People v. Northern
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Opinion
NOTICE 2025 IL App (4th) 231067-U This Order was filed under FILED Supreme Court Rule 23 and is NOS. 4-23-1067, 4-24-0753 cons. August 5, 2025 not precedent except in the Carla Bender limited circumstances allowed th 4 District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant and Cross-Appellee, ) Circuit Court of v. ) Rock Island County MARCUS NORTHERN, ) No. 08CF1150 Defendant-Appellee and Cross-Appellant. ) ) Honorable ) Richard A. Zimmer, ) Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court. Justice Grischow concurred in the judgment. Justice Cavanagh concurred in part and dissented in part.
ORDER
¶1 Held: The trial court did not err in its ruling on defendant’s postconviction petition following a third-stage evidentiary hearing.
¶2 Defendant, Marcus Northern, filed a petition for relief under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). Following a third-stage evidentiary
hearing, the trial court granted the petition based on defendant’s claim that his trial counsel was
ineffective for failing to investigate and call alibi witnesses in his defense. The State appeals
(appeal No. 4-23-1067), arguing the court’s decision was manifestly erroneous because
defendant’s counsel made decisions based on sound trial strategy and defendant suffered no
prejudice. Defendant also appeals (appeal No. 4-24-0753), arguing the court erred by denying his
additional postconviction claims related to alleged improper grand jury proceedings and the
admission of prejudicial gang affiliation evidence. We affirm. ¶3 I. BACKGROUND
¶4 In November 2008, defendant was charged by indictment with two counts of first
degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 1998)) in connection with the January 1999
stabbing death of Robert Blanks. Prior to his indictment, the grand jury investigating the matter
met numerous times from January through November 2008. Detective Douglas Garrison of the
Moline Police Department was present at all but one of the grand jury’s sessions. On January 30,
2008, the grand jury met, and Garrison testified he had “been previously appointed as the Grand
Jury Investigator in this case.” While the record suggests there were grand jury proceedings prior
to January 30, 2008, it does not contain transcripts of those earlier proceedings. During the various
grand jury sessions, Garrison, at times, directly questioned witnesses, informed the grand jury what
was “important,” and was delegated the “responsibility” by the state’s attorney to “sort of educate
the grand jury.”
¶5 In February 2009, defendant appeared before the trial court and requested the grand
jury transcripts as part of discovery. In October 2009, just prior to trial, he again appeared before
the court and indicated he was not ready for trial. Defendant expressed concerns about a witness
not being called, not receiving certain parts of discovery, and not speaking directly with the
court-appointed investigator for his case. Regarding the witness, defendant’s trial counsel stated
he believed it was “not to [defendant’s] benefit to bring him up here.” The court informed
defendant it was his choice whether to testify, but it was his counsel’s decision about which
witnesses to strategically call. The court informed defendant he was not entitled to all discovery
documents while in custody because the documents could end up being passed around the jail.
Regarding the investigator, counsel informed the court he had not utilized the investigator. The
court told defendant it had conducted a previous trial against a codefendant for Blanks’s murder.
-2- The court suggested the investigator’s services may not be needed because the same witnesses
from that trial would be locked into their statements for defendant’s pending trial. The matter
proceeded to a jury trial on October 19, 2009.
¶6 A. Jury Trial and Posttrial Proceedings
¶7 At trial, Zeneta Jones testified she was at home with her three children, whom she
shared with Blanks. According to Zeneta, Blanks sold cocaine for money. On January 10, 1999,
Blanks arrived home at approximately 10 p.m. Zeneta was asleep and awoke to a man holding a
gun to her head. She observed two other men in the room as well, one of whom was holding a
knife to her side. She described all the men as wearing masks and hooded sweatshirts. Zeneta was
told to summon Blanks, who was in the bathroom taking a shower. When Zeneta called for Blanks,
the men rushed into the bathroom and attacked Blanks. Zeneta ran next door to where her mother
lived. While running, she realized she had been stabbed. She also noticed Blanks standing on the
porch of their home naked. Blanks proceeded to Zeneta’s mother’s home, where he fell to the floor.
Zeneta observed that Blanks had been stabbed several times. Evidence showed that although
Zeneta could not identify any of the men, she reported to the police that she recognized one of the
men’s voices as belonging to Van Williams, whose “street name was Tazz.”
¶8 Paramedic James Versluis testified that when he arrived at the scene, Blanks was
already dead. Versluis treated Zeneta for a stab wound to her abdomen.
¶9 Officer Steve Wilson spoke with Zeneta at the hospital about recognizing
Williams’s voice. Zeneta told Wilson that Williams and Blanks had recently been arguing.
¶ 10 Pathologist Larry Blum testified Blanks had suffered 30 to 32 stab wounds, one of
which severed his aorta, causing his death.
¶ 11 Leslie Masengarb testified she lived with defendant’s cousin. She recalled driving
-3- defendant to a hospital in nearby Davenport, Iowa, one night in 1999. She was unaware why
defendant needed her to drive him to the hospital but noticed blood on the passenger seat after he
exited her vehicle.
¶ 12 Driesst McAdams, a nurse at Genesis Medical Center in Davenport, stated she
treated a patient named “Steve Callaway” in the emergency room at approximately 2:34 a.m. on
January 11, 1999. It was later learned that defendant had given a false name when he was treated
at the hospital. She observed a serious wound on defendant’s left hip. She was told the wound
occurred because defendant fell on a sharp metal object. She believed it was a stab wound.
Defendant eventually refused treatment and requested to leave. When signing a release form,
McAdams observed defendant begin to write his first name, then stop, look at his wristband, state
he made a mistake, and write “Steve Callaway.”
¶ 13 Dr. Christopher Posey treated defendant at the hospital. Posey opined the wound
appeared to be a stab wound. Posey contacted the police because he was suspicious “something
else was going on.” Posey obtained a second opinion from a trauma surgeon, who also agreed the
wound was a stab wound.
¶ 14 Police officer Maureen Hammes arrived at the hospital and spoke with defendant.
When she asked him for identification, defendant responded he did not have any. Hammes
transported defendant to the police station, where several officers identified him. Defendant later
admitted his identity and that he was not Steve Callaway.
¶ 15 Christopher McAfee testified he had been convicted of homicide in 1992 and
Free access — add to your briefcase to read the full text and ask questions with AI
NOTICE 2025 IL App (4th) 231067-U This Order was filed under FILED Supreme Court Rule 23 and is NOS. 4-23-1067, 4-24-0753 cons. August 5, 2025 not precedent except in the Carla Bender limited circumstances allowed th 4 District Appellate under Rule 23(e)(1). IN THE APPELLATE COURT Court, IL OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellant and Cross-Appellee, ) Circuit Court of v. ) Rock Island County MARCUS NORTHERN, ) No. 08CF1150 Defendant-Appellee and Cross-Appellant. ) ) Honorable ) Richard A. Zimmer, ) Judge Presiding.
PRESIDING JUSTICE HARRIS delivered the judgment of the court. Justice Grischow concurred in the judgment. Justice Cavanagh concurred in part and dissented in part.
ORDER
¶1 Held: The trial court did not err in its ruling on defendant’s postconviction petition following a third-stage evidentiary hearing.
¶2 Defendant, Marcus Northern, filed a petition for relief under the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)). Following a third-stage evidentiary
hearing, the trial court granted the petition based on defendant’s claim that his trial counsel was
ineffective for failing to investigate and call alibi witnesses in his defense. The State appeals
(appeal No. 4-23-1067), arguing the court’s decision was manifestly erroneous because
defendant’s counsel made decisions based on sound trial strategy and defendant suffered no
prejudice. Defendant also appeals (appeal No. 4-24-0753), arguing the court erred by denying his
additional postconviction claims related to alleged improper grand jury proceedings and the
admission of prejudicial gang affiliation evidence. We affirm. ¶3 I. BACKGROUND
¶4 In November 2008, defendant was charged by indictment with two counts of first
degree murder (720 ILCS 5/9-1(a)(2), (a)(3) (West 1998)) in connection with the January 1999
stabbing death of Robert Blanks. Prior to his indictment, the grand jury investigating the matter
met numerous times from January through November 2008. Detective Douglas Garrison of the
Moline Police Department was present at all but one of the grand jury’s sessions. On January 30,
2008, the grand jury met, and Garrison testified he had “been previously appointed as the Grand
Jury Investigator in this case.” While the record suggests there were grand jury proceedings prior
to January 30, 2008, it does not contain transcripts of those earlier proceedings. During the various
grand jury sessions, Garrison, at times, directly questioned witnesses, informed the grand jury what
was “important,” and was delegated the “responsibility” by the state’s attorney to “sort of educate
the grand jury.”
¶5 In February 2009, defendant appeared before the trial court and requested the grand
jury transcripts as part of discovery. In October 2009, just prior to trial, he again appeared before
the court and indicated he was not ready for trial. Defendant expressed concerns about a witness
not being called, not receiving certain parts of discovery, and not speaking directly with the
court-appointed investigator for his case. Regarding the witness, defendant’s trial counsel stated
he believed it was “not to [defendant’s] benefit to bring him up here.” The court informed
defendant it was his choice whether to testify, but it was his counsel’s decision about which
witnesses to strategically call. The court informed defendant he was not entitled to all discovery
documents while in custody because the documents could end up being passed around the jail.
