2021 IL App (1st) 190126-U
SIXTH DIVISION May 7, 2021
No. 1-19-0126
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 JUDICIAL DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court of ) Cook County. Plaintiff-Appellee, ) ) v. ) No. 09 CR 09023 ) MICHAEL MINNIFIELD, ) ) Honorable Vincent M. Gaughan, Defendant-Appellant. ) Judge Presiding.
JUSTICE CONNORS delivered the judgment of the court. Justice Harris concurred in the judgment. Presiding Justice Mikva concurred in part and dissented in part.
ORDER
¶1 Held: Circuit court’s denial of third-stage postconviction petition after an evidentiary hearing was not manifestly erroneous; affirmed.
¶2 Defendant, Michael Minnifield, appeals an order of the circuit court that denied his petition
for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014))
after an evidentiary hearing. On appeal, Minnifield contends that the circuit court’s denial was
manifestly erroneous because: 1) his trial counsel was ineffective for failing to investigate and call No. 1-19-0126
multiple alibi witnesses, and 2) newly discovered evidence that Minnifield was not the shooter was
noncumulative, conclusive evidence that would likely change the result on retrial. We affirm.
¶3 I. BACKGROUND
¶4 On the night of April 20, 2009, Renault Darling was shot and killed in a drive-by shooting
near 63rd and Ellis in Chicago. Two people who were with Darling were injured. Minnifield, Kerry
Williams, and Angelo Straight were charged with multiple counts of first degree murder, attempted
murder, and aggravated battery with a firearm. It was alleged at Minnifield’s trial that he was one
of the shooters and the rear passenger of the car used in the shooting.
¶5 A. Jury Trial
¶6 We previously summarized Minnifield’s jury trial in People v. Minnifield, 2014 IL App
(1st) 113778-U. At trial, one of the surviving victims, Theodis Cook-Mims, testified for the State
in part as follows. Cook-Mims had been a member of the Gangster Disciples, but left the gang in
2008 and moved to Louisville, Kentucky. Id. ¶ 7. On the day of the shooting, Cook-Mims was in
Chicago for a funeral and to visit Darling. Id. Cook-Mims, Darling, and other friends went to buy
liquor. Id. When they returned to Darling’s house, Cook-Mims saw a dark blue Dodge Charger
heading in his direction and a beam on his shirt coming from the rear of the car. Id. The occupants
of the Charger fired shots at his group. Id. Cook-Mims heard someone yell, “[Wait] wait. Stop
stop. Stop, stop. Wait, wait,” before the shooting started again. Id. The Charger pulled away
slowly. Id. Cook-Mims was shot twice and Darling was shot in the neck. Id. Cook-Mims went to
the hospital, where he did not tell the police who shot at him because he wanted to go back to
Kentucky. Id. ¶ 8. Later, at the police station, Cook-Mims identified Minnifield as the rear
passenger of the Charger. Id. Cook-Mims recognized Minnifield from high school, but did not
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know him personally. Id. Cook-Mims could not definitively identify the driver at the time. Id. ¶ 8.
Cook-Mims stated at trial that the front seat passenger had a gun. Id. ¶ 9.
¶7 On cross-examination, defense counsel elicited that Cook-Mims bought some marijuana
on the night of the shooting, had just smoked a blunt, and was high before the shooting. Id. Defense
counsel also emphasized Cook-Mims’s grand jury testimony in which he said he was not paying
attention to the front seat passenger and did not know if that passenger had a gun. Id.
¶8 Straight, the alleged driver of the Charger, testified for the State in part as follows. Straight
became a member of the Black P Stones gang at age 17 and Minnifield had been one of his closest
friends in the gang. Id. ¶ 10. The Black P Stones believed that the Gangster Disciples, who
commanded an area known as Dro City, were responsible for the deaths of two Black P Stones
members, Sergio Dukes and Tommy Williams. Id. Straight testified about a rap song, “F*** Dro
City,” in which he recognized Minnifield’s voice as the singer. Id. ¶ 11. Straight testified to the
interpretation of various phrases, including that the letters “GDK” stood for Gangster Disciple
Killer, “RIP Serge, Tommy” referred to deceased Black P Stones members Sergio Dukes and
Tommy Williams, and that the song mentioned two Gangster Disciples and several Black P Stones
by their nicknames. Id.
¶9 On the night of the shooting, Straight drove his blue Charger to pick up Williams, who was
carrying a .40-caliber Glock that he put in the back door panel, and then Minnifield. Id. ¶ 12. The
three men went to a liquor store, gas station, studio, the house of Williams’s relative for an hour
or two, and back to a liquor store. Id. Minnifield took the .40-caliber Glock from the back door
panel and the men went to Dro City to see if they could “catch” some Gangster Disciples who
were not paying attention and shoot at them. Id. When they could not find anyone, Minnifield
suggested they drive to an area called the Quads to shoot at the man who shot Serge, a deceased
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Black P Stone. Id. Minnifield collected a .45-caliber gun from a nearby house before they drove
to the Quads. Id. After waiting 30 minutes without seeing Serge’s shooter, the three men went back
to Dro City. Id. They were traveling north on Ellis toward 63rd Street when they saw
approximately seven people on the right side of the street. Id. ¶ 13. Straight pulled the car parallel
to the group and Williams and Minnifield started shooting out of the windows of the car. Id.
Straight stopped the car to “make sure people got shot” and then hit the gas. Id. Minnifield told
Straight to stop again and both Minnifield and Williams kept shooting. Id. The three men drove
away and dropped off the two guns with someone named Fuzzy. Id. As they were headed to get
something to eat, they were pulled over by police officers. Id.
