People v. Lechuga

2022 IL App (2d) 200647-U

• Court: Appellate Court of Illinois
• Decided: September 12, 2022
• Docket: 2-20-0647
• Status: Unpublished

Opinion

2022 IL App (2d) 200647-U No. 2-20-0647 Order filed September 12, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of Kane County. ) Petitioner-Appellee, ) ) v. ) No. 96-CF-61 ) LEONARDO LECHUGA, ) Honorable ) Kathryn D. Karayannis, Respondent-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court. Justices Jorgensen and Birkett concurred in the judgment.

ORDER

¶1 Held: Trial court did not err in dismissing second-stage postconviction petition.

¶2 The defendant, Leonardo Lechuga, was convicted of attempted first degree murder (720

ILCS 5/8-4, 9-1(a)(1) (West 1995)), armed violence (id. § 5/33A-2), aggravated discharge of a

firearm (id. § 5/12-1.2(a)(2)), and aggravated battery (id. § 5/12-3.05(e)), and those convictions

were affirmed on direct appeal (People v. Lechuga, 361 Ill. App. 3d 1099 (2005) (table)

(unpublished order under Supreme Court Rule 23)). The defendant then filed a postconviction 2022 IL App (2d) 200647-U

petition. The trial court appointed counsel to assist him. The trial court later dismissed his petition,

and he appeals. We affirm.

¶3 I. BACKGROUND

¶4 On January 10, 1996, the defendant was driving a car in which Javier Parras was a

passenger. Parras began to shoot at two men in another car, whom he believed to be members of

of a rival gang. In fact, they were undercover police officers. The officers chased Parras’s car and

returned fire, firing 30 rounds through the windshield of their car. The defendant was ultimately

charged with six counts of attempted murder, two counts of aggravated battery with a firearm,

armed violence, and aggravated discharge of a firearm. All of the counts were based on an

accountability theory.

¶5 One of the officers, Joseph Groom, was shot through the right thumb during the shootout.

Groom testified at trial that the injury occurred on Anderson Street in Aurora as he shot toward

Parras’s car with his right hand outside of the front passenger window. He felt a jolt in his hand

and, when he drew it back inside the car, he saw that his thumb was bleeding. Groom’s partner,

Kevin Triplett, who was driving, testified that, as they were driving on Anderson after the initial

exchange of gunfire, Groom fired his gun out of the passenger side window. Groom then jerked

his hand back inside and said that he had been shot in the hand, but he was okay.

¶6 At trial, a doctor testified about Groom’s injury and opined that, based on x-rays and the

characteristics of the two wounds to Groom’s thumb, the bullet entered Groom’s thumb at the tip

and exited near the base of his thumb. A police evidence technician testified that no shell casings

were found on Anderson, but a round fired from a police-issued weapon had struck a car parked

on Anderson. The technician also testified that no one had collected any of the officers’ clothing

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after the incident, including “Groom’s jacket.” Groom testified on cross-examination that he still

had the clothing he had been wearing during the incident, although it had been laundered.

¶7 Prior to trial, defense counsel moved for the appointment of an expert on ballistics and

firearms to assist the defense in establishing “which bullet holes came from where and what the

trajectory was.” Defense counsel noted that Groom had been shot in the hand and stated that “we

don’t know who shot him in the hand”—Groom could have been shot by Parras, or by Triplett, or

by himself as he was reloading. The trial court granted the motion and, at defense counsel’s

request, appointed John Koziol.

¶8 Koziol issued a report that was critical of Triplett’s and Groom’s actions in firing so many

rounds from inside a moving vehicle. Granting a motion in limine by the State, the trial court

barred Koziol from testifying that the shots were fired in a “wild and unaimed” fashion, suggesting

that the officers had acted recklessly, or opining about the officers’ training and whether they acted

properly. Defense counsel argued that Koziol should be able to testify about the characteristics of

Groom’s injury and the direction that the bullet could have come from. He also asserted that

Koziol was also qualified to opine that, under proper police procedure, the officers’ clothing should

have been collected, examined, and tested. The trial court barred Koziol from offering any

testimony about the wound characteristics of Groom’s thumb injury, as he had no medical

expertise. However, the trial court ruled that Koziol could testify about “whether or not this wound

could have come from a shot fired from within the car interior.”

¶9 At trial, Koziol testified as an expert in bullet path identification and accident

reconstruction. He had examined the car driven by the officers and concluded that all of the holes

in the windshield were made by bullets fired from inside the car. There was no indication that any

bullets, including the one that made a dent in the car’s hood, struck the car from the opposite

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direction. Defense counsel did not question Koziol about his opinion regarding defects in the

police investigation of the incident, including the failure to collect the officers’ clothing. However,

in closing, the defense argued at length about the improbability of the officers’ testimony that

Groom was shot in the hand while his hand was outside of the police car, highlighting the failure

to collect and test Groom’s clothing. Defense counsel also argued that damage to Groom’s sleeve

and to his face or arm would likely have resulted if Groom had indeed been sighting down the

barrel of his gun as he claimed.