Regarding the investigator, counsel informed the court he had not utilized the investigator. The
court told defendant it had conducted a previous trial against a codefendant for Blanks’s murder.
-2- The court suggested the investigator’s services may not be needed because the same witnesses
from that trial would be locked into their statements for defendant’s pending trial. The matter
proceeded to a jury trial on October 19, 2009.
¶6 A. Jury Trial and Posttrial Proceedings
¶7 At trial, Zeneta Jones testified she was at home with her three children, whom she
shared with Blanks. According to Zeneta, Blanks sold cocaine for money. On January 10, 1999,
Blanks arrived home at approximately 10 p.m. Zeneta was asleep and awoke to a man holding a
gun to her head. She observed two other men in the room as well, one of whom was holding a
knife to her side. She described all the men as wearing masks and hooded sweatshirts. Zeneta was
told to summon Blanks, who was in the bathroom taking a shower. When Zeneta called for Blanks,
the men rushed into the bathroom and attacked Blanks. Zeneta ran next door to where her mother
lived. While running, she realized she had been stabbed. She also noticed Blanks standing on the
porch of their home naked. Blanks proceeded to Zeneta’s mother’s home, where he fell to the floor.
Zeneta observed that Blanks had been stabbed several times. Evidence showed that although
Zeneta could not identify any of the men, she reported to the police that she recognized one of the
men’s voices as belonging to Van Williams, whose “street name was Tazz.”
¶8 Paramedic James Versluis testified that when he arrived at the scene, Blanks was
already dead. Versluis treated Zeneta for a stab wound to her abdomen.
¶9 Officer Steve Wilson spoke with Zeneta at the hospital about recognizing
Williams’s voice. Zeneta told Wilson that Williams and Blanks had recently been arguing.
¶ 10 Pathologist Larry Blum testified Blanks had suffered 30 to 32 stab wounds, one of
which severed his aorta, causing his death.
¶ 11 Leslie Masengarb testified she lived with defendant’s cousin. She recalled driving
-3- defendant to a hospital in nearby Davenport, Iowa, one night in 1999. She was unaware why
defendant needed her to drive him to the hospital but noticed blood on the passenger seat after he
exited her vehicle.
¶ 12 Driesst McAdams, a nurse at Genesis Medical Center in Davenport, stated she
treated a patient named “Steve Callaway” in the emergency room at approximately 2:34 a.m. on
January 11, 1999. It was later learned that defendant had given a false name when he was treated
at the hospital. She observed a serious wound on defendant’s left hip. She was told the wound
occurred because defendant fell on a sharp metal object. She believed it was a stab wound.
Defendant eventually refused treatment and requested to leave. When signing a release form,
McAdams observed defendant begin to write his first name, then stop, look at his wristband, state
he made a mistake, and write “Steve Callaway.”
¶ 13 Dr. Christopher Posey treated defendant at the hospital. Posey opined the wound
appeared to be a stab wound. Posey contacted the police because he was suspicious “something
else was going on.” Posey obtained a second opinion from a trauma surgeon, who also agreed the
wound was a stab wound.
¶ 14 Police officer Maureen Hammes arrived at the hospital and spoke with defendant.
When she asked him for identification, defendant responded he did not have any. Hammes
transported defendant to the police station, where several officers identified him. Defendant later
admitted his identity and that he was not Steve Callaway.
¶ 15 Christopher McAfee testified he had been convicted of homicide in 1992 and
possession with intent to deliver marijuana in 2005, and he was currently incarcerated for a 2008
offense. McAfee stated he was close friends with defendant, they grew up together, and they were
members of the same gang. In 2005, a fellow gang member, Robert Johnson, was arrested.
-4- Defendant told McAfee he was concerned Johnson was a “weak link” and that federal agents
would pressure him about Blanks’s murder. McAfee believed defendant and/or Johnson were
involved in the murder. On cross-examination, McAfee admitted he and defendant were no longer
close friends after defendant slept with the mother of McAfee’s children.
¶ 16 Cordney Smith testified he was incarcerated for drug conspiracy. Smith was friends
with Blanks, and they were both members of a rival gang of defendant. Smith stated, a few months
prior to Blanks’s murder, he and Blanks were sitting outside Blanks’s mother’s home when
defendant, Johnson, and two or three other men walked by. Smith believed the men were “casing
the spot out” and “thought something was going to happen.” In 2000, Smith encountered defendant
outside a nightclub, where defendant said, “ ‘You Disciples ain’t put enough work in. You all
didn’t put enough work in, you all need to get your murder game up to par.’ ” Smith interpreted
defendant’s statement to mean that defendant had murdered Blanks. Smith stated he was testifying
pursuant to an agreement that might reduce his prison time.
¶ 17 Sean Lewis testified he was incarcerated and hoped to gain leniency. In January
1999, he was living in Memphis, Tennessee, hiding from the police when he learned Blanks had
been killed. Defendant contacted Lewis, seeking a place to stay. Lewis sent defendant a bus ticket,
and defendant lived with Lewis in Memphis. Defendant told Lewis he, Johnson, and Perry Slater
went to Blanks’s house to rob him. Defendant had a knife and Johnson had a handgun. Defendant
stated they caught Blanks coming out of the shower and “the whole robbery went haywire.”
Defendant stated he was wounded during the attack and that Blanks was killed. Lewis testified
Blanks lived with his wife, Zeneta, and children at a home next door to Blanks’s mother-in-law.
On cross-examination, Lewis admitted he had been incarcerated with Slater in 2005, and Slater
had informed him about the murder as well. Lewis was surprised to learn defendant had pleaded
-5- guilty to a criminal offense in Scott County, Iowa, in February 1999. Lewis believed defendant
was living in Memphis in February 1999. Lewis was also unaware defendant was in prison in April
2000 because he believed defendant was still living in his home in Memphis after Lewis had been
incarcerated in March 1999.
¶ 18 The State attempted to call defendant’s former girlfriend, Chrystal Brooks, as a
witness to corroborate Lewis’s testimony that defendant was in Memphis after the murder.
Defendant objected, and the State provided an offer of proof of Brooks’s testimony. Ultimately,
the trial court ruled the State could not call Brooks to the stand, noting her testimony was
contradictory to Lewis’s testimony and failed to establish that defendant was ever in Memphis.
¶ 19 Lewis testified again on defendant’s behalf. Lewis admitted defendant never told
him he had stabbed Blanks. Lewis stated defendant gave him “ ‘semi scenarios,’ ” and after
speaking with other friends, Lewis “ ‘put two and two together.’ ”
¶ 20 Police officer Douglas Garrison was called to testify by defendant. He testified that,
while investigating Blanks’s murder, he failed to find any witnesses who saw defendant in
Memphis with Lewis. Garrison also failed to discover any physical evidence showing that
defendant ever resided in Memphis.
¶ 21 The jury returned guilty verdicts on both counts.
¶ 22 Defendant subsequently filed a pro se motion requesting a new trial because his
trial counsel was ineffective for, inter alia, failing to investigate an alibi defense or call alibi
witnesses. No specific alibi witnesses were named in the motion.
¶ 23 Defendant, with new counsel, filed a motion for a new trial and alleged his trial
counsel was ineffective for failing to call several witnesses, including Belinda Jones, Chrystal
Brooks, Yolanda Morrow, and Tonya Morrow. An affidavit from defendant, attached to the
-6- motion, stated his trial counsel failed to contact alibi witnesses Margie Northern and Yolanda
Morrow.
¶ 24 At the hearing on defendant’s motion, defendant’s counsel pursued only the claim
that defendant’s trial counsel, Herbert Schultz Jr., was ineffective for failing to call Jones and
Brooks as witnesses at trial. Defendant called Schultz as a witness, and he testified he had secured
a court-appointed investigator for defendant’s case but did not have the investigator interview
anyone. He recalled Jones’s statement in discovery that she had observed someone known as “the
furniture man” in Blanks’s home going through Blanks’s clothes after he had been attacked.
Schultz did not interview Jones personally and believed her statement was not important. Schultz
also declined to call Brooks because, when he interviewed her, she was “all over the map.”
Additionally, defendant told Schultz there was “bad blood” between him and Brooks, so Schultz
did not trust her testimony. Schultz confirmed his trial strategy was predicated on the weakness of
the State’s evidence.
¶ 25 On cross-examination by the State, Schultz denied that defendant ever mentioned
Yolanda Morrow or Tonya Morrow as alibi witnesses. When asked if defendant had “mention[ed]
any other people” as alibi witnesses, Schultz stated, “No.” When asked if there were any strategic
reasons why Schultz did not call any alibi witnesses, he said defendant “didn’t have any.”
¶ 26 The trial court denied defendant’s motion, finding trial counsel had strategic
reasons for not calling Jones or Brooks as witnesses on defendant’s behalf.
¶ 27 In March 2011, defendant was sentenced to 60 years’ imprisonment.
