People v. Simmons ( 2020 )

2020 IL App (1st) 170650FIFTH DIVISION
Opinion filed: July 10, 2020
No. 1-17-0650
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 03 CR 27277
)
DONELL SIMMONS, ) Honorable
) Lawrence E. Flood,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
OPINION
¶1 The defendant, Donell Simmons, appeals from an order of the circuit court of Cook County,
granting the State’s motion to dismiss his postconviction petition pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) at the second stage of proceedings. On
appeal, the defendant argues that he made a substantial showing that he is actually innocent of the
crimes for which he was convicted, his trial counsel was ineffective for failing to investigate and
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present an eyewitness, and his appellate counsel was ineffective for failing to argue that the circuit
court erred in denying his motion to suppress. For the following reasons, we reverse and remand
for a third-stage evidentiary hearing on the defendant’s claim that his trial counsel was ineffective
for failing to investigate and present an eyewitness.
¶2 The defendant was charged, along with codefendants Labar “Bro-Man” Spann, Martise
“Shorty” Nunnery, and Marcus “Black” Ware (also known as John Coleman) with, inter alia,
multiple counts of first degree murder and aggravated battery with a firearm. The charges against
the defendant stemmed from the June 4, 2003, shooting that resulted in the death of Randy “Kato”
Rangel Jr. and the injury of Harrison Hall. Following a severed bench trial on June 2, 2008, the
defendant was convicted of first degree murder and aggravated battery with a firearm and
sentenced to consecutive terms of 47 years’ imprisonment for the murder and 6 years’
imprisonment for the aggravated battery.
¶3 The following facts relevant to the disposition of this appeal were derived from the record.
¶4 Prior to his trial, the defendant filed a motion to quash his arrest and suppress evidence,
alleging that police did not have probable cause to arrest him without a warrant. At the hearing,
the defendant presented the testimony of Detective Keith Allen. According to Detective Allen, on
November 22, 2003, he went to 4223 West Wilcox Street with 10 members of a gang tactical team.
The officers went to the building because they had an investigative alert stating that the defendant
was suspected of killing Rangel. Detective Allen was positioned at the rear entrance to the
building, and after other officers entered, they opened the rear door for him. Inside, he saw the
defendant in handcuffs. Detective Allen acknowledged that he did not have a search or arrest
warrant for the defendant.
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¶5 The State presented Sergeant Charles Daly, who testified that, at the time, he was a
detective assigned to investigate the June 4, 2003, shooting. As part of his investigation, Sergeant
Daly learned that an individual named “Rio” wore a body wire to record conversations with
Nunnery. Sergeant Daly stated that Rio was “fighting a federal drug case and decided to cooperate
with investigative officers from organized crime.” Sergeant Daly reviewed a transcript of the
recorded conversation between Rio and Nunnery, testifying that the two largely used slang terms
and expressions. According to Sergeant Daly, he subsequently spoke to Rio, who told him that it
was his belief that the conversation referred to Nunnery’s involvement in Rangel’s shooting. Rio
also told him that he believed that Nunnery was telling him that “Squeaky” shot Rangel and that
“Bro-Man” was also involved.
¶6 On November 13, 2003, Sergeant Daly met with Spann following his arrest on unrelated
charges. According to Sergeant Daly, Spann told him the following: he was with the defendant
and Nunnery on the day of the shooting; Nunnery received a phone call and they drove to
Sacramento Boulevard and Roosevelt Road, where Nunnery handed the defendant a .45-caliber
handgun; the defendant exited the vehicle, and shortly thereafter, he heard gunshots and left the
area; he subsequently spoke with the defendant, who told him that he killed Rangel. Spann also
told Sergeant Daly that Squeaky was the defendant’s nickname.
¶7 Nunnery was arrested the following day and provided a videotaped statement. Sergeant
Daly testified that he viewed the recording and he described the contents to the court. Nunnery
stated that he received a phone call from Ware informing him that Rangel was at a barber shop
near the intersection of Sacramento Boulevard and Roosevelt Road. He drove to that location with
Spann and the defendant. He handed the defendant a handgun, who then exited the car and entered
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the barber shop. A short time later, he heard gunshots. He subsequently spoke with the defendant,
who told him that he shot and killed Rangel. The parties stipulated that Nunnery initially denied
any involvement in the shooting.
¶8 Ware, who goes by the nickname “Black,” was arrested on November 14, 2003, and gave
a videotaped statement. Sergeant Daly testified as to the contents of that statement. Ware stated
that Nunnery asked him to call if he saw Rangel at the barber shop on Sacramento Boulevard and
Roosevelt Road. He believed that Nunnery intended to rob Rangel and that he would be paid $1500
for making the phone call. On June 4, 2003, he saw Rangel at the barber shop and called Nunnery.
Subsequently, he learned from Nunnery that “they” had successfully killed Rangel.
¶9 Sergeant Daly also obtained information from Darren McCline, who was arrested and made
a statement to Detective Patrick O’Donovan and an assistant state’s attorney (ASA), which was
reduced to writing on November 19, 2003. According to McCline’s statement, the defendant told
him that he had shot and killed Rangel and that he was enticed to do so by Nunnery and Spann.
¶ 10 Defense counsel argued that the State did not establish that it had probable cause to arrest
the defendant because Rio’s recorded conversation with Nunnery did not explicitly reference either
a shooting or Rangel and the information linking the defendant to the shooting was unreliable as
it all came from individuals who were under arrest. The circuit court denied the defendant’s
motion, finding “that there was more than sufficient, almost overwhelming probable cause as to
each defendant *** to make their arrest and any evidence derived there from should not be
suppressed.”
