People v. Verser

2022 IL App (1st) 192224-U

• Court: Appellate Court of Illinois
• Decided: September 21, 2022
• Docket: 1-19-2224
• Status: Unpublished

Opinion

2022 IL App (1st) 192224-U

THIRD DIVISION September 21, 2022

No. 1-19-2224

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) No. 93 CR 2647702 ) HULON VERSER, ) Honorable ) Timothy Joseph Joyce, Defendant-Appellant. ) Judge Presiding. _____________________________________________________________________________

PRESIDING JUSTICE McBRIDE delivered the judgment of the court. Justices Gordon and Reyes concurred in the judgment.

ORDER ¶1 Held: The trial court did not err by denying the defendant’s postconviction petition after a third stage evidentiary hearing.

¶2 Following a jury trial, defendant, Hulon Verser, was convicted of two counts of murder

and two counts of aggravated kidnapping in connection with the 1993 kidnappings and murders

of the victims, fifteen-year-old Stanton Burch and eighteen-year-old Michael Purham. Defendant

was sentenced to natural life imprisonment. This appeal arises from the dismissal of defendant’s

postconviction petition following a third-stage evidentiary hearing. No. 19-2224

¶3 The record shows that prior to trial, defendant filed two motions to suppress. The first

motion to suppress was based on a lack of probable cause. At the hearing on the first motion, the

State called Gang Specialist Michael Cronin and Officer James Norris. Cronin testified that on

September 14, 1993, Chicago police had an ongoing investigation into a violent “power

struggle” between two factions of the Unknown Vice Lords street gang. One faction was led by

Tyrone Williams, the other by Willie Lloyd. The conflict had led to several shootings, some of

them deadly, and to the suspected kidnapping and murders of Burch and Purham, who had been

reported missing the previous day. On September 13, 1993, a confidential informant previously

found to be reliable had told Cronin that Williams would be attending a funeral for a gang

member who had been murdered several days earlier and would have armed gang members with

him “acting as security.” Cronin also received information that Lloyd and several people loyal to

him might be attending the funeral. Cronin set up surveillance at the Branch Funeral home, and

at approximately 8 p.m. he saw ten to fifteen men wearing hooded sweatshirts with the hoods up

enter the funeral home together. The men left a short time later, and Cronin recognized one of

them as Williams. As the men began walking northbound across Roosevelt Road toward Troy

Street, Cronin notified other officers by radio, and the officers arrested defendant and Derrick

Harvey.

¶4 Norris testified that on the evening September 14, 1993, he was parked in a lot near the

funeral home and was in radio communication with Cronin, who had information that Williams

and gang members loyal to him would be attending a funeral and carrying guns. Around 8 p.m.,

Cronin radioed that a group of men wearing dark hooded sweatshirts had entered the funeral

home and that he believed Williams was with them. Shortly thereafter, Cronin radioed that

Williams had left the funeral home with the men wearing dark hooded sweatshirts. Norris left the

2 No. 19-2224

lot and drove to the funeral home, where he saw four men enter an Oldsmobile parked on the

west side of Troy and a van pulling away northbound on Troy. Norris stopped the van and

ordered the occupants to put their hands up and stay in the vehicle. He then looked over his

shoulder to where other officers were located and saw defendant, who was wearing a dark

hooded sweatshirt, running toward him. Norris identified himself as a police officer and ordered

defendant to stop, but defendant “continued running across the street and toward *** the north

alley of Roosevelt.” Norris chased defendant into the alley, where defendant ducked behind a

dumpster. Norris ordered defendant to stop and show his hands, and defendant complied. Norris

then recovered a 9-millimeter handgun from defendant’s waistband and placed him under arrest.

¶5 On cross-examination, defense counsel elicited testimony that Norris did not see

defendant in the van or with Williams, and that Norris did not see a weapon on defendant prior to

the search.

¶6 Defendant did not testify and called no witnesses at the hearing, but stipulated that he

gave oral and written statements and that the gun Norris recovered was his.

¶7 In closing, defense counsel asked the court to suppress defendant’s statements and the

gun found during his arrest because Officer Norris lacked probable cause to arrest him. Defense

counsel argued that he was not in either of the vehicles, and that Officer Norris did not know

where defendant “came from before the arrest.” Defense counsel asserted that defendant was

arrested “because he was running across the street. And if that is probable cause, Your Honor,

then – I do not believe it’s probable cause.”

¶8 The trial court denied the suppression motion, finding that defendant’s arrest was based

on probable cause:

3 No. 19-2224

“[T]he information gained by the officers *** that was part of their

knowledge at the time of the stops, chases and recovery of the weapons [was] that

there was *** a funeral being held of a Vice Lord Gang Member; that at the

funeral there were going to be rival fa[ct]ions of the Vice Lord Gang ***; that one

of the leaders of the Vice Lords at the time, Mr. Willie Lloyd, *** would be there;

and another leader at the time of [a] rival fa[ct]ion was a Mr. Tyrone Williams,

also known as Baby Ty Williams.

*** [T]hose individuals would be armed, especially and including the

people that would be accompanying Mr. Williams ***.

The officers then *** conducted a surveillance. First, they saw the

individuals going in and exiting [the funeral home], splitting into two groups; one

portion to a van, and the other portion to an Oldsmobile parked to drive away.

It’s clear at the time of the stop for [defendant], when the van was stopped,

Officer Norris testified that he saw the defendant *** running toward him. But

more important than that, away from the area in which the other officers had been.

At this time I believe the officer acted reasonably in ordering the

defendant to stop. When he didn’t, [Norris] pursued the defendant into an alley.

When [Norris] pursued the defendant into an alley, he saw the defendant crouch

down and try to hide from him behind a dumpster. I think that would certainly

give this officer reasonable suspicion to pursue his investigation even further.

But based on the fact that the defendant was dressed in the manner of

these other individuals, and the fact that these other individuals had been in the

company of Mr. Tyrone Williams, and also based on the fact that he had ***

4 No. 19-2224

reasonable belief based on *** information from a reliable confidential informant,

that this person may be armed and dangerous, at that point he testified he

conducted a protective pat-down search, and pursuant to that search, he found a .9

millimeter weapon in the defendant’s waistband.

In the totality of the circumstances *** the officers acted reasonably.

The motion to suppress will be denied. ”

¶9 The court then noted that there was another motion to suppress defendant’s statements,

which defense counsel explained was based on “Miranda,” and the court scheduled that motion

for hearing.

¶ 10 The second suppression motion was heard on March 1, 1996. At that hearing, Christin

Kato, a Chicago Police Detective, testified that he first spoke with defendant at about 1:30 a.m.,

September 15, 1993. The conversation occurred in an interview room at the Area 4 police

station. Kato stated that defendant was advised of his rights and defendant indicated he

understood them. At that time, Kato said he and defendant had a conversation regarding the

deaths of Burch and Purham.

