2017 IL App (1st) 152021 No. 1-15-2021 Opinion filed June 30, 2017 Fifth Division ______________________________________________________________________________
IN THE APPELLATE COURT OF ILLINOIS FIRST DISTRICT ______________________________________________________________________________ THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Respondent-Appellee, ) Cook County. ) v. ) No. 96 CR 22798 ) OTIS WILLIAMS, ) Honorable ) Michael B. McHale, Petitioner-Appellant. ) Judge, presiding.
JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.
OPINION
¶1 Defendant Otis Williams, who was convicted of murder, presented alibi testimony at his
third-stage postconviction evidentiary hearing in support of his claim of ineffective assistance of
trial counsel. At the close of defendant’s evidence, the State moved for a directed finding, and
the circuit court granted that motion. The circuit court found that the alibi witnesses were not
credible and defendant thus failed to show trial counsel rendered ineffective assistance by not
interviewing or calling those alibi witnesses. No. 1-15-2021
¶2 Defendant argues that (1) the circuit court failed to apply the correct burden of proof and
procedural rules when it granted the State’s motion for a directed finding at the close of
defendant’s evidence and (2) the alibi testimony was unimpeached and sufficient to raise doubts
about the reliability of the original verdict and the circuit court usurped the role of the jury by
making ultimate determinations about witness credibility.
¶3 For the following reasons, we hold that the circuit court’s findings about witness
credibility and the weight and quality of the evidence were not against the manifest weight of the
evidence. Accordingly, we affirm the judgment of the circuit court that granted the State a
directed finding and denied defendant postconviction relief at the third-stage evidentiary hearing.
¶4 I. BACKGROUND
¶5 Defendant Otis Williams was found guilty in 1999 of the first degree murder of Gregory
Sharp and aggravated battery with a firearm of Felicia Robinson. The street-gang-related
shooting occurred on November 28, 1994, while Sharp and Robinson sat in Sharp’s car at a
stoplight on an expressway ramp in Chicago.
¶6 At the 1999 jury trial, three members of the street gang testified against defendant, who
had accompanied them, along with numerous other street gang members, to carry out their gang
leader’s order to kill Sharp, a fellow gang member. See People v. Williams, 332 Ill. App. 3d 254,
257-59 (2002). Specifically, Delano Finch, Ramone Finch, and Kelly Quarles testified about
their gang’s hierarchy and rules, the order to kill Sharp, their preparation and meeting before
driving to find Sharp, and observing defendant and other gang members approach Sharp’s car
and fire their guns multiple times into Sharp’s car.
¶7 Delano and Ramone testified that they were incarcerated at the time of their testimony.
Delano had been indicted on about 50 counts in a drug conspiracy and faced a minimum
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sentence of life in prison. In exchange for his testimony against defendant and many other gang
members, Delano received a sentence of 15 years’ imprisonment. Ramone received a reduced
sentence of 8 years’ imprisonment for armed robbery and home invasion in exchange for his
testimony against defendant, for which the sentencing range was 30 to 60 years. Quarles denied
that he was offered or promised a deal in exchange for his cooperation at the time that he gave a
statement to law enforcement about various crimes, including the murder of Sharp. Rather,
Quarles testified that the 60-month prison sentence he received for pleading guilty to
racketeering was reduced to 17 months following a motion to reduce sentence, during which his
counsel informed the court of Quarles’s cooperation. Quarles denied knowledge of an offer for a
reduced sentence in exchange for testimony against defendant.
¶8 Defendant was sentenced to consecutive prison terms of 45 years for the first degree
murder of Sharp and 10 years for the aggravated battery with a firearm of Robinson. On direct
appeal, this court affirmed his conviction and sentence for the first degree murder of Sharp but
reversed defendant’s conviction and sentence for the aggravated battery with a firearm of
Robinson because the evidence did not show that she had been injured. People v. Williams, 332
Ill. App. 3d 254 (2002).
