People v. Kibayasi

2022 IL App (1st) 200795-U

• Court: Appellate Court of Illinois
• Decided: December 30, 2022
• Docket: 1-20-0795
• Status: Unpublished

Opinion

2022 IL App (1st) 200795-U No. 1-20-0795 Order filed December 30, 2022

First 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 ) Cook County. Plaintiff-Appellee, ) ) No. 09 CR 17820 v. ) ) The Honorable IBRAHIM KIBAYASI, ) Marc W. Martin, ) Judge, presiding. Defendant-Appellant. ) _____________________________________________________________________________

JUSTICE HYMAN delivered the judgment of the court. Presiding Justice Lavin and Justice Coghlan concurred in the judgment.

ORDER

¶1 Held: Ineffective assistance of counsel claims were not raised on direct appeal and are forfeited. Forfeiture notwithstanding, no prejudice resulted, and defense counsel’s decision to present testimony as to mens rea was a matter of defense strategy.

¶2 Petitioner Ibrahim Kibayasi appeals from the second stage dismissal of his petition for

postconviction relief. Following a bench trial, Kibayasi was found guilty of first degree murder of

his infant son and sentenced to 35 years in prison. On appeal, we upheld Kibayasi’s conviction

and sentence. People v. Kibayasi, 2013 IL App (1st) 112291. Private counsel prepared his

postconviction petition, which the trial court dismissed. No. 1-20-0795

¶3 We affirm. Defense counsel’s decision to present testimony as to Kibayasi’s mens rea was

a matter of defense strategy and not ineffective assistance of counsel. Moreover, Kibayasi testified

at trial about his own actions and, thus, cannot show prejudice. The ineffective assistance of

counsel claims regarding pretrial motions, a witness’s evidence deposition, and the failure to call

a mitigation witness at the sentencing hearing were not raised on direct appeal and are forfeited.

Notwithstanding forfeiture, no prejudice resulted. A hearing was held on the motion to quash arrest

at which Kibayasi testified; defense counsel fully participated in the evidence deposition; and

missing witness’s testimony at the sentencing hearing would not have outweighed the aggravating

factors, especially where the trial court had the presentence investigation report.

¶4 Background

¶5 The facts are recounted in our opinion disposing of Kibayasi’s direct appeal. People v.

Kibayasi, 2013 IL App (1st) 112291. To summarize, on September 3, 2009, Kibayasi was at home

caring for his then-five-month-old son, Dylan, while Dylan’s mother, Martha Lupembe, was at

work. Kibayasi became frustrated with Dylan’s crying and shook him with enough force to cause

unconsciousness. Kibayasi performed CPR and was driving him to the hospital when Dylan began

crying, which Kibayasi took as a good sign. Kibayasi instead picked up Lupembe from work. In

the car on the way home, Lupembe noticed that Dylan was having a seizure and called 911. The

dispatcher instructed them to wait for an ambulance. At the hospital, doctors diagnosed extensive

retinal hemorrhages in the back of Dylan’s eyes and subdural hematomas on both sides of his

brain. Dylan’s treating physician testified that nonaccidental trauma, otherwise known as shaken

baby syndrome, likely caused the injuries. Dylan’s condition deteriorated, and days later he died.

¶6 At the hospital, Kibayasi did not tell Lupembe or the doctors that he shook Dylan, and

Detectives Michael Landeweer and Mark Recker questioned Kibayasi. While there, the

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Department of Child and Family Services informed Kibayasi that he and Lupembe were no longer

allowed in Dylan’s hospital room. When Lupembe and Kibayasi left the hospital, the detectives

asked them to go to the police station, which they did. Kibayasi and Lupembe were interviewed

separately. Kibayasi provided a videotaped statement to police and an assistant State’s Attorney,

admitting that after Dylan refused to eat and kept crying, Kibayasi shook him. Id. ¶ 5.

¶7 Before trial, Kibayasi’s counsel filed a “Motion to Suppress Statements,” alleging coercion

rendered his videotaped statement involuntary, and a “Motion To Suppress Evidence Based On

Improper Arrest,” alleging lack of probable cause for his arrest. The court held a hearing on the

motion to quash the arrest at which a detective and Kibayasi testified. After the court denied the

motion, defense counsel stated that Kibayasi would likely withdraw the motion to suppress

statements but needed to consult with his client. The motion was later withdrawn.

