2026 IL App (1st) 240662-U
FIRST DIVISION March 23, 2026
No. 1-24-0662
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 Circuit ) Court of Cook County. Plaintiff-Appellee, ) ) v. ) No. 12 CR 10109 ) NATHAN BURTIN, ) ) Honorable William G. Gamboney, Defendant-Appellant. ) Judge Presiding. ______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court. Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: We affirm the trial court’s order dismissing defendant’s postconviction petition at the second stage. Defendant failed to make a substantial showing that he received ineffective assistance from his trial counsel. Defendant failed to demonstrate that trial counsel provided objectively unreasonable assistance or that he was prejudiced by any alleged error. Defendant also failed to show that postconviction counsel provided unreasonable assistance.
¶2 Defendant Nathan Burtin shot and killed Maurice Matthews. Defendant was charged with
and convicted of first-degree murder. During his bench trial, defendant testified and claimed he
acted in self-defense. Defendant filed a postconviction petition arguing that his trial counsel was
ineffective. The trial court dismissed the postconviction petition at the second stage. Defendant 1-24-0662
now appeals the order dismissing his postconviction petition, and he also argues that his
postconviction counsel was ineffective. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 Defendant met a female coworker, Sandessa Atkins, when they worked together at
Comcast. They dated for about 6 months before Atkins broke off the relationship in August
2011. For the first couple months after their relationship ended, they were still friendly and had
contact over the phone and occasionally in person. Beginning in October 2011, defendant began
engaging in strange behaviors towards Atkins that essentially amounted to stalking. For example,
defendant would call Atkins and tell her he could see her, even though she had not told him
where she was located.
¶5 On two occasions in February 2012, Atkins’ car was vandalized. On the first occasion,
she saw defendant standing by her car with the trunk open and he was doing something inside
there. When she approached, he looked at her, closed the trunk, and walked away. She
discovered that the charging cords for her electronic devices that were inside the car had been
cut. On the second occasion, Atkins’ mother, who she lived with, returned home and saw
defendant doing something to the tires on Atkins’ vehicle. Atkins walked outside and saw what
she believed to be defendant’s vehicle driving away. When Atkins and her mother examined her
vehicle, they noticed that the back two tires had been flattened. She filed police reports on both
occasions.
¶6 Although Atkins started to become afraid of defendant, they were still somewhat cordial
and still had some phone contact with each other. Defendant, however, would call Atkins
incessantly, and if she did not answer he would call her from other phone numbers.
-2- 1-24-0662
¶7 Between February and April 2012, Atkins moved to a new residence and did not tell
defendant where she was residing. On April 29, 2012, Atkins and defendant spoke on the phone.
Defendant sounded suicidal, according to Atkins. Defendant told Atkins that if she would not be
with him, he was going to kill or harm himself. During the course of that conversation, defendant
mentioned the street name where Atkins was residing, even though she had never informed him
of her new address. When Atkins questioned defendant about how he knew her street, he told her
that he had used his employee access at Comcast to find out where she was living.
¶8 On May 2, 2012, Atkins and defendant spoke on the phone again. Atkins was hanging out
at a park with some friends and defendant called her multiple times. One of Atkins’ male friends
answered one of the phone calls, but the content of that call was not disclosed. When Atkins left
the park, she drove home. She drove into the alley to park in her garage. Her garage door was
broken, so it needed to be manually opened. When she attempted to open the door, it was locked.
She knocked on the garage door and her cousin, Maurice Matthews, opened the door for her.
¶9 Matthews and Atkins had a very close relationship and, even though they were cousins,
they were more like siblings. Matthews was at Atkins’ house every day. Matthews had a key to
Atkins’ home and had permission to be at her house.
¶ 10 When Matthews opened the garage door for Atkins, he was there with a woman she did
not know. The woman later revealed that she and Matthews were together having sex in the
garage before Atkins arrived. Matthews’ car was parked in the garage, so he needed to move it
outside and park in a spot in the alley so that Atkins could park her car inside. After Matthews
moved his car but before Atkins had pulled into the garage, they began talking while Matthews
was standing outside the passenger side of her car. As they were talking, Atkins saw defendant
drive past her through the alley. He came from the direction she was facing but did not stop.
-3- 1-24-0662
About a minute later, however, defendant drove down the alley again in the same direction. He
stopped his car alongside Atkins’ vehicle so that the driver’s side windows were right next to
each other.
¶ 11 Atkins was shocked to see defendant at her home. She looked at Matthews. Matthews
told defendant, “I’m with her, you need to leave.” Defendant reportedly became upset and told
Matthews that Atkins would not date someone like him. Matthews walked around from the
passenger side of Atkins’ vehicle to the driver’s side and got between the two cars. Matthews
was calmly repeating that defendant needed to leave, but defendant was acting upset and being
loud. Defendant then stooped downward for a second, pulled out a gun, and fired a shot at
Matthews.
¶ 12 After being shot, Matthews lunged forward and grabbed the gun from defendant’s hand.
Defendant never got out of his car and, after he was disarmed, he quickly drove away. Both
Atkins and the woman who was with Matthews in the garage, Dawn Jones, witnessed the
shooting and positively identified defendant as the shooter. Matthews died of a gunshot wound to
the left side of his chest which crossed through his left lung, liver, aorta, and right lung before
exiting through the right side of his back.