¶ 28 B. Direct Appeal and Postconviction Proceedings
¶ 29 Defendant filed a direct appeal, arguing (1) the evidence was insufficient to prove
his guilt beyond a reasonable doubt, (2) his trial counsel was ineffective for failing to call witnesses
-7- Jones and Brooks, and (3) his sentence was excessive. People v. Northern, 2013 IL App (3d)
110231-U, ¶ 1. The appellate court affirmed. Id. ¶ 48.
¶ 30 In March 2014, defendant filed a pro se postconviction petition pursuant to the Act.
The petition alleged, inter alia, that (1) alibi witnesses Margie Northern and Yolanda Morrow
would have testified to his whereabouts on the evening of Blanks’s murder, (2) trial counsel was
ineffective for failing to move to dismiss the indictment because Garrison was permitted to
question several witnesses during the grand jury proceedings, and (3) counsel was also ineffective
for failing to object to prejudicial gang evidence.
¶ 31 The matter languished for several years while defendant was appointed several
different postconviction counsel. Finally, in March 2022, defendant’s fourth appointed
postconviction counsel filed a second amended petition, alleging that Schultz was ineffective for
failing to (1) call alibi witnesses Margie Northern, Yolanda Morrow, and Tonya Morrow,
(2) challenge the improperly conducted grand jury proceedings, and (3) challenge the admission
of prejudicial gang evidence. Defendant also alleged his appellate counsel was ineffective for
failing to raise Schultz’s ineffectiveness as to those issues on direct appeal. Affidavits from both
Margie and Yolanda were attached to the petition.
¶ 32 In her affidavit, Margie averred that she was with defendant at Yolanda’s residence
on the night of the murder. She stated defendant arrived at the residence around 8 p.m. and left
around 12:30 a.m. to go to Tonya’s residence. Margie asserted she tried to contact Schultz,
defendant’s trial counsel, “multiple times” but “never received a call back.” Although she was
never interviewed by Schultz, he did advise her on the first day of defendant’s trial that she could
not enter the courtroom because she was going to be called as a witness. Margie maintained she
was present for every day of defendant’s trial but was never called to testify.
-8- ¶ 33 Yolanda averred that defendant arrived at her residence around 7:45 p.m. on the
night of Blanks’s murder and remained there with her and Margie until 12:30 to 12:45 a.m. After
being informed of the charges against defendant, Yolanda attempted to contact Schultz “on
numerous occasions.” She left messages informing him of the information she had. Yolanda
maintained that Schultz never returned any of her calls or messages. Further, she stated that she
would have been “happy to testify” on defendant’s behalf at trial.
¶ 34 In May 2023, the trial court conducted an evidentiary hearing on defendant’s
petition. With respect to his alibi witness claim, defendant testified on his own behalf, asserting
that he had informed Schulz of his alibi witnesses—Margie, Tonya, and Yolanda. He testified
Margie and Tonya were his sisters and Yolanda was his cousin. According to defendant, Schultz
responded by telling defendant that the State had a weak case and that he did not believe a defense
was necessary. Defendant stated that he and Schultz also discussed hiring a private investigator.
Further, he noted that prior to trial, he complained to the trial court that the defense investigator
“the judge signed off on” was not being used.
¶ 35 Defendant testified that on the night of the murder, he was at Yolanda’s residence,
arriving between 7:30 p.m. and 8 p.m. He left around 12:30 a.m. to return to his sister Tonya’s
residence, where he had been staying. At Tonya’s residence, he slipped on some snow and fell
onto a broken porch railing, injuring his abdomen on a piece of metal. He went to the hospital at
approximately 2:30 a.m. Defendant stated that Tonya passed away in 2003, prior to his indictment
in 2008. Tonya’s death certificate was admitted into evidence at the hearing.
¶ 36 Margie testified at the evidentiary hearing that defendant was her brother. On the
evening of Blanks’s murder, she was with defendant and Yolanda from 8 or 9 p.m. until 12:30
a.m. With respect to defendant’s trial, Margie asserted that she had tried to communicate with
-9- Schultz “about alibi information.” She stated that she tried to call Shultz’s office “a few times”
and left messages but never received a response. Margie stated she also attended defendant’s trial
but was told by Schultz that she could not be in the courtroom because she would be called as a
witness. At that time, she did not tell Schultz that she had alibi information, stating she “just
assumed that’s why [she] had to wait in the hallway.” On cross-examination, Margie
acknowledged that she never approached the police “or anybody like that” to tell them about
defendant’s alibi information, stating, “[T]hat’s what [defendant’s] lawyer is for.”
¶ 37 Schultz, defendant’s trial attorney, was not called as a witness to testify at the
evidentiary hearing.
¶ 38 In October 2023, the parties convened for the trial court’s ruling on defendant’s
petition. Relevant to these appeals, the court denied defendant’s claims as to the grand jury
proceedings and gang evidence. It found Garrison’s conduct at the grand jury proceedings did not
rise to the level of a substantial deprivation of a constitutional right, “even if contrary to statutory
requirements, grand jury rules, et cetera.” The court noted the standard for an indictment was
significantly less than the standard for defendant’s ultimate conviction by a jury. Further, had
Schultz challenged the indictment, the State would have been permitted to seek a second
indictment by correcting the error, thereby resulting in no prejudice to defendant. Because
defendant was not prejudiced by the purported grand jury issues, the court concluded appellate
counsel was also not ineffective for failing to raise the issue on direct appeal.
¶ 39 Addressing the gang affiliation evidence, the trial court stated there was no
evidence showing Schultz was ineffective, “much less that it prejudiced [defendant].” For the same
reasons, the court concluded appellate counsel could not be ineffective for failing to raise the issue
on direct appeal.
- 10 - ¶ 40 However, the trial court agreed with defendant with respect to his claim that Schultz
was ineffective for failing to investigate and call defendant’s alleged alibi witnesses. The court
cited People v. King, 316 Ill. App. 3d 901 (2000), as analogous. It also noted that Shultz did not
testify at the evidentiary hearing and that it did not “have anything from him to determine what his
trial strategy was or his reasoning.” The court emphasized that there appeared to be “no
investigation done upon which *** Schultz could have *** made an informed decision.” It pointed
to defendant’s testimony that he informed Schultz “about the alibi” and the names of his witnesses
and that Schultz responded by stating the State’s case was weak and that defendant did not need
an alibi defense. Further, the court noted that defendant’s testimony regarding his complaints about
Schultz’s failure to use the defense investigator was supported by the record. The court pointed to
pretrial transcripts that showed defendant informed the trial judge that he did not agree with
Schultz’s “strategy” and that he complained that the court-appointed defense investigator had not
spoken to anyone “on the case.” The court also relied on the special concurrence in defendant’s
direct appeal, which noted the lack of direct evidence implicating defendant and the weakness of
the circumstantial evidence in the case. See Northern, 2013 IL App (3d) 110231-U, ¶¶ 49-55
(McDade, J., specially concurring).
¶ 41 The trial court concluded that Schultz’s “failure to interview and call” defendant’s
alibi witnesses amounted to deficient performance. Additionally, given the weakness of the State’s
case, it found defendant suffered prejudice. The court granted defendant’s postconviction petition
based on his alibi witness claim, ordering his conviction vacated and the matter set for a new trial.
¶ 42 These appeals followed.
¶ 43 II. ANALYSIS
¶ 44 The State appeals, contending the trial court erred when granting defendant’s
- 11 - petition because Schultz’s decision not to interview or call alleged alibi witnesses (1) was sound
trial strategy and (2) did not prejudice defendant. Defendant also appeals, challenging the court’s
denial of his claims relating to the alleged improper grand jury proceedings and the admission of
gang-related evidence at trial. Specifically, he argues (1) the court erred when finding Garrison’s
participation in the grand jury proceedings was not prejudicial, (2) Schultz was ineffective for
failing to seek a dismissal of the indictment, (3) Schultz was ineffective for failing to object to
prejudicial gang evidence, and (4) his counsel on direct appeal was ineffective for failing to raise
the issue of prejudicial gang evidence.
¶ 45 The Act provides a three-stage process to remedy a defendant’s conviction that
resulted from a substantial violation of their constitutional rights. People v. Edwards, 197 Ill. 2d
239, 243-44 (2001). When a petition advances to the third stage of postconviction proceedings,
the trial court conducts an evidentiary hearing, during which the defendant bears the burden of
proving a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458,
472-73 (2006). At the third-stage hearing, “the circuit court serves as the fact finder, and, therefore,
it is the court’s function to determine witness credibility, decide the weight to be given testimony
and evidence, and resolve any evidentiary conflicts.” People v. Domagala, 2013 IL 113688, ¶ 34.
¶ 46 On review, the trial court’s third-stage factual findings and credibility
determinations are entitled to significant deference on review. Specifically, “[a]fter [a
postconviction] evidentiary hearing where fact-finding and credibility determinations are
involved, the circuit court’s decision will not be reversed unless it is manifestly erroneous.” People
v. English, 2013 IL 112890, ¶ 23. “Manifest error is clearly evident, plain, and indisputable.”
(Internal quotation marks omitted.) People v. Coleman, 2013 IL 113307, ¶ 98. “Thus, a decision
is manifestly erroneous when the opposite conclusion is clearly evident.” Id. “This deferential
- 12 - standard of review reflects the understanding that the trial court is in the best position to observe
and weigh the credibility of the witnesses.” People v. House, 2023 IL App (4th) 220891, ¶ 78.
