FIFTH DIVISION November 5, 2010
1-08-2841
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) 92 CR 5788 ) DANIEL GARCIA, ) The Honorable ) Marcus R. Salone, Defendant-Appellant. ) Judge Presiding.
JUSTICE TOOMIN delivered the opinion of the court:
In the present appeal, we consider a postconviction claim premised, in part, on the
findings of an allegedly discredited serologist. During the course of second-stage proceedings,
the State’s motion to dismiss was granted. Defendant appeals contending: (1) an evidentiary
hearing is required to assess his claims regarding the testing of physical evidence, ineffectiveness
of counsel, and the availability of testing to support his claim of actual innocence; (2) he made a
substantial showing of ineffectiveness of appellate counsel and a violation of his due process
rights; and (3) postconviction counsel’s performance violated the mandate provided under
Supreme Court Rule 651(c) (134 Ill. 2d R. 651(c)). For the reasons that follow, we affirm. 1-08-2841
BACKGROUND
In 1997, defendant, Daniel Garcia, was convicted of murder, aggravated kidnaping, and
robbery following a jury trial and sentenced to terms of imprisonment of 80 years, 15 years, and 7
years, respectively. His codefendant, Benjamin Kirk, was also convicted in a simultaneous bench
trial. Defendant appealed contending: (1) the admission of highly inflammatory testimony
deprived him of a fair trial; (2) the evidence was insufficient to prove his guilt of aggravated
kidnaping; (3) counsel was ineffective prior to and during trial; and (4) his sentence was
excessive. We affirmed his conviction and sentence. People v. Garcia, No. 1-97-1049 (1998)
(unpublished order under Supreme Court Rule 23).
The facts of defendant’s case are derived from the trial evidence reflected in the summary
order disposing of defendant’s direct appeal, coupled with our review of the trial record. Here,
we recite those facts necessary to a resolution of the second-stage dismissal of his postconviction
petition. On February 8, 1992, the body of Margaret Anderson was found beneath a viaduct near
the intersection of the 3000 block of North Sacramento Avenue and the John F. Kennedy
Expressway in Chicago. The 78-year-old victim was found by a passerby beaten almost beyond
recognition and naked from the waist down.
Responding officers found Anderson’s body lying on her back atop a ledge beneath the
expressway. Officers were initially unable to determine either her race or her age due to the
condition of her face. Although no identification was found near the body, a set of keys was
located that opened the doors to Anderson’s apartment. Thereafter, the victim’s niece, Mary
Wentland, identified Anderson’s body at the office of the Cook County medical examiner.
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According to Wentland, Anderson wore eyeglasses. The medical examiner’s testimony revealed
that Anderson suffered numerous injuries to her face, knees, and thigh. Additionally, evidence of
brain hemorrhages was identified and it was further determined that Anderson sustained a broken
neck. Her injuries were consistent, in part, with being struck in the face. The medical examiner
further opined that the fractured neck resulted from Anderson’s head being forcefully struck
against the concrete ledge beneath the viaduct.
Chicago police officers Cruz Reyes and Nathaniel Hill testified to their canvass of the
surrounding area several days after the discovery of Anderson’s remains. One of the sources they
spoke with was Rosie Cintron, who was known to the officers as a prostitute and drug user.
Reyes and Hill met Cintron outside Johnnie’s Grill, a location drug dealers, addicts, and
prostitutes were known to frequent. The officers described her reaction to their questioning
about the murder as being “taken aback.” Nevertheless, Cintron voluntarily accompanied the
officers in their car to discuss the murder. She was taken to police headquarters at Grand and
Central, where the investigation was turned over to the detectives working the case.
According to Cintron’s testimony, she knew both defendant and codefendant, Kirk. At
the time of Anderson’s murder, Cintron was an active drug user, who supported herself by
prostitution and selling drugs. She testified that on February 7, 1992, she got high with the
defendants at a crack house on Albany. She claimed she was high throughout the day and into
the night. Cintron left the crack house with defendant in a cab. Eventually, she exited the cab at
defendant’s direction because he and codefendant “were going to score.” Later that morning
Cintron again saw the defendants running past her into the crack house. They did not speak to
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her at that time. Eventually the defendants exited the building and Cintron spoke to defendant.
When defendant came outside, he showed Cintron rocks of crack cocaine and a “golden
bracelet.” According to Cintron, defendant indicated that he had to sell the bracelet, “get rid of
it.”
Cintron next saw defendant a few days later at a hotel, when defendant explained how he
and codefendant, Kirk, had watched a lady from the viaduct. When she walked by, codefendant
grabbed her and began to beat her. According to Cintron, defendant “said that [codefendant] was
nothing but an animal and he was brutal.” Defendant claimed they took a gold bracelet from the
victim, which was the same one he had previously showed Cintron. Defendant described the
victim as an old lady with glasses. At some point, Kirk threw the glasses onto the expressway.
Cintron made a voluntary statement concerning the foregoing to police. She identified
the defendants from police photographs. At trial, Cintron conceded that some of her testimony
before the grand jury was not truthful.