¶ 10 After the trial, the jury found the defendant guilty of attempted murder of Groom, armed

violence, aggravated discharge of a firearm, and aggravated battery. He was acquitted of the other

counts against him. The jury also found that he did not know that the undercover officers were in

fact police officers. The defendant was sentenced to to 20 years for attempted murder and 15 years

for the armed violence, to be served concurrently. The other convictions were merged into the

attempted murder conviction. His convictions were affirmed on direct appeal. Lechuga, 361 Ill.

App. 3d 1099 (2005) (table) (unpublished order under Supreme Court Rule 23).

¶ 11 In June 2006, the defendant filed a postconviction petition. Shortly thereafter, the trial

court appointed postconviction counsel and docketed the case for further proceedings. An

inexplicable 13-year delay then occurred. During that interval, the defendant completed his

sentence and was released. No issue has been raised by anyone regarding this delay.

¶ 12 In May 2019, postconviction counsel filed an amended petition for postconviction relief.

As relevant to this appeal, the amended petition asserted that the defendant’s trial counsel rendered

ineffective assistance by failing to elicit testimony from Koziol on either (1) Groom’s entry and

exit wounds, or (2) the deficiencies in the police investigation, including the failure to collect

Groom’s clothing, examine it, and test it for evidence of gunpowder stippling. He also argued

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that, if the trial court agreed as to either of these claims, his appellate counsel on his direct appeal

was also ineffective for failing to raise these arguments.

¶ 13 The amended petition included an affidavit from Koziol in which he averred (as relevant

here) that he met with the defendant’s trial counsel prior to trial and told him that among the

“obvious deficiencies” in the prosecution’s evidence was the failure by the police evidence

technicians to take Groom’s clothing (and gloves, if Groom was wearing them) into evidence and

submit them to the crime laboratory. Koziol said that he told defense counsel that he could opine

that “an examination of officer Groom’s gloves could have revealed” a particular gunpowder

stippling pattern “and, if so, this would support the conclusion that [the] wound to *** Groom’s

thumb was either self-inflicted or caused by *** Triplett.” Further, if events had in fact unfolded

as the officers described in their police reports, it would be expected that the bullet that caused

Groom’s injury would also have damaged the sleeve of the clothing he was wearing. Koziol

averred that, after he told the defendant’s trial counsel all this, and also that he believed he could

opine on the “forensic pathology” of Groom’s injury including the entry and exit wounds, counsel

advised that he would not be questioning Koziol in any of these areas, as counsel believed that the

trial court “would only allow expert testimony regarding the entry and exit wounds” to be given

by witnesses with medical expertise.

¶ 14 The State moved to dismiss the amended petition, arguing that the record demonstrated

that Koziol was not qualified to opine regarding Groom’s injury under People v. King, 2020 IL

123926, ¶ 37. The State also argued that there was no showing that the collection, examination,

or testing of Groom’s clothing would have yielded any evidence favorable to the defendant, and

mere speculation about the possible results was legally insufficient to support a claim of ineffective

assistance of counsel.

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¶ 15 The trial court granted the motion to dismiss, agreeing with the State that, under King,

Koziol was not qualified to testify regarding Groom’s injury. It did not explicitly address the claim

that counsel was ineffective for failing to elicit Koziol’s opinions about the alleged shortcomings

of the police investigation. This appeal followed.

¶ 16 II. ANALYSIS

¶ 17 On appeal, the defendant raises only one ground of ineffective assistance of trial counsel:

that his trial counsel rendered unconstitutionally deficient assistance by failing to elicit Koziol’s

criticism of the police investigation because it failed to collect, examine, and test Groom’s

clothing. As before, the defendant also argues that, if we conclude that the defendant made a

substantial showing of a constitutional violation of his right to effective trial counsel, his appellate

counsel was ineffective in failing to raise this argument on direct appeal. However, as we conclude

that the defendant failed to make a substantial showing that his trial attorney’s performance

prejudiced him, we do not reach his argument about appellate counsel.

¶ 18 The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2018)) provides a

means by which a defendant may challenge his conviction or sentence for violations of federal or

state constitutional rights. People v. Whitfield, 217 Ill. 2d 177, 183 (2005). The Act sets forth

three stages of review. At the first stage, the trial court may summarily dismiss a postconviction

petition as frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2018). If the

petition is not dismissed, it advances to the second stage.

