final complaint regarding counsel’s performance, the petitioner contends that counsel

was ineffective because she failed to challenge his 25-year firearm sentencing enhancement under

48 No. 1-21-1588

Apprendi,

. Specifically, the petitioner contends that because his indictment did not

include any allegations regarding his personal discharge of the firearm, counsel was ineffective for

failing to object to the enhancement or to request a separate jury instruction or verdict form on the

enhancement be presented to the jury.

¶ 148 The State initially responds that this claim is forfeited because the petitioner could have

but did not raise it on direct appeal. See English,

(issues that could have

been raised on direct appeal, but were not, are forfeited). In doing so, the State points out that the

petitioner cites to nothing in the record, which was unavailable to him at the time of his direct

appeal, and which would have prevented him from raising this ineffective assistance of counsel

claim. The State therefore argues that the only way we can consider this claim is in the context of

the petitioner’s claim of ineffective assistance of appellate counsel for failing to argue trial

counsel’s deficiency. Because in his reply brief, the petitioner does not object to this

characterization of his claim, we address it in that context.

¶ 149 It is well-settled that “[c]laim[s] of ineffective assistance of appellate counsel are measured

against the same standard as those dealing with ineffective assistance of trial counsel.” People v.

Childress,

(2000). Accordingly, to succeed under on a claim of ineffective

assistance of appellate counsel, under Strickland, the petitioner was required to make a substantial

showing that appellate counsel’s failure to raise the aforementioned issue on direct appeal was

both: (1) objectively unreasonable and (2) that it prejudiced him. Childress,

(citing People v. West,

(1999)).

¶ 150 Our courts have repeatedly held that “[a]ppellate counsel is not obligated to brief every

conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues

which, in his or her judgment, are without merit, unless counsel’s appraisal of the merits is patently

49 No. 1-21-1588

wrong.” People v. Easley, 192 Ill. 2d at 329. Accordingly, “[u]nless the underlying issue is

meritorious, petitioner suffer[s] no prejudice from counsel’s failure to raise [the issue] on direct

appeal.” Childress,

.

¶ 151 For the following reasons, we find that the petitioner has failed to make a substantial

showing of an Apprendi violation, and that therefore appellate counsel had no obligation to raise

this ineffective assistance of trial counsel claim.

¶ 152 In Apprendi, the United States Supreme Court held that any facts that increase the

prescribed penalties for an offense must be submitted to a jury and proven beyond a reasonable

doubt. See Apprendi,

; see also People v. Aguilar,

(2009).

The petitioner here was sentenced to 15-years imprisonment on the attempted murder charge (720

ILCS 5/9-1(a)(1) (West 2010) and an additional 25-years imprisonment for having personally

discharged the firearm that injured Robert (720 ILCS 5/8-4(c)(1)(D) (

)). Because the

total 40-year sentence imposed was greater than the maximum for attempted first degree murder

(i.e., 30 years) (730 ILCS 5/5-8-1(a)(3) (

), under Apprendi the jury had to find the facts

of the sentencing enhancement, (i.e., that the petitioner personally discharged the firearm that

injured Robert) beyond a reasonable doubt.

¶ 153 Contrary to the petitioner’s contention, however, the jury here did make that determination.

The jury was given an issues instruction, which explicitly stated that in order to find the petitioner

guilty of the offense of attempted first degree murder, they would have to find that the State proved

beyond a reasonable doubt:

“First: That the [petitioner] performed an act which constituted a substantial step toward

the killing of Robert Richardson; and

Second: That the [petitioner] did so with the intent to kill Robert Richardson; and

50 No. 1-21-1588

Third: That during the commission of the offense of attempt first degree murder, the

[petitioner] personally discharged a firearm that proximately caused great bodily harm

to Robert Richardson.” (Emphasis added).”

Because after its deliberations the jury submitted a guilty verdict form finding the petitioner

guilty of attempted first-degree murder, the application of the sentencing enhancement fulfilled

the requirements of Apprendi, and appellate counsel was not ineffective for failing to make that

argument on appeal. See e.g., Aguilar,

(2009) (“Because the instructions

provided to the jury at defendant’s trial included the language ‘personally discharging firearm’

and properly articulated the facts that were required to be proven beyond a reasonable doubt in

order to apply the 25-year extension to defendant’s sentence, the enhancement did not violate

Apprendi”); People v. Hopkins,

(2002) (finding no Apprendi violation

where the defendant was sentenced to an extended term sentence due to the victim’s age, despite

the fact that the jury did not receive a separate instruction on the issue).