¶ 47 Our supreme court has also stated that where no fact-finding and credibility
determinations are necessary at a third-stage hearing and the issues presented involve only
questions of law, a de novo standard of review may be applied. English, 2013 IL 112890, ¶ 23. In
the postconviction context, this court has further held that because review of ineffective-assistance-
of-counsel claims typically involves a mixed question of law and fact, a hybrid standard of review
applies. See People v. Phillips, 2017 IL App (4th) 160557, ¶ 55 (citing People v. Coleman, 2015
IL App (4th) 131045, ¶ 66). In particular, “[w]hen addressing such a claim, we defer to the trial
court’s factual findings and will disturb them only if they are against the manifest weight of the
evidence but review de novo the court’s ultimate determination of whether counsel rendered
ineffective assistance.” Id.
¶ 48 To prevail on a claim of ineffective assistance of counsel, a defendant must satisfy
the two-pronged test from Strickland v. Washington, 466 U.S. 668 (1984). Specifically, “a
defendant must prove that defense counsel’s performance fell below an objective standard of
reasonableness and that this substandard performance created a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.” People v. Graham, 206
Ill. 2d 465, 476 (2003). “ ‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” People v. Hale, 2013 IL 113140, ¶ 18 (quoting Strickland, 466 U.S.
at 694).
¶ 49 A. The State’s Appeal—Alibi Witnesses
¶ 50 1. Schultz’s Prior Testimony
¶ 51 As noted, the State argues the trial court erred by granting defendant postconviction
- 13 - relief based on his claim that Schultz was ineffective for failing to interview or call defendant’s
alleged alibi witnesses. Initially, it contends Schultz exercised sound trial strategy in not calling
alibi witnesses and points to testimony that Schultz gave in August 2010 at a posttrial hearing that
defendant did not inform Schultz of any alibi witnesses. The State maintains Schultz strategically
did not call any alibi witnesses because the record shows defendant did not have any. However,
we decline to consider evidence of Schultz’s August 2010 testimony, as it was not presented to, or
considered by, the court at the 2023 third-stage evidentiary hearing.
¶ 52 Again, the trial court serves as the fact finder at a third-stage evidentiary hearing
and, as a result, “it is the court’s function to determine witness credibility, decide the weight to be
given testimony and evidence, and resolve any evidentiary conflicts.” Domagala, 2013 IL 113688,
¶ 34. “At [the third] stage, the circuit court must determine whether the evidence introduced
demonstrates that the petitioner is, in fact, entitled to relief.” Id. “The court may receive proof by
affidavits, depositions, oral testimony, or other evidence.” 725 ILCS 5/122-6 (West 2022). Further,
although the court may properly refer to the entire record in the case before it during a
postconviction evidentiary hearing (id. § 122-2.1(C)), it has no obligation to do so. See People v.
Thomas, 20 Ill. 2d 603, 608 (1960) (“[A]lthough it would have been proper for the judge [at the
postconviction evidentiary hearing] to refer to the evidence at the original trial, he was not required
to do so, and his failure to read the evidence did not constitute prejudicial error.”).
¶ 53 Here, the State relies on Schultz’s 2010 testimony for the first time on appeal.
Schultz’s prior testimony was not presented during the underlying postconviction proceedings,
either through evidence or argument. It was not even mentioned at the hearing or in the trial court’s
ruling. Rather, at the May 2023 third-stage evidentiary hearing, the State’s argument assumed that
defendant did inform Schultz of the alibi witnesses and that Schultz simply elected, based on
- 14 - reasonable and sound trial strategy, not to present them. While Schultz’s 2010 testimony was
within the underlying record, the trial court was entitled to confine its consideration to the evidence
and argument submitted to it by the parties at the postconviction evidentiary hearing. It was under
no obligation, statutory or otherwise, to search the record for evidence that either contradicted
defendant’s claim of error or supported a responding argument—an argument, we must emphasize,
that the State never actually advanced in the trial court. Our consideration of such evidence at this
stage of the proceedings would place just such an obligation on the trial court.
¶ 54 Significantly, Schultz’s 2010 testimony is also not the type of evidence that could
positively rebut defendant’s postconviction alibi witness claim. “For *** evidence to be positively
rebutted, it must be clear from the trial record that no fact finder could ever accept the truth of that
evidence, such as where it is affirmatively and incontestably demonstrated to be false or
impossible.” (Internal quotation marks omitted.) People v. Gharrett, 2022 IL App (4th) 210349,
¶ 42. Rather than being conclusive of the issue defendant raised in his postconviction petition,
Schultz’s prior testimony is simply contradictory to defendant’s position. People v. Robinson, 2020
IL 123849, ¶ 60 (“[T]he existence of a conflict with the trial evidence is not the same as finding
that the new evidence is positively rebutted.”); People v. Moore, 2022 IL App (1st) 192290, ¶ 44
(stating eyewitness testimony “generally fails to meet the requirements for a positive rebuttal”).
Thus, evidence of Schultz’s testimony from the prior posttrial hearing is the type of evidence that
should be weighed by the trier of fact when resolving the issues in the case. At a third-stage
evidentiary hearing, the trial court is the trier of fact. Consideration of Schultz’s 2010 testimony
in the manner suggested by the State would require this court to step into the shoes of the trial
court as the trier of fact and weigh conflicting evidence, including evidence not presented or
considered at the evidentiary hearing. Such is not the function of this court on review.
- 15 - ¶ 55 An additional problem with the State’s request is that “[a] reviewing court may only
affirm on any basis in the record; it may not reverse on any grounds found in the record.”
(Emphasis in original.) People ex rel. Department of Human Rights v. Oakridge Healthcare
Center, LLC, 2020 IL 124753, ¶ 36. In Oakridge Healthcare, a party sought reversal of a trial
court’s judgment by raising an argument that the party had failed to raise with the trial court and
arguing that the reviewing court could affirm or reverse on any ground appearing in the record. Id.
¶¶ 35-36. The supreme court rejected that contention, finding it “reflect[ed] a misunderstanding of
the applicable standard.” Id. ¶ 36. Similar circumstances are presented here, where the State seeks
reversal of the trial court’s judgment based on evidence and argument that was never presented to,
or considered by, the lower court. Accordingly, we reject the State’s argument and do not consider
Schultz’s 2010 testimony in addressing the merits of the State’s appeal.
¶ 56 Additionally, contrary to the State’s argument on appeal, we find that evidence
showing Schultz was unaware of, or never informed of, defendant’s alleged alibi witnesses would
not establish that Schultz exercised any sound trial strategy by failing to call them. Rather, such
evidence would have provided a separate basis upon which to reject defendant’s
ineffective-assistance claim. Notably, a defendant’s attorney may be deemed ineffective for failing
“to present exculpatory evidence of which he is aware, including the failure to call witnesses whose
testimony would support an otherwise uncorroborated defense.” (Emphasis added.) King, 316 Ill.
App. 3d at 913. Whether defendant informed Schultz of the existence of his alleged alibi and alibi
witnesses prior to trial presents a distinct issue from whether Schultz made knowing, tactical
decisions not to present such alibi witness testimony. In other words, counsel does not decide to
forgo calling a witness of whom he is unaware. At the evidentiary hearing, the State relied solely
on the contention that Schultz made a sound, strategic decision not to call alibi witnesses. As stated,
- 16 - such an argument assumes Schultz’s knowledge of those witnesses and their alleged alibi
testimony.
¶ 57 2. Schultz’s Failure to Interview or Call Alibi Witnesses
¶ 58 As set forth above, the State argues the trial court erred in finding ineffective
assistance based on Schultz’s failure to interview or call defendant’s alleged alibi witnesses. The
State begins by noting that Tonya Morrow passed away in 2003 and defendant was not indicted
until several years later; therefore, Schultz could not have elicited Tonya’s testimony as an alibi
witness. As to the remaining two alibi witnesses—Margie Northern and Yolanda Morrow—the
State points out that both were defendant’s family members. It maintains that, as such, the
witnesses lacked credibility and their testimony would not have overcome the evidence of
defendant’s guilt that was presented at trial.
¶ 59 In the context of an ineffective-assistance-of-counsel claim, “strategic choices
made by defense counsel after a thorough investigation of the law and facts relevant to the plausible
options are virtually unchallengeable.” (Internal quotation marks omitted.) Id. Generally, “trial
counsel’s decision whether to present a particular witness is within the realm of strategic choices
that are generally not subject to attack on the grounds of ineffectiveness of counsel.” Id. However,
counsel may be deemed ineffective for the “failure to present exculpatory evidence of which
[counsel] is aware, including the failure to call witnesses whose testimony would support an
otherwise uncorroborated defense.” Id.