¶ 10 The next day, Straight told officers he had not been present for the shooting and Minnifield
and Williams had “gone on a caper.” Id. ¶ 14. He also told officers that gunshot residue on his
hands was from a gun he had touched earlier on the previous day. Id. He later admitted to officers
that he was lying about the whole incident. Id. In January 2010, he and his attorney spoke with an
assistant State’s Attorney about the shooting, and on May 13, 2010, he pled guilty to conspiracy
to commit murder. Id. ¶ 15. Straight was given a sentence of 15 years day-for-day in exchange for
his complete and truthful testimony against Minnifield, Williams, and others involved in the
shooting. Id. Straight acknowledged that he had been untruthful to the State about the origin of the
.40-caliber gun that had been used in the shooting and that both guns had actually been purchased
by Straight’s mother. Id. ¶ 16. The State also asked Straight about his prior convictions for a felony
drug offense and unlawful use of a weapon. Id.
¶ 11 On cross-examination, defense counsel confirmed that Straight was facing a possible
sentence of 90 years, but in exchange for his testimony, his sentence was “whittled down” to 15
years, of which he would serve 7½ years. Id. ¶ 18. Defense counsel elicited that Straight had two
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prior felony convictions, was worried about having a murder conviction on his record, and that he
had been looking for a deal from the State. Id. Defense counsel also questioned Straight’s ability
to tell the truth given his track record of lies to police officers and prosecutors about the origins of
the guns used in the shooting even after he signed the plea agreement. Id. Straight answered “no”
to the following questions: if Straight and Williams were the only ones who did the shooting, if
only he and Williams had guns that night, and if he picked up Minnifield only after the shooting.
Id.
¶ 12 An evidence analyst testified that Straight, Williams, and Minnifield each had gunshot
residue on their skin and concluded that each of them either discharged a firearm, contacted an
item that had primer gunshot residue on it, or had a hand in the environment of a discharged
firearm. Id. ¶ 20. After explaining what activities might eliminate gunshot residue on skin, the
analyst testified that Minnifield had the least gunshot reside of the three men and those particles
were mostly on his non-dominant hand. Id.
¶ 13 After closing arguments, the jury found Minnifield guilty of first degree murder and
aggravated battery with a firearm. Id. ¶ 23. Minnifield was sentenced to consecutive 48- and 6-
year terms in prison. Id.
¶ 14 B. Direct Appeal
¶ 15 On appeal, Minnifield contended that: 1) the court committed reversible error in admitting
the rap song, and 2) the evidence was insufficient to prove him guilty because neither Cook-Mims
nor Straight was a credible witness. Id. ¶¶ 25-26. This court found no error related to the rap song
and that the evidence was sufficient to prove Minnifield’s guilt. On November 24, 2014, we
affirmed Minnifield’s convictions and sentence.
¶ 16 C. Postconviction Petition
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¶ 17 On December 18, 2015, Minnifield filed a postconviction petition through counsel that
raised claims of ineffective assistance of counsel and actual innocence, among other claims. The
ineffective assistance claim alleged that his trial counsel failed to conduct a thorough and complete
investigation, failed to investigate potential alibi witnesses, and further stated in part as follows.
In the year-and-a-half between when trial counsel filed his appearance and the start of trial, counsel
never visited Minnifield in jail to conduct a detailed interview, review discovery, or discuss
strategy or defenses. All conversations with Minnifield occurred in the holding area of the
courtroom in the vicinity of other inmates and were never longer than 10 minutes. Further, counsel
did not conduct his own investigation or interview any of the State’s witnesses. Minnifield told
counsel that on the night of the shooting, he was at a party at 61st and Langley from about 6 p.m.
until 11 p.m. Minnifield gave counsel the names and phone numbers of potential alibi witnesses.
When it became apparent that counsel had not contacted them, Minnifield gave counsel’s phone
number to the witnesses. Some of the witnesses called counsel, but their calls were not returned.
Minnifield’s actual innocence claim was based in part on an affidavit from Kevin Watson, who
witnessed the shooting and averred that Minnifield was not the rear passenger of the Charger.
¶ 18 Below, we summarize the affidavits attached to the petition that were written by the
witnesses who later testified at Minnifield’s evidentiary hearing. We also note that a police report
that is part of the postconviction record indicates that the shooting occurred at approximately 10:30
p.m.
¶ 19 Minnifield’s affidavit and an affidavit attached to an amended petition stated in part as
follows. On the night of the shooting, he was at a party at 61st and Langley from 6 p.m. until a
little after 11 p.m. There, he talked to Tyesha McClinton and saw Ashley Brock, among others.
Brock stayed around Minnifield the entire time he was at the party. Minnifield left the party with
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McClinton, Brock, and others, but they went in opposite directions. Outside the party, he saw
Straight in the driver’s seat of his car and Straight agreed to take Minnifield to a restaurant and
drop him off at his girlfriend’s house. Minnifield sat in the rear passenger seat behind Williams.
After they drove off, they were pulled over by police. Minnifield did not leave the party between
6 p.m. and 11 p.m.
¶ 20 Minnifield further averred that he told his trial attorney, Earl Grinbarg, that several
witnesses could verify that he was at the party when the shooting happened and those witnesses
would testify if Grinbarg contacted them. While in the courtroom holding area on a few court
dates, Minnifield verbally gave Grinbarg the names and phone numbers for Tyesha McClinton and
Ashley Brock. Minnifield’s mother and sister also told Grinbarg about the alibi witnesses.
Grinbarg told Minnifield, “They might say something to harm you, I usually don’t contact [alibis]
but I’ll check into it.” Minnifield kept asking Grinbarg whether he talked to the alibi witnesses and
Grinbarg always replied that he had not yet done so. With no progress being made, Minnifield
gave Grinbarg’s phone number to a few of the alibi witnesses. Grinbarg never visited Minnifield
in the Cook County jail and never discussed trial strategy with Minnifield.
¶ 21 The affidavit from Minnifield’s mother, Alicia Owens, stated in part that on several
occasions, Owens insisted to Grinbarg that he call alibi witnesses, especially Ashley Brock.
Grinbarg told Owens that he did not visit the jail and did not like calling alibi witnesses because
they might say something to harm Minnifield.
