People v. Powe , 2020 IL App (1st) 173059-U ( 2020 )

2020 IL App (1st) 173059-UNo. 1-17-3059
SECOND DIVISION
November 17, 2020
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent
by any party except in the limited circumstances allowed under Rule 23(e)(1).
____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST JUDICIAL DISTRICT
____________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Circuit Court
) of Cook County.
Plaintiff-Appellee, )
)
v. ) No. 09 CR 20719 02
)
DUJUAN POWE, )
) The Honorable
Defendant-Appellant. ) Stanley J. Sacks,
) Judge Presiding.
____________________________________________________________________________
JUSTICE PUCINSKI delivered the judgment of the court.
Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment.
ORDER
¶1 Held: The circuit court properly summarily dismissed defendant’s petition for postconviction relief
where defendant failed to set forth a claim that he was arguably prejudiced by his trial counsel’s
failure to subpoena his girlfriend’s phone records, because the evidence of defendant’s guilt was
overwhelming, and the phone records would have carried little probative value as to defendant’s
telephonic confession, which was strongly corroborated by the State’s other evidence.
¶2 This appeal arises from the summary dismissal of defendant Dujuan Powe’s petition for
relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1, et seq. (West 2016)).
Defendant was convicted of first degree murder and aggravated kidnapping, and received
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consecutive prison sentences of natural life for murder and 21 years for aggravated kidnapping.
After successfully challenging his sentence for aggravated kidnapping on direct appeal,
defendant’s sentence for aggravated kidnapping was reduced to 15 years’ imprisonment.
¶3 At defendant’s jury trial, Taron Webb and Tasha Nash each testified that defendant called
them and confessed to the murder of Kenyatae Collier. Webb testified that defendant made the
confession using the phone of defendant’s girlfriend, Benita Wallace. Nash, however, did not
specify the phone that defendant used.
¶4 On this appeal, defendant argues that the circuit court erred in summarily dismissing his
postconviction petition where he set forth an arguable claim of ineffective assistance of trial
counsel. According to defendant, the grand jury testimony 1 of Webb and Nash specified that
defendant made the confessions using Wallace’s phone. Defendant claims that his trial counsel
was ineffective for failing to subpoena Wallace’s phone records, which would have shown these
calls never occurred. We affirm.
¶5 I. BACKGROUND
¶6 Defendant was charged alongside his brother, co-defendant Darron Brewer, by a 71-count
indictment, which included charges of first degree murder (720 ILCS 5/9-1(a)(1), (2), (3) (West
2016)), aggravated vehicular hijacking (id. § 18-4(a)(2), (3), (6) (West 2016)), and aggravated
kidnapping (id. § 10-2(a)(2), (4), (8) (West 2016)), 2 following an incident in Chicago on October
26, 2009. Brewer received a jury trial simultaneously with defendant before a different jury. 3
1
The record before us does not contain the portion of the grand jury testimony in which Webb and
Nash purportedly stated that defendant called them from Wallace’s phone to make his confessions.
2
The indictment also included a charge of solicitation of first degree murder (id. § 8-1.1(a) (West
2016)), which was only brought against co-defendant Brewer.
3
Our records indicate that Brewer has filed two separate appeals designated case nos. 1-18-2638
and 1-20-0585. Brewer does not join in this appeal.
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¶7 At trial, the State presented Taron Webb, defendant’s cousin, who testified that in early
October 2009, he met with defendant in Webb’s bedroom. Defendant told Webb that defendant’s
brother, Brewer, was concerned Brewer’s wife, Collier, would divorce him if she discovered
Brewer was homosexual. Upon divorce, Brewer would be unable to receive money from Collier’s
life insurance policy. Therefore, Brewer wanted defendant to “strangle” Collier before she
divorced Brewer. Defendant told Webb he “went to strangle” Collier, but “couldn’t carry through
with it” and instead engaged in sexual intercourse with Collier.
¶8 Later, on the night of October 26, 2009, defendant called Webb from his girlfriend
Wallace’s phone. Defendant told Webb, “ ‘I got her,’ ” and “ ‘I got that b***.’ ” Webb responded,
“ ‘Oh, my god. Please don’t tell me you did that.’ ” Webb could then hear noise in the background
from defendant’s end, someone asked defendant something, and defendant told Webb he would
call Webb back. Defendant hung up the phone, and Webb “never heard from him.” The next
morning, Webb called the police with his aunt, Nash.
¶9 Webb additionally testified that one or two years before Collier’s murder, defendant had
worn a mask for Halloween similar to one depicted in a photograph the State entered into evidence.
The photograph was described by other witnesses as depicting the mask worn in the film “Scream”
(“Scream” mask). Webb also confirmed that photographs entered into evidence depicted Brewer
and the vehicle that Brewer and Collier owned.
¶ 10 On cross-examination, Webb clarified that Collier had discovered Brewer was homosexual
and had already threatened to divorce Brewer. Webb also clarified that defendant claimed he had
had consensual sex with Collier when he first attempted to “strangle” Collier, and there was “no
force.”
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¶ 11 The State also called Tasha Nash, who was the aunt of defendant, Brewer, and Webb. She
testified that in the fall of 2009, Brewer drove a blue Chevrolet Monte Carlo and defendant did not
have a vehicle. In the fall of 2009, Nash first learned that Brewer had a boyfriend named Josh.
