2023 IL App (1st) 220107-U No. 1-22-0107 Order filed December 22, 2023 Sixth Division NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________ IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 13 CR 0367 01 ) BRIAN HEWLETT ) Honorable ) Joseph M. Claps, Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court. Justices C.A. Walker and Johnson concurred in the judgment.
ORDER
¶1 Held: Reversed and remanded, where trial counsel provided ineffective assistance by abandoning a self-defense claim and the trial court manifestly erred by denying this claim of ineffective assistance after a post-trial evidentiary hearing.
¶2 An accused secures the right to present a defense through counsel. Ordinarily, courts
presume counsel acts strategically. But this presumption does not preclude assessing counsel’s
choices, particularly when counsel takes the stand to testify about what they did and why.
¶3 Counsel advised Brian Hewlett to abandon a self-defense claim and instead attack the
sufficiency of the State’s case. But counsel never disputed that, minutes after the shooting, police No. 1-22-0107
arrested Hewlett, gunshot residue on his hands, sitting feet from the only recovered firearm, which
police connected to the recovered shell casings.
¶4 Given what counsel knew and analysis of the facts, we find that convincing Hewlett to
abandon self-defense constitutes a clearly evident, plain, and indisputable error. We reverse the
denial of Hewlett’s post-trial motion and remand for a new trial.
¶5 Background
¶6 Brian Hewlett and his brother Michael McNabb stood accused of (i) the first-degree murder
of Tyrone Lawson and (ii) the aggravated discharge of a firearm and attempted first-degree murder
of Denzell Collins. Before the joint bench trial began, the trial court severed the cases on its own
initiative and tried them simultaneously. At the close of the State’s cases, the trial court directed a
verdict in McNabb’s favor, finding accountability unproven. At the close of the defense, the trial
court found Hewlett guilty. Hewlett retained new counsel, and after an evidentiary hearing, the
trial court denied Hewlett’s post-trial claim of ineffective assistance of counsel.
¶7 Bench Trial
¶8 The State accused Hewlett of chasing and shooting at a group outside of a high school
basketball game, killing Tyrone Lawson. The core of the State’s case included: (i) out-of-court
statements identifying the shooter as Hewlett, (ii) security footage of Hewlett and others soon after
the shooting, (iii) officer testimony on the events leading to Hewlett’s on-site arrest, and (iv)
firearm and ballistics evidence.
¶9 The State introduced as substantive evidence the out-of-court statements of Denzell Collins
after he testified he could not recall most details about either the shooting or his later interviews.
Collins had testified that he and his friends saw Lawson outside the arena, no one had weapons,
-2- No. 1-22-0107
and Lawson died that night. At trial, he recalled little else. He did not remember providing a written
statement the day after the shooting, identifying Hewlett in a lineup, providing another statement
the next day, or testifying before the grand jury the next month.
¶ 10 The State called an investigator, a detective, and two assistant state’s attorneys to testify
about interviewing Collins, overseeing the lineup, and calling him before the grand jury. The State
introduced as exhibits Collins’s narrative statements and lineup forms. (A signature of “Denzell
Collins” appears on all documents except the grand jury transcript.)
¶ 11 In these statements, Collins did not identify Hewlett at first. Collins said he was outside
the arena mingling when he heard shots, ran, and returned to see Lawson on the ground. Collins’s
second statement, the same day after identifying Hewlett and McNabb in a lineup, stated he knew
them “from the streets” and it would have been “pointless to fight,” considering that the police
were “everywhere.” Yet, when Collins saw Hewlett and McNabb again, Hewlett “pulled out a
gun,” chased Collins’ “whole crowd,” and started shooting. Collins’ third statement asserted he
and his friends stayed away from McNabb, whom they knew as “Mike-Mike” and as “dangerous,’
because “they did not want any trouble.” In this statement and his grand jury testimony, Collins
recounted more detail about the shooting and his decision-making, adding that a discussion with
Lawson’s mother persuaded him to tell the “whole truth” and identify McNabb and Hewlett.
¶ 12 The State also introduced as substantive evidence an out-of-court statement from Dylon
Collins, Denzell’s brother, after he, too, failed to recall details about the shooting and giving the
statement. (The State introduced the narrative statement, signed by Dylon Collins as an exhibit,
and called an investigator to testify about interviewing him.) Dylon Collins’ statement did not
identify Hewlett or McNabb, asserting that he had heard about four gunshots from behind as he
-3- No. 1-22-0107
and his friends walked to the parking lot, then “heard a couple more rounds” and soon saw Lawson
on the ground, bleeding.