¶ 22 The affidavit from Minnifield’s sister, Michelle Minnifield 1, stated in part that Ashley
Brock told Michelle that she was at a party with Minnifield on the night of the shooting and he did
not leave the party until after 11 p.m. Michelle told Grinbarg about Brock and he said he would
1 We refer to Michelle Minnifield as Michelle to avoid confusion. -7- No. 1-19-0126
check into Brock, but he never did. Grinbarg told Michelle that he did not visit jails or call alibi
witnesses because they might say something to damage the case.
¶ 23 Tyesha McClinton’s affidavit stated in part as follows. On the night of the shooting,
McClinton went to a party at 61st and Langley, arriving around 8 p.m. and leaving shortly after 11
p.m. Around 25 to 30 people were at the party. Minnifield, who McClinton knew from the
neighborhood, was at the party and did not leave while she was there. McClinton kept noticing
Minnifield every 5 to 10 minutes and they talked for about an hour from 10 p.m. to 11 p.m.
McClinton and Minnifield left the party together at 11 p.m., but went in different cars. McClinton
knew they left at 11 p.m. because she looked at her phone for the time. When McClinton learned
that Minnifield was in jail, she told him she would testify about his whereabouts. In May 2011,
Minnifield gave McClinton the name and phone number for Grinbarg, and McClinton later spoke
with Grinbarg on the phone for about 20 seconds. During the call, McClinton said she was willing
to testify and that Minnifield was at the party with her at 10:30 p.m. on the night of the shooting.
Grinbarg replied that he was busy and would be in touch, and asked for her name and contact
information. Grinbarg never called her back or mailed her anything.
¶ 24 Ashley Brock’s affidavit stated in part as follows. On the night of the shooting, she arrived
at a party at 61st and Langley around 7 or 7:30 p.m. Brock did not know many people and had not
planned to stay long until she saw Minnifield, who she knew through Minnifield’s sister. Brock
watched him all night and when Minnifield left around 11 p.m., she left too. Brock kept looking
at the time because she was 17 years old then and did not want to violate curfew. When Brock
learned that Minnifield had been arrested, she told Minnifield’s sister and mother she would help
and to give her phone number to whoever needed it. No one ever called Brock about the case
except for Minnifield’s family.
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¶ 25 Also attached to the petition was an affidavit from Rasheed Johnson, another attendee of
the party at 61st and Langley. Johnson averred in part that at 10:30 p.m. on the night of the
shooting, Minnifield was at the party, sitting on the couch and talking to a girl who left with him
at 11 p.m. Johnson had wanted to testify at Minnifield’s trial, but no one asked him to do so and
he did not know how to go about it.
¶ 26 An affidavit from Kevin Watson, which supported the actual innocence claim, stated in
part as follows. Around 10:30 p.m. on the night of the shooting, Watson was standing on a porch
on the west side of the street at 63rd and Ellis. A dark colored Charger pulled up, in which the
driver was Angelo Straight and the front passenger was Kerry Williams, who appeared to be
asleep. Watson did not know the rear passenger, but saw his face. Minnifield was not in the car—
a fact Watson was sure of because Watson had a clear opportunity to view the inside of the car.
Watson knew the men in the car to be Black Stones. Straight reached over Williams and fired shots
out of the passenger window and the rear passenger also fired shots. The car pulled off about 10
feet and stopped as more shots were fired into a crowd of people standing on the street. The car
drove away and Watson quickly left the scene. Watson started corresponding with Minnifield’s
ex-girlfriend in September 2012.
¶ 27 D. Third-Stage Evidentiary Hearing
¶ 28 Minnifield’s petition advanced to a third-stage evidentiary hearing, where the following
testimony was presented.
¶ 29 Earl Grinbarg, Minnifield’s trial counsel, testified in part that he did not have the file from
Minnifield’s case because he had to dispose of all his files after a flood in his basement. Grinbarg
further stated as follows. Minnifield had been represented by a public defender before Grinbarg
was hired. All visits with Minnifield took place in the courtroom’s holding area. The trial judge
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had arranged for defendants to be brought to the courtroom early, so Grinbarg also arrived early
so he and Minnifield could talk. Grinbarg did not take notes during these conversations because
“[t]here was nothing *** to take notes of.” According to Grinbarg, Minnifield told him that “he
was with those two guys, they were driving, and *** the police stopped them.” Minnifield said
that the three men were at a party before he was arrested. Minnifield did not say that he was at a
party at the time of the shooting. Grinbarg asked Minnifield, but Minnifield did not specifically
tell him when, how, and why he got into the Charger.
¶ 30 Postconviction counsel confronted Grinbarg with a police report in which Minnifield stated
that on the night of the shooting, after going to a music studio with Straight and Williams, they all
went to 61st and Langley to play cards and drink. Grinbarg stated he “obviously” would have read
Minnifield’s statement and he went over the police reports with him. Grinbarg did not recall
Minnifield telling him that when he left the party, he saw “these guys” and got into the car to get
food. Grinbarg did not ask Minnifield if there were witnesses he could talk to. Minnifield never
gave Grinbarg the names of any people that he wanted Grinbarg to talk to.
¶ 31 Grinbarg also testified about his interactions with Minnifield’s mother, Alicia Owens. 2
Grinbarg and Owens spoke about every month in the Markham courthouse parking lot because
Owens did not want to come to Grinbarg’s office. Grinbarg did not specifically recall Owens
saying anything about interviewing witnesses, but if she did, his standard answer would have been
that the witnesses must come to his office, which no one ever did. Grinbarg denied telling Owens
that he did not visit jails or that he was not comfortable calling alibi witnesses. He did not
remember Owens giving him phone numbers for alibi witnesses and did not recall the names
2 Grinbarg referred to Minnifield’s mother as Mrs. Minnifield. We refer to her as Alicia Owens for consistency with Minnifield’s postconviction petition and her own testimony at the evidentiary hearing. -10- No. 1-19-0126
Tyesha McClinton, Ashley Brock, or Rasheed Johnson. Grinbarg did not remember receiving calls
from Tyesha McClinton or Ashley Brock. Grinbarg also did not remember Minnifield’s sister
telling Grinbarg that there were witnesses that he probably wanted to call. Owens never
complained or suggested any other approach to the case while the case was pending or during trial.