¶ 13 A 911 call was made about one minute after the shooting. The caller identified defendant
as the shooter and gave a description of the vehicle he was driving when he fled the scene.
Officer Donna Lewis of the Maywood Police Department was on duty when she received a flash
message about the vehicle which indicated that the driver was wanted for a shooting that
occurred in Chicago. Officer Lewis and her partner spotted the vehicle and stopped it. The
officers arrested defendant and took him into custody.
-4- 1-24-0662
¶ 14 After defendant was arrested, the police found a folded up piece of paper in his wallet
with Atkins’ address written on it. Defendant also told detectives that he was not at Atkins’
house that night and had never been there before. Defendant, who lived in Maywood and was
arrested there, told detectives that he was not in Chicago at all on the night of the shooting and
was at a friend’s house.
¶ 15 A gunshot residue test was performed, and gunshot residue was found on defendant’s
right hand and the left cuff of his shirt. A Glock Model 17 9mm semiautomatic pistol was
recovered from the scene of the shooting. It was loaded with 15 live cartridges, and one fired
cartridge was recovered from the scene. Three different DNA profiles were present on the
firearm. Both Atkins and Matthews were also found to have gunshot residue on their hands.
¶ 16 Phone records between defendant and Atkins established the dates and times of the
communications between them leading up to the shooting. For May 2, 2012, the day of the
shooting, the phone records showed that, in the morning, defendant called Atkins twice and sent
her one text message between 10:14 a.m. and 10:43 a.m. Atkins called defendant back at 10:44
a.m. and sent him a text message. That night, defendant called Atkins 13 times and sent her 5
text messages between 8:50 p.m. and 11:59 p.m. Atkins texted defendant twice that night at 9:32
p.m. and 9:34 p.m.
¶ 17 At trial, defendant called two character witnesses before testifying on his own behalf.
Jeffrey Guilbo testified that he worked with defendant at Comcast and later became defendant’s
direct supervisor, having contact with defendant every day. Guilbo testified that defendant was
being prepared to become a supervisor himself. Guilbo testified that he had never heard anybody
talk about whether defendant was a truthful or peaceful person. After Guilbo gave that testimony,
defense counsel tried further to elicit testimony about defendant’s reputation for being truthful or
-5- 1-24-0662
peaceful, but the trial court sustained an objection to the testimony because Guilbo had already
stated he had never heard anyone discuss those matters. The trial court did, however, permit
Guilibo to clarify how he knew defendant’s reputation for truthfulness and peacefulness if he had
never heard anyone talk about it. Guilbo testified that he knew of defendant’s good reputation
based on his personal knowledge as he was in the process of preparing defendant to become a
supervisor and had been training him and monitoring him during their daily interactions.
¶ 18 Edward Binion was also called as a character witness for defendant. Binion also met
defendant through work, but they also had a social relationship, going out together about every
other weekend to parties and clubs along with some other friends. Binion testified that he had
never heard anyone say anything bad about defendant. When asked by defense counsel if he had
ever heard anyone talk about defendant being truthful or peaceful, Binion replied, “Well, no. I
never had nobody slander his name or anything like that.” When defense counsel inquired
further, Binion clarified that he had never had a conversation with anyone about defendant’s
truthfulness or reputation for peacefulness. Binion, however, testified that he had never heard
anyone talk badly about defendant. When asked if he had ever heard anyone talk about defendant
being a peaceful or mild person, Binion responded affirmatively before stating under further
questioning that he never heard any specific conversations about defendant’s reputation.
¶ 19 Defendant testified on his own behalf. He testified that he and Atkins broke up in
December 2011 when he went through her phone and discovered that she was seeing someone
else. He claimed it was a mutual breakup. Defendant testified that they remained cordial and
were beginning to rekindle their relationship in April 2012. He testified that Atkins gave him her
new address, and he went to her new apartment on April 28, 2012, where they had a conversation
and kissed and hugged each other. Between April 28th and May 2nd, defendant and Atkins
-6- 1-24-0662
talked on the phone for hours. Defendant testified that there was mutual interest in having those
conversations. Defendant denied that he punctured Atkins’ car tires. He also denied expressing
any thoughts of self-harm or suicide.
¶ 20 Defendant testified that, on the day of the shooting, he and Atkins spoke by phone in the
morning and discussed possibly getting together after work. He texted Atkins after he got off
work and she replied that she was not home but would call him when she was. Defendant
testified that Atkins texted him around 11 p.m. to say that she was home. Defendant then went to
Atkins’ house. He had her address written down on a piece of paper in his wallet because she had
given it to him.
¶ 21 When defendant arrived at Atkins’ house, he went into the alley to park. He did not see
any parking spots, so he circled back around. When he got back into the alley, he pulled
alongside Atkins’ car. She was on the phone, so he was sitting there waiting for her to finish so
he could ask her where he should park. At that point, a man on the passenger side of Atkins’ car
began telling him to leave, saying “she’s my girlfriend, you should leave.” Defendant and the
man began trading insults. The man was advancing towards defendant and got between
defendant’s car and Atkins’ car. The man had a look on his face like he was upset and defendant
believed the man was going to attack him.