¶ 13 Sergeant Wilbert Norey recounted that before the shooting, McNabb and a young girl
banged on an arena door, seeking entry. “[T]he young lady was very distraught” and said someone
“had brandished a firearm at her and her father.” She did not give the name of the person with the
firearm or identify him in any way. Norey let McNabb’s daughter enter; McNabb remained
outside, saying that he was “going to take care of something,” and headed toward the area where
the shooting occurred. (Later, the trial court found Norey’s testimony about what McNabb had
said was both false and irrelevant to Hewlett.)
¶ 14 Surveillance video did not capture the shooting. Norey narrated parts of the video, showing
people running across a parking lot near where officers would find Lawson, including someone in
a hoodie. On cross-examination, Norey concluded that two flashes of light near this person were
reflections from headlights and an interior car light, not gunshots. Elsewhere in the video, Norey
described a jeep slowing down to open its door before leaving the parking lot.
¶ 15 Officers arrested Hewlett and McNabb in a jeep waiting to leave the parking lot. Based on
information from a radio call, Officer James Bansley pulled the jeep over and arrested the driver,
McNabb, and the backseat passenger, Hewlett. As Bansley arrested them, Officer Mero arrived
and approached the passenger side. The driver behind the jeep told Mero to “look at the ground.”
Near the jeep’s rear tire, Mero saw a Glock 9 semi-automatic handgun, which he retrieved.
¶ 16 Officers took Hewlett and McNabb to a station for booking. Officer David Ryan testified
that he photographed Hewett and tested his hands for gunshot residue. While doing so, Hewlett
admitted to Ryan he had not washed his hands since the arrest and was left-handed.
-4- No. 1-22-0107
¶ 17 Analysts tested gunshot residue, the firearm, bullets, and cartridges. An officer had testified
to searching “more than 100 feet” outside the crime scene tape and finding three fired cartridges
about 20 feet from one another. An analyst testified the recovered firearm had fired the three
recovered cartridges, and the unfired cartridges corresponded to the style of the two bullets
recovered from Lawson. Neither Lawson nor McNabb had any gunshot residue on his hands. (An
analyst testified that activity may remove gunshot residue.) But Hewlett’s hands had gunshot
residue. An analyst testified that a person standing three to six feet from a fired weapon could test
positive for gunshot residue. The particles on Hewlett’s hands, present in a greater volume on his
left hand, matched the particles on the fired cartridges.
¶ 18 The State rested its case. The trial court denied Hewlett’s motion for a directed verdict.
¶ 19 Defense counsel called one witness and submitted two stipulations. Counsel “reserve[d]”
the option to give an opening statement before the State’s case but dispensed with it to open the
defense. (Before trial, counsel described as “our theories,” referring to him and McNabb’s counsel,
as “neither of these men was the shooter.”)
¶ 20 Tremaine Horton testified that he was about 15 feet from the shooting and knew Hewlett,
Lawson, and their families. Before the shooting, there was a fight, so he and others waited inside
the arena after the game. Some time passed before they walked to the parking lot. On the way, a
group of five young men quickly walked past them and exchanged words with “another set of
people.” Horton got inside his car and soon heard the two groups exchange gunfire “back and
forth.” Lawson was a member of the group that fired the initial shot, though he did not shoot.
¶ 21 Horton saw Lawson fall to the ground but never saw Hewlett. About 14 shots came from
“four different areas.” The police briefly detained Horton when he tried to leave the parking lot
-5- No. 1-22-0107
but did not question him about the incident. Horton gave a statement for “People v. Michael
McNabb Jr.” about a week after the shooting. In this written statement, Horton did not describe
either Hewlett or Lawson, though he described being 30 feet away from the two groups of “Black
males” who had a “gunfight.”
¶ 22 The parties stipulated that, if called to testify, an investigator would recall Collins telling
her on the night of the shooting he heard 12 shots, and that Collins was “wearing the same clothing
he had on during the incident, “black hoodie, blue jeans, tan shoes.” (Counsel had cross-examined
Collins, who did not recall speaking with investigators.) The parties also stipulated that DNA
analysis of the recovered firearm contained one major profile excluding Hewlett, and two minor
profiles unsuitable for comparison.
