2025 IL App (2d) 240427-U No. 2-24-0427 Order filed November 18, 2025
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Lake County. ) Plaintiff-Appellee, ) ) v. ) No. 16-CF-3361 ) KENNETH S. SEPLAK, ) Honorable ) George D. Strickland, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________
JUSTICE JORGENSEN delivered the judgment of the court. Presiding Justice Kennedy and Justice Mullen concurred in the judgment.
ORDER
¶1 Held: The trial court did not err in denying defendant’s postconviction petition after a third-stage evidentiary hearing. Affirmed.
¶2 Defendant, Kenneth S. Seplak, appeals from the third-stage denial of his postconviction
petition pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West
2022)), arguing that he made a substantial showing of ineffective assistance of counsel, where
counsel should have moved to suppress the seizure of his cellphone and presented defendant’s
testimony concerning its seizure. We affirm.
¶3 I. BACKGROUND 2025 IL App (2d) 240427-U
¶4 Defendant was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2016)) in
relation to the shooting of David Gorski, and he was sentenced to 78 years’ imprisonment, which
included a 25-year sentence enhancement based on a jury’s finding that he personally discharged
the firearm that caused Gorski’s death. The case arose after police officers found Gorski
unresponsive in the driver’s seat of his vehicle, which was parked in the middle of a street in
Libertyville around 11:25 p.m. on December 23, 2016. Police learned that, just before his death,
Gorski had been on a date with Sandy Moreno at the AMC movie theater at Hawthorn Mall in
Vernon Hills, about one-half mile south of where police found Gorski. Police spoke to Moreno
around 3:45 a.m. on December 24, 2016, and, when asked if there was anyone who may have
wanted to harm her or Gorski, she told them about defendant. A grand jury subsequently indicted
defendant on three counts of first degree murder.
¶5 A. Pre-trial Motions
¶6 Prior to trial, defendant filed motions to quash his arrest and suppress statements, arguing
that he was placed in custody when there was no probable cause to believe he had committed any
offense and that all subsequent evidence discovered was the product of his illegal arrest and should
be suppressed. His cellphone, he argued, was seized without his permission while he and the
police were at his home, and any information from his phone should be excluded from evidence.
¶7 1. Officer Adam Boyd
¶8 At the hearing on defendant’s motions, Adam Boyd, a police officer with the Village of
Vernon Hills and a member of the Lake County Major Crimes Task Force, testified that, on
December 23, 2016, he responded to the scene of Gorski’s shooting. Gorski’s family told police
that he had been dating Moreno, who informed police that an ex-boyfriend had sent an
inappropriate number of text messages and left a note on her car after stopping by unannounced.
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¶9 The following day, at 6:30 a.m., Boyd and three other detectives went to Round Lake Beach
to interview defendant. Kenneth Seplak, Sr. (Kenneth), defendant’s father, opened the door. The
officers explained in a conversational tone that they wanted to speak to defendant about a case
they were investigating. Kenneth let them in and guided them back toward defendant’s bedroom.
Laura Seplak, defendant’s mother, appeared, and the officers explained why they were there.
Defendant then appeared in the doorway of his bedroom, and the officers stated that they wanted
to speak to him about a case they were investigating and asked if he would come with them.
Defendant, who was in his pajamas, agreed and asked if he could get dressed. The officers
permitted defendant to get dressed.
¶ 10 According to Officer Boyd, none of the officers went into the bedroom with defendant.
Defendant got dressed, “and then he came back out, and I think he asked if he could grab his
cellphone and went back and got that, and then we left.” They walked to an unmarked squad car
and left. Defendant was not patted down before getting into the car, and, during the ride, defendant
was not restrained or told he could not do anything. Nor was he forbidden from using his
cellphone. Boyd’s tone of voice with defendant was conversational. Defendant agreed to
voluntarily go with police and never told them he did not want to go with them.
¶ 11 After they arrived at the police station, the officers directed defendant to an interview room.
Boyd spoke to other officers, retrieved consent forms, and then entered the interview room. Busch
and defendant were in the room. Boyd Mirandized defendant at 6:58 a.m. Defendant spoke to the
officers until about 8:17 a.m., when he asked for an attorney. The interview was videotaped.
¶ 12 According to Boyd, defendant initially stated that, on December 23, 2016, he was home all
day and never left. He also stated that he had his cellphone with him all day and that no one else
had his phone. Later in the interview, defendant stated that, at around 3 p.m., he went to get gas
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and did not go anywhere else. He mentioned that he had spoken to his friend, Keith Garcia, that
day about a snowmobile; defendant owed Garcia money for damage he caused to Garcia’s
snowmobile. Defendant also stated that he had messaged Moreno that day about helping her sell
her car. He stayed home that night.
¶ 13 Boyd asked defendant how he had met Moreno, and defendant explained that they met
when he delivered beer to the gas station where she worked. He also stated that he had loaned
Moreno a lot of money (specifically, about $13,000 for a divorce attorney, a traffic accident, and
her children), had a romantic interest in her, and that they had been on several dates. Defendant
stated that he texted her that day, specifically, about one time. Defendant also told Boyd that,
during the relationship, he had stopped by Moreno’s home or work unannounced and left a note
on her car. She responded by asking him not to stop by unannounced and not to send too many
text messages. Defendant stated that he stopped sending too many texts. Defendant believed that
Moreno would repay him the money when she received her tax refund.