¶ 11 At approximately 4 a.m. Assistant State’s Attorney James Nelson, a Felony Review

Assistant, arrived. Kato said that Nelson read defendant his rights and informed him that he was

an attorney for the State. Kato stated that Nelson held another conversation with defendant

concerning the shooting of Burch and Purham. At the end of that conversation, Kato said that

defendant chose to give a handwritten statement. Kato further stated that defendant was able to

review the statement by reading it aloud and that he was able to make corrections. According to

Kato, defendant also initialed the corrected portions of the statement and signed it.

5 No. 19-2224

¶ 12 Defendant testified at the suppression hearing that he was interviewed by Officer Cronin

who physically threatened him by putting his foot on a chair between defendant’s legs.

According to defendant, Cronin also threatened him by talking about what would happen to him

and his family if he were found guilty. He also stated that Detective Kato was never present.

Defendant further testified that he did not remember talking to Nelson, but there was a man in

the room writing things down. He said that he did not tell the man in the room anything about the

shootings. Defendant also claimed that the man never read the statement aloud to him and that

the initials on the document were not his.

¶ 13 In rebuttal, the State recalled Nelson, Detective Kato, and Officer Cronin. Nelson

testified that he read defendant his Miranda rights and told defendant he was an attorney

working with the police. Nelson had defendant review the statement and allowed him to make

changes to it. Nelson said that he, Detective Kato, and defendant all initialed the statement.

Nelson also testified that Officer Cronin was not present at any time during defendant’s

interview. Detective Kato testified that he was present for defendant’s statement and that Officer

Cronin was not involved in the interview. Officer Cronin testified that he never conversed with

defendant in regard to the shootings and that he did not sit in on any statements given.

¶ 14 Defense counsel argued that the court should suppress his statement because defendant

testified that he was not given Miranda warnings, and that he was “promised *** leniency.”

¶ 15 The court initially noted that it was a “matter of credibility” and that there was “no

evidence to support” defendant’s claims that he was not advised of his Miranda rights, that he

did not understand those rights, or that he was threatened or promised leniency. To the contrary,

the trial court noted that the State’s witnesses testified that he was advised of his Miranda rights,

there was evidence that defendant signed a statement indicating that he was read and understood

6 No. 19-2224

those rights. “As a matter of credibility” the court found that there were no promises of leniency

made to defendant, and no threats or coercion. Accordingly, the court denied defendant’s second

motion to suppress.

¶ 16 The evidence presented at defendant’s subsequent trial was extensively set out in the

Rule 23 order entered in defendant’s direct appeal. People v. Verser, No. 1-98-1779 (2002)

(unpublished order under Supreme Court Rule 23). Because that evidence is relevant to this

appeal, we repeat it below:

“At trial, Nelson testified again that defendant was advised of his rights.

Nelson said that defendant acknowledged that he understood those rights. Nelson

also stated that he discussed the shooting with defendant. According to Nelson,

defendant elected to have a written statement prepared by him which would

memorialize the events and would allow defendant to review the document and

make changes. Nelson further testified that defendant read the statement aloud,

made two corrections, and signed each page on the bottom.

Defendant’s statement was then read to the jury. Among other things, the

statement indicated that it was taken, ‘regarding the fatal shooting of Stanton

Burch and Michael Purham which occurred September 13, 1993, at 2501 West

Roosevelt at 2:00 p.m.’ In it, defendant admitted that he was a member of the

Unknown Vice Lords and that he occasionally sold drugs for Ted (Artez Thigpen)

at the ‘spot’ located on Springfield Street between Fillmore and Arlington Street

in Chicago. Defendant also acknowledged a battle between Ted Thigpen and

Willie Lloyd over which faction controlled drug sales at the spot. Specifically,

defendant stated that on September 12, 1993, a man selling drugs for Ted was

7 No. 19-2224

robbed of drugs by Willie Lloyd and twelve of his men.

Defendant also said that Ted instructed him to get a gun and that he, Ted,

and eight other men got guns and went out looking for Willie Lloyd and his gang.

Defendant indicated that Ted promised defendant that if he helped him protect his

spot, defendant would get a spot of his own to sell drugs.

The next morning, defendant stated that they all got up and took their guns

with them. Defendant testified that Ted and Tyrone Williams informed him that

two of Willie’s boys were selling drugs at Ted’s spot, and said, ‘let’s go get ‘em.’

Ted and Tyrone left in a car and defendant stated that he and the rest of the men

ran over to the spot. When he arrived, defendant said that Ted and Tyrone already

had the two men in the back of a car. He also stated that he knew Ted was going

to kill them. The two men in the back of the car were Burch and Purham.

These men were taken to an elevated spot between the railroad tracks on

Roosevelt Street between Western Avenue and California Avenue. Defendant said

that Ted shot one of the guys in the head. He then admitted that he and the other

guys began shooting at the victim who had not yet been shot. Defendant believed

he shot this man in the leg. Defendant further admitted that the gun found on him

at the time of his arrest was the same gun he used to shoot one of Willie’s boys.

Barry Williams, also known as ‘Smurf’ and Aaron Lamar, testified that he

was at the spot at the time, Burch and Purham were taken off the street. He stated

that he did not remember defendant being present at the scene. However,

Williams previously gave a statement to Assistant State’s Attorney Nelson on

September 16, 1993.

8 No. 19-2224

In that statement, Williams said that he was an Unknown Vice Lord who

sold drugs for Ted at Ted’s spot. He also stated that he was at Ted’s spot on

September 13, 1993, when two black males arrived in a car and announced that

Willie Lloyd was taking over the spot from Ted. The two guys began selling

drugs. Ted drove by in a car and drove off without saying anything. After about

ten minutes, Ted returned with approximately 10 other guys, most of whom had

guns in their hands. Williams said that defendant was among the group that

returned with Ted.

Assistant State’s Attorney William Fahy testified that Williams had also

appeared before the grand jury in connection with these shootings. In his grand

jury testimony, Williams said that defendant was an Unknown Vice Lord who

approached the spot carrying a weapon at the time the victims were taken off the

street.

Thomas Pack, an investigator for the Cook County State’s Attorney’s

office, stated that on January 14, 1998, he received a request to locate Williams.

According to Pack, he found Williams in an apartment on the west side of

Chicago and tried to serve him with a subpoena in connection with this case.

Williams admitted that he did not want to be served and he said that if he testified,

‘he’s dead and so is everybody else in the building.’

At trial, Officer James Norris’s testimony was similar to his testimony

given at the suppression hearing. He stated that on September 14, 1993, he chased

defendant into an alley and recovered a .9 millimeter semi automatic handgun

from defendant’s waist band.

9 No. 19-2224

James Pubins, a Chicago Police Detective, testified that he found the

victims’ bodies just off an embankment of the railroad tracks located on

Roosevelt Road, about a block west of Western Avenue. A bullet was found in

Stanton Burch’s clothing.

The parties stipulated that if Robert Fournier, a Firearm’s Examiner for the

City of Chicago Crime Lab, were called to testify, he would state that the .9

millimeter hand gun found on defendant could have fired the .9 millimeter bullet

recovered from the clothing of Stanton Burch.