¶ 23 The trial court did not admonish Hewlett on his right to testify, and Hewlett did not testify.
¶ 24 In closing, the State described its evidence as “incontrovertible,” focusing in rebuttal on
the physical evidence and arrest. “The fact of the matter is even without the evidence of Denzell
Collins; you have Brian Hewlett leaving the scene of a murder with positive [gunshot residue] on
his hands and the murder weapon.” Hewlett’s counsel, who did not acknowledge the gunshot
residue, contended that, unlike Collins, Horton was credible, the State had no DNA or fingerprint
evidence connecting Hewlett to the firearm, and the State’s “flawed investigation” did not amount
to proof beyond a reasonable doubt.
¶ 25 The trial court found Hewlett guilty on all counts.
¶ 26 Motion for a New Trial
¶ 27 Counsel moved for a new trial and withdrew from the case. New counsel amended the
motion, alleging trial counsel provided ineffective assistance by (i) failing to investigate the
-6- No. 1-22-0107
accuracy of the surveillance video, (ii) ignoring the weight of the gunshot residue evidence, and
(iii) abandoning self-defense, in part, by failing to call witnesses. The trial court heard the
testimony of an expert on digital forensics and testimony from Hewlett, McNabb, McNabb’s
daughter, Micaela, and trial counsel.
¶ 28 Hewlett
¶ 29 Hewlett testified he caught a ride to the arena to meet McNabb, who went there to pick up
Micaela. When Hewlett arrived, he thought Micaela “looked distraught, like she had been crying.”
McNabb and Micaela were near the arena. As they walked to the parking lot, about 10 “guys”
appeared. One spoke to McNabb, who responded, “I don’t want no trouble.” A second said, “I
don’t care about your daughter,” and “I will kidnap her.” A third told McNabb, “I can’t let you
leave here alive.” That person swung at McNabb, and someone else punched Hewlett in the jaw.
¶ 30 The entire group rushed toward them. Hewlett testified that one person wearing a black
hoodie pulled out a gun and pointed it at him. At that moment, Hewlett believed they would die,
so he backed away, drew his firearm, and fired “two, maybe three shots, just to scare them off,
maybe just to get them to back away.” He then ran and heard “about eight, maybe ten shots.” He
hid behind a car but soon heard McNabb calling his name from the jeep and jumped in.
¶ 31 Hewlett confirmed he illegally carried the firearm and threw it out the jeep’s window when
police approached because he “didn't want anything to happen if [the police] did see [the] gun,”
that is, he “didn’t want to be shot, injured or nothing.”
¶ 32 Micaela
¶ 33 Micaela McNabb testified that, at the time, she was 12 years old and had attended a
basketball game with a friend before leaving early to meet her father. As she and her father walked
-7- No. 1-22-0107
to the parking lot, about 10 boys approached, making “smart remarks” that caused them to walk
back toward the arena. Sometime later, McNabb and Micaela again walked to the car and again
encountered the group. One boy pointed a gun at the ground and said, “What’s up, Mike Mike.”
Her father said, “[L]eave me alone. I have my daughter with me.” The group laughed, and she and
her father ran towards the arena.
¶ 34 A security guard let her inside; her father stayed outside. When the game ended, Micaela
left and met up with her father and uncle, Hewlett, on the side of the arena. Micaela told her father
she had found another ride. Micaela also saw the same group of boys nearby. She did not see
Hewlett holding or shooting a gun.
¶ 35 About a week later, Micaela gave a written statement to an investigator. She also met with
counsel regarding what she would say at trial. (Counsel listed Micaela as a defense witness in
discovery, and she appeared under a subpoena on the first day of trial.)
¶ 36 McNabb
¶ 37 Michael McNabb testified that he met his daughter at the arena. As they walked to the
parking lot, about 10 young men approached. McNabb exchanged words with Dylon Collins, who
had a reputation for violence. After that, McNabb and Micaela walked back toward the arena.
¶ 38 After some time, they again set out for the parking lot, but the same group was there rapping
about kidnapping and killing Micaela. McNabb saw one person pull a gun and point it at the
ground. He and Micaela ran to the arena; Micaela re-entered, and he stayed outside. More time
passed, and Micaela reappeared to tell McNabb she would get a ride home with a friend. Hewlett
arrived, but McNabb did not share what happened or ask Hewlett whether he was armed.
