People v. Boyd , 2023 IL App (5th) 200340-U ( 2023 )

2023 IL App (5th) 200340-UNOTICE
NOTICE
Decision filed 07/19/23. The
This order was filed under
text of this decision may be NO. 5-20-0340
Supreme Court Rule 23 and is
changed or corrected prior to
the filing of a Petition for not precedent except in the
IN THE limited circumstances allowed
Rehearing or the disposition of
the same. under Rule 23(e)(1).
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) St. Clair County.
)
v. ) No. 09-CF-1130
)
DORIAN BOYD, ) Honorable
) Julie K. Katz,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE CATES delivered the judgment of the court.
Presiding Justice Boie and Justice McHaney concurred in the judgment.
ORDER
¶1 Held: The circuit court’s dismissal of a second stage postconviction petition was not in
error where the defendant failed to make a substantial showing of a constitutional
violation.
¶2 After a jury trial, the defendant, Dorian Boyd, was convicted of first degree murder and
sentenced to 40 years in the Illinois Department of Corrections. His direct appeal was unsuccessful.
He subsequently sought relief through a postconviction proceeding. He now appeals the second
stage dismissal order entered by the circuit court of St. Clair County. For the reasons that follow,
we affirm the circuit court’s decision.
¶3 I. BACKGROUND
¶4 On September 22, 2009, Dion Hardin was fatally shot in the chest outside of Club Peek-a-
Boo in Brooklyn, Illinois. The defendant, Dorian Boyd, was convicted of first degree murder (720
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ILCS 5/9-1(a)(1) (West 2008)) following a jury trial for the death of Hardin. The defendant was
sentenced to 40 years in the Illinois Department of Corrections and 3 years of mandatory
supervised release. We affirmed the conviction and sentence on direct appeal. People v. Boyd,
2014 IL App (5th) 110481-U.
¶5 The defendant filed a postconviction petition pursuant to the Post-Conviction Hearing Act
(725 ILCS 5/122-1 et seq. (West 2014)), where he raised numerous claims of ineffective assistance
of counsel. The circuit court summarily dismissed the defendant’s petition and the defendant
appealed. We held that the defendant’s postconviction petition set forth the gist of a constitutional
claim of ineffective assistance of trial counsel at the first stage and reversed and remanded for
further proceedings. People v. Boyd, 2018 IL App (5th) 150310-U. The facts necessary to our
disposition of the issues raised in this appeal are as follows.
¶6 The defendant’s jury trial began on May 23, 2011. During the defendant’s opening
statement, the defense presented a theory that the defendant did not shoot Hardin. The defense
argued that the State relied on the club’s poor quality surveillance videos where it was nearly
impossible to distinguish anything in the videos. The defense further argued that a day or two after
the shooting, Justin Harper was apprehended with a firearm that matched the bullet excised from
the deceased, alluding that Harper was the actual shooter.
¶7 Officer Locke testified, as a firearms examiner, that he had tested the weapon found in the
possession of Justin Harper. The recovered bullet and cartridge matched the test shots fired from
the recovered gun.
¶8 The jury was shown videos recovered from the club’s surveillance system taken during the
night of the incident. The club’s owners, Madison Garrett and Andrea Garrett, testified at trial
about the club’s video surveillance system. Both Madison and Andrea Garrett testified that they
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had known Hardin and the defendant for several years. The defendant was known as “Big D.” The
club owners identified the defendant and Hardin on the videos. Andrea testified that she was certain
that the defendant was the man in the video who was seen confronting Hardin. She testified that
she saw a gun in the video and Hardin collapsed as the gun was pointed against his chest. Andrea
also identified other men depicted in the surveillance videos, including Christopher Adams.
¶9 Christopher Adams testified at trial that he witnessed the incident. According to Adams,
the defendant hit Hardin, Hardin raised his hand up, and then the defendant shot Hardin.
Christopher admitted that he initially told the police that the shooter may have been Justin or the
defendant. He also acknowledged that he had agreed to testify truthfully pursuant to a cooperation
agreement that he made with the State in exchange for receiving probation in a matter unrelated to
this case.