¶ 14 Boyd asked defendant if he would allow him to examine his cellphone, and defendant
agreed and signed a consent form. During the interview, there was discussion about an attorney,
and Boyd stated that it was up to defendant if he wanted an attorney.
¶ 15 When asked if Laura, rather than defendant, retrieved defendant’s cellphone at the home,
Boyd testified, “I remember him getting it. I don’t recall.” While searching defendant’s phone at
the police station, Boyd discovered that defendant had sent Moreno a text message at 9:20 p.m. on
December 23. There was also a reminder on his phone to talk to Moreno at 8 a.m. Defendant had
called Garcia at 12:01 a.m. on December 24 and sent him a text message. Boyd also reviewed the
Google Maps application on the phone and learned that, just after 8 p.m., the phone was in Vernon
Hills at the AMC Hawthorn movie theater for about 20 minutes. Afterwards, the phone was in the
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area of defendant’s residence and then back to the movie theater over the next 50 minutes. There
was also a line leaving the theater, going northbound in Route 21, then making a U-turn southward
just north of the area where Gorski was shot and at the time he was shot. Between midnight and
1:14 a.m., the phone was in Antioch in the area of Garcia’s residence. When Boyd presented
defendant with the evidence from his phone, defendant asked for an attorney and the questioning
stopped.
¶ 16 2. Detective Michael Busch
¶ 17 Michael Busch, a detective with the Village of Mundelein police department and a member
of the Lake County Major Crimes Task Force, went with Officer Boyd to defendant’s home.
Defendant was cooperative. He got dressed and agreed to go with the officers to the police station.
No one touched defendant, and he was not handcuffed. Defendant had his cellphone and keys.
¶ 18 Busch further testified that, at some point, defendant got into the back of Busch’s unmarked
SUV with Boyd. He was not guided in. Before he entered the vehicle, the officers asked defendant
if they could keep his cellphone up front with them; he was not searched. Busch explained that
cellphones are easily manipulated, police do not know what people are doing, and, so, it is best to
keep it near the officers. In this case, the officers asked for the phone, and defendant “just gave it
to us.” He did not hesitate. During the drive, defendant never asked for the phone and never asked
to make a call. At the station, the phone was kept in the detectives’ office with defendant’s other
items that the officers collected once they arrived. Defendant did not ask for his phone.
¶ 19 On cross-examination, Busch testified that defendant’s phone was given to the officers
when they were in the vehicle. When asked if Laura actually retrieved the phone, Busch testified,
“I don’t know. I don’t recall that, no. It’s possible, but I don’t recall that.” Busch could not recall
if, before they left the house, Kenneth told defendant to call. Nor could he recall if, after Kenneth
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told defendant to call, Laura retrieved the phone and it was then taken by police. “I don’t recall if
she gave me the phone or if [defendant] gave me the phone, but my recollection is that [defendant]
gave me the phone.”
¶ 20 3. Detective Shaun Knight
¶ 21 Shaun Knight, a detective with the Village of Lake Zurich and an investigator with the
Lake County Major Crimes Task Force, testified that, at 11:30 p.m. on December 23, 2016, he
responded to Milwaukee Avenue in Libertyville, where he observed a vehicle in the middle of the
road on a divided highway. The front passenger side window was broken. He and other officers
searched the area, looking for bullet casings and other evidence. Next, Knight went to Gorski’s
residence, but could not get inside the apartment or speak to anyone residing in the apartment.
Knight then went to Gorski’s parents’ house. He learned from Gorski’s parents that Gorski was
in a relationship with Moreno, who had a couple of children and lived near Wauconda.
¶ 22 Knight next followed up with Moreno. He informed her that Gorski was killed. She was
shocked and distraught. She told Knight that she and Gorski had seen a movie in Vernon Hills at
the Hawthorn Mall. The movie started around 8:45 p.m. on December 23, 2016, and ended at
about 11 p.m. After the movie ended, they walked out of the theater and into the parking lot. They
each went to their vehicles, and Moreno drove to Gorski’s apartment to wait for him. She waited
for about 30 minutes, tried calling him a couple of times, and became upset. Moreno never saw
Gorski again.
¶ 23 Moreno told Knight that she had met Gorski while working at a gas station in Island Lake.
He was a regular customer. During the conversation with Moreno at her apartment, her husband
was present. She explained that they had been separated for some time, but that he still lived there
because they were both on the lease and had children together.
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¶ 24 Knight further testified that Moreno came to the Wauconda police department to be
interviewed. She became upset when police asked her who committed the crime, wrote down
“Kenny,” and later identified defendant and provided a phone number. Moreno explained that,
while working at the gas station, defendant worked for a liquor distributor and that they initially
became friends and exchanged phone numbers. Later, they went on a couple of dates. She saw
him as a friend. Defendant gave her money to help pay bills and for her divorce. Moreno
characterized defendant as a stalker, explaining that he had shown up to her work unannounced
three times. He came with a gift, would not leave when co-workers asked him to leave, but left
after Moreno confronted him. Moreno also told Knight that defendant had placed a note on her
vehicle’s windshield at her apartment. She believed this was odd, because she had never told
defendant where she lived. This concerned her. Moreno told defendant that she would go to the
police if he did not leave her alone. He apologized and asked her to return some of the money he
had given her. Moreno also told police that defendant sometimes sent as many as 25 text messages
per day. She would not reply. He texted that he wanted to be with her, sent sexually explicit
messages, and Moreno responded that she did not want that sort of relationship with him. She also
blocked his phone number. Moreno showed Knight the blocked messages on her phone. Between
September 30 and the date of Gorski’s death, defendant had sent Moreno about 196 blocked texts.
