2022 IL App (1st) 192299-U
FIFTH DIVISION Order filed: March 25, 2022
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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. 01 CR 2559 ) DENNIS LIGON, ) Honorable, ) James Michael Obbish, Defendant-Appellant. ) Judge, presiding.
JUSTICE HOFFMAN delivered the judgment of the court. Presiding Justice Delort and Justice Connors concurred in the judgment.
ORDER
¶ 1 Held: We affirm the third-stage denial of the defendant's successive postconviction petition where the circuit court did not err when it found that the defendant had not established prejudice as the result of trial counsels’ failure to call a witness mentioned during opening statements.
¶ 2 The defendant, Dennis Ligon, appeals from an order of the circuit court of Cook County,
denying his successive postconviction petition under the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2020)), following a third-stage evidentiary hearing. For the reasons
that follow, we affirm. No. 1-19-2299
¶ 3 The facts of this case are set forth in this court’s opinion in People v. Ligon, 365 Ill. App. 3d
109 (2006) (Ligon I). We repeat those facts here, with additional material relevant to the issue in
the case before us.
¶ 4 The defendant was charged with aggravated vehicular hijacking (720 ILCS 5/18-4 (West 2000))
and the matter proceeded to a jury trial.
¶ 5 At trial, defense counsel assistant public defender (APD) Camille Calabrese, made an opening
statement in which she asserted that this was a classic case of misidentification, and that the
defendant had a son, Dennis Compton, who resembled the defendant. Specifically, she told the jury:
“Now, we believe that we are going to be able to produce Dennis Compton for you. Mr.
Compton has been subpoenaed. And I’m confident that after you hear the testimony of Mr.
Compton, the son of Dennis Ligon, you will have more than reasonable doubt as to whether
or not it was in fact Mr. Ligon who possessed that automobile that day indeed, let along
[sic] whether or not it was he who took the automobile on December 16th.
Mr. Ligon may be guilty of protecting his son but that doesn’t mean that he’s guilty of
having taking [sic] this automobile. And I’m confident that at the close of the evidence
your verdict is gonna be not guilty.”
¶ 6 During trial, Ana Diaz testified that, on December 16, 2000, at 1:15 pm she drove her red Ford
150 pickup truck into a parking lot on Western Avenue in Chicago. As she was looking for a
parking space, Diaz noticed an individual she later identified as the defendant standing nearby.
Diaz parked and was getting out of her truck when she was approached from behind by the
defendant, who blocked her from exiting her truck and told her to leave the keys in the ignition
and to get out. Diaz stated the defendant was very close to her, looking at her in the eye. Diaz
-2- No. 1-19-2299
testified that the defendant had nothing covering his face. Diaz felt the defendant pushing
something into her ribs. When she heard a click, she looked down and saw a gun in the defendant's
hand. Diaz testified, she screamed, handed the defendant her keys, and moved away from the truck.
As the defendant drove away in Diaz' truck, he hit another car. Diaz borrowed a phone to call the
police. Diaz testified Humberto Perez came to her assistance, following the defendant for several
blocks before losing sight of the truck. On January 3, 2001, Diaz went to the police station to view
a lineup. She testified that she identified the defendant out of a lineup as the man who had stolen
her truck. At trial, Diaz made an in-court identification of the defendant, identified the defendant
in a picture of the lineup and identified a BB gun as the gun the defendant had pushed into her ribs.
On cross-examination, Diaz testified that she made the identification at the lineup in less than two
minutes. On redirect examination, she testified that she will never forget the defendant’s face.
¶ 7 Humberto Perez testified that, on December 16, 2000, he was leaving a store on Western
Avenue and walking across the parking lot when he saw Diaz sitting in a truck with a man very
close to her. He did not see the man’s face. Perez testified he got into his car and then heard a
scream. He rolled down his window and asked Diaz what was happening. Perez stated that she
replied that a man had stolen her pickup truck. Perez followed the truck for several blocks but lost
sight of it after it passed through a red light. On cross-examination, Perez testified that he never
identified anyone in connection with the vehicular hijacking.