¶ 10 Officer Tyson Melvin testified that he spoke with Madison and Andrea Garrett and
collected the video evidence from the club’s surveillance system. On cross-examination, Melvin
testified that he was not certain that he saw a discharge of a weapon, a flash, or report of a gun on
the videos. Defendant’s trial counsel additionally questioned Melvin about his interviews with
several witnesses, including Deontri Wiley and Andre Murray. Melvin testified that those
witnesses indicated in their statements that they had not seen anyone with a gun.
¶ 11 At the close of the State’s case, the defendant made a motion for a directed verdict. The
circuit court denied the motion. The defendant did not testify. Defense counsel did not present any
evidence on the defendant’s behalf.
¶ 12 During closing arguments, the State argued there were two propositions that it had to prove
to sustain the charge of first degree murder. The first proposition was that the defendant performed
the acts which caused the death of Hardin. The second proposition was that the defendant intended
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to kill or do great bodily harm to Hardin, he knew such acts would cause the death of Hardin, or
he knew that such acts created a strong probability of death or great bodily harm to Hardin.
¶ 13 The State, in closing, said the following when arguing that the defendant acted knowingly:
“And not to—I’m not going to insult your intelligence by belaboring the issue, but
just briefly how do we know that he intended to kill or knew that his acts would cause death
or create a strong probability of death or great bodily harm? Well, the surveillance video
shows him waiting for [Hardin] to come outside. He had a plan that night. It indicates he
knew what he was going to do. He had a car waiting for him right in front of the club.
He had a .45 calibre [sic] firearm with him. And as soon as [Hardin] exits the
building, the defendant attacks him, firing a gun into [Hardin’s] chest. After the shooting
the defendant ran into a car that was parked nearby waiting for him. And it’s common
knowledge that any time a gun is fired at a person, it’s likely to cause death or great bodily
harm.”
¶ 14 The jury found the defendant guilty of first degree murder. The defendant appealed, and
we affirmed the defendant’s conviction and sentence. See Boyd, 2014 IL App (5th) 110481-U.
¶ 15 On June 25, 2015, the defendant filed a postconviction petition pursuant to the Post-
Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2014)). The defendant claimed that his
constitutional rights were violated because: (1) appellate counsel failed to challenge the
sufficiency of the evidence; (2) appellate counsel failed to raise ineffective assistance of trial
counsel for failing to bring expert rebuttal testimony analysis on gunshot residue and burns, and
within this argument, the defendant claimed ineffective assistance of counsel for failing to
investigate and interview witnesses; (3) appellate counsel failed to raise an Apprendi violation
(Apprendi v. New Jersey, 530 U.S. 466 (2000)); (4) appellate counsel failed to raise prosecutorial
misconduct; and (5) trial counsel failed to file a pretrial motion to quash the arrest. Trial transcripts,
along with Illinois State Police investigative reports summarizing the interviews with Deontri
Wiley, Andre Murray, and Travon Wiley, were attached as exhibits to the postconviction petition.
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¶ 16 The circuit court summarily denied and dismissed the defendant’s postconviction petition
at the first stage of the proceedings. The defendant appealed the circuit court’s postconviction
decision in People v. Boyd, 2018 IL App (5th) 150310-U, and only raised issue with ineffective
assistance of trial counsel for failing to conduct a reasonable investigation. Specifically, the
defendant alleged that trial counsel failed to interview three potential defense witnesses: Deontri
Wiley, Andre Murray, and Travon Wiley. We reversed and remanded for further proceedings.