¶8 At a bench trial, the State introduced Kibayasi’s statement into evidence without objection

and presented Lupembe’s videotaped deposition. Additionally, the trial court heard testimony from

responding paramedics, Dylan’s treating physician, the doctor who performed Dylan’s autopsy,

and an expert in pediatric emergency medicine. Kibayasi testified on his own behalf. He admitted

shaking Dylan but claimed he did not know that shaking a baby could be deadly. Id. ¶ 33.

¶9 Kibayasi was found guilty of first degree murder and acquitted of aggravated battery.

At the sentencing hearing, the State argued in aggravation that Kibayasi had a good life, was well-

educated, and had no excuse for his actions. In mitigation, defense counsel argued that Kibayasi

was a hard worker who accepted responsibility.

¶ 10 The trial court reviewed the presentence investigation report, a statement by Kibayasi,

and arguments. The trial court found Kibayasi had an anger management problem and noted

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Kibayasi’s position of trust over Dylan and the violent nature of Dylan’s death. The trial court

recognized that Kibayasi felt remorse. Kibayasi received a sentence of 35 years.

¶ 11 Before amending his postconviction petition, Kibayasi filed a complaint with the Illinois

Attorney Registration & Disciplinary Commission against his trial counsel. Trial counsel’s

response stated that Kibayasi’s postconviction counsel followed up with expert witnesses and

obtained affidavits from them, which postconviction counsel incorporated into Kibayasi’s petition.

¶ 12 In his amended postconviction petition, Kibayasi asserted three grounds for claiming

counsel’s ineffectiveness: (i) failure to litigate a motion to suppress his statement; (ii) failure to

present evidence to refute the State’s theory as to the cause of death; and (iii) failure to investigate

and call witnesses to testify in mitigation at the sentencing hearing. Kibayasi also claimed his right

to confront witnesses was denied when the State introduced a videotaped evidence deposition for

Lupembe’s testimony. After a hearing, the trial court denied the postconviction petition in a

detailed 23-page Order.

¶ 13 Analysis

¶ 14 Kibayasi makes four claims of ineffective assistance of trial counsel. He asserts he made a

substantial showing in his postconviction petition that (i) trial counsel failed to present exculpatory

evidence and instead conceded that he killed his son; (ii) trial counsel failed to litigate a motion to

suppress his statement to police, even though detectives physically assaulted him, threatened to

have him beaten by other inmates, and threatened deportation; (iii) trial counsel failed to specify

why his opportunity to cross-examine Lupembe at her deposition was inadequate, and, thus, why

her deposition testimony should not have been admitted at trial; and (iv) trial counsel did not seek

a continuance at sentencing to enable Kibayasi’s father to testify in mitigation.

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¶ 15 The PostConviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) allows a

petitioner to raise a claim of violation of constitutional rights in the original trial or sentencing

proceedings. People v. Ruiz, 2020 IL App (1st) 163145, ¶ 26. The Act sets out three stages. People

v. Edwards, 197 Ill. 2d 239, 244 (2001). To proceed to the second stage, a petitioner must put

forward “the gist of a constitutional claim.” People v. Harris, 224 Ill. 2d 115, 126 (2007). The

court liberally construes the petition in the petitioner’s favor and accepts as true well-pled facts

not positively rebutted by the record. People v. Sanders, 2016 IL 118123, ¶ 31. Second stage

proceedings test the petition’s legal sufficiency and do not resolve evidentiary questions. People

v. Coleman, 183 Ill. 2d 366, 385 (1998). The petitioner bears the burden of making a substantial

showing of a constitutional violation. People v. Domagala, 2013 IL 113688, ¶ 35. If a petitioner

makes the requisite substantial showing, the third stage, an evidentiary hearing, follows. Id. ¶ 34.

¶ 16 To establish an ineffective assistance claim, a petitioner must show (i) counsel’s

performance fell below an objective standard of reasonableness, and (ii) a reasonable probability

exists that, but for counsel’s deficient performance, the result of the proceedings would have been

different. Strickland v. Washington, 466 U.S. 668, 687 (1984). In showing deficient performance,

petitioner must “overcome the strong presumption that the challenged action or inaction of counsel

was the product of sound trial strategy and not of incompetence.” People v. Clendenin, 238 Ill. 2d

302, 317 (2010). Regarding the second prong, a petitioner must show more than a mere possibility

of a different result. People v. Evans, 209 Ill. 2d 194, 220 (Ill. 2004). “[A] reasonable probability

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

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

unreliable or fundamentally unfair.” Id. To prevail, a petitioner must satisfy both the performance

and prejudice prongs of the Strickland test. Id.