¶ 25 4. Sergeant Jason Kapusinski
¶ 26 Jason Kapusinski, a sergeant with the Village of Libertyville and an investigator with the
Lake County Major Crimes Task Force, testified that he learned that both defendant and Garcia
were interviewed at the Round Lake Beach police department and that defendant had asked for an
attorney at some point. Kapusinski also learned that defendant and Garcia were taken from Round
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Lake Beach to the Vernon Hills police department because Libertyville police did not house
individuals in custody overnight.
¶ 27 On December 27, 2016, Kapusinski first came into contact with defendant and Garcia when
they were brought to the Libertyville police department at about 2:41 p.m. They were brought in
separately, and the booking room area was videotaped. At about 5:44 p.m., Kapusinski went into
the booking room and had defendant removed from the cell. He gave defendant a ticket, i.e., the
charge for homicide and paperwork regarding the seizure of his vehicle. Defendant made a
statement regarding telling his side of the story. Kapusinski explained what would occur in the
process of his case. Kapusinski testified that, in the video, defendant is seen pointing in the
direction of Garcia’s cell and stated that Garcia did not have anything to do with this. Defendant
also stated that this was not first degree and then asked to call his parents.
¶ 28 The murder weapon was found in a vehicle in a garage at Garcia’s house. However, Garcia
was arrested for cannabis and never charged with obstructing justice or hiding a gun in his car.
Every time that defendant was moved, Garcia was also moved to the same location. (They were
in separate vehicles and placed in cells near each other.) From Vernon Hills, they were taken to
Libertyville.
¶ 29 Kapusinski testified that the police wanted Garcia to provide information regarding what
happened. They placed him two cells away from defendant at Vernon Hills, where they could hear
each other. On December 26, after Garcia had asked for his attorney, another police officer told
Garcia that police just wanted him to help himself and someone else added that prosecutors and
judges would be looking at the case and wanting to know if Garcia was cooperative.
¶ 30 5. Detective Edward Swider
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¶ 31 Edward Swider worked as a detective in the Libertyville police department on December
23, 2016. He transported Garcia on December 24, 2016, from the Round Lake Beach police
department to the Vernon Hills police department. On December 27, 2016, Swider assisted in
booking Garcia and defendant into the Libertyville police department. While booking defendant,
defendant said to Swider that, if he could speak to his attorney, he would tell his side of the story.
Swider let defendant call his attorney, but the attorney did not respond. Swider informed defendant
that he was being charged with first degree murder. Once defendant was back in his cell, he called
out, stating that Garcia had nothing to do with this. Swider responded that he could not speak to
him because defendant had asked for an attorney.
¶ 32 6. Officer Anthony Baratti
¶ 33 Anthony Baratti, a police officer with the Village of Libertyville, testified that, while
assisting in booking defendant, defendant gestured toward Garcia’s cell and stated that he, i.e.,
Garcia, did not do anything.
¶ 34 7. Kenneth Seplak, Sr.
¶ 35 Kenneth, defendant’s father, testified that, on December 24, 2016, officers knocked on the
door of his home. He got out of bed and answered the door. Three officers were at the door, and
another one was walking down the driveway. Kenneth did not give anyone permission to go
around to the back of the house. At the door, a police officer stated that they needed to see
defendant. Kenneth let them in, and he called out to defendant. Defendant exited his bedroom,
and police stated that they needed to speak to him at the station. After a while, Laura got up.
Kenneth told defendant to go with the officers, and defendant went to his bedroom to get dressed.
One of the officers followed him into his bedroom. After about two or three minutes, defendant
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and the officer exited the bedroom. The other two officers were by the front door. An officer
stated that police needed to see defendant at the police station and needed him to come with them.
¶ 36 Laura yelled out to defendant to take his phone so he could call Laura and Kenneth to ask
them to pick him up. She had the phone in her hand. One officer stated that he would take the
phone and then took it from Laura’s hands. He did not ask defendant’s permission to take the
phone, and defendant did not give him permission to take it.
¶ 37 As they left the house, the two officers exited first, then defendant, and then the final
officer. The officer never told defendant, age 37, that he did not have to go with them or tell him
that he could speak to an attorney before going with them.
¶ 38 8. Trial Court’s Ruling
¶ 39 On March 21, 2019, the trial court denied defendant’s motions, finding that, at his home,
defendant voluntarily accompanied the officers to the police station for questioning, and, at the
station, he voluntarily signed a consent to search his cellphone. The court determined that
defendant was neither arrested at his home, nor upon arrival at the police station interview room.
At his home, the officers engaged in polite conversation with defendant and his parents, explained
the nature of their visit, and asked to speak with defendant. They asked if he would accompany
them to the station. The court noted that there was nothing other than voluntary activity at the
home, “even the part where the officers had the phone that was provided by the defendant’s mother.
Officers did not compel him to leave.” By agreeing to accompany the police, the court found,
defendant could not have believed he was under arrest. “Implicit in that agreement to accompany
to the police station was an acknowledgement that he could also refuse to go.”
¶ 40 At the station, the court further found, although the door had a lock, defendant engaged
with the officers for about one hour, and nothing suggested that defendant was detained against
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his will. The encounter was non-confrontational and not custodial. When the officers asked if he
had any knives or related items, defendant emptied his pockets and they gave defendant his lip
balm when he asked for it.