Following his arrest on February 14, 1992, defendant gave a written statement to
Assistant State’s Attorney Theodore Kmiec, which was published to the jury. According to the
statement, defendant and Kirk were outside Johnnie’s Grill at about 5 a.m. on February 8, 1992.
They opted to go steal things in order to get money. As they walked along Diversey Avenue,
they decided to steal audio equipment from a Mazda parked on the street. Kirk was the lookout
while defendant removed the stereo.
Defendants continued down Diversey toward Sacramento. Upon turning northbound onto
Sacramento, they encountered an older woman wearing glasses. Defendants observed jewelry on
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her person, which they believed to be gold. Kirk suggested they steal the woman’s purse, to
which defendant agreed. In furtherance of this plan, Kirk confronted the woman while defendant
stood behind her. Kirk attempted to grab her purse. The victim struggled and resisted against his
efforts. Kirk punched the woman in the face and then demanded the victim’s jewelry. The
woman refused and asked why she should give it to him. After Kirk struck the woman another
time, defendant told her to surrender her jewelry in order to avoid being hit again. Defendant
told Kirk to remove her bracelet and stop striking her. Kirk responded that defendant should
keep quiet and “keep watching out.” Defendant watched as Kirk grabbed the woman by the hair
and dragged her up the incline below the viaduct.
According to defendant, he became frightened by all the cars driving in the area and ran
back to Johnnie’s Grill. Approximately an hour after defendant departed the viaduct,
codefendant arrived at Johnnie’s and summoned defendant outside. Defendant exited the
restaurant and shook hands with Kirk. When he did, he found a gold bracelet on his palm. It was
the same bracelet they saw the old woman wearing. As he tendered the bracelet to defendant,
Kirk cautioned, “you did not see anything.”
The parties also stipulated to the testimony of serologist and microbiologist Pamela Fish.
At the time of trial she had been employed by the Illinois State Police crime laboratory for
approximately six months. Before that, Fish worked at the Chicago police crime laboratory,
which was closed and folded into the Illinois State Police laboratory. If called to testify, Fish
would describe receiving swabs from Anderson’s vagina, mouth, and rectum. Having utilized
acceptable methods in the scientific community, it was her opinion that those swabs were
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negative for the presence of spermatozoa or semen. Next, she would testify that her testing of a
swab “containing a reddish brown substance *** taken from the sidewalk of 3030 North
Sacramento” indicated the substance was human blood, but the sample was “insufficient *** to
test the blood type.” Likewise, a second sample taken from the ledge beneath the viaduct was
determined to be human blood, but the sample was insufficient to conduct blood typing.
Furthermore, she would testify that while a jacket found beneath the viaduct was tested for the
presence of blood, the results were negative.
Defendant testified on his own behalf. He claimed he was arrested and taken to the 14th
District police station, where he repeatedly denied knowing anything about Anderson’s murder.
Notwithstanding his denials, the detectives hit and punched him, pulled his hair, and kicked him.
Defendant further claimed the detectives planted keys and an identification card in his jacket.
During a subsequent interview he was struck in the head with a telephone book, causing him to
fall and lacerate his arm. He was told each time he denied being involved he would be struck
with the book. Defendant claimed he was struck four to seven times. According to defendant, he
ultimately gave a statement to get the beatings to stop so that he could go home. The assistant
State’s Attorney did not ask defendant what he knew about Anderson’s murder. Defendant did
not read the statement in its entirety prior to signing it. However, he told the prosecutor about his
treatment at the hands of the detectives. Defendant denied involvement in the robbery or murder.
Moreover, he testified that Cintron’s testimony was driven by her anger toward him for not
giving her money for cocaine.
Defendant’s conviction and sentences were affirmed on direct appeal. On August 17,
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1999, defendant filed a pro se postconviction petition, wherein he claimed ineffective assistance
of trial counsel, specifically in the examination of Rosie Cintron, as well as ineffective assistance
of appellate counsel, based, in part, on his failure to raise the issue of trial counsel’s
ineffectiveness. On December 2, 1999, the trial judge summarily dismissed defendant’s petition.
On March 12, 2001, we remanded the cause for second stage proceedings on defendant’s motion
because the dismissal occurred beyond the statutory 90-day period for summary dismissals.
Pursuant to remandment, the public defender was appointed as counsel for defendant.
Thereafter, counsel filed a “Supplemental Petition for Post-Conviction Relief,” adopting
defendant’s initial petition and supplemental amendment, as well as the documents and exhibits
appended to the pleadings. Moreover, postconviction counsel also averred that, “with the
following amendments, the pro se petition, the pro se supplemental amendment thereto, and the
exhibits filed by the petitioner adequately present his claims to this court.” Additionally, the
supplemental petition added claims faulting appellate counsel based on defendant’s assertions of
trial counsel’s alleged ineffectiveness. According to postconviction counsel, a number of these
claims were “apparent from the face of the record.” As noted, the trial court granted the State’s
motion to dismiss, thereby denying an evidentiary hearing. This appeal followed.
ANALYSIS
We first address defendant’s contention that he is entitled to an evidentiary hearing to
establish the falsity of Pamela Fish’s report regarding the testing of physical evidence.