¶ 11 At the defendant’s severed bench trial, Hall testified that, on June 4, 2003, he was in a
trailer on the corner of Sacramento Boulevard and Roosevelt Road where he worked as a barber.
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He was cutting Rangel’s hair when a man, whom he identified in court as the defendant, entered
the trailer and fired several shots at Rangel. Hall was standing about two feet away from the
defendant when he opened fire and could see his face under bright florescent lights. Hall ran past
the defendant, exiting the trailer. He went to the hospital where he learned that he was shot in the
foot.
¶ 12 Hall acknowledged that he initially told the police that he did not get a good look at the
shooter’s face. He testified that he lied about seeing the shooter because he did not want to be
involved in the situation. On November 22, 2003, he was asked to view a lineup at the police
station. After viewing the lineup, he identified the defendant as the shooter. On cross-examination,
Hall testified that the police told him prior to viewing the lineup that the shooter might be in the
lineup. Defense counsel then asked Hall if, when he was viewing the lineup, he “expected that
maybe somebody in there was the person who shot in the trailer at you?” He responded, “Right.”
¶ 13 Lavelle Green testified that, on the day in question, he was 15 years old and he and his
friend, Maurice Williams, were sitting outside the barber shop trailer waiting to get a haircut when
a man went into the trailer. He heard gunshots and ran. Green testified at trial that he could not
identify the individual he saw enter the trailer that day. He acknowledged that, on November 22,
2003, he viewed a lineup and identified the defendant as the man he saw enter the trailer that day.
He stated that he identified the defendant after the police told him to “pick the person who looked
like [the shooter].” The State impeached Green with a written statement that he provided to the
police. He acknowledged that he signed the statement, but he stated that he could not remember
the particulars of the statement. He stated that he signed the statement so “they could let [him] go.”
In the written statement, Green identified the defendant as the shooter.
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¶ 14 The parties also stipulated that, if called to testify, Chicago police sergeant Jose Lopez
would state under oath that he was present when Green identified the defendant as the individual
who shot Rangel.
¶ 15 Ware testified that his given name is John Coleman and that “Ware” is his “alias for the
police.” He acknowledged that he has prior convictions for unlawful use of a weapon, obstruction
of justice, and traffic offenses. He testified that he was a named codefendant in this case and,
pursuant to an agreement with the State, pled guilty to conspiracy to commit first degree murder
in exchange for an agreed sentence of 12 years and the truth of his testimony at trial. He explained
that, pursuant to the agreement, he must testify truthfully or else be charged with first degree
murder and perjury. He stated that, as of the date of the trial, he was housed in the witness
protection quarters of the county jail.
¶ 16 Ware testified that, in April 2003, Nunnery called and asked if he could call him if he saw
Rangel. He believed that the plan was to kidnap Rangel, a high-ranking member of the Latin Kings,
whom he had known for several years. Later in that month, he drove with Nunnery and the
defendant looking for Rangel, but they were unsuccessful. A few days later, Nunnery told him that
the plan was to kill, not kidnap, Rangel and that there was a “ransom” of $190,000 and 15
kilograms of cocaine. Nunnery offered to pay him $2000 in exchange for providing Rangel’s
location. On June 4, 2003, he called Nunnery and told him that Rangel was in Hall’s barber shop
on Sacramento Boulevard and Roosevelt Road. After the call, he waited in Douglas Park across
the street from the trailer. Shortly thereafter, he heard gunshots coming from the trailer and could
see people running out of the trailer, including the defendant. He saw the defendant run down
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Sacramento Boulevard towards Roosevelt Road and then into an alley. Ware did not see anything
in the defendant’s hand.
¶ 17 On cross-examination, Ware testified that he gave a videotaped statement to the police after
his arrest on November 14, 2003. He acknowledged that, in the statement, he said he did not know
Nunnery intended to kill Rangel. He also acknowledged that his testimony included several details
he did not provide to the police, such as looking for Rangel with Nunnery and the defendant, that
Nunnery was going to receive $190,000 and 15 kilograms of cocaine for the murder, that he was
at Douglas Park when Rangel was shot, and that he saw the defendant exit the trailer. Instead, he
told the police and the ASA that he was a few blocks away when he heard the gunshots and that it
was a few days later that he found out that “Squeaky” shot Rangel. He acknowledged that he did
not provide these details until after he entered plea negotiations and the plea deal was finalized.
On redirect-examination, Ware stated that he did not tell the police and ASA “everything” at the
time of his arrest because he did not want to “involve” himself in the case.
¶ 18 Chicago police detective O’Donovan testified that he interviewed the defendant on
November 22, 2003, following his arrest. He advised the defendant of his Miranda warnings and
the defendant agreed to speak with him. During the course of the interview, the defendant admitted
that he was the shooter and detailed how Nunnery and Spann approached him and promised him
money to shoot Rangel. Detective O’Donovan testified that the defendant provided him with the
following version of events. On the date of the shooting, Spann and Nunnery picked him up and
told him that they knew Rangel’s location. They drove by a carwash and observed Rangel’s truck
there. They stopped one block west of Sacramento Boulevard, and Spann handed him a firearm.
The defendant walked into a trailer that was operating as a barber shop, saw Rangel in the barber’s
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chair, and fired at him before fleeing. The defendant told Detective O’Donovan that the motive for
killing Rangel was retribution for stealing a significant quantity of drugs.