Grinbarg and Owens had very polite conversations “up to the very end when she asked me to
handle the appeal,” although Grinbarg did not do appeals.
¶ 32 Grinbarg further testified that his trial strategy was to assert that Straight and Williams
were the shooters. When he first started representing Minnifield, the only evidence against him
was the gunshot residue and the testimony of Cook-Mims, who was drunk, stoned, and had limited
ability to identify someone. Cook-Mims never named Minnifield, but later said “he knew who it
was,” which was almost like no identification at all. Straight later entered the picture, but had no
credibility because he did not make a statement resembling his trial testimony “until he was given
this lotto ticket.” The gunshot residue was on Minnifield’s nonshooting hand and was miniscule,
while Straight and Williams each had substantial amounts on their hands. Grinbarg planned to
argue that the gunshot residue transferred to Minnifield’s hands and he was inadvertently in the
car with two assassins, but never fired a shot. Grinbarg did not need a strategy to explain how
Minnifield got into the car. Indeed, Grinbarg wanted Minnifield in the car to explain the transfer
of the gunshot residue and assert that Straight and Williams were the shooters. Based on all this,
Grinbarg thought the strategy of reasonable doubt—which the public defender had previously
asserted—“was right on.” According to Grinbarg, Minnifield “looked like a young Bruno Mars. I
told him he’s going to sit there and look like a choir boy, and if he doesn’t hit the stand, I don’t
think anybody’s going to believe he could be a shooter.”
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¶ 33 Minnifield’s mother, Alicia Owens, testified that Minnifield complained to her that
Grinbarg was not visiting him in jail. Grinbarg told Owens, “I don’t do jails.” Minnifield told
Owens that he was at a party at the time of the shooting and gave her names of people who were
present, which Owens passed on to Grinbarg. Those names included Tyesha McClinton, Ashley
Brooks [sic], and Rasheed Johnson. Owens did not provide Grinbarg with phone numbers for the
witnesses. Grinbarg told Owens he would not call any of the witnesses because they would harm
the case. Owens later testified that Michelle also gave her the names of Tyesha McClinton and
Ashley Brock, and that she learned of Rasheed Johnson’s name through the neighborhood, and not
through Michelle or Minnifield. Owens acknowledged that her affidavit only mentioned Ashley
Brock and the affidavit did not state that Minnifield gave her the names of Tyesha McClinton and
Ashley Brock.
¶ 34 Minnifield’s sister, Michelle, testified that Minnifield told her that he was at a party on the
night of the shooting and he gave her names of people who were at the party, including Tyesha
McClinton and Rasheed Johnson. Michelle worked with Ashley Brock, which is how she learned
that Brock was at the party. Michelle was present when her mother relayed the information about
Tyesha McClinton and Ashley Brock to Grinbarg. Michelle and her mother gave Grinbarg the
witnesses’ phone numbers and Grinbarg said he would look into it. According to Michelle, Tyesha
McClinton and Ashley Brock each tried calling Grinbarg. Tyesha McClinton briefly spoke with
Grinbarg, but he did not call her back. Ashley Brock told Michelle that she left a message, but
Grinbarg did not call her back either. Michelle acknowledged that her affidavit did not mention
Tyesha McClinton and Rasheed Johnson.
¶ 35 Tyesha McClinton testified that she had known Minnifield since childhood. On the night
of the shooting, McClinton was at a gathering on 61st and Langley. She saw Minnifield when she
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arrived around 8 p.m. Around 10 p.m., they had a conversation on a couch. McClinton looked at
her phone every 5 to 10 minutes. A little after 11 p.m., McClinton and Minnifield walked out of
the party together and went their separate ways. Months later, McClinton learned that Minnifield
had been charged with the shooting and spoke with him when he was in jail. Minnifield showed
proof via a “police report or something” that he was with McClinton at the time of the shooting
and gave her Grinbarg’s phone number. Later, McClinton called Grinbarg and told him she was a
witness for Minnifield’s case. Grinbarg said he was busy, asked for her contact information, and
told her he would get back to her. McClinton was never called back.
¶ 36 Ashley Brock testified that she worked with Michelle, knew the Minnifield family from
the neighborhood, and was at a party on Langley on the night of the shooting. Minnifield was
already at the party when Brock arrived between 7 and 7:30 p.m. Brock told Minnifield that she
may need him to take her home. Brock went back and forth between speaking with Minnifield and
others. She left a little after 11 p.m. and remembered that time because she had her phone and
looked at a television that was playing a news channel. Brock and Minnifield walked out together
and Brock got a ride from a friend. Brock kept track of Minnifield at the party because she did not
want him to leave her there and she recalled that he never left before she did. Brock told Michelle
to give the defense attorney her phone number, but was not called.
¶ 37 Rasheed Johnson testified that he grew up with Minnifield. Johnson was currently
incarcerated and was a member of the Black P Stones in 2009. On the night of the shooting,
Johnson arrived at a party at 61st and Langley around 9 p.m. and left around 1 a.m. When Johnson
arrived, Minnifield was sitting on the couch. Johnson spoke to Minnifield at various times during
the party. Around 11 p.m., Minnifield let Johnson know he was leaving and then left the party with
a girl who had been on the couch with him. Johnson did not remember if Minnifield came up to
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him before leaving, but he saw Minnifield leave. After Minnifield’s arrest, Johnson told
Minnifield’s mother that Minnifield was at the party. Minnifield’s mother told Johnson she would
have a lawyer contact him, but that did not occur.