Tangential to this claim is an assertion that the State knowingly used perjured testimony –
through Fish – to obtain defendant’s conviction. Additionally, defendant maintains trial counsel
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was ineffective in failing to challenge Fish’s findings. Thus, defendant concludes: “DNA testing
of the evidence has the potential to prove Garcia’s actual innocence in a very weak case.”
As defendant’s petition was denied at the second stage of postconviction proceedings, our
review is de novo. People v. Whitfield, 217 Ill. 2d 177, 182-83, 840 N.E.2d 658, 662 (2005). In
Whitfield, our supreme court offered a concise summary of the tenets of law we must apply on
review:
“The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West [2008]))
provides an avenue by which a defendant may challenge his conviction or sentence
for violations of federal or state constitutional rights. [Citations.] To be entitled to
postconviction relief, a defendant must demonstrate that he has suffered a substantial
deprivation of his federal or state constitutional rights in the proceedings that
produced the conviction or sentence being challenged. [Citation.] The scope of the
postconviction proceeding is limited to constitutional matters that have not been, and
could not have been, previously adjudicated. Accordingly, any issues which could
have been raised on direct appeal, but were not, are procedurally defaulted and any
issues which have previously been decided by a reviewing court are barred by the
doctrine of res judicata. [Citation.]” Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663.
Moreover, in reviewing second-stage dismissals, we accept all well-pled allegations in the
petition as true, unless they are positively rebutted by the record. People v. Lander, 215 Ill. 2d
577, 586, 831 N.E.2d 596, 601 (2005).
As noted, defendant claims the State knowingly used perjury to obtain his conviction.
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Essentially, defendant maintains that Pamela Fish’s findings, that (1) two blood samples were
insufficient for testing, (2) the oral, vaginal, and rectal swabs did not contain sperm or semen,
and (3) the jacket belonging to the homeless man sheltered beneath the viaduct did not contain
blood, when coupled with her having been “discredited” and her prior testimony having “been
proven false” in other collateral proceedings, renders her stipulated testimony perjurious.
Although we must accept the veracity of well-pled allegations at this stage, we are not compelled
to give credence to immaterial allegations. Our consideration of the issue makes clear that in
making a substantial showing that a constitutional right was violated, it was incumbent upon
defendant to demonstrate Fish’s testimony was material.
As a threshold matter, we find instructive our Sixth Division’s reasoning in People v.
Smith, “Materiality is demonstrated ‘by showing that the favorable evidence could reasonably be
taken to put the whole case in such a different light as to undermine confidence in the verdict.’ ”
People v. Smith, 352 Ill. App. 3d 1095, 1102, 817 N.E.2d 982, 990 (2004), quoting Kyles v.
Whitley, 514 U.S. 419, 435, 131 L. Ed. 2d 490, 506, 115 S. Ct. 1555, 1566 (1995). Furthermore,
“Materiality ‘is not a sufficiency of evidence test.’ ” Smith, 352 Ill. App. 3d at 1102, 817 N.E.2d
at 990, quoting Kyles, 514 U.S. at 434, 131 L. Ed. 2d at 506, 115 S. Ct. at 1566. For the
purposes of this analysis we are also guided by our supreme court’s interpretation of materiality
in the context of Brady discovery violations in People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d
1063 (1998). There, the court explained, “favorable evidence is material, and constitutional error
results from its suppression by the government, ‘if there is a reasonable probability that, had the
evidence been disclosed to the defense, the result of the proceeding would have been different.’ ”
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People v. Coleman, 183 Ill. 2d 366, 393, 701 N.E.2d 1063, 1077 (1998), quoting United States v.
Bagley, 473 U.S. 667, 682, 87 L. Ed. 2d 481, 494, 105 S. Ct. 3375, 3383 (1985). Consequently,
we may affirm a second-stage dismissal without an evidentiary hearing, “if we can conclude, as a
matter of law, that the allegedly false testimony (which we must assume is true for purposes of
the motion to dismiss) does not fall within this strict standard of materiality.” Coleman, 183 Ill.
2d at 394, 701 N.E.2d at 1078.
When considered against the record, the trial court could well have concluded that
defendant’s claim manifestly lacks materiality. We, too, are unable to say that, but for Fish’s
input, defendant’s trial would have ended differently. Coleman, 183 Ill. 2d at 393, 701 N.E.2d at
1077. Even assuming the trial judge had concluded that Fish’s findings were false, we fail to see
how defendant was harmed by her stipulated testimony. None of the evidence adduced at trial
tended to show defendant had direct physical contact with the victim. Defendant’s own
statement, which he claimed was the product of coercion and beaten out of him, clearly distanced
himself from the victim. Moreover, there was nothing tending to indicate defendant bled or
secreted in any form or fashion during the encounter with the victim. This is in marked contrast
to Smith, which defendant cites. In Smith, on appeal the State argued Fish’s testimony was not
material. However, that claim was diametrically opposed to the affirmative reliance the State
placed upon her testimony at trial to connect the defendant to the crime. Smith, 352 Ill. App. 3d
at 1103, 817 N.E.2d at 991.