¶ 12 Additionally, Nash stated that prior to Collier’s death, Collier had accused defendant of
raping her, and so Nash told defendant to call Collier “to find out what was going on.” Defendant
and Collier spoke on the phone in Nash’s presence. During the conversation, Collier never raised
her voice and did not accuse defendant of raping her, and defendant and Collier spoke in a “mild
manner.” Later, about three weeks before Collier’s death, Nash had a “sit-down” with Brewer and
defendant in Brewer’s vehicle. In the vehicle, Brewer stated that Collier was going to tell the police
defendant raped her at gunpoint. Defendant responded that he had “consensual sex” with Collier,
and that Collier told defendant “she had feelings for him.” Nash, Brewer, and defendant agreed
that defendant would not be around Collier unless someone else was present.
¶ 13 Later, on October 25, 2009, defendant called Nash and asked her if she “had or knew
someone with some .38 shells.” Nash said she did not. On October 26, 2009, at about 10 p.m.,
defendant called Nash again sounding “[a]nxious and agitated” and asked Nash to pick him up.
Nash refused and asked what was wrong. Defendant explained that his girlfriend, Wallace, “was
vomiting everywhere and he couldn’t take it.” Nash was aware that Wallace was pregnant with
defendant’s baby, and Nash told defendant to give Wallace some peppermint. Defendant
responded, “ ‘No, I got to get out of here. I got to go. I got to go, I need to leave here now.’ ”
¶ 14 When Nash asked what was wrong again, defendant stated multiple times, “ ‘I did
something stupid.’ ” Nash asked what defendant did, and defendant stated that he took Collier’s
vehicle. Nash told him to return the vehicle, and defendant stated, “ ‘No, it’s more than that.’ ”
Defendant then told Nash that while Brewer and Collier were at a gas station, defendant
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approached and pretended to carjack them. Defendant got into the vehicle, the vehicle was driven
into an alley, and defendant put Collier in the trunk. Defendant then drove to Brewer’s house and
dropped Brewer and Brewer’s children off. Next, he drove to another alley, opened the trunk of
the vehicle, and Collier started getting out of the trunk. Collier begged defendant not to “do this to
me” and stated, “I live for my kids,” and “I love my kids.” She then asked if she could “use the
bathroom.” Defendant allowed her to do so, and as she returned to the trunk he shot her in the
head.
¶ 15 After defendant told this story, Nash hung up the phone. She initially did not call the police
because she did not believe defendant story, as she thought “if you’re going to kill somebody, why
do you care if they use the bathroom.” The next day, Nash saw a news story on the television that
a woman was found in the trunk of a vehicle on the northwest side of Chicago, and a picture of the
vehicle was televised. Nash testified that the vehicle looked like Brewer’s vehicle, but it lacked a
front license plate. Nash went to her mother’s house and watched the 11 a.m. news with Webb,
Nash’s mother, and Nash’s sister. Nash saw Collier’s picture, pulled Webb to his bedroom to speak
with him, and told Webb what she knew. On October 27, 2009, Nash went to the police station.
¶ 16 Charles Reed testified that on October 26, 2009 at about 12:38 a.m., he was working at a
gas station on the 1200 block of West 58th Street. He was outside and heard what he believed to
be a woman screaming for help. He looked towards a gas pump and saw a man scream, “Help,
help.” Reed saw another man wearing a “Scream” mask walk up to the man screaming and put his
hand in his pocket “like he was going for a gun.” The man screaming for help got into the driver’s
side, and the masked man entered the front passenger’s seat. The vehicle drove out of the parking
lot.
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¶ 17 Reed believed he had witnessed a carjacking and called the police. The police responded
to Reed’s call, and in the afternoon two Chicago police detectives arrived and viewed video
recordings of the carjacking. The State entered into evidence multiple photographs depicting the
carjacking footage. Reed confirmed that in one photograph, the man who yelled for help was seen
opening the trunk of the vehicle and looking into it. Another photograph also depicted the man
wearing the “Scream” mask. In the early morning of October 27, 2009, Reed went to the police
station and identified Brewer as the man who was yelling for help.
¶ 18 Theresa Jones, Collier’s mother, testified that on October 26, 2009, between 11 a.m. and
12 p.m., Brewer arrived at Jones’s apartment and took some clothes and diapers for his children.
Jones asked Brewer if he had seen Collier, and Brewer said he had not seen Collier since 1 a.m.,
when she “dropped him off and *** kept going.” Jones and Brewer agreed that if one of them saw
Collier, they would call the other.
¶ 19 Defendant’s girlfriend, Wallace, testified that as of October 25, 2009, she had been dating
defendant for about six to eight months, and she was pregnant with a child she had with defendant.
Wallace stated that one week before Collier’s death, defendant had a “Scream” mask. She and
defendant would wear the mask to “scare*** the kids in the house.” After Collier was killed,
Wallace never saw defendant’s “Scream” mask again. Wallace further stated that defendant did
not own a vehicle and Brewer would often pick defendant up and drop him off. Defendant also did
not have a cell phone and used Wallace’s phone.
¶ 20 On October 25, 2009, at about 11 p.m., she was at home with defendant and received a
phone call for defendant. Wallace gave the phone to defendant. Then, defendant stepped out of the
room for two or three minutes, returned to the room, gave the phone back to Wallace, and left.
Wallace did not see defendant again until October 26, 2009, at about 7:30 or 8 a.m., when
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defendant knocked on her bedroom window. Wallace let defendant in the house and returned to
her bed with him. Wallace described her bed as “[f]ive mattresses stacked together against the wall
by the window.” Wallace confirmed that a photograph entered into evidence depicted a firearm
placed between two mattresses. However, she stated that she had never seen the firearm before,
that she had not known it was there, and that she never gave defendant permission to hide it
between her mattresses. On October 27, 2009, at about 7 or 8 o’clock, defendant received a phone
call and left. Wallace never saw him at her house again. Later, police officers recovered the firearm
from between Wallace’s mattresses, and Wallace went to the police station with the officers.