¶ 17 On June 2, 2020, the defendant filed a supplemental postconviction petition in the circuit
court. In his supplemental petition, the defendant incorporated his initial postconviction petition
and further claimed that: (1) trial counsel was ineffective for failing to object to the admission of
surveillance videos under the Illinois eavesdropping law (720 ILCS 5/14-2 (West 2008)) and
appellate counsel was ineffective for failing to raise this issue on appeal; (2) trial counsel was
ineffective for failing to object when the State misstated the law during closing argument and
appellate counsel was ineffective for failing to raise this issue on appeal; (3) trial counsel was
ineffective for his failure to interview witnesses; and (4) trial counsel was ineffective for failing to
pursue plea negotiations. The supplemental postconviction petition included several attachments,
including summaries of police interviews with Andre Murray, Deontri Wiley, and Travon Wiley;
an affidavit of Kelvin Boyd; and an affidavit of the defendant.
¶ 18 According to the police report summary of Andre Murray’s interview, Andre knew the
victim and Andre knew the shooter as “Big D.” Andre was on the steps of the club when the fight
began. He was not aware of anything leading up to the attack. “Big D” was outside when Hardin
exited the club. Hardin got “smacked” and had raised his hands to protect himself. Then, Hardin
was shot. Andre did not see the gun. “Big D” was the only one fighting with Hardin. Andre
believed that “whatever happened was from a premeditated situation.”
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¶ 19 As outlined in the summary of Deontri’s police interview, Deontri went to the club with
his cousin, Travon Wiley. Deontri saw the defendant move towards Hardin. Deontri heard a
gunshot, but he did not see anyone with a gun. After the shot was fired, Deontri ran from the scene.
¶ 20 Travon Wiley’s summary of his police interview stated that Travon was intoxicated when
the shooting occurred. He heard a gunshot, but he did not see a gun and was not able to identify
the shooter.
¶ 21 Kelvin Boyd, the defendant’s cousin, attested that he drove the defendant to Club Peek-a-
Boo so that the defendant could buy marijuana. Kelvin waited in the car at the club for the
defendant. He “observed a scuffle and heard gunfire.” When the defendant returned to the car, the
defendant said that he “did not mean for that to happen.” Kelvin did not see the defendant with a
firearm.
¶ 22 The defendant attested that his counsel ignored requests to negotiate a plea deal and
interview witnesses. The defendant had requested that trial counsel negotiate a “lesser charge.”
The defendant further attested that trial counsel stated that the State’s case was “weak,” he did not
need to interview witnesses or introduce evidence, and it was the “easiest case he’s tryed [sic].”
The defendant additionally attested that he provided trial counsel with the names of witnesses,
including Justin Harper and Kelvin Boyd. The defendant additionally requested that his trial
counsel interview those witnesses who made statements to the police indicating that they never
saw the defendant with a gun.
¶ 23 The State filed a motion to dismiss the postconviction petition on July 15, 2020. The State
addressed the allegations in the initial postconviction petition and the supplemental petition. The
State denied misstating the law during its closing argument and argued that the jury instructions
would have remedied any misstatement of law, if any misstatement had been made. The State also
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argued that the decision on who to call as a witness was a matter of trial strategy. The State
additionally argued that the defendant did not provide evidence that interviewing or producing any
of the witnesses identified would have changed the result of the trial. The State denied the claim
that trial counsel was ineffective for failing to pursue plea negotiations. The State further argued
that the defendant had waived this issue because it was not raised on direct appeal.
¶ 24 On September 18, 2020, the defendant filed an affidavit of Justin Harper. Justin attested
that he went to the club with the defendant, that Hardin had exited the club, and a fight began.
Justin heard a gunshot, saw Hardin fall, and Justin returned to the car with the defendant. Justin
was never contacted by trial counsel.
¶ 25 Also on September 18, 2020, the circuit court held a hearing on the State’s motion to
dismiss the defendant’s supplemental postconviction petition. The circuit court allowed the
affidavit of Justin Harper to be included as part of the supplemental petition. The State rested on
its written motion to dismiss.
¶ 26 The defendant argued that trial counsel was ineffective for not investigating the case. Trial
counsel had not contacted witnesses, although the witnesses were available, and he was provided
with information regarding their testimony. The defendant claimed that the testimony from the
witnesses supported a second degree murder instruction. The defendant also argued that the State
misstated the law during closing argument, where it suggested that intent was proven simply
because there was a shooting. Trial counsel failed to object, and the jury instructions did not
remedy the error. The defendant additionally argued that the Illinois eavesdropping law could have
applied where the record was not clear on whether the surveillance videos had audio.