¶ 19 ASA Andreana Turano testified that, in the early morning hours of November 22, 2003,
she spoke with the defendant in an interview room. After advising him of his Miranda warnings
(see Miranda v. Arizona, 384 U.S. 436 (1966)), he agreed to have a conversation. He indicated
that he had been treated fine and did not have any complaints. He agreed to make a handwritten
statement, which was published at trial. According to the defendant’s handwritten statement, he
goes by the nickname “Squeaky.” In May 2003, Spann, whom he knew as “Bro-Man,” approached
him about shooting someone and introduced him to Nunnery. He learned that the target was Rangel
and that Spann would pay him $30,000 for killing him. At some point, he rode in a car with Ware,
whom he knew as “Black,” Spann, and another person he did not know, when Spann got a phone
call from Nunnery. They drove to a location where Spann pointed out that the man shaking hands
with Nunnery was Rangel, the intended target. On June 4, 2003, he got into a van with Spann and
Nunnery and drove to a trailer that operated as barber shop. They parked about one block away,
where Spann gave him a firearm. He exited the car, entered the trailer, and shot Rangel as he was
getting his haircut. He then ran back to the van and gave the gun to Spann. The defendant stated
that he was enticed into the shooting by Nunnery and Spann but was never paid the money he was
promised.
¶ 20 The court found the defendant guilty of first degree murder. In announcing its verdict, the
court stated that it believed Ware’s testimony and that the defendant’s confession was “convincing
and compelling” and that his insistence that he was enticed by Nunnery and Spann “have a definite
ring of truth going to the reliability and trustworthiness of [his] confession.”
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¶ 21 The court denied the defendant’s motion for a new trial, stating that “I believe that the
evidence in this case was overwhelming, not at all close and that any possible error in this bench
trial would be harmless beyond a reasonable doubt ***.” 1 Following a sentencing hearing, the
court sentenced the defendant to consecutive terms of 47 years’ imprisonment for first degree
murder and 6 years’ imprisonment for aggravated battery with a firearm.
¶ 22 On direct appeal, we affirmed the defendant’s convictions and sentences over his
contention that his jury waiver was invalid. People v. Simmons, No. 1-08-2532 (2010)
(unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 23 On December 1, 2008, the defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)), arguing
that the prosecution fabricated the indictment and that the homicide statute violated both the
ex post facto doctrine and the single subject rule. On February 18, 2009, the circuit court dismissed
the defendant’s section 2-1401 petition, and the defendant filed an appeal (No. 1-09-0742). The
defendant filed a motion to reconsider the circuit court’s denial of his section 2-1401 petition,
which the court denied, and the defendant appealed (No. 1-09-1652). We granted the defendant’s
motions to dismiss both appeals on December 14, 2009, and January 27, 2010, respectively.
¶ 24 On September 20, 2011, the defendant filed a combined pro se postconviction petition for
relief under the Act and under section 2-1401 of the Code. In his petition, the defendant argued,
inter alia, that his trial counsel was ineffective for failing to investigate and call Green’s brother,
Shardell Green, as a witness. According to the defendant, Shardell was a witness to the shooting,
1
We could not find a copy of the defendant’s motion for a new trial in the record nor did the
parties cite to a copy in their briefs on appeal.
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gave a statement to the police, and was willing to testify that someone other than the defendant
committed the offense.
¶ 25 In support of his claim, the defendant attached two affidavits from Shardell to his
postconviction petition. In the first affidavit, which was signed by Shardell and notarized on July
30, 2009, he averred that, in September 2007, a lawyer he identified as “Mr. Fulton” came to visit
him in jail and asked if he witnessed the June 4, 2003, shooting. Shardell told him that, after hearing
gunshots coming from inside the barber shop, he saw “a skinny medium complexion man about
[5’9”] run out of the barber shop.” Shardell stated that the man “was still shooting” when he exited
the shop and then “ran toward Whipple.” Shardell also stated that the picture Fulton showed him
did not depict the shooter he saw running out of the barber shop. Shardell told Fulton he would be
willing to testify, but Fulton did not contact him again. In the second affidavit, which is notarized
but undated, Shardell averred that he witnessed the June 4, 2003, shooting and spoke with the
police. He stated that he told the police the same thing that he told a lawyer named “Mike Fulton,”
which was that he saw a “skinny light-skinned man run out the [sic] barber shop shooting.” The
man he saw then “ran west down Roosevelt Rd.” Shardell also averred that Fulton showed him
photographs of the defendant and Nunnery and he told Fulton that neither of them were the shooter.
He told Fulton that he was “willing to come to court” but was never contacted.
¶ 26 On December 23, 2011, the circuit court appointed postconviction counsel to represent the
defendant. On August 16, 2015, appointed counsel filed a supplemental petition that included the
above mentioned claims from the defendant’s pro se petition and added two claims: that the
defendant’s appellate counsel was ineffective for failing to challenge the trial court’s ruling on his
motion to quash arrest and suppress evidence where the State failed to establish probable cause
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because the officer who issued the investigative alert did not testify and that the defendant was
actually innocent of the crimes for which he was convicted based on Shardell’s affidavit.
Regarding Shardell, the supplemental petition argued that he should have been known to trial
counsel because his name is listed in police reports as a “potential eyewitness” to the shooting and
he was interviewed by Nunnery’s counsel.
¶ 27 Attached to the supplemental petition was a third affidavit from Shardell and a copy of the
investigative alert. In Shardell’s affidavit, which was signed and notarized on March 20, 2015, he
stated that, on June 4, 2003, he was sitting on the steps of the barber shop with his brother Lavelle
and Williams when a man ran past them into the barber shop. Shardell’s description of the shooter
and the ensuing events was the same as the previous two affidavits. He also averred that he saw a
picture of the defendant and he was not the person he saw that day. Shardell also described meeting
with Fulton “some time” before he pled guilty in a separate case in September 2007. Shardell
stated that “[a]ny picture that Mr. Fulton showed me was not of the person I saw at the trailer that
day.” Shardell averred that no other lawyer or investigator ever interviewed him about the
shooting.