¶ 8 Georgio Dawson, a 13-year-old boy, testified that he knew the defendant. Dawson stated that,
on January 2, 2001, at 8 p.m., the defendant was babysitting him while his mother worked. He
stated that he and the defendant went for a ride in a red Ford truck. Dawson testified he had also
ridden in the truck a few weeks earlier when the defendant had taken him and his mother grocery
-3- No. 1-19-2299
shopping. Dawson testified that he and the defendant picked up a man Dawson described as “dark”
and “bald” and then stopped while the defendant talked to a woman named Tenita. The defendant
told Tenita that he would pick her up later in the evening. Dawson testified that thereafter, he and
the defendant dropped off the dark, bald man and picked up the defendant's son, Dennis Compton.
Dawson testified that Compton wore his hair in short “twisties”, but the defendant had braids.
Compton’s skin tone was darker than the defendant’s skin tone. Dawson stated that after dropping
Compton off, he and the defendant picked up Tenita. The defendant then dropped Dawson off at
Compton’s girlfriend's apartment. Dawson stated that the defendant told him that he would be back
in 40 minutes to pick him up. Dawson testified he watched television and fell asleep.
¶ 9 Dawson further testified that, several hours later, he heard a horn honking and looked out of
the window and saw the red truck. Dawson went outside and got into the truck. Tenita was in the
truck, but the defendant was not. Shortly thereafter, a police car approached the truck. The police
officer told Dawson and Tenita to get out of the truck. Dawson stated that the officer searched the
truck and found a BB gun. Dawson identified the BB gun at trial. Dawson testified he told the
officer that the driver of the truck was named Dennis and went with the police to look for the
driver. Dawson stated that the defendant was found near an elevated train station. Dawson testified
that, at all times, the defendant was driving the truck and that he never witnessed Compton driving
the truck.
¶ 10 On cross-examination, Dawson described the defendant as approximately six foot five inches
tall, with light skin and braids, broad in the shoulders. Dawson described Compton as six foot tall,
with darker skin and twisties. Dawson testified that Compton is shorter and smaller than the
defendant.
-4- No. 1-19-2299
¶ 11 Tenita Barber testified that, although she had seen the defendant driving in a red truck several
times at the end of December 2000, she first spoke with the defendant on December 31, 2000.
Barber next saw the defendant driving the red truck on January 2, 2001, at 9 p.m. She testified that
on that occasion, the defendant was with Dawson and a man Barber also described as “dark” and
“bald.” According to Barber, the defendant told her that he would come back to pick her up at
10:45 p.m. and to come to the truck when she heard him honk. At about 11 p.m., Barber heard the
defendant honking and got into the truck. Barber testified that only the defendant and Dawson were
in the truck. She stated that she and the defendant dropped Dawson off and proceeded to drive
around, drinking alcohol and smoking marijuana. According to Barber, the defendant told her that
he had just bought the truck. Eventually, the defendant and Barber drove back to the apartment
building where they had left Dawson. Barber testified that the defendant honked the horn but got
out of the truck when Dawson did not come out of the building. After the defendant had walked
away from the truck, Dawson came out of the building and got into the truck. Barber testified that,
shortly thereafter, the police arrived and asked her and Dawson to get out of the truck. As they
were searching the truck, Barber heard the police officers say that they had found a BB gun. Barber
testified she was arrested and charged with criminal trespass to a vehicle. Barber also stated her
belief that the defendant was approximately 32 years old. On crossexamination, Barber testified
that she did not know anyone named Dennis Compton.
¶ 12 Timako Cobb, Dawson's mother, testified that she met the defendant in December 2000 and
that, when he took her and her son to the grocery store in late December, the defendant was driving
a red Ford truck. Cobb stated that, on January 2, 2001, the defendant offered to watch Dawson
while Cobb was at work, and that the defendant was still driving the red truck.