Defendant testified that he had known Ted for a long time and was Ted’s

friend. He acknowledged that Ted was allied with Tyrone Williams. He also said

that, at the time of the shooting, he was a member of the Unknown Vice Lords

and that he was at a funeral home on the evening of September 14, 1993. He

admitted that there were other gang members at the funeral and that he was

wearing a dark hooded sweatshirt.

Prior to his arrest, defendant said that he was standing by the corner store

on Roosevelt Road and Troy Street when Officer Norris drove up and stopped the

car. According to defendant, Norris saw a mini van and he and his partner got out

of their vehicle. The arrival of the police caused many people to flee. Defendant

stated that he did not run, but was arrested by Norris. He admitted that Norris

found a weapon on his person at the time of his arrest and that the gun was a fully

loaded .9 millimeter weapon. Defendant denied that it had the name Vice Lords

inscribed on the handle. He said that he was carrying the gun for his protection

because of the on-going fight within the Vice Lords.

10 No. 19-2224

Defendant admitted that he was taken to the second floor of the police

station by Detective Kato after Officer Norris had questioned him. He said that he

did not give a statement to Detective Kato concerning the shootings of Burch and

Purham. Defendant also stated that Assistant State’s Attorney Nelson came into

the room. According to defendant, Nelson never read him his rights. Defendant

denied that he gave a statement to Nelson concerning the shootings. While in the

room, he said that Nelson was writing things down on a sheet of paper. Defendant

testified that he never told Nelson that he shot at one of the victims or that the .9

millimeter found on his person was used in the shooting. Defendant admitted to

signing and initialing the statement prepared by Nelson. However, defendant

claimed that he signed the statement because Nelson told him that if he signed it

he could leave.

Later in his testimony, defendant stated that he knew both Detective

Cronin and Detective Kato. He said that it was Defective Cronin who brought him

to the interview room, not Detective Kato. According to defendant, he had no

dealings with Detective Kato at all that day. Defendant admitted that Detective

Kato’s signature was on the statement.

Defendant further testified that he was sure Detective Cronin was the

detective who questioned him about the shootings. He said Cronin put his feet on

a chair between his legs and said that if defendant did not cooperate he was going

to hook him up on the case. Detective Cronin told him to tell the assistant State’s

Attorney that he shot Stanton Burch in the leg.

In rebuttal, the State called Officer Cronin who stated that he never spoke

11 No. 19-2224

with defendant on the day he was arrested. The State then called Detective Kato

who testified that he interviewed defendant and that Officer Cronin did not have

any contact with him.

At the end of trial, the jury found defendant guilty of two counts of first

degree murder and two counts of aggravated kidnapping. Defendant was

sentenced to natural life imprisonment on the first degree murder convictions.” Id.

¶ 17 On direct appeal, defendant argued that the trial court erred in denying his motion to

suppress statements based on defendant’s claim that his statements were involuntary. This court

concluded that the “totality of the circumstances indicate[d] that defendant’s confession was

voluntary,” and that the only evidence weighing against the statement’s admission was

defendant’s testimony, which the trial court did not find credible. Id. at 12-16. We also rejected

defendant’s argument that the court abused its discretion in admitting “other crimes evidence”

that he was arrested “in the company of armed gang members,” and his related ineffective

assistance claim based on trial counsel’s failure to object to said evidence. We concluded that the

evidence was “admissible to demonstrate the existence of a gang war and defendant’s motive to

harm those members of the rival faction.” Id. at 18, citing People v. Smith, 141 Ill. 2d 40, 58

(1991) (“[E]vidence indicating the defendant was a member of a gang or was involved in gang-

related activity is admissible to show common purpose or design, or to provide a motive for an

otherwise inexplicable act.”).

¶ 18 Thereafter, in May 2002, defendant filed a pro se petition under the Post-Conviction

Hearing Act, 725 ILCS 5/122-1, et seq., which he later supplemented. In his pro se petitions,

defendant argued, among other things, that the court abused its discretion in admitting funeral

home surveillance footage and “permit[ting] the jury to view the weapons recovered from a car

12 No. 19-2224

outside the funeral home,” and that his counsel was ineffective for failing to object to this

evidence. Defendant also argued that it was “plain error” for the court to not “instruct the jury

that the State must prove beyond a reas[o]nable doubt that [defendant] was ‘legally responsible’

for the acts of his co-defendants.” Finally, defendant asserted that the trial court “abused its

discretion in denying the defense motion to sup[p]ress the arrest and [defendant]’s statement

taken from him. [Defendant] was not committing any crime when he was arrested. He was

minding his own business, standing on a street corner and watching the drama of the police

stopping a minivan down the street from where he was at. When the people from the minivan

fled, police arrested the [defendant].” Defendant alleged that he was arrested “illegally and then

tricked *** into signing a false confession.”

¶ 19 Defendant was appointed counsel on his pro se postconviction petitions who filed an

amended petitions in April 2009. In the amended petition defendant argued, among other things,

that “trial and appellate counsel were ineffective for failing to raise the issue that the court erred

in denying the motion to suppress evidence.” Defendant argued that the testimony showed that

“no one saw where [defendant] came from, and no one was certain that [defendant] was armed.”

Defendant asserted that he “simply was in the vicinity of others whom the police were seeking,”

and that trial counsel “was ineffective for failing to argue that running from an officer, which

[defendant] vehemently denies he did, equates [sic] to probable cause to stop and arrest.” He

further alleged that “[c]ounsel on appeal was also ineffective in this regard.”

¶ 20 Meanwhile, in 2008, while in prison for an unrelated offense, another member of the

Vice Lords gang, Corey Campbell, told his cellmate that he was involved in the kidnapping and

murders of the victims. Campbell’s cellmate wore a wire and recorded Campbell admitting his

involvement. When investigators later conducted a videorecorded interview of Campbell in

13 No. 19-2224

prison, Campbell used a fake name and initially insisted that he was not involved. Campbell later

admitted to assisting in the abduction of the victims, but claimed that he was not carrying a gun

and that he did not take the victims to the railroad tracks or shoot them. Campbell later pleaded

guilty to the murder and aggravated kidnapping of one of the victims, and was sentenced to 70

years’ imprisonment.

¶ 21 Defendant, through counsel, then filed a second amended petition for postconviction

relief in February 2012. That second amended petition, which is the subject of this appeal, raised

a claim of actual innocence primarily based on an affidavit from Campbell. Campbell generally

took responsibility for the offenses and stated that defendant was not present when they were

committed. Specifically, Campbell averred that on September 13, 1993, he, Derrick Harvey and

Lil-Donny pulled up on “Springfield and Arthington” where “Eunice and two unknown” males

were “standing out on our block” selling drugs. Campbell stated that he, Harvey and Lil-Donny

got out of the car and grabbed the two males, put them in the back seat of the car, and drove off.

