NOTICE 2023 IL App (4th) 220701-U FILED This Order was filed under September 21, 2023 Supreme Court Rule 23 and is NO. 4-22-0701 Carla Bender not precedent except in the 4th District Appellate limited circumstances allowed IN THE APPELLATE COURT Court, IL under Rule 23(e)(1). OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) McLean County DEANDRE DANIELS, ) No. 12CF1193 Defendant-Appellant. ) ) Honorable ) John Casey Costigan, ) Judge Presiding.
JUSTICE STEIGMANN delivered the judgment of the court. Justices Cavanagh and Harris concurred in the judgment.
ORDER
¶ 1 Held: The appellate court affirmed the trial court’s denial of defendant’s postconviction petition following an evidentiary hearing.
¶2 In November 2013, a jury found defendant, Deandre Daniels, guilty of attempt
(first degree murder) (720 ILCS 5/8-4, 9-1 (West 2012)), aggravated battery with a firearm (id.
§ 12-3.05(e)(1)), aggravated discharge of a firearm (id. § 24-1.2(a)(2)), and unlawful possession
of a weapon by a felon (id. § 24-1.1(a)). The trial court sentenced defendant to 47 years in
prison. Defendant appealed his conviction and sentence, and this court affirmed. People v.
Daniels, 2016 IL App (4th) 140131, ¶ 2, 58 N.E.3d 902.
¶3 In June 2018, defendant filed an amended postconviction petition pursuant to the
Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(f) (West 2018)), arguing that (1) trial
counsel provided ineffective assistance by (a) failing to investigate and present an alibi defense
and (b) failing to impeach the testimony of Raymond Davis and (2) defendant was actually innocent as shown by new affidavits from Jamell Jamison and Davis.
¶4 In March 2022, the trial court conducted a third-stage evidentiary hearing on
defendant’s petition. After receiving testimony from defendant’s trial counsel and witnesses, the
court denied defendant’s petition.
¶5 Defendant appeals, arguing that the trial court erred by denying defendant’s
petition after a third-stage evidentiary hearing because (1) defendant’s “claim of actual
innocence was arguably meritorious” and (2) defendant made a substantial showing of
ineffective assistance of counsel. We disagree and affirm.
¶6 I. BACKGROUND
¶7 Because this case comes to us on a denial of defendant’s postconviction petition
at the third stage, we discuss only the facts relevant to that decision and those necessary to
provide sufficient context. A more thorough discussion of the facts can be found in the opinion
that resulted from defendant’s direct appeal. Daniels, 2016 IL App (4th) 140131, ¶¶ 4-60.
¶8 A. The Charges Against Defendant and the Jury Trial
¶9 In November 2012, the State charged defendant with attempt (murder) (720 ILCS
5/8-4, 9-1 (West 2012)), aggravated battery with a firearm (id. § 12-3.05(e)(1)), aggravated
discharge of a firearm (id. § 24-1.2(a)(2)), and unlawful possession of a weapon by a felon (id.
§ 24-1.1(a)). The charges alleged that on November 5, 2012, defendant used a firearm to shoot
Robert Jackson in the leg.
¶ 10 In November 2013, the trial court conducted defendant’s jury trial.
¶ 11 1. The State’s Evidence
¶ 12 a. Law Enforcement Testimony
¶ 13 Bloomington police officer Eric Riegelein testified that at approximately 4:16
-2- p.m. on November 5, 2012, he responded to a call of a shooting on Orchard Road in
Bloomington. When he arrived on the scene, he saw Marcus Winlow awake and lying on the
ground. Michelle Brown, Winlow’s mother, was holding a bloody cloth against a gunshot wound
on Winlow’s body. Robert Jackson was nearby, leaning on the front of a car, and he appeared to
have been shot in the left thigh. Nobody at the scene informed Riegelein what had happened.
¶ 14 Detective Jared Roth of the Bloomington Police Department testified that he was
the lead investigator in the Orchard Road shooting. During his investigation, Roth determined
that the shooting arose from a rivalry between two rap groups—M.O.B. (which stood for
“Money Over Bitches”) and B.O.M. (which stood for “Blackout Mafia”). Roth stated that he
received “extremely little cooperation” from the eyewitnesses.
¶ 15 Bloomington police officer Michael Luedtke testified that on November 5, 2012,
he responded to a call on Orchard Road. He observed Winlow lying in the road next to a parked
car and Jackson sitting on the hood of that car. Winlow had a wound to his abdomen. Jackson
had a bullet wound on his left thigh. Jackson told Luedtke that “he was just standing there” and
did not know who had shot him.