¶ 38 Kevin Watson, the witness supporting Minnifield’s actual innocence claim, testified that
he did not know Minnifield or his family in 2009 and was currently incarcerated. At about 10:30
p.m. on the night of the shooting, he was on the west side of 63rd and Ellis and saw a blue car
coming down the street. Watson was about 10 or 15 feet away from the car, which had a light on
inside, and he saw three occupants inside. Straight, who Watson knew from the neighborhood, was
the driver and fired shots out of the passenger side at a group of people standing on the east side
of the street. Williams, who Watson also knew from the neighborhood, was slouched over and
appeared to be asleep. The rear passenger, who Watson had seen before but did not know, was
shooting as well. Watson saw the sides of the occupants’ faces and stated, “In a sense, *** yes,”
when asked if the shooters were turned away from him. Watson estimated that he looked at the
rear passenger for about five seconds. Watson was scared and left the scene after the shooting. One
day while in prison, Watson called some friends who were having a picnic. He asked to put a
woman on the phone and he spoke to Treasure Hilliard, who told Watson that she had an ex-
boyfriend—Minnifield—who was also in prison. Watson and Hilliard discussed Minnifield’s case.
Watson told Hilliard he was present for the shooting and he wanted to help, so he prepared an
affidavit and sent it to Hilliard. Watson knew that Minnifield had not been in the blue car because
Hilliard sent Watson pictures of a group of people that included Minnifield and told Watson “it
couldn’t be him. It wasn’t him.” Hilliard had written on the back the names of the people in the
pictures. According to Watson, the person in Hilliard’s pictures that she said was Minnifield was
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not the rear passenger of the blue car. At the hearing, after defense counsel asked Watson to look
at Minnifield in court, Watson stated that Minnifield was not the rear passenger of the blue car.
¶ 39 Minnifield testified as follows about his whereabouts on the night of the shooting.
Minnifield, Straight, and Williams arrived at a party at 61st and Langley around 6 p.m. Minnifield
stayed at the party until a little after 11 p.m. While at the party, Minnifield branched off from
Straight and Williams and mingled with various people. Minnifield knew he left a little after 11
p.m. because he had been sitting on the couch talking to Tyesha McClinton, who had her phone
out. Many other people also left the party at that time, including Ashley Brock. Once he left,
Minnifield saw Straight’s car, where Williams was in the front seat, and asked Straight to drop
him off at his girlfriend’s house. Minnifield denied that at one point he had a girlfriend named
Treasure.
¶ 40 Minnifield testified as follows about his interactions with Grinbarg. Minnifield told
Grinbarg his whereabouts on the night of the shooting and that there were people who would testify
for him. Minnifield gave Grinbarg the names of witnesses he wanted called, but Grinbarg never
wrote down any names or called them. He told Minnifield that he did not like to call alibi witnesses
because they might say something to damage the case.
¶ 41 Other witnesses also testified at the evidentiary hearing, but their testimony is not germane
to the issues raised in this appeal.
¶ 42 After closing arguments, the circuit court found that Minnifield did not make a substantial
showing of a violation of his constitutional rights and denied his petition. The court stated in part
as follows in its oral ruling. The matter “[boiled] down to a matter of credibility.” The testimonies
of Minnifield’s witnesses had inconsistencies and omissions and the State’s witnesses were
“considerably more credible.” Trial counsel was not ineffective and Minnifield did not fulfill either
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prong of the analysis from Strickland v. Washington, 466 U.S. 668 (1984). Further, because
Watson had “little if any credibility,” there was not much evidence to support the actual innocence
claim.
¶ 43 Minnifield timely appealed.
¶ 44 II. ANALYSIS
¶ 45 Minnifield asserts that his ineffective assistance and actual innocence claims warrant a new
trial. We address each claim in turn.
¶ 46 A. Ineffective Assistance of Counsel
¶ 47 Minnifield contends that his trial counsel, Earl Grinbarg, was ineffective because he did
not investigate and call multiple alibi witnesses who would have testified that Minnifield was at a
party during the shooting. Minnifield argues that the testimony of the alibi witnesses would have
changed the outcome of the trial. Minnifield further asserts that the circuit court’s ruling was based
on unsupported credibility findings and the circuit court did not identify anything about
Minnifield’s witnesses that suggested they were not credible. According to Minnifield, Grinbarg
was untrustworthy where he admitted that he never took notes during his conversations with
Minnifield and conveniently claimed that all his files were destroyed in a flood. Minnifield states
that the alibi witnesses’ consistent and unwavering testimony established that Grinbarg knew there
was evidence to support an alibi defense.
¶ 48 The Act provides a way for defendants to challenge their convictions or sentences for
violations of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006).
Postconviction proceedings consist of a three-stage process (People v. English, 2013 IL 112890, ¶
23), which begin when the defendant files a petition in the circuit court where the original
proceeding took place (People v. Hodges, 234 Ill. 2d 1, 9 (2009)). The petition must set forth the
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ways that the defendant’s constitutional rights were violated. Id. If the petition is not frivolous or
patently without merit, it advances to the second stage, where counsel is appointed if necessary
and the State may file responsive pleadings. Id. at 10-11. The second stage of review tests the legal
sufficiency of the petition and the allegations are taken as true unless they are affirmatively
rebutted by the record. People v. Domagala, 2013 IL 113688, ¶ 35. If the defendant makes a
substantial showing of a constitutional violation, then the petition advances to a third-stage
evidentiary hearing. Id. ¶ 34. There, the circuit court serves as the fact finder and determines
witness credibility, decides the weight to give to the testimony and evidence, and resolves any
evidentiary conflicts. Id “[T]he circuit court must determine whether the evidence introduced
demonstrates that the [defendant] is, in fact, entitled to relief.” Id. The defendant has the burden to
make a substantial showing of a deprivation of constitutional rights. People v. Coleman, 206 Ill.
2d 261, 277 (2002).
¶ 49 We will not reverse the circuit court’s decision after an evidentiary hearing unless it is
manifestly erroneous. English, 2013 IL 112890, ¶ 23. Manifest error is error that is clearly evident,
plain, and indisputable. People v. Jackson, 2020 IL 124112, ¶ 98. Our standard of review
“recognizes that we must give great deference to the trial court’s factual findings because the trial
court stands in the best position to weigh the credibility of the witnesses.” (Internal quotation marks
omitted.) People v. Hotwagner, 2015 IL App (5th) 130525, ¶ 31.