-5- No. 1-19-2299
¶ 13 Officer Eric Helson testified that, on January 3, 2001, at 5:10 a.m., he and his partner were on
duty when they noticed another patrol car stopped near a red Ford truck. He stated that, after talking
to the officer who had arrived on the scene earlier, Dawson, and Barber, he and his partner took
Dawson to look for the driver. The driver, who Officer Helson identified as defendant, was found
standing near the entrance to an elevated train station about a block and a half from the red truck.
Officer Helson stated a BB gun was recovered from the driver's side floor of the truck, and he
identified the BB gun at trial.
¶ 14 Forensic scientist Debra McGarry, a specialist in latent fingerprints, identified the BB gun as
the one that she received for latent print analysis. McGarry testified that there were not latent prints
on the BB gun suitable for comparison.
¶ 15 The parties stipulated that Diaz was the owner of the red Ford truck in which Barber and
Dawson were riding.
¶ 16 The State rested, and the defense rested without presenting testimony. In closing argument,
the State argued that the witnesses were not mistaken in their identification of the defendant.
Defense counsel, APD Anthony Thomas, argued that there was no doubt that someone hijacked
Diaz’ truck. He argued, however, that the State had failed to prove that the person who stole the
truck was the defendant. APD Thomas argued that he did not know who took Diaz’ truck but that
he did not have to know because the defendant was not required to prove his innocence. He argued
that the State’s witnesses were not credible.
¶ 17 The jury found the defendant guilty of aggravated vehicular hijacking. The defendant filed a
pro se motion for judgment notwithstanding the verdict, in which he alleged, inter alia, that trial
counsel was ineffective for failing to move to dismiss his indictment, to move to quash his arrest,
-6- No. 1-19-2299
to move to suppress suggestive identification evidence, to challenge the destruction of exculpatory
evidence, to call witnesses to testify to the misidentification of him, and to consult with him prior
to admitting his guilt in defense counsel’s opening statement. APD Thomas also filed a motion for
a new trial on the defendant’s behalf. Thereafter, the public defender was allowed to withdraw,
and a private attorney was appointed to represent the defendant. The attorney filed a supplemental
motion for a new trial.
¶ 18 The trial court conducted a hearing on the defendant’s motion.
¶ 19 APD Thomas testified that his strategy for the case was based on his belief that the witness
descriptions of the offender more closely matched Compton than the defendant. APD Thomas
stated that he spoke with Compton in the afternoon on both the first and second days of the
defendant’s trial. He admitted that APD Calabrese indicated in her opening statement that this was
a situation where a father was being held responsible for the actions of his son. APD Thomas
testified that the State presented their witnesses and he and APD Calabrese attempted to impeach
their identifications. He admitted that he did not call Compton to testify, believing that Compton
was not a credible witness and would not be well received by the jury. According to APD Thomas,
he spoke with the defendant who agreed that Compton should not be called as a witness. APD
Thomas further explained that Compton was arrested on an allegation of intimidating a witness
who had previously testified in the defendant’s trial, and he worried that evidence of the arrest
might come out at trial and harm the defendant’s case. APD Thomas could not remember whether
he had photographs made of Compton to use in the event that he did not testify.
¶ 20 Compton testified that he had been subpoenaed to testify at the defendant's trial. He stated
that he weighed between 170 and 180 pounds and was five foot seven inches tall. On
-7- No. 1-19-2299
crossexamination, Compton testified that, had he been called as a witness at the defendant’s trial,
he would have testified that he was not present at the scene of the vehicular hijacking and did not
know who committed the offense. Compton testified that he would not have testified that he
committed the offense.
¶ 21 The defendant testified that Compton lived in the area where the truck was recovered. He
stated that he never told APD Thomas that it would not be a good idea to call Compton as a witness
or display his photograph to the jury. On cross-examination, the defendant testified that Compton
“had knowledge” of the truck.
¶ 22 The court denied the motion and sentenced the defendant to life imprisonment. On direct
appeal, this court affirmed the defendant's conviction and sentence. See Ligon I, 365 Ill. App. 3d
at 128. This court did not address the issues of whether trial counsel was ineffective for suggesting
that Compton would testify without a reasonable basis to believe that he would. Id. at 122. This
court concluded that the issue was better suited to a postconviction petition because the record had
not been fully developed. Id. Our supreme court denied the defendant leave to appeal. People v.
