People v. Simmons

2020 IL App (1st) 170650

Opinion

2020 IL App (1st) 170650

FIFTH DIVISION Opinion filed: July 10, 2020

No. 1-17-0650

______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 03 CR 27277 ) DONELL SIMMONS, ) Honorable ) Lawrence E. Flood, Defendant-Appellant. ) Judge, presiding.

PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion. Justices Rochford and Delort concurred in the judgment and opinion.

OPINION

¶1 The defendant, Donell Simmons, appeals from an order of the circuit court of Cook County,

granting the State’s motion to dismiss his postconviction petition pursuant to the Post-Conviction

Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) at the second stage of proceedings. On

appeal, the defendant argues that he made a substantial showing that he is actually innocent of the

crimes for which he was convicted, his trial counsel was ineffective for failing to investigate and No. 1-17-0650

present an eyewitness, and his appellate counsel was ineffective for failing to argue that the circuit

court erred in denying his motion to suppress. For the following reasons, we reverse and remand

for a third-stage evidentiary hearing on the defendant’s claim that his trial counsel was ineffective

for failing to investigate and present an eyewitness.

¶2 The defendant was charged, along with codefendants Labar “Bro-Man” Spann, Martise

“Shorty” Nunnery, and Marcus “Black” Ware (also known as John Coleman) with, inter alia,

multiple counts of first degree murder and aggravated battery with a firearm. The charges against

the defendant stemmed from the June 4, 2003, shooting that resulted in the death of Randy “Kato”

Rangel Jr. and the injury of Harrison Hall. Following a severed bench trial on June 2, 2008, the

defendant was convicted of first degree murder and aggravated battery with a firearm and

sentenced to consecutive terms of 47 years’ imprisonment for the murder and 6 years’

imprisonment for the aggravated battery.

¶3 The following facts relevant to the disposition of this appeal were derived from the record.

¶4 Prior to his trial, the defendant filed a motion to quash his arrest and suppress evidence,

alleging that police did not have probable cause to arrest him without a warrant. At the hearing,

the defendant presented the testimony of Detective Keith Allen. According to Detective Allen, on

November 22, 2003, he went to 4223 West Wilcox Street with 10 members of a gang tactical team.

The officers went to the building because they had an investigative alert stating that the defendant

was suspected of killing Rangel. Detective Allen was positioned at the rear entrance to the

building, and after other officers entered, they opened the rear door for him. Inside, he saw the

defendant in handcuffs. Detective Allen acknowledged that he did not have a search or arrest

warrant for the defendant.

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¶5 The State presented Sergeant Charles Daly, who testified that, at the time, he was a

detective assigned to investigate the June 4, 2003, shooting. As part of his investigation, Sergeant

Daly learned that an individual named “Rio” wore a body wire to record conversations with

Nunnery. Sergeant Daly stated that Rio was “fighting a federal drug case and decided to cooperate

with investigative officers from organized crime.” Sergeant Daly reviewed a transcript of the

recorded conversation between Rio and Nunnery, testifying that the two largely used slang terms

and expressions. According to Sergeant Daly, he subsequently spoke to Rio, who told him that it

was his belief that the conversation referred to Nunnery’s involvement in Rangel’s shooting. Rio

also told him that he believed that Nunnery was telling him that “Squeaky” shot Rangel and that

“Bro-Man” was also involved.

¶6 On November 13, 2003, Sergeant Daly met with Spann following his arrest on unrelated

charges. According to Sergeant Daly, Spann told him the following: he was with the defendant

and Nunnery on the day of the shooting; Nunnery received a phone call and they drove to

Sacramento Boulevard and Roosevelt Road, where Nunnery handed the defendant a .45-caliber

handgun; the defendant exited the vehicle, and shortly thereafter, he heard gunshots and left the

area; he subsequently spoke with the defendant, who told him that he killed Rangel. Spann also

told Sergeant Daly that Squeaky was the defendant’s nickname.

¶7 Nunnery was arrested the following day and provided a videotaped statement. Sergeant

Daly testified that he viewed the recording and he described the contents to the court. Nunnery

stated that he received a phone call from Ware informing him that Rangel was at a barber shop

near the intersection of Sacramento Boulevard and Roosevelt Road. He drove to that location with

Spann and the defendant. He handed the defendant a handgun, who then exited the car and entered

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the barber shop. A short time later, he heard gunshots. He subsequently spoke with the defendant,

who told him that he shot and killed Rangel. The parties stipulated that Nunnery initially denied

any involvement in the shooting.

¶8 Ware, who goes by the nickname “Black,” was arrested on November 14, 2003, and gave

a videotaped statement. Sergeant Daly testified as to the contents of that statement. Ware stated

that Nunnery asked him to call if he saw Rangel at the barber shop on Sacramento Boulevard and

Roosevelt Road. He believed that Nunnery intended to rob Rangel and that he would be paid $1500

for making the phone call. On June 4, 2003, he saw Rangel at the barber shop and called Nunnery.

Subsequently, he learned from Nunnery that “they” had successfully killed Rangel.

¶9 Sergeant Daly also obtained information from Darren McCline, who was arrested and made

a statement to Detective Patrick O’Donovan and an assistant state’s attorney (ASA), which was

reduced to writing on November 19, 2003. According to McCline’s statement, the defendant told

him that he had shot and killed Rangel and that he was enticed to do so by Nunnery and Spann.

¶ 10 Defense counsel argued that the State did not establish that it had probable cause to arrest

the defendant because Rio’s recorded conversation with Nunnery did not explicitly reference either

a shooting or Rangel and the information linking the defendant to the shooting was unreliable as

it all came from individuals who were under arrest. The circuit court denied the defendant’s

motion, finding “that there was more than sufficient, almost overwhelming probable cause as to

each defendant *** to make their arrest and any evidence derived there from should not be

suppressed.”