¶ 41 The court determined that defendant was placed under arrest after the officers learned
certain information from witnesses and data derived from his cellphone, which provided the
probable cause to arrest him. The court also denied defendant’s motion to suppress statements
made prior to being given Miranda warnings, finding the statements were the product of voluntary
non-custodial communication.
¶ 42 B. Trial
¶ 43 The State introduced evidence that defendant met Moreno, who was married, in 2014 and
that they started seeing each other socially one year later. Text messages between defendant and
Moreno showed that defendant was infatuated with Moreno, he gave her about $13,000 over
several months, and he expressed sexual desire for her. In September 2016, Moreno told defendant
that she did not want to have sex with him, would return his gifts to him, and pay him back the
money he lent her. Defendant’s texts to her then became incessant, prompting Moreno to block
his number that month. Defendant continued to text Moreno and showed up on several occasions,
without invitation, at the gas station where she worked. He also left a note on her car when it was
parked outside her apartment; Moreno had not given defendant her address.
¶ 44 On December 23, 2016, Moreno was dating Gorski and they met at the AMC theater to see
a movie. They met at the theater at around 8 p.m., left the theater around 10:54 p.m., and walked
separately to their cars. Moreno drove to Gorski’s apartment and, when he did not arrive and she
could not contact him, she left.
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¶ 45 After speaking with Moreno, police went to defendant’s house at around 6 a.m. He agreed
to go to the station. There, defendant waived his Miranda rights and told police that he had not
left his house all day, other than to get gasoline, and had his phone with him all day. Defendant
also told the officers that he had sent Moreno three texts while at home and spoke to his friend,
Garcia. He told police that he was in an exclusive dating relationship with Moreno, had lent her
$13,000, and acknowledged he may have sent her too many text messages. Defendant consented
to a search of his cellphone and, later, the State obtained a search warrant to extract data from the
phone. During booking, defendant told an officer that Garcia had nothing to do with this and,
later, while in a holding cell, called for a detective and told the detective that Garcia had nothing
to do with this charge.
¶ 46 A location data analysis of defendant’s phone showed that he had not been truthful about
his activities on December 23. The data showed that, between 7:20 p.m. and 2:04 a.m. on the night
of the shooting, defendant travelled several times, between his home, Moreno’s apartment, the
theater, the crime scene, and Garcia’s home, while also texting Moreno several times.
¶ 47 Police obtained video surveillance footage of the parking lot at the theater and from nearby
businesses. The footage corroborated the location analysis of defendant’s phone, showing an SUV
that was consistent with defendant’s SUV’s travel about the parking lot near the theater around
8:30 p.m. and 10:35 p.m. It also showed the SUV turning around at a business just north of the
crime scene at 11:01 p.m. and traveling back south on Milwaukee Avenue. Around 11:15 p.m.,
the SUV travelled north on Milwaukee Avenue, past the crime scene, before traveling south a short
time later.
¶ 48 Garcia testified that, on the night of the shooting, defendant asked him to hold a Ziplock-
like bag containing a revolver and ammunition, explaining that he had been shooting towards a
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tree in Wisconsin. Defendant arrived at Garcia’s residence shortly after midnight, and Garcia put
the bag under the driver’s seat of a vehicle in his garage. There was also a large quantity of
marijuana in the vehicle. On the morning of December 24, 2016, police arrived at Garcia’s home.
He told them that he knew defendant, who had been there the night before. He initially stated that
defendant did not leave anything at the house, but, while police were waiting for a search warrant,
Garcia led them to his garage, where he removed the marijuana and the bag with the revolver and
ammunition. Garcia was transported to the police station and placed in a holding cell near
defendant’s cell. They conversed, and defendant told Garcia that this was over a girl who had been
messing around with him even though he had helped her out financially.
¶ 49 Forensic testimony reflected that the bullet recovered from Gorski’s body was fired from
the firearm recovered from Garcia’s home.
¶ 50 During defendant’s case-in-chief, defendant testified that Moreno never told him that she
had blocked his texts or that she did not want to see him again. On the night of the shooting,
defendant drove to Moreno’s home, but, on the way, saw her driving in the opposite direction and
followed her to the theater. He then returned home and, later, returned to the theater. When the
movie let out and after Moreno had driven away, defendant approached Gorski and asked what
was going on, as he had seen him with Moreno. An argument ensued, Gorski shoved defendant,
and they fought. Eventually, defendant ran to his vehicle and drove toward Milwaukee Avenue.
Defendant further testified that Gorski followed him, blocked him, and, eventually, defendant
grabbed the revolver from his center console. After more chase and swerving, defendant swerved
his vehicle onto the roadway, was flung into the driver’s door, and his gun went off. He lingered
in the area and then retrieved his phone and called Garcia. He later drove to Garcia’s house and
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asked him to take the revolver and a box of bullets. Afterward, defendant drove around, including
to Moreno’s house, and then went home.
¶ 51 C. Direct Appeal
¶ 52 After he was convicted and sentenced, defendant appealed to this court, challenging his
sentence. This court affirmed. People v. Seplak, 2021 IL App (2d) 190910-U.