¶ 21 The State also called Joshua Maddox, whom other witnesses had stated was Brewer’s
boyfriend. Maddox testified that he met Brewer in the summer of 2009. Brewer drove a dark blue
Chevrolet Monte Carlo, while Maddox drove a red Chrysler Sebring. He and Brewer “became
friends and just hung out” until October 2009. On October 26, 2009, at about 6 a.m., Maddox woke
up and saw he had received a text message and phone call from Brewer in the middle of the night.
At about 7 a.m., Maddox called Brewer. Brewer told Maddox that his wife and vehicle were
missing, and that he had called his wife but she did not respond. Maddox volunteered to take
Brewer’s children to daycare and arrived at Brewer’s apartment at about 8 a.m. Defendant,
Maddox, Brewer, and Brewer’s children drove to the daycare center in Maddox’s vehicle.
¶ 22 After going to the daycare center, Brewer drove them to the police station and entered the
station for about 10 minutes while Maddox and Powe remained in the vehicle. They then drove to
a “store front church,” and defendant exited the vehicle holding a “balled up” object that looked
like a jacket. Defendant went through a gate in the back side of the church and walked out of
Maddox’s sight. After a couple minutes, defendant returned to the vehicle. They dropped
defendant off further down the block that the church was on. Maddox never saw defendant again.
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¶ 23 Later on the night of October 26, at about 10:36 p.m., Maddox was driving Brewer to
Brewer’s apartment when they passed a Monte Carlo in an alley. Brewer stated, “I think I just saw
my car.” Maddox drove back to the Monte Carlo, exited his vehicle, and looked inside the Monte
Carlo to see that it appeared “ransacked.” Maddox returned to his vehicle and suggested that
Brewer call the police. Brewer called the police, and the State entered into evidence a transcript of
the phone conversation between Brewer and the police. The State also played a recording of the
conversation. Maddox confirmed that in the conversation, Brewer never reported that he was
carjacked the night before. About an hour after leaving Collier’s Monte Carlo in the alley, Maddox
went to the police station, and police told him that Collier had been shot in the head twice.
¶ 24 Maddox also confirmed that photographs of the “carjacking” at the gas station depicted a
vehicle that looked like Brewer’s Monte Carlo, and that Brewer was the man walking to the vehicle
and opening the trunk. Maddox denied that Brewer ever told Maddox he was carjacked that night.
¶ 25 On cross-examination, Maddox confirmed that his relationship with Brewer in 2009
remained a “friendship,” but that “at some point it got intimate.” Additionally, Maddox confirmed
that when defendant exited Maddox’s vehicle holding the “balled up” object, Maddox could not
recall whether defendant returned with the object. When Brewer and Maddox found Brewer’s
Monte Carlo in the alley, Brewer had suggested the route that led them there. Also in cross-
examination, Maddox stated he did not know Brewer was married until the night of October 26,
2009, when he and Brewer were taken to the police station.
¶ 26 Chicago police forensic scientist Jennifer Belna testified that she examined a buccal swab
sample from defendant, Brewer, Maddox, and Collier, and she examined swabs from a firearm.
Belna was unable to obtain a full DNA profile from the firearm, and she concluded that defendant,
Brewer, Maddox, and Collier did not contribute to the low level DNA profile on the firearm.
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¶ 27 Chicago police officer Mariusz Chojnacki testified that on October 26, 2009, he and his
partner received an assignment to meet up with a caller in a red Chrysler Sebring. They received
information that a vehicle had been discovered in an alley near the caller’s location. They located
the vehicle in the alley, which was empty with the driver’s door unlocked, but did not find the
caller who reported the vehicle. The officers opened the trunk and found a woman “laying face up
in the trunk *** with dry blood stains on her face and upper body.” Chicago police officer Scott
Korhonen testified that on October 27, 2009, at about 10 p.m., he and seven or eight other officers
went to Wallace’s house to find defendant, who was a “wanted individual.” Wallace’s mother met
with the officers and signed a consent to search form. The officers searched Wallace’s bedroom
and found a handgun in between a stack of mattresses, as well as clothing, a bag, and a wallet
containing defendant’s identification. The State entered into evidence the consent to search form,
as well as photographs of Wallace’s bedroom and the firearm found in the bedroom.
¶ 28 Chicago police forensic scientist Kathleen Gahagan testified regarding video footage
depicting the alley on the 2200 block of North Tripp Avenue, where the blue Chevrolet Monte
Carlo containing Collier’s body was found. Gahagan further testified that a temporary license plate
was also found in the trunk of the vehicle. During Gahagan’s direct examination, the State
presented photographs of the scene, including one photograph reflecting that the Chevrolet’s front
license plate was missing, one photograph reflecting a license plate on the rear of the vehicle, and
one photograph reflecting the vehicle’s vehicle identification number on the front dashboard.
Chicago police evidence technician Matthew J. Savage testified that he processed the blue
Chevrolet Monte Carlo and found fingerprints on the top of the inside of the trunk. On cross-
examination, Savage clarified that three fingerprints were lifted from the trunk’s interior, one was
lifted from the trunk’s exterior, and four were lifted from the interior rear view mirror.
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¶ 29 Illinois state police forensic scientist Joseph Wohrstein testified that he received seven
fingerprint lift cards, and that prints lifted from the interior of the trunk matched Collier’s
fingerprint. On cross-examination, Wohrstein confirmed that the prints did not match with Brewer
or defendant.
¶ 30 Illinois state police trace evidence analyst Robert Berk testified that he received a glove
entered into evidence that had been recovered from Wallace’s bedroom. He tested the glove for
gunshot residue but only found two of the three “tri-component particles” necessary to make a
positive finding for gunshot residue. He thus concluded that “the sampled area of the glove may
not have contacted a [gunshot residue] related item or may not have been in the environment of
the discharged firearm.” He also stated that if it was in the environment of the discharged firearm,
the particles “were removed by activity or *** not detected by the procedure.”