-8- No. 1-22-0107
¶ 39 McNabb and Hewlett walked toward the parking lot. Soon, Dylon Collins and the group
surrounded them. Dylon Collins said, “You know I can’t [let] you leave up out of here,” which
McNabb understood meant Dylon Collins would shoot him. Dylon Collins swung at him, and
someone else pointed a gun. Then McNabb heard about 10 gunshots from different directions as
“he ducked and ran[.]” He did not see where his brother had gone. When he got back to his car, he
saw Lawson on the ground. McNabb got in, saw Hewlett, and called for him to get in. McNabb
did not see Hewlett with a gun or drop a gun.
¶ 40 McNabb testified that Hewett’s trial counsel never asked him for his version of events and
to testify. After his acquittal, McNabb attended the rest of the trial. He said that had he testified at
trial, the substance would have been the same as his testimony.
¶ 41 Digital Forensics
¶ 42 An expert in digital forensics testified that the surveillance video used at trial was a screen
capture, not an exported file, “of less quality” and “highly pixelated.” He enhanced and clarified
the video, particularly two moments when flashes of light appeared. In his opinion, the first
featured two flashes of light near an SUV. One flash came from inside the SUV, and the other
from someone standing on the driver’s side. The second featured two flashes resembling gunfire,
near someone running with an arm pointed backward, but the video’s low quality precluded
confirming that person held a firearm.
¶ 43 Hewlett’s Counsel
¶ 44 Counsel testified that he and Hewlett discussed raising (perfect and imperfect) self-defense
on “many” occasions before trial. Counsel filed a Lynch motion (People v. Lynch, 104 Ill. 2d 194
(1984)) before trial, seeking to admit Lawson’s social-media posts, including a photograph
-9- No. 1-22-0107
showing Lawson and another person with firearms. Counsel withdrew the motion after the court
doubted his ability to authenticate the material. Still, without this Lynch material, counsel believed
self-defense “might be a viable defense” because (i) Hewlett tested positive for gunshot residue,
(ii) Micaela described someone pointing a gun at her and her father, and (iii) forensics connected
the recovered firearm with the recovered cartridges.
¶ 45 Counsel began doubting this strategy after two developments (i) Collins’ testimony at the
hearing to suppress indicated that he was unlikely to identify Hewlett as the shooter at trial and (ii)
counsel learned that Cory Atwater, who had identified Hewlett before trial, was dead.
¶ 46 Counsel met with Hewlett a month before trial to hear “exactly what he would testify to if
he was to take the witness stand in self-defense.” Disclaiming a word-for-word recollection,
counsel said:
“[Hewlett] told me all about coming to Chicago State with his brother, he told me about
having a gun with him, you know[.] I remember him telling me I believe how he got there,
and he asked Mike why [Micaela] was crying, you know, and I think he may have heard -
- I think he heard one of the boys had a gun, you know, and then there was -- when he was
there, he was confronted, they came up to him, there was a physical confrontation, he was
punched. But what I was looking for and what I didn’t hear is that before he fired, there
was imminent danger of death or great bodily harm. He never said a gun was pointed at
him to me because obviously, if the gun was pointed at him, he doesn’t even have to wait,
you know, to be shot at to be justified in shooting back. So my heart sort of the sank,
actually, to tell you the truth, when I went through that with him[.]”
Asked whether Hewlett had a gun pointed at him, counsel stated, “Not before he fired[,]” adding,
- 10 - No. 1-22-0107
“I think he believed they had weapons, and I believe, yes, that’s probably true, you know,
based on [Micaela] seeing the gun and the way they were acting, the things that they said.
One of the things that struck me, and appeared to resonate with him and what he was
hearing is that, ‘We can't let you leave here,’ whatever that means.”
Hearing Hewlett’s account, counsel thought, “[W]ithout actually seeing a weapon pointed at him
or actually -- not actually seeing the weapon at the time wouldn’t make it imminent[.]”
¶ 47 Counsel advised Hewlett to forgo self-defense in favor of reasonable doubt, contesting the
shooter’s identity. He recounted how Hewlett trusted his judgment, agreed to abandon self-
defense, and appeared relieved not to testify. (In contrast, Hewlett testified counsel never said they
would abandon self-defense.) Now pursuing misidentification, counsel assessed how to present it,
specifically whom to call and how to address firearm forensics and gunshot-residue evidence.