Ligon, No. 102568 (2006).
¶ 23 The defendant filed a petition for a writ of habeas corpus in federal court including, inter
alia, a claim that trial counsel was ineffective. The district court denied the defendant’s petition.
Ligon v. Jones, No. 06 C 5862 (2007) (2007 WL 2351228). ¶ 24 In 2007, the defendant filed a pro se petition for postconviction relief, alleging that the
Habitual Criminal Act was unconstitutional. The circuit court summarily dismissed the petition.
See People v. Ligon, 392 Ill. App. 3d 988, 994 (2009) (Ligon II).On appeal, the defendant argued
only that counsel should have been appointed to assist him with the two claims this court indicated
would be better suited to postconviction relief. Id. at 994. This court held that the claims were
-8- No. 1-19-2299
forfeited because they had not been raised below, noting, however, that the defendant could raise
them in a successive postconviction petition if he could meet the “cause and prejudice test.” Id. at
996. This court further held that the defendant was not entitled to appointed counsel. Id. at 1000.
The supreme court affirmed. People v. Ligon, 239 Ill. 2d 94 (2010) (Ligon III).
¶ 25 In 2012, the defendant filed a petition to vacate his conviction pursuant to section 2-1401 of
the Code of Civil Procedure (735 ILCS 5/2-1401 (West 2008)). He argued that his conviction
violated the proportionate penalties clause of the Illinois Constitution because the Class X offense
of which he was convicted of had the identical elements as a Class 1 felony. The circuit court
dismissed the defendant’s petition sua sponte. This court reversed, finding that the two offenses
had identical elements. People v. Ligon, 2014 IL App (1st) 120913, ¶ 10 (Ligon IV), rev’d, 2016
IL 118023 (Ligon V). The supreme court reversed this court and affirmed the decision of the circuit
court. Ligon V, 2016 IL 118023, ¶¶ 32-34.
¶ 26 In 2012, the defendant filed a motion for leave to file a successive postconviction petition,
which the circuit court granted at the first stage of postconviction proceedings. At the second stage,
the State filed a motion to dismiss which the circuit court denied. Thereafter, the circuit court
conducted a third-stage evidentiary hearing.
¶ 27 At the hearing, Monalisa Dugue testified that from 2001 to 2003 she worked as a paralegal
and reader for the public defender’s office, and she was assigned as a reader for APD Thomas, a
visually impaired attorney. As part of her duties, she accompanied APD Thomas when he visited
the defendant at the jail prior to trial. Dugue testified that, on one occasion, APD Thomas fell
asleep during an interview with the defendant. Dugue recalled meeting with Compton once during
the trial and described his appearance to APD Thomas. Dugue stated that she told APD Thomas
-9- No. 1-19-2299
that Compton had a tattoo on his face. Dugue described Compton and Ligon as having drastically
different physiques. Ligon was bigger, had broader shoulders, and was a bit taller.
¶ 28 Dugue also testified that Compton was arrested for intimidating a witness outside the
courtroom. Dugue was in the courtroom when a sheriff’s deputy told her that a witness had been
arrested. After a conversation with Compton in the lockup, a decision was made not to call him as
a witness.
¶ 29 APD Calabrese testified that, in 2003, she was employed as an assistant public defender. She
stated that APD Thomas asked her to be his “second chair” at the defendant’s trial. Together they
formulated a defense strategy based on misidentification. APD Calabrese testified APD Thomas
spoke with Compton several times by telephone. According to her, both she and APD Thomas felt
that, because the case involved a potential life sentence, it was important to put on a strong defense.
She stated:
“we felt the evidence was overwhelming and that we needed to come out asserting a
defense and so even though it was very unusual we reasoned that since we had the son there
even though there was a risk that he would bail on us we decided to go with the risk because
we needed to put on a defense and we did have the son there and so, yes, that is what we
went with asserting our defense, that was the primary theory, we wanted to put it on that
we had a defense rather than not argue anything.”