In the case sub judice the State made no meaningful attempt to connect defendant to the
crime scene by forensic evidence. Proof that defendant’s bodily fluids were not present on the
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victim or the location where she was found avails defendant nothing. Therefore, we perceive that
the trial court could properly have concluded that the allegedly perjured findings of Pamela Fish
was immaterial, even assuming her testimony could be proven to be perjurious. In any event,
aside from this reasoning, we do not perceive her testimony constituted perjury.
Defendant asserts a related claim of ineffective assistance of trial counsel, stemming from
counsel’s failure to submit various pieces of evidence for forensic testing and his stipulation to
Fish’s findings. To prevail on a claim of ineffective assistance of counsel, a defendant must
establish that: (1) counsel’s performance fell below an objective standard of reasonableness; and
(2) defendant was prejudiced thereby. Strickland v. Washington, 466 U.S. 668, 687-88, 80 L. Ed.
2d 674, 693, 104 S. Ct. 2052, 2064 (1984). Adherence to the Strickland standard, requires
defendants to demonstrate that counsel’s performance fell below an objective standard of
reasonableness and there is a reasonable probability prejudice occurred as a result. People v.
Villarreal, 198 Ill. 2d 209, 228, 761 N.E.2d 1175, 1185 (2001). Counsel’s actions are judged in
a “highly deferential” fashion and courts endeavor to “evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065.
Authorities of every stripe universally hold that effective assistance amounts to
competent, not necessarily perfect, representation. People v. Johnson, 372 Ill. App. 3d 772, 778,
867 N.E.2d 49, 54 (2007). There is a strong presumption counsel’s performance fell within the
spectrum of reasonable professional assistance. People v. Cunningham, 376 Ill. App. 3d 298,
301-02, 875 N.E.2d 1136, 1140-41 (2007). Furthermore, “the fact that another attorney might
have pursued a different strategy is not a factor in the competency determination.” People v.
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Palmer, 162 Ill. 2d 465, 476, 643 N.E.2d 797, 802 (1994); People v. Fuller, 205 Ill. 2d 308, 330-
31, 793 N.E.2d 526, 541-42 (2002) (issues of trial strategy must be viewed, not in hindsight, but
from the time of counsel’s conduct, and with great deference accorded counsel’s decisions).
Sufficient prejudice will be found to exist where “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; People v. Erickson, 183 Ill.
2d 213, 224, 700 N.E.2d 1027, 1032 (1998). “A reasonable probability is a probability sufficient
to undermine confidence in the outcome” of the proceeding. Strickland, 466 U.S. at 694, 80 L.
Ed. 2d at 698, 104 S. Ct. at 2068.
Failure to demonstrate either deficient performance or prejudice is fatal to an
ineffectiveness claim. Palmer, 162 Ill. 2d at 475-76, 643 N.E.2d at 801. Nonetheless,
ineffectiveness claims can be disposed on the prejudice prong alone, without establishing
whether counsel’s performance was deficient. Strickland, 466 U.S. at 697, 80 L. Ed. 2d at 699,
104 S. Ct. at 2069.
On direct appeal, defendant made numerous allegations of trial counsel’s ineffectiveness.
See People v. Garcia, No. 1-97-1049 (1998) (unpublished order pursuant to Supreme Court Rule
23). Ordinarily, the failure to argue a claim on direct appeal operates as a procedural default of
postconviction claims, while those disposed of previously are barred by the doctrine of res
judicata. Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663. In the present case, however,
defendant’s present claims do not fit precisely within either of these categories. Nevertheless,
our review of them suggests they are of dubious merit. Viewing, as we must, defendant’s claims
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from the standpoint of trial counsel at the time the challenged decisions were made (Strickland,
466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065), we discern they were reasonable
strategic decisions.
Defendant’s defense to the fatal beating of Anderson was, essentially, “I was not there, I
did not do this.” This position seemingly negates the necessity of testing the evidence collected.
The results the parties stipulated to were inconclusive. Therefore, they were neutral to
defendant’s case. Further testing could serve to provide additional inconclusive results or, even
worse, undermine the defense by potentially implicating defendant. The latter option is patently
problematic. Leaving the forensic evidence as – at worst – a neutral factor, trial counsel made a
reasonable strategic decision. Likewise, the decision to stipulate to Fish’s testimony, as well as
that of the fingerprint analyst, was also a reasonable strategic decision. We fail to discern that
trial counsel’s performance was deficient in this regard.
Even were we to conclude counsel’s performance was constitutionally deficient, we
would not find any prejudice inured to defendant. As noted, the forensic evidence adduced at
trial did not inculpate defendant or otherwise impair his defense. Therefore, we fail to perceive
how additional testing or refusing to stipulate to the Fish’s testimony would have advanced his
defense. We, therefore, conclude defendant’s claim of ineffective assistance of trial counsel is
without merit.