¶ 27 In response, the State asked the circuit court to apply the same arguments made in its
motion to dismiss to the newly filed affidavit of Justin Harper. The State argued that Justin’s
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affidavit would not have changed the outcome of the trial. The circuit court took the matter under
advisement.
¶ 28 On September 23, 2020, the circuit court issued a written decision on the State’s motion to
dismiss. The circuit court addressed the claims of ineffective assistance of trial counsel and
appellate counsel raised by the defendant in the initial postconviction petition as well as the
supplemental postconviction petition.
¶ 29 The defendant raised ineffective assistance of trial counsel claims in regard to the following
claims: that trial counsel failed to assert that the defendant’s arrest violated due process; trial
counsel was ineffective for failing to investigate witnesses that the defendant believed would have
provided exculpatory evidence; and trial counsel was ineffective for failing to pursue plea
negotiations. The circuit court found that these claims were waived1 by the defendant as they could
have been raised on direct appeal.
¶ 30 The circuit court additionally found that even if the defendant had properly raised these
issues, they had no merit. The circuit court found that the defendant’s arrest warrant was timely
issued, and the issue of probable cause had been presented to a grand jury. The defendant had not
demonstrated that trial counsel’s performance was deficient on this claim.
¶ 31 The circuit court found that the defendant’s claim regarding trial counsel’s failure to
investigate witnesses was meritless. Kelvin’s affidavit would not have been exculpatory because
he would have testified at trial that the defendant said that “he did not mean for that to happen.”
Justin’s attestation failed to deny that the defendant was involved in the fight with Hardin, failed
1
Although the trial court indicated the defendant had “waived” certain issues that could have been
raised during the direct appeal, the proper terminology is “forfeited.” “A postconviction action is not an
appeal from the judgment of conviction, but is a collateral attack on the trial court proceedings. Thus,
issues raised and decided on direct appeal are barred by res judicata, and issues that could have been raised
but were not are forfeited.” People v. Tate, 2012 IL 112214, ¶ 8.
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to deny that the defendant had a gun, and failed to deny that the defendant shot Hardin. As for the
other potential witnesses, the defendant had only provided summaries of their statements given to
the Illinois State Police. Officer Tyson Melvin testified that those potential witnesses denied that
they saw the defendant with a gun. Therefore, the exculpatory evidence was before the jury through
the officer’s testimony. The circuit court found that the defendant was unable to satisfy either
prong of the Strickland test, i.e., deficient performance by counsel or prejudice. See Strickland v.
Washington, 466 U.S. 668 (1984).
¶ 32 The circuit court also found that the defendant’s claim that trial counsel was ineffective for
failing to pursue plea negotiations was without merit. The defendant had only provided self-
serving statements in his affidavit filed as part of his postconviction petition. He had not attached
any transcripts where he had complained to the circuit court or correspondence demonstrating that
trial counsel would not engage in plea negotiations. The circuit court found that the defendant had
failed to corroborate his claim regarding plea negotiations.
¶ 33 The remaining claims raised by the defendant addressed ineffective assistance of appellate
counsel. The circuit court found that the defendant had not met the burden of demonstrating that
appellate counsel was ineffective on those claims. The circuit court additionally found that the
defendant had not shown that he suffered a substantial denial of his constitutional rights; therefore,
the circuit court granted the State’s motion to dismiss the defendant’s petition for postconviction
relief. This appeal followed.
¶ 34 II. ANALYSIS
¶ 35 On appeal, the defendant argues that the circuit court erred in granting the State’s motion
to dismiss during the second stage postconviction proceeding where the defendant made a
substantial showing of ineffective assistance of counsel on the following claims: (1) trial counsel
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failed to engage in plea negotiations, (2) trial counsel failed to object to the State’s inaccurate
statement of law in its closing argument and appellate counsel failed to raise this issue on appeal,
and (3) trial counsel failed to investigate witnesses.