¶ 22 Defendant testified that it looked like the man had something in his hand, though on
cross-examination he later stated that he could not see the man’s hands. Defendant believed he
needed to protect himself and Atkins from this individual. Defendant testified that he got out of
his car and grabbed his gun. Defendant kept the gun in his car every day since 2011 following a
burglary at his mother’s house. He only intended to scare the man with the gun, not shoot him,
but he did chamber a round. As he was raising up the gun to point it at the man, the man grabbed
-7- 1-24-0662
the gun and the gun went off. Defendant dropped the gun and drove away. He testified that he
did not remember pulling the trigger and that if he did so, it was unintentional. After he drove
away, he called Atkins, and she told defendant that he shot her cousin and was going to jail. He
was stopped by police and arrested about 10 minutes later.
¶ 23 Defendant testified that he was in shock when he was arrested, and he admitted that he
lied to the police about what happened. He admitted that he told the officers that he was at a
friend’s house, had not seen Atkins that night, and had not been in Chicago.
¶ 24 The trial court found defendant guilty of first-degree murder. The court stated that it
found Atkins to be credible and noted that her testimony was corroborated by her mother and
Dawn Jones as well as by the physical evidence. The trial court noted that the phone records
refuted some key parts of defendant’s testimony and that defendant’s testimony was “truly
incredible,” “ludicrous,” and “border[ed] on the absurd.” The trial court noted, for example, that
defendant testified he pulled out the gun in part to protect Atkins, but then fled the scene leaving
her behind with a loaded weapon with the person he believed she needed protection from. The
court also found defendant not to be credible when he claimed that he only intended to scare
Matthews because he chambered a live round while taking out the weapon and pointing it at the
man. The trial court sentenced defendant to 48 years in prison.
¶ 25 Defendant filed a direct appeal in which he argued that his conviction should be reduced
to involuntary manslaughter. Defendant argued that there was insufficient evidence to support a
first-degree murder conviction and, instead, the evidence could only support an involuntary
manslaughter conviction. We concluded that, “viewing the evidence in a light most favorable to
the State, a rational trier of fact could find, beyond a reasonable doubt, that defendant intended to
kill or do great bodily harm to Matthews or knew that his actions would cause Matthews’ death,
-8- 1-24-0662
or that he knew his acts created a strong probability of death or great bodily harm to Matthews.”
People v. Burtin, 2019 IL App (1st) 170240-U, ¶ 36 (unpublished order under Supreme Court
Rule 23).
¶ 26 On September 29, 2020, defendant filed a postconviction petition through retained
counsel which is the subject of this appeal. In his petition, defendant raised a single claim—that
his trial counsel was ineffective for failing to investigate and call two additional character
witnesses. Defendant argued in his petition that counsel should have called Dameon Jones and
Kevin Ray to testify in his defense. The postconviction petition was supported by affidavits from
Jones and Ray in which they each averred that they have known defendant for many years, know
defendant to be a peaceful person who does not lie or cheat, and would have been willing to
testify to defendant’s truthfulness and good character.
¶ 27 After filing the petition, defendant filed a motion to supplement it. Defendant stated that
the Covid-19 pandemic prevented him from being able to deliver his notarized affidavit with the
original petition, which he argued provided good cause for his failure to file the petition sooner.
The trial court advanced defendant’s petition to the second stage.
¶ 28 The State moved to dismiss defendant’s postconviction petition, arguing that it was
untimely and nonetheless without merit as he failed to meet either requirement to prevail on a
claim for ineffective assistance of counsel.
¶ 29 Defendant filed a response to the State’s motion to dismiss his postconviction petition in
which he raised additional claims not included in his petition: that trial counsel failed to
adequately cross-examine Atkins’ mother and the medical examiner and that counsel failed to
adequately examine the two character witnesses who did testify at trial. Later, defendant filed
another supplement to his petition seeking to add another character witness to his postconviction
-9- 1-24-0662
proceedings. Defendant attached an affidavit from his cousin, Clarissa Carthans. Carthans
averred in her affidavit that she grew up with defendant and he is a calm and non-confrontational
person. She also stated in her affidavit that defendant was in Bellwood all day on February 28,
2012, so he could not have slashed Atkins’ tires that day. Carthans stated that she told
defendant’s trial counsel this information before trial, but she was never called to testify.
¶ 30 The State responded to defendant’s new claims and new affidavit. The State withdrew its
argument regarding the timeliness of defendant’s petition, but it reiterated that the claims were
speculative and lacked merit. The State argued that defendant failed to make a substantial
showing of ineffective assistance of trial counsel. The State suggested that trial counsel’s
decisions regarding which witnesses to call and what questions to ask during cross-examination
were purely matters of trial strategy, and that defendant had failed to demonstrate how the
testimony of any of the character witnesses would have overcome the overwhelming evidence
against defendant or changed the outcome at trial.