¶ 16 Luedtke testified further that he interviewed Brown, who approached him at the
scene of the shooting and told him she saw a group of people shoot at Winlow and Jackson. She
said she was walking out of her residence when she saw “a group of black males run up on
Marcus and Robert.” Brown said she saw “Pimp” (defendant), Jake Williams, Kenny King, “S
Dot” (Qunshawn Gardner), and “Play” (Anton Smith) “run up on” Winlow and Jackson. Brown
told Luedtke that she saw defendant shoot at Jackson five times with a black gun.
¶ 17 b. Michelle Brown
¶ 18 Brown testified that she was Winlow’s mother and she lived next door to him; she
-3- resided at 1213 Orchard Road in Bloomington and Winlow resided at 1215 Orchard Road.
Winlow used to make rap music and went by the nickname “Li’l Dude.” She also identified
defendant in open court and testified that he was known as “Pimp.” Brown further stated that she
was familiar with people nicknamed “Play,” “Jake,” “Thoon,” “Mooch,” and “Pimp.” Brown
was also familiar with Kaythiese Fitch, a friend of Winlow’s, who went by the nickname “KK.”
¶ 19 Brown testified that on the afternoon of November 5, 2012, she was at her
residence when one of her other children came into the house screaming that Winlow had been
shot. Brown ran outside and found Winlow lying on the ground outside her home with a gunshot
wound in his back. Brown testified that she did not know who had shot her son.
¶ 20 The State confronted Brown with statements she made to the police immediately
after the shooting and to the grand jury, including that she had been present for the shooting and
had seen defendant shoot her son. She had also identified several other individuals who were
with defendant when he shot Winlow. However, at trial, Brown denied that she had made those
statements, testifying that she either did not recall making such statements or she had lied.
¶ 21 The State then introduced an affidavit written by Brown prior to trial, which
stated that she wished to “remove [her] statement as the witness in this case.” In the affidavit,
Brown said that she did not see “Jake Williams, [defendant], Qunshawn Gardner, Anton Smith,
Kenneth King, or Raymond Davis at the crime scene.” She wanted all the charges to be dropped
and stated that she would not testify at trial. She ended the affidavit by saying that she was not
coerced into writing the affidavit; however, she also concluded by writing, “I would like all the
gentlemen upon release to be ordered to attend several churches and give their testimonies while
they thank God for a second chance in life.”
¶ 22 The State also played for the jury a video-recorded interview of Brown conducted
-4- by the police on November 5, 2012, just after the shooting had occurred. Brown told the police
that prior to the shooting, she was walking on Orchard Road behind Winlow and Kaythiese
Fitch, who both stopped to talk to Jackson. As the three were talking, a group of other men
approached them. The other group included defendant, Williams, Gardner, King, Smith, and
approximately four other people. Fitch and Smith began fighting. Williams pulled out a gun and
shot Winlow one time. Williams then ran off. Fitch and Jackson ran toward a nearby “gangway.”
Defendant pulled out a gun and fired approximately four times in the direction Fitch and Jackson
had run, shooting Jackson in the leg. However, Brown clarified that she did not actually see
Jackson get shot. Gardner also had a gun and pointed it at Brown when she accidentally picked
up Gardner’s jacket. Brown stated further that Raymond Davis, who was also present, was
carrying a gun and wearing dreadlocks.
¶ 23 c. Robert Jackson
¶ 24 Jackson testified that he was shot in the left thigh on November 5, 2012. Jackson
said that he was friends with Winlow and Fitch but was not familiar with B.O.M. or M.O.B.
Neither he nor Winlow made rap music, but Fitch did. Jackson said he was walking by himself in
a vacant lot on Orchard Road when he was shot. He did not see who shot him.
¶ 25 d. Raymond Davis
¶ 26 Davis testified that on the afternoon of November 5, 2012, he was at King’s
apartment in the 1200 block of Orchard Road. Defendant was also there. Davis, King, and
defendant made hip-hop music together in a group called “M.O.B., Members of Business,” and
they were making hip-hop music together that day at King’s apartment.
¶ 27 While Davis was at King’s apartment, Winlow and Fitch were there, and Davis
got into a fistfight with Winlow. After the fight ended, Davis, King, and defendant walked over
-5- to defendant’s apartment and listened to music. Gardner and Smith joined them there. Davis
testified further that after staying at defendant’s apartment for approximately 10 or 15 minutes,
the group decided to record music at a studio “off the highway” in Normal, Illinois.