Adherence to fundamental principles dictates that defendant’s additional claim of actual
innocence also must fail. In order to successfully advance a claim of actual innocence, the
proponent must demonstrate the evidence offered is: (1) newly discovered; (2) material and
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noncumulative; and (3) “of such conclusive character that it would probably change the result on
retrial.” People v. Collier, 387 Ill. App. 3d 630, 636, 900 N.E.2d 396, 403 (2008). Evidence
qualifies as “newly discovered” if it was not available at trial and defendant, in the exercise of
diligence, could not have uncovered it sooner. Collier, 387 Ill. App. 3d at 636, 900 N.E.2d at
403. According to defendant, “Since 1992, there have been historic developments in forensic
testing, increasing the reliability of forensic identification over earlier techniques. Thus, an
evidentiary hearing is required to determine whether these new techniques may be utilized on this
evidence.” The first proposition is undeniably true. The second proposition is a non sequitur.
As noted repeatedly, defendant’s conviction was not based upon forensic evidence.
Moreover, since defendant’s strategy at trial was to claim he removed himself from the offense
when Kirk continued striking the victim and did not participate thereafter, there was nothing to
be gained by testing evidence collected beneath the viaduct. Nothing in the record places
defendant there. Additional testing that would, presumably, show no forensic contribution by
defendant plainly does not support a claim of actual innocence. Defendant claims, “This testing
has the potential to prove [his] innocence.” That assertion, however, falls well short of making
the requisite substantial showing of actual innocence. Putting aside whether current forensic
technology could yield “newly discovered” evidence, defendant’s elusive claim ignores the
criteria of materiality and conclusiveness of character required to produce a different result on
retrial. Again, the trial judge could reasonably have concluded additional testing would avail
defendant nothing.
Our reasoning in this regard stems from the supreme court’s conclusion in People v.
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Savory, 197 Ill. 2d 203, 756 N.E.2d 804 (2001). There, defendant sought testing of a bloodstain
on a pair of trousers, pursuant to section 116-3 of the Code of Criminal Procedure of 1963 (725
ILCS 5/116-3 (West 1998)). The supreme court rejected the claim, concluding the testing would
not yield materially relevant evidence in light of the entirety of the record. In the court’s view,
the source of the blood stain was only a “minor part” of the State’s case, but defendant’s
knowledge of “certain features of the crime scene” played a far greater role. Savory, 197 Ill. 2d
at 214-15, 756 N.E.2d at 811. The court reasoned: “Under these circumstances, a test result
favorable to defendant would not significantly advance his claim of actual innocence, but would
only exclude one relatively minor item from the evidence of guilt marshaled against him by the
State.” Savory, 197 Ill. 2d at 215, 756 N.E.2d at 811-12.
In the case sub judice, the postconviction court could well have discerned the same
conclusion foreclosed further consideration of this claim. See also People v. Gecht, 386 Ill. App.
3d 578, 584, 899 N.E.2d 448, 454 (2008) (relying, inter alia, on Savory, appellate court
concluded: “biological evidence played no significant role in defendant’s trial and the evidence
of defendant’s guilt is overwhelming. Accordingly, any DNA testing would not significantly
advance defendant’s claim of actual innocence or produce evidence materially relevant to
defendant’s assertion of actual innocence”; People v. Bailey, 386 Ill. App. 3d 68, 76-77, 897
N.E.2d 378, 386 (2008) (relying on Savory, court ruled testing sought by defendant pursuant to
section 116-3 motion was not materially relevant of a claim of actual innocence when considered
against the trial record)). In defendant’s case, like Savory, we fail to discern what aspect of the
State’s case would be undermined or called into question by the evidence defendant seeks.
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Notably, biological evidence played no meaningful role in defendant’s trial. Gecht, 386 Ill. App.
3d at 584, 899 N.E.2d at 454. As such, it was a reasonable conclusion on the part of the trial
court to determine that forensic evidence could not be said to have established even partial proof
of any element of the offenses charged.
We next consider defendant’s assertion that he was substantially denied his right to
effective appellate counsel. Defendant claims appellate counsel handling his direct appeal was
ineffective for not raising trial counsel’s ineffectiveness “in failing to argue that trial counsel
should have impeached Cintron *** and that the prosecution’s failure to correct her false
testimony violated his right to due process.” According to defendant, counsel should have
impeached Cintron based upon her admissions of dishonesty when she was cross-examined by
codefendant’s counsel outside the presence of defendant’s jury.
We review challenges to the constitutional effectiveness of appellate counsel against the
same Strickland standard applicable to trial counsel. People v. Petrenko, 237 Ill. 2d 490, 497,
931 N.E.2d 1198, 1203 (2010). In short, defendants must satisfactorily establish that appellate
counsel’s performance was deficient and that, were it not for counsel’s shortcomings, the
outcome of the appeal would have been different. Petrenko, 237 Ill. 2d at 497, 931 N.E.2d at
1203; Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. As noted, a claim of
ineffectiveness can be resolved based on the failure to establish deficient performance or
prejudice. Palmer, 162 Ill. 2d at 475-76, 643 N.E.2d at 801.
