People v. Heard , 2020 IL App (1st) 172852-U ( 2020 )

2020 IL App (1st) 172852-UNo.1-17-2852
Order filed June 23, 2020
Second Division
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 DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 11 CR 14137
)
CLYDE HEARD, ) Honorable
) Michael B. McHale,
Defendant-Appellant. ) Judge, presiding.
PRESIDING JUSTICE FITZGERALD-SMITH delivered the judgment of the court.
Justices Lavin and Pucinski concurred in the judgment.
ORDER
¶1 Held: The summary dismissal of defendant’s pro se postconviction petition is affirmed
over his contention that the petition presented an arguable claim of ineffective
assistance of trial counsel.
¶2 Defendant Clyde Heard appeals from the circuit court’s first-stage dismissal of his pro se
petition for relief filed under the Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 et seq.
(West 2016)). On appeal, he contends that this court should remand for further postconviction
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proceedings because he raised an arguable claim that he was denied the effective assistance of
counsel where he provided his trial counsel with a list of three alibi witnesses who were willing to
testify on his behalf but counsel failed to investigate or call those witnesses. We affirm.
¶3 Following a 2014 jury trial, defendant Clyde Heard was found guilty of first-degree murder
(720 ILCS 5/9-1(a)(1) (West 2010)) for the fatal shooting of Ewonte Butler on July 29, 2011. He
was sentenced to 65 years’ imprisonment. We affirmed his conviction and sentence on direct
appeal. People v. Heard, 2016 IL App (1st) 141672-U. We recount the facts adduced at trial only
as necessary for the disposition of the current appeal.
¶4 At trial, Chicago police officer Michael Rivera testified that a little past 7:00 p.m. on July
29, 2011, he was working with his partner when they received an assignment regarding a person
shot at Washington Boulevard and Lotus Avenue in Chicago. When Rivera arrived at that
intersection, he saw Butler on the ground. Butler had suffered gunshot wounds and was transported
to the hospital.
¶5 A police pod camera, which is a video camera located on the top of a pole, captured views
of the intersection at Washington and Lotus. Rivera viewed the pod camera footage, which showed
a group of people standing at the corner of Washington and Lotus. In the distance, he could see a
person on a bicycle and a person on the ground. The person on the bicycle rode eastbound on
Washington then turned northbound onto Long Street, where the pod camera was located. Rivera
“believe[d]” the person on the bicycle was a heavyset black male.
¶6 Diveda Duplessis testified that, shortly after 7:00 p.m. on July 29, 2011, she was in the area
of Washington and Lotus visiting her family. She was talking with her mother on the southwest
corner of Washington and Lotus. At 7:12 p.m., she saw Butler, whom she knew from the
neighborhood and by the nickname, “Too Fee,” standing across the street from her. A man rode
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his bicycle up to Butler and shot him from a few feet away. She heard several gunshots. Duplessis
saw the shooter ride eastbound on Washington before she lost sight of him.
¶7 Duplessis identified defendant in court as the shooter. Defendant was wearing a white tee
shirt and dark jeans when she saw him shoot Butler. He also had tattoos on his neck and shoulder
length dreadlocks. She had seen defendant twice before in the neighborhood, but she did not know
his name. Butler was friends with Duplessis’ nephew.
¶8 On August 2, 2011, Duplessis viewed a physical lineup at the police station and identified
defendant as the shooter. The individuals in the lineup all had their necks covered. When police
interviewed her at her home and later recorded her interview at the police station, Duplessis told
them she saw two people on bicycles. When Duplessis saw defendant raise his arm and heard shots
fired, the second person on a bicycle was not near defendant or Butler.
¶9 Duplessis did not recall if she told police about the tattoos on defendant’s neck. She told
them that defendant's hair had “a twisted braided something.” She did not recall what description
she gave of the other bicyclist.