¶9 Defendant’s initial 2003 pro se postconviction petition was summarily dismissed, but this
court reversed that dismissal and remanded the cause for second-stage postconviction
proceedings because the summary dismissal occurred after the 90-day ruling period had expired
for first-stage petitions. People v. Williams, No. 1-03-3233 (Mar. 3, 2005) (unpublished
summary order under Supreme Court Rule 23(c)). On remand, defendant’s 2009 amended
postconviction petition alleged he was denied effective assistance of counsel because trial
counsel failed to interview and call alibi witnesses. Defendant also filed in 2010 a petition for
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relief from judgment under section 2-1401 of the Code of Civil Procedure (735 ILCS 5/2-1401
(West 2010)), contending newly discovered evidence established that the State’s occurrence
witnesses had perjured themselves. The State moved to dismiss both the postconviction and
section 2-1401 petitions, and the circuit court granted those motions.
¶ 10 On appeal, this court affirmed the dismissal of defendant’s section 2-1401 petition for
relief from judgment. People v. Williams, 2013 IL App (1st) 110304-U. However, this court
reversed the second-stage dismissal of defendant’s postconviction petition and remanded that
petition for an evidentiary hearing. This court, taking defendant’s well-pleaded facts as true, held
that defendant made a substantial showing that trial counsel’s failure to call one alibi witness and
investigate two other alibi witnesses was objectively unreasonable. This court also held that
defendant made a substantial showing of prejudice because the only evidence linking him to the
crime scene was the testimony of the State’s three occurrence witnesses, Delano, Ramone, and
Quarles, who had received significantly reduced sentences in exchange for their testimony, and
defendant’s proposed alibi witnesses could have tested their credibility.
¶ 11 At the evidentiary hearing on remand in November 2014, defendant’s sister Gabrielle
Williams testified that, on the date of the offense, her nephew had a birthday party at her
mother’s house on South Wallace Street in Chicago. The party began around noon and ended
about 7 or 8 p.m. The party was held throughout the house, and defendant was responsible for
“managing the kids” in the television room. Gabrielle admitted that she was not in defendant’s
presence during the entire party; however, she asserted that he was supervising children between
3 and 5 p.m., when the offense occurred, and Gabrielle never lost sight of him during those two
hours because her mother’s house was “not that big.” Gabrielle never saw defendant leave the
party. She did not testify at defendant’s trial and did not speak with his trial counsel. She made
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several attempts to contact trial counsel each week over the two- to three-month period prior to
the trial. Also, she was in the courtroom once during the trial but never spoke to counsel. She
was unable to recall the names of everyone who attended the party and similar details or the
specific dates or times she attempted to contact trial counsel. Her sister Glynda contacted her in
2006 about submitting a postconviction petition affidavit in defendant’s case. Gabrielle’s
affidavit did not list her sisters Gail, Glynda, or Ginger as being at the birthday party.
¶ 12 Defendant’s sister Gail Alexander testified consistently with Gabrielle about defendant’s
supervision of several children in the television room at the birthday party. Gail never saw him
leave the party, but she did not watch him constantly and spent time with other people at the
party. Gail spoke with defendant’s trial counsel about her alibi testimony about one month before
the trial in counsel’s office, and he told her that she would testify at the trial. On the first day of
the trial, she followed counsel’s instructions to wait outside the courtroom but was never called
to testify. Gail thought she asked counsel why she was not called as a witness but did not
remember his answer. Gail did not remember specifically when she began leaving messages for
counsel or when she received the postconviction petition affidavit to sign, who gave it to her, or
how she obtained it.
¶ 13 Defendant’s sister Glynda Williams testified that she had contact with defendant
throughout the family party, never lost sight of him, and would have noticed if he had left before
the party ended at about 7 or 8 p.m. Glynda tried to contact defendant’s trial counsel by
telephone for several months before the trial and left messages, but counsel never returned her
calls until a week before the trial. After a conversation with trial counsel, Glynda went to the
courthouse and spoke with him again; her mother and sisters were present for this conversation,
which occurred outside the courtroom. Counsel told them they would testify and should wait
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outside the courtroom; however, they were never called as witnesses. When Glynda questioned
counsel about this, he did not give her a reason for not calling them as witnesses and said they
could win the case on appeal. Glynda acknowledged that her postconviction petition affidavit did
not specify when or how many times she tried to contact counsel, the content of the messages she
left him, any reference to her meeting with counsel a week before the trial, or any details about
that conversation.