Campbell averred that defendant “was not on the street” at that time. Campbell further stated that

he, Harvey and Lil-Donny asked the two males “who were they selling for,” and they responded

that they “were selling drug[ ]s for Willie Lloyd.” Campbell, Harvey and Lil-Donny then “took

the drug[ ]s from” the two males, and took them to the railroad tracks. Campbell stated that Lil-

Donny forced the two males to get on their knees, and Campbell, Harvey and Lil-Donny “shot

and killed” them. Defendant “was not with” them when they killed the victims. Campbell further

stated that “Derrick Harvey used [defendant’s] name to free himself of the crime. [Defendant] is

innocent, convicted for a murder he did not commit[ ].”

¶ 22 Defendant also attached affidavits from Eunice Clark and Terrell Hills.

14 No. 19-2224

¶ 23 Clark averred that she was a witness to “the incidents that resulted in the deaths of” the

victims, and that she testified at “some of the trials,” but not defendant’s trial. Clark stated that in

1993, she was the girlfriend of Williams, who had testified at defendant’s trial. On September

13, 1993, she was standing with Williams near Springfield and Arthington, waiting for “Ted” to

bring them drugs to sell. Clark then saw the victims, who told them that “this was not Ted’s spot

anymore. It belonged to Willie Lloyd.” Ted and another man arrived and told the victims to get

in the car. A group of men “approached the corner from the other direction of the railroad

tracks.” Clark stated that at other trials, she “named names” of people who she saw in this group,

but she never saw, or testified that she saw, defendant. Clark further stated that she was “told by

gang[ ]members loyal to Willie Lloyd” that she had to “testify and name certain names that

Willie Lloyd wanted out of the way.” Clark “knew” that Williams was “told the same thing,” and

she was “aware that [Williams] gave untruthful testimony in an attempt to scam the State’s

attorney for money that we later used to purchase drugs.” Clark averred that she was “coming

forward now because Willie Lloyd has lost a lot of his power and [she] fe[lt] bad that [defendant]

has been convicted of a crime he didn’t commit.”

¶ 24 Hills averred that on September 14, 1993, he was standing across from the funeral home.

He saw defendant enter the funeral home alone, and then exit alone about five minutes later.

Hills then saw defendant enter a convenience store. While defendant was in the convenience

store, Hills saw two cars pull up to the funeral home, and about eight men exited the vehicles and

entered the funeral home. Defendant then exited the convenience store, carrying a small bag.

Defendant greeted Hills, and they “entered into a conversation.” About 10-15 minutes later, the

eight men exited the funeral home and returned to their cars. At that time, multiple police cars

began to pull up. The police attempted to arrest the men, and Hills saw one officer arrest

15 No. 19-2224

defendant. Hills stated that defendant was not with the eight men, and defendant did not run

from police. Hills further stated that his “fear of retaliation” prevented him from “coming

forward earlier.”

¶ 25 Defendant also alleged several other claims, including, among others, a Batson violation,

that he was denied effective assistance based on trial counsel’s failure to object to the

introduction of weapons and funeral home surveillance, and that the court abused its discretion in

“not instructing the jury that the State must prove that [defendant] was ‘legally responsible’ for

the acts of his co-defendant.” Those claims are not at issue in this appeal.

¶ 26 An evidentiary hearing was held in 2019. At the outset of the hearing, defendant’s

counsel noted that defendant’s case had been investigated by the Conviction Integrity Unit of the

State’s Attorney’s Office for “close to three years” and that the defense was “not going forward

on” an affidavit from Clark “[b]ased on an interview conducted by the conviction integrity unit.”

¶ 27 At the hearing, defendant called only Campbell. Campbell testified that he was currently

incarcerated at Pickneyville for a “double murder.” Campbell testified that he pleaded guilty in

August 2011 to the 1993 aggravated kidnapping and murder of the victims. Campbell testified

that only three people—himself, Derrick Harvey, and Donald “Lil-Donny” Blakely—were

involved in the offenses. Campbell testified that defendant had “nothing to do” with the crimes,

and that he was not present when the offense occurred. Campbell speculated that Harvey

implicated defendant to get a lower sentence.

¶ 28 Campbell testified that he was previously housed at Menard Correctional Center and that

defendant was there at the same time. Campbell testified that he provided an affidavit to

defendant after defendant approached him in the commissary at Menard Correctional Center.

16 No. 19-2224

Defendant told Campbell that he was in prison for “something [he] didn’t do” and he “needed

[Campbell’s] help” to “sign an affidavit proving that he wasn’t involved in the crime.”

¶ 29 Campbell denied that he was associated with Thigpen, that Thigpen ran the drug spot,

and that Thigpen was involved in the crimes. He also denied any knowledge of a gang war

between Thigpen and Lloyd. Campbell further testified that Fred Weatherspoon and Antonio

House, two other individuals who made incriminating statements and were charged and

convicted of participating in the victims’ murders, were not involved. See People v. House, 2021

IL 125124, ¶ 5; People v. Weatherspoon, 2011 IL App (1st) 090681-U. Campbell claimed that,

although he remained a member of the Vice Lords gang until 2016, he never discussed the

crimes with anyone and did not learn that anyone had been charged with the crimes until 2009.

Later, Campbell stated that it was 2006 when he learned that defendant and Thigpen had been

arrested for the murders. Campbell was impeached with his convictions, his use of aliases, and

his false statements to investigators. The State introduced Campbell’s videorecorded prison

interview, the guilty plea transcript, and certified copies of Campbell’s convictions.

¶ 30 The trial court denied the petition on September 20, 2019. The court noted that it had

“listened carefully to the evidence presented in this case. I have reviewed voluminous pleadings

and exhibits, affidavits, disks, the transcript, and the record of the trial which [defendant] was

found guilty of the murders of Mr. Purham and Mr. Burch.” The court commented on the

evidence at trial, noting that the trial testimony from Williams was “at odds with” previous

statements he gave in which he stated that defendant “was one of the persons who surrounded

Mr. Purham and Mr. Burch, got them into this car and took them to this area by the railroad

tracks and at the time he did so, [defendant] had a gun.” The court also commented that

defendant’s statement “was to the effect that *** [defendant] had a gun. He was involved in the

17 No. 19-2224

exportation of Mr. Burch and Mr. Purham from this street corner to this area where they were

found, and [defendant] purportedly admitted to [assistant State’s Attorney] Nelson he shot at one

of those persons perhaps striking one of them in the leg.” The court acknowledged that defendant

claimed at trial that his statement had been coerced. The court further explained that the State’s

evidence “did not solely rest” on the statements from Williams and defendant, but that it was

also corroborated by the “recovery of this nine millimeter handgun” on defendant at the time of

his arrest. The court stated that there was “no absolute certainty *** that that gun was one of the

murder weapons. But there was testimony that one of the bullets actually found in the clothing of

one of the victims, a fired bullet, could have been fired from the gun found in connection with

the arrest of [defendant].”

¶ 31 The court then considered the affidavit of Hills, but noted that Hills did not testify, and

that the affidavit, while notarized, was undated. The court stated that it was “difficult to put a lot

of reliance on the affidavit in light of the absence of Mr. Hills from this courtroom and any

opportunity that the parties have to test the efficacy of his claims by virtue of his appearance here

in court.”