¶ 28 The attached copy of the investigative alert stated that “[t]he above subject was identified
as the person who shot the victim with a handgun thereby causing his death” and lists Detective
William Ruck as the contact person.
¶ 29 On April 26, 2016, the State filed a motion to dismiss both the combined pro se
postconviction petition and the supplemental petition, arguing that the defendant’s section 2-1401
petition was untimely and that the defendant’s appellate counsel was not ineffective because the
evidence at the suppression hearing established that the officers had probable cause to arrest. The
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State also argued that the defendant’s actual innocence claim should be dismissed because
Shardell’s testimony was not of such a conclusive nature that it would probably change the result
on retrial in light of the defendant’s confession and Hall’s eyewitness testimony. The State’s
motion does not appear to make any argument as to the defendant’s claim that his trial counsel
was ineffective for failing to investigate or present Shardell.
¶ 30 On July 21, 2016, the defendant filed a response to the State’s motion to dismiss and a
motion for leave to file a supplemental affidavit from Irineo Barbosa in support of his claim of
actual innocence. In an attached affidavit, Barbosa averred that he was Spann’s cellmate in
December 2003. He stated that Spann told him, while “bragging” about past crimes, that someone
named “the Post-man” shot Rangel and that Spann, the Post-man, and Spann’s “girl’s little
brother” were the ones involved. According to Barbosa, Spann told Ware to say that Nunnery “set
the whole thing up” and threatened Ware’s mother. Barbosa subsequently met Nunnery and told
him that he would be willing to sign an affidavit relating what Spann told him.
¶ 31 On February 21, 2017, the circuit court granted the State’s motion to dismiss the
defendant’s combined pro se petition and supplemental petition. Regarding the defendant’s section
2-1401 claims, the court found that the claims were untimely filed. As to the defendant’s claim of
actual innocence, the court found that Shardell’s affidavit did not contain newly discovered
evidence because he was listed on police reports as a potential eyewitness and, therefore, could
have been discovered sooner with due diligence. Regarding Barbosa’s affidavit, the court found
that it was not of such a conclusive character that it would have changed the result because it
consisted of inadmissible hearsay and did not identify the actual shooter or provide the defendant
with an alibi. As to the defendant’s claim of ineffective assistance of trial counsel for failing to
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investigate and call Shardell, the court concluded that the defendant could not establish prejudice
because Shardell “did not observe the shooting and therefore cannot exonerate [the defendant]”
and his testimony was “vastly outweighed by the multiple occurrence witnesses at the scene and
[the defendant’s] own inculpatory statements.” Lastly, the court found that the defendant’s claim
of ineffective appellate counsel was “meritless.” This appeal followed.
¶ 32 On appeal, the defendant argues that the circuit court erred in granting the State’s motion
to dismiss his postconviction petition at the second stage of proceedings because his petition made
a substantial showing that (1) he is actually innocent of the crimes for which he was convicted
based on Barbosa’s affidavit; (2) his trial counsel was ineffective for failing to investigate and
present Shardell, an eyewitness to the shooting; and (3) his appellate counsel was ineffective for
failing to argue that the State failed to establish that his arrest was supported by probable cause.
¶ 33 The Act provides a procedural mechanism through which a petitioner may assert a
substantial denial of his constitutional rights in the proceedings that resulted in his conviction. 725
ILCS 5/122-1 et seq. (West 2012). At the first stage of a postconviction proceeding, the circuit
court independently reviews the defendant’s petition, taking the allegations as true, and determines
if it is frivolous or patently without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). If the
postconviction petition is not summarily dismissed, as here, it advances to the second stage, where
the State may file a motion to dismiss the petition and the postconviction court must determine
whether the petition and any accompanying documents make a substantial showing of a
constitutional violation. Id. at 10-11, 11 n.3. At the second stage of proceedings, the postconviction
court takes “all well-pleaded facts that are not positively rebutted by the trial record” as true.
People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If the petition fails to make a substantial showing
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of a constitutional violation, it is dismissed; if such a showing is made, the postconviction petition
advances to the third stage where the court conducts an evidentiary hearing. 725 ILCS 5/122-2.1,
122-6 (West 2012). We review a dismissal of a petition at the second stage de novo. People v.
Whitfield, 217 Ill. 2d 177, 182 (2005).
¶ 34 The defendant first contends that he made a substantial showing that he is actually innocent
of the crimes for which he was convicted. The defendant’s argument on appeal is based only on
the evidence contained in Barbosa’s affidavit and does not include any argument regarding
Shardell’s affidavit.
¶ 35 In order to succeed on a postconviction claim of actual innocence, the defendant must
present new, material, noncumulative evidence that is so conclusive it would probably change the
result on retrial. People v. Washington, 171 Ill. 2d 475, 489 (1996). New evidence means it was
discovered after trial and could not have been discovered earlier through the exercise of due
diligence. People v. Burrows, 172 Ill. 2d 169, 180 (1996). Material means the evidence is relevant
and probative of the defendant’s innocence. See People v. Smith, 177 Ill. 2d 53, 82-83 (1997)
(plurality opinion). Noncumulative means the evidence adds to what the jury heard. People v.
Molstad, 101 Ill. 2d 128, 135 (1984). And conclusive means the evidence, when considered along
with the trial evidence, would probably lead to a different result. See People v. Ortiz, 235 Ill. 2d
319, 336-37 (2009). This standard “is extraordinarily difficult to meet.” People v. Coleman, 2013
IL 113307, ¶ 94. The conclusiveness of the new evidence is the most important element. People
v. Sanders, 2016 IL 118123, ¶ 47.