¶ 154 The petitioner nonetheless asserts that trial counsel was ineffective for failing to request a

separate verdict form for the sentencing enhancement because that “left the jury with no

mechanism” to decide the petitioner’s guilt or innocence solely as to the enhancement and

separately from their guilty finding on the attempted murder charge. We disagree.

¶ 155 Given that the unrebutted testimony at the petitioner’s trial established that there was only

one shooter and that trial counsel’s entire defense rested on challenging that shooter’s identity,

trial counsel had no reason to request a separate verdict form on the firearm enhancement. Once a

rational jury believed Marco and Robert about the identity of the shooter, there was no reasonable

probability that they would have failed to find the firearm enhancement. See People v. Thurow,

(2003) (holding that the Apprendi error was harmless where it was clear

51 No. 1-21-1588

beyond a reasonable doubt that a rational jury would have found the defendant guilty absent the

error). Accordingly, we find that the petitioner has failed to establish appellate counsel’s

ineffectiveness for failing to argue trial counsel’s deficiency based on Apprendi.

¶ 156 In conclusion, we find that the petitioner has successfully alleged only three instances of

trial counsel’s deficient performance, namely that counsel failed: (1) to file a motion to suppress

his inculpatory statements to the police; (2) to subpoena Oak Park Police records and medical

records establishing that he suffered several seizures during his custodial interrogation; and (3) to

investigate, interview, and present Belinda’s alibi witness testimony. Accordingly, we reverse the

circuit court’s dismissal of these three claims and remand for further proceedings under the Act.

See Tate, 2012 IL 11214, ¶ 10 (Where a substantial showing of a constitutional violation is set

forth, the petition must be advanced to the third stage for the circuit court to conduct an evidentiary

hearing). We, however, find that the petitioner has failed to sufficiently allege the remainder of his

ineffective assistance of trial counsel claims, and therefore affirm their dismissal. See Tate, 2012

IL 11214, ¶ 10.

¶ 157 B. Ineffective Assistance of Appellate Counsel

¶ 158 On appeal, the petitioner next asserts that he was denied his constitutional right to the

effective representation of appellate counsel. The petitioner contends that appellate counsel was

deficient because he: (1) failed to argue trial counsel’s ineffectiveness for the same eight reasons

already discussed above, and (2) failed to challenge the sufficiency of the evidence used to convict

him. For the following reasons, we disagree.

¶ 159 As previously noted, claims of ineffective assistance of appellate counsel are analyzed

under the same Strickland standard applied to ineffective assistance of trial counsel claims.

Childress,

. Accordingly, the petitioner here was required to make a substantial

52 No. 1-21-1588

showing that appellate counsel’s failure to raise any of his now alleged ineffective assistance of

trial counsel claims was: (1) objectively unreasonable under prevailing social norms; and (2) that

but for counsel’s deficient performance, there was a reasonable probability that the result of his

appeal would have been different. Childress,

(citing West,

). “A

petitioner’s failure to make the requisite showing of either deficient performance or sufficient

prejudice defeats an ineffectiveness claim.” People v. Palmer,

(1994).

¶ 160 As already discussed above, because we have found three of the petitioner’s ineffective

assistance of trial counsel claims to be meritorious, correspondingly we also conclude that the

petitioner has made a substantial showing of appellate counsel’s deficient performance for failure

to argue those issues on direct appeal. Accordingly, we reverse and remand those three ineffective

assistance of appellate counsel claims. Conversely, since we have found that the remaining

ineffective assistance of trial counsel claims lacked merit, appellate counsel’s decision not to

pursue them does not rise to the level of deficient representation and we affirm the circuit court’s

dismissal on those grounds. Childress,

. (“Unless the underlying issue is

meritorious, petitioner suffer[s] no prejudice from counsel’s failure to raise [the issue] on direct

appeal.”)

¶ 161 We similarly reject the petitioner’s contention that appellate counsel was ineffective for

failing to argue the insufficiency of the evidence to convict him on direct appeal.

¶ 162 The standard of review for a challenge to the sufficiency of the evidence is whether after

viewing the evidence in the light most favorable to the State, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt. People v. Wheeler

(2007). The trier of fact is responsible for assessing the credibility of the witnesses,

weighing the testimony presented at trial and drawing reasonable inferences from the evidence.