¶ 31 The trial court held arguments on the petition and the motion to dismiss, and it later
issued a written ruling. The trial court dismissed the petition, concluding that defendant could not
establish prejudice, that his allegations were conclusory and speculative, and that the claims
consisted of matters of trial strategy. The trial court concluded that defendant had failed to show
that any of the new evidence or any of the new claims made by defendant would have altered the
outcome at trial. Defendant now appeals the trial court’s dismissal of his postconviction petition.
¶ 32 ANALYSIS
¶ 33 This appeal concerns the trial court’s dismissal of a postconviction petition at the second
stage of proceedings under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West
2022)). The Post-Conviction Hearing Act provides a criminal defendant with the right to
- 10 - 1-24-0662
challenge his conviction by filing a petition in the circuit court (id. § 122-1) and sets forth a
process by which a defendant can assert that, in the proceedings that resulted in his conviction,
there was a substantial denial of his federal or state constitutional rights (People v. Hodges, 234
Ill. 2d 1, 9 (2009)).
¶ 34 The Post-Conviction Hearing Act provides for a three-stage process for adjudicating
postconviction petitions. People v. Harris, 224 Ill. 2d 115, 125 (2007). At the first stage, the
circuit court independently assesses the merits of the petition and may dismiss the petition if it is
frivolous or patently without merit. 725 ILCS 5/122-2.1 (West 2022). At the second stage, the
circuit court must determine whether the petition and any accompanying documentation make a
substantial showing of a constitutional violation. People v. Edwards, 197 Ill. 2d 239, 246 (2001).
¶ 35 The question raised in an appeal from an order dismissing a postconviction petition at the
second stage is whether the allegations in the petition, liberally construed in favor of the
petitioner and taken as true, are sufficient to invoke relief under the Act. People v. Sanders, 2016
IL 118123, ¶ 31. The circuit court’s dismissal of a postconviction petition at the second stage is
reviewed de novo. People v. Smith, 2021 IL App (1st) 181728, ¶ 18.
¶ 36 Ineffective Assistance from Trial Counsel
¶ 37 Defendant argues that he made a substantial showing of ineffective assistance of trial
counsel in his postconviction petition such that the trial court erred when it dismissed the
petition. Defendant argues that trial counsel failed to properly investigate and present character
evidence in support of his self-defense claim during trial.
¶ 38 The Constitution of the United States guarantees criminal defendants the right to effective
assistance of counsel. U.S. Const. Amend. VI (West 2022). Thus, where a criminal defendant is
convicted of an offense but did not receive constitutionally adequate representation, he can seek
- 11 - 1-24-0662
relief to vindicate his constitutional right to counsel. People v. Burnett, 385 Ill. App. 3d 610, 614
(2008). To be entitled to relief on a claim of ineffective assistance of counsel, a defendant must
show that his counsel’s representation fell below an objective standard of reasonableness and
that he suffered prejudice as a result. Strickland v. Washington, 466 U.S. 668, 694 (1984);
People v. Scott, 2015 IL App (1st) 131503, ¶ 27.
¶ 39 We analyze claims of ineffective assistance of counsel by considering the entire
record. People v. Hommerson, 399 Ill. App. 3d 405, 415 (2010). At the second stage of
postconviction proceedings on a claim for ineffective assistance of counsel, the question is
whether the petition makes a substantial showing of both the deficient performance and prejudice
prongs of the Strickland standard. People v. Towns, 182 Ill. 2d 491, 507 (1998).
¶ 40 Defendant acknowledges that his presence at the scene of the shooting is not disputed.
However, defendant contends that he did dispute at trial whether he or Matthews was the initial
aggressor and whether his shooting of Matthews was intentional. Defendant argues that the trial
largely came down to a credibility contest between himself and the State’s witnesses, primarily
Atkins, and, thus, evidence of his peacefulness and truthfulness was highly relevant.
¶ 41 Defendant argues that, even though trial counsel attempted to introduce helpful character
evidence, counsel’s “efforts were lackluster and fell far short of establishing anything useful
about [defendant’s] character.” Defendant suggests that he made a substantial showing of
ineffective assistance of counsel where he demonstrated that counsel failed to call additional
character witnesses who could have provided more specific and reliable information about his
character and where counsel failed to adequately examine the character witnesses who did
testify.
- 12 - 1-24-0662
¶ 42 Decisions on what evidence to present and which witnesses to call on a defendant's
behalf rest with trial counsel and, as matters of trial strategy, are generally immune from claims
of ineffective assistance of counsel. People v. Ward, 187 Ill. 2d 249, 261-62 (1999). The only
exception to this rule is when counsel’s chosen trial strategy is so unsound that counsel fails to
conduct any meaningful adversarial testing. Id. at 262. Trial counsel’s performance must be
evaluated on the basis of the entire record and not upon isolated instances of alleged
incompetence called into question by the defendant. People v. Flores, 128 Ill. 2d 66, 107 (1989).
Defendant acknowledges that claims such as his are normally insufficient to substantiate a claim
of ineffective assistance of counsel, but he argues that trial counsel’s failure to properly present
character evidence on his behalf was not in any way strategic, it was instead “the product of
incompetence and misunderstanding of the law.”
¶ 43 Our review of counsel’s representation is performed under a most deferential standard.