¶ 48 Counsel spoke with the State’s gunshot-residue analyst before trial and knew: (i)
McNabb’s hands had tested negative; (ii) Hewlett’s hands had tested positive; and (iii) “no witness
had identified [McNabb] as carrying a weapon.” Counsel cross-examined this expert on “the
absolute fact that you don’t have to have fired a gun to have gunshot residue on your hands.”
¶ 49 As for firearm forensics, counsel testified that he knew the police recovered the gun next
to the red jeep in which Hewlett was riding and the shells recovered matched the gun. Counsel
planned to argue that “somebody else had thrown that gun that appeared near the red jeep,” and
the other shooters were responsible for the murder.
¶ 50 As for defense witnesses, counsel explained why he called Tremaine Horton and neither
Micaela nor McNabb. Counsel had visited the crime scene with Micaela. In his view, Micaela’s
account supported a self-defense theory, thereby of no “help in a[n] identification case.” As for
- 11 - No. 1-22-0107
McNabb, his background and credibility undermined his account, and his testimony would have
not assisted the reasonable doubt theory. Horton’s testimony, however, allowed counsel to argue
(i) Hewlett was not the shooter and (ii) Lawson was a member of a group of who “had come down
this hill into the parking lot and were firing first at another group in the parking lot.”
¶ 51 Motion Denied
¶ 52 The trial court denied Hewlett’s motion, finding, “[E]specially as it applies to testimony
given by the defendant * * * [that] would not have changed the outcome.”
¶ 53 Analysis
¶ 54 This appeal calls us to review an evidentiary hearing on a motion for a new trial. Hewlett
contends the trial court erred by denying his claims that trial counsel provided ineffective
assistance and certain prior inconsistent statements were improper evidence of guilt.
¶ 55 Strickland Claim
¶ 56 Hewlett contends counsel provided ineffective assistance by reason of (i) counsel’s
unreasonable actions under “prevailing professional norms” and (ii) had counsel not so erred, the
reasonable probability of acquittal. Strickland v. Washington, 466 U.S. 668, 687-89 (1984).
¶ 57 The nature of Hewlett’s claim dictates we be doubly deferential. We defer to counsel’s on-
the-ground choices, guarding against second-guessing tactics. Strickland, 466 U.S. at 687-89. And,
we defer to the trial court’s denial of these claims after hearing them in full unless the claims’
merits are “clearly evident, plain, and indisputable.” People v. Jackson, 2020 IL 124112, ¶ 98.
¶ 58 Hewlett asserts counsel erred in investigating the case through closing arguments, raising
many contentions of error. The State focuses on the standard of review, noting inconsistencies
between counsel’s and Hewlett’s recollections of conversations do not create manifest error. See
- 12 - No. 1-22-0107
People v. Huffman, 81 Ill. App. 3d 901, 907 (1980) (reviewing court may not substitute its
credibility finding for factfinder’s). But the State goes further, arguing the trial court’s “denial of
[Hewlett’s] claims could only be based on a rejection of [Hewlett’s] testimony and an acceptance
of the contrary testimony of [] counsel.” While usually the situation, counsel’s testimony can, as
here, make it “clearly evident, plain, and indisputable” that the defendant received ineffective
assistance. Jackson, 2020 IL 124112, ¶ 98 (stating standard).
¶ 59 Hewlett argues counsel’s abandoning of self-defense was “unsound” for three reasons.
First, counsel felt the State had insufficient evidence of guilt. Second, the counsel did not know
how to authenticate Lynch evidence of Lawson’s character. Third, counsel thought self-defense
was unavailable “absent a gun being pointed at Hewlett.” We agree that counsel’s testimony
established that he misunderstood the law of self-defense and focus on that contention.
¶ 60 Law of Self-Defense
¶ 61 Counsel testified at the evidentiary hearing on meeting with Hewlett before advising him
against pursuing self-defense. After listening to Hewlett’s account, counsel concluded, “[W]hat I
was looking for, and what I didn’t hear is that before [Hewlett] fired, there was imminent danger
of death or great bodily harm.” According to counsel, “without actually seeing a weapon pointed
at him or actually -- not actually seeing the weapon at the time wouldn’t make it imminent[.]”