¶ 11 At the defendant’s severed bench trial, Hall testified that, on June 4, 2003, he was in a

trailer on the corner of Sacramento Boulevard and Roosevelt Road where he worked as a barber.

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He was cutting Rangel’s hair when a man, whom he identified in court as the defendant, entered

the trailer and fired several shots at Rangel. Hall was standing about two feet away from the

defendant when he opened fire and could see his face under bright florescent lights. Hall ran past

the defendant, exiting the trailer. He went to the hospital where he learned that he was shot in the

foot.

¶ 12 Hall acknowledged that he initially told the police that he did not get a good look at the

shooter’s face. He testified that he lied about seeing the shooter because he did not want to be

involved in the situation. On November 22, 2003, he was asked to view a lineup at the police

station. After viewing the lineup, he identified the defendant as the shooter. On cross-examination,

Hall testified that the police told him prior to viewing the lineup that the shooter might be in the

lineup. Defense counsel then asked Hall if, when he was viewing the lineup, he “expected that

maybe somebody in there was the person who shot in the trailer at you?” He responded, “Right.”

¶ 13 Lavelle Green testified that, on the day in question, he was 15 years old and he and his

friend, Maurice Williams, were sitting outside the barber shop trailer waiting to get a haircut when

a man went into the trailer. He heard gunshots and ran. Green testified at trial that he could not

identify the individual he saw enter the trailer that day. He acknowledged that, on November 22,

2003, he viewed a lineup and identified the defendant as the man he saw enter the trailer that day.

He stated that he identified the defendant after the police told him to “pick the person who looked

like [the shooter].” The State impeached Green with a written statement that he provided to the

police. He acknowledged that he signed the statement, but he stated that he could not remember

the particulars of the statement. He stated that he signed the statement so “they could let [him] go.”

In the written statement, Green identified the defendant as the shooter.

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¶ 14 The parties also stipulated that, if called to testify, Chicago police sergeant Jose Lopez

would state under oath that he was present when Green identified the defendant as the individual

who shot Rangel.

¶ 15 Ware testified that his given name is John Coleman and that “Ware” is his “alias for the

police.” He acknowledged that he has prior convictions for unlawful use of a weapon, obstruction

of justice, and traffic offenses. He testified that he was a named codefendant in this case and,

pursuant to an agreement with the State, pled guilty to conspiracy to commit first degree murder

in exchange for an agreed sentence of 12 years and the truth of his testimony at trial. He explained

that, pursuant to the agreement, he must testify truthfully or else be charged with first degree

murder and perjury. He stated that, as of the date of the trial, he was housed in the witness

protection quarters of the county jail.

¶ 16 Ware testified that, in April 2003, Nunnery called and asked if he could call him if he saw

Rangel. He believed that the plan was to kidnap Rangel, a high-ranking member of the Latin Kings,

whom he had known for several years. Later in that month, he drove with Nunnery and the

defendant looking for Rangel, but they were unsuccessful. A few days later, Nunnery told him that

the plan was to kill, not kidnap, Rangel and that there was a “ransom” of $190,000 and 15

kilograms of cocaine. Nunnery offered to pay him $2000 in exchange for providing Rangel’s

location. On June 4, 2003, he called Nunnery and told him that Rangel was in Hall’s barber shop

on Sacramento Boulevard and Roosevelt Road. After the call, he waited in Douglas Park across

the street from the trailer. Shortly thereafter, he heard gunshots coming from the trailer and could

see people running out of the trailer, including the defendant. He saw the defendant run down

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Sacramento Boulevard towards Roosevelt Road and then into an alley. Ware did not see anything

in the defendant’s hand.

¶ 17 On cross-examination, Ware testified that he gave a videotaped statement to the police after

his arrest on November 14, 2003. He acknowledged that, in the statement, he said he did not know

Nunnery intended to kill Rangel. He also acknowledged that his testimony included several details

he did not provide to the police, such as looking for Rangel with Nunnery and the defendant, that

Nunnery was going to receive $190,000 and 15 kilograms of cocaine for the murder, that he was

at Douglas Park when Rangel was shot, and that he saw the defendant exit the trailer. Instead, he

told the police and the ASA that he was a few blocks away when he heard the gunshots and that it

was a few days later that he found out that “Squeaky” shot Rangel. He acknowledged that he did

not provide these details until after he entered plea negotiations and the plea deal was finalized.

On redirect-examination, Ware stated that he did not tell the police and ASA “everything” at the

time of his arrest because he did not want to “involve” himself in the case.

¶ 18 Chicago police detective O’Donovan testified that he interviewed the defendant on

November 22, 2003, following his arrest. He advised the defendant of his Miranda warnings and

the defendant agreed to speak with him. During the course of the interview, the defendant admitted

that he was the shooter and detailed how Nunnery and Spann approached him and promised him

money to shoot Rangel. Detective O’Donovan testified that the defendant provided him with the

following version of events. On the date of the shooting, Spann and Nunnery picked him up and

told him that they knew Rangel’s location. They drove by a carwash and observed Rangel’s truck

there. They stopped one block west of Sacramento Boulevard, and Spann handed him a firearm.

The defendant walked into a trailer that was operating as a barber shop, saw Rangel in the barber’s

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chair, and fired at him before fleeing. The defendant told Detective O’Donovan that the motive for

killing Rangel was retribution for stealing a significant quantity of drugs.