¶ 31 Cook County assistant medical examiner Joseph Lawrence Cogan testified that he
performed Collier’s autopsy, observed two gunshot wounds to Collier’s head that caused
“extensive fracturing” to Collier’s skull, and recovered two bullets from Collier’s head. Cogan
also observed evidence of “close-range firing,” meaning that the muzzle of the firearm was 18
inches or less from the surface of the skin. Cogan concluded that Collier’s cause of death was
“multiple gunshot wounds,” and the death was classified as a homicide. Cogan also confirmed that
Collier’s wounds were consistent with the evidence that Collier was shot while in the trunk of a
vehicle by a shooter standing outside the trunk within close range.
¶ 32 Illinois state police forensic scientist Justin Barr testified that he received the firearm that
was recovered from the mattresses in Wallace’s bedroom. He confirmed that the firearm could fire
.38 shells. Barr opined that the bullets recovered from Collier’s head were fired from the firearm
recovered from the mattresses in Wallace’s bedroom.
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¶ 33 Chicago police detective Anthony Noradin stated that on October 27, 2009, at about 12:10
a.m., he and a partner went to the alley where the blue Chevrolet Monte Carlo containing Collier’s
body was found, at the 2200 block of North Tripp Avenue. Examining the license plate of the
vehicle, he identified Brewer as the vehicle’s registered owner. At about 12:20 p.m., a phone
interview with Webb was conducted, and Noradin and a partner picked up Webb at a gas station.
Noradin formally interviewed Webb at the police station, and also interviewed Brewer, who was
not yet under arrest. At about 8:40 p.m., Noradin and two other detectives conducted an interview
with Nash. Noradin also confirmed that interviews were conducted with Wallace and Maddox, and
that Reed, the gas station employee, identified Brewer from a lineup as being the victim of the
recorded carjacking. On October 29, 2009, at about 10 p.m., defendant turned himself into the
police station and was formally arrested.
¶ 34 Chicago police detective Jose Cardo testified that on October 27, 2009, he and Detective
Gonzalez 4 conducted two interviews with Brewer at about 1:15 p.m. and 2:40 p.m. respectively.
He then went to the gas station where Reed worked, met with Reed, and watched surveillance
footage of the carjacking. Cardo identified Brewer in this footage.
¶ 35 The parties stipulated that if called to testify, Ann Louise Ford, the corporate vice president
for the New York Life Insurance Company, would testify regarding two exhibits: (1) a group life
insurance policy covering the life of Collier in the amount of $100,000 as a spouse of Brewer as
an insured National Guard member; and (2) a group life insurance policy that covered the life of
Collier in the amount of $5,000 as the spouse of Brewer as an insured member of the military.
Illinois Army National Guard Sergeant Sarah Campbell also testified regarding the details of these
documents. The parties also testified that a Chicago police officer recovered from Wallace’s
4
Detective Gonzalez’s first name does not appear in the transcript of the trial proceedings.
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bedroom a handgun, a bag containing men’s clothing, a pair of men’s gym shoes, a pair of men’s
gloves, a duffel bag, a wallet, and a hat.
¶ 36 The State rested.
¶ 37 The defense called on defendant’s behalf Chicago police detective Donald Falk, who
testified that on October 29, 2009, at about 1:41 a.m., he interviewed Collier’s mother, Jones, to
determine whether Collier had ever mentioned being raped. Jones had no knowledge that Collier
had been raped. Falk also confirmed that at some point prior to her death, he had interviewed
Collier, who confirmed that she had had problems with Brewer “for a while.”
¶ 38 The jury found defendant guilty of first degree murder and aggravated kidnapping.
¶ 39 Defendant filed a motion for new trial alleging, inter alia, (1) that the State failed to prove
him guilty beyond a reasonable doubt; (2) that the circuit court erred in granting the State’s motion
in limine to admit co-conspirator statements and proof of other crimes evidence; (3) that the circuit
court erred in not allowing the defense a continuance to retrieve Brewer’s phone records; and (4)
the circuit court erred in allowing Nash to testify regarding her conversation with Brewer, in which
they discussed Collier’s accusation that defendant raped her. Additionally, defendant filed a
supplemental motion for new trial, arguing, inter alia, (1) that the circuit court erred in barring
defendant from introducing evidence regarding his lack of criminal convictions; (2) that the circuit
court erred in overruling defendant’s objection to the introduction of evidence regarding Reed’s
phone call to the police; and (3) that the State “made improper comments that Taron Webb and
Tasha Nash were credible because they were not jail house informants.” The court denied
defendant’s motions.
¶ 40 The circuit court imposed on defendant prison sentences of natural life for one count of
first degree murder and 21 years for aggravated kidnapping.
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¶ 41 On direct appeal, defendant argued that (1) the State misstated expert witness testimony in
closing argument; (2) his life sentence for murder was excessive; and (3) the circuit court
misapprehended the applicable sentencing range for defendant’s aggravated kidnapping
conviction. On March 30, 2016, we remanded the case for resentencing on defendant’s aggravated
kidnapping conviction, but otherwise affirmed the circuit court’s judgment. People v. Powe, 2016
IL App (1st) 133205-U. On March 10, 2017, defendant’s sentence for aggravated kidnapping was
reduced to 15 years’ imprisonment.