¶ 53 D. Postconviction Proceedings
¶ 54 On June 26, 2023, defendant filed a postconviction petition, alleging that trial counsel was
ineffective for failing to present defendant’s testimony at the hearing on his motions to quash arrest
and suppress evidence. He asserted that his testimony would have corroborated and supported an
argument that he was placed under arrest in his home in the absence of probable cause or a valid
warrant. Defendant argued that his phone was seized at the time of his invalid arrest and was a
crucial piece of evidence used to obtain his conviction. It was taken from his mother without her
or defendant’s consent. Defendant asserted that both he and his mother were willing to testify at
any pretrial hearing, and he alleged that trial counsel would not let him testify. Defendant also
argued that appellate counsel was ineffective for failing to raise numerous issues.
¶ 55 Defendant attached to his petition his own and his mother’s affidavits. In his affidavit,
defendant averred that he was represented at trial by Steven McCollum and Daniel Hodgkinson.
He wished to testify at his pretrial hearings, but did not testify because his lawyers would not allow
it. The police took his cellphone from his mother’s hand without defendant’s consent. At the
police station, he repeatedly asked for his phone and to make a phone call, but the police denied
defendant’s requests. The contents of the phone were used against him at trial. Finally, defendant
averred that appellate counsel did not raise any issue regarding defendant’s arrest or the motion to
quash and suppress.
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¶ 56 Laura, defendant’s mother, averred that, on December 24, 2016, police entered her home
without a warrant. She was holding defendant’s phone at some point, and the police took the
phone from her hand without permission or consent. She told trial counsel this information before
any hearings occurred. Laura was willing to testify at any hearing or at trial, but was not called as
a witness at any hearing.
¶ 57 The trial court granted the State’s motion to dismiss as to Laura’s potential testimony and
denied the motion as to the issue of whether counsel was ineffective for failing to present
defendant’s testimony. It noted that defendant’s conversations with counsel were outside the
record and that it needed to weigh the potential testimony at an evidentiary hearing and consider
if there was any prejudice.
¶ 58 1. Defendant’s Case - Defendant
¶ 59 The stage-three evidentiary hearing on defendant’s postconviction petition was held on
June 24, 2024. Defendant, age 44, testified that, prior to trial, his attorneys filed motions to quash
arrest and suppress evidence. They did not file a motion to quash the seizure of any evidence,
specifically, the cellphone. Prior to the hearing, defendant told his attorneys that he wanted to
testify. According to defendant, counsel stated that they were not going to have defendant testify
but would, instead, put his father on the stand. Defendant did not testify at the hearing on the
motions; this was his attorneys’ choice, not defendant’s choice.
¶ 60 Next, addressing the morning of December 24, 2016, defendant testified that he heard
banging on the door shortly after 6 a.m., and then heard his father get up and answer the door.
Afterward, Kenneth came to defendant’s room and stated that the police wanted to speak to him.
Defendant walked to the living room and saw three police officers standing there with his father.
The police were in plain clothes and had guns on their belts. One of the officers, Busch, stated
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that defendant needed to go with them to the police station. When defendant asked why, the officer
stated that they would discuss it at the station. Defendant asked to get dressed, and Officer Boyd
followed him to his bedroom. When defendant noted which clothes he was going to put on, the
officer checked the pockets. Defendant got dressed, and the officer directed him back to the living
room. While the group was leaving, defendant heard his mother get up and ask what was going
on. Defendant also asked again why the officers were at his home. One officer responded that he
needed to come with them to the station. Defendant asked why, and the officers responded that
they needed to ask him some questions and that they did not want to ask them in front of his
parents. According to defendant, he stated, “I don’t feel comfortable” and that he did not want to
go to the station. The officers responded that they were not going to leave without him.
Defendant’s father urged defendant to go with the officers.
¶ 61 When defendant put on his shoes, his father stated, “Take your phone.” His mother arrived
with defendant’s cellphone, and Boyd stated, “I’ll take that” and took the phone as defendant
walked out the front door. The officer never asked if he could take the phone, and defendant did
not give him permission to take the phone.
¶ 62 The officers walked defendant to the end of the driveway, where two additional officers
from behind the house joined them. Defendant was taken to the Round Lake Beach police station;
they entered via the sally port. Once there, he asked if he could use his cellphone to call his father
because he did not feel comfortable being there. One officer replied, “No, not now” because they
first had to take care of other things. Officer Boyd had defendant’s phone at this time. Defendant
was taken to a room (the officer used a key to open it) and was searched.
¶ 63 At some point, defendant signed a consent form to search his phone; he did not sign a
consent to seize it. Later, he was taken to the Vernon Hills police station and placed in a holding
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cell near Garcia, who testified against him at trial. Also, at trial, the State introduced evidence
from defendant’s cellphone and his statements to police.
¶ 64 On cross-examination, defendant conceded that his father testified at the motion-to-
suppress hearing that the officer took the phone from his mother, just as defendant testified at the
stage-three hearing. Defendant also conceded that, at the stage-three hearing, he testified to the
same facts that his father had testified to at the motion-to-suppress hearing.
¶ 65 Addressing trial counsel, defendant agreed that counsel explained to him that they would
not have defendant testify at the hearing but, instead, would have his father testify to say the same
things that defendant would say. Defendant never told his attorneys during the hearing that he
wanted to testify because he had something new to provide. Nor did he say after the hearing (and
before trial) that he should have testified at the hearing or told the trial judge that he had a problem
with counsel because they would not let him testify.
¶ 66 On re-direct examination, defendant testified that, at the motion-to-suppress hearing,
Officer Boyd testified that defendant was not restrained and not prevented from using his cellphone
at all. Boyd also testified that defendant had his cellphone when he left the house and asked
defendant if he could keep the phone up front in the police car. Defendant also testified that Officer
Busch did not ask if police could keep the cellphone up front in the car.