¶ 19 ASA Andreana Turano testified that, in the early morning hours of November 22, 2003,

she spoke with the defendant in an interview room. After advising him of his Miranda warnings

(see Miranda v. Arizona, 384 U.S. 436 (1966)), he agreed to have a conversation. He indicated

that he had been treated fine and did not have any complaints. He agreed to make a handwritten

statement, which was published at trial. According to the defendant’s handwritten statement, he

goes by the nickname “Squeaky.” In May 2003, Spann, whom he knew as “Bro-Man,” approached

him about shooting someone and introduced him to Nunnery. He learned that the target was Rangel

and that Spann would pay him $30,000 for killing him. At some point, he rode in a car with Ware,

whom he knew as “Black,” Spann, and another person he did not know, when Spann got a phone

call from Nunnery. They drove to a location where Spann pointed out that the man shaking hands

with Nunnery was Rangel, the intended target. On June 4, 2003, he got into a van with Spann and

Nunnery and drove to a trailer that operated as barber shop. They parked about one block away,

where Spann gave him a firearm. He exited the car, entered the trailer, and shot Rangel as he was

getting his haircut. He then ran back to the van and gave the gun to Spann. The defendant stated

that he was enticed into the shooting by Nunnery and Spann but was never paid the money he was

promised.

¶ 20 The court found the defendant guilty of first degree murder. In announcing its verdict, the

court stated that it believed Ware’s testimony and that the defendant’s confession was “convincing

and compelling” and that his insistence that he was enticed by Nunnery and Spann “have a definite

ring of truth going to the reliability and trustworthiness of [his] confession.”

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¶ 21 The court denied the defendant’s motion for a new trial, stating that “I believe that the

evidence in this case was overwhelming, not at all close and that any possible error in this bench

trial would be harmless beyond a reasonable doubt ***.” 1 Following a sentencing hearing, the

court sentenced the defendant to consecutive terms of 47 years’ imprisonment for first degree

murder and 6 years’ imprisonment for aggravated battery with a firearm.

¶ 22 On direct appeal, we affirmed the defendant’s convictions and sentences over his

contention that his jury waiver was invalid. People v. Simmons, No. 1-08-2532 (2010)

(unpublished summary order under Illinois Supreme Court Rule 23(c)).

¶ 23 On December 1, 2008, the defendant filed a petition for relief from judgment pursuant to

section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)), arguing

that the prosecution fabricated the indictment and that the homicide statute violated both the

ex post facto doctrine and the single subject rule. On February 18, 2009, the circuit court dismissed

the defendant’s section 2-1401 petition, and the defendant filed an appeal (No. 1-09-0742). The

defendant filed a motion to reconsider the circuit court’s denial of his section 2-1401 petition,

which the court denied, and the defendant appealed (No. 1-09-1652). We granted the defendant’s

motions to dismiss both appeals on December 14, 2009, and January 27, 2010, respectively.

¶ 24 On September 20, 2011, the defendant filed a combined pro se postconviction petition for

relief under the Act and under section 2-1401 of the Code. In his petition, the defendant argued,

inter alia, that his trial counsel was ineffective for failing to investigate and call Green’s brother,

Shardell Green, as a witness. According to the defendant, Shardell was a witness to the shooting,

1 We could not find a copy of the defendant’s motion for a new trial in the record nor did the parties cite to a copy in their briefs on appeal.

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gave a statement to the police, and was willing to testify that someone other than the defendant

committed the offense.

¶ 25 In support of his claim, the defendant attached two affidavits from Shardell to his

postconviction petition. In the first affidavit, which was signed by Shardell and notarized on July

30, 2009, he averred that, in September 2007, a lawyer he identified as “Mr. Fulton” came to visit

him in jail and asked if he witnessed the June 4, 2003, shooting. Shardell told him that, after hearing

gunshots coming from inside the barber shop, he saw “a skinny medium complexion man about

[5’9”] run out of the barber shop.” Shardell stated that the man “was still shooting” when he exited

the shop and then “ran toward Whipple.” Shardell also stated that the picture Fulton showed him

did not depict the shooter he saw running out of the barber shop. Shardell told Fulton he would be

willing to testify, but Fulton did not contact him again. In the second affidavit, which is notarized

but undated, Shardell averred that he witnessed the June 4, 2003, shooting and spoke with the

police. He stated that he told the police the same thing that he told a lawyer named “Mike Fulton,”

which was that he saw a “skinny light-skinned man run out the [sic] barber shop shooting.” The

man he saw then “ran west down Roosevelt Rd.” Shardell also averred that Fulton showed him

photographs of the defendant and Nunnery and he told Fulton that neither of them were the shooter.

He told Fulton that he was “willing to come to court” but was never contacted.

¶ 26 On December 23, 2011, the circuit court appointed postconviction counsel to represent the

defendant. On August 16, 2015, appointed counsel filed a supplemental petition that included the

above mentioned claims from the defendant’s pro se petition and added two claims: that the

defendant’s appellate counsel was ineffective for failing to challenge the trial court’s ruling on his

motion to quash arrest and suppress evidence where the State failed to establish probable cause

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because the officer who issued the investigative alert did not testify and that the defendant was

actually innocent of the crimes for which he was convicted based on Shardell’s affidavit.

Regarding Shardell, the supplemental petition argued that he should have been known to trial

counsel because his name is listed in police reports as a “potential eyewitness” to the shooting and

he was interviewed by Nunnery’s counsel.

¶ 27 Attached to the supplemental petition was a third affidavit from Shardell and a copy of the

investigative alert. In Shardell’s affidavit, which was signed and notarized on March 20, 2015, he

stated that, on June 4, 2003, he was sitting on the steps of the barber shop with his brother Lavelle

and Williams when a man ran past them into the barber shop. Shardell’s description of the shooter

and the ensuing events was the same as the previous two affidavits. He also averred that he saw a

picture of the defendant and he was not the person he saw that day. Shardell also described meeting

with Fulton “some time” before he pled guilty in a separate case in September 2007. Shardell

stated that “[a]ny picture that Mr. Fulton showed me was not of the person I saw at the trailer that

day.” Shardell averred that no other lawyer or investigator ever interviewed him about the

shooting.