¶ 42 On April 3, 2017, defendant filed a pro se postconviction petition, alleging that his trial
counsel provided ineffective assistance by failing to obtain Wallace’s phone records. According
to defendant, these phone records would have shown defendant never made the calls to Nash or
Webb on October 26, 2009, in which defendant confessed to Collier’s murder. He claimed that he
had requested his trial counsel several times to subpoena Wallace’s phone records, but his “claims
were met with excuses and disbelief,” and his trial counsel never subpoenaed the records.
Defendant also claimed that he had “attempted to obtain the phone records but thus far has been
unsuccessful.” He alleged that Wallace had obtained the records and defendant’s mother, Roxanne
Brough, mailed them to defendant’s trial counsel. However, defendant’s trial counsel never
received them. Defendant claimed that he had “continuously requested” that Wallace retrieve the
records again, but Wallace had not been able to because the account was not in her name.
Defendant further alleged that he was not able to obtain an affidavit from Wallace or Brough
because Wallace was “uncooperative” and Brough “claims to have mailed the affidavits to
[defendant] but [defendant has] yet to receive them.”
¶ 43 Defendant also alleged that his counsel on direct appeal was ineffective for failing to raise
an ineffective assistance claim that defendant’s trial counsel failed to impeach Webb with the video
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recording of his interrogation and with the testimony of Noradin. Defendant claimed that in prior
statements to the police, Webb never mentioned the conversation he had with defendant in Webb’s
bedroom three weeks before the incident. According to defendant, his trial counsel was
additionally ineffective for failing to cross-examine Webb to elicit a statement Webb made to
police that he “ ‘believed Brewer and [defendant] planned to kill Collier to collect on a life
insurance policy.’ ” (Emphasis in original.) Further, defendant claimed that his counsel on direct
appeal was ineffective for failing to raise an ineffective assistance claim that defendant’s trial
counsel failed to impeach Nash on prior inconsistent statements Nash made to the police.
According to defendant, Nash had previously told the police of defendant’s confession, but “never
referenced Brewer or his children being present; the car-jacking; or the gas station.”
¶ 44 In support of this petition, defendant provided an affidavit, in which he alleged:
“In the year of 2010, sometime in the month of October my attorney *** came to
visit me in the Cook County Jail. During the visit [my attorney] showed me the Grand Jury
Transcripts where both Tasha Nash & Teron Webb testified that I called [both] cellphone[s]
& confessed to the murder of Kenyatae Collier. Tasha Nash testified that I called on
10/26/09 at 10 pm from my then girlfriend Benita Wallace’s phone number ***. Teron
Webb also testified that I called him on 10/26/09 at 7:30 pm & confessed to the murder.
Unlike Nash, Webb did not state at the grand jury which number I allegedly called from.
However, this was clarified at trial when Webb testified that I called from Benita
Wallace[’s] phone number. After reviewing the testimony of both Nash & Webb, I told my
attorney *** he needs to subpoena Benita Wallace’s phone records because I never called
Nash or Webb & confessed to the murder of Kenyatae Collier. The records will show that
no call was placed from Benita Wallace’s phone number *** to either Tasha Nash nor [sic]
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Teron Webbs’ phone on the date or time each *** witness testified to. This would
definitively prove that neither conversation took place & that both individuals perjured
themselves before the grand jury & trial jury.
I as well as my mother Roxanne Brough has tried to contact Benita Wallace to get
the phone records but she has not returned any of my letters or phone calls nor the visits
from my family. At the time of the filing Roxanne Brough claims to have mailed an
affidavit to me but I [have] yet to receive them.”
¶ 45 On June 21, 2017, the circuit court summarily dismissed defendant’s postconviction
petition. The circuit court found that defendant’s claim based on trial counsel’s failure to obtain
Wallace’s phone records was speculative, frivolous, and patently without merit “because
[defendant] does not attach an affidavit from Wallace or any records or affidavits tending to show
that the phone calls were never made.” The court additionally held that defendant failed to support
his assertion that Wallace mailed him phone records or that she was unable to obtain new records.
Further, the court found defendant failed to establish that his trial counsel was ineffective for not
obtaining the phone records, or that defendant was prejudiced by the failure. As to the alleged
failure of defendant’s trial counsel to cross-examine and impeach Webb and Nash regarding their
alleged inconsistent statements, the court found that the defense counsel’s cross-examination of
Webb was a matter of trial strategy. The court also held defendant had failed to show his trial
counsel’s decision in cross-examining these witnesses resulted in prejudice, when the evidence
against defendant was “overwhelming.” (Internal quotation marks omitted.)
¶ 46 This appeal followed.
¶ 47 II. ANALYSIS
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¶ 48 On appeal, defendant argues that the circuit court erred in summarily dismissing his
postconviction petition, where he set forth an arguable claim of ineffective assistance. Defendant
asserts that his trial counsel was ineffective for failing to subpoena Wallace’s phone records, which
would have shown that defendant “did not use Wallace’s phone to call Tasha Nash and Taron
Webb to confess to the murder of Kenyatae Collier.” The State responds that the circuit court
properly summarily dismissed defendant’s petition because defendant forfeited the issue by failing
to raise it on direct appeal, and because defendant failed to set forth an arguable claim that his
counsel was deficient and that he was prejudiced by the deficiency.
¶ 49 The Act (725 ILCS 5/122-1, et seq. (West 2016)) provides a remedy for criminal
defendants whose constitutional rights were substantially violated at trial or sentencing. People v.
Dupree, 2018 IL 122307, ¶ 28. During first-stage proceedings under the Act, the circuit court must
determine whether the defendant’s postconviction petition is “ ‘frivolous or is patently without
merit.’ ” People v. Boykins, 2017 IL 121365, ¶ 9 (quoting 725 ILCS 5/122-2.1(a)(2) (West 2016)).
The court may summarily dismiss a postconviction petition as frivolous or patently without merit
only where the petition “has no arguable basis either in law or in fact.” People v. Hodges, 234 Ill.