¶ 67 On re-cross examination, defendant testified that his father never gave consent to the police
to take the phone. Busch, according to defendant, testified that defendant handed him the phone
in the vehicle after he asked for it. Defendant testified, “I never had it in the police car. They took
it in my house.”
¶ 68 2. State’s Case - Attorney Steven McCollum
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¶ 69 McCollum testified that the defense’s goal at the motion-to-suppress hearing was to
establish that defendant was under arrest at the earliest possible time. He was sure there were
discussions with defendant regarding the witnesses who would be called by both the State and the
defense at the hearing on the motions. Defendant did not advise McCollum that he wanted to
testify at the hearing. They discussed who would be called at the hearing, how the officers would
testify, etc. Defense counsel explained to defendant why it would not be good for him to testify
and that it was not necessary. There was testimony from the officers and from defendant’s father
concerning the events at the house.
¶ 70 McCollum explained that defendant’s father was called instead of defendant because it was
not necessary to expose defendant to cross-examination at the hearing; no decision had been made
at that point if defendant would testify at trial; the police officers testified about the facts that
McCollum wanted to get before the court and were “pretty clear on their testimony concerning the
issues”; and defendant’s father was available to testify, as was his mother, if necessary. Defense
counsel did not feel it was necessary to bring up either defendant’s testimony or his mother’s
testimony “in order to get the points we wanted to make before the judge.” Defense counsel were
concerned that, if defendant testified, cross-examination might be dangerous for him and that it
was not a necessary risk under the circumstances. Defendant’s father was able to present the same
facts about what happened at the house regarding the phone as defendant and police would have.
¶ 71 Next, addressing the period during which defendant was in the police car, McCollum
testified that he did not call defendant to testify about that period because his parents observed
defendant getting into the car and the officers testified that they put him in the back seat and one
officer got in next to him.
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¶ 72 On cross-examination, McCollum testified that his objective with the motions was to show
that defendant was under arrest not only at the home but also at the police station, where he was
placed in a locked room after his phone, wallet, etc., were taken from him.
¶ 73 Addressing the cellphone’s seizure, McCollum believed that, when defendant left the
house, he did not have his phone. He recalled that the testimony was clear that the phone was
taken from defendant’s mother without any prior consent from anyone. McCollum further testified
that his concern about the officer taking the phone from defendant’s mother was that it showed
that defendant was being treated like he was in custody. It also did not show consent to turn over
the phone.
¶ 74 3. Trial Court’s Ruling
¶ 75 The trial court denied defendant’s petition, finding that defendant added no testimony that
was not already presented to the court by the police officers and his father. It was not ineffective,
the court determined, to fail to call a client in a murder case and expose him to cross-examination,
merely to present cumulative evidence that the police did not seek consent to seize the phone.
There was also no prejudice from failing to call defendant. Also, the court noted that no officer
testified that there was consent to take the phone.
¶ 76 The court also disagreed that an attenuation hearing was warranted, where nothing
happened with the phone in the six hours between when the phone was taken and consent was
obtained. Merely suppressing the physical taking of the phone “would be a pyrrhic victory because
of the subsequent consent.” Given the consent, the court further found, there was no ineffective
assistance; it was trial strategy. “The Defense Counsel clearly knew that they had to deal with a
videotaped consent.” Also, the court found that there was no prejudice because the police did not
search the phone until after defendant consented. Defendant appeals.
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¶ 77 II. ANALYSIS
¶ 78 Defendant argues that the trial court erred in denying his postconviction petition. He
contends that defense counsel should have presented his testimony concerning the seizure of his
cellphone and should have moved to quash the seizure of the phone, where the evidence obtained
from the phone would have been suppressed. Defendant asserts that the illegality of the seizure of
his cellphone was not dissipated by his alleged consent to search that phone six hours later. For
the following reasons, we reject defendant’s arguments.
¶ 79 The Act provides a means by which a defendant may challenge his or her conviction or
sentence for violations of federal or state constitutional rights. People v. Whitfield, 217 Ill. 2d 177,
183 (2005). The Act sets forth three stages of review. At the first stage, the trial court may
summarily dismiss a postconviction petition as frivolous or patently without merit. 725 ILCS
5/122-2.1(a)(2) (West 2022). If the petition is not dismissed, it advances to the second stage. Id.
§ 122-2.1(b).
¶ 80 At the second stage of a postconviction proceeding, the State may move to dismiss a
petition or answer a petition pending before the trial court. Id. § 122-5. At this stage, the trial
court must determine whether the petition and the accompanying documentation make a
“ ‘substantial showing of a constitutional violation.’ ” People v. Domagala, 2013 IL 113688,
¶ 33 (quoting People v. Edwards, 197 Ill. 2d 239, 246 (2001)). If the petition satisfies this
standard, the defendant is entitled to a third-stage evidentiary hearing at which the trial court acts
as the factfinder and determines whether the evidence introduced demonstrates that the defendant
is entitled to relief. Id. ¶ 34.