¶ 28 The attached copy of the investigative alert stated that “[t]he above subject was identified

as the person who shot the victim with a handgun thereby causing his death” and lists Detective

William Ruck as the contact person.

¶ 29 On April 26, 2016, the State filed a motion to dismiss both the combined pro se

postconviction petition and the supplemental petition, arguing that the defendant’s section 2-1401

petition was untimely and that the defendant’s appellate counsel was not ineffective because the

evidence at the suppression hearing established that the officers had probable cause to arrest. The

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State also argued that the defendant’s actual innocence claim should be dismissed because

Shardell’s testimony was not of such a conclusive nature that it would probably change the result

on retrial in light of the defendant’s confession and Hall’s eyewitness testimony. The State’s

motion does not appear to make any argument as to the defendant’s claim that his trial counsel

was ineffective for failing to investigate or present Shardell.

¶ 30 On July 21, 2016, the defendant filed a response to the State’s motion to dismiss and a

motion for leave to file a supplemental affidavit from Irineo Barbosa in support of his claim of

actual innocence. In an attached affidavit, Barbosa averred that he was Spann’s cellmate in

December 2003. He stated that Spann told him, while “bragging” about past crimes, that someone

named “the Post-man” shot Rangel and that Spann, the Post-man, and Spann’s “girl’s little

brother” were the ones involved. According to Barbosa, Spann told Ware to say that Nunnery “set

the whole thing up” and threatened Ware’s mother. Barbosa subsequently met Nunnery and told

him that he would be willing to sign an affidavit relating what Spann told him.

¶ 31 On February 21, 2017, the circuit court granted the State’s motion to dismiss the

defendant’s combined pro se petition and supplemental petition. Regarding the defendant’s section

2-1401 claims, the court found that the claims were untimely filed. As to the defendant’s claim of

actual innocence, the court found that Shardell’s affidavit did not contain newly discovered

evidence because he was listed on police reports as a potential eyewitness and, therefore, could

have been discovered sooner with due diligence. Regarding Barbosa’s affidavit, the court found

that it was not of such a conclusive character that it would have changed the result because it

consisted of inadmissible hearsay and did not identify the actual shooter or provide the defendant

with an alibi. As to the defendant’s claim of ineffective assistance of trial counsel for failing to

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investigate and call Shardell, the court concluded that the defendant could not establish prejudice

because Shardell “did not observe the shooting and therefore cannot exonerate [the defendant]”

and his testimony was “vastly outweighed by the multiple occurrence witnesses at the scene and

[the defendant’s] own inculpatory statements.” Lastly, the court found that the defendant’s claim

of ineffective appellate counsel was “meritless.” This appeal followed.

¶ 32 On appeal, the defendant argues that the circuit court erred in granting the State’s motion

to dismiss his postconviction petition at the second stage of proceedings because his petition made

a substantial showing that (1) he is actually innocent of the crimes for which he was convicted

based on Barbosa’s affidavit; (2) his trial counsel was ineffective for failing to investigate and

present Shardell, an eyewitness to the shooting; and (3) his appellate counsel was ineffective for

failing to argue that the State failed to establish that his arrest was supported by probable cause.

¶ 33 The Act provides a procedural mechanism through which a petitioner may assert a

substantial denial of his constitutional rights in the proceedings that resulted in his conviction. 725

ILCS 5/122-1 et seq. (West 2012). At the first stage of a postconviction proceeding, the circuit

court independently reviews the defendant’s petition, taking the allegations as true, and determines

if it is frivolous or patently without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). If the

postconviction petition is not summarily dismissed, as here, it advances to the second stage, where

the State may file a motion to dismiss the petition and the postconviction court must determine

whether the petition and any accompanying documents make a substantial showing of a

constitutional violation. Id. at 10-11, 11 n.3. At the second stage of proceedings, the postconviction

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

People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If the petition fails to make a substantial showing

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of a constitutional violation, it is dismissed; if such a showing is made, the postconviction petition

advances to the third stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-2.1,

122-6 (West 2012). We review a dismissal of a petition at the second stage de novo. People v.

Whitfield, 217 Ill. 2d 177, 182 (2005).

¶ 34 The defendant first contends that he made a substantial showing that he is actually innocent

of the crimes for which he was convicted. The defendant’s argument on appeal is based only on

the evidence contained in Barbosa’s affidavit and does not include any argument regarding

Shardell’s affidavit.

¶ 35 In order to succeed on a postconviction claim of actual innocence, the defendant must

present new, material, noncumulative evidence that is so conclusive it would probably change the

result on retrial. People v. Washington, 171 Ill. 2d 475, 489 (1996). New evidence means it was

discovered after trial and could not have been discovered earlier through the exercise of due

diligence. People v. Burrows, 172 Ill. 2d 169, 180 (1996). Material means the evidence is relevant

and probative of the defendant’s innocence. See People v. Smith, 177 Ill. 2d 53, 82-83 (1997)

(plurality opinion). Noncumulative means the evidence adds to what the jury heard. People v.

Molstad, 101 Ill. 2d 128, 135 (1984). And conclusive means the evidence, when considered along

with the trial evidence, would probably lead to a different result. See People v. Ortiz, 235 Ill. 2d

319, 336-37 (2009). This standard “is extraordinarily difficult to meet.” People v. Coleman, 2013

IL 113307, ¶ 94. The conclusiveness of the new evidence is the most important element. People

v. Sanders, 2016 IL 118123, ¶ 47.