2d 1, 11-12 (2009). A petition has “no arguable basis either in law or in fact” where it “is based
on an indisputably meritless legal theory or a fanciful factual allegation.” Id. at 16. “An example
of an indisputably meritless legal theory is one which is completely contradicted by the record,”
and “[f]anciful factual allegations include those which are fantastic or delusional.” Id. at 16-17.
¶ 50 During first stage postconviction proceedings, “the court treats allegations of fact as true
so long as those allegations are not affirmatively rebutted by the record.” (Internal quotation marks
omitted.) People v. White, 2014 IL App (1st) 130007, ¶ 18. In first-stage postconviction
proceedings, “the petition cannot be said to be at issue,” and the circuit court acts “strictly in an
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administrative capacity by screening out those petitions which are without legal substance or are
obviously without merit.” (Internal quotation marks omitted.) People v. Tate, 2012 IL 112214,
¶¶ 9-12. The Illinois Supreme Court requires that courts review pro se postconviction petitions
“with a lenient eye, allowing borderline cases to proceed.” (Internal quotation marks omitted.)
Hodges, 234 Ill. 2d at 21. We review de novo the summary dismissal of a postconviction petition.
Id. ¶ 10.
¶ 51 A criminal defendant has the constitutional right to the effective assistance of counsel
under the sixth amendment to the United States Constitution (U.S. Const., amends. VI, XIV) and
the Illinois Constitution (Ill. Const. 1970, art. I, § 8). People v. Domagala, 2013 IL 113688, ¶ 36.
To succeed on an ineffective assistance of counsel claim, a defendant must establish that
“counsel’s performance was deficient,” and that “the deficient performance prejudiced the
defense.” Strickland v. Washington, 466 U.S. 668, 687 (1984). More specifically, “a defendant
must show that counsel’s performance was objectively unreasonable under prevailing professional
norms and that there is ‘a reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.’ ” Domagala, 2013 IL 113688, ¶ 36 (quoting
Strickland, 466 U.S. at 694). During first-stage postconviction proceedings, the circuit court may
not summarily dismiss a postconviction petition if “(i) it is arguable that counsel’s performance
fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was
prejudiced.” Hodges, 234 Ill. 2d at 17.
¶ 52 A. Forfeiture
¶ 53 We first address the State’s contention that defendant forfeited this issue by failing to raise
it on direct appeal. As the State observes, defendant also did not set forth a claim in his petition
that his counsel on direct appeal was ineffective for failing to argue that trial counsel was
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ineffective for not subpoenaing Wallace’s phone records. Rather, the claim as alleged in the
postconviction petition only alleges the ineffective assistance of trial counsel. We find the State’s
argument of forfeiture to be without merit.
¶ 54 Postconviction proceedings are intended “to allow inquiry into constitutional issues
involved in the original conviction and sentence that have not been, and could not have been,
adjudicated previously on direct appeal.” People v. Towns, 182 Ill. 2d 491, 502 (1998). “[I]ssues
that could have been raised on direct appeal, but were not, are forfeited.” People v. English, 2013
IL 112890, ¶ 22. However, the doctrines of forfeiture and waiver are relaxed “where the facts
relating to the claim do not appear on the face of the original appellate record.” People v. Harris,
206 Ill. 2d 1, 13 (2002).
¶ 55 Defendant’s claim clearly concerns facts that were not contained in the original appellate
record. Namely, defendant claims that he requested his trial counsel to obtain Wallace’s phone
records, which would have shown that defendant never used Wallace’s phone to make the two
calls on October 26, 2009, in which defendant confessed to Collier’s murder. However, according
to defendant, defendant’s trial counsel never obtained the phone records. Neither defendant’s
discussions with his trial counsel nor Wallace’s phone records were contained in the original
appellate record, and so this court will relax the doctrine of forfeiture. Id.¶ 56 To support its forfeiture argument, the State cites People v. Gale, 376 Ill. App. 3d 344(2007), and People v. Dominguez, 366 Ill. App. 3d 468 (2006). Both are distinguishable. In Gale,
the defendant asserted that his trial counsel was ineffective for “fail[ing] to obtain his mental health
records where such records could have given rise to a bona fide doubt of his fitness to stand trial
and could have served as mitigation at sentencing.” Gale, 376 Ill. App. 3d at 348. However, as this
court noted, evidence regarding the defendant’s mental health had been presented at the
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defendant’s sentencing hearing, and the defendant had already argued on direct appeal that the trial
court failed to conduct a competency hearing based on the defendant’s mental health. Id. at 347,
349. Here, unlike in Gale, there was no evidence in the original appellate record regarding the
contents of Wallace’s phone records or defendant’s conversations with his trial counsel regarding
the records.
¶ 57 Dominguez is also clearly distinguishable, as the defendant in Dominguez conceded on
collateral appeal that he had forfeited his claim by failing to raise it on direct appeal, but claimed
fundamental fairness required this court to consider the issue. Dominguez, 366 Ill. App. 3d at 474.
The fact that the defendant had forfeited his claim was not even at issue.
¶ 58 As stated, defendant’s claim is based on facts that were not contained in the record on direct
appeal, and so defendant could not have previously raised his current ineffective assistance claim.
Therefore, we relax the doctrine of forfeiture. Harris, 206 Ill. 2d at 13. We find that defendant has
not forfeited the issue on this appeal and will therefore consider its merits.