¶ 60 Here, the record reflects findings by the trial court that (1) defendant informed
Schultz that he had an alibi and provided the names of his alibi witnesses and (2) Schultz failed to
investigate defendant’s reported alibi defense. As noted by the court, Schultz did not testify at the
evidentiary hearing. Therefore, the trial court did not know “what his trial strategy was or his
- 17 - reasoning.” Also, defendant testified that he had informed Schultz that he had an alibi and provided
the names of his alibi witnesses. The court pointed out defendant’s testimony that Schultz
responded that defendant did not need an alibi defense because the State’s case was weak. It also
relied on testimony from defendant that he had complained about Schultz’s failure to use the
court-appointed defense investigator to interview witnesses. The court found the record
corroborated defendant’s statements, referencing pretrial hearing transcripts that showed a defense
investigator was appointed on Shultz’s motion and that defendant subsequently complained that
the investigator had not spoken to anyone regarding his case and that he did not agree with
Schultz’s “strategy.” Margie also testified at the hearing, asserting she was with defendant at the
time of the alleged offense and was willing and available to testify at defendant’s trial.
¶ 61 To support its finding of ineffective assistance, the court also determined that the
State’s case against defendant was weak. In particular, it quoted portions of the special concurrence
from defendant’s direct appeal commenting on the weakness of the evidence in the case. See
Northern, 2013 IL App (3d) 110231-U, ¶¶ 49-55 (McDade, J., specially concurring). The court
ultimately concluded that Schultz performed deficiently by failing “to interview and call”
defendant’s alibi witnesses and that “based on the evidence,” i.e., the weakness of the State’s case,
defendant was clearly prejudiced. The evidence and arguments presented at the evidentiary hearing
support the trial court’s factual findings, and opposite conclusions from those reached by the court
are not clearly apparent.
¶ 62 Nor did the trial court err in its ultimate conclusion that Schultz provided ineffective
assistance. In setting forth its ruling, the trial court relied on King. There, the defendant was a
school bus driver who was convicted of sexually assaulting a 17-year-old bus passenger. King, 316
Ill. App. 3d at 903-04. During postconviction proceedings, the defendant challenged his trial
- 18 - counsel’s failure to call as an alibi witness a bus attendant who would have testified that she was
on the bus at the time of the alleged offense and that the defendant was never alone with the
complaining witness. Id. at 904. The defendant also provided an affidavit stating that he had given
his trial counsel the bus attendant’s name and told counsel that she could testify on his behalf. Id.
¶ 63 In finding error, the First District noted that “case law holds that counsel’s tactical
decisions may be deemed ineffective when they result in counsel’s failure to present exculpatory
evidence of which he is aware, including the failure to call witnesses whose testimony would
support an otherwise uncorroborated defense.” Id. at 913. It held the bus attendant provided an
alibi for the defendant, her statements were “unequivocally exculpatory,” and her statements could
only have bolstered the defense theory that the defendant did not commit the alleged offense. Id.
at 914. The statements would also have bolstered the defense’s strategy of trying to prove that the
State’s complaining witness was not credible. Id. at 914-15. Significantly, the court pointed out
that “mere characterization of counsel’s decision not to call an available alibi witness as ‘trial
strategy’ does not preclude inquiry as to the reasonableness of counsel’s strategy.” Id. at 915-16.
Further, the court held that it would “decline to assume, without any explanation, that [trial
counsel’s] failure to call [the alibi] witness was the product of sound trial strategy.” (Emphasis in
original.) Id. at 916.
¶ 64 We agree that King is instructive. Like in King, evidence was presented during the
postconviction proceedings in this case of witnesses who could provide an alibi for defendant and
bolster the defense theory that defendant did not commit the charged offense. Notably, there was
no finding by the trial court that defendant’s alibi witnesses were not credible, nor was any
evidence presented that indicated their testimony would have been anything other than exculpatory
for defendant. Additionally, in King, although the defendant’s counsel presented witness testimony
- 19 - on the defendant’s behalf, specifically, testimony from three witnesses offered to challenge the
credibility of the State’s complaining witness, counsel ultimately failed to present exculpatory
evidence to rebut testimony from the State’s witnesses regarding the defendant’s opportunity to
commit the charged offenses. Id. at 910, 916. In this case, testimony from defendant’s alibi
witnesses was exculpatory and could have been used to rebut the State’s circumstantial evidence
placing defendant at the scene of the crime.
¶ 65 Moreover, this case involves circumstances that are even more suggestive of error
than in King. Specifically, here, the trial court found that not only did Schultz fail to call alibi
witnesses but he also failed to investigate defendant’s report of an alibi defense. The lack of an
investigation into the witnesses and their testimony suggests Schultz did not make an informed
strategic decision regarding whether to present that evidence. See People v. Truly, 230 Ill. App. 3d
948, 954 (1992) (finding “counsel’s decision could not be considered strategic since he failed to
investigate” the plausible defenses proffered to him by the defendant).
¶ 66 The dissent suggests defendant failed to carry his burden at the third-stage
evidentiary hearing because he did not call Schultz to testify and offered no reason for not calling
him. Infra ¶ 105. However, we are aware of no authority that would require defendant to present
such evidence to establish his claim. Here, defendant relied on his own testimony and that of one
of his alleged alibi witnesses to show that Schultz knew about defendant’s alibi defense and the
names of his alibi witnesses, Schultz declined to investigate an alibi defense, and witnesses existed
who could present exculpatory alibi evidence. The court, as the trier of fact, was free to find
defendant’s evidence credible and sufficient.
¶ 67 We note the State, in opposing defendant’s postconviction petition, could similarly
have called Schultz as a witness to potentially rebut defendant’s evidence or establish why
- 20 - defendant’s alibi witnesses were not investigated or called at trial. “Where a defendant has asserted
ineffective assistance of counsel and thereby put in issue the substance of communications between
herself and her attorney, the defendant has waived the attorney-client privilege, and it is not error
for the trial court to allow counsel to testify as to conversations with the defendant.” People v.
O’Banner, 215 Ill. App. 3d 778, 793 (1991) (finding that where a defendant alleged ineffective
assistance of counsel and testified to her communications with her counsel, “the State was not
precluded from calling [the] defendant’s trial counsel as a witness at [a] hearing on the
[defendant’s] motion for a new trial”). Here, the State declined to call Schultz as a witness and
defendant’s testimony about their communications remained unrebutted. The dissent’s critique
that the State’s presentation of Schultz as a witness would somehow result in a “burden shift” or
an “ethical quandary” is simply incorrect. Infra ¶ 105. Further, given the lack of any explanation
from defense counsel regarding a basis for his decisions, this case is like King, where the evidence
at the evidentiary hearing also included no explanation from the defendant’s counsel for his failure
to call the defendant’s alibi witness.
¶ 68 The dissent next asserts that the pretrial hearing transcripts referenced by the trial
court did not show any “correlation” between defendant’s alibi witness claim and the court’s
improper conclusion the exchanges therein “concerned defendant’s alibi witnesses.” Infra ¶ 107.
The dissent points out that the pretrial hearing transcripts included specific claims by defendant
about other witnesses in the case unrelated to his alleged alibi defense.
¶ 69 Although the transcripts do not show that defendant explicitly mentioned his
alleged alibi witnesses at the pretrial hearings, the transcripts do establish that defendant raised a
general complaint prior to trial about Schultz’s failure to use the court-appointed defense
investigator to interview any witnesses in the case. This was the basis for which the trial court
- 21 - referenced the transcripts, and it is supported by the record. Specifically, at the evidentiary hearing,
defendant testified that (1) he and Schultz discussed hiring a private investigator to interview
witnesses and (2) prior to trial, he complained that the private investigator was not being used. In
setting forth its ruling on defendant’s postconviction petition, the court noted defendant’s
testimony “on a private investigator not being used” and referenced the pretrial hearing transcripts
that supported his testimony. The transcripts showed the appointment of a defense investigator at
Schultz’s request, complaints by defendant that the investigator “hasn’t spoke to nobody on the
case,” and a statement by Schultz that he had not “had [the investigator] sent out.” The fact that
defendant also raised more specific complaints during the pretrial proceedings about witnesses
unrelated to his alibi defense does not require a finding that the record contradicted his testimony
at the evidentiary hearing or any finding by the court.
¶ 70 Additionally, the State asserts, and the dissent would find, that there were strategic
reasons for Schultz’s failure to call defendant’s alleged alibi witnesses. Infra ¶ 110. Both argue
and cite case authority supporting the proposition that it may be deemed reasonable trial strategy
for trial counsel not to call alibi witnesses who are related to the defendant. However, while cases
cited by the State and the dissent support the proposition that it may be reasonable in some
circumstances to forgo calling an alibi witness who is a defendant’s relative, they do not hold that
doing so will always be deemed reasonable.
¶ 71 The dissent additionally finds that Margie’s testimony at the evidentiary hearing
undermined her plausibility as a potential alibi witness because she acknowledged never reporting
to anyone that she had alibi information. The dissent finds that from Margie’s silence, “one could
reasonably infer she may not have cooperated with the court-appointed investigator either.” Infra
¶ 109. Notably, however, the trial court, as the trier of fact, never made such a determination.
- 22 - Further, the evidence presented at the third-stage hearing does not require the inference reached
by the dissent.