¶ 36 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2020)) allows a
defendant to collaterally attack a final judgment and is not a substitute for an appeal. People v.
Edwards, 2012 IL 111711, ¶ 21. “[I]ssues raised and decided on direct appeal are barred by
res judicata, and issues that could have been raised but were not are forfeited.” People v. Tate,
2012 IL 112214, ¶ 8. The doctrines of res judicata and forfeiture are relaxed where forfeiture stems
from ineffective assistance of appellate counsel, where facts relating to the claim do not appear on
the face of the original appellate record, or where fundamental fairness so requires. People v.
English, 2013 IL 112890, ¶ 22.
¶ 37 The Act provides a three-step process to resolve a criminal defendant’s conviction or
sentence that resulted from a violation of rights protected under the state or federal constitution.
People v. York, 2016 IL App (5th) 130579, ¶ 15. At the first stage of postconviction proceedings,
the court reviews the petition independently and determines whether the petition is frivolous or
patently without merit. York, 2016 IL App (5th) 130579, ¶ 15. The defendant must make a
substantial showing of a constitutional violation at the second stage. York, 2016 IL App (5th)
130579, ¶ 16. During this stage, all well-pleaded facts, not positively rebutted by the trial record,
are taken as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). The petition is dismissed if no
showing of a constitutional violation is made by the defendant. People v. Edwards, 197 Ill. 2d 239,
246 (2001). The circuit court’s decision to dismiss a petition at the second stage is reviewed
de novo. Pendleton, 223 Ill. 2d at 473. If the petition advances to the third stage, the circuit court
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will hold an evidentiary hearing on the defendant’s claims. People v. Wallace, 2018 IL App (5th)
140385, ¶ 27.
¶ 38 Criminal defendants have a constitutional right to effective assistance of counsel. People
v. Hale, 2013 IL 113140, ¶ 15. Claims of ineffective assistance of counsel are governed by the
familiar two-pronged test established in Strickland v. Washington, 466 U.S. 668 (1984). Under
Strickland, to establish a claim of ineffective assistance of counsel, the defendant must show that
(1) counsel’s performance was deficient, and (2) the deficient performance resulted in prejudice.
People v. Hughes, 2012 IL 112817, ¶ 44.
¶ 39 The defendant must overcome the strong presumption that trial counsel’s actions were the
product of sound trial strategy and not incompetence to establish deficient performance. People v.
Tucker, 2017 IL App (5th) 130576, ¶ 26. Representation will not be considered ineffective based
on mistakes in trial strategy or judgment alone as a defendant is entitled to “competent, not perfect,
representation.” Tucker, 2017 IL App (5th) 130576, ¶ 26. “In establishing the prejudice prong, the
defendant must show that there is a reasonable probability that, but for his attorney’s deficient
performance, the result of the proceedings would have been different.” Tucker, 2017 IL App (5th)
130576, ¶ 26. An ineffective assistance of counsel claim may be disposed of without addressing
counsel’s performance if the defendant did not suffer prejudice. Hale, 2013 IL 113140, ¶ 17.
¶ 40 Claims of ineffective assistance of appellate counsel are also subject to the two-pronged
Strickland test. People v. Petrenko, 237 Ill. 2d 490, 496 (2010). The defendant must show that
(1) appellate counsel’s failure to raise an issue on appeal was objectively unreasonable and
(2) appellate counsel’s decision prejudiced the defendant. People v. Phillips, 2017 IL App (4th)
160557, ¶ 66. The defendant cannot demonstrate prejudice from appellate counsel’s failure to raise
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an issue on appeal where the underlying issue is without merit. Phillips, 2017 IL App (4th) 160557,
¶ 66.
¶ 41 A. Plea Bargain
¶ 42 There is no constitutional right to plea bargain. Weatherford v. Bursey, 429 U.S. 545, 561
(1977). The defendant’s right to effective assistance of counsel extends to aspects of the plea-
bargaining process where the State chooses to enter into plea negotiations. People v. Crenshaw,
2012 IL App (4th) 110202, ¶ 13. “An attorney’s decision to initiate or pursue plea negotiations
falls within the category of trial strategy or professional judgment.” People v. Leeper, 317 Ill. App.