Harrington v. Richter, 562 U.S. 86, 105 (2011). Our review begins with the presumption that
there are numerous ways to provide effective assistance in any given case, and the defendant
must overcome the presumption that, under the circumstances, the challenged action might be
considered sound trial strategy. People v. Perry, 224 Ill. 2d 312, 344 (2007). Unlike a reviewing
court, trial counsel observed the relevant proceedings, knew about information outside the
record, and interacted with the client, with opposing counsel, and with the judge. Harrington,
562 U.S. at 105.
¶ 44 Even if hindsight reveals that counsel made a mistake or error in judgment, such an error
standing alone will not render counsel’s performance deficient under Strickland. Perry, 224 Ill.
2d at 355-56. Instead, a defendant must show that counsel’s errors were so serious, and his
- 13 - 1-24-0662
performance so deficient, that he did not function as the counsel guaranteed by the sixth
amendment. Id. at 342.
¶ 45 As for his presentation of the witnesses’ testimony at trial, defendant contends that trial
counsel’s errors left him “with essentially no character evidence supporting his defense.” When
trial counsel questioned Jeffrey Guilbo, counsel asked background questions to establish that
Guilbo had known defendant for about 4 years and interacted with him every day at work.
Counsel then asked whether Guilbo had ever heard anyone talk about defendant’s reputation for
truthfulness or peacefulness to which Guilbo replied “no.” Counsel then asked whether Guilbo
himself knew whether defendant had such a reputation and Guilbo responded, “yes, he does.”
The trial court then sustained an objection to Guilbo testifying about defendant’s reputation for
being truthful or peaceful because Guilbo had already stated he had never heard anyone discuss
those matters.
¶ 46 However, since Guilbo had responded in the affirmative that defendant had a reputation
for truthfulness or peacefulness, the trial court permitted him to clarify how he knew defendant’s
reputation for truthfulness and peacefulness if he had never heard anyone talk about it. Guilbo
testified that he knew of defendant’s good reputation based on his personal knowledge as he was
in the process of preparing defendant to become a supervisor and had been training him and
monitoring him during their daily interactions. Thus, trial counsel was able to elicit that Guilbo
had personal knowledge of defendant’s positive personal attributes due to their close working
relationship. The clear inference from Guilbo’s testimony was that he had a good opinion of
defendant and believed him to be truthful and peaceful because he was in the process of helping
him secure a promotion and personally observed defendant’s conduct and demeanor each day.
Although Guilbo did not straightforwardly provide reputation evidence about what he had heard
- 14 - 1-24-0662
about defendant’s character, he provided opinion evidence about what he knew about
defendant’s character.
¶ 47 When trial counsel questioned Edward Binion, counsel asked background questions to
establish that Binion had known defendant for at least seven years and spent lots of time with
him both at work and socially. Binion testified that he had never heard anyone talk badly about
defendant. When asked if he had ever heard anyone talk about defendant being a peaceful or
mild person, Binion responded affirmatively before stating under further questioning that he
never heard any specific conversations about defendant’s reputation. Like with Guilbo, the
inference from Binion’s testimony was that he had a good opinion about defendant’s character,
considered him to be truthful and peaceful, and had never heard anyone speak in a negative
manner about those matters.
¶ 48 With both character witnesses, trial counsel elicited evidence that aligned more with the
witnesses’ opinions of defendant than his reputation. When a theory of self-defense is raised in a
battery or homicide case, evidence of the peaceful or violent character of either party is relevant
as circumstantial evidence to show whether the complainant or the accused was the initial
aggressor (citing McCormick, Evidence § 199, at 566 (character of the accused) and § 193, at
572-73 (character of the victim) (3d ed. 1984)). People v. Randle, 147 Ill. App. 3d 621, 625
(1986). “In all cases in which evidence of character or a trait of character of a person is
admissible, proof may be made by testimony as to reputation, or by testimony in the form of an
opinion.” Ill. R. Evid. 405(a) (West 2022) (eff. January 1, 2011). Although defendant suggests
counsel erred by only asking the witnesses about defendant’s reputation and “did not ask the
witnesses their personal opinion,” the evidence in the record reflects both witnesses’ positive
opinion about defendant’s truthfulness and peacefulness. A defendant is entitled to competent,
- 15 - 1-24-0662
not perfect, representation. People v. Stewart, 122 Ill. App. 3d 546, 550 (1984). Here, trial
counsel provided the trial court with evidence from two close associates that they believed
defendant to be truthful and peaceful. The trial court heard the evidence even though it may not
have been elicited in the most artful way.
¶ 49 Defendant suggests that the proposed character witnesses would have overcome the
supposed shortcomings in the evidence about defendant’s reputation and character. Kevin Ray,
one of the witnesses defendant claims should have been called to testify, supplied an affidavit in
support of defendant’s postconviction petition. Ray’s affidavit is brief and is largely conclusory.
It contains four simple statements taking up less than half of one page. Ray avers in his affidavit
that trial counsel contacted him prior to trial and he was willing to testify, but he was never sent a
subpoena. Ray would testify to defendant’s truthfulness and good character and that he has not
known or heard of defendant “to lie, make false promises, or cheat anyone.”