¶ 36 The defendant contends that the evidence contained in Barbosa’s affidavit is newly

discovered, noncumulative, material, and of such a conclusive character that it would probably

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change the outcome at retrial. He also argues that the circuit court erred in finding that the affidavit

contained inadmissible hearsay because hearsay is admissible at collateral proceedings, citing to

People v. Sanchez, 115 Ill. 2d 238, 284-85 (1986), and People v. Warren, 2016 IL App (1st)

090884-C, ¶¶ 89-90. The State responds that Barbosa’s affidavit would not change the outcome of

a retrial because of the overwhelming evidence of the defendant’s guilt, such as his written

confession, Ware’s testimony detailing the defendant’s involvement, and Hall’s eyewitness

identification. We agree with the State.

¶ 37 We first address the State’s contention that Barbosa’s affidavit fails because it contains

inadmissible hearsay. The supreme court recently adopted and amended Illinois Rule of Evidence

1101, which added “postconviction hearings” to a list of proceedings to which the rules of

evidence—including the rules against hearsay—“do not apply.” Ill. R. Evid. 1101(b)(3) (eff. Apr.

8, 2013). Because the rules of evidence do not apply to postconviction proceedings, we will

consider the contents of Barbosa’s affidavit even though it contains hearsay. See People v. Velasco,

2018 IL App (1st) 161683, ¶ 119 (finding that the hearsay affidavits at issue in that case, indicating

that a gang member had bragged to one of the affiants about shooting the victim, were admissible

under Rule 1101(b)(3) and must be taken as true, at the second stage of postconviction

proceedings).

¶ 38 Here, Barbosa’s affidavit states that Spann told him, while “bragging” about his past

crimes, that someone named “Post-Man” shot and killed Rangel. However, Barbosa’s affidavit

does not indicate that Spann’s reference to Post-Man is a reference to someone other than the

defendant. The defendant argues that the record indicates his nickname was Squeaky, not Post-

Man. However, this argument supposes that an individual can have one, and only one, nickname.

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“Evidence of actual innocence must support total vindication or exoneration, not merely present a

reasonable doubt.” People v. Adams, 2013 IL App (1st) 111081, ¶ 36. Simply put, this evidence

does rise to that level.

¶ 39 Moreover, Barbosa’s affidavit must be viewed in light of the overwhelming evidence of

the defendant’s guilt presented at trial. Most significantly, the State presented the defendant’s

signed statement in which he confessed to shooting Rangel at the behest of Nunnery and Spann.

“ ‘A confession is the most powerful piece of evidence the State can offer, and its effect *** is

incalculable.’ ” People v. Miller, 2013 IL App (1st) 110879, ¶ 82 (quoting People v. Fillyaw, 409

Ill. App. 3d 302, 316 (2011)). Furthermore, an eyewitness and a codefendant both implicated the

defendant as the shooter. Hall, who testified that the perpetrator stood two feet away from him and

was illuminated by bright florescent lights, identified the defendant. Similarly, Ware testified that

he once drove with the defendant and Nunnery looking for Rangel. He also testified that, after

informing Nunnery of Rangel’s location, he stood in Douglas Park and watched the defendant flee

from the trailer after hearing gunshots. Lastly, he testified that he subsequently spoke with the

defendant, who admitted to him that he shot and killed Rangel. Given this evidence, we conclude

that Barbosa’s affidavit was not conclusive enough that it would probably lead to a different result.

Accordingly, we find that the defendant failed to make a substantial showing of actual innocence.

¶ 40 The defendant next argues that he made a substantial showing that his trial counsel was

ineffective for failing to investigate or present Shardell, an eyewitness to the shooting, who would

testify that the man he saw shooting into the barber shop was not the defendant.

¶ 41 Ineffective assistance of counsel claims are considered under the two-pronged test set forth

in Strickland v. Washington, 466 U.S. 668 (1984). “To prevail on a claim of ineffective assistance

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[of counsel] under Strickland, a defendant must show both that counsel’s performance ‘fell below

an objective standard of reasonableness’ and that the deficient performance prejudiced the

defense.” Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S. at 687-88). “If an ineffectiveness

claim can be disposed of on the ground of insufficient prejudice, then that course should be taken,

and the court does not need to consider the quality of the attorney’s performance.” People v.

Williams, 2017 IL App (1st) 152021, ¶ 36.

¶ 42 It is well-established that the choice on what witnesses to call “is a matter of trial strategy,

left to the discretion of counsel after consultation with the defendant.” People v. Peterson, 2017

IL 120331, ¶ 80. However, trial counsel has a duty to conduct reasonable investigations into

possible defenses. People v. Domagala, 2013 IL 113688, ¶ 38. The failure to interview known

witnesses can indicate incompetence when their testimony could be exonerating. People v. Steidl,

177 Ill. 2d 239, 256 (1997). “ ‘[A] particular decision not to investigate must be directly assessed

for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s

judgments.’ ” People v. Guest, 166 Ill. 2d 381, 400 (1995) (quoting Strickland, 466 U.S. at 691);

accord People v. Pecoraro, 175 Ill. 2d 294, 324 (1997).

¶ 43 We conclude that the defendant has made a substantial showing that his trial counsel was

deficient for failing to contact Shardell as a potential exculpatory witness, meeting the first prong

of the Strickland test. Shardell stated in his affidavit that he was present outside the barber shop

on June 4, 2003, and that the person he saw fleeing the barber shop while shooting was not the

defendant. He averred that he told this information to the police and to Mr. Fulton, who the

defendant alleges was Nunnery’s counsel. Shardell also stated that he would have testified at the

defendant’s trial but was never contacted by counsel. According to the record, police reports listed

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Shardell as a potential eyewitness. We can find no strategic reason to explain why counsel may

have decided not to interview Shardell. Taking the facts presented in the affidavits as true, as we

must at this stage (Pendleton, 223 Ill. 2d at 473), the defendant met his burden of making a

substantial showing that his trial counsel was deficient.