¶ 14 Defendant testified that on the date the shooting occurred he was at his family’s birthday
party from about 10 a.m. to 8 p.m. and never left during the party. He spoke with trial counsel
several times after his 1996 arrest and before the trial began in November 1999. They discussed
the subject of his alibi after he was released on bond and before and after discovery had
concluded. Defendant gave counsel a list of the names of family members and friends who could
testify as alibi witnesses and their contact information. However, several family members,
including defendant’s sisters, told him trial counsel did not contact them. When defendant was
incarcerated in the summer of 1999, he met with counsel and reminded him of the alibi
testimony. Counsel responded that “he [was] still looking into it.” They discussed putting on
witnesses, and counsel said they would “see how it goes.” During the trial, defendant’s mother
spoke to him by telephone and said trial counsel made defendant’s sisters wait outside the
courtroom during the trial. Counsel never explained to defendant why counsel did not call
defendant’s sisters as witnesses. Defendant acknowledged that his affidavit did not mention the
birthday party alibi or include a complete list of the people who could verify his alibi.
¶ 15 At the close of defendant’s evidence, the State moved for a directed finding, arguing that
the alibi witnesses were not credible and defendant failed to meet his burden to show his trial
counsel was ineffective. The circuit court granted the State’s motion for a directed finding. The
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court found that defendant’s alibi witnesses were not credible. Specifically, Gabrielle’s claim
that she never lost sight of defendant from 3 to 5 p.m. was “farfetched” because there were seven
rooms and a basement in the house, there were many guests at the birthday party, and Gabrielle
had been engaged with other people at the party. Also, Gabrielle’s affidavit lacked detail, she
could not recall facts or details about important information, and she was evasive in answering
questions. Concerning Gail, the court found that portions of her testimony were incredible and
contradicted her affidavit. The court concluded it was reasonable to infer trial counsel realized
after he met Gail that the alibi testimony would be weak and made a strategic decision not to
present it. Concerning Glynda, the court found her testimony evasive, defensive, flippant, hostile,
and absolutely unbelievable. Her claim to know where defendant was at all times at the party
even though they were in different rooms was disingenuous. Finally, defendant’s testimony was
self-serving, and his vague affidavit, which was only three sentences long and gave no details
about his alibi or the birthday party, was calculated to avoid impeachment by filling in the details
later at the evidentiary hearing. The court concluded there was no reasonable probability that the
outcome of defendant’s jury trial would have been different if counsel had presented the alibi
testimony at the trial.
¶ 16 Defendant timely appealed.
¶ 17 II. ANALYSIS
¶ 18 On appeal, defendant argues (1) the circuit court’s decision to direct a finding in favor of
the State without requiring the State to present any evidence was procedurally improper, and
(2) the circuit court usurped the role of the jury by making ultimate credibility determinations
about the alibi testimony, which defendant contends was consistent, not impeached, and
sufficient to raise doubts about the reliability of the original verdict.
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¶ 19 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) enables a
defendant to challenge a conviction for violations of federal or state constitutional rights by
showing that he suffered a substantial deprivation of those rights during the proceedings that
resulted in the conviction. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). A postconviction
proceeding is not an appeal from the judgment of conviction but is a collateral attack on the trial
court proceedings. People v. Petrenko, 237 Ill. 2d 490, 499 (2010).
¶ 20 Postconviction proceedings may go through three stages; in the first stage, the circuit
court may dismiss the petition if the court finds it is frivolous and without merit. Pendleton, 223
Ill. 2d at 472; 725 ILCS 5/122-2.1(a)(2) (West 2014). If the petition is not dismissed, it moves on
to the second stage, during which the State may move to dismiss the petition following any
amendments made to the petition by defendant’s counsel. Pendleton, 223 Ill. 2d at 472; 725
ILCS 5/122-5 (West 2014). If the State does not file a motion to dismiss or the motion is denied,
then the proceedings move to the third stage, in which the defendant may present evidence to
support his petition. Pendleton, 223 Ill. 2d at 472-73; 725 ILCS 5/122-6 (West 2014).