¶ 50 The attestation from Ray does not add anything significant to the testimony that was
already introduced at trial. Ray provides the same evidence about defendant’s character that was
elicited at trial through Binion and Guilbo—that he has not known or heard of defendant being
dishonest and, therefore, believed him to be a truthful person. Evidence is considered
“cumulative” when it adds nothing to what was already before the factfinder. People v. Ortiz,
235 Ill. 2d 319, 335 (2009). When evidence offered in support of a postconviction claim is
merely cumulative, it cannot be said that the evidence is of such a character that it would be
likely to change the result on retrial. People v. Deloney, 341 Ill. App. 3d 621, 632 (2003). The
attestations offered by Ray, even when taken in the light most favorable to defendant, similarly
fail to establish a reputation for truthfulness as they only evidence Ray’s personal knowledge that
defendant lacks a negative reputation.
- 16 - 1-24-0662
¶ 51 Moreover, Ray’s affidavit makes clear that counsel knew about him, contacted him
before trial, but then did not send him a subpoena to testify. Instead, trial counsel decided to
present testimony from two different character witnesses. We must presume that counsel decided
as a matter of trial strategy that Ray’s testimony was unhelpful or could be potentially damaging
for some reason. Counsel may have concluded, as the affidavit currently shows, that Ray could
offer nothing more than the other two character witnesses, and counsel opted not to present the
cumulative testimony. A strong presumption exists that trial counsel acted effectively in
investigating a case. People v. Brown, 2017 IL App (1st) 150203, ¶ 29. Unlike a reviewing court,
trial counsel observed the relevant proceedings, knew about information outside the record, and
interacted with the client, with opposing counsel, and with the judge. Harrington, 562 U.S. at
105. Defendant fails to overcome the presumption that counsel acted effectively and acted with
professional discretion when deciding to call Binion and Guilbo, and not Ray.
¶ 52 Dameon Jones’ affidavit is similarly brief. It contains four simple statements similar to
those in Ray’s affidavit. Jones avers that trial counsel never contacted him before trial, but that
he would have been willing to testify as to defendant’s character and reputation. Jones would
testify that he knows defendant to be a peaceful person as he has “never witnessed any
aggressive tendencies or seen him start any fights.” Jones would further testify that he “has not
known or heard of [defendant] to lie, make false promises, or cheat anyone.” As with Ray’s
statements, Jones has merely offered his own, largely conclusory opinion about defendant’s
character and his personal knowledge that defendant lacks a negative reputation. Jones’
attestations add nothing significant to the trial record consisting of the character witnesses who
did testify.
- 17 - 1-24-0662
¶ 53 Clarissa Carthans’ affidavit is more detailed than the others but also suffers from
deficiencies that render it insufficient to sustain defendant’s burden. Carthans avers that she
spoke to defendant’s attorney before trial and told him everything that was included in her
affidavit. She avers that even though she was “going through a divorce, eviction, health issues,
etc.,” she would have dropped everything for defendant and would testify on his behalf. Carthans
speaks glowingly about defendant throughout her affidavit. She is defendant’s first cousin and,
according to her affidavit, was more like his sister. Trial counsel may have seen the strong bias
Carthans’ possessed and decided her testimony would not be significantly impactful in the bench
trial. See People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (finding that the decision not to call
alibi witnesses was trial strategy because all three witnesses were relatives of the defendant and
their testimony would thus be afforded little weight); see also People v. Lacy, 407 Ill. App. 3d
442, 466 (2011). Like with Ray’s putative testimony, trial counsel was aware of Carthans and
what she would testify about and decided to call two other character witnesses instead. See
Harrington, 562 U.S. at 105.
¶ 54 Carthans’ affidavit also focuses on attempting to attack the credibility of Atkins. Carthans
recounted that Atkins was “a firecracker from what I heard,” “big booty, bad attitude.” Carthans
avers that defendant was present with her on the day Atkins tires were slashed. Defendant
received a call from Atkins upset about her tires and Carthans heard defendant telling Atkins he
could not be in two places at once, as he was with his cousin in Bellwood. Much of Carthans’
testimony would have been inadmissible hearsay. See Ill. Rs. Evid. 801, 802 (West 2022) (eff.
Jan. 1, 2011). Moreover, defendant did not claim at trial, nor did he claim in his postconviction
petition, that Atkins’ reputation for truthfulness was an issue, and she was not the victim in this
- 18 - 1-24-0662
case. Defendant similarly did not claim at trial or in his postconviction petition that Atkins was
untruthful and he did not attempt to attack her character or impeach her testimony in any way.
¶ 55 To the extent that Carthans’ affidavit does contain evidence about defendant’s reputation
and good character, defendant nonetheless fails to show that trial counsel acted in an objectively
unreasonable manner when he decided to call two other witnesses to testify about defendant’s
character. Trial counsel could have determined that Carthans’ biased testimony would have
actually been harmful to defendant’s case. The attacks on Atkins could have also proved harmful
to defendant, especially where the trial court found her to be credible and a sympathetic witness.
Even when the evidence is taken in the light most favorable to defendant, he has failed to
overcome the presumption that counsel exercised professional discretion in choosing to have
professional acquaintances Binion and Guilbo testify rather than Carthans. See Brown, 2017 IL
App (1st) 150203, ¶ 29.