¶ 44 To determine, under the second prong of the Strickland test, whether trial counsel’s failure

to investigate prejudiced the defendant, we must look at the evidence presented at his trial.

“Prejudice is demonstrated if there is a reasonable probability that, but for counsel’s deficient

performance, the result of the proceeding would have been different.” People v. Makiel, 358 Ill.

App. 3d 102, 105-06 (2005). “Whether the failure to investigate constitutes ineffective assistance

of counsel is determined by the value of the evidence not presented at trial and the closeness of the

evidence that was presented at trial.” People v. Harmon, 2013 IL App (2d) 120439, ¶ 26.

¶ 45 Here, the State presented the following evidence of the defendant’s guilt at trial: the

defendant’s handwritten confession, Hall’s identification of the defendant as the man who shot

him and Rangel, and Ware’s testimony regarding the defendant’s involvement in the plot to kill

Rangel. The defendant contends that, given the weaknesses in the State’s evidence, Shardell’s

testimony would have increased his chances of acquittal. Specifically, the defendant argues that

his confession occurred after 10 hours in custody and multiple interrogations, Hall’s identification

is not credible given that he initially told police that he did not see the shooter’s face, and Ware’s

testimony “was doubtful considering his status as a co-defendant testifying under a plea

agreement.” The State responds that the defendant failed to make a substantial showing of

prejudice because the evidence of his guilt was overwhelming. We agree with the defendant.

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¶ 46 Shardell’s testimony that he was present at the barber shop and saw someone other than

the defendant firing a weapon would have significantly bolstered defense counsel’s argument that

the State could not prove the defendant guilty beyond a reasonable doubt. Moreover, Shardell’s

testimony regarding the direction the shooter fled after the shooting would have contradicted

Ware’s testimony, possibly giving the trier of fact another reason to question his credibility. See

People v. Rodriguez, 227 Ill. App. 3d 397, 405 (1991) (“[T]he testimony of an accomplice is to be

viewed with suspicion.”). In reaching this decision, we acknowledge that the State did present

considerable evidence indicating the defendant’s guilt. However, prejudice “may be found even

when the chance that minimally competent counsel would have won an acquittal is ‘significantly

less than 50 percent,’ as long as a verdict of not guilty would be reasonable.” People v. McCarter,

385 Ill. App. 3d 919, 935 (2008) (quoting Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001)).

Here, we conclude that, if Shardell had testified in a manner consistent with his affidavit, a verdict

of not guilty would at least be reasonable. As such, we conclude that the defendant made a

substantial showing that his trial counsel was ineffective for failing to investigate or present

Shardell, and the circuit court should proceed to a third-stage evidentiary hearing on that claim.

¶ 47 The defendant’s next contention on appeal is that he made a substantial showing that his

appellate counsel was ineffective for failing to challenge the circuit court’s ruling on his motion to

quash arrest and suppress evidence where the probable cause to arrest was based on an

investigative alert and the officer who issued that alert did not testify at the hearing. He also argues,

in the alternative, that his appellate counsel was ineffective for failing to argue that his trial counsel

was ineffective for failing to preserve the issue for appeal.

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¶ 48 Claims of ineffective assistance of appellate counsel are judged against the same two-

pronged Strickland standard. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011) (citing People v.

Edwards, 195 Ill. 2d 142, 163 (2001)). “[A] defendant must show both that counsel’s performance

‘fell below an objective standard of reasonableness’ and that the deficient performance prejudiced

the defense.” Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S. at 687-88). “Appellate counsel

is not required to brief every conceivable issue on appeal, however, and it is not incompetence for

counsel to refrain from raising issues that counsel believes are without merit.” Edwards, 195 Ill.

2d at 163-64. Unless the underlying issue has merit, a defendant suffers no prejudice as the result

of appellate counsel’s failure to raise an issue on appeal. Lacy, 407 Ill. App. 3d at 457.

¶ 49 Here, the defendant argues that his appellate counsel was ineffective for failing to challenge

the trial court’s denial of his motion to quash arrest and suppress evidence. On a motion to quash

arrest and suppress evidence, the defendant generally bears the burden of proof. People v. Garcia,

2017 IL App (1st) 142141, ¶ 28. However, “[a]n arrest without probable cause or a warrant based

thereon violates” both the United States and Illinois constitutions. People v. Lee, 214 Ill. 2d 476,

484 (2005). Thus, “[o]nce the defendant submits evidence which shows that, at the time of the

arrest, he was doing nothing unusual (i.e., his conduct was not indicative of the commission of a

crime) and he was arrested without a warrant, the defendant has made a prima facie case that the

police lacked probable cause,” and the burden then shifts to the State to show that the warrantless

arrest was based on probable cause. People v. Drake, 288 Ill. App. 3d 963, 967 (1997). That said,

the ultimate burden of proof remains with the defendant. People v. Cregan, 2014 IL 113600, ¶ 23.

¶ 50 In the instant case, the parties do not dispute that the defendant was not arrested pursuant

to a warrant. Additionally, Detective Allen testified at the suppression hearing that the defendant

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was already in handcuffs when he entered the residence and he did not see the defendant doing

anything unusual or illegal at the time. Therefore, the State was required to demonstrate that the

arrest was based on probable cause and, therefore, legally justified.