¶ 50 To establish ineffective assistance of counsel, a defendant show that: 1) counsel’s
performance was deficient, and 2) the deficient performance prejudiced the defense. Strickland,
466 U.S. at 687. Effective assistance of counsel refers to competent, not perfect, representation.
People v. Palmer, 162 Ill. 2d 465, 476 (1994). Counsel’s performance is measured by an objective
standard of competence under prevailing professional norms. People v. Richardson, 189 Ill. 2d
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401, 411 (2000). A defendant must overcome the strong presumption that the challenged action or
inaction might have been the product of sound trial strategy. Id. Of note, decisions about whether
to call certain witnesses on the defendant’s behalf are matters of trial strategy that are reserved to
counsel’s discretion. People v. Enis, 194 Ill. 2d 361, 378 (2000). Counsel has a duty to make
reasonable investigations or make a reasonable decision that makes particular investigations
unnecessary, and the reasonableness of a decision to investigate is assessed with “a heavy measure
of deference to counsel’s judgment.” People v. Pecoraro, 175 Ill. 2d 294, 324 (1997). That another
attorney might have pursued a different strategy, or that counsel’s chosen strategy was
unsuccessful, does not mean that counsel was ineffective. People v. Fuller, 205 Ill. 2d 308, 331
(2002). The principle that matters of trial strategy are generally immune from ineffective assistance
claims does not apply where counsel’s strategy was so unsound that he did not conduct any
meaningful adversarial testing. Enis, 194 Ill. 2d at 378.
¶ 51 The evidentiary hearing presented a choice between believing Grinbarg or Minnifield’s
witnesses. Grinbarg claimed that he was never told of alibi witnesses. In contrast, Minnifield and
his witnesses maintained that Grinbarg refused to investigate and speak with witnesses even
though they were made available. We defer to the circuit court’s finding that Grinbarg was more
credible. “The postconviction trial judge is able to observe and hear the witnesses at the evidentiary
hearing and *** occupies a position of advantage in a search for the truth which is infinitely
superior to that of a tribunal where the sole guide is the printed record.” (Internal quotation marks
omitted.) People v. Coleman, 183 Ill. 2d 366, 384 (1998). Further, there were inconsistences
among Minnifield’s witnesses. Owens stated that she did not provide Grinbarg with phone
numbers, while Michelle stated that she and Owens indeed provided him with phone numbers.
Owens testified inconsistently about where she learned about Rasheed Johnson. Owens’s and
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Michelle’s testimonies at the hearing referenced names that were not mentioned in their affidavits.
Michelle stated that Ashley Brock called Grinbarg, but Brock did not testify to that. Faced with
competing accounts, and deferring to the circuit court’s ability to see and hear the witnesses, we
have no basis to disturb the circuit court’s credibility finding.
¶ 52 Accepting Grinbarg’s testimony that he was not told about alibi witnesses, he cannot be
ineffective for failing to call them. “Where circumstances known to counsel at the time of his
investigation do not reveal a sound basis for further inquiry in a particular area, it is not ineffective
for the attorney to forgo additional investigation.” Pecoraro, 175 Ill. 2d at 324. Further, the police
report, which Grinbarg acknowledged he would have seen, did not necessarily indicate that he
should look for witnesses who were at the party. According to the report, Minnifield told police
he was at 61st and Langley before he was arrested, but the report does not indicate that Minnifield
stated he was at 61st and Langley at the specific time of the shooting. In a similar vein, Grinbarg
was not impeached by the police report, contrary to Minnifield’s assertion on appeal. Grinbarg
testified that Minnifield told him he was at a party before he got arrested, but he did not tell
Grinbarg he was at a party at the time of the shooting. That is entirely consistent with the contents
of the police report.
¶ 53 Even if the police report and Minnifield’s statement to Grinbarg suggested a potential alibi
defense, Grinbarg’s chosen strategy—to rely on reasonable doubt—did not render his performance
deficient. In evaluating counsel’s performance, we must make every effort to “eliminate the
distorting effects of hindsight, *** reconstruct the circumstances of counsel’s challenged conduct,
and *** evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.
Again, deferring to the circuit court’s credibility findings, Grinbarg did not have any names of
alibi witnesses. He pursued a strategy of asserting reasonable doubt. Per his testimony, Grinbarg
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identified weaknesses in the State’s case that he later targeted at trial, including that Cook-Mims
and Straight had limited credibility. At trial, Grinbarg elicited that Cook-Mims was high before
the shooting and his inconsistent grand jury testimony. Grinbarg’s cross-examination of Straight
highlighted his plea deal and his previous lies to law enforcement. Minnifield’s small amount of
gunshot residue supported the theory that the gunshot residue was transferred to Minnifield’s hands
without him shooting a gun. Grinbarg subjected the case to meaningful adversarial testing and his
strategy was reasonable given the apparent weaknesses in the State’s case.
¶ 54 Minnifield’s discussion of Raygoza v. Hulick, 474 F.3d 958 (7th Cir. 2007), and People v.
King, 316 Ill. App. 3d 901 (2000), does not change our conclusion. In Raygoza, 474 F.3d at 961-
64, trial counsel was ineffective where he raised an alibi defense, but did not support it with
available evidence, including telephone records, train tickets, and potential alibi witnesses who
were listed in a police report. Here, Grinbarg chose an entirely different strategy and did not have
evidence that would have supported an alibi defense. In King, 316 Ill. App. 3d at 916, the court
found that trial counsel was deficient for not calling an alibi witness to testify where the witness
would have bolstered an otherwise uncorroborated defense and neither counsel nor the State
explained why counsel did not call the witness. Here, Grinbarg testified did not recall being given
names or phone numbers for alibi witnesses and did not remember receiving calls from two of
them. Grinbarg’s approach was to focus on reasonable doubt. We accept the circuit court’s finding
that Grinbarg was credible. Grinbarg was not deficient for failing to investigate and call alibi
witnesses whose identities he was not aware of, and for choosing to pursue a different strategy that
was based on available evidence.