¶ 32 Turning to Campbell’s testimony, the court noted that the police did not “cross paths

with” Campbell until “January 2009, 16 years after the murders of Mr. Purham and Mr. Burch”

and after he made inculpatory statements. The court then commented:

“I listened carefully to Mr. Campbell’s testimony. The plain fact of the matter ***

I do not believe him. I do not find him to be a credible witness. I do not find that

his testimony is so conclusive that it raises any reasonable probability that the

result on any retrial would be different. *** For those reasons, *** I’m

respectfully denying the petition.”

18 No. 19-2224

¶ 33 Defendant filed a timely notice of appeal on October 4, 2019. In this court, defendant

argues that the trial court’s denial of his postconviction petition was manifestly erroneous.

Defendant contends that Campbell’s testimony that he was responsible for the offenses, and that

defendant was not present, satisfied the requirements of establishing an actual innocence claim.

¶ 34 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)) provides

a criminal defendant with a mechanism under which he can argue that his or her sentence and

conviction were the result of a substantial denial of his constitutional rights under the United

States Constitution, Illinois Constitution, or both. People v. English, 2013 IL 112890, ¶ 21. A

postconviction proceeding is not an appeal from the judgment, but rather, it is a collateral attack

on the trial court proceedings. Id. To receive postconviction relief, a defendant must show a

substantial deprivation of his federal or state constitutional rights in the trial court proceedings,

which produced the challenged judgment. Id.

¶ 35 A postconviction proceeding operates in three stages. People v. Hodges, 234 Ill. 2d 1, 10

(2009). If a defendant’s postconviction petition survives the first stage, the proceedings advance

to a second stage where counsel is appointed and granted leave to amend the petition into an

appropriate legal form. People v. Turner, 187 Ill. 2d 406, 416-17 (1999). Then, if the petition

makes a substantial showing of a constitutional violation, the matter advances to the third stage,

which is an evidentiary hearing to determine the validity of the petition’s factual allegations.

People v. Pendleton, 223 Ill. 2d 458, 473 (2006). This appeal arises following such a third stage

hearing.

¶ 36 At the third stage, unlike the earlier ones, the petition’s allegations are not presumed true;

a petitioner must prove his allegations by a preponderance of the evidence. People v. Carter,

2017 IL App (1st) 151297, ¶ 132. The circuit court, as the finder of fact at the hearing, makes

19 No. 19-2224

credibility determinations and weighs the evidence. People v. Reed, 2020 IL 124940, ¶ 51. As a

reviewing court, we will not reverse a trial court’s decisions regarding credibility determinations

or fact-finding after a third-stage evidentiary hearing unless it is manifestly erroneous.

Pendleton, 223 Ill. 2d at 473; English, 2013 IL 112890, ¶ 23. Manifest error is error so plain and

indisputable that the opposite conclusion is clearly evident. People v. Coleman, 2013 IL 113307,

¶ 98. This deferential standard of review reflects the understanding that the circuit court is in the

best position to observe and weigh the credibility of the witnesses. People v. Coleman, 183 Ill.

2d 366, 384–85 (1998).

¶ 37 Here, defendant raised a claim of actual innocence. A claim of actual innocence warrants

a new trial if it is supported by evidence that is: (1) newly discovered; (2) material and not

merely cumulative; and (3) of such conclusive character that 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. See People v. Burrows, 172 Ill. 2d 169, 180 (1996). Material means the evidence is

relevant and probative of the defendant's innocence. People v. Smith, 177 Ill. 2d 53, 82-83

(1997). 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. People v. Ortiz, 235 Ill. 2d 319, 336-37

(2009). All three prongs of the test for actual innocence must be satisfied, and a defendant’s

failure to establish a single prong is fatal to an actual innocence claim. See People v. Sanders,

2016 IL 118123, ¶ 47.

¶ 38 Here, the circuit court dismissed defendant’s postconviction petition after it concluded

that Campbell’s testimony was not so conclusive that it would probably change the result on

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retrial. The conclusive character of the new evidence is “the most important element of an actual

innocence claim.” People v. Robinson, 2020 IL 123849, ¶ 47. The evidence need not be

completely dispositive, and the ultimate question is whether the newly discovered evidence

“places the trial evidence in a different light and undermines the court’s confidence in the

judgment of guilt.” Id. ¶¶ 48, 61. This analysis necessarily involves viewing the old and new

evidence together. Id. ¶ 48. In short, “[p]robability, rather than certainty, is the key in

considering whether the fact finder would reach a different result after considering the prior

evidence along with the new evidence.” Id..

¶ 39 Defendant contends that the circuit court reached its decision by applying the incorrect

standard for examining the conclusiveness element. Defendant asserts that the court “applied a

total exoneration standard instead of considering whether Campbell’s testimony put the trial

evidence in a different light and undermined the court’s confidence in the judgment of guilt.”

¶ 40 The only specific statement of the circuit court on which defendant bases his contention

is the following:

“[T]here was no absolute certainty *** that that gun [found on defendant] was

one of the murder weapons. But there was testimony that one of the bullets

actually found in the clothing of one of the victims, a fired bullet, could have been

fired from the gun found in connection with the arrest of [defendant].”

¶ 41 The court’s comment on the trial evidence showing that a firearm found on defendant

was consistent with, but not conclusively established to be, one of the murder weapons, is a

proper comment on the strength of the trial evidence; it does not establish that the court used the

wrong standard in examining his actual innocence claim. Instead, our review of the record

reveals that the court applied the correct standard, concluding that Campbell’s testimony was not

21 No. 19-2224

“so conclusive that it raises any reasonable probability that the result on any retrial would be

different.” The circuit court’s holding was a proper recitation of the conclusiveness prong (see

id., ¶ 47 (evidence must be “of such conclusive character that it would probably change the result

on retrial”)), and we find nothing in the record to support defendant’s contention that the court

applied the wrong standard.

¶ 42 As stated above, it was for the circuit court to determine issues of credibility and resolve

evidentiary conflicts. See Reed, 2020 IL 124940, ¶ 51; People v. Carter, 2021 IL App (4th)

180581, ¶ 68 (“Any time a trial court serves as a fact finder, perhaps the single most important

thing the court can do is say whom it believes and whom it does not. When the trial court favors

us with such a finding, we are at the height of our deference to that court.”). Absent manifest

error, we will defer to the trial court’s credibility determinations at the hearing. People v.

Hotwagner, 2015 IL App (5th) 130525, ¶ 31. The circuit court specifically found that

Campbell’s testimony was incredible. Our review of the record demonstrates no manifest error to

second-guess or overturn the circuit court’s conclusion.

¶ 43 Campbell’s evidentiary hearing testimony that the offenses were committed by Campbell

and two other men, not including defendant, must be considered alongside the evidence at trial.