¶ 51 The defendant contends that the State failed to satisfy this burden because Detective Allen

testified that he was arrested based solely on an investigative alert and the only other officer who

testified, Sergeant Daly, offered no evidence that he was “connected” with the investigative alert.

The defendant also notes that the investigative alert lists “Detective William Ruck” as the contact

person. As a result, the defendant contends that we should not “presume” that Sergeant Daly

“issued the directive to arrest.”

¶ 52 The State responds by raising three arguments. First, the State argues that the defendant

failed to preserve this claim for appellate review because it is “dissimilar” to the claim he raised

in his supplemental postconviction petition. Second, it argues that the defendant’s claim should be

dismissed because his current claim is “substantively dissimilar to the argument raised by trial

counsel at the pretrial hearing, which explains why the argument was not previously raised.” The

State goes on to contend that “[h]ad trial counsel specifically argued, for example, that the officer

who issued the investigative alert lacked probable cause to do so, both parties would have had an

opportunity to develop the record and the trial court would have had an opportunity to make a

ruling based on that issue.” Lastly, the State argues that it presented sufficient evidence to establish

that officers had probable cause to arrest the defendant and any claim to the contrary on appeal

would not have been meritorious.

¶ 53 To begin, we first address the State’s contention that the defendant’s argument on appeal

is dissimilar to the argument raised in his supplemental postconviction petition. We find no merit

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to the State’s contentions. In his supplemental petition, the defendant argued that his appellate

counsel was ineffective for failing to challenge the denial of his motion to quash arrest and suppress

evidence because “the State failed to meet its burden of demonstrating that the arresting officers

actually knew of sufficient facts or that the directive to arrest was actually made by an officer who

knew sufficient facts.” Noting that he was arrested pursuant to an investigative alert, the defendant

argued that the record was silent as to who issued the alert and, given that Detective Ruck is listed

as the contact person on the alert, “it should not be assumed” that it was Sergeant Daly, the officer

who testified at the hearing. This is precisely the argument the defendant now raises on appeal,

and we conclude, therefore, that he has not forfeited this argument.

¶ 54 We next address the State’s contention that the defendant’s claim of ineffective assistance

of appellate counsel fails because the claim is “substantively dissimilar to the argument raised by

trial counsel at the pretrial hearing, which explains why the argument was not previously raised.”

At the suppression hearing, the defendant’s only arguments were that Rio’s tape-recorded

conversations did not explicitly reference either a shooting or Rangel and that the information

implicating the defendant was unreliable because it came from individuals who were under arrest.

We agree with the State that the defendant’s argument at the suppression hearing was substantively

dissimilar to the claim he now faults his appellate counsel for failing to raise. However, the

defendant also argued in his supplemental postconviction petition that “[i]n the event this claim is

viewed as inadequately preserved for review, trial counsel’s ineffectiveness in failing to adequately

preserve it could have been raised on appeal.” Consequently, the State’s argument does not have

merit, and we must, therefore, determine whether a challenge to the trial court’s denial of the

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defendant’s motion to quash arrest and suppress evidence on the grounds that the State failed to

prove that the investigative alert was supported by probable cause would be meritorious.

¶ 55 An arrest secured without a warrant is valid only where it is supported by probable cause.

People v. Grant, 2013 IL 112734, ¶ 11. Police have probable cause to arrest an individual when

the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious

person to believe that the individual has committed a crime. Id. Whether probable cause exists

depends on the totality of the circumstances at the time of the arrest. Id. An officer’s factual

knowledge, based on his or her police experience, is relevant to determining probable cause. Id.

Whether probable cause exists is governed by commonsense considerations, and the calculation

concerns the probability of criminal activity rather than proof beyond a reasonable doubt. Id.

¶ 56 Although an arrest may be based on information of which the arresting officer does not

have personal knowledge, the State must show that the information the officer relied on was based

on facts sufficient to show probable cause to support an arrest. People v. Hyland, 2012 IL App

(1st) 110966 ¶ 22. An arresting officer may rely on information received in an official police

communication, provided that the officer who issued the communication had probable cause to

arrest. People v. Lawson, 298 Ill. App. 3d 997, 1001 (1998).

¶ 57 After reviewing the record, we conclude that the State presented sufficient evidence to

establish that the police had probable cause to arrest the defendant for the shooting death of Rangel.

At the hearing, Detective Allen testified that he arrested the defendant pursuant to an investigative

alert stating that the defendant was suspected of shooting Rangel. Sergeant Daly, a former

detective who was assigned to investigate the June 4, 2003, shooting, testified that his investigation

produced the following information: Rio, a confidential informant, told him that a recorded

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conversation with Nunnery indicated that the defendant shot and killed Rangel; Spann, who had

admitted to being involved in the shooting, told him that the defendant subsequently confessed to

him that he shot and killed Rangel; an individual named McCline provided a statement indicating

that the defendant told him that he had shot and killed Rangel and that he was enticed to do so by

Nunnery and Spann; and Nunnery recorded a confession implicating the defendant as the shooter.

We agree with the trial court that this evidence “was more than sufficient” to establish that police

had probable cause to arrest the defendant.

¶ 58 In urging reversal, the defendant relies primarily on Hyland, 2012 IL App (1st) 110966, to

support his argument that his appellate counsel should have challenged the court’s denial of his

motion to quash arrest and suppress evidence on appeal. In Hyland, a defendant was approached

by two officers based on an investigative alert stating that the defendant violated an order of

protection. Id. ¶ 6. The officers took the defendant into custody and performed a custodial search

that produced a weapon. Id. ¶ 3. He was arrested and charged with unlawful use of a weapon by a

felon and unlawful possession of a firearm by a street gang member. Id. At the defendant’s motion

to suppress, the State presented only the testimony of the arresting officers, who stated that they

approached the defendant based on the investigative alert but did not have personal knowledge of

the facts underlying the issuance of the investigative alert. Id. ¶¶ 5-6. We reversed the trial court’s

denial of the defendant’s motion to quash his arrest and suppress evidence, finding that the State

“presented no evidence that the underlying facts of the investigative alert established probable

cause to arrest defendant, either from the officer who issued the investigative alert or from the

individual who obtained the protective order that defendant allegedly violated.” Id. ¶ 25.