¶ 62 Self-defense is an affirmative defense. People v. Jeffries, 164 Ill.2d 104, 127 (1995). A
person may use deadly force when “he [or she] reasonably believes that such force is necessary to
prevent imminent death or great bodily harm to [themself] or another, or the commission of a
forcible felony.” 720 ILCS 5/7-1(a). The defendant has the burden to show: (i) unlawful force was
threatened; (ii) the person threatened was not the aggressor; (iii) the danger of harm was imminent;
- 13 - No. 1-22-0107
(iv) the use of force was necessary; (v) the person threatened actually and subjectively believed a
danger existed that required the use of the force applied; and (vi) the beliefs of the person
threatened were objectively reasonable. Jeffries, 164 Ill.2d at 127-28.
¶ 63 Counsel testified that his advice hinged on analyzing the third element, whether the danger
of harm was imminent. Counsel recalled Hewlett describing: (i) his niece crying because someone
in the group had brandished a firearm at her and her father; (ii) a short time later, the same group
confronted Hewlett and McNabb; and (iii) one person in the group punched Hewlett without
provocation. Under these facts, the danger of harm was not imminent—it was occurring.
¶ 64 Given what Hewlett knew, the group’s size, and the sudden violence the group initiated,
counsel erred by concluding the danger of harm to Hewlett was not imminent under the law. As
Hewlett points out, “a physical beating may qualify as such conduct that could cause great bodily
harm.” People v. Reeves, 47 Ill. App. 3d 406, 411 (1977). And “the aggressor need not have a
weapon to justify one’s use of deadly force in self-defense[.]” Reeves, 47 Ill. App. 3d at 411.
Finally, “the law does not charge a person when he has reasonable grounds to believe himself in
apparent danger of losing his life or suffering great bodily injury, to use inerrable judgment.”
People v. White, 87 Ill. App. 3d 321, 323 (1980). Given what Micaela told Hewlett, the law does
not demand perception of ultimate harm be prescient. Counsel erred by concluding otherwise.
¶ 65 In reaching this conclusion, we reject as baseless the State’s repeated assertion that counsel
“develop[ed] two potential defenses simultaneously,” sufficiency and self-defense. The trial record
demonstrates that counsel argued in closing only the insufficiency of the State’s evidence. Indeed,
at the post-trial hearing, counsel explained why he abandoned self-defense, rebutting the State’s
assertion that he pursued an alternative theory of self-defense. Nor did the trial court consider self-
- 14 - No. 1-22-0107
defense on its own initiative. The record shows the trial court barring counsel from using a photo
of Lawson (proposed Defense Exhibit 2), which, in the court’s view, would have required counsel
to have litigated the Lynch motion he withdrew before trial.
¶ 66 While “the choice of defense theory is ordinarily a matter of trial strategy” and counsel
“has the ultimate authority to decide” strategy (People v. Guest, 166 Ill. 2d 381, 394 (1995)),
counsel still must observe “prevailing professional norms.” Strickland, 466 U.S. 687-89. Those
norms do not shield a misapprehension of the law. People v. Wright, 111 Ill. 2d 18, 30-31 (1986)
(finding misapprehension of intoxication defense failed to satisfy objective standard of reasonable
competence). After carefully reviewing the record, we find his error to have been clearly evident,
plain, and indisputable. See Jackson, 2020 IL 124112, ¶ 98 (stating standard).
¶ 67 Prejudice
¶ 68 Given counsel’s error, we analyze whether a reasonable probability exists for an acquittal
absent the error. Strickland, 466 U.S. at 687-89. Measuring that probability requires considering
all the evidence before the trial court and how the error impacted the trial court’s “overall picture
of events.” People v. McCarter, 385 Ill. App. 3d 919, 935-36 (2008).
¶ 69 In rejecting Hewlett’s claim, the trial court found that his post-trial testimony “especially”
was insufficient to show prejudice under Strickland. The trial court’s focus was too narrow.
McCarter, 385 Ill. App. 3d at 935-36. Here, evidence supporting a claim of self-defense does not
hinge on Hewlett’s credibility. See, e.g., People v. Jones, 175 Ill. 2d 126, 133 (1997) (noting,
“circumstantial evidence presented by the State [may] raise [] affirmative defense”).