¶ 81 At the third stage of a postconviction proceeding, the defendant bears the burden of making
a substantial showing of a constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473
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(2006). The defendant is entitled to a hearing where the trial court “may receive evidentiary proof
via affidavits, depositions, testimony, or other evidence, and may order the petitioner brought
before the court.” People v. Gerow, 388 Ill. App. 3d 524, 527 (2009). We defer to “the trial court’s
factual findings because the trial court stands in the best position to weigh the credibility of the
witnesses.” In re Floyd, 274 Ill. App. 3d 855, 867 (1995). Accordingly, “[a] judge’s factual
findings and credibility determinations made at a third-stage evidentiary hearing of a
postconviction proceeding should be disturbed only if manifestly erroneous, that is, only if the
court committed an error that is clearly evident, plain, and indisputable.” (Internal quotation marks
omitted.) People v. Eubanks, 2021 IL 126271, ¶ 47.
¶ 82 A defendant who raises an ineffective-assistance-of-counsel claim must satisfy the two-
prong test promulgated in Strickland v. Washington, 466 U.S. 668, 694 (1984). Specifically, the
defendant must show that counsel’s performance was objectively unreasonable and that there is a
reasonable probability that, but for counsel’s unreasonable performance, the result of the
underlying proceeding would have differed. Id.; People v. Albanese, 104 Ill. 2d 504, 525-26
(1984). “To satisfy the deficient performance prong of Strickland, a defendant must show that his
counsel’s performance was so inadequate ‘that counsel was not functioning as the “counsel”
guaranteed by the sixth amendment.’ ” People v. Dupree, 2018 IL 122307, ¶ 44 (quoting People
v. Evans, 186 Ill. 2d 83, 93 (1999)). Courts assess counsel’s performance based on the “prevailing
professional norms” at the time of representation (People v. Domagala, 2013 IL 113688, ¶ 36),
without the “distorting effects of hindsight” (Strickland, 466 U.S. at 689). With respect to the
prejudice prong, “ ‘[i]t is not enough for the defendant to show that the errors had some conceivable
effect on the outcome of the proceeding.’ ” People v. Johnson, 2021 IL 126291, ¶ 55 (quoting
Strickland, 466 U.S. at 693). Instead, “[s]atisfying the prejudice prong necessitates a showing of
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actual prejudice, not simply speculation that [the] defendant may have been prejudiced.” People
v. Patterson, 2014 IL 115102, ¶ 81. A defendant must satisfy both prongs of the Strickland test—
deficient performance and prejudice—to prevail on an ineffective-assistance-of-counsel claim, and
the failure to satisfy either prong invalidates his or her claim. People v. Veach, 2017 IL 120649,
¶ 30.
¶ 83 In reviewing a claim of ineffective assistance of counsel, this court reviews counsel’s
actions under the totality of the circumstances of the individual case. People v. Shatner, 174 Ill.
2d 133, 147 (1996). Judicial scrutiny of counsel’s performance is highly deferential, and counsel’s
trial strategy is given a strong presumption of reasonable professional assistance. Strickland, 466
U.S. at 689. Decisions regarding what evidence to present and which witnesses to call are matters
of trial strategy (People v. Hamilton, 361 Ill. App. 3d 836, 847 (2005)), and counsel has a duty to
make reasonable investigations or to make a reasonable decision that makes particular
investigations unnecessary (People v. Pecoraro, 175 Ill. 2d 294, 324-25 (1997)). Strategic choices
made by counsel after having made a thorough investigation are “virtually unchallengeable.”
People v. Towns, 182 Ill. 2d 491, 514 (1998).
¶ 84 Where, as here, an ineffective-assistance-of-counsel claim is predicated on counsel’s
conduct during pretrial suppression proceedings, a defendant must show a reasonable probability
that, had counsel not committed the purported error, the trial court would have granted the motion
to suppress and the result of the trial would have differed if the suppressed evidence had not been
introduced. People v. Givens, 237 Ill. 2d 311, 331 (2010). The failure to introduce evidence at a
suppression hearing can, in certain circumstances, constitute ineffective assistance of counsel.
People v. Patterson, 192 Ill. 2d 93, 114-15 (2000).
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¶ 85 Here, defendant argues that trial counsel was ineffective for failing to (1) present his
testimony at the hearing on the motions to suppress; and (2) move to quash the seizure of his
cellphone and to suppress evidence obtained from the phone. He contends that, had his testimony
been presented and had trial counsel moved to quash the seizure of his cellphone and suppress the
evidence retrieved from the phone, the State would have been deprived of crucial evidence as to
his movements on the night of the offense and the trial outcome would have been different.
¶ 86 A. Failure to Present Defendant’s Testimony
¶ 87 Specifically, defendant first asserts that his testimony about the seizure of the cellphone,
which was a crucial piece of evidence, would have corroborated and supported the argument that
he was actually placed under arrest in his home in the absence of probable cause or a valid warrant.
We reject defendant’s argument.
¶ 88 The trial court’s finding as to counsel’s decision not to present defendant’s testimony was
not manifestly erroneous. In his postconviction petition, defendant asserted that trial counsel was
ineffective for failing to present defendant’s testimony at the pretrial hearing. Defendant argued
that his testimony should have been presented because it would have corroborated and supported
his argument that he was arrested in his home without probable cause or a valid warrant and that
his phone was seized at the time of his invalid arrest and was crucial evidence used to obtain his
conviction. At the stage-three hearing, defendant testified that he told his trial attorneys that he
wanted to testify, but that counsel decided that Kenneth would testify instead. He also related the
events on the morning of December 24, 2016, noting that officer Boyd took his cellphone from
Laura without permission, as defendant and the police walked out the door of his parents’ home
and that this was contrary to the officers’ testimony at the hearing that they took the phone from
defendant in the police car. At the stage-three hearing, defendant conceded on cross-examination
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that his version of the events was identical to the version Kenneth testified to at the suppression
hearing, most notably, that the officer took the phone from defendant’s mother. Defendant also
testified that trial counsel explained to him that he would not testify and that Kenneth would testify
to the same things that defendant would have testified to. He also conceded that he never told his
attorneys that he wanted to testify because he had something new to provide.