¶ 55 Minnifield also cites to other cases where counsel was deemed ineffective for failing to
interview or present witnesses: People v. Tate, 2012 IL 112214, People v. Makiel, 358 Ill. App. 3d
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102 (2005), People v. Morris, 335 Ill. App. 3d 70 (2002), and People v. Skinner, 220 Ill. App. 3d
479 (1991). Tate was an appeal from a first-stage dismissal. Makiel, Morris, and Skinner all
involved petitions that were dismissed without an evidentiary hearing. The findings that counsel
was ineffective in those cases do not apply to a third-stage evidentiary hearing, where the circuit
court determines the credibility of witnesses, weighs testimony and evidence, and resolves
evidentiary conflicts. People v. Domagala, 2013 IL 113688, ¶ 34.
¶ 56 Grinbarg was not deficient for failing to investigate and call alibi witnesses. Because the
failure to show either deficient performance or prejudice defeats an ineffective assistance claim
(Palmer, 162 Ill. 2d at 475), we need not address whether Minnifield was prejudiced. The circuit
court properly denied Minnifield’s ineffective assistance claim.
¶ 57 B. Actual Innocence
¶ 58 We next address Minnifield’s actual innocence claim. Minnifield contends that the newly
discovered testimony of Kevin Watson, who implicated another man in the shooting, is
noncumulative, conclusive evidence that would likely change the result on retrial. Minnifield
asserts that Watson’s testimony goes to the central issue in the case and is probative of whether
Minnifield was one of the shooters. Minnifield further argues that Watson’s testimony would add
substantial strength to the defense where the State’s case was based on unbelievable testimony and
no physical evidence directly linked him to the shooting. Minnifield also asserts that the circuit
court’s finding that Watson had “little if any credibility” was not a proper ground for denying the
petition. Minnifield contends that the ultimate task of determining Watson’s credibility is for the
trier of fact, and not the judge presiding over postconviction proceedings.
¶ 59 The due process clause of the Illinois Constitution permits defendants to assert a
freestanding claim of actual innocence based on newly discovered evidence. People v. Orange,
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195 Ill. 2d 437, 459 (2001). Actual innocence is not the same as sufficiency of the evidence or
reasonable doubt, or impeachment of trial witnesses, “but a claim of vindication or exoneration.”
People v. Mabrey, 2016 IL App (1st) 141359, ¶ 23. A court should grant relief only if the defendant
has presented supporting evidence that is new, material and noncumulative, and of such conclusive
character that it would probably change the result on retrial. People v. Coleman, 2013 IL 113307,
¶ 84. Evidence is newly discovered if it was not available at the original trial and the defendant
could not have discovered it sooner through diligence. People v. Morgan, 212 Ill. 2d 148, 154
(2004). Material means the evidence is relevant and probative of the defendant’s innocence.
Coleman, 2013 IL 113307, ¶ 96. Noncumulative means the evidence adds to what the jury heard.
Id. The new evidence “need not be entirely dispositive” to be likely to change the result on retrial.
People v. Robinson, 2020 IL 123849, ¶ 56. Rather, the defendant must present evidence “that
places the trial evidence in a different light and undermines the court’s confidence in the judgment
of guilt.” Id. “Probability, not certainty, is the key as the trial court in effect predicts what another
jury would likely do, considering all the evidence, both new and old, together.” Coleman, 2013 IL
113307, ¶ 97.
¶ 60 The evidence from Watson’s affidavit and testimony is newly discovered. Watson stated
that he left the scene after the shooting because he was scared. He further stated that he did not
know Minnifield or Minnifield’s family in 2009 and only came forward after he started talking to
Treasure Hilliard in 2012, which was after Minnifield’s trial. Watson’s affidavit and testimony are
also material and noncumulative. Watson testified about the ultimate issue in the case—whether
Minnifield was one of the shooters—and contradicted the other eyewitnesses who testified at trial.
¶ 61 Yet, the evidence provided by Watson is not conclusive. In reaching this conclusion, we
note that the circuit court properly considered whether Watson was credible. Determining whether
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newly discovered evidence places the trial evidence in a different light “is a comprehensive
approach and involves credibility determinations that are uniquely appropriate for trial judges to
make.” Id. Further, the circuit court’s finding that Watson had little if any credibility was not
manifestly erroneous. The circumstances surrounding Watson’s decision to write an affidavit raise
questions about the accuracy of Watson’s identification of the rear passenger. By happenstance,
Watson began talking to Treasure Hilliard after calling some friends who were at a picnic. Watson
stated that Hilliard was Minnifield’s ex-girlfriend, but Minnifield denied that he had an ex-
girlfriend with that name. Hilliard sent Watson pictures of someone she indicated was Minnifield
and told Watson that this person was not the shooter. Watson did not have independent knowledge
of what Minnifield looked like before he spoke with Hilliard. Further, Watson had limited ability
to view the occupants of the car. Watson testified that he only saw the sides of the occupants’ faces
and admitted that the shooters were “in a sense” turned away from him. Watson was on the
opposite side of the street from where the shooting took place. Based on the shortcomings in
Watson’s testimony, the circuit court properly found that Watson was not credible. Moreover, a
new witness’s lack of credibility can be a basis for finding that new evidence is incapable of
changing the result on retrial. See People v. Carter, 2017 IL App (1st) 151297, ¶¶ 142-44, 147
(evidence was incapable of changing the result on retrial where the witnesses who testified at the
evidentiary hearing that the defendant was not the shooter were not credible).