¶ 21 “Throughout the second and third stages of a postconviction proceeding, the defendant
bears the burden of making a substantial showing of a constitutional violation.” Pendleton, 223
Ill. 2d at 473. The dismissal of a postconviction petition at the second stage is warranted only
when the petition’s allegations of fact, liberally construed in favor of the defendant and in light
of the original trial record, fail to make a substantial showing of a constitutional violation.
People v. Coleman, 183 Ill. 2d 366, 382 (1998). The second stage of review tests the legal
sufficiency of the petition; the circuit court does not engage in any fact finding or credibility
determinations, and the well-pleaded allegations in the petition are taken as true unless
affirmatively refuted by the record. People v. Domagala, 2013 IL 113688, ¶ 35. We review
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de novo a second-stage dismissal of a postconviction petition. People v. Vincent, 226 Ill. 2d 1, 14
(2007).
¶ 22 However, at a third-stage evidentiary hearing, the defendant must show, by a
preponderance of the evidence, a substantial violation of a constitutional right. People v.
Coleman, 2013 IL 113307, ¶ 92. The circuit court has wide discretion in deciding what evidence
to consider (People v. Coleman, 206 Ill. 2d 261, 278 (2002)) and acts as the finder of fact at the
evidentiary hearing, resolving any conflicts in the evidence and determining the credibility of
witnesses and the weight to be given particular testimony (Domagala, 2013 IL 113688, ¶ 34).
When a petition is advanced to a third-stage evidentiary hearing, where fact finding and
credibility determinations are involved, we will not reverse a circuit court’s decision unless it is
manifestly erroneous. Pendleton, 223 Ill. 2d at 473; see People v. Hughes, 329 Ill. App. 3d 322,
325 (2002) (a ruling is manifestly erroneous only if it contains error that is clearly evident, plain,
and indisputable). However, if no fact finding or credibility determinations were involved, then
our review of a third-stage dismissal is de novo. Pendleton, 223 Ill. 2d at 473.
¶ 23 A. Directed Finding at a Postconviction Evidentiary Hearing
¶ 24 Defendant contends he should be awarded a new trial because the circuit court used the
wrong procedure to address the wrong question when it granted the State’s motion for a directed
finding after the defense completed the presentation of its alibi evidence at the third-stage
evidentiary hearing. Defendant argues that the procedural posture presented by the State’s third-
stage motion for a directed finding required the circuit court to construe all the evidence in the
light most favorable to defendant and refrain from making any witness credibility
determinations. Accordingly, the circuit court should have assumed the truth of the testimony of
defendant and his three sisters, i.e., that defendant was attending a birthday party miles away
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from the crime scene and trial counsel knew about but failed to use this alibi testimony to
challenge the credibility of the State’s three compromised occurrence witnesses, Delano,
Ramone, and Quarles. Defendant argues the circuit court, in the context of the State’s motion for
a directed finding, was limited to determining whether defendant’s evidence, viewed in the light
most favorable to defendant, was sufficient to make out merely a prima facie case of a
substantial showing of ineffective assistance of trial counsel. Defendant contends the circuit
court “erred badly in granting a directed verdict, based on a credibility finding it had no legal
authority to make.”
¶ 25 Defendant also argues that this court should grant defendant a new trial because
remanding this matter to the circuit court for a continuation of the evidentiary hearing would be
futile. According to defendant, the only way the State could overcome defendant’s substantial
showing of ineffectiveness of trial counsel would be to demonstrate that trial counsel adequately
investigated the alibi and made a reasonable decision to reject the alibi testimony. Defendant
speculates that any such evidence would necessarily require the testimony of defendant’s trial
counsel, but that would be impossible because trial counsel’s Illinois attorney registration
information indicates he was transferred to inactive status in May 2010 as “incapacitated from
continuing to practice law” and his obituary indicates he died in March 2015 of complications
from Alzheimer’s disease. We note, however, that the record indicates trial counsel, who is now
deceased, was assisted by another attorney during defendant’s trial.