¶ 56 In addition to failing to demonstrate that trial counsel’s representation fell below an
objective standard of reasonableness, defendant has failed to demonstrate prejudice. “An error by
counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a
criminal proceeding if the error had no effect on the judgment.” Strickland, 466 U.S. at
691 (citing United States v. Morrison, 449 U.S. 361, 364-65 (1981)). “Accordingly, any
deficiencies in counsel’s performance must be prejudicial to the defense in order to constitute
ineffective assistance under the Constitution.” Id. at 692. To establish prejudice, a defendant
must show that there is a reasonable probability that, but for counsel’s conduct, the result of the
proceedings would have been different. Strickland, 466 U.S. at 694; People v. Dupree, 2018 IL
122307, ¶ 44. A “reasonable probability” is a probability sufficient to undermine confidence in
the outcome. Strickland, 466 U.S. at 687; see also People v. Graham, 206 Ill. 2d 465, 476
- 19 - 1-24-0662
(2003). Strickland requires that a defendant’s claim be based on actual prejudice and not merely
speculation of prejudice. People v. Bew, 228 Ill. 2d 122, 135 (2008).
¶ 57 Defendant’s postconviction claim is that his trial counsel was ineffective for calling
certain character witnesses and not others. Additionally, defendant claims that counsel failed to
properly and adequately question the witnesses he did call in order to elicit testimony about
defendant’s reputation for peacefulness and truthfulness. The record shows that, even if counsel
acted in the manner defendant now argues he should have acted, it would not have altered the
outcome of the trial.
¶ 58 Even if trial counsel had been more successful in bolstering and establishing defendant’s
reputation, the evidence would not have been able to cover the internal inconsistencies in
defendant’s own testimony and the damage defendant did to his own credibility. Defendant
admitted at trial that he lied multiple times to the police after he was arrested. Even if defendant
previously had a reputation for truthfulness, he plainly admitted that he had already been
dishonest in this very case. The trial court found that defendant “totally obliterate[d] his
credibility” through his dishonesty and it is apparent that testimony from his close family and
friends about his character in the past would have been unlikely to change that perception. None
of the potential witnesses had any personal knowledge of the shooting that killed Maurice
¶ 59 The evidence of defendant’s guilt is such that the proffered evidence is insufficient to
show that, if counsel acted in the manner defendant suggests, the outcome of the trial would have
been any different. Both Atkins and Dawn Jones were eyewitnesses to the shooting. They both
testified that Matthews was not acting in a threatening way and did not have anything in his
hands when he approached defendant’s vehicle. Both eyewitnesses testified that defendant was
- 20 - 1-24-0662
the initial aggressor. Defendant admits taking out his gun and chambering a live round, despite
that he claims he had only taken out the gun to scare Matthews and never intended on using the
weapon.
¶ 60 Defendant’s testimony for how he ended up at Atkins’ house was even proved to be
dishonest. Defendant claimed that he went to Atkins’ house after she texted him at 11 p.m. to say
she was home so that he could come over. However, the phone records showed that defendant
called Atkins 13 times and sent her 5 text messages between 8:50 p.m. and 11:59 p.m while
Atkins only texted defendant twice that night, at 9:32 p.m. and 9:34 p.m. Defendant also told
police he was not at Atkins’ house that night and had never been there before. However, in his
own testimony, he testified that he was at Atkins’ home a few days before the shooting where
they hugged and kissed, and he further testified he was there again at the time of the shooting.
Defendant’s flight from the scene of the shooting and his lying to the police about being present
there are both inconsistent with self-defense and constitute strong evidence of his consciousness
of guilt. See People v. Walker, 2020 IL App (4th) 180774, ¶ 93 (lying to the police may be
considered evidence of consciousness of guilt); People v. Harris, 52 Ill. 2d 558, 561
(1972) (evidence of flight is admissible to show consciousness of guilt); People v. Wrancher,
2022 IL App (2d) 210134-U, ¶ 100 (failure to call police showed consciousness of guilt).
¶ 61 The court stated that it found Atkins to be credible and noted that her testimony was
corroborated by her mother and Dawn Jones as well as by the physical evidence. The evidence
offered by defendant in his postconviction petition, had it been introduced at trial, would not
have done anything to cause the trial court to decide the credibility issues differently. The trial
court found that defendant’s testimony was “truly incredible,” “ludicrous,” and “border[ed] on
the absurd.” Even if it was assumed defendant had a pristine reputation for honesty prior to trial,
- 21 - 1-24-0662
there is no reason to believe the trial court would have found ludicrous testimony to be credible.
In short, as the State points out, “no amount of character testimony could have rehabilitated
defendant’s own testimony about the shooting, [so] defendant fails to set forth a substantial
showing that he suffered the actual prejudice required by Strickland.” Because defendant has
failed to make the requisite showing of prejudice for an ineffective assistance of counsel claim,
the trial court did not err when it dismissed his postconviction petition. See Strickland, 466 U.S.
at 694 (to establish prejudice, a defendant must show that there is a reasonable probability that,
but for counsel’s conduct, the result of the proceedings would have been different).