¶ 59 B. Failure to Provide Sufficient Evidence
¶ 60 Throughout its brief, the State argues defendant failed to sufficiently support his
postconviction claim with various pieces of evidence. Specifically, defendant failed to submit a
transcript of the grand jury testimony, despite claiming that Webb and Nash testified before a grand
jury that defendant used Wallace’s phone when he confessed to Collier’s murder. The State also
argues that defendant failed to provide Wallace’s phone records, and failed to set forth any
corroboration that his trial counsel did not try to subpoena or investigate Wallace’s phone records.
¶ 61 “To survive first-stage dismissal, a pro se petitioner need only present the gist of a
constitutional claim, which is a low threshold requiring only a limited amount of detail in the
petition.” (Internal quotation marks omitted.) People v. Jones, 211 Ill. 2d 140, 144 (2004). “[A]
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pro se petitioner is not required to allege facts supporting all elements of a constitutional claim to
survive summary dismissal.” People v. Brown, 236 Ill. 2d 175, 188 (2010). The threshold of stating
a claim at the first stage of postconviction proceedings is low “[b]ecause most petitions are drafted
at this stage by defendants with little legal knowledge or training.” Tate, 2012 IL 112214, ¶ 9. It
is not until the second stage that a postconviction petition “can be said to be at issue, with both
sides engaged and represented by counsel.” Id. ¶ 10.
¶ 62 Defendant’s postconviction petition included an affidavit, which alleged that Webb and
Nash both submitted grand jury testimony that defendant called them on Wallace’s phone and
confessed to Collier’s murder. However, defendant alleged that Wallace’s phone records would
show that the calls were never made from her phone. Defendant also alleged that he requested that
his trial counsel obtain Wallace’s phone record, but his counsel never did so. Defendant allegedly
attempted to obtain Wallace’s phone records as well and was told they were sent to him, but he
never received them.
¶ 63 Taking defendant’s allegations as true, we find that defendant’s failure to corroborate his
pro se petition with further exhibits does not alone render his petition insufficient to state the gist
of a constitutional claim. Jones, 211 Ill. 2d at 144.
¶ 64 C. Deficiency of Performance
¶ 65 The State also argues that defendant failed to set forth an arguable claim that defendant’s
counsel was deficient.
¶ 66 Under the deficiency prong of the Strickland test, “a defendant must overcome a strong
presumption that, under the circumstances, counsel’s conduct might be considered sound trial
strategy.” People v. Houston, 226 Ill. 2d 135, 144 (2007). “It is well settled that strategic choices
made by defense counsel after a thorough investigation of the laws and facts relevant to the
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plausible options are virtually unchallengeable.” (Internal quotation marks omitted.) People v.
King, 316 Ill. App. 3d 901, 913 (2000). However, “[a]ttorneys have an obligation to explore all
readily available sources of evidence that might benefit their client.” (Emphasis and internal
quotation marks omitted.) People v. Irvine, 379 Ill. App. 3d 116, 130 (2008). Even trial counsel’s
“tactical decisions may be deemed ineffective when they result in counsel’s failure to present
exculpatory evidence of which he is aware.” King, 316 Ill. App. 3d at 913.
¶ 67 The State concedes that, under precedent from our supreme court, arguments that a trial
counsel’s alleged ineffective assistance was a matter of reasonable trial strategy is “inappropriate
for the first stage,” and is “more appropriate to the second stage of postconviction proceedings,
where both parties are represented by counsel, and where the petitioner’s burden is to make a
substantial showing of a constitutional violation.” Tate, 2012 IL 112214, ¶ 22. Nonetheless, the
State suggests that we disregard Tate in favor of more recent rulings, in which the State claims this
court has affirmed summary dismissals based on a finding that the trial counsel’s ineffective
assistance was a matter of trial strategy.
¶ 68 We find that each of the rulings cited by the State are distinguishable, as they concern
instances in which the record affirmatively rebutted the defendant’s ineffective assistance claim,
or instances in which this court affirmed a summary dismissal on other grounds. People v. Knapp,
2019 IL App (2d) 160162, ¶¶ 38-41 (upholding summary dismissal of the defendant’s claim that
his trial counsel ineffectively disallowed him from testifying at trial where the record showed (1)
that the trial counsel stated they had discussed the defendant’s decision not to testify “ ‘at great
length’ ”; (2) that the circuit court admonished the defendant as to his decision not to testify; and
(3) that the defendant expressly made a knowing and intelligent waiver of his right to testify);
People v. Brown, 2017 IL App (1st) 150203, ¶ 28 (finding the defendant had forfeited his
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ineffective assistance claim that his trial counsel failed to investigate or obtain a knife that the
victim allegedly held during the incident, which allegedly would have supported the defendant’s
self-defense claim); People v. Shipp, 2015 IL App (2d) 131309, ¶ 11 (affirming the summary
dismissal of the defendant’s ineffective assistance claim that his trial counsel failed to impeach a
witness with a prior inconsistent statement, where the record affirmatively showed that the trial
counsel had impeached that witness “to the extent possible”).
¶ 69 Here, defendant alleges that he asked that his trial counsel to obtain Wallace’s phone
records, because they would have shown that defendant never used Wallace’s phone to call Webb
and Nash and confess to Collier’s murder. However, defendant claims that his trial counsel failed
to obtain the phone records despite defendant’s multiple requests for his counsel to do so. We
make no finding as to whether trial counsel’s assistance was ineffective for not obtaining Wallace’s
phone records, as such an inquiry is only appropriate for second stage postconviction proceedings.
Tate, 2012 IL 112214, ¶ 22. We therefore find that, for purposes of first-stage postconviction
proceedings, defendant sufficiently set forth an arguable claim that his trial counsel’s
representation was deficient.
¶ 70 D. Prejudice Suffered by Deficiency
¶ 71 The State also asserts that defendant failed to set forth an arguable claim that he was
prejudiced by the alleged ineffectiveness of his counsel at trial and on direct appeal.