¶ 26 Defendant’s appeal essentially attempts to apply the standard for a motion for a directed
finding in a criminal trial to his third-stage postconviction evidentiary hearing. In a criminal trial,
the directed finding standard provides that “[w]hen, at the close of the State’s evidence or at the
close of all the evidence, the evidence is insufficient to support a finding or verdict of guilty the
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court may and on motion of the defendant shall make a finding or direct the jury to return a
verdict of not guilty, enter a judgment of acquittal and discharge the defendant.” 725 ILCS
5/115-4(k) (West 2014). The purpose of a motion for a directed finding in a criminal trial is to
test the constitutional sufficiency of the evidence by determining whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable doubt. People v. Connolly, 322 Ill. App.
3d 905, 914-15 (2001). The defendant, in moving for a directed finding, admits the truth of the
facts stated in the prosecution’s evidence for purposes of the motion, and the trial judge does not
pass upon the weight of the evidence or witness credibility in testing the sufficiency of the
evidence to withstand a motion for a directed finding. Id. at 915. A motion for a directed finding
in a criminal case presents a question of law, which is reviewed on appeal de novo. Id. at 917-18.
¶ 27 We reject defendant’s attempt to apply the criminal trial directed finding standard to his
postconviction evidentiary hearing. We also reject defendant’s assertion that an appeal from a
directed finding granted at a stage-three postconviction proceeding must be reviewed de novo.
¶ 28 “A proper standard of review cannot be articulated without first examining the
substantive and procedural backdrop against which the appealed order or ruling arose.” Coleman,
183 Ill. 2d at 378. Our supreme court has described the nature of actions brought under the Act
as being “civil in character” and noted that postconviction proceedings are sui generis and the
“remedy provided by the Act does not fall strictly into the category of either a criminal or civil
proceeding.” (Internal quotation marks omitted.) People ex rel. Daley v. Fitzgerald, 123 Ill. 2d
175, 181 (1988); see also People v. Ligon, 239 Ill. 2d 94, 103 (2010). Because postconviction
proceedings are civil in nature, courts may enter orders in postconviction proceedings as are
“generally provided in civil cases.” See 725 ILCS 5/122-5 (West 2014). Accordingly, a court
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presiding over a postconviction proceeding can apply the provisions of the Code of Civil
Procedure (Code) (735 ILCS 5/1-101 et seq. (West 2014)) unless those provisions conflict with
the Act, and the Code can be looked to for guidance if the Act is silent concerning a procedural
matter. People v. Harris, 2016 IL App (1st) 141778, ¶ 16; People v. English, 381 Ill. App. 3d
906, 909-10 (2008).
¶ 29 Section 2-1110 of the Code provides that a defendant in a civil bench trial case may move
at the close of the plaintiff’s case for a finding or judgment in the defendant’s favor, and the
court must weigh the evidence, considering witness credibility and the weight and quality of the
evidence, in ruling on the motion. 735 ILCS 5/2-1110 (West 2014). The purpose of section 2-
1110 of the Code is to allow the judge in a nonjury trial to assess the nonmovant’s proof and find
in favor of the movant if the nonmovant failed to make out a prima facie case. Margolies v.
Landy & Rothbaum, 136 Ill. App. 3d 635, 639 (1985). The Act is silent about motions for
directed findings, and we find that the provisions of section 2-1110 of the Code do not conflict
with the Act’s provisions for third-stage evidentiary hearings, during which the court may make
credibility determinations to decide whether the defendant showed, by a preponderance of the
evidence, a substantial violation of a constitutional right. Accordingly, courts presiding over
postconviction proceedings do not err by applying section 2-1110 of the Code as guidance when
considering the State’s motion for a directed finding at a third-stage evidentiary hearing.
¶ 30 Under the Code, a court ruling on a motion for a directed finding in a nonjury trial must
(1) determine as a matter of law whether the nonmovant has presented a prima facie case (some
evidence on every element essential to the cause of action) and (2) if so, consider and weigh the
totality of the evidence presented, including evidence favorable to the movant. Zannini v.
Reliance Insurance Co. of Illinois, Inc., 147 Ill. 2d 437, 448-49 (1992); 527 S. Clinton, LLC v.
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Westloop Equities, LLC, 403 Ill. App. 3d 42, 52 (2010). After weighing all the evidence, the
court should determine, applying the standard of proof required for the underlying cause,
whether sufficient evidence remains to establish the nonmovant’s prima facie case. 527 S.