¶ 28 Davis, defendant, King, and Gardner got in a van and drove back to King’s
apartment to retrieve King’s phone before heading to the studio. As they walked from the van to
King’s apartment, a group of people ran up and attacked them. Davis stated that he was in the
street near a big, grassy field. One of the attackers hit Davis in the face, but as he prepared to
defend himself, he then heard gunshots and ran back to the van, along with King and
Gardner. Defendant did not return to the van.
¶ 29 Davis testified further that on November 5, 2012, he had cheek-length dreadlocks.
¶ 30 2. Defendant’s Evidence
¶ 31 Brandi Guzouskis testified that on November 5, 2012, she lived at 1214 Orchard
Road. Guzouskis was at home that day when, at approximately 4:15 p.m., she heard “about five”
gunshots. The balcony to Guzouskis’s apartment overlooked the vacant lot on Orchard Road.
After she heard gunshots, Guzouskis looked out her balcony door and saw several men walking
east. She called 911 and told them that a black male with a white tank top, dark jeans, and
dreadlocks had a gun. She then saw the same man shoot the gun two times while aiming toward
the north. She saw two men on the ground.
¶ 32 Anthony Gibson testified that on November 5, 2012, he was working at Lube Pros
just off of Orchard Road. At approximately 4:16 p.m., he heard between six and eight gunshots.
Gibson thought he had heard kids playing with fireworks. The shots came in two waves: “a few
gunshots, then there was a pause, and there was a pause and then there was a few more.” Gibson
did not see who fired the gunshots but saw people running.
-6- ¶ 33 Brittany Van Buren testified that she was defendant’s girlfriend. She stated that
on November 5, 2012, defendant had short hair and did not have dreadlocks. She said that
defendant did not own a gun.
¶ 34 The jury found defendant guilty of all charges. As to the charge of attempt
(murder), the jury also found that defendant personally discharged a firearm that proximately
caused great bodily harm or permanent disfigurement to another person.
¶ 35 In January 2014, the trial court sentenced defendant to 47 years in prison.
Defendant appealed, and this court affirmed. Daniels, 2016 IL App (4th) 140131, ¶ 105.
¶ 36 B. The Postconviction Proceedings
¶ 37 1. The Petition
¶ 38 In August 2017, defendant pro se filed a petition for postconviction relief
pursuant to the Act. See 725 ILCS 5/122-1 (West 2016). In October 2017, the trial court
advanced the petition to the second stage and appointed counsel.
¶ 39 In June 2018, defendant filed an amended postconviction petition, arguing that
(1) trial counsel provided ineffective assistance by (a) failing to investigate and present an alibi
defense and (b) failing to impeach the testimony of Raymond Davis and (2) defendant is actually
innocent as shown by a new affidavit from Jamell Jamison and a recantation from Raymond
Davis.
¶ 40 2. The Proceedings
¶ 41 In July 2018, the State filed a motion to dismiss defendant’s petition, which, in
January 2019, the trial court granted. Defendant appealed and, in August 2020, this court
reversed the court’s dismissal of defendant’s petition for postconviction relief with instructions
to conduct a third-stage evidentiary hearing, concluding that based upon the Illinois Supreme
-7- Court’s then-recent decision in People v. Robinson, 2020 IL 123849, 181 N.E. 3d 37, defendant
made a sufficient showing that he was entitled to a third-stage evidentiary hearing. People v.
Daniels, 2020 IL App (4th) 190723-U, ¶ 64.
¶ 42 In March 2022, the trial court conducted an evidentiary hearing on defendant’s
postconviction petition. Although Maurice Sutton and Tylon McAllister had submitted affidavits
that were attached to the petition, defendant did not call them to testify at the hearing. However,
Davis and Jamison did testify on defendant’s behalf.
¶ 43 a. The Actual Innocence Claim
¶ 44 i. Jamell Jamison
¶ 45 Jamell Jamison testified that he had a “vague recollection” of events that
happened on the day of the shooting. He testified that he saw a group of people having an
“altercation” outside on Orchard Road, “maybe it was a fight, scuffle, something like that.”
Jamison saw a tall black man with long hair armed with a weapon among the group. Jamison
stated that defendant was not the man with the gun, nor was defendant even present for the
altercation. Jamison said that he heard a gunshot and ran toward his family members’ apartment,
dropping his phone as he ran. He later contacted the police station in an attempt to locate his
dropped phone but chose not to report what he had seen.