APD Calabrese stated that they planned to call Compton as a witness until he was arrested for
intimidating a witness.
¶ 30 The defendant testified that before trial he met with APD Thomas and a paralegal at the jail.
The defendant stated APD Thomas fell asleep during the interview and began snoring. He testified
- 10 - No. 1-19-2299
that he was in Bettendorf, Iowa, at the time of the vehicular hijacking and that he gave APD
Thomas a bus ticket that proved his alibi. The defendant stated that he had the bus ticket in his
pocket and that he was able to get it into the jail because it was missed during a search. The State
objected arguing that it had not been given any notice of an alibi defense and that the line of
questioning was improper because it addressed an issue that had not been pled in the defendant’s
postconviction petition and the circuit court had not ordered a hearing on the issue. The circuit
court sustained the objection.
¶ 31 The defendant also testified that Compton had “knowledge” of the truck because it was found
in front of his apartment building. The defendant stated that he was taller and a little heavier than
Compton. According to the defendant, APD Thomas told him that he intended to use
misidentification as a defense. The defendant testified that he was never told why Compton was
not called as a witness and never agreed to the strategy of not calling Compton.
¶ 32 Postconviction counsel moved for leave to amend the successive postconviction petition to
conform to the proofs and reopen the evidentiary portion of the hearing to present evidence that
APD Thomas had been informed of an alibi but failed to investigate. The circuit court granted the
motion and conducted a supplemental evidentiary hearing.
¶ 33 Among other exhibits, the defendant presented two affidavits during the hearing. One affidavit
purportedly signed by Compton, stating that he took the truck, and adding, in relevant part:
“5. I was willing to testify at my father’s trial that I took the red truck even after I was
arrested.
6. I was willing to be shown to the jury even after I was arrested.
- 11 - No. 1-19-2299
7. When I testified at the hearing after the trial I was under the influence of drugs and that
is why I said I was not present when the red truck was taken.”
The second affidavit signed by the defendant alleged that he was in Bettendorf, Iowa, on December
16, 2000, and took a bus to Chicago on December 17, 2000, where he was picked up by Theresa
Johnson. The affidavit stated that he never drove a red truck in December 2000.
¶ 34 Kimberly Ligon, the defendant’s wife, testified that, in December 2000, she and the defendant
were living together in Bettendorf, Iowa. In December 2000, the defendant took a bus to Chicago.
Kimberly could not recall the exact date. She identified photographs of the defendant and Compton
and testified that the photographs reflected the way they appeared in 2000.
¶ 35 Kenyana Compton, the defendant’s daughter, testified that, in 2000, the defendant called her
when he arrived in Chicago. She could not recall the date. Kenyana testified that Compton was her
brother and that he and the defendant “looked just alike.”
¶ 36 APD Thomas testified that he met with the defendant in the jail and in the lockup at the
courthouse. He did not recall either discussing an alibi defense with the defendant or the defendant
telling him that he had a bus ticket in his cell. APD Thomas stated the defendant never tried to give
him a bus ticket. APD Thomas did recall the defendant saying he lived different places moving
back and forth between Illinois and Indiana. However, he did not recall the defendant mentioning
that he lived in Iowa. APD Thomas stated that the defendant mentioned Compton as a potential
witness. According to APD Thomas, he called Compton several times and left messages, but never
spoke to Compton before he got to court. He stated that he did not interview any witnesses prior
to trial. APD Thomas testified that APD Calabrese crafted her own opening statement. He stated
that he did intended to call Compton as a witness but changed his mind after speaking to Compton
- 12 - No. 1-19-2299
and deciding he was not credible. APD Thomas testified that he did not request a continuance when
Compton was arrested because, by then, he had decided not to call him as a witness. He stated that,
if the defendant had told him about alibi witnesses, he would have interviewed them.