¶ 70 As it happens, the State’s case-in-chief presented evidence supporting a claim of self-
defense. Collins’ second statement, admitted as substantive evidence, alluded to a motive for
- 15 - No. 1-22-0107
Collins and the others to attack Hewlett and McNabb. Collins stated that he knew them “from the
streets” though it would be “pointless to fight” as the police were “everywhere.” Sergeant Norey’s
testimony described Micaela as tearfully reporting having just seen a firearm while walking with
her father. Finally, Hewlett tested positive for gunshot residue in a greater quantity on his dominant
hand, and forensics connected the gunshot residue from the firearm recovered near his brother’s
car with the only cartridges recovered from the scene.
¶ 71 Given the nature of the State’s evidence, the prejudice to Hewlett was dramatic. Counsel’s
failure to articulate a viable defense theory ensured Hewlett’s conviction. At trial, the State noticed
this and pounced on that weakness in the rebuttal at closing argument. Hewlett’s counsel had
ignored the evidence about gunshot residue. So, the State argued, “The fact of the matter is even
without the evidence of Denzell Collins, you have Brian Hewlett leaving the scene of a murder,
with positive [gunshot residue] on his hands and the murder weapon.”
¶ 72 The State’s case did two things: (i) offered an opening for raising a claim of self-defense
and (ii) begged an explanation, one that a claim of self-defense could answer. The trial court
overlooked this point and failed to analyze the post-trial testimony of McNabb, Micaela, and the
expert on digital forensics. Their testimony supported a finding of prejudice as it reflects the
evidence in the State’s case-in-chief and justified Hewlett’s actions. See Bazydlo v. Volant, 164
Ill. 2d 207, 214-15 (1995) (forbidding judges from “arbitrarily or capriciously reject[ing]
unimpeached testimony”). Unless contradicted, inherently improbable, or impeached, “testimony
cannot be disregarded even by a jury.” People ex rel. Brown v. Baker, 88 Ill. 2d 81, 85 (1985).
¶ 73 But even had all this evidence led to a finding that Hewlett was not justified in killing
Lawson, he still could have argued for second-degree murder, “a lesser-mitigated offense” of first-
- 16 - No. 1-22-0107
degree murder. People v. Wilmington, 2013 IL 112938, ¶ 48. Second-degree murder occurs when
a person unlawfully kills another person under the “unreasonable” belief that the circumstances
“justify or exonerate the killing.” 720 ILCS 5/9-2(a)(2).
¶ 74 A second-degree murder verdict would have led to a sentencing range of 4 to 20 years’
imprisonment, a maximum sentence nearly half the minimum 45 years imprisonment Hewlett
faced. 730 ILCS 5/5-4.5-30(a) (defining sentencing range for second-degree murder); 730 ILCS
5/5-8-1(a)(1)(d)(iii) (defining firearm addon for shooting that proximately causes death); 730 ILCS
5/5-4.5-20 (defining base sentencing range for first-degree murder). The 20-year cap is 34 years
less than the sentence than the 54 years he received for first-degree murder. See Glover v. United
States, 531 U.S. 198, 203 (2001) (noting, “any amount of actual jail time has Sixth Amendment
significance”).
¶ 75 After reviewing the record, we find prejudice. People v. Lucious, 2016 IL App (1st)
141127, ¶ 45 (noting, prejudice may exist when chance of acquittal “significantly less than 50
percent” if verdict reasonable). And that prejudice was clearly evident, plain, and indisputable. See
Jackson, 2020 IL 124112, ¶ 98 (stating standard).
¶ 76 Admission of Prior Inconsistent Statements
¶ 77 Finally, Hewlett contends the trial court erred by admitting as substantive evidence out-of-
court statements by Denzell and Dylon Collins. The State responds that Hewlett forfeited this
claim, and it lacks merit. Because the issue may arise on re-trial, we note that subsection 115-
10.1(c)(2)(A) requires that the declarants of the prior inconsistent statements (the Collins brothers)
have “personal knowledge” of the subject of their statements (the shooting they witnessed). People
v. Simpson, 2015 IL 116512, ¶¶ 31-33. Section 115-10.1 does not require the investigator who
- 17 - No. 1-22-0107
assisted in taking the statements have personal knowledge of the events. Investigators rarely, if
ever, are eyewitnesses to the crimes they investigate.
¶ 78 Reversed and remanded.
- 18 -