¶ 36 The defendant contends that the evidence contained in Barbosa’s affidavit is newly
discovered, noncumulative, material, and of such a conclusive character that it would probably
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change the outcome at retrial. He also argues that the circuit court erred in finding that the affidavit
contained inadmissible hearsay because hearsay is admissible at collateral proceedings, citing to
People v. Sanchez, 115 Ill. 2d 238, 284-85 (1986), and People v. Warren, 2016 IL App (1st)
090884-C, ¶¶ 89-90. The State responds that Barbosa’s affidavit would not change the outcome of
a retrial because of the overwhelming evidence of the defendant’s guilt, such as his written
confession, Ware’s testimony detailing the defendant’s involvement, and Hall’s eyewitness
identification. We agree with the State.
¶ 37 We first address the State’s contention that Barbosa’s affidavit fails because it contains
inadmissible hearsay. The supreme court recently adopted and amended Illinois Rule of Evidence
1101, which added “postconviction hearings” to a list of proceedings to which the rules of
evidence—including the rules against hearsay—“do not apply.” Ill. R. Evid. 1101(b)(3) (eff. Apr.
8, 2013). Because the rules of evidence do not apply to postconviction proceedings, we will
consider the contents of Barbosa’s affidavit even though it contains hearsay. See People v. Velasco,
2018 IL App (1st) 161683, ¶ 119 (finding that the hearsay affidavits at issue in that case, indicating
that a gang member had bragged to one of the affiants about shooting the victim, were admissible
under Rule 1101(b)(3) and must be taken as true, at the second stage of postconviction
proceedings).
¶ 38 Here, Barbosa’s affidavit states that Spann told him, while “bragging” about his past
crimes, that someone named “Post-Man” shot and killed Rangel. However, Barbosa’s affidavit
does not indicate that Spann’s reference to Post-Man is a reference to someone other than the
defendant. The defendant argues that the record indicates his nickname was Squeaky, not Post-
Man. However, this argument supposes that an individual can have one, and only one, nickname.
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“Evidence of actual innocence must support total vindication or exoneration, not merely present a
reasonable doubt.” People v. Adams, 2013 IL App (1st) 111081, ¶ 36. Simply put, this evidence
does rise to that level.
¶ 39 Moreover, Barbosa’s affidavit must be viewed in light of the overwhelming evidence of
the defendant’s guilt presented at trial. Most significantly, the State presented the defendant’s
signed statement in which he confessed to shooting Rangel at the behest of Nunnery and Spann.
“ ‘A confession is the most powerful piece of evidence the State can offer, and its effect *** is
incalculable.’ ” People v. Miller, 2013 IL App (1st) 110879, ¶ 82 (quoting People v. Fillyaw, 409
Ill. App. 3d 302, 316 (2011)). Furthermore, an eyewitness and a codefendant both implicated the
defendant as the shooter. Hall, who testified that the perpetrator stood two feet away from him and
was illuminated by bright florescent lights, identified the defendant. Similarly, Ware testified that
he once drove with the defendant and Nunnery looking for Rangel. He also testified that, after
informing Nunnery of Rangel’s location, he stood in Douglas Park and watched the defendant flee
from the trailer after hearing gunshots. Lastly, he testified that he subsequently spoke with the
defendant, who admitted to him that he shot and killed Rangel. Given this evidence, we conclude
that Barbosa’s affidavit was not conclusive enough that it would probably lead to a different result.
Accordingly, we find that the defendant failed to make a substantial showing of actual innocence.
¶ 40 The defendant next argues that he made a substantial showing that his trial counsel was
ineffective for failing to investigate or present Shardell, an eyewitness to the shooting, who would
testify that the man he saw shooting into the barber shop was not the defendant.
¶ 41 Ineffective assistance of counsel claims are considered under the two-pronged test set forth
in Strickland v. Washington, 466 U.S. 668 (1984). “To prevail on a claim of ineffective assistance
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[of counsel] under Strickland, a defendant must show both that counsel’s performance ‘fell below
an objective standard of reasonableness’ and that the deficient performance prejudiced the
defense.” Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S. at 687-88). “If an ineffectiveness
claim can be disposed of on the ground of insufficient prejudice, then that course should be taken,
and the court does not need to consider the quality of the attorney’s performance.” People v.
Williams, 2017 IL App (1st) 152021, ¶ 36.
¶ 42 It is well-established that the choice on what witnesses to call “is a matter of trial strategy,
left to the discretion of counsel after consultation with the defendant.” People v. Peterson, 2017
IL 120331, ¶ 80. However, trial counsel has a duty to conduct reasonable investigations into
possible defenses. People v. Domagala, 2013 IL 113688, ¶ 38. The failure to interview known
witnesses can indicate incompetence when their testimony could be exonerating. People v. Steidl,
177 Ill. 2d 239, 256 (1997). “ ‘[A] particular decision not to investigate must be directly assessed
for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s
judgments.’ ” People v. Guest, 166 Ill. 2d 381, 400 (1995) (quoting Strickland, 466 U.S. at 691);
accord People v. Pecoraro, 175 Ill. 2d 294, 324 (1997).
¶ 43 We conclude that the defendant has made a substantial showing that his trial counsel was
deficient for failing to contact Shardell as a potential exculpatory witness, meeting the first prong
of the Strickland test. Shardell stated in his affidavit that he was present outside the barber shop
on June 4, 2003, and that the person he saw fleeing the barber shop while shooting was not the
defendant. He averred that he told this information to the police and to Mr. Fulton, who the
defendant alleges was Nunnery’s counsel. Shardell also stated that he would have testified at the
defendant’s trial but was never contacted by counsel. According to the record, police reports listed
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Shardell as a potential eyewitness. We can find no strategic reason to explain why counsel may
have decided not to interview Shardell. Taking the facts presented in the affidavits as true, as we
must at this stage (Pendleton, 223 Ill. 2d at 473), the defendant met his burden of making a
substantial showing that his trial counsel was deficient.