¶ 37 In response to questioning by the court, APD Thomas testified that the defendant told him
that Compton would testify that he was the one driving the truck the night the defendant was
arrested. APD Thomas added that he could not get a “straight story” from Compton and suspected
that the defendant was “supporting perjury.” APD Thomas stated that he did not believe Compton
and did not believe a jury would believe him either. APD Thomas testified he was familiar with a
police report in which the defendant was noted to have said that he rented the truck from a friend
for $80 before Christmas, returned it, and borrowed it a second time after Christmas. APD Thomas
noted that a detective attempted to interview the friend and learned from the man’s mother that he
had been in custody since December 23, 2000, and had never been in possession of a red truck.
APD Thomas stated that he was aware that the detectives reinterviewed the defendant and that he
stated he was mistaken and must have gotten the truck from someone else.
¶ 38 The defendant testified that when he was paroled in 2000, he had his parole transferred to
Iowa and lived in Bettendorf. He stated he had never been to Indiana. The defendant testified his
“rap sheet” reflected the parole to Iowa.
¶ 39 On cross-examination, the defendant admitted that he submitted an affidavit in the
postconviction proceedings in 2012, and that the affidavit did not mention his being in Iowa at the
time of the vehicular hijacking. The defendant also admitted that a 2018 affidavit he submitted in
the postconviction proceedings mentioned being in Iowa and that he was picked up from the bus
- 13 - No. 1-19-2299
station by Theresa Johnson. Defendant admitted, however, that he never mentioned Johnson to
APD Thomas but contended that was because APD Thomas never asked him.
¶ 40 In response to further questioning by the court, the defendant testified that he filed a pro se
motion for judgment notwithstanding the verdict because he believed APD Thomas was
ineffective. The defendant admitted that, in the 49-page motion, he never mentioned that he was
in Iowa when the truck was hijacked.
¶ 41 The defense rested and the State rested without presenting witnesses. Following arguments,
the circuit court held that APD Thomas testified credibly that the defendant agreed with the
decision not to call Compton during trial. The court also held that there was, based on the
photographs, some similarity between the defendant and Compton. The court noted, however that
Diaz initially described the offender as 35 years old, and that the defendant was 37 years old at the
time of the offense. Compton was 23 years old at the time of the offense. The court held that APD
Thomas’ trial strategy regarding Compton was “arguably” not well developed and “arguably
something that could support a claim for ineffective assistance.” The circuit court found, however,
that sometimes decisions need to be made “on the fly,” and that that was what happened in this
case. The court concluded that there was “no reasonable probability that had the opening statement
not been made the way it was, that that would have created a reasonable probability that but for
the strategy of Mr. Thomas and Ms. Calabrese that the results would have been different.”
¶ 42 With regard to the alibi defense, the circuit court held that it did not believe the defendant’s
testimony that he had a bus ticket which would have proven he was in Iowa at the time of the
offense and did not believe the defendant gave APD Thomas a bus ticket.
- 14 - No. 1-19-2299
¶ 43 The court concluded that the evidence against the defendant was overwhelming. The court
further found that: “I don’t believe that there was a reasonable probability that [but] for counsels’
alleged errors that the results would have been different.” The court denied the defendant’s
successive petition for postconviction relief. This appeal followed.
¶ 44 The Act provides a procedure whereby a person in the penitentiary may assert that his
conviction was the result of a violation of the federal or state constitution. 725 ILCS 5/122-1 et
seq. (West 2020); see also People v, Ruddock, 2022 IL App (1st) 173023, ¶ 44. Proceedings under
the Act are a collateral attack on a final judgment; they are not a substitute for a direct appeal.
People v. Edwards, 2012 IL 111711, ¶ 21. Proceedings under the Act have three stages. Ruddock,
2022 IL App (1st) 173023, ¶ 44. If a postconviction petition survives summary dismissal at stage
one and is not dismissed on the state’s motion at stage two, the circuit court conducts a stage-three
evidentiary hearing. Id. At an evidentiary hearing, the defendant must establish by a preponderance
of the evidence that he suffered a substantial deprivation of his constitutional rights. People v.
Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 27 (1970)).
¶ 45 When a defendant alleges ineffective assistance of counsel, we apply the two-prong test
articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). People v.