Defendant’s argument is necessarily premised on allegations of trial counsel’s
ineffectiveness. To succeed on this claim, defendant must show appellate counsel’s performance
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was objectively unreasonable and that defendant was prejudiced thereby. People v. Rogers, 197
Ill. 2d 216, 223, 756 N.E.2d 831, 835 (2001). Understandably, where the underlying claim is
nonmeritorious, defendant cannot demonstrate prejudice. Rogers, 197 Ill. 2d at 223, 756 N.E.2d
at 835; People v. Jones, 362 Ill. App. 3d 31, 35, 839 N.E.2d 539, 542-43 (2005) (“In order to
establish that appellate counsel was deficient, defendant must demonstrate that her allegation of
ineffective trial counsel was meritorious and that this court would have found as such had
appellate counsel raised the issue on direct appeal”).
Defendant’s present claim is bottomed on the assertion that trial counsel was ineffective
by failing to impeach Cintron on her admittedly false testimony at trial. In defendant’s view,
“Unlike the case against Kirk, [defendant’s] conviction could not have been obtained without
Cintron’s testimony, and the testimony that she admitted to be false, outside of the presence of
the jury, was vital to the State’s case.” We find this position is untenable against the record.
Cintron acknowledged as false, “The stuff about [codefendant] and the stuff about the bracelet,
the crack cocaine on the 7th and 8th [of February].” The record does not make clear the
substance of the “stuff” referred to in codefendant’s counsel’s question that yielded Cintron’s
acknowledgment.
Affording great deference to the choices of counsel (Fuller, 205 Ill. 2d at 330-31, 793
N.E.2d at 541-42), our review of the record convinces us defense counsel’s cross-examination of
Cintron was thorough and more than adequate under the circumstances. Trial counsel explored
numerous subject areas on cross-examination, including Cintron’s numerous aliases, that she had
prior convictions and was on mandatory supervised release at the time of trial, that she previously
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used crack cocaine, that she went to prison for violating probation, that she smoked marijuana as
recently as three weeks prior to trial, that she had worked as a prostitute, often to pay for her
crack cocaine habit, that her memory of events around the time of the killing and her subsequent
conversations with investigators was limited, and that she lied before the grand jury.
Defendant’s ineffectiveness claim is necessarily blunted by the fact that none of the
matters Cintron admitted to lying about at trial concerned the actual robbery, beating, and murder
of Anderson. None of the information Cintron had, insofar as the charged offenses were
concerned, was within her own personal knowledge but, rather, was provided by others.
Nevertheless, although other attorneys might have seized upon this testimony, defense counsel’s
failure to do so does not render his assistance constitutionally ineffective. Palmer, 162 Ill. 2d at
476, 643 N.E.2d at 802. It is equally likely counsel determined Cintron’s testimony sufficiently
proved her a liar, without chronicling each lie across her existence. Moreover, an equally
reasonable strategic approach was to avoid calling additional attention to the testimony,
effectively discounting her testimony as vague and circumstantial. No matter the precise
explanation, counsel’s choice to limit the scope of examination was well within the realm of
strategic decisions about which a claim of ineffectiveness generally will not lie. See People v.
Ramey, 152 Ill. 2d 41, 54-55, 604 N.E.2d 275, 281 (1992). Therefore, we conclude trial counsel
was not ineffective in this regard.
Having reviewed the order issued on direct appeal, as well as the entire record presently
before us, we are convinced defendant has not and cannot establish prejudice. Essentially,
defendant attempts to advance the fallacious argument that his appellate counsel was ineffective
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because counsel’s choices of issues to brief on direct appeal compelled defendant to raise
additional – ultimately nonmeritorious – issues in a supplemental brief. This argument, if
accepted, only goes to the performance prong of Strickland. Even if defendant could establish
this prong, he would still fall short on the matter of prejudice because the issues were presented
and resolved on direct appeal. Therefore, because defendant has not established prejudice, his
claim of ineffectiveness as to appellate counsel fails.
Additionally, the present claim is properly barred by the doctrine of res judicata, as it was
raised and resolved on direct appeal. Whitfield, 217 Ill. 2d at 183, 840 N.E.2d at 663. There, our
Sixth Division addressed several claims of ineffectiveness by virtue of a supplemental brief
submitted by defendant, including, inter alia, a claim of ineffectiveness of trial counsel based on
the cross-examination of Cintron. This claim, along with the others present on direct appeal, was
resolved unfavorably to defendant. Defendant’s claim, then, is that appellate counsel’s
performance was deficient because those issues were raised by defendant in a supplemental brief.
We are persuaded the same outcome would have obtained had they been raised by appellate
counsel, instead of by defendant in the supplemental appellate brief. Nevertheless, this claim is
barred by res judicata.
Defendant similarly claims that appellate counsel was ineffective for failing to raise the
issue of the State’s knowing use of false testimony, where prosecutors failed to correct Cintron’s
testimony. Defendant cites People v. Olinger, 176 Ill. 2d 326, 680 N.E.2d 321 (1997), for the
proposition that the State has a duty to correct false testimony. This is an accurate portrayal of
the holding in Olinger. However, the situation in the present case is factually distinguishable
19 1-08-2841
from Olinger. There, a witness testified concerning the scope of the immunity he was granted.
However, the State knew the scope of the immunity was much broader than what the witness
described while testifying. Olinger, 176 Ill. 2d at 345-46, 680 N.E.2d at 331.