Clinton, LLC, 403 Ill. App. 3d at 52. If sufficient evidence necessary to establish the
nonmovant’s prima facie case remains following the weighing process, the court should deny the
motion for a directed finding and proceed as if the motion had not been made. Barnes v.
Michalski, 399 Ill. App. 3d 254, 263 (2010).
¶ 31 If the circuit court finds that the plaintiff fails to present a prima facie case as a matter of
law, the standard of review is de novo. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 275
(2003). If, however, the circuit court considers the weight and quality of the evidence and finds
that no prima facie case remains, the circuit court’s decision will not be disturbed on appeal
unless it is against the manifest weight of the evidence. Zannini, 147 Ill. 2d at 449.
¶ 32 Here, the record establishes that defendant presented some evidence on every element of
his claim of ineffectiveness of trial counsel and the circuit court, consistent with section 2-1110
of the Code, considered the credibility of the alibi testimony and weighed all the evidence before
concluding that defendant failed to establish by a preponderance of the evidence a prima facie
case of ineffectiveness of trial counsel. Consequently, we review the circuit court’s ruling under
the manifest weight standard. See Hughes, 329 Ill. App. 3d at 325 (a ruling is manifestly
erroneous only if it contains error that is clearly evident, plain, and indisputable).
¶ 33 Defendant relies on the related cases People v. Serrano, 2016 IL App (1st) 133493, ¶¶ 23,
37, 41, and People v. Montanez, 2016 IL App (1st) 133726, ¶¶ 24, 34, 42, to support the
propositions that an appeal from a directed finding granted at a third-stage postconviction
proceeding must be reviewed de novo and all of the postconviction evidence must be viewed in a
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light most favorable to the postconviction petitioner. In Serrano and Montanez, the court simply
stated those propositions without engaging in any substantive analysis concerning the civil nature
of postconviction proceedings and the applicability of section 2-1110 of the Code of Civil
Procedure instead of section 115-4 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-
4(k) (West 2014)). We decline to follow Serrano and Montanez and conclude the circuit court
did not err by making credibility determinations and considering and weighing the totality of the
evidence presented, including evidence favorable to the State, when ruling on the State’s motion
for a directed finding at the third-stage evidentiary hearing.
¶ 34 B. Ineffectiveness of Trial Counsel
¶ 35 Defendant argues the circuit court erred in denying him postconviction relief because he
presented credible evidence establishing a claim of ineffective assistance of trial counsel.
Defendant contends that even though the testimony of his three sisters was inconsistent on
peripheral matters, their testimony was remarkably consistent on the key details: the date of the
party, where defendant was during the party, its duration, his task at the party, and that the sisters
made efforts to communicate the alibi to trial counsel but he failed to either respond or take
action on the alibi.
¶ 36 A defendant alleging a claim of ineffective assistance of counsel must satisfy both prongs
of the test discussed in Strickland v. Washington, 466 U.S. 668, 687 (1984), which requires a
showing that “counsel’s performance was deficient” and the deficient performance “prejudiced
the defense.” To satisfy the first prong, the defendant must show “that counsel’s representation
fell below an objective standard of reasonableness.” Id. at 688. The second prong requires the
defendant to “show that there is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different. A reasonable probability is a
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probability sufficient to undermine confidence in the outcome.” Id. at 694. If an ineffectiveness
claim can be disposed of on the ground of insufficient prejudice, then that course should be
taken, and the court does not need to consider the quality of the attorney’s performance. Id. at
697.
¶ 37 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. To establish deficient performance, defendant must identify
counsel’s acts or omissions that allegedly are not the result of reasonable professional judgment
and overcome the strong presumption that counsel’s action or inaction was the result of sound
trial strategy. People v. Perry, 224 Ill. 2d 312, 341-42 (2007); Strickland, 466 U.S. at 690. “A
fair assessment of attorney performance requires that every effort be made to eliminate the
distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct,
and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689.
Defendant must show that counsel’s errors were so serious and his performance was so deficient
that he did not function as the counsel guaranteed by the sixth amendment. Perry, 224 Ill. 2d at
342.