Velasco, 2018 IL App (1st) 161683, ¶ 138. A defendant must establish that (1) trial counsel’s
representation fell below an objective standard of reasonableness and (2) there is a reasonable
probability that, but for counsel’s errors, the result of the trial would have been different. People
v. Enis, 194 Ill. 2d 361, 376 (2000) (citing Strickland, 466 U.S. at 694); see also People v.
Domagala, 2013 IL 113688, ¶ 36. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome, namely, that counsel's deficient performance rendered the
- 15 - No. 1-19-2299
result of the trial unreliable or the proceeding fundamentally unfair.” Enis¸ 194 Ill. 2d at 376. A
defendant must also overcome the strong presumption that any challenged action or inaction may
have been the product of trial strategy. People v. Dupree, 2018 IL 122307, ¶ 44. The failure to
satisfy either prong of the Strickland test is fatal to a defendant’s claim. Enis¸ 194 Ill. 2d at 377.
As a result, if it is easier to dispose of an ineffective-assistance-of-counsel claim on the basis that
the defendant has not established sufficient prejudice, we may proceed directly to Strickland’s
prejudice prong and need not determine whether counsel’s performance was deficient. People v.
Johnson, 2021 IL 126291, ¶ 53.
¶ 46 Claims of ineffective assistance of counsel generally involve mixed questions of law and fact.
Velasco, 2018 IL App (1st) 161683, ¶ 137. Accordingly, we will disturb the circuit court's factual
findings only if they are against the manifest weight of the evidence but will review de novo the
ultimate determination of whether the defendant was denied the effective assistance of counsel. Id.
¶ 47 We conclude that the circuit court did not err in denying the defendant’s petition for
postconviction relief. First, we note that we do not need to consider the alleged failure to investigate
the defendant’s alibi. The trial court found that the defendant’s testimony regarding the alibi was
simply not credible, and the defendant has not raised any arguments regarding the alleged alibi on
appeal. Second, we do not believe the defendant can overcome the presumption that the decision
not to call Compton was a matter of trial strategy. See Dupree, 2018 IL 122307, ¶ 48. APD Thomas
testified to numerous reasons why he believed it was not good strategy to call Compton, including
the changes in Compton’s story, his demeanor, appearance, and perhaps most importantly his arrest
for intimidating a witness during the defendant’s trial. Therefore, we are tasked with determining
- 16 - No. 1-19-2299
whether the unfulfilled promise to call Compton made in opening statements was an error that
“undermine[s] confidence in the outcome.” Enis, 194 Ill. 2d at 376.
¶ 48 The circuit court found that the evidence was overwhelming. We agree. Diaz testified that
she had a clear view of the offender. She immediately identified the defendant in a line up and
testified that she would never forget his face. Although there may be a familial resemblance
between the defendant and Compton, the circuit court heard testimony that the defendant was
heavier and taller and that Compton had a tattoo on his face. Diaz was the only witness who
identified the defendant as hijacking her vehicle, but there was additional circumstantial evidence
that the defendant was the perpetrator. Cobb, Dawson, and Barber all testified that the defendant
was driving a red truck for weeks before he was arrested. In light of the strength of the evidence
against defendant, we cannot conclude that there is a reasonable probability that the jury would
have found the defendant not guilty if they had not heard APD Calabrese’s opening statement in
which she suggested Compton would testify at trial. See Johnson, 2021 IL 126291, ¶ 54 (quoting
Strickland, 466 U.S. at 691) (“ ‘[a]n error by counsel, even if professionally unreasonable, does
not warrant setting aside the judgment of a criminal proceeding if the error had no effect on the
judgment.’ ”). Accordingly, we find that the defendant has failed to meet his burden of establishing
prejudice. Therefore, we need not consider the question of whether APD Thomas or APD
Calabrese’s performance fell below professional norms. See Johnson, 2021 IL 126291, ¶ 53 ¶
49 For these reasons, we affirm the judgment of the circuit court of Cook County.
¶ 50 Affirmed.
- 17 -