¶ 10 Theodis Washington testified that he was at the corner of Washington and Lotus with
Butler, Montana Harris and Dantrell McIntyre. He had known Butler and Harris for eight years
from school and McIntyre from the neighborhood. A man with braids and tattoos on his neck and
chest rode up on a bicycle and fired his gun at Butler, who was standing several feet away from
Washington. Butler fell to the ground and the shooter rode away on his bicycle. Washington
identified defendant in court as the shooter. On August 1, 2011, Washington went to the police
station and identified defendant as the shooter in a photo array in which the necks of the individuals
in the photographs were covered. Washington had seen defendant in the neighborhood once or
twice prior to the shooting.
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¶ 11 Jessica Lofton testified that on July 29, 2011, she lived on the corner of Washington and
Lotus. About 7:00 p.m., she was looking out over Washington from a second-story window and
saw a group of boys from the neighborhood standing on the corner of Washington and Lotus. A
man, who was wearing a white tee shirt and dark jeans, rode up on a bicycle and fired a gun at the
group and then rode away. Lofton heard five gunshots and saw the victim fall to the ground.
Nothing obstructed her view of the incident. Lofton called the police. Lofton identified defendant
in a line up and in court as the shooter.
¶ 12 Lofton further testified that the first time she saw defendant on his bicycle he was heading
westbound on Washington and turned onto Lotus headed northbound. She lost sight of defendant
for a short period of time. As she was continuing to look through her window, she heard gunshots
before she saw anything happen. She then saw defendant by the group of boys with his bicycle on
the ground.
¶ 13 Montana Harris testified that he and Butler were outside listening to music and sharing the
same headphones. While they were on the corner of Washington and Lotus, Harris heard gunfire.
Harris saw a man on a bicycle shoot at Butler. The man fired the gun five times. He was wearing
a white tee shirt and blue jeans and had tattoos on his neck and arm. Harris testified he had
previously seen the man in the neighborhood but did not know his name. Harris identified
defendant in court as the shooter.
¶ 14 Harris went to the police station on August 1, 2011, and identified defendant in a photo
array as the shooter. The following day, he returned to the police station and identified defendant
as the shooter in a lineup. Harris testified that he told police that defendant's hair had dreads or
braids. He told the police that he believed the shooter lived on Long.
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¶ 15 The parties stipulated that, if called, a medical examiner would testify that the cause of
Butler’s death was multiple gunshot wounds. Cassandara Richards, a forensic scientist with the
Illinois State Police Crime Lab, testified that she examined a discharged cartridge case recovered
from the scene and did not find any latent fingerprints suitable for comparison.
¶ 16 The defense presented two stipulations. First, the parties stipulated that, if called,
Detectives Carney and Xanos would testify that, on August 1, 2011, they interviewed Duplessis at
her home and that she stated she observed two black men riding their bicycles eastbound on
Washington, and that, after the shooting, they rode eastbound on Washington. Duplessis did not
describe the shooter as having tattoos on his neck. The parties further stipulated that, if called,
Detective Tedeschi would testify that he interviewed Duplessis in August 2, 2011, along with an
Assistant State’s Attorney, and that, in describing the shooter, Duplessis did not describe the
shooter as having tattoos on his neck.
¶ 17 At the close of evidence, the jury found defendant guilty of first-degree murder. Following
a hearing, the court sentenced defendant to 65 years in prison, 40 years for first degree murder plus
a 25-year firearm enhancement.
¶ 18 On direct appeal, defendant argued that the trial court denied him his right to present a
defense and confront Washington and Harris with evidence of bias and motive to testify falsely.
We affirmed his conviction and sentence. People v. Heard, 2016 IL App (1st) 141672-U.
¶ 19 On July 3, 2017, defendant filed a pro se postconviction petition under the Act, alleging,
inter alia, that he was denied the effective assistance of trial counsel where he provided a list of
witnesses to counsel, but counsel failed to investigate or call those witnesses. In his petition,
defendant explained that his first appointed counsel withdrew, and new counsel was appointed to
represent him. Defendant claimed that, prior to trial, he provided both of his counsels with a list
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of three witnesses who were willing to testify on his behalf: Christopher Gregory, Jasmine Street,
and Jeremy Fentry. Defendant claimed that these witnesses would have testified that he was
“hanging out” with them on Lockwood Avenue and Huron Street between 7:00 p.m. and 12:30
a.m. on July 29, 2011. Defendant explained that Street and Fentry told Gregory to tell defendant
that they would testify on his behalf. Gregory told, “James,” who “gave [defendant the] message”
and provided defendant with Gregory’s phone number. Defendant relayed that his lawyer would
call Gregory, but Gregory and Fentry never received a call from his lawyer.