3d 475, 483 (2000).
¶ 43 The only document supporting the defendant’s claim that his counsel failed to enter into
negotiations for a plea bargain was the defendant’s self-serving affidavit attached to the
supplemental postconviction petition. The defendant attested that he had requested that his trial
counsel negotiate a “lesser charge.” The defendant further attested that he had a conversation with
trial counsel where they discussed whether the State had sufficient evidence to sustain a conviction
for first degree murder. The defendant’s affidavit suggests that trial counsel’s decision not to
pursue plea negotiations was based on his professional judgment.
¶ 44 Additionally, the State had not initiated plea negotiations in this case. The defendant has
not demonstrated that a favorable plea agreement could have been reached. Further, the defendant
has not demonstrated prejudice; therefore, he has not established a claim of ineffective assistance
of trial counsel.
¶ 45 B. Closing Argument
¶ 46 During closing argument, the State is barred from misstating the law or facts of the case,
from making remarks that diminish their burden of proof, or commenting on matters not based on
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evidence. People v. Buckley, 282 Ill. App. 3d 81, 89 (1996). Reversible error occurs where
improper comments result in substantial prejudice. Buckley, 282 Ill. App. 3d at 90. “The test to
determine whether the misstatement constituted substantial prejudice to the defendant is whether
the jury would have reached a contrary verdict had the misstatement not been made.” People v.
Jackson, 2012 IL App (1st) 092833, ¶ 36. Challenged remarks in a closing argument must be
viewed in context and closing arguments are reviewed in their entirety. People v. Caffey, 205 Ill.
2d 52, 131 (2001).
¶ 47 A defendant commits first degree murder under section 9-1(a)(1) when he “either intends
to kill or do great bodily harm to that individual or another, or knows that such acts will cause
death to that individual or another.” 720 ILCS 5/9-1(a)(1) (West 2008). The defendant’s mental
state may be inferred from the acts of the defendant and from the circumstances surrounding the
offense. People v. Pollard, 2015 IL App (3d) 130467, ¶ 27.
¶ 48 During the State’s closing argument, the prosecutor stated, “And it’s common knowledge
that any time a gun is fired at a person, it’s likely to cause death or great bodily harm.” The
defendant argues that proving that a weapon was discharged does not automatically prove the
defendant’s mental state required for a first degree murder conviction. The defendant, however,
acknowledges that the voluntary and willful act of a defendant in pointing a gun and shooting it in
the victim’s general direction is sufficient evidence of the intent requisite to constitute the offense
of murder. See People v. Cannon, 49 Ill. 2d 162, 166 (1971).
¶ 49 When reviewing the entirety of the State’s closing argument, the State had not solely
argued that intent was proven merely because a gun was fired. The State emphasized the facts of
this case and the circumstances surrounding the firing of the weapon while arguing that the
defendant had the intent to kill or knowledge that firing the weapon could cause death. Specifically,
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the State argued in its closing argument that the video surveillance evidence showed the defendant
was waiting for Hardin to exit the club. The defendant had a car waiting, and he had a gun. When
Hardin exited the club, the defendant attacked Hardin, shot him in the chest, and then the defendant
ran to the car. After describing what had occurred, the State commented, “And it’s common
knowledge that any time a gun is fired at a person, it’s likely to cause death or great bodily harm.”
When considering the closing statement in its entirety, the State argued that the defendant
intentionally discharged the gun at Hardin and, based on the reasonable inferences drawn from the
facts of the case, firing a weapon at an individual under these circumstances is likely to cause death
or great bodily harm.
¶ 50 As the underlying claim is without merit, trial counsel’s performance was not deficient for
choosing not to object to the State’s closing argument. Appellate counsel’s performance, therefore,
was not deficient for failing to raise this issue on direct appeal. The circuit court did not err in
granting the motion to dismiss as it relates to this issue.