That evidence includes a written statement of defendant, implicating himself, Thigpen, and

“eight other guys” in the kidnappings and murders of the victims. Defendant’s statement was

corroborated by Williams’s statement and grand jury testimony, implicating Thigpen and

approximately 10 other men, including defendant. These statements were further corroborated by

physical evidence, namely the gun recovered from defendant at his arrest and the parties’

stipulation that the bullet found in Burch’s clothing could have been fired from that gun.

22 No. 19-2224

¶ 44 We also note that Campbell’s testimony contradicts the proposed testimony of Clark,

whose affidavit defendant also attached to his postconviction petition, but elected to not go

forward on at the evidentiary hearing. Although Clark claims defendant was not one of the

offenders, her affidavit is more consistent with the accounts previously given by defendant and

Williams, and the evidence presented at trial, in that she describes Thigpen and a group of men

as committing the offenses. Campbell, by contrast, claims that only he and only two other men

committed the offenses, and that both defendant and Thigpen were not involved.

¶ 45 Based on the trial evidence and the court’s assessment of Campbell’s credibility, we do

not find the trial court’s decision to be manifestly erroneous. Having concluded that defendant

failed to show the conclusiveness of Campbell’s testimony, we need not analyze defendant’s

actual innocence claim under the remaining prongs. See Sanders, 2016 IL 118123, ¶ 47.

¶ 46 Defendant next contends that he is entitled to a remand for further proceedings and

appointment of new postconviction counsel because his postconviction counsel provided

unreasonable assistance by raising, and then “inexplicably abandoning,” certain meritorious

claims. Specifically, defendant asserts that postconviction counsel raised a claim in defendant’s

April 2009 amended petition that trial counsel was ineffective in failing to “present evidence”

and argue “that [defendant] was not running from police” at the hearing on the suppression

motion. Defendant asserts that postconviction counsel then abandoned that claim in his February

2012 amended petition, and that postconviction counsel’s decision to do so was unreasonable.

Defendant also contends that postconviction counsel was unreasonable in raising and then

abandoning the argument that appellate counsel was also ineffective for “failing to raise this

issue on appeal.”

23 No. 19-2224

¶ 47 The sixth amendment right to counsel does not extend to postconviction petitioners;

counsel is afforded in collateral proceedings under the Act only as a matter of legislative grace, if

at all. People v. Cotto, 2016 IL 119006, ¶ 29 (citing People v. Hardin, 217 Ill. 2d 289, 299

(2005)). Consequently, criminal defendants seeking relief in postconviction proceedings have no

constitutional right to counsel, effective or otherwise. Postconviction petitioners are entitled to

only “the level of assistance required by the Act.” People v. Perkins, 229 Ill. 2d 34, 42 (2007).

The required quantum of assistance has been judicially deemed to be a “reasonable level,” a

standard that is significantly lower than the one mandated at trial by our state and federal

constitutions. Pendleton, 223 Ill. 2d at 472.

¶ 48 Commensurate with the lower reasonable assistance standard mandated in postconviction

proceedings, Illinois Supreme Court Rule 651 (eff. July 1, 2017) limits the requisite duties of

postconviction counsel. They are required only to certify that they have “consulted with

petitioner by phone, mail, electronic means or in person,” “examined the record” as needed to

shape the defendant’s pro se claims, and “made any amendments to the petitions filed pro se that

are necessary for an adequate presentation” of those claims. Ill. S. Ct. R. 651(c) (eff. July 1,

2017). Postconviction counsel may create a rebuttable presumption that reasonable assistance

was provided by filing a Rule 651 certificate. Perkins, 229 Ill. 2d at 42, 44.

¶ 49 Here, postconviction counsel filed a Rule 651 certificate, in which he stated that he had

“consulted with defendant, both by legal visit and legal mail, to ascertain his contentions of

deprivations of his constitutional rights,” and that he “obtained and examined the record, trial

transcript, and relevant documents.” Postconviction counsel further stated: ”Defendant and I

concur that the First [sic] Amended Petition for Post-Conviction Relief, filed February 27, 2012,

adequately states defendant’s claims of deprivations of his constitutional rights.” The filing of

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that certificate, although not dispositive, gives rise to a rebuttable presumption that counsel

provided reasonable assistance. See People v. Profit, 2012 IL App (1st) 101307, ¶ 19 (“The

filing of a Rule 651(c) certificate gives rise to a rebuttable presumption that post-conviction

counsel provided reasonable assistance.”).

¶ 50 Turning to defendant’s contentions, we initially disagree with defendant’s

characterization that the claims allegedly “abandoned” by postconviction counsel were

previously raised in his 2009 first amended petition. Instead, in the 2009 amended petition,

postconviction counsel argued that trial counsel was ineffective “for failing to argue that running

from an officer, which [defendant] vehemently denies he did, equates to probable cause to stop

and arrest *** [and that] [c]ounsel on appeal was also ineffective in this regard.” Presumably,

that statement contains a typographical error, and counsel intended to argue that running from an

officer does not equate to probable cause to stop and arrest. Nonetheless, this argument was

actually made by counsel at the hearing on defendant’s suppression motion when counsel

argued: “He arrested [defendant] because he was running across the street. And if that is

probable cause, Your Honor, then -- I do not believe it’s probable cause, and I think that the gun

and the statements should be suppressed.” Similarly, appellate counsel did challenge the court’s

denial of defendant’s motion to suppress on appeal, albeit on grounds of voluntariness. But

regardless, the argument in the 2009 amended petition that running from an officer does not

amount to probable cause, is distinct from the argument that defendant posits should have been

raised—that trial counsel should have presented evidence and argued that defendant was not

running at all, and that appellate counsel should have also raised the same issue on appeal.

¶ 51 In his reply brief, defendant acknowledges that postconviction counsel’s framing of

defendant’s claim was “admittedly *** awkward.” Defendant contends, however, that even if the

25 No. 19-2224

claim was not raised in the 2009 amended petition, postconviction counsel’s failure to “properly

shape the claim” still supports his contention that postconviction counsel was unreasonable.

¶ 52 The problem, however, is that defendant did not raise any claim in his pro se petitions

that could be read as challenging regarding trial or appellate counsel’s effectiveness in this

regard. As the Supreme Court has repeatedly held, postconviction counsel’s duty to provide

reasonable assistance extends only to those claims that the petitioner himself raised in his pro se

petition; counsel has no obligation to add new claims. See Pendleton, 223 Ill. 2d at 476 (“While

postconviction counsel *** may raise additional issues if he or she so chooses, there is no

obligation to do so.”); People v. Davis, 156 Ill. 2d 149, 164 (1993) (“Post-conviction counsel is

only required to investigate and properly present the petitioner’s claims.”) (emphasis in original);

People v. Vasquez, 356 Ill. App. 3d 420, 425 (2005) (“the reasonable representation of

postconviction counsel does not include the exploration, investigation and formulation of

potential claims.”) (citation and quotation marks omitted).