¶ 46 On cross-examination, Jamison testified that he had never personally met
defendant but recognized him from pictures in the newspaper or from YouTube videos. When
asked why he did not come forward with this information sooner, Jamison responded that he
hoped the situation would work itself out and he did not want to be involved with the
“courtroom.” When asked why he then decided to sign an affidavit in 2018 (approximately five
years posttrial), Jamison said, “I think my conscience just was heavy at that moment.”
-8- ¶ 47 Jamison testified that he did not know that the rap groups M.O.B. and B.O.M.
were going to meet outside on Orchard Road. The State then asked Jamison if he recalled writing
in his 2018 affidavit that he knew the two groups were going to be meeting up that day to
“squash their beef.” Jamison said he did not remember. The State then impeached Jamison
regarding his criminal record, which included receiving stolen goods in 2007, attempting to
obstruct justice in 2008, obstructing justice and misuse of a credit card in 2009, obstructing
identification in 2017, and attempted forgery in 2019. Jamison claimed that he did not remember
the convictions from 2007 and 2009.
¶ 48 ii. Raymond Davis
¶ 49 Raymond Davis testified regarding what he had testified to at defendant’s trial in
2013. Specifically, Davis acknowledged that he had previously testified that on November 5,
2012, he went to Kenny King’s apartment to make music and, upon arriving, he saw Winlow and
Kaythiese Fitch. Davis got into a fistfight with Winlow. After the fight, Davis went to
defendant’s apartment and listened to music. Ten or fifteen minutes later, Davis, defendant,
King, Gardner, and Smith left the apartment to record music at the studio. The group got into a
van and drove to King’s apartment to retrieve King’s phone. As the group walked from the van
towards King’s apartment building, a group of people attacked them. Davis was punched in the
face, heard gunshots, and ran back to the van; defendant was not with them.
¶ 50 After acknowledging his previous testimony from 2013, Davis then testified that
in 2017, he signed an affidavit recanting that testimony. Davis instead claimed that defendant did
not go with the group to King’s apartment and was not present at the shooting.
¶ 51 The State asked Davis several times why he originally testified that defendant was
present at the shooting. Davis first said he was “under the distress like they was just asking a
-9- bunch of questions and I was just saying yeah to them, like saying yes or no to them, and I ended
up saying yes.” Regarding the trial testimony, the State asked Davis whether he lied, and Davis
said, “It wasn’t really a lie; I just I wasn’t really sure at that time.” However, Davis did later
acknowledge that he lied to detectives in an attempt to “use the defendant as an alibi.” Davis said
that at trial he told a public defender that defendant was not present.
¶ 52 The State impeached Davis’s credibility with his prior convictions for aggravated
battery in 2012 and retail theft in 2011. The State asked Davis if he had any more convictions
since the 2013 trial, and he answered, “like driving and stuff.” The State reminded him of his
2017 conviction for obstructing justice.
¶ 53 b. The Ineffective Assistance of Counsel Claim
¶ 54 i. Maurice Sutton
¶ 55 Maurice Sutton testified that on November 5, 2012, he was in defendant’s
apartment with Tylon McAllister, King, defendant, and “a few other people” Sutton
acknowledged that they were in the rap group M.O.B. Sutton said that he and the other M.O.B.
members were preparing to go to the studio to make rap music that day. They traveled to the
studio in “a few cars.” Sutton said that he rode in the same vehicle as McAllister and defendant,
and everybody else rode in another car. However, before the entire group could go to the studio,
King had to go get his phone because it had the raps they were going to record.
¶ 56 Sutton testified that he, defendant, and McAllister waited at defendant’s
apartment while King and several other people went to King’s apartment. During that time,
defendant’s girlfriend came home. Sutton said there was a spat between her and defendant about
them packing to go out of town. Sutton claimed that defendant then told them to leave without
him because he was going to stay and pack. Sutton said that he and McAllister then went directly
- 10 - to the studio and waited for the others to call them, but nobody showed up. He claimed to find
out later that “the situation had happened.” Sutton said that he was never contacted, questioned,
or approached by anyone about the incident, including by police or defendant’s trial counsel. He
remembered signing the affidavit in 2016.
¶ 57 The State impeached Sutton with his criminal record, including obstructing justice
in 2007, aggravated battery in 2008, and residential burglary in 2009.
¶ 58 ii. Tylon McAllister
¶ 59 McAllister testified that on November 5, 2012, he was in defendant’s apartment
with defendant, King, Davis, Sutton, and defendant’s cousin. They were planning to go to the
recording studio later that day. McAllister testified that the group were members of M.O.B.