¶ 62 Minnifield relies on People v. Ortiz, 235 Ill. 2d 319 (2009), to assert that Watson’s evidence
is conclusive and warrants a new trial. There, a newly discovered witness, who knew the defendant
at the time of the offense, testified at the evidentiary hearing that he saw two other people shoot
the victim and the defendant was not involved. Id. at 326-27. The trial court found the testimony
insufficient to warrant a new trial because it was cumulative. Id. at 327. On appeal, our supreme
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court found that all three requirements for an actual innocence claim were met, including that the
new evidence was conclusive. Id. at 336-37. The court noted that the circuit court had not made
any findings about the witness’s credibility and that the State had been unable to discredit the
witness’s testimony at the hearing. Id. at 334, 337.
¶ 63 Here, in contrast, the circuit court explicitly found that Watson had little if any credibility,
a finding that was not manifestly erroneous. Given his limited credibility, Watson’s testimony
would be unlikely to change the result on retrial. At the jury trial, two eyewitnesses—one in the
car and one on the street—identified Minnifield as one of the shooters. Those eyewitnesses had
flaws in their testimony, but Watson’s testimony, with its own significant credibility issues, does
not undermine confidence in the trial court’s judgment of guilt. The evidence from Watson’s
affidavit and testimony was not conclusive and the circuit court properly denied Minnifield’s
actual innocence claim.
¶ 64 III. CONCLUSION
¶ 65 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 66 Affirmed.
¶ 67 PRESIDING JUSTICE MIKVA, concurring in part and dissenting in part.
¶ 68 I agree with the majority that, as to Mr. Minnifield’s actual innocence claim, the trial
court’s decision is not manifestly erroneous and that we should defer to that court’s findings in
rejecting that claim. However, on Mr. Minnifield’s claim that his trial counsel was ineffective, I
respectfully dissent.
¶ 69 A police report from the night of the shooting, which was also the night that Mr. Minnifield
was arrested, reflects that he immediately told the police that he had been at a party that night. At
the evidentiary hearing, Mr. Minnifield, his mother, his sister, and three alibi witnesses—Tyesha
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McClinton, Ashley Brock, and Rasheed Johnson—all gave testimony that supported Mr.
Minnifield’s claim that Mr. Grinbarg, Mr. Minnifield’s trial counsel, was repeatedly told that there
were multiple alibi witnesses who would testify that Mr. Minnifield was at the party when the
shooting occurred.
¶ 70 Ms. McClinton, Ms. Brock, and Mr. Johnson all testified that they were with Mr.
Minnifield at this party. They each explained, in some detail, how it was that they knew Mr.
Minnifield was at the party at 10:30, which everyone agrees was the time these shootings occurred.
They each testified that he left at about 11:00 p.m. and explained how it was that they knew the
time of his departure. In addition, each of these three witnesses testified that they let Mr.
Minnifield’s mother or sister know that they were willing to testify and that his lawyer should call
them. Ms. McClinton actually called Mr. Grinbarg, herself and let him know that she was available
to testify. She testified that he told her he was busy but would call her back, which he never did.
¶ 71 The testimony of Ms. McClinton, Ms. Brock, and Mr. Johnson was confirmed by testimony
from Mr. Minnifield, his mother, and his sister, all of whom testified that they repeatedly told Mr.
Grinbarg that there were alibi witnesses who wanted to testify and gave him names and numbers
for these witnesses. Mr. Minnifield and his mother testified that Mr. Grinbarg told them he did not
like to call alibi witnesses while his sister said the lawyer had said he would look into it.
¶ 72 Mr. Grinbarg’s testimony was that he had lost all of his files in a flood, so he had no record
of having represented Mr. Minnifield. He testified that he had no memory of ever being told the
names of any alibi witnesses. He testified that he assumed he would have reviewed the police
report but claimed because it only said that Mr. Minnifield was at a party that night this would not
have suggested to him that Mr. Minnifield was at the party when the shooting occurred. He also
claimed that Mr. Minnifield never told him he was at the party when the shooting occurred or
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suggested that other witnesses could verify that. He admitted that he never visited Mr. Minnifield
in jail, never took any notes of their conversations, and never asked him whether he was still at the
party at the time of the shootings.
¶ 73 As the majority recognizes, the evidentiary hearing “presented a choice between believing
Grinbarg or Minnifield’s witnesses.” The majority defers to the circuit court’s finding that Mr.
Grinbarg was more credible. But Mr. Grinbarg’s testimony at the hearing was little more than an
absence of recollection, unsupported by any circumstantial evidence and contrary to
contemporaneous documentation. On the other hand, there were six witnesses, three of whom are
unrelated to Mr. Minnifield, who gave testimony that supported Mr. Minnifield’s claim that this
lawyer was told about—but never investigated—an alibi defense. Mr. Grinbarg’s failure to follow
up on the multiple accounts that Mr. Minnifield was at party during the time of the shooting was
objectively unreasonable. See People v. King, 316 Ill. App. 3d 901, 916 (2000) (finding trial
counsel’s strategy “designed to attack the credibility of only one of the State’s three occurrence
witnesses was objectively unreasonable” where there was an available alibi witness counsel could
have called). It is not sound trial strategy to rely on “reasonable doubt” while ignoring a well-
supported alibi defense, as an alibi defense would only enhance the amount of doubt the trier-of-
fact would have concerning Mr. Minnifield’s guilt.
¶ 74 It is also apparent to me that Mr. Minnifield was prejudiced by his lawyer’s deficient
performance. This defense would have been supported by at least three witnesses unrelated to Mr.
Minnifield or to the charged offense. This alibi evidence was consistent with the police report and
with the physical evidence, since Mr. Minnifield had minimal gun residue and only on his non-
dominant hand. With this alibi testimony the defense might well have persuaded a jury, as Mr.
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Minnifield testified at the evidentiary hearing, that he was picked up by the shooters in the blue
Dodge after the shootings occurred.
¶ 75 In my view, the trial court’s decision to accept Mr. Grinbarg’s unsupported and self-serving
testimony that he was never alerted to this defense—over the specific testimony of these six
witnesses that he was alerted and did nothing—was manifestly erroneous.
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