¶ 19 At the second stage, the defendant is appointed counsel, who must consult with the

defendant, examine the record, and amend the petition as necessary to ensure that the defendant’s

contentions are adequately presented. People v. Gerow, 388 Ill. App. 3d 524, 526 (2009). The

State may then move to dismiss the petition. Id. In considering such a motion to dismiss, the trial

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court must take as true “ ‘all well-pleaded facts that are not positively rebutted by the trial record.’ ”

Id. (quoting People v. Pendleton, 223 Ill. 2d 458, 473 (2006)). Applying this lens, the trial court

must determine whether the petition and the accompanying documentation make a “ ‘substantial

showing of a constitutional violation.’ ” People v. Domagala, 2013 IL 113688, ¶ 33 (quoting

People v. Edwards, 197 Ill. 2d 239, 246 (2001)).

¶ 20 If the motion to dismiss is denied, the State must answer the petition and the proceeding

moves to the third stage, an evidentiary hearing at which the trial court acts as the fact finder and

determines whether the evidence introduced demonstrates that the defendant is entitled to relief.

725 ILCS 5/122-5 (West 2018). The defendant argues that he met the substantial-showing

standard and his petition should have advanced to the third stage. We review the dismissal of a

postconviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 385 (1998).

¶ 21 Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant arguing ineffective

assistance of counsel must show not only that his or her counsel’s performance was deficient but

also that the defendant suffered prejudice as a result. People v. Houston, 226 Ill. 2d 135, 143

(2007). Specifically, under the two-prong Strickland test, “a defendant must show that (1) his

counsel’s performance *** fell below an objective standard of reasonableness, and (2) *** but for

counsel’s deficient performance, there is a reasonable probability that the result of the proceeding

would have been different.” Id. at 144. Because a defendant must satisfy both prongs of the

Strickland test, the failure to establish either is fatal to the claim. Strickland, 466 U.S. at 687.

¶ 22 The defendant argues that his trial counsel’s performance fell below the constitutional

minimum because, although his counsel knew that the source of Groom’s injury was of paramount

importance and indeed was the reason for selecting Koziol as an expert to begin with, his counsel

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failed to elicit Koziol’s opinion that the police investigation of the incident and Groom’s injury

was flawed in that it failed to collect and analyze Groom’s clothing.

¶ 23 The defendant’s argument is foreclosed under People v. Johnson, 2021 IL 126291. There,

the supreme court rejected a similar argument that the defendant’s trial counsel’s failure to request

DNA testing of certain evidence constituted ineffective assistance. The court held that, because

the defendant had not provided any evidence that testing would (or even could) have provided

evidence helpful to him, he had not met the requirement under Strickland to show prejudice:

“ ‘Satisfying the prejudice prong necessitates a showing of actual prejudice, not simply speculation

that a defendant may have been prejudiced.’ ” Id. ¶ 55 (quoting People v. Patterson, 2014 IL

115102, ¶ 81). The supreme court also cited with approval People v. Scott, 2011 IL App (1st)

100122, in which the appellate court rejected a similar argument that defense counsel should have

pursued DNA testing of his shirt, as doing so could conceivably have produced exculpatory

evidence. See Johnson, 2021 IL 126291, ¶ 57 (discussing Scott). It noted that, as was the case in

Scott, “because there is no exculpatory evidence for us to consider, any opinion that could be made

with respect to prejudice would be advisory” (id. ¶ 58) and therefore improper.

¶ 24 We acknowledge that the circumstances of this case can be partly distinguished from those

in Johnson and Scott because in those cases the issue was defense counsel’s failure to request the

testing of evidence, whereas here the issue is defense counsel’s failure to question an expert about

his opinion that the police should have collected evidence that could have been tested. In our view,

however, this is a distinction without a difference. In this case, as in Johnson and Scott, where it

cannot be known whether an examination of Groom’s clothing would have revealed any helpful

evidence, Koziol’s speculation about the potential results of such an examination itself had no

probative value. And, although Koziol could certainly opine that the police investigation was

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defective, we note that defense counsel made that same point in closing argument, repeatedly

referring to the police failure to preserve Groom’s clothing and the possibility that an examination

of that clothing would have refuted the officers’ version of events surrounding Groom’s injury.

The defendant has failed to make a “substantial showing” that any prejudice resulted from trial

counsel’s failure to question Koziol about his opinion that the police investigation was defective.

In the absence of a substantial showing of “a reasonable probability that the result of the proceeding

would have been different” (Houston, 226 Ill. 2d at 144), the trial court did not err in dismissing

the petition.

¶ 25 III. CONCLUSION

¶ 26 For the reasons stated, the judgment of the circuit court of Kane County is affirmed.

¶ 27 Affirmed.

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