McAllister testified that he drove himself and Sutton to the studio without defendant, who never
left his apartment. McAllister claimed that defendant stayed home that day and did not leave
with the others because he and his girlfriend had an argument about him staying to pack for a trip
the next day instead of going to the studio. The other members left defendant’s apartment in a
van driven by defendant’s cousin, Rodney Lane, and were supposed to meet up with them at the
studio.
¶ 60 McAllister stated that he never spoke to police, the State, or defense counsel
about any of those events. He testified that he respected defendant, who was like a mentor to
him. The State impeached McAllister regarding his criminal record. When asked if he had any
criminal convictions, McAllister replied, “traffic tickets, maybe.” The State noted that he had
been convicted of retail theft in 2011 and theft by deception in 2013.
¶ 61 iii. Rodney Lane
¶ 62 Lane said that on the morning of the shooting, he drove a van that belonged to a
- 11 - girl he was seeing to defendant’s house. Along the way, he picked up King, “something Dot,”
and “some Ski or something.” Lane said that when they arrived, defendant was in his apartment
waiting on his girlfriend to call. He testified that when he left defendant’s apartment, several
people asked to be dropped off at various places that he initially claimed not to recall. Lane
claimed that that he dropped off King, “S Dot,” and “that other guy, Ski or something,” at
Culver’s.
¶ 63 Lane remembered talking to the police about the case. He recounted that he was
with his girlfriend when the police knocked on his door. He answered the door and provided
identification when requested. The police accused him of being “at a scene.” Lane denied it and
told the police, “[N]o, I just dropped somebody off.” Lane claimed that the police threatened to
take his girlfriend’s van.
¶ 64 Lane said that he was subpoenaed for defendant’s jury trial in 2013 and he
traveled from Chicago to the McLean County courthouse, but after arriving, he was told by a
“gentleman” that he was not needed. Lane left the courthouse without testifying at trial. He said
that he was always willing to testify that defendant was not in the van when Lane left
defendant’s apartment. Lane also said that he did not see any shooting or fighting and did not
know who was present on Orchard Road that day.
¶ 65 iv. John Prior
¶ 66 John Prior testified as a State’s witness that he worked as a private attorney and
was appointed on February 21, 2013, to represent defendant at trial due to a conflict of interest
with the public defender. During his testimony, Prior had with him the notes he had taken during
his representation of defendant. Prior testified that in preparation for defendant’s trial, he
observed Jake Williams’s trial, which stemmed from the same shooting incident, to determine
- 12 - what evidence might be brought against defendant. Based on his observations, he believed that
Michelle Brown (Winlow’s mother) would become a key witness in defendant’s case.
¶ 67 Prior testified that he and defendant discussed an alibi defense as early as
February 27, 2013, days after being appointed trial counsel. Regarding the alibi defense,
defendant told Prior that (1) he did not go to the shooting and (2) McAllister and Sutton could
corroborate his story. Defendant provided contact information for McAllister but not Sutton.
¶ 68 Prior testified that he called McAllister but was not able to get hold of him. Prior
surmised that he likely left a message. Based on the lack of notes for Sutton’s contact
information, Prior said that he did not think he ever received any contact information for him.
Prior said that, according to his notes, after discussing the alibi defense with defendant, Prior
obtained a private investigator to find McAllister. He said that by the time he obtained the
investigator, he would not have needed to locate McAllister because he and defendant had
already agreed to abandon the alibi defense. Prior believed the investigator was instead used to
locate Guzouskis, who witnessed the shooting and called the police.
¶ 69 Prior determined that McAllister had a conviction for retail theft and Sutton had
felony convictions for obstructing justice, destroying evidence, providing false information, and
residential burglary. Prior considered McAllister’s, and especially Sutton’s, impeachability as a
big concern for a successful alibi defense. Further, Prior did not believe that alibi defenses were
considered good defenses by juries, citing a 2021 legal magazine article that discussed the risks
of an alibi defense—namely, that it would be a fatal mistake for an alibi defense to depend upon
witnesses who are not credible. Accordingly, Prior believed that raising the alibi defense in
defendant’s case would have been a fatal mistake. Instead, Prior decided that it would be better
for the defense to keep the jury’s focus on weaknesses in the State’s case. Defendant agreed.
- 13 - ¶ 70 Prior also testified that he spoke with Van Buren, defendant’s girlfriend, and “was
able to talk to her about their trip to Florida and things like that.” Van Buren was called to testify
at trial to corroborate defendant’s assertion that he did not have dreadlocks. Prior stated that
“[t]he only thing that she did say that when she got home, and she got home about 4:30, that
[defendant] was already there.” Prior explained it was “kind of” good testimony for defendant
because “the incident was reported at 4:16.” However, the distance between the shooting
location and defendant’s apartment was a five-minute drive or a short jog or sprint. Because Van
Buren was not with defendant at the time of the shooting and “the distance was too short,” she
was not used as an alibi witness.