¶ 38 Decisions regarding which 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)). Where
circumstances known to counsel at the time do not reveal a sound basis for further inquiry in a
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particular area, it is not ineffective for the attorney to forgo additional investigation. People v.
Orange, 168 Ill. 2d 138, 150 (1995). Strategic choices made by counsel after having made a
thorough investigation are “virtually unchallengeable.” People v. Towns, 182 Ill. 2d 491, 514
(1998).
¶ 39 Here, the circuit court’s finding—that trial counsel investigated the alibi testimony,
which was weak, and made a reasonable strategic decision not to present it—was not against the
manifest weight of the evidence. Defendant testified that he spoke with trial counsel several
times about his alibi and gave counsel a list of the names and contact information of friends and
family who could corroborate his alibi, including his sisters. Gail testified that she discussed the
alibi with trial counsel at his office prior to the trial. Glynda testified that she spoke with trial
counsel at the courthouse in the presence of her mother and sisters and that counsel told them to
wait outside the courtroom and that they would testify. This evidence establishes that trial
counsel knew of defendant’s alleged alibi and the corroborating witnesses, knew what their
testimony would be, and had alibi witnesses prepared to testify waiting outside the courtroom
during defendant’s trial.
¶ 40 During the State’s case-in-chief, trial counsel cross-examined the State’s witnesses and
attacked their credibility. After the State rested, trial counsel made the strategic and virtually
unchallengeable decision not to call defendant’s sisters based on counsel’s assessment of the
State’s witnesses, their backgrounds, and the fact that they received benefits for testifying. It was
not unreasonable trial strategy to decide not to present the alibi testimony of defendant’s sisters
because their close relationship to him could have resulted in their testimony carrying little
weight with the jury. See People v. Deloney, 341 Ill. App. 3d 621, 635 (2003). Furthermore, their
weak alibi testimony could have potentially harmed the defense’s case. See United States v.
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Guillette, 547 F.2d 743, 752 (2d Cir. 1976) (recognizing “a danger likely to arise when jurors,
untrained in the law, disbelieve alibi testimony and are inclined to view the failure of the defense
as a sign of the defendant’s guilt”); United States v. Burse, 531 F.2d 1151, 1153 (2d Cir. 1976)
(“In those cases where an alibi defense is presented, there exists the danger that the failure to
prove that defense will be taken by the jury as a sign of the defendant’s guilt.”).
¶ 41 The circuit court watched and listened to the sisters testify and concluded that their
claims to have never lost sight of defendant at the large and lengthy family party between the
precise hours of 3 to 5 p.m. on the date of the shooting were far-fetched and incredible. The
circuit court found that Gabrielle was evasive in answering questions, Gail’s testimony was
inconsistent with information in her affidavit, and Glynda was evasive, defensive, flippant, and
hostile. Based on our review of the record, we cannot say that the circuit court’s credibility
findings and conclusion that defendant’s three sisters seemed to be engaged in a coordinated
effort to create an alibi for their brother were against the manifest weight of the evidence.
¶ 42 Considering trial counsel’s efforts to challenge the credibility of the State’s occurrence
witnesses, it was reasonable for trial counsel to decide not to jeopardize those efforts by
presenting the sisters’ unbelievable alibi testimony. Furthermore, because the alibi testimony was
not credible, there was no reasonable probability that the outcome of defendant’s trial would
have been different if trial counsel had presented the sisters as witnesses. Accordingly, the circuit
court’s decision to grant the State’s motion for a directed finding, based on defendant’s failure to
establish by a preponderance of the evidence a prima facie case of ineffectiveness of trial
counsel, was not against the manifest weight of the evidence because, after weighing all the
evidence, including evidence favorable to the State, the remaining evidence was not sufficient to
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make a prima facie showing that trial counsel’s performance was objectively unreasonable or
defendant was prejudiced by trial counsel’s strategic decision.
¶ 43 III. CONCLUSION
¶ 44 For the above reasons, we affirm the judgment of the circuit court granting the State’s
motion for a directed finding at the third-stage evidentiary hearing and denying defendant
postconviction relief.
¶ 45 Affirmed.
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