Cintron’s testimony did not involve matters within the personal knowledge of the
prosecutors. She took the stand and lied. The specifics of her version of events was something
unique to her and only she knew the truth. On the other hand, the prosecutors in Olinger knew as
well as the witness about the scope of the immunity. Moreover, defendant fails to specify how
Cintron’s testimony was so singularly damaging to his case. As noted, her testimony related to
events before and after the offense and did not place defendant at the scene or committing any of
the offenses charged. Defendant’s position on Cintron’s testimony conveniently disregards the
other evidence against him, not the least of which was his written statement. Although he made
every effort to distance himself from that statement – through accusations of coercion and
physical abuse and claims of limited literacy and education – the verdict demonstrates the jury’s
opinion of his denials.
Based on our review of the record, we conclude appellate counsel did not render
ineffective assistance in failing to raise this claim on appeal. Defendant has not established the
outcome of the appeal would have been different, if this issue had been briefed. Therefore, he
has not and cannot establish prejudice by virtue of the decision of appellate counsel not to raise
every imaginable issue or nonmeritorious issues. People v. Jones, 219 Ill. 2d 1, 23, 845 N.E.2d
598, 610 (2006) (“Appellate counsel is not required to brief every conceivable issue on appeal
and may refrain from developing nonmeritorious issues without violating Strickland [citation],
20 1-08-2841
because defendant suffers no prejudice unless the underlying issue is meritorious [citation]”).
Lastly, defendant claims postconviction counsel violated Supreme Court Rule 651(c)
(134 Ill. 2d R. 651(c)). Rule 651(c) provides, in pertinent part:
“The record filed in [the appellate] court shall contain a showing, which may be
made by the certificate of petitioner’s attorney, that the attorney has consulted with
petitioner either by mail or in person to ascertain his contentions of deprivation of
constitutional rights, has examined the record of the proceedings at the trial, and has
made any amendments to the petitions filed pro se that are necessary for an adequate
presentation of petitioner’s contentions.” 134 Ill. 2d R. 651(c).
According to defendant, the record demonstrates that postconviction counsel “failed to make
amendments necessary to properly present [defendant’s] claims and unreasonably refused to
obtain evidence necessary to support those claims.” Postconviction counsel submitted a
“Supplemental Petition for Post-Conviction Relief,” which described the procedural history of
defendant’s case and indicated the steps counsel undertook pursuant to the responsibility
imposed by Rule 651(c). Counsel further represented that he corresponded with defendant by
letter. Additionally, counsel provided a summary of defendant’s arguments in favor of granting
him relief. As resolution of this issue requires us to construe a supreme court rule, our review is
de novo. Suarez, 224 Ill. 2d 37, 41-42, 862 N.E.2d 977, 979 (2007).
The record before us demonstrates, beyond doubt, that counsel, at the very least,
communicated with defendant about the petition by mail. His doing so is documented by the
averment in the “Supplemental Petition.” See 155 Ill. 2d R. 137 (“The signature of an attorney or
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party constitutes a certificate by him that he has read the pleading, motion or other paper; that to
the best of his knowledge, information, and belief formed after reasonable inquiry it is well
grounded in fact and is warranted by existing law or a good-faith argument for the extension,
modification, or reversal of existing law, and that it is not interposed for any improper purpose,
such as to harass or to cause unnecessary delay or needless increase in the cost of litigation”).
Further documentation is found in the record, including copies of correspondence between
defendant and counsel. Additionally, counsel stated in the “Supplemental Petition” that he read
the record and reiterated before the trial judge his fulfillment of this obligation.
Defendant’s claim, then, must rest upon whether counsel “made any amendments to the
petitions filed pro se that are necessary for an adequate presentation of petitioner’s contentions.”
(Emphasis added.) 134 Ill. 2d R. 651(c). Defendant asserts that he “did not draft these claims in
their proper legal form, where he did not cite relevant case law, did not use the relevant facts to
support his claims, and where the claims are not cohesively argued, but appear sporadically
throughout over 300 pages [of the petitions].” Even a cursory review of defendant’s submissions
belies this claim. While the drafting is not that of an experienced attorney, it is not clear where
the form is improper. Although defendant is not an attorney, it is nonetheless apparent that his
claims are indeed supported by relevant case law standing for the propositions relied upon.
Some of the cited cases are not placed on the cutting edge; yet, they are far from irrelevant.
Where the facts are concerned, defendant’s submissions garner support from references to
testimony, evidence, and exhibits highlighting his claims. Although some of the facts are recited
repetitively, this does not undermine the thrust of the petition. Importantly, defendant’s claims
22 1-08-2841
are argued cohesively. For a pro se litigant, his command of the claims he intended to advance
and his ability to marshal the facts and law in support is significant.
Defendant claims that postconviction counsel “must make any amendments that are
necessary for an adequate presentation” of his claims. Our supreme court explained, in People v.
Perkins, that the duties imposed by Rule 651(c) are mandatory. People v. Perkins, 229 Ill. 2d 34,
50, 890 N.E.2d 398, 407 (2007). However, there is no obligation on post conviction counsel to
conduct a broader examination of the record in order to develop additional claims. People v.