¶ 44 To determine, under the second prong of the Strickland test, whether trial counsel’s failure
to investigate prejudiced the defendant, we must look at the evidence presented at his trial.
“Prejudice is demonstrated if there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different.” People v. Makiel, 358 Ill.
App. 3d 102, 105-06 (2005). “Whether the failure to investigate constitutes ineffective assistance
of counsel is determined by the value of the evidence not presented at trial and the closeness of the
evidence that was presented at trial.” People v. Harmon, 2013 IL App (2d) 120439, ¶ 26.
¶ 45 Here, the State presented the following evidence of the defendant’s guilt at trial: the
defendant’s handwritten confession, Hall’s identification of the defendant as the man who shot
him and Rangel, and Ware’s testimony regarding the defendant’s involvement in the plot to kill
Rangel. The defendant contends that, given the weaknesses in the State’s evidence, Shardell’s
testimony would have increased his chances of acquittal. Specifically, the defendant argues that
his confession occurred after 10 hours in custody and multiple interrogations, Hall’s identification
is not credible given that he initially told police that he did not see the shooter’s face, and Ware’s
testimony “was doubtful considering his status as a co-defendant testifying under a plea
agreement.” The State responds that the defendant failed to make a substantial showing of
prejudice because the evidence of his guilt was overwhelming. We agree with the defendant.
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¶ 46 Shardell’s testimony that he was present at the barber shop and saw someone other than
the defendant firing a weapon would have significantly bolstered defense counsel’s argument that
the State could not prove the defendant guilty beyond a reasonable doubt. Moreover, Shardell’s
testimony regarding the direction the shooter fled after the shooting would have contradicted
Ware’s testimony, possibly giving the trier of fact another reason to question his credibility. See
People v. Rodriguez, 227 Ill. App. 3d 397, 405 (1991) (“[T]he testimony of an accomplice is to be
viewed with suspicion.”). In reaching this decision, we acknowledge that the State did present
considerable evidence indicating the defendant’s guilt. However, prejudice “may be found even
when the chance that minimally competent counsel would have won an acquittal is ‘significantly
less than 50 percent,’ as long as a verdict of not guilty would be reasonable.” People v. McCarter,
385 Ill. App. 3d 919, 935 (2008) (quoting Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001)).
Here, we conclude that, if Shardell had testified in a manner consistent with his affidavit, a verdict
of not guilty would at least be reasonable. As such, we conclude that the defendant made a
substantial showing that his trial counsel was ineffective for failing to investigate or present
Shardell, and the circuit court should proceed to a third-stage evidentiary hearing on that claim.
¶ 47 The defendant’s next contention on appeal is that he made a substantial showing that his
appellate counsel was ineffective for failing to challenge the circuit court’s ruling on his motion to
quash arrest and suppress evidence where the probable cause to arrest was based on an
investigative alert and the officer who issued that alert did not testify at the hearing. He also argues,
in the alternative, that his appellate counsel was ineffective for failing to argue that his trial counsel
was ineffective for failing to preserve the issue for appeal.
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¶ 48 Claims of ineffective assistance of appellate counsel are judged against the same two-
pronged Strickland standard. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011) (citing People v.
Edwards, 195 Ill. 2d 142, 163 (2001)). “[A] defendant must show both that counsel’s performance
‘fell below an objective standard of reasonableness’ and that the deficient performance prejudiced
the defense.” Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S. at 687-88). “Appellate counsel
is not required to brief every conceivable issue on appeal, however, and it is not incompetence for
counsel to refrain from raising issues that counsel believes are without merit.” Edwards, 195 Ill.
2d at 163-64. Unless the underlying issue has merit, a defendant suffers no prejudice as the result
of appellate counsel’s failure to raise an issue on appeal. Lacy, 407 Ill. App. 3d at 457.
¶ 49 Here, the defendant argues that his appellate counsel was ineffective for failing to challenge
the trial court’s denial of his motion to quash arrest and suppress evidence. On a motion to quash
arrest and suppress evidence, the defendant generally bears the burden of proof. People v. Garcia,
2017 IL App (1st) 142141, ¶ 28. However, “[a]n arrest without probable cause or a warrant based
thereon violates” both the United States and Illinois constitutions. People v. Lee, 214 Ill. 2d 476,
484 (2005). Thus, “[o]nce the defendant submits evidence which shows that, at the time of the
arrest, he was doing nothing unusual (i.e., his conduct was not indicative of the commission of a
crime) and he was arrested without a warrant, the defendant has made a prima facie case that the
police lacked probable cause,” and the burden then shifts to the State to show that the warrantless
arrest was based on probable cause. People v. Drake, 288 Ill. App. 3d 963, 967 (1997). That said,
the ultimate burden of proof remains with the defendant. People v. Cregan, 2014 IL 113600, ¶ 23.
¶ 50 In the instant case, the parties do not dispute that the defendant was not arrested pursuant
to a warrant. Additionally, Detective Allen testified at the suppression hearing that the defendant
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No. 1-17-0650
was already in handcuffs when he entered the residence and he did not see the defendant doing
anything unusual or illegal at the time. Therefore, the State was required to demonstrate that the
arrest was based on probable cause and, therefore, legally justified.
¶ 51 The defendant contends that the State failed to satisfy this burden because Detective Allen
testified that he was arrested based solely on an investigative alert and the only other officer who
testified, Sergeant Daly, offered no evidence that he was “connected” with the investigative alert.