53 No. 1-21-1588

People v. Hutchinson,

; People v. Ortiz,

(2001);

People v. Beauchamp,

(2011). A court of review will not substitute its judgment

for that of the trier of fact on these questions. People v. Bradford,

. We will

only reverse a criminal conviction when the evidence is so improbable or unsatisfactory that there

remains a reasonable doubt as to the defendant’s guilt. Beauchamp,

.

¶ 163 In the present case, viewing the evidence at trial in the light most favorable to the State, we

are compelled to conclude that a reasonable jury could have found all the elements of the crime

beyond a reasonable doubt.

¶ 164 A person commits the offense of attempted (first degree murder) when he, with the specific

intent to kill, commits any act that constitutes a substantial step towards the commission of

murder. 720 ILCS 5/8-4(a), 9-1(a)(1) (

). A person commits first degree murder when

he kills an individual without lawful justification and in performing the acts, which caused the

death, he intended to kill or do great bodily harm to that individual. 720 ILCS 5/9-1(a)(1) (

).

¶ 165 In the present case, the evidence at trial established that the petitioner shot Robert twice

from close range, in the thigh and in the chest, and that as a result Robert suffered great bodily

harm. The petitioner himself does not challenge these facts. Instead, he broadly asserts that Robert

and Marco were incredible witnesses because they were impeached and inconsistent, and that as a

result appellate counsel should have challenged the sufficiency of the evidence to convict him. As

already noted above, however, appellate counsel must have been aware that the jury, as the trier

of fact, was responsible for judging witness credibility and that a reviewing court would not be

permitted to substitute its judgment for that of the trier of fact on credibility issues. Hutchinson,

. Accordingly, where, as here, the jury clearly chose to believe

54 No. 1-21-1588

Marco and Robert, even after hearing and weighing the numerous inconsistencies in their

testimonies, counsel’s decision not to raise a sufficiency of the evidence challenge does not rise to

the level of deficient representation. See Easley, 192 Ill. 2d at 329 (It is not incompetent for counsel

“to refrain from raising issues which, in his or her judgment, are without merit, unless counsel’s

appraisal of the merits is patently wrong.”).

¶ 166 Moreover, any inconsistencies in Marco’s and Robert’s testimonies did not render the

evidence offered at trial so improbable or unsatisfactory to justify reversal. Accordingly, we reject

this basis for appellate counsel’s ineffectiveness.

¶ 167 C. Prosecutorial Misconduct

¶ 168 On appeal, the petitioner next contends that the circuit court erred in dismissing his petition

where he made a substantial showing that the State committed prosecutorial misconduct by arguing

facts that were not in evidence. According to the petitioner, in closing, the State improperly argued

that: (1) Robert could not name the shooter because he was unable to speak to anyone at the

hospital; (2) Detective Lara testified to Robert being unconscious; (3) Robert was scared to testify

because he was threatened on the street; and (4) the police did not find a murder weapon because

the petitioner disposed of it before he was arrested. For the following reasons, we find that these

claims are all procedurally barred.

¶ 169 As already noted above, a postconviction proceeding is not a continuation of, or an appeal

from, the original case. See Tate, 2012 IL 11214, ¶ 8; English,

; Kokoraleis,

. Accordingly, issues that were raised on direct appeal are res judicata, and issues

that could have been raised on direct appeal, but were not, are forfeited. Tate, 2012 IL 11214, ¶ 8;

English,

.

¶ 170 At the outset, we note that the petitioner’s first three allegations of prosecutorial

55 No. 1-21-1588

misconduct were already thoroughly discussed and rejected by this court on direct appeal. See

Baker,

, ¶¶ 18-19. Specifically, on appeal, the petitioner argued that

the State improperly: (1) “attempted to explain [Robert’s] delay in identifying [him] by arguing

that [Robert] was intubated and could not speak when the State knew that [Robert] spoke to

hospital personnel on the night of the shooting,” and (2) argued that Robert failed to come to court

because he was threatened, when in fact, the State previously explained to the circuit court that

Robert missed court because he did not have his legal papers.

.

¶ 171 The petitioner’s instant grievances regarding the State’s comments about Robert being

threatened on the street, Robert’s inability to name the shooter prior to surgery, and Detective

Lara’s testimony that Robert was unconscious when he first visited him in the hospital, are

fundamentally identical to the prosecutorial misconduct claims previously raised on direct appeal.