¶ 89 McCollum testified that defendant did not inform him that he wanted to testify at the
hearing, but he and co-counsel discussed who would be called to testify. McCollum also testified
that they explained to defendant why it was not necessary for him to testify and that his father
would be testifying about the events at his parents’ house. Counsel did not want to expose
defendant to cross-examination and the risks it entailed for defendant’s case, where his father was
available to testify. Indeed, defendant’s father, McCollum testified, presented the same facts about
what occurred at the house regarding the phone as defendant.
¶ 90 Given the evidence, including defendant’s concession that his testimony (that police seized
his phone from his mother without consent) would have been identical to and cumulative of his
father’s testimony, defendant cannot show that the trial court’s denial of his petition was erroneous.
First, the court, which was in the best position to assess witness credibility, did not err in
determining that trial counsels’ decision to not have defendant testify at the suppression hearing
was trial strategy and did not constitute deficient performance, where McCollum recounted his
concerns about subjecting defendant to cross-examination. See People v. James, 2023 IL App
(1st) 192232, ¶ 48 (a reasonable justification for counsel not to call a defendant at a suppression
hearing is that counsel may want to avoid inconsistencies in the defendant’s testimony that the
State could use at trial to impeach him or her). Second, the trial court did not err in finding that
defendant did not establish prejudice, where his cumulative and identical evidence would not have
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changed the outcome of the motion to suppress or the trial. See People v. Smith, 195 Ill. 2d 179,
190-91 (2000) (rejecting the defendant’s claim that his attorney rendered ineffective assistance
when he failed to call a witness to provide cumulative testimony, because the defendant could not
satisfy the prejudice prong of the Strickland test).
¶ 91 B. Failure to Move to Suppress Seizure of Cellphone
¶ 92 Next, defendant asserts that the seizure of his cellphone was done without consent, a
warrant, or exigent circumstances and was, therefore, unconstitutional, and trial counsel was
ineffective for failing to move to quash the seizure of the phone. He argues that the trial court
erred in finding that his subsequent consent, six hours later, to search the phone negated any
potential prejudice. Defendant also argues that this issue should be resolved by applying the
attenuation doctrine. See In re Jarrell C., 2017 IL App (1st) 170932, ¶ 24 (doctrine, which is an
exception to the warrant requirement, allows for the admission of evidence obtained unlawfully
when the connection between the unconstitutional police conduct and the evidence is remote or
has been interrupted by some intervening circumstance, so that the interest protected by the
constitutional guarantee that has been violated would not be served by suppression of the evidence
that was obtained).
¶ 93 We conclude that defendant’s argument that counsel was ineffective for failing to move to
suppress the seizure of his cellphone fails because the court’s ruling that he failed to show deficient
performance was not manifestly erroneous. Police may temporarily seize evidence, including
electronic devices, to preserve the evidence and prevent its destruction. See Riley v. California,
573 U.S. 373, 388 (2014) (noting that the defendants’ concession that the police could have seized
and secured their cell phones to prevent destruction of evidence while seeking a warrant was a
“sensible concession”); United States v. Fletcher, 978 F.3d 1009, 1019 (6th Cir. 2020) (noting that
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the government’s interest in preventing the destruction of evidence is sufficiently addressed by
seizing the phone, not searching it); United States v. Knowles, 207 F. Supp. 3d 585, 604 (D. S.C.
2016) (collecting cases) (courts routinely allow warrantless seizures of laptop computers and other
electronic devices under the exigent circumstances doctrine because of the fragile and easily
destructible nature of digital evidence at issue); cf. People v. Butler, 2015 IL App (1st) 131870,
¶ 44 (exigent circumstances justifying a warrantless search did not exist; officer did not merely
seize the defendant’s cell phone and secure it until a warrant could be obtained, but also
immediately searched its contents). Here, Moreno had informed police that defendant, her former
boyfriend, had sent her numerous text messages and engaged in other concerning behavior. The
police reasonably could have determined that defendant’s cellphone contained important evidence
related to Gorski’s shooting and that the evidence needed to be preserved. They seized the phone
but did not search its contents until after defendant had signed a consent to search. Accordingly,
the trial court’s determination that defendant failed to show that trial counsels’ performance was
deficient was not manifestly erroneous. Further, because we conclude that defendant’s ineffective-
assistance claim fails (as there was no illegal seizure or search), we need not address defendant’s
argument concerning the attenuation doctrine.
¶ 94 Finally, given that we find no manifest error in the trial court’s resolution of defendant’s
claims concerning trial counsels’ performance, we cannot conclude that appellate counsel was
ineffective for failing to challenge that performance on direct appeal. See People v. White, 2021
IL App (1st) 170903, ¶ 38 (if the underlying claim would not have succeeded on direct appeal,
then appellate counsel was not ineffective for failing to raise it).
¶ 95 III. CONCLUSION
¶ 96 For the reasons stated, we affirm the judgment of the circuit court of Lake County.
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¶ 97 Affirmed.
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