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¶ 17 Finally, “any claim of substantial denial of constitutional rights not raised in the original

petition is waived.” 725 ILCS 5/122-3. “[A] postconviction petitioner may not wait until appeal to

formulate the matters that he [or she] wishes to assert as grounds for postconviction relief.” People

v. McNeal, 194 Ill. 2d 135, 153 (2000).

¶ 18 Ineffective Assistance of Counsel

¶ 19 Defense Strategy at Trial

¶ 20 Kibayasi claims he received ineffective assistance of counsel where his trial counsel

conceded the actus reus of the crime and did not present evidence refuting the State’s theory that

Dylan’s death resulted from shaking. Kibayasi argues that trial counsel should have presented

medical records and DCFS reports to support the theory that Lupembe caused Dylan’s injuries. In

his opening statement and cross-examinations, Kibayasi’s trial counsel raised the question of the

timing of Dylan’s injuries, but Kibayasi maintains that was insufficient.

¶ 21 Trial counsel has the right to ultimately decide tactics and strategy after consulting with

the client. People v. Phillips, 217 Ill. 2d 270, 281 (2005). This includes witnesses, whether and

how to conduct cross-examination, jurors to accept or strike, trial motions, and the defense. Id.

¶ 22 The State points to trial counsel’s response to the ARDC complaint. Explaining that

multiple expert witnesses were consulted regarding Dylan’s cause of death, trial counsel stated,

“[p]rior to his trial, we did consider this argument [that Lupembe was responsible], and decided it

was not the best defense strategy at that time.”

¶ 23 The trial court found, and we agree, that the choice of defense did not constitute deficient

performance under Strickland and constituted a reasonable defense strategy. Also, Kibayasi

elected to testify at trial—his choice alone—and admitted he became frustrated with Dylan’s

crying and shook him until he became unconscious. For this reason, Kibayasi could not show

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prejudice. Even if trial counsel had presented evidence challenging the State’s theory of the cause

of death, there is no reasonable probability that the result would have been different.

¶ 24 Pretrial Motions

¶ 25 Next, Kibayasi asserts trial counsel failed to litigate a motion to suppress his statement

to police. The State responds that the decision to file or withdraw a motion is “presumptively trial

strategy,” citing People v. Morales, 339 Ill. App. 3d 554, 563 (2003). Further, the outcome would

not have differed as Kibayasi testified he had shaken Dylan. See People v Ayala, 386 Ill. App. 3d

912, 919 (2008) (defendant not prejudiced by counsel’s failure move to suppress confession).

¶ 26 At the hearing on the motion to quash his arrest, a detective testified to receiving a fax in

which DCFS stated the injuries were consistent with shaken baby syndrome and that Lupembe and

Kibayasi agreed to go to the police station. Kibayasi testified that at the station, detectives

physically assaulted him, threatened to keep him from Dylan, have him beaten by inmates, and

deportation. The detective disclaimed these allegations. The trial court denied the motion to

suppress.

¶ 27 In his postconviction petition, Kibayasi asserted that trial counsel should not have

withdrawn the motion to suppress his statement. In support of its motion to dismiss, the State

argued the evidence presented on the motion to quash included Kibayasi’s testimony about his

alleged mistreatment at the hands of the police and the detective’s testimony refuting it.

¶ 28 The trial court reasoned that the decision not to litigate the motion to suppress constituted

trial strategy, which petitioner waived by not raising it on direct appeal. In trial counsel’s

response to the ARDC complaint, trial counsel explained the decision to withdraw: “An

extensive hearing was conducted after which Judge Scotillo ruled that the arrest of Mr. Kibayasi

was proper and that his videotaped confession would be admitted during trial. After listening to

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the Judge’s ruling, Mr. Kibayasi decided (with my approval) to withdraw the Motion to Suppress

Statements. That Motion argued that Mr. Kibayasi’s confession was involuntary.”

¶ 29 Moreover, the trial court noted that the postconviction petition contained a single sentence

alleging ineffective assistance of appellate counsel for not raising this issue on direct appeal,

which, as an undeveloped allegation, was insufficient to overcome forfeiture. See People v.