¶ 71 Prior testified that he and defendant discussed his concerns about a potential alibi
defense. First, Prior believed the alibi defense simply would not be very good based on the
evidence. Second, Prior believed defendant was present at the shooting based on a conversation
he had with defendant, during which defendant did not deny being at the shooting and gave a
smirk or a smile that Prior interpreted as confirming defendant’s presence at the shooting. Prior
insisted to defendant that after looking at the evidence, he could not allow defendant to commit
perjury at trial by testifying and would have had to withdraw as counsel. Further, Prior believed
defendant’s testifying would have been a bad idea considering his prior convictions for theft in
2005, manufacture/delivery of a narcotic in 2005, and driving while license revoked in 2012.
Despite deciding not to pursue an alibi defense, Prior believed that Van Buren’s testimony might
get most of the relevant alibi defense information before the jury without the defense having to
file its intention to raise an alibi defense.
¶ 72 Prior was asked why he did not impeach Davis at trial. Prior testified that before
defendant’s trial took place, Davis had received only 180 days in jail and 24 months of probation
- 14 - for a Class X felony gun charge. Prior was concerned it would appear to the jury as if defendant
was more likely the shooter based upon the more serious charges he faced. Prior asserted that it
would have been more prejudicial than probative for defendant if Davis was impeached.
¶ 73 Prior also explained his tactical decision not to call Lane as a witness. Prior had
difficulty finding Lane because defendant could not tell him where he was at or give him any
contact information. Even if Lane was called as a witness, based on Prior’s discussions with
defendant, Lane’s alibi testimony would have amounted to saying defendant was not at the
shooting, which Prior believed would not be as strong of a case as focusing on the weaknesses in
the State’s case. Further, Prior also believed that Lane was not a key witness because there were
multiple ways that defendant could have gone from his own apartment to the Orchard Road
shooting location with or without Lane. Ultimately, Prior and defendant decided together not to
pursue the alibi defense.
¶ 74 Instead of the alibi defense strategy, Prior elected to focus on impeaching Brown,
an important witness to the State. Also, Prior believed that the likelihood of multiple shooters,
including one with dreadlocks, plus cartridge cases that did not match the .45-caliber handgun
recovered during the investigation of the shooting, could leave a factfinder wondering if the
victims were shot by defendant or someone else.
¶ 75 On cross-examination, Prior described statements made by Stephen Shenkel, a
jailhouse informant who, at the request of law enforcement, wore a wire to surreptitiously record
a conversation with defendant. Shenkel recorded defendant (1) saying that he was in his
apartment’s bathroom when everybody else left and (2) lamenting that Prior explained that his
decision not to call Shenkel as a witness was to avoid additional problems for the defense.
Specifically, “Shenkel said that [defendant] had told him that they had threatened—it was
- 15 - probably Michelle Brown—and she wasn’t going to show up.”
¶ 76 c. The Trial Court’s Decision
¶ 77 In July 2022, the trial court issued its written order (1) finding that defendant did
not meet his burden to establish his claims of actual innocence or ineffective assistance of
counsel and (2) denying his petition for postconviction relief.
¶ 78 The trial court wrote that it found Prior’s testimony to be credible. The court also
found that (1) Sutton’s and McAllister’s testimony would be merely conflicting with Brown’s
statement; (2) Jamison and Davis were subject to scrutiny and impeachment; (3) Lane did not
provide a complete alibi; and (4) regardless of whether defendant had dreadlocks, the evidence
presented was not inconsistent with there being more than one shooter. Further, the court stated
that it was “not convinced there is a prejudice or a reasonable probability the result of the
proceedings would have been different if an alibi defense was presented.”
¶ 79 The trial court concluded its order, writing as follows:
“The Court has considered [defendant’s] claims based upon the totality of
the evidence. The jury heard the recorded eyewitness testimony of Michelle
Brown that [defendant] shot Robert Jackson in the leg. The jury found that
testimony convincing. The fact that witnesses now come forward with conflicting
testimony and recant prior testimony does not convince the Court that it would
probably change the result on retrial. Further, the Court does not believe trial
counsel was ineffective as he pursued a sound trial strategy that [defendant] was
not the shooter and the State could not prove [defendant] was the shooter based
upon Michelle Brown’s recorded statement. Brandy Guzovskis [sic] saw a shooter
with dreadlocks and [defendant] did not have dreadlocks. Yet, this does not
- 16 - eliminate [defendant] as the first shooter. Counsel researched and knew the
potential pitfalls of presenting an alibi defense and made the sound trial strategy
not to present such a defense. This Court believes [defendant] knew of counsel’s
trial strategy and acquiesced to the same. Unfortunately, for [defendant,] the jury
found Michelle Brown’s recorded statement convincing, and the Court believes
the verdict was supported by the evidence. The Court finds [defendant] has failed
to meet his burden to establish a claim of ineffective assistance of counsel. The
Court further finds that [defendant] has failed to show actual innocence.”