¶ 20 Defendant did not attach his own affidavit and, although he repeatedly referenced his own
affidavit as “Exhibit A” to his postconviction petition, no such exhibit is included in the record.
Defendant did not provide an explanation in his petition for why his own affidavit was not attached
to his petition. Defendant did not attach affidavits or statements made by Gregory, Street, or
Fentry. He explained in his petition that, due to multiple transfers in the Illinois Department of
Corrections, he had lost their contact information. Defendant attached several transcripts from his
trial proceedings, in support of his various claims. One such transcript from pretrial proceedings
on March 7, 2012, shows that defendant’s first appointed counsel informed the trial court, “in
speaking to [defendant] at Stateville, we did get a list of witnesses. We are still investigating that
list of witnesses, so we are asking for a short date on this matter, Judge.”
¶ 21 On August 28, 2017, the circuit court issued a written order dismissing defendant’s
postconviction petition as frivolous and patently without merit. In the order, the court noted that
the decision of whether or not to call witnesses is generally a matter of trial strategy and that
defendant failed to attach affidavits from the potential witnesses. The court found that defendant’s
assertion that the witnesses would have testified that they were with him from “around” or “about”
7:00 p.m. on July 29, 2011 would not have provided him with an alibi where the State’s witnesses
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had testified at trial that the shooting took place between 7:00 and 7:12 p.m. The court further
found that it could not be said that there was a reasonable likelihood the outcome of the trial would
have been different where the evidence against defendant was very strong and four eyewitnesses
had identified him as the shooter at trial.
¶ 22 This court allowed defendant’s late notice of appeal on December 4, 2017.
¶ 23 On appeal, defendant contends that his trial counsels were ineffective for failing to
investigate and call Christopher Gregory, Jasmine Street, and Jeremy Fentry as alibi witnesses. He
argues that the court erred in dismissing his postconviction petition as frivolous and patently
without merit because he satisfied the low standard of a first stage proceeding. He further argues
that he was not strictly required to attach affidavits from the potential witnesses where he explained
his failure to do so, and that the trial court engaged in improper fact-finding in determining that
the proposed testimony of the three potential witnesses would not have provided him with an alibi.
¶ 24 The Act provides a method by which a defendant can assert that his conviction was the
result of a substantial denial of his constitutional rights. People v. Tate, 2012 IL 112214, ¶ 8. At
the first stage of postconviction proceedings, the circuit court may dismiss a petition only if it is “
‘frivolous or patently without merit.’ ” People v. Cotto, 2016 IL 119006, ¶ 26 (quoting 725 ILCS
5/122-2.1(a)(2) (West 2010)). A petition is frivolous or patently without merit if it “has no arguable
basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 12 (2009). A petition lacks an
arguable basis in law or fact where it is “based on an indisputably meritless legal theory or a
fanciful factual allegation.” Id. at 16. “A legal theory is ‘indisputably meritless’ if it is ‘completely
contradicted by the record,’ and a factual allegation is ‘fanciful’ if it is ‘fantastic or delusional.’ ”
People v. Papaleo, 2016 IL App (1st) 150947, ¶ 19 (quoting Hodges, 234 Ill. 2d at 16-17).
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¶ 25 Because most petitions are drafted at the first stage by pro se defendants, the threshold for
a petition to survive the first stage of postconviction review is low. People v. Allen, 2015 IL
113135, ¶ 24. This low threshold, however, “does not excuse the pro se [defendant] from providing
factual support for his claims; he must supply sufficient factual basis to show the allegations in the
petition are ‘capable of objective or independent corroboration.’ ” Id. (quoting People v. Collins,
202 Ill. 2d 59, 67 (2002)). A defendant’s failure to attach the affidavits or documentation required
by section 122-2, or otherwise explain their absence, is “fatal” to his postconviction petition and
alone justifies summary dismissal of that petition. People v. Delton, 227 Ill. 2d 247, 255 (2008);
Collins, 202 Ill. 2d at 66; see Allen, 2015 IL 113135, ¶ 26 (a postconviction petition that fails to
comply with section 122-2 is “substantially incomplete”). We review the dismissal of a first-stage
postconviction petition de novo. Allen, 2015 IL 113135, ¶ 19.