¶ 51 C. Witness Investigation
¶ 52 “Defense counsel has a professional obligation, both legal and ethical, to explore and
investigate a client’s case.” People v. Makiel, 358 Ill. App. 3d 102, 107 (2005). For a claim of
ineffective assistance of counsel based on trial counsel’s failure to investigate to prevail, the
defendant must show that substantial prejudice resulted and that there is a reasonable probability
that the result would have been different had counsel properly investigated. People v. Orange, 168
Ill. 2d 138, 151 (1995). Where there is no evidence that exculpatory evidence exists, the defendant
cannot demonstrate a substantial showing of ineffective assistance of counsel for failure to
investigate or call a witness. People v. Dupree, 2018 IL 122307, ¶ 37. The decision on who to call
as a witness is a matter of trial strategy, and generally immune from claims of ineffective assistance
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of counsel, unless counsel’s strategy was “so unsound that no meaningful adversarial testing was
conducted.” People v. Enis, 194 Ill. 2d 361, 378 (2000).
¶ 53 In People v. Boyd, 2018 IL App (5th) 150310-U, the defendant appealed the dismissal of
his postconviction petition after first-stage review on the issue of whether trial counsel was
ineffective for failing to interview potential defense witnesses identified in police reports. Those
witnesses identified were Deontri Wiley, Andre Murray, and Travon Wiley.
¶ 54 Now, the defendant argues that his trial counsel was ineffective based on his failure to
interview Justin Harper, Kelvin Boyd, and Andre Murray. In the defendant’s supplemental
postconviction petition, he provided affidavits for Kelvin Boyd and Justin Harper and relied on
the same police report that was attached to the initial postconviction petition for Andre Murray.
The issue of whether trial counsel was ineffective for failing to interview Deontri Wiley, Travon
Wiley, or any other witness, as alleged in the defendant’s original postconviction petition, was not
raised in this appeal.
¶ 55 The defendant presented a defense at trial that he was not armed, and the shooter was Justin
Harper. The defendant argued that Justin Harper was present at the scene, and he was subsequently
charged with unlawful use of the murder weapon. Now, the defendant is claiming that trial counsel
was ineffective for failing to investigate Harper as a potential witness to exonerate the defendant.
The affidavit provided by Harper, however, did not expand on why a fight began outside of the
club, and Harper did not attest that he, or anyone else, had committed the crime.
¶ 56 Kelvin Boyd attested that he drove the defendant to the club and waited for the defendant
in the car. He heard a gunshot, but never saw a gun. Kelvin additionally attested that the defendant
returned to the car and said that he did not “mean for that to happen.” His testimony did not align
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with the defendant’s defense that the defendant was not the shooter. Kelvin’s affidavit also did not
describe any details about what had happened at the time of the shooting.
¶ 57 The defendant did not provide an affidavit of Andre Murray. According to the police report
summary, Andre knew the shooter was “Big D,” and “Big D” was the only one fighting with
Hardin. Andre believed that “whatever happened was from a premeditated situation.” Trial counsel
questioned Officer Melvin on his witness interviews. Melvin testified that those witnesses had not
seen anyone with a gun. The defendant had not demonstrated that the outcome of the trial would
have differed had Andre testified in addition to Melvin’s testimony from the police report summary
that Andre had not seen the gun.
¶ 58 The defendant has not proven that counsel was ineffective where the witness affidavits do
not demonstrate that exculpatory evidence actually exists. The defendant has not demonstrated
how the witnesses would have reasonably advanced any claim of mitigated first degree murder.
Neither prong of the Strickland test can be established based on the witness affidavits or the police
report summary of Andre’s interview.
¶ 59 The defendant has not made a substantial showing of a constitutional violation during the
second stage postconviction proceeding. The trial court did not err in dismissing the defendant’s
supplement postconviction petition.
¶ 60 III. CONCLUSION
¶ 61 For the reasons stated above, we affirm the order of the circuit court of St. Clair County.
¶ 62 Affirmed.
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