Gayden, 2020 IL 123505, ¶ 28 (quoting People v. White, 221 Ill. 2d 1, 21 (2006) (“With regard to

the filing of a motion to suppress, the decision whether to file such a motion is ‘generally a matter

of trial strategy, which is entitled to great deference’”). To establish ineffective assistance based

on failure to litigate a suppression motion, a defendant must demonstrate that the unargued

suppression motion was meritorious and establish a reasonable probability that the trial outcome

would have been different had the evidence been suppressed. Id.

¶ 30 We reject Kibayasi’s claim. Only after the trial court ruled on the motion to quash the arrest

did trial counsel withdraw the motion. This falls squarely within the trial strategy.

¶ 31 Additionally, Kibayasi’s testimony at trial largely repeated what he had said in his

statement to the police, so Kibayasi cannot show prejudice. Even if Kibayasi had prevailed and his

statement was suppressed, we have no basis for saying the trial outcome would have been different.

¶ 32 Lupembe’s Deposition

¶ 33 Before trial, the State moved to admit the recording of Lupembe’s evidentiary deposition

conducted one-and-a-half months after Kibayasi’s arrest. Kibayasi’s trial counsel objected to the

admission of Lupembe’s deposition on the ground that there had been insufficient discovery for

him to cross-examine her adequately. The court granted the State’s motion and admitted the

videotaped deposition, finding Lupembe unavailable because she was in Tanzania, and trial

counsel had an adequate opportunity to cross-examine her at her deposition.

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¶ 34 In his postconviction petition, Kibayasi framed this issue as a denial of his Sixth

Amendment right to confront witnesses, alleging in one sentence that appellate counsel was

ineffective for not raising the issue on direct appeal. In this appeal, Kibayasi expresses the issue as

ineffective assistance of counsel. He argues trial counsel should have been more specific when

objecting to the admission of Lupembe’s deposition, explaining that some DCFS reports were

unknown at the time of the deposition, and they impacted counsel’s ability to cross-examine. The

State argues that this reframing results in forfeiture.

¶ 35 The trial court dismissed this claim, finding it forfeited when he did not raise it on direct

appeal and that appellate counsel’s decision was reasonable.

¶ 36 This claim could have been raised on direct appeal and is forfeited. Still, Kibayasi’s counsel

properly objected to the deposition’s admission, and, further, Kibayasi has not established

prejudice. Counsel cross-examined Lupembe during the deposition; the DCFS report regarding

Lupembe’s involvement would not have exonerated Kibayasi or changed the outcome.

¶ 37 Sentencing

¶ 38 Finally, Kibayasi claims should have sought a continuance to enable his father to testify in

mitigation. Kibayasi attached an affidavit from his father to his postconviction petition in which

his father said he had wanted to testify at the sentencing hearing, but trial counsel told him an

incorrect date. The trial court found Kibayasi waived his claim, and besides, the claim was

meritless because counsel’s decision concerned trial strategy and was non-prejudicial.

¶ 39 The State again raises forfeiture. Contrary to postconviction pleading rules, the State argues

the issue was never raised in the amended petition. Regardless, Kibayasi’s father’s testimony

would have provided no additional information beyond that contained in the presentence

investigation report. See People v. Griffin, 178 Ill. 2d 65, 87 (1997) (“Defense counsel cannot be

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faulted for failing to introduce mitigation evidence that was already contained in the [presentence

investigation] report.”).

¶ 40 Even so, a claim counsel should have investigated and presented additional evidence must

still show prejudice. People v. Enis, 194 Ill. 2d 361, 413 (2000) (duplicative evidence at

sentencing). Kibayasi cannot show prejudice where the evidence in aggravation sufficiently

warrants the sentence.

¶ 41 Argument on Cumulative Effect of Alleged Errors

¶ 42 Before concluding, we address Kibayasi’s contention that the cumulative impact of his trial

counsel’s alleged errors satisfied the prejudice requirement of Strickland. See People v. Vera, 277

Ill. App. 3d 130, 141 (1st Dist. 1995) (though any one error may not have satisfied Strickland,

cumulative impact rendered conviction unreliable). Having found Kibayasi has failed to show his

counsel performed deficiently after analyzing each purported error independently, we also find no

cumulative prejudice. Given the strength of the evidence against Kibayasi and that he cannot

demonstrate a reasonable probability that the outcome of the trial would have been different on

any the presupposed errors, we also reject cumulative prejudice. See People v. Sims, 2019 IL App • I (3d) 170417, ¶ 55 (generally, no cumulative error where individual alleged errors do not amount

to reversible error).

¶ 43 Affirmed.

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