¶ 72 As we have stated, to establish the prejudice prong of the Strickland test, the defendant
must show there was a “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” (Internal quotation marks omitted.)
Domagala, 2013 IL 113688, ¶ 36. A showing of “reasonable probability” here requires the
showing of “a probability sufficient to undermine confidence in the outcome,” or put another way,
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a showing “that counsel’s deficient performance rendered the result of the trial unreliable or
fundamentally unfair.” People v. Evans, 209 Ill. 2d 194, 220 (2004). Proof of prejudice “cannot be
based on mere conjecture or speculation as to outcome.” People v. Palmer, 162 Ill. 2d 465, 481
(1994). However, it is not until the second stage of postconviction proceedings that a petitioner is
required “to ‘demonstrate’ or ‘prove’ ineffective assistance by ‘showing’ that counsel’s
performance *** prejudiced the defense.” Tate, 2012 IL 112214, ¶ 19. “[A] confession is the most
powerful piece of evidence the State can offer, and its effect on a jury is incalculable.” (Internal
quotation marks omitted.) People v. Simpson, 2015 IL 116512, ¶ 36.
¶ 73 We find that defendant has failed to set forth an arguable claim of prejudice, as the evidence
against defendant at trial was overwhelmingly strong, and Wallace’s phone records would only
challenge a small portion of this evidence. Specifically, taking defendant’s allegations regarding
the phone records as true, the records would merely show (1) that defendant did not specifically
use Wallace’s phone to call Webb and Nash, and (2) that the calls did not take place at the times
Webb and Nash testified that defendant called them. This does not necessitate a finding from a
jury that the calls never occurred at all, and the jury could still conclude that the calls were made
from a different phone or took place at a different time. As such, Wallace’s phone records would
at best establish very little.
¶ 74 Also significant is the fact that the State entered into evidence other instances in which
defendant discussed facts pertaining to Collier’s murder. Therefore, even if a jury were to conclude
the two phone calls to Webb and Nash on October 26, 2009, did not occur, there was still strong
evidence regarding highly incriminating statements made by defendant. Specifically, Webb
testified that in early October 2009, he met with defendant in person. Defendant told him Brewer
wanted defendant to “strangle” Collier so that Brewer could obtain the proceeds from Collier’s life
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insurance policy. Nash also testified that on October 25, 2009, defendant called her and asked if
she “had or knew someone with some .38 shells.” Using Wallace’s phone records to impeach
Webb and Nash as to two other phone conversations would not necessarily affect the credibility
of these other pieces of testimony.
¶ 75 We also note that if Wallace’s phone records were presented to a jury to show that
defendant never called Nash using Wallace’s phone, such evidence would not address the fact that
Nash’s testimony describing defendant’s confession was closely corroborated by the State’s other
evidence. Nash testified that on October 26, 2009, at about 10 p.m., defendant called her and stated
that while Brewer and Collier were at a gas station, defendant walked up to them and pretended to
carjack them. Defendant also told Nash that he drove Brewer’s vehicle into an alley, placed Collier
in the trunk, dropped Brewer off at Brewer’s house, drove to another alley, and shot Collier in that
alley. This testimony was closely corroborated with photographs of video footage, which showed
that on October 26, 2009, at about 12:38 a.m., a man identified as Brewer was apparently carjacked
at a gas station by a man in a “Scream” mask. The testimony of a gas station worker reflected that
Brewer was seen opening the trunk of his vehicle and looking into it at one point. Brewer’s vehicle
was later found in an alley, and Collier’s body was found in the trunk.
¶ 76 Moreover, as this court has previously observed, the general evidence of defendant’s guilt
was overwhelming. Powe, 2016 IL App (1st) 133205-U, ¶ 29. In corroboration with Nash’s
testimony that defendant called her and asked how to obtain “.38 shells,” the State also entered
evidence that the bullets recovered from Collier’s head were fired from a firearm that could fire
“.38 shells.” The State even presented evidence that the bullets recovered from Collier’s head were
fired from the specific firearm that was recovered from between the mattresses in Wallace’s
bedroom. Wallace testified that the morning after Collier was murdered, defendant stopped by
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Wallace’s house and got into bed with Wallace. Based on this testimony, a jury could have
certainly concluded that defendant hid the firearm used to shoot Collier in between Wallace’s
mattresses at that time. Further, Webb and Wallace testified that defendant owned a “Scream”
mask much like the mask worn by the apparent carjacker in the surveillance footage at the gas
station.
¶ 77 In light of the overwhelming, substantially corroborated evidence of defendant’s guilt, and
the limited value Wallace’s phone records would have had in challenging that evidence, we find
that defendant failed to set forth a claim that he was arguably prejudiced by trial counsel’s failure
to subpoena Wallace’s phone records. See People v. Lewis, 2017 IL App (1st) 150070, ¶ 29
(finding the defendant failed to set forth a claim that he was arguably prejudiced by trial counsel’s
failure to investigate and present exculpatory evidence, where the evidence of the defendant’s guilt
was “strong,” and the victim’s testimony was “substantially corroborated” by other evidence); see
also People v. Douglas, 2011 IL App (1st) 093188, ¶ 22, 36 (finding the defendant failed to state
a claim that he was arguably prejudiced by his trial counsel’s failure to object to the admission of
the defendant’s custodial statements, when the incriminating evidence “left [the reviewing court]
with no concern that the defendant was wrongly convicted” (internal quotation marks omitted)).
As such, we affirm the judgment of the circuit court summarily dismissing defendant’s
postconviction petition.
¶ 78 III. CONCLUSION
¶ 79 For the foregoing reasons, we affirm the judgment of the circuit court.
¶ 80 Affirmed.
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