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¶ 59 In relying on Hyland, the defendant acknowledges that his direct appeal was resolved on

March 30, 2010, and that our opinion in Hyland case was issued on November 21, 2012, over two

years later. See People v. Simmons, No. 1-08-2532 (2010) (unpublished summary order under

Illinois Supreme Court Rule 23(c)). Appellate counsel’s assessment of the merits of an issue

depends on the state of the law at the time of the direct appeal. People v. English, 2013 IL 112890,

¶ 34 (citing People v. Weninger, 292 Ill. App. 3d 340, 345 (1997)). The defendant nevertheless

insists that, although Hyland was not decided at the time his case was on appeal, his direct appellate

counsel was “not required to be prescient in terms of knowing how [the appellate court] would

eventually rule in Hyland” because the cases that formed the basis for Hyland were available, such

as People v. Lawson, 298 Ill. App. 3d 997 (1998).

¶ 60 In Lawson, the circuit court granted a motion to quash arrest and suppress evidence filed

by a defendant who was charged with, inter alia, armed robbery. The State appealed, and we

affirmed, finding that the only witness for the State at the suppression hearing was the arresting

officer, who testified that he arrested the defendant solely because he matched the description of a

suspect in a radio bulletin. We stated that “when the State attempts to justify a warrantless arrest

on the basis of a radio bulletin it must establish that the officer who issued the bulletin had probable

cause to effect an arrest. (Emphasis in original.) Lawson, 298 Ill. App. 3d at 1001.

¶ 61 We find that the instant case is meaningfully distinguishable from both Lawson and

Hyland. Here, unlike in Lawson and Hyland, the State presented Sergeant Daly, a former detective

who was assigned to investigate the June 4, 2003, shooting, and who testified to the considerable

information that his investigation into Rangel’s death produced implicating the defendant as the

shooter prior to his November 22, 2003, arrest. We acknowledge that Sergeant Daly did not

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directly testify as to whether he issued the investigative alert; however, his testimony regarding

what investigators knew prior to the issuance of the alert and the defendant’s subsequent arrest is

clearly an order of magnitude beyond what was presented to the court in Lawson and Hyland.

Moreover, given the sheer amount of information uncovered by Sergeant Daly as part of his

investigation, we believe that it was not unreasonable for the circuit court to infer that Sergeant

Daly was responsible for the investigative alert. Accordingly, we conclude that the circuit court

did not err when it denied the defendant’s motion to quash his arrest and suppress evidence, and

therefore, his appellate counsel was not ineffective for failing to challenge the ruling on appeal.

¶ 62 Lastly, we address the defendant’s citation to People v. Bass, 2019 IL App (1st) 160640,

appeal allowed, No. 125434 (Ill. Mar. 25, 2020). In Bass, a divided panel of this court concluded

that an arrest is unconstitutional when it is based solely on an investigative alert, even where the

investigative alert is supported by probable cause. Id. ¶ 43. In reaching that conclusion, the

majority found that the Illinois Constitution required a warrant, based on probable cause, to issue

before an arrest could be made and that an investigative alert, validating an arrest without the

issuance of a warrant, violated the Illinois Constitution. Id. ¶ 62. The majority based its decision

on the notion that the Chicago Police Department improperly utilized investigative alerts in an

effort to circumvent the process of obtaining a warrant and arrest individuals without establishing

probable cause to do so. Id.

¶ 63 The State argues that we should find that the defendant has forfeited any argument pursuant

to Bass because he failed to raise such an argument in his supplemental postconviction petition. It

also contends that, if we do address the issue, we should follow People v. Braswell, 2019 IL App

(1st) 172810, which disagreed with the majority’s decision in Bass. We agree with the State that

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the defendant failed to raise an argument similar to Bass in his postconviction petition, and he

cannot raise it for the first time on appeal. People v. Jones, 213 Ill. 2d 498, 505, (2004) (finding

that the courts have “generally held that a claim not raised in a petition cannot be argued for the

first time on appeal”).

¶ 64 Forfeiture aside, we agree with Braswell and decline to follow Bass. As the Braswell court

stated, the flaw in Bass’s reasoning is “that arrests must be based on probable cause, not warrants

as the majority in Bass suggests.” Braswell, 2019 IL App (1st) 172810, ¶ 39. This flawed reasoning

in Bass “creates the somewhat paradoxical situation where police may arrest an individual without

a warrant and without an investigative alert if they have probable cause to do so, but that same

arrest becomes unconstitutional if police issue an investigative alert based on the same facts that

gave rise to the probable cause.” Id. Accordingly, we conclude, as did Braswell, that “the

investigative alert must have a proper basis to show probable cause.” See id. And, as we have

already concluded, the State did present sufficient evidence in this case to establish that the police

had probable cause to arrest the defendant based on an investigative alert.

¶ 65 In sum, we find that the defendant made a substantial showing that his trial counsel was

constitutionally ineffective for failing to investigate and present Shardell as an exculpatory

witness, and we remand to the circuit court for a third-stage evidentiary hearing on that issue. We

affirm the circuit court in all other respects.

¶ 66 Affirmed in part, reversed in part, and remanded with directions.

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