¶ 72 At the evidentiary hearing, Margie maintained that she tried to communicate with
Schultz about “alibi information.” Specifically, Margie stated she tried to call Schultz’s office a
few times and left messages but never received a response. She also attended defendant’s trial and
was told by Schultz “to stand outside” because she would be called as a witness. Margie
acknowledged that she did not try to tell Schultz about the alibi information she had, indicating
she “just assumed” that was why she was being called as a witness. On cross-examination, Margie
further acknowledged that she did not try to approach the police or “anybody like that” to report
the alibi information she had, explaining, “[T]hat’s what [defendant’s] lawyer is for.” Ultimately,
there is no evidence showing that Margie was ever uncooperative with respect to providing
information related to defendant’s case. Further, the trial court’s comments indicate only that it
found Margie could have provided exculpatory alibi evidence on defendant’s behalf.
¶ 73 Here, the trial court’s factual findings are not manifestly erroneous. Under the
circumstances presented, we find no error in the court’s determination that Schultz provided
ineffective assistance by failing to investigate or call defendant’s alleged alibi witnesses and in
granting defendant’s postconviction petition on that asserted basis.
¶ 74 B. Defendant’s Appeal—Grand Jury Proceedings
¶ 75 “A grand jury is a body of laypersons who investigate probable cause free from
technical rules.” People v. Basile, 2024 IL 129026, ¶ 28. Our supreme court has expressed
reluctance in “interfer[ing] with the indictment process,” and “a criminal defendant may not
challenge an indictment of a legally constituted grand jury” absent “narrow exceptions.” Id. ¶ 30.
“A grand jury proceeding is part of the accusatory stage of the criminal justice process, not the fair
- 23 - trial stage where a defendant’s guilt is ultimately determined. Id. ¶ 34. “Although the grand jury
investigates facts and measures the existence of probable cause, a grand jury does not act as a petit
jury, finally adjudicating guilt or innocence, and its proceedings are not minitrials.” Id. “Its task is
merely to assess whether there is adequate basis for bringing a criminal charge, subjecting a
defendant to a criminal trial.” Id.
¶ 76 The legislature has laid out specific grounds to permit the dismissal of a grand jury
indictment. As it relates to the specifics of this case, section 114-1(a)(5) of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/114-1(a)(5) (West 2008)) permits a defendant to move to
dismiss a grand jury indictment where “[t]he indictment was returned by a Grand Jury which acted
contrary to Article 112 of this Code [(id. § 122-1 et seq.)] and which results in substantial injustice
to the defendant.”
¶ 77 Defendant first contends Garrison’s presence at the grand jury proceedings was
unauthorized. He also argues Garrison’s consistent presence and active role in the grand jury
proceedings violated section 112-6(a) of the Code (id. § 112-6(a)), which permits “[o]nly the
State’s Attorney, his reporter and any other person authorized by the court or by law” to attend the
sessions of the grand jury. Defendant points to several cases as instructive: People v. Fassler, 153
Ill. 2d 49 (1992), People v. Toolen, 116 Ill. App. 3d 632 (1983), People v. Jackson, 64 Ill. App. 3d
307 (1978), and People v. Hunter, 61 Ill. App. 3d 588 (1978).
¶ 78 In Fassler, 153 Ill. 2d at 52, the defendant, a teacher, was charged for sexually
molesting a 13-year-old student during class. During the grand jury proceedings, the victim’s
mother—who was not authorized to attend—was present. Id. at 53. The victim’s mother did not
address the grand jury, was not present during any other witnesses’ testimony, and was not present
during the grand jury deliberations. Id. However, during the victim’s testimony, the mother did
- 24 - instruct the victim to “ ‘calm down.’ ” Id. The trial court, citing section 112-6(a), dismissed the
indictment against the defendant pursuant to section 114-1(a)(5) (Ill. Rev. Stat. 1989, ch. 38,
¶ 114-1(a)(5)), which permits the court to grant a motion to dismiss an indictment where the grand
jury acts contradictory to article 112 and “results in a substantial injustice to the defendant.”
Fassler, 153 Ill. 2d at 53.
¶ 79 The Fassler court rejected a per se rule that permitted the dismissal of a grand jury
indictment merely for violating section 112-6(a) by permitting unauthorized individuals to be
present. Id. at 55. Rather, the court noted a substantial injustice must also be demonstrated. Id. at
55-56. The court found the victim’s mother’s presence did not result in a substantial injustice to
the defendant because there was no evidence the mother’s presence “endangered the secrecy” of
the proceedings or “influenced her daughter’s testimony or the grand jury’s decision.” Id. at 56.
¶ 80 In Toolen, 116 Ill. App. 3d at 645, the defendants contended the presence of
investigators during the testimony of other witnesses before the grand jury denied them due
process, requiring the dismissal of their indictments. The state’s attorney moved pursuant to statute
to permit the investigators’ authorized presence. Id. The investigators did not question any
witnesses and were not present during deliberations. Id. The appellate court concluded the
defendants had not been prejudiced by the investigators’ presence. Id. at 648.
¶ 81 In Jackson, 64 Ill. App. 3d at 312, the State conceded it was error to permit an
investigator to ask questions of a grand jury witness. However, the investigator’s questions to the
witness only “sought further explanation.” Id. at 313. The court concluded the investigator’s
questioning did not prejudice the defendant. Id.
¶ 82 In Hunter, 61 Ill. App. 3d at 593, two police officers were present while witnesses
testified before the grand jury. The officers were authorized to be present. Id. The appellate court
- 25 - concluded the officers’ presence did not coerce any testimony and, thus, did not prejudice the
defendants. Id. at 594.
¶ 83 From these cases, defendant contends the instant matter is distinguishable because
Garrison’s presence was far more pervasive and influential. He argues the error of permitting
Garrison’s participation in the grand jury proceedings was not harmless because the legislature has
limited the instances wherein the State may reindict an individual, citing People v. Hunter, 298 Ill.
App. 3d 126, 130-31 (1998) (citing 725 ILCS 5/114-1(e) (West 1996)). Defendant asserts
Garrison’s participation was not a mere technical violation that could be remedied by the State
re-indicting him without Garrison’s presence because the evidence in the case was so weak it
warranted a special concurrence saying as much on direct appeal. See Northern, 2013 IL App (3d)
110231-U, ¶¶ 49-55 (McDade, J., specially concurring). Thus, defendant contends without
Garrison’s participation, there was a reasonable probability no indictment would have been
returned at all.
¶ 84 The State argues the record contradicts defendant’s claim Garrison was not
authorized to be present during the grand jury proceedings. The State notes, during the January 30,
2008, grand jury session, the state’s attorney asked Garrison if he had been previously appointed
as the grand jury investigator, to which Garrison replied, “Yes.” The State also contends defendant
has failed to identify a substantial injustice or prejudice he has incurred due to Garrison’s
participation in the grand jury proceedings.
¶ 85 Regarding the issue of whether Garrison’s presence at the grand jury proceedings
was authorized, we agree with the State that the record suggests Garrison was a duly appointed as
a grand jury investigator. We note the legislature has authorized “others” aside from the state’s
attorney and his reporter to be present during grand jury proceedings. See 725 ILCS 5/112-6(a)
- 26 - (West 2008) (“Only the State’s Attorney, his reporter and any other person authorized by the court
or by law may attend the sessions of the Grand Jury.” (Emphasis added.)). “The court may appoint
an investigator or investigators on petition showing good cause for same and signed by the foreman
and 8 other grand jurors. The duties and tenure of appointment of such investigator or investigators
shall be determined by the court.” Id. § 112-5(b). Garrison’s sworn and uncontradicted testimony
is that he was previously appointed as the grand jury investigator in this matter. Defendant argues
there is no documented record of Garrison’s appointment or authorization to be present during the
grand jury proceedings. However, defendant, as the appellant, “has the burden to present a
sufficiently complete record of the proceedings” below. Foutch v. O’Bryant, 99 Ill. 2d 389, 391-
92 (1984). “Any doubts which may arise from the incompleteness of the record will be resolved
against the appellant.” Id. at 392. Nonetheless, “[e]ven when the presence of persons in the grand
jury room during testimony is unauthorized, undue influence is not presumed.” Hunter, 61 Ill.
App. 3d at 593-94.
¶ 86 Thus, we are left with Garrison’s authorized presence as the grand jury investigator.
While it is not clear what Garrison’s authorized duties were, we do not condone his described
participation in the grand jury proceedings. “The grand jury process is an invaluable part of our
system of criminal justice.” Basile, 2024 IL 129026, ¶ 29. “The grand jury serves as an accusatory
body that brings to trial those who may be guilty of a crime [citation], but just as importantly, it
also stands as a shield between citizens and the State and secures ‘the innocent against hasty,
malicious[,] and oppressive prosecution.’ ” Id. (quoting Wood v. Georgia, 370 U.S. 375, 390
(1962)).
¶ 87 We recognize the cases defendant cites generally reflect that where a grand jury
investigator coerces or otherwise affects the grand jury’s deliberations, a defendant is prejudiced
- 27 - or suffers a substantial injustice. Here, there is no evidence Garrison was present for or otherwise
affected the grand jury’s deliberations. “[A]n indictment alone does not suffice to establish
prejudice.” Toolen, 116 Ill. App. 3d at 646.