¶ 62 Ineffective Assistance from Postconviction Counsel
¶ 63 Defendant also asserts on appeal that his privately retained postconviction counsel
provided him with ineffective assistance. Under the Post-Conviction Hearing Act, a petitioner is
entitled to a “reasonable level of assistance” from counsel. People v. Perkins, 229 Ill. 2d 34, 42
(2007). The reasonable level of assistance that must be provided to petitioners under the Act is
less than that afforded by the federal and state constitutions. People v. Pendleton, 223 Ill. 2d 458,
472 (2006). Whether postconviction counsel has provided a defendant with reasonable assistance
is reviewed de novo. Perkins, 229 Ill. 2d at 41; People v. Turner, 2023 IL App (1st) 191503,
¶ 22.
¶ 64 Defendant argues that the trial court noted many deficiencies with defendant’s
postconviction claims which demonstrated how postconviction counsel failed to fashion and
present defendant’s claims in an adequate manner. Defendant contends that postconviction
counsel should have attached an evidentiary affidavit from him. Defendant suggests that he could
have provided an evidentiary affidavit to demonstrate that he provided a list of character
witnesses to trial counsel before trial.
- 22 - 1-24-0662
¶ 65 However, postconviction counsel argued in the petition that defendant’s trial counsel
failed to call at least three witnesses at trial, and counsel produced three affidavits from these
prospective trial witnesses. It is unclear what an evidentiary affidavit from defendant would have
added to his claim as the affiants were identified and their affidavits supported the contentions
raised in the petition. Trial counsel selected two of the character witnesses from the potential
witnesses provided by defendant and opted not to go forward with the others. The affidavits
supplied by postconviction counsel facially supported the petition’s contention that trial counsel
had failed to call witnesses who could have provided material testimony to support defendant’s
theory of defense at trial. In addition, defendant had already testified in his own defense and
provided ample evidence in support of his theory of self-defense. He does not identify what more
he could have provided in an affidavit that could have potentially led to the success of his
postconviction claim.
¶ 66 Postconviction counsel was able to defeat the procedural argument raised by the State
that the petition was untimely by invoking the Covid-19 pandemic and the administrative
difficulties it caused for defendant.
¶ 67 With regard to the content of the character witnesses’ affidavits, defendant argues that
counsel should have pled the existence of prejudice and that counsel could have provided more
detail in the pleading. However, defendant does not point to anything in the record, or even
outside the record, that suggests the witnesses could have provided any further evidence or aided
him in establishing prejudice.
¶ 68 The trial court recognized that defendant attempted to demonstrate prejudice, but the
court ultimately concluded that no such prejudice could be established because the additional
character witnesses offered evidence that was essentially cumulative of the character evidence
- 23 - 1-24-0662
offered at trial. The trial court concluded that there was no indication that different questioning
or the calling of different character witnesses would have changed the result at trial. Defendant
likewise failed to overcome the presumption that counsel employed trial strategy in selecting the
witnesses, but there is no indication defendant could have surmounted this obstacle even if trial
counsel acted in the manner defendant suggests he should have acted. As the State points out,
“[c]ontrary to defendant’s claims, post-conviction counsel clearly raised prejudice under
Strickland, but as the circuit court recognized, the evidence simply was not enough to establish
that defendant suffered prejudice.”
¶ 69 Defendant also argues that the manner of postconviction counsel adding new claims by
supplementing the petition instead of amending it was a deficient and unreasonable presentation
of his claims. However, defendant’s claims were not dismissed because of the manner in which
they were presented. The State did not press any objection about the supplements and addressed
the matters on the merits. Similarly, the trial court addressed the merits of the added claims and
did not dismiss them on a procedural basis but on a substantive one.
¶ 70 Finally, defendant argues that postconviction counsel failed to adequately support the
additional claims raised in supplementary filings. In supplements to his petition, defendant
asserted claims that trial counsel failed to adequately cross-examine Atkins’ mother and the
medical examiner and that counsel failed to adequately examine the two character witnesses who
did testify at trial. Defendant contends that postconviction counsel failed to provide reasonable
assistance by virtue of failing to provide any affidavits from Guilbo or Binion to detail what they
would have testified about if properly examined. Defendant also contends that postconviction
counsel failed to provide reasonable assistance with regard to the supplemental claims regarding
- 24 - 1-24-0662
Atkins’ mother and the medical examiner by failing to describe what they might have said in
their testimony if they were properly examined.
¶ 71 The Supreme Court recently held that postconviction counsel’s performance cannot be
deemed unreasonable “simply because his arguments were without merit or because he was
unable to make the petition’s allegations factually sufficient to require the granting of relief.”
People v. Williams, 2025 IL 129178, ¶ 46. This is essentially what defendant asks us to find here.
Where, as here, the postconviction petition properly states the gist of a constitutional claim but
fails on the merits, counsel has generally not provided unreasonable assistance. Id. We are not
required to assume that the facts outside the record would have been favorable to defendant had
postconviction counsel simply found them. Id. at ¶ 47. Defendant has failed to show that the trial
court erred when it dismissed his postconviction petition at the second stage and he has failed to
show that he received unreasonable assistance from his postconviction counsel.
¶ 72 CONCLUSION
¶ 73 Accordingly, we affirm.
¶ 74 Affirmed.
- 25 -