¶ 80 This appeal followed.
¶ 81 II. ANALYSIS
¶ 82 Defendant appeals, arguing that the trial court erred by denying his petition after a
third-stage evidentiary hearing because (1) defendant’s “claim of actual innocence was arguably
meritorious” and (2) defendant made a substantial showing of ineffective assistance of counsel.
We disagree and affirm.
¶ 83 A. The Applicable Law and Standard of Review
¶ 84 1. The Act
¶ 85 The Act provides a criminal defendant the means to redress substantial violations
of his constitutional rights that occurred in his original trial or sentencing. Robinson, 2020 IL
123849, ¶ 42; 725 ILCS 5/122-1(a)(1) (West 2018). “A postconviction proceeding is not a
substitute for a direct appeal, but rather is a collateral attack on a prior conviction and sentence.”
People v. Davis, 2014 IL 115595, ¶ 13, 6 N.E.3d 709.
¶ 86 Proceedings under the Act are divided into three stages. People v. English, 2013
IL 112890, ¶ 23, 987 N.E.2d 371. Relevant here, at a third-stage hearing, “the trial court acts as a
- 17 - factfinder, making credibility determinations and weighing the evidence. *** Accordingly, we
review the court’s decision to deny relief for manifest error.” People v. Reed, 2020 IL 124940,
¶ 51, 182 N.E.3d 64. “Manifest error is clearly evident, plain, and indisputable. *** Thus, a
decision is manifestly erroneous when the opposite conclusion is clearly evident.” (Internal
quotation marks omitted.) People v. Coleman, 2013 IL 113307, ¶ 98, 996 N.E.2d 617.
¶ 87 2. Actual Innocence
¶ 88 “To succeed on a claim of actual innocence, a defendant must present [(1)] new,
[(2)] material, noncumulative evidence [(3)] that is so conclusive it would probably change the
result on retrial.” People v. Carter, 2021 IL App (4th) 180581, ¶ 56, 188 N.E.3d 391. The trial
court must consider whether that new evidence “undercuts the court’s confidence in the factual
correctness of the guilty verdict.” Coleman, 2013 IL 113307, ¶ 97. “[T]he new evidence
supporting an actual innocence claim need not be entirely dispositive to be likely to alter the
result on retrial.” Robinson, 2020 IL 123849, ¶ 56. “Probability, not certainty, is the key as the
trial court in effect predicts what another jury would likely do, considering all the evidence, both
new and old, together.” Coleman, 2013 IL 113307, ¶ 97.
¶ 89 3. Ineffective Assistance
¶ 90 All defendants enjoy the constitutional right to effective assistance of counsel.
U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. “To prevail on a claim of ineffective
assistance of counsel, a defendant must demonstrate that (1) counsel’s performance was deficient
and (2) the deficient performance prejudiced the defendant.” People v. Pope, 2020 IL App (4th)
180773, ¶ 61, 157 N.E.3d 1055; Strickland v. Washington, 466 U.S. 668, 687 (1984)).
¶ 91 To establish deficient performance, a defendant must show his counsel’s
performance fell below an objective standard of reasonableness so that counsel’s performance
- 18 - undermined the proper functioning of the adversarial process to such an extent that the defendant
was denied a fair trial. Harrington v. Richter, 562 U.S. 86, 110 (2011) (citing Strickland, 466
U.S. at 687).
¶ 92 To show prejudice, a defendant must demonstrate “that there is a ‘reasonable
probability that, but for counsel’s unprofessional errors, the result of the proceeding would have
been different.’ ” People v. Domagala, 2013 IL 113688, ¶ 36, 987 N.E.2d 767 (quoting
Strickland, 466 U.S. at 694). “The likelihood of a different result must be substantial, not just
conceivable.” Harrington, 562 U.S. at 112. “A defendant must satisfy both prongs of the
Strickland test and a failure to satisfy any one of the prongs precludes a finding of
ineffectiveness.” People v. Simpson, 2015 IL 116512, ¶ 35, 25 N.E.3d 601.