¶ 53 In his reply brief, defendant asserts that he did raise this claim in his 2002 petition. In that

petition, defendant argued that the court abused its discretion in denying his motion to suppress

because he was not committing any crime when he was arrested, and he was just “minding his

own business.” Defendant contends that his statement should have put postconviction counsel

“on notice” that defendant was not running away, and that the stop was in violation of his Fourth

Amendment rights. Defendant’s complaint, however, was with the trial court’s decision, and not

any action or inaction of trial or appellate counsel. Because defendant’s pro se petitions did not

include any allegations that could be interpreted as a challenge to trial counsel’s effectiveness in

litigating his suppression motion, or appellate counsel’s effectiveness in failing to raise the claim

26 No. 19-2224

on appeal, postconviction counsel had no obligation to litigate those unraised claims. See

Pendleton, 223 Ill. 2d at 476; Davis, 156 Ill. 2d at 164; Vasquez, 356 Ill. App. 3d at 425.

¶ 54 We acknowledge, however, that, like here, a petitioner is often proceeding pro se in the

initial filing of a postconviction petition. Accordingly, at the first stage of postconviction

proceedings, a petition will be dismissed only if it is “frivolous or patently without merit,” i.e.,

where “the allegations in the petition, taken as true and liberally construed, fail to present the

‘gist of a constitutional claim.’ ” People v. Edwards, 197 Ill. 2d 239, 244 (2001). A pro se

petitioner “need only present a limited amount of detail,” and is not required to include “legal

arguments or [citations] to legal authority.” People v. Gaultney, 174 Ill. 2d 410, 418 (1996)).

Even at the second stage of postconviction proceedings, we continue to liberally construe a

petitioner’s allegations, and “the dismissal of a post-conviction petition is warranted only when

the petition’s allegations of fact—liberally construed in favor of the petitioner and in light of the

original trial record—fail to make a substantial showing of imprisonment in violation of the state

or federal constitution.” Coleman, 183 Ill. 2d at 382.

¶ 55 Nonetheless, even if we were to liberally construe defendant’s pro se petition itself, or in

combination with the 2009 first amended petition, to conclude that defendant raised the claims

he presents in this appeal, we would still conclude that defendant has not shown that

postconviction counsel provided an unreasonable level of assistance by not raising, or

“inexplicably abandoning” the claims. The record supports postconviction counsel’s choice not

to raise effectiveness challenges based on trial counsel’s failure to “present evidence” and argue

“that [defendant] was not running from police” at the hearing on the suppression motion.

¶ 56 Specifically, defendant contends that trial counsel performed deficiently by failing “to

present [defendant] to testify” that he was not running from the police at the time of his arrest.

27 No. 19-2224

Defendant also alleges that trial counsel performed deficiently in failing to impeach Officer

Norris with his arrest report, which stated that when the officer first saw defendant, he was

“standing there and that he ran subsequently,” and which did not indicate that the officer ordered

defendant to stop.

¶ 57 To establish a claim of ineffective assistance of counsel, a defendant must demonstrate

both (1) deficient performance, i.e., that counsel’s performance was objectively unreasonable

under prevailing professional norms; and (2) prejudice, i.e., that there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been

different. People v. Downs, 2015 IL 117934, ¶ 13; Strickland v. Washington, 466 U.S. 668, 687

(1984). Failure to satisfy either prong defeats the claim. People v. Patterson, 192 Ill. 2d 93, 107

(2000).

¶ 58 To establish that his counsel performed deficiently, defendant must overcome the strong

presumption that counsel’s actions stemmed from sound trial strategy. People v. Ramsey, 239 Ill.

2d 342, 433 (2010). Effective assistance of counsel is competent, not perfect, representation.

People v. Vega, 408 Ill. App. 3d 887, 889 (2011). Neither mistakes in strategy, nor the fact that

another attorney with the benefit of hindsight would have handle a case differently, indicates that

trial counsel was incompetent. People v. Mims, 403 Ill. App. 3d 884, 890 (2010). Decisions

regarding which evidence to present and which witnesses to call are matters of trial strategy

(People v. Williams, 2017 IL App (1st) 152021, ¶ 38), and such decisions will not ordinarily

support a claim of ineffective assistance of counsel (Peterson, 2017 IL 120331, ¶ 80). Counsel’s

decisions concerning the method and substance of his arguments during a suppression hearing

are also matters of strategy and, consequently, not generally grounds for a claim of

ineffectiveness. See People v. Hillenbrand, 121 Ill. 2d 537, 548 (1988). Such strategic decisions

28 No. 19-2224

only rise to the level of ineffective assistance if they were so unsound that there was no

meaningful adversarial testing. People v. West, 187 Ill. 2d 418, 433 (1999).

¶ 59 Similarly, advice to a defendant regarding whether to testify is a matter of trial strategy.

Such advice will not constitute ineffective assistance of counsel absent evidence suggesting that

counsel “refused to allow the defendant to testify.” People v. Youngblood, 389 Ill. App. 3d 209,

217 (2009). Here, defendant has made no claim that he informed trial counsel that he wanted to

testify at the first suppression hearing, and trial counsel refused. Moreover, there is an obvious

reason why trial counsel would have made a strategic choice not to present defendant’s

testimony at the first suppression hearing. Specifically, since defendant later testified at trial,

any discrepancies in his testimony at the first suppression hearing would have affected the

credibility of his trial testimony. Accordingly, trial counsel may have chosen not to present

defendant’s testimony at the first suppression hearing, thereby limiting the impeachment

evidence that would be available against him. See People v. Sturgis, 58 Ill. 2d 211, 216 (1974)

(“The testimony of a defendant *** in conjunction with his motion to suppress evidence may not

be introduced by the State directly in its case in chief but may be used for purposes of

impeachment should the defendant choose to testify at trial.”); People v. Mulero, 176 Ill. 2d 444,

465 (1997) (holding that “it was proper to impeach defendant with her prior inconsistent

testimony from the suppression hearing.”).

¶ 60 In these circumstances, and given the risks involved in having defendant testify, it was

reasonable for counsel to make a strategic decision to argue, as he did, that even if Officer Norris

observed defendant running, such flight did not amount to probable cause to arrest him.

¶ 61 Decisions on cross-examination and impeachment of witnesses are also matters of trial

strategy that are generally immune to claims of ineffective assistance of counsel. People v.

29 No. 19-2224

Pecoraro, 175 Ill. 2d 294, 326 (1997). The manner in which counsel cross-examines a particular

witness involves the exercise of professional judgment, and is entitled to substantial deference

from a reviewing court. Id. at 326-27. A defendant can only prevail on a claim of ineffective

assistance of counsel by showing that counsel’s approach to the cross-examination was

objectively unreasonable. Id. at 327.

¶ 62 We find the inconsistencies between the arrest report and Officer Norris’s testimony of

which defendant complains to be relatively minor. Further, Officer Norris was cross-examined

about the arrest report in his trial testimony, and he explained that the notation in the arrest report

that defendant was “standing there” before running, was a mistake; and that the arrest report did

not include that he told defendant to stop, because it was only one-page long, and included only a

“brief synopsis or summary of the incidents or facts surrounding the arrest.” Given the relatively

minor nature of those inconsistencies, and trial counsel’s reasonable strategy to argue at the

suppression hearing that running does not establish probable cause, defendant cannot overcome

the “strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Strickland, 466 U.S. at 689.