The defendant also notes that the investigative alert lists “Detective William Ruck” as the contact
person. As a result, the defendant contends that we should not “presume” that Sergeant Daly
“issued the directive to arrest.”
¶ 52 The State responds by raising three arguments. First, the State argues that the defendant
failed to preserve this claim for appellate review because it is “dissimilar” to the claim he raised
in his supplemental postconviction petition. Second, it argues that the defendant’s claim should be
dismissed because his current claim is “substantively dissimilar to the argument raised by trial
counsel at the pretrial hearing, which explains why the argument was not previously raised.” The
State goes on to contend that “[h]ad trial counsel specifically argued, for example, that the officer
who issued the investigative alert lacked probable cause to do so, both parties would have had an
opportunity to develop the record and the trial court would have had an opportunity to make a
ruling based on that issue.” Lastly, the State argues that it presented sufficient evidence to establish
that officers had probable cause to arrest the defendant and any claim to the contrary on appeal
would not have been meritorious.
¶ 53 To begin, we first address the State’s contention that the defendant’s argument on appeal
is dissimilar to the argument raised in his supplemental postconviction petition. We find no merit
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No. 1-17-0650
to the State’s contentions. In his supplemental petition, the defendant argued that his appellate
counsel was ineffective for failing to challenge the denial of his motion to quash arrest and suppress
evidence because “the State failed to meet its burden of demonstrating that the arresting officers
actually knew of sufficient facts or that the directive to arrest was actually made by an officer who
knew sufficient facts.” Noting that he was arrested pursuant to an investigative alert, the defendant
argued that the record was silent as to who issued the alert and, given that Detective Ruck is listed
as the contact person on the alert, “it should not be assumed” that it was Sergeant Daly, the officer
who testified at the hearing. This is precisely the argument the defendant now raises on appeal,
and we conclude, therefore, that he has not forfeited this argument.
¶ 54 We next address the State’s contention that the defendant’s claim of ineffective assistance
of appellate counsel fails because the claim is “substantively dissimilar to the argument raised by
trial counsel at the pretrial hearing, which explains why the argument was not previously raised.”
At the suppression hearing, the defendant’s only arguments were that Rio’s tape-recorded
conversations did not explicitly reference either a shooting or Rangel and that the information
implicating the defendant was unreliable because it came from individuals who were under arrest.
We agree with the State that the defendant’s argument at the suppression hearing was substantively
dissimilar to the claim he now faults his appellate counsel for failing to raise. However, the
defendant also argued in his supplemental postconviction petition that “[i]n the event this claim is
viewed as inadequately preserved for review, trial counsel’s ineffectiveness in failing to adequately
preserve it could have been raised on appeal.” Consequently, the State’s argument does not have
merit, and we must, therefore, determine whether a challenge to the trial court’s denial of the
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No. 1-17-0650
defendant’s motion to quash arrest and suppress evidence on the grounds that the State failed to
prove that the investigative alert was supported by probable cause would be meritorious.
¶ 55 An arrest secured without a warrant is valid only where it is supported by probable cause.
People v. Grant, 2013 IL 112734, ¶ 11. Police have probable cause to arrest an individual when
the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious
person to believe that the individual has committed a crime. Id. Whether probable cause exists
depends on the totality of the circumstances at the time of the arrest. Id. An officer’s factual
knowledge, based on his or her police experience, is relevant to determining probable cause. Id.Whether probable cause exists is governed by commonsense considerations, and the calculation
concerns the probability of criminal activity rather than proof beyond a reasonable doubt. Id.¶ 56 Although an arrest may be based on information of which the arresting officer does not
have personal knowledge, the State must show that the information the officer relied on was based
on facts sufficient to show probable cause to support an arrest. People v. Hyland, 2012 IL App
(1st) 110966 ¶ 22. An arresting officer may rely on information received in an official police
communication, provided that the officer who issued the communication had probable cause to
arrest. People v. Lawson, 298 Ill. App. 3d 997, 1001 (1998).
¶ 57 After reviewing the record, we conclude that the State presented sufficient evidence to
establish that the police had probable cause to arrest the defendant for the shooting death of Rangel.
At the hearing, Detective Allen testified that he arrested the defendant pursuant to an investigative
alert stating that the defendant was suspected of shooting Rangel. Sergeant Daly, a former
detective who was assigned to investigate the June 4, 2003, shooting, testified that his investigation
produced the following information: Rio, a confidential informant, told him that a recorded
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No. 1-17-0650
conversation with Nunnery indicated that the defendant shot and killed Rangel; Spann, who had
admitted to being involved in the shooting, told him that the defendant subsequently confessed to
him that he shot and killed Rangel; an individual named McCline provided a statement indicating
that the defendant told him that he had shot and killed Rangel and that he was enticed to do so by
Nunnery and Spann; and Nunnery recorded a confession implicating the defendant as the shooter.
We agree with the trial court that this evidence “was more than sufficient” to establish that police
had probable cause to arrest the defendant.
¶ 58 In urging reversal, the defendant relies primarily on Hyland, 2012 IL App (1st) 110966, to
support his argument that his appellate counsel should have challenged the court’s denial of his
motion to quash arrest and suppress evidence on appeal. In Hyland, a defendant was approached
by two officers based on an investigative alert stating that the defendant violated an order of
protection. Id. ¶ 6. The officers took the defendant into custody and performed a custodial search
that produced a weapon. Id. ¶ 3. He was arrested and charged with unlawful use of a weapon by a
felon and unlawful possession of a firearm by a street gang member. Id. At the defendant’s motion
to suppress, the State presented only the testimony of the arresting officers, who stated that they
approached the defendant based on the investigative alert but did not have personal knowledge of
the facts underlying the issuance of the investigative alert. Id. ¶¶ 5-6. We reversed the trial court’s
denial of the defendant’s motion to quash his arrest and suppress evidence, finding that the State
“presented no evidence that the underlying facts of the investigative alert established probable
cause to arrest defendant, either from the officer who issued the investigative alert or from the
individual who obtained the protective order that defendant allegedly violated.” Id. ¶ 25.