¶ 93 B. This Case
¶ 94 As an initial matter, defendant emphasizes several times in his brief that the trial
court failed to make credibility findings regarding Jamison’s and Davis’s testimony. However,
the absence of an explicit credibility finding is of zero consequence to this case. We reiterate
what we wrote in Carter, 2021 IL App (4th) 180581, ¶ 77:
“The trial court is not required to do anything more at a third-stage hearing
than it is required to do when conducting a bench trial. The fundamental
difference between the two is that at a third-stage hearing, the court is not called
upon to assess guilt or innocence but instead to apply a specific test ***. In
performing this task, the court is not required to make any explicit findings or
discuss what evidence it found credible or not credible any more than it would be
required to make such explicit findings to explain its decision after conducting a
bench trial. (We are quick to add that many judges believe it a good practice to
- 19 - provide such an explanation, and we do not dispute that. All we are saying is that
such explanations are not legally required.)” (Emphasis in original.)
¶ 95 With that said, we thank the trial court for its carefully written order, in which the
court concisely discussed (1) the evidence that it received at the third-stage evidentiary hearing
and (2) the appropriate law. Further, we note that the court’s order implicitly addressed the
credibility of Jamison and Davis. For example, the court wrote that it did not dispute that
defendant wore his hair short but (1) pointed out that Jamison’s testimony regarding defendant’s
presence at the shooting was “directly contrary to evidence the State presented [and] Jamison
*** was subject to impeachment”; (2) juxtaposed Jamison’s testimony with that of the trial
witnesses, concluding that it would not probably change the result on retrial; and (3) juxtaposed
Davis’s testimony with Brown’s recorded testimony, highlighting the fact that Davis was
recanting his prior testimony.
¶ 96 1. The Actual Innocence Claim
¶ 97 First, defendant argues that the trial court erred by finding that his actual
innocence claim failed because Jamison’s and Davis’s testimony that (1) defendant was not
present at the shooting and (2) the shooter had long hair creates “a probability that the jury would
have come to a different outcome.” We disagree.
¶ 98 As the trial court pointed out in its written order, defendant’s new evidence
merely conflicts with the statement Brown gave in the immediate aftermath of the shooting,
which the jury heard and clearly gave great weight. Further, the court explicitly found that
Jamison and Davis were not credible, noting that Jamison’s credibility was impeached by his
prior convictions and Davis’s testimony materially contradicted his trial testimony. Ultimately,
the court weighed the credibility of the witnesses and determined that their testimony was not
- 20 - conclusive such that it would probably change the result on retrial.
¶ 99 Because nothing in the record shows that defendant’s claim of new evidence is so
conclusive that it would probably change the result on retrial (id. ¶ 56), the trial court’s denial of
defendant’s actual innocence claim was not against the manifest weight of the evidence.
¶ 100 2. The Ineffective Assistance of Counsel Claim
¶ 101 Defendant also argues that trial counsel was ineffective for failing to
(1) investigate alibi witnesses and (2) impeach Davis’s testimony. We disagree.
¶ 102 We note that “[a]ny time a trial court serves as a fact finder, perhaps the single
most important thing the court can do is say whom it believes and whom it does not. When the
trial court favors us with such a finding, we are at the height of our deference to that court.” Id.
¶ 68.
¶ 103 With that principle in mind, we thank the trial court for its credibility findings
regarding Prior’s testimony. Based on those findings and the record, we conclude that Prior’s
performance was not deficient.
¶ 104 As the trial court pointed out, Prior spent hundreds of hours on the case, kept
defendant informed of his trial strategy not to pursue an alibi defense, and made a reasoned
decision not to impeach Davis. To establish deficient performance, “[a] defendant must
overcome the strong presumption that the challenged action or inaction might have been the
product of sound trial strategy.” People v. Davis, 2023 IL App (1st) 220231, ¶ 29. Further, the
fact that counsel’s chosen trial strategy was ultimately unsuccessful does not establish that
counsel’s performance was deficient. People v. Vidaurri, 2023 IL App (1st) 200857, ¶ 62, 212
N.E.3d 615. Given Prior’s reasonable and detailed explanations for his strategic decisions, we
conclude that Prior’s performance was not deficient. Accordingly, the court did not err by
- 21 - denying defendant’s ineffective assistance claim.
¶ 105 III. CONCLUSION
¶ 106 For the reasons stated, we affirm the trial court’s judgment.
¶ 107 Affirmed.
- 22 -