¶ 63 Finally, defendant contends that appellate counsel was ineffective for filing to “raise the

trial court’s error [in denying the motion to suppress evidence based upon unlawful arrest] and

trial counsel’s ineffectiveness on appeal.”

¶ 64 Claims of ineffective assistance of appellate counsel are considered using the same

standard as those alleging ineffective assistance of trial counsel. Childress, 191 Ill. 2d at 175. To

establish that appellate counsel was ineffective, defendant must show both that appellate

counsel’s performance was deficient and that appellate counsel's error was prejudicial. People v.

Robinson, 217 Ill.2d 43, 47 (2005).

30 No. 19-2224

¶ 65 A defendant alleging that appellate counsel was ineffective must show that the failure to

raise an issue on direct appeal was objectively unreasonable and that the decision prejudiced

petitioner. People v. West, 187 Ill. 2d 418, 435 (1999). If the underlying issue is not meritorious,

the defendant did not suffer prejudice from counsel's failure to raise it on direct appeal. Id.

¶ 66 Appellate counsel is not obligated to raise every conceivable contention of error but may

exercise professional judgment in selecting from the many potential claims that might be raised

on appeal. English, 2013 IL 112890, ¶ 33; People v. Simms, 192 Ill. 2d 348, 362 (2000). If

appellate counsel determines that certain issues have no merit, appellate counsel is not

incompetent from refraining to raise those issues. Id. However, if appellate counsel's appraisal of

the merits of an issue or issues is clearly wrong, then the question of counsel’s competence is at

issue. Id. On review, we construe appellate counsel’s decisions on issues raised on appeal with

substantial deference. People v. Borizov, 2019 IL App (2d) 170004, ¶ 14. We also must examine

the merits of the underlying issue because a defendant is not prejudiced by appellate counsel's

failure to raise an issue that is without merit. Simms, 192 Ill. 2d at 362.

¶ 67 As we previously concluded that defendant has not established ineffective assistance of

trial counsel, we may quickly dispose of defendant’s argument that appellate counsel was

ineffective for failing to raise “trial counsel’s ineffectiveness on appeal.” Because defendant’s

claim of ineffective assistance of trial counsel is nonmeritorious, it necessarily follows that

appellate counsel was not ineffective for failing to raise the issue of trial counsel’s

ineffectiveness on appeal. See People v. Rogers, 197 Ill. 2d 216, 222 (2001).

¶ 68 We next turn to defendant’s argument that appellate counsel was ineffective for failing to

challenge the trial court’s denial of the motion to suppress evidence based upon his allegedly

“unlawful arrest.” Underlying defendant’s ineffectiveness argument is his contention that his

31 No. 19-2224

arrest was unlawful. Defendant contends that Norris lacked probable cause to search him because

no officer testified that they saw defendant with Williams or “doing anything giving rise to

probable cause or reasonable suspicion.” Defendant also contends that the search was not

reasonable under Terry v. Ohio, 392 U.S. 1 (1968), because the officers did not specifically

identify defendant as being “with the group of people with Williams at the funeral.”

¶ 69 As the trial court held at the suppression hearing, the evidence showed that, through

information provided by a reliable confidential informant, the officers had knowledge that

Williams, the leader of a faction of the Unknown Vice Lords, would be attending the funeral

with several armed individuals. The officers conducted surveillance, during which officers saw

ten to fifteen men, including Williams, wearing black hooded sweatshirts enter and leave the

funeral home together. While defendant was not specifically identified as being a part of the

group with Williams at the funeral, the officers testified that during their surveillance, they were

unable to recognize many of the individuals with Williams because the men were wearing black

hooded sweatshirts with the hoods up. After other officers moved in to approach part of the

group of individuals who had been seen with Williams, Officer Norris saw defendant running

toward Officer Norris, and away from the other officers. Defendant was wearing clothing

consistent with what was observed on the group of men with Williams. The trial court found that

at that point, Officer Norris “acted reasonably in ordering the defendant to stop.” Defendant,

however, fled into an alley and hid behind a dumpster. The court further found that Officer

Norris had “reasonable suspicion to pursue his investigation” further, and that he was reasonable

in conducting a protective pat-down search based on a reasonable belief that defendant “may be

armed and dangerous.” Pursuant to that search, Officer Norris found a .9 millimeter weapon in

the defendant’s waistband, which had the words “Vice Lords” scratched into the wooden handle.

32 No. 19-2224

The court concluded that based on “the totality of the circumstances *** the officers acted

reasonably.”

¶ 70 In these circumstances, it was as reasonable for Officer Norris to believe that defendant

was part of the group of men who had been observed with Williams, and Officer Norris’s pat

down for weapons fits within the framework of Terry v. Ohio, 392 U.S. 1 (1968). Terry instructs

that a police officer may stop and detain a person without probable cause to investigate possible

criminal activity if the officer can point to specific, articulable facts, which, taken together with

rational inferences, reasonably warrant the intrusion. Id. at 21; see also People v. Colyar, 2013 IL

111835, ¶ 45 (when an officer has a reasonable suspicion that an individual may be armed and

dangerous, the officer may take necessary measures to determine whether the person is armed

and to neutralize any threat of physical harm). As the Terry court concluded:

“we cannot blind ourselves to the need for law enforcement officers to protect

themselves and other prospective victims of violence in situations where they may

lack probable cause for an arrest. When an officer is justified in believing that the

individual whose suspicious behavior he is investigating at close range is armed

and presently dangerous to the officer or to others, it would appear to be clearly

unreasonable to deny the officer the power to take necessary measures to

determine whether the person is in fact carrying a weapon and to neutralize the

threat of physical harm.” Terry, 392 U.S. at 24.

¶ 71 The Terry court further admonished that “[t]he officer need not be absolutely certain that

the individual is armed; the issue is whether a reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of others was in danger.” Id. at 27.

33 No. 19-2224

¶ 72 Reviewing the actions of Officer Norris under an objective standard, a reasonably

cautious individual in a similar situation could reasonably suspect that defendant was armed and

dangerous, implicating officer safety and the safety of others. See Colyar, 2013 IL 111835, ¶ 43.

Thus, under the totality of the circumstances, Officer Norris was justified in conducting a Terry

pat down, and an appellate challenge to the denial of defendant’s motion to suppress based on an

unlawful arrest would not have been meritorious. Accordingly, appellate counsel’s decision not

to raise such a challenge was not objectively unreasonable decision, nor would there be a

reasonable probability of a different outcome had the issue been raised. In these circumstances,

postconviction counsel was not unreasonable in failing to raise a challenge to appellate counsel’s

effectiveness in his amended postconviction petition.

¶ 73 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.

¶ 74 Affirmed.