¶ 88 Furthermore, even if we were to assume Garrison’s active role during the grand
jury proceedings was impermissibly influential such that it amounted to a substantial injustice, we
are unconvinced there would have been a reasonable probability no indictment would have been
returned absent Garrison’s involvement. Had Shultz moved to dismiss the indictment pursuant to
section 114-1(a)(5) and been successful, nothing would have prohibited the State from convening
a new grand jury without Garrison’s active participation to seek a new indictment. Section 114-
1(e) provided that where an indictment is dismissed pursuant to 114-1(a)(5), it did “not prevent
the return of a new indictment or the filing of a new charge.” 725 ILCS 5/114-1(e) (West 2008).
¶ 89 Defendant points to the weakness of the evidence in the case to question whether
such a new indictment would have been returned, but “[a]n accused may not challenge an
indictment on the ground[s] that it is not supported by sufficient evidence where there is any
evidence to support the indictment.” (Emphasis added.) Fassler, 153 Ill. 2d at 61. The record
demonstrates there was undoubtedly some evidence to support the indictment, regardless of
Garrison’s participation level. This is also plainly obvious because there was sufficient evidence
to support a conviction beyond a reasonable doubt despite defendant’s protestations regarding the
weakness of the evidence. See Northern, 2013 IL App (3d) 110231-U, ¶ 30. Accordingly, we
conclude the evidence was sufficient to support an indictment absent Garrison’s participation.
Thus, despite the improper role Garrison played, there was no substantial injustice warranting the
indictment’s dismissal.
¶ 90 Because we find defendant was not prejudiced by the grand jury proceedings, he
- 28 - cannot show his trial counsel was ineffective for failing to move to dismiss the indictment, nor can
he show his appellate counsel was ineffective for failing to raise the issue on appeal. See People
v. Enis, 194 Ill. 2d 361, 377 (2000) (“The failure to satisfy either the deficiency prong or the
prejudice prong of the Strickland test precludes a finding of ineffective assistance of counsel.); see
also People v. Simms, 192 Ill. 2d 348, 362 (2000) (Where the underlying issue lacks merit, a
defendant suffers no prejudice; therefore, the reviewing court is not required to examine the merits
of the claims not raised by appellate counsel.).
¶ 91 C. Defendant’s Appeal—Gang Affiliation Evidence
¶ 92 Defendant next argues Schultz was ineffective for failing to object to the
introduction of his gang affiliation into evidence or otherwise file a motion in limine to exclude
such evidence. Likewise, he claims appellate counsel was ineffective for failing to raise the issue
on appeal. Defendant contends the gang affiliation evidence was prejudicial and irrelevant because
Blanks’s murder was largely attributed to drugs and money from a robbery gone wrong.
Additionally, he argues there was no evidence he was a gang member. In support, defendant cites
People v. Patterson, 154 Ill. 2d 414 (1992).
¶ 93 In Patterson, the defendant was convicted of murdering two elderly individuals
after breaking into their home. Id. at 427. The defendant admitted to being a member of a gang
and entering the victims’ home because he needed guns. Id. at 459. The Patterson court explained:
“Evidence of gang affiliation need not be excluded if it is otherwise relevant
and admissible. [Citation.] Evidence indicating the defendant was a gang
member or involved in gang-related activity is generally held to be
admissible to show common purpose or design, or to provide a motive for
an otherwise inexplicable act. [Citation.] Such evidence, however, is only
- 29 - admissible where there is sufficient proof that membership or activity is
related to the crime charged. [Citation] The determination of whether such
evidence is admissible is primarily an inquiry into its relevance to the
charges.” Id. at 458.
The Patterson court concluded the defendant’s gang affiliation was properly admitted to explain
the motive behind “otherwise inexplicable murders.” Id. at 459.
¶ 94 Here, the State contends the evidence was admissible because the testimony of the
jailhouse informants indicated they had known defendant and/or Blanks since childhood and had
personal knowledge about defendant’s and Blanks’s gang memberships. Furthermore, the State
argues that Blanks was specifically targeted not simply for drugs and money but because he was a
drug dealer for a rival gang.
¶ 95 We reiterate the standard from above: to prevail under the Strickland standard, “a
defendant must prove that defense counsel’s performance fell below an objective standard of
reasonableness and that this substandard performance created a reasonable probability that, but for
counsel’s errors, the result of the proceeding would have been different.” Graham, 206 Ill. 2d at
476.
¶ 96 The evidence at trial showed defendant did have some level of gang affiliation.
Christopher McAfee testified he grew up with both Robert Johnson—a codefendant who was
acquitted of Blanks’s murder—and defendant. Their relationship involved being members of the
same gang. Cordney Smith testified he was friends with Blanks and that they were both members
of a rival gang to defendant. After Blanks’s murder, Smith recalled defendant invoking Smith’s
rival gang membership and its connection to Blanks’s murder.
¶ 97 We are certainly aware that gang membership carries a distinctive form of
- 30 - prejudice. See Patterson, 154 Ill. 2d at 458 (“This court recognizes that, particularly in
metropolitan areas, there may be a strong prejudice against street gangs.”). “It has been
consistently held, however, that where evidence is relevant and otherwise admissible, it is not
excluded because it may also have a tendency to prejudice the accused.” Id. The basis for McAfee’s
and Smith’s relationships with defendant and Blanks is intertwined with their gang memberships.
Therefore, we find defendant’s gang affiliation was relevant. We find the evidence was also
sufficiently related to Blanks’s murder. Recall, defendant was charged with murder for repeatedly
stabbing Blanks after he had broken into Blanks’s home and attacked him as he exited the shower.
Defendant’s argument on appeal is essentially that a murder under the pretense of a robbery for
drugs and/or money is mutually exclusive from that of attacking and killing a rival gang member.
We disagree. It is perfectly compatible and reasonable to conclude that one gang member may rob
another for drugs and/or money because the other individual is a member of a rival gang.
¶ 98 Accordingly, we find it was not objectively unreasonable for trial counsel to fail to
object to the gang affiliation testimony at trial or file a motion in limine to exclude such evidence.
See Enis, 194 Ill. 2d at 377 (“The failure to satisfy either the deficiency prong or the prejudice
prong of the Strickland test precludes a finding of ineffective assistance of counsel.”). For the same
reasons, we conclude appellate counsel was not ineffective for failing to raise the issue on direct
appeal. See Simms, 192 Ill. 2d at 362 (where the underlying issue lacks merit, a defendant suffers
no prejudice; therefore, the reviewing court is not required to examine the merits of the claims not
raised by appellate counsel). Because we conclude trial and appellate counsel were not ineffective,
we find the trial court’s judgment was not manifestly erroneous.
¶ 99 III. CONCLUSION
¶ 100 For the reasons stated, we affirm the trial court’s judgment.
- 31 - ¶ 101 Affirmed.
¶ 102 JUSTICE CAVANAGH, dissenting in part:
¶ 103 I agree with the majority on the issues defendant raises on appeal. I write separately
because I respectfully disagree with its decision to affirm the issue the State raises on appeal. For
the reasons that follow, I would reverse the trial court’s decision granting defendant’s
postconviction petition based on his claim his trial counsel had rendered ineffective assistance by
failing to call alleged alibi witnesses.
¶ 104 The trial court granted defendant’s petition after (1) implicitly finding credible
defendant’s claims Schultz had failed to investigate and call alleged alibi witnesses to testify, (2)
finding King analogous, and (3) citing the weakness of the evidence as explained in the special
concurrence in defendant’s direct appeal.
¶ 105 While I agree the trial court was under no obligation to search the record for
Schultz’s 2010 testimony, which the State had failed to bring to its attention, the majority makes
much ado about the value of this evidence despite deciding to forgo its consideration. Nonetheless,
the court mentioned this hole in defendant’s allegations when it noted Schultz’s strategic reasons
for not investigating or calling the alleged alibi witnesses were unknown. His reasons were
unknown because Schultz was never called to testify at the evidentiary hearing. This is not a
conflict in the evidence to be resolved by the court as a fact finder. Rather, this was evidence never
brought forth by defendant, who carried the burden at the third-stage evidentiary hearing. See
Pendleton, 223 Ill. 2d at 472-73. Defendant offered no reason for not calling Schultz to testify. A
search of the Attorney Registration and Disciplinary Commission website shows he is still, at the
time of this court’s disposition, actively practicing law in Moline, Illinois. see Cordrey v. Prisoner
Review Board, 2014 IL 117155, ¶ 12 n.3 (noting courts may take judicial notice of documents
- 32 - from readily verifiable sources of indisputable accuracy). The majority contends there is no
authority that would have required defendant to call Schultz to testify in order to establish his claim
and suggests the State could have equally called Schultz to testify but chose not to. First, the
majority’s contention here misses the point. Defendant’s failure to call Schultz goes to defendant’s
failure to carry his burden at the evidentiary hearing and demonstrates a significant distinction
from King. Second, the majority’s suggestion the State could have called Schultz to testify
incorrectly implies a burden shift to the State, when the entire evidentiary burden at the hearing
remained with defendant. Additionally, the majority’s suggestion would have placed the State’s
attorney in a potentially difficult ethical quandary with regard to Schultz’s duty to defendant as a
former client. See, e.g., Ill. R. Prof’l Conduct (2010) R. 1.9(c)(1), (2) (eff. Jan. 1, 2010).