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¶ 59 In relying on Hyland, the defendant acknowledges that his direct appeal was resolved on
March 30, 2010, and that our opinion in Hyland case was issued on November 21, 2012, over two
years later. See People v. Simmons, No. 1-08-2532 (2010) (unpublished summary order under
Illinois Supreme Court Rule 23(c)). Appellate counsel’s assessment of the merits of an issue
depends on the state of the law at the time of the direct appeal. People v. English, 2013 IL 112890,
¶ 34 (citing People v. Weninger, 292 Ill. App. 3d 340, 345 (1997)). The defendant nevertheless
insists that, although Hyland was not decided at the time his case was on appeal, his direct appellate
counsel was “not required to be prescient in terms of knowing how [the appellate court] would
eventually rule in Hyland” because the cases that formed the basis for Hyland were available, such
as People v. Lawson, 298 Ill. App. 3d 997 (1998).
¶ 60 In Lawson, the circuit court granted a motion to quash arrest and suppress evidence filed
by a defendant who was charged with, inter alia, armed robbery. The State appealed, and we
affirmed, finding that the only witness for the State at the suppression hearing was the arresting
officer, who testified that he arrested the defendant solely because he matched the description of a
suspect in a radio bulletin. We stated that “when the State attempts to justify a warrantless arrest
on the basis of a radio bulletin it must establish that the officer who issued the bulletin had probable
cause to effect an arrest. (Emphasis in original.) Lawson, 298 Ill. App. 3d at 1001.
¶ 61 We find that the instant case is meaningfully distinguishable from both Lawson and
Hyland. Here, unlike in Lawson and Hyland, the State presented Sergeant Daly, a former detective
who was assigned to investigate the June 4, 2003, shooting, and who testified to the considerable
information that his investigation into Rangel’s death produced implicating the defendant as the
shooter prior to his November 22, 2003, arrest. We acknowledge that Sergeant Daly did not
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No. 1-17-0650
directly testify as to whether he issued the investigative alert; however, his testimony regarding
what investigators knew prior to the issuance of the alert and the defendant’s subsequent arrest is
clearly an order of magnitude beyond what was presented to the court in Lawson and Hyland.
Moreover, given the sheer amount of information uncovered by Sergeant Daly as part of his
investigation, we believe that it was not unreasonable for the circuit court to infer that Sergeant
Daly was responsible for the investigative alert. Accordingly, we conclude that the circuit court
did not err when it denied the defendant’s motion to quash his arrest and suppress evidence, and
therefore, his appellate counsel was not ineffective for failing to challenge the ruling on appeal.
¶ 62 Lastly, we address the defendant’s citation to People v. Bass, 2019 IL App (1st) 160640,
appeal allowed, No. 125434 (Ill. Mar. 25, 2020). In Bass, a divided panel of this court concluded
that an arrest is unconstitutional when it is based solely on an investigative alert, even where the
investigative alert is supported by probable cause. Id. ¶ 43. In reaching that conclusion, the
majority found that the Illinois Constitution required a warrant, based on probable cause, to issue
before an arrest could be made and that an investigative alert, validating an arrest without the
issuance of a warrant, violated the Illinois Constitution. Id. ¶ 62. The majority based its decision
on the notion that the Chicago Police Department improperly utilized investigative alerts in an
effort to circumvent the process of obtaining a warrant and arrest individuals without establishing
probable cause to do so. Id.
¶ 63 The State argues that we should find that the defendant has forfeited any argument pursuant
to Bass because he failed to raise such an argument in his supplemental postconviction petition. It
also contends that, if we do address the issue, we should follow People v. Braswell, 2019 IL App
(1st) 172810, which disagreed with the majority’s decision in Bass. We agree with the State that
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No. 1-17-0650
the defendant failed to raise an argument similar to Bass in his postconviction petition, and he
cannot raise it for the first time on appeal. People v. Jones, 213 Ill. 2d 498, 505, (2004) (finding
that the courts have “generally held that a claim not raised in a petition cannot be argued for the
first time on appeal”).
¶ 64 Forfeiture aside, we agree with Braswell and decline to follow Bass. As the Braswell court
stated, the flaw in Bass’s reasoning is “that arrests must be based on probable cause, not warrants
as the majority in Bass suggests.” Braswell, 2019 IL App (1st) 172810, ¶ 39. This flawed reasoning
in Bass “creates the somewhat paradoxical situation where police may arrest an individual without
a warrant and without an investigative alert if they have probable cause to do so, but that same
arrest becomes unconstitutional if police issue an investigative alert based on the same facts that
gave rise to the probable cause.” Id. Accordingly, we conclude, as did Braswell, that “the
investigative alert must have a proper basis to show probable cause.” See id. And, as we have
already concluded, the State did present sufficient evidence in this case to establish that the police
had probable cause to arrest the defendant based on an investigative alert.
¶ 65 In sum, we find that the defendant made a substantial showing that his trial counsel was
constitutionally ineffective for failing to investigate and present Shardell as an exculpatory
witness, and we remand to the circuit court for a third-stage evidentiary hearing on that issue. We
affirm the circuit court in all other respects.
¶ 66 Affirmed in part, reversed in part, and remanded with directions.
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