Pendleton, 223 Ill. 2d 458, 476, 861 N.E.2d 999, 1009 (2006). Counsel may demonstrate
compliance with the rule by filing a certificate with the trial court representing that the required
duties were fulfilled. Perkins, 229 Ill. 2d at 50, 890 N.E.2d at 407.
Although the record does not contain a specific certificate of compliance pursuant to Rule
651(c), a review of the “Supplemental Petition for Post-Conviction Relief” demonstrates that
counsel was mindful of the requirements of the rule in preparing that submission. Moreover, as
noted, counsel substantially complied with the requirements. In counsel’s pleading is found the
following, “Counsel states that with the following amendments, the pro se petition, the pro se
supplemental amendment thereto, and the exhibits filed by the petitioner adequately present his
claims to this court.” The “Supplemental Petition” filed by counsel, while adopting the prior pro
se submissions and summarizing the gist of those arguments, adds or amends those earlier
pleadings to include additional claims. Consequently, the record demonstrates that trial counsel
did, in fact, adhere to the requirements of Rule 651(c) by making amendments to the existing
claims. His approach reflected a reasoned approach that permitted the original petition and
23 1-08-2841
exhibits to remain before the court, through adoption, while distilling those claims and
buttressing them with additional claims. Therefore, defendant’s claim in this regard is without
merit.
Defendant’s allegation that postconviction counsel violated Rule 651(c) by not obtaining
additional evidence, in whatever form, demonstrates a fundamental and critical misunderstanding
of the scope of the rule. A plain reading of Rule 651(c) reveals no such duty placed upon
postconviction counsel. Nothing in the language of the rule is reasonably subject to a
construction that would impose such a requirement. Manifestly, the rule focuses on working in
collaboration with the defendant and the record. No mention is made of seeking out additional
evidence to support the claims asserted. As our supreme court observed in People v. Johnson:
“While post-conviction counsel has an obligation to present a petitioner’s claims in appropriate
legal form, he is under no obligation to actively search for sources outside the record that might
support general claims raised in a post-conviction petition.” (Emphasis omitted.) People v.
Johnson, 154 Ill. 2d 227, 247, 609 N.E.2d 304, 314 (1993). Consequently, postconviction did
not violate Rule 651(c) by not pursuing additional evidentiary matters.
In a letter addressed to defendant, postconviction counsel indicated he would not seek
DNA testing because “it would neither prove nor disprove any question at issue in your case.”
As noted earlier, we concur in counsel’s appraisal. More importantly, though, the testing or
results of DNA testing was not necessary for the presentation of defendant’s claims. The results
were not materially relevant to presenting the claims concerning Fish’s testimony and counsel’s
performance at trial and on appeal. They were unnecessary to proper resolution of the motion to
24 1-08-2841
dismiss defendant’s petition for relief. Manifestly, defendant may have another procedural forum
to obtain DNA testing at his disposal, should he choose to avail himself of it. See 725 ILCS
5/116-3 (West 2008). Although the State posits that defendant’s claims can be resolved by such
a motion, this issue is not properly before us. Nevertheless, exploring evidentiary matters does
not fall within the ambit of Rule 651(c).
Defendant has failed to establish that postconviction counsel’s representation was not in
conformity with the requirements of Rule 651(c). Consequently, we conclude defendant’s claim
must fail.
For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
Affirmed.
FITZGERALD SMITH, P.J., with HOWSE, J., concur.
25 1-08-2841
REPORTER OF DECISIONS – ILLINOIS APPELLATE COURT Please Use Following (Front Sheet to be Attached to Each Case) Form: THE PEOPLE OF THE STATE OF ILLINOIS, Comple te TITLE Respondent-Appellee, of Case v.
DANIEL GARCIA, Petitioner-Appellant.
Docket No. No. 1-08-2841 COURT Appellate Court of Illinois First District, FIFTH Division
Opinion November 5, 2010 Filed (Give month, day and year)
JUSTICE TOOMIN delivered the opinion of the court: JUSTICES FITZGERALD SMITH, P.J., with HOWSE, J., concur. concur [s]
dissent[s]
APPEAL from Lower Court and T rial Judge(s) in form indicated in the margin: the Circuit Ct. of Cook County, Chancery Div. The Honorable Marcus Salone, Judge P residing.
Indicate if attorney represents APPELLANTS or APPELLEE S and include For attorneys of counsel. Indicate the word NONE if not represented. APPELLANTS, John Doe, of Attorneys for Plaintiff-Appellee-People of the State of Illinois: Anita Alvarez Chicago. State’s Attorney County of Cook For APPELLEES, Room 309-Richard J. Daley Center, Smith and Smith Chicago, IL 60602 of Chicago, Of counsel: Alan Spellberg, Mary Needham, William L. Toffenetti Joseph Brown, (of Counsel) Attorneys for Petitioner-Appellant: MICHAEL J. PELLETIER Also add State Appellate Defender attorneys for third-party ALAN D. GOLDBERG appellants or Deputy Defender appellees.
CAROLINE E. BOURLAND
26 1-08-2841
Assistant Appellate Defender Office of the State Appellate Defender 203 North LaSalle Street - 24th Floor Chicago, IL 60601 312/814-5472