¶ 106 Defendant’s failure to present Schultz’s testimony at the evidentiary hearing also
makes the trial court’s reliance on King more specious. As the majority notes when reciting the
facts from King, and the trial court noted similarly, trial counsel for the defendant in King testified
at the evidentiary hearing. The appellate court was able to conclude counsel had provided no
explanation for failing to call the alleged alibi witness because counsel had testified at the
evidentiary hearing. From there, the appellate court was unable to conceive of any sound trial
strategy justifying counsel’s failure to call the alleged alibi witness. Because counsel did not testify
at defendant’s hearing and I can conceive of sound strategic reasons for counsel failing to call
defendant’s sister as an alibi witness, I find King distinguishable.
¶ 107 The trial court, for its part, did elaborate further by citing pretrial statements made
by defendant that he had disagreed with Schultz’s “[trial] strategy” and the fact the court-appointed
investigator had not been utilized prior to trial. However, the transcripts from the referenced
pretrial hearing do not show a correlation between defendant’s disagreements regarding strategy
- 33 - with Schultz and any of his alleged alibi witnesses. During the hearing, the following exchange
occurred:
“THE DEFENDANT: I mean, I don’t—I’m really not ready to go.
THE COURT: Why not?
THE DEFENDANT: Because we—I mean, I just don’t agree with Mr.
Schultz’s strategy.
THE COURT: Well, that’s something you need to work out between
yourselves between now and Monday, because otherwise, we’re going to trial.
Evidently they went down and talked to—
THE DEFENDANT: Yeah, I understand. We talked about that.
THE COURT: *** And basically, my understanding is—and I don’t mean
to put words in Mr. Schultz’s mouth—but basically, it’s not your benefit to bring
him up here.
Is that a fair statement, Mr. Schultz?
MR. SCHULTZ: Fair statement.
THE COURT: So it’s one of those situations where if you’ve got
witnesses… You control whether you testify or not at a trial.
THE DEFENDANT: Right.
THE COURT: Mr. Schultz controls the rest of the trial in terms of putting
on the witnesses, because basically, he is trying to defend you to the best of his
ability.
THE DEFENDANT: Understand.
- 34 - THE COURT: And you may not agree with necessarily all the strategy, but
you also need to understand that’s his job. You determine whether you’re going to
testify or not, and basically, you always have the right to question what he’s doing,
but the ultimate control of the trial is up to him okay?
THE DEFENDANT: So far, I mean, as far as—I mean, I understand that,
Your Honor, but what I’m trying to get at is that—I mean, for the whole time—the
whole time I’ve been real patient with him and we—as far as like—it was—You
ordered—it was an order put in for the—for the my discovery. I never received it.
I received it, but—”
The only witness issue discussed above involved the pronoun “him,” referring to a male witness.
Defendant did not disagree, nor did he correct the gendered reference. Defendant’s petition does
not allege any male alibi witnesses. Defendant then transitioned into complaints about his right to
physical custody of discovery materials before turning his frustration to Schultz’s use of the
investigator:
“THE DEFENDANT: But at the same time, who has [the investigator]
spoke to? He hasn’t spoke to nobody on the case.
MR. SCHULTZ: I haven’t had him sent out. There isn’t anybody I need to
have—
THE DEFENDANT: See? That’s—That’s—
THE COURT: [Defendant], just—I did the first trial.
- 35 - THE COURT: And basically, if these people come in and testify the same
way they did at the first trial against you, there is no reason to have an investigator,
because they are locked into—everybody’s locked into their stories.
THE DEFENDANT: Understand that.
THE COURT: If they come—if they come in and change their story about
what they testified to at the first trial, then basically, Mr. Schultz can stand up with
a copy of that testimony and impeach them. So it’s one of those situations where if
it’s all the same witnesses is and it’s all the same people—
THE DEFENDANT: I was—Not to cut you off. How it come about was
that I told him I had witnesses that—that two of the witnesses I spoke to, I mean
had got in contact with me had went to the grand jury, and they was willing to
come—They said—having somebody come talk with some information, so they—
they could pretty much say because they come into play as far as the other—the
federal inmates is trying to say that it’s—it’s one—they spoke to about the incident,
and these witnesses said that this never occurred.”
Here, defendant’s complaint regarding the investigator and purported witnesses did not involve
any of the alleged alibi witnesses in his petition. The witnesses at issue were rebuttal witnesses to
the State’s jailhouse informants. Yet, the trial court, at the evidentiary hearing, concluded the
exchanges above concerned defendant’s alibi witnesses. This is contradicted by the record the
court cited and read therefrom. The court went on to quote the special concurrence from
defendant’s direct appeal to emphasize the weakness of the State’s case and establish prejudice.
¶ 108 While the trial court made no findings directly pertaining to Margie Northern’s
testimony from the evidentiary hearing, she was, in the end, the only alibi witness defendant
- 36 - offered. In deference to trial counsel’s conduct at the time of trial, I would have found counsel’s
decision not to call her as a witness was reasonable for two reasons. First, our case law is rife with
examples of appellate courts noting trial counsel’s decision not to call alibi witnesses who also
happen to be relatives is reasonable trial strategy. See People v. Lacy, 407 Ill. App. 3d 442, 466
(2011) (finding trial counsel could have reasonably decided the jury would afford the defendant’s
aunt’s testimony “less weight”); People v. Barcik, 365 Ill. App. 3d 183, 192 (2006) (finding,
because the witness was the defendant’s fiancée, she “likely would not have been considered a
credible witness”); People v. Deloney, 341 Ill. App. 3d 621, 635 (2003) (finding “the alibi
witnesses were [the] defendant’s cousins and, as such, their credibility may have carried little
weight”); People v. Dean, 226 Ill. App. 3d 465, 468 (1992) (finding counsel’s decision not to call
three potential alibi witnesses who were relatives of a codefendant was trial strategy). Because
Northern, defendant’s sister, may have been biased, counsel could have been reasonably concerned
with her credibility.
¶ 109 Second, Northern’s testimony at the evidentiary hearing undermined her
plausibility as a potential alibi witness. She testified she never told trial counsel she had alibi
information. In fact, she testified she never told the police, or anybody, for that matter, she had
alibi information. Given her silence, one could reasonably infer she may not have cooperated with
the court-appointed investigator either.
¶ 110 The trial court’s decision failed to account for the strong presumption we should
afford counsel’s decisions whether to call or not call alleged witnesses as matters of trial strategy.
Instead, the court opted to fill in the vacuum of counsel not testifying by misreporting the pretrial
record and reinforcing the weakness of the State’s case at trial. However, the weakness of the
State’s case further supports counsel’s decision at the time. Despite meaningfully challenging the
- 37 - State’s utterly thin case at trial, counsel’s performance is now considered incompetent because he
failed to call defendant’s sister to testify as to his whereabouts despite her admission she had not
informed anyone, let alone trial counsel, about her alibi information. It is not the case here that
trial counsel offered no meaningful adversarial testing of the State’s evidence at trial. We must
remember “ineffective assistance of counsel refers to competent, not perfect, representation.”
People v. Easley, 192 Ill. 2d 307, 344 (2000).
¶ 111 The idiom “hindsight is 20/20” could not be more apt here. Our supreme court has
previously explained:
“Guiding our review of defendant’s claim is the principle that decisions
concerning whether to call certain witnesses on a defendant’s behalf are matters of
trial strategy, reserved to the discretion of trial counsel. [Citation.] Such decisions
enjoy a strong presumption that they reflect sound trial strategy, rather than
incompetence [citation], and are, therefore, generally immune from claims of
ineffective assistance of counsel. [Citation.] This is not the case, however, where
counsel’s strategy was so unsound that no meaningful adversarial testing was
conducted.” Enis, 194 Ill. 2d at 378.
Moreover, when determining whether trial counsel’s performance was objectively unreasonable,
it is “on a circumstance-specific basis, viewed not in hindsight, but from the time of counsel’s
conduct, and with great deference accorded counsel’s decisions on review.” People v. Fuller, 205
Ill. 2d 308, 330-31 (2002).
¶ 112 The trial court failed to consider trial counsel’s conduct at the time of defendant’s
trial; rather, the court concluded in hindsight more from counsel was required. This diverges from
what Strickland demands of our review:
- 38 - “Judicial scrutiny of counsel’s performance must be highly deferential. It is
all too tempting for a defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy for a court, examining
counsel’s defense after it has proved unsuccessful, to conclude that a particular act
or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effect of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time. Because of the
difficulties inherent in making the evaluation, a court must indulge a strong
presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance; that is, the defendant must overcome the presumption that,
under the circumstances, the challenged action ‘might be considered sound trial
strategy.’ ” Strickland, 466 U.S. at 689 (quoting Michel v. Louisiana, 350 U.S. 91,
101 (1955)).
¶ 113 Accordingly, I respectfully dissent from the majority’s decision to affirm the trial
court’s order granting defendant’s petition and would have reversed the court’s judgment on this
issue.
- 39 -
Related
Cite This Page — Counsel Stack
2025 IL App (4th) 231067-U, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-northern-illappct-2025.