See

.

¶ 172 We already rejected both those arguments, finding that the prosecutor’s comments did “not

fall outside the wide latitude given to the State during closing argument.”

. Accordingly,

because these issues have already been thoroughly addressed by this court, res judicata bars the

petitioner from relitigating them. 4 See Tate, 2012 IL 11214, ¶ 8; English,

.

¶ 173 Moreover, to the extent that the petitioner now challenges additional comments made by

the State that were not raised on direct appeal (i.e., the State’s comments regarding the petitioner’s

disposal of the murder weapon prior to his arrest), his argument is forfeited because the record was

4 To the extent that the petitioner attempts to circumvent the application of res judicata by arguing that because nurse Szymanski’s stipulation, which would have established that the State knew the comments regarding Robert being unable to speak at the hospital were false, was never presented at trial and was therefore never part of the record on appeal, we note that in our decision affirming the petitioner’s conviction, we specifically held that regardless of the content of that stipulation (about which we refused to speculate), even if the stipulation had been entered into the evidence, the State’s comments in closing would have been proper. Baker,

, ¶ 19.

56 No. 1-21-1588

available to him at the time of his trial and he does not now make an allegation of ineffective

assistance of appellate counsel based on counsel’s failure to object to those comments on appeal.

See English,

(Res judicata and forfeiture may be relaxed in limited

circumstances, including “where the forfeiture stems from the ineffective assistance of appellate

counsel, or where the facts relating to the issue do not appear on the face of the original appellate

record”).

¶ 174 Nonetheless even if we were to consider this contention, we would find that it is without

merit as the petitioner cannot establish that the comments were improper or that he was

substantially prejudiced by them.

¶ 175 It is axiomatic that in closing arguments, prosecutors have a great deal of latitude to

comment upon and draw reasonable inferences from the evidence presented. People v. Blue,

(2000). In reviewing comments made during closing arguments, we ask whether

the comments “engendered substantial prejudice against a defendant such that it is impossible to

say whether or not a verdict of guilty resulted from them.” Wheeler,

. In

determining whether substantial prejudice occurred, the court must consider the context and the

content of the language in its entirety, its relationship to the evidence presented, and its effect on

the defendant’s right to a fair and impartial trial. People v. Williams,

(2002). A new trial is warranted only if the jury could have reached a contrary verdict had the

prosecutor not made the improper comments or if we cannot determine whether the prosecutor’s

improper remarks contributed to the defendant’s conviction.

¶ 176 In the present case, contrary to the petitioner’s position, the State’s comments regarding

his disposal of the murder weapon accurately reflected the testimony heard at trial. Specifically,

those comments could have been inferred from Robert’s and Marco’s testimonies that they

57 No. 1-21-1588

observed the petitioner shoot Robert and the fact that the weapon (unlike the shell casings) was

not subsequently recovered from the garage. Moreover, even if the comments were improper,

because Marco and Robert both identified the petitioner as the shooter, there was no danger of

substantial prejudice to the petitioner. Wheeler,

.

¶ 177 We therefore find that the circuit court properly dismissed the petitioner’s prosecutorial

misconduct claims.

¶ 178 III. CONCLUSION

¶ 179 In conclusion, for the reasons discussed above, we hold that the petitioner has made a

substantial showing of three ineffective assistance of trial and appellate counsel claims. The

petitioner established that trial counsel failed: (1) to file a motion to suppress; (2) to subpoena

police and medical records relevant to the petitioner’s medical condition at the time of his

inculpatory statement to the police; and (3) to investigate, interview, and present Belinda’s alibi

witness testimony. Correspondingly, the petitioner established that appellate counsel was

ineffective for failing to raise these three issues on direct appeal. Accordingly, the circuit court’s

dismissal of these claims must be reversed, and the claims must be remanded for an evidentiary

hearing pursuant to the Act. See Tate, 2012 IL 11214, ¶ 10 (Where a substantial showing of a

constitutional violation is set forth, the petition must be advanced to the third stage for the circuit

court to conduct an evidentiary hearing). Because the petitioner has failed to make a substantial

showing of any of his remaining claims, we affirm their dismissal.

¶ 180 Affirmed in part; reversed and remanded in part.

58