¶ 26 In this court, defendant contends that the court erred in summarily dismissing his petition
because he presented an arguable claim that his trial counsels were ineffective for failing to
investigate and call Gregory, Street, and Fentry as alibi witnesses.
¶ 27 A criminal defendant has a constitutional right to effective assistance of counsel. U.S.
Const., Amends. VI, XIV; Ill. Const. 1970, Art. I, § 8; Strickland v. Washington, 466 U.S. 668,
687-89 (1984). To prevail on a claim of ineffective assistance of counsel, a defendant must show
that counsel’s performance was deficient, and that the deficient performance prejudiced the
defendant. People v. Domagala, 2013 IL 113688, ¶ 36. At the first stage of postconviction
proceedings, the circuit court may not summarily dismiss a petition alleging ineffective assistance
of counsel where: (1) counsel’s performance arguably fell below an objective standard of
reasonableness, (2) which arguably prejudiced petitioner. People v. Scott, 2011 IL App (1st)
100122, ¶ 29; see Tate, 2012 IL 112214, ¶¶ 19-20. Deficient performance is performance that is
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objectively unreasonable under prevailing professional norms, and prejudice is found where there
is a “reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” People v. Petrenko, 237 Ill. 2d 490, 496-97 (2010);
Strickland, 466 U.S. at 690, 694.
¶ 28 After reviewing the record, we find that the court did not err in summarily dismissing
defendant’s postconviction petition. In this case, defendant has failed to present any support for
his claim that trial counsel failed to investigate or present the testimony of his potential witnesses.
Section 122-2 of the Act provides a postconviction petition “shall have attached thereto affidavits,
records, or other evidence supporting its allegations or shall state why the same are not attached.”
725 ILCS 5/122-2 (West 2016). “The purpose of the ‘affidavits, records, or other evidence’
requirement is to establish that a petition’s allegations are capable of objective or independent
corroboration.” Hodges, 234 Ill. 2d at 10 (citing Delton, 227 Ill. 2d at 254). Thus, the supporting
material must (1) show “the petition’s allegations are capable of corroboration” and (2) identify
“the sources, character, and availability of evidence alleged to support the petition’s allegations.”
Allen, 2015 IL 113135, ¶ 34.
¶ 29 Here, although defendant repeatedly referenced his own affidavit in his postconviction
petition, it is not attached to his petition and has not been included in the record on appeal.
Defendant has not provided any explanation for his failure to include his own affidavit with his
petition. Defendant is clearly a source of information that he was with his purported alibi witnesses
at the time of the shooting. See, e.g., People v. Harris, 206 Ill. 2d 293, 301 (2002) (stating
“defendant is the source of this [alibi] information and was armed with this information at the time
of trial.”).
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¶ 30 Instead of providing his own affidavit or affidavits from his potential alibi witnesses,
defendant has merely provided his own summary in his petition of what he claims the potential
alibi witnesses’ testimony would have been. Defendant’s summary, as explained in his petition, is
based on what Street and Fentry told Gregory, who told “James,” who told defendant prior to trial.
This does not demonstrate that the allegation in the petition is capable of objective or independent
corroboration, nor does it establish the availability of supporting evidence. See People v. Harris,
2019 Il App (4th) 170261, ¶ 14 (defendant’s personal evidentiary affidavit summarizing what he
believed the testimony of potential witnesses would have been did not demonstrate defendant’s
postconviction claim was capable of objective or independent corroboration, or identify the
availability of evidence to support the claim); People v. Brown, 2014 IL App (1st) 122549, ¶ 58
(three unnotarized affidavits that defendant authored on her own behalf failed to provide
independent corroboration and were insufficient to support a claim under the act); see also People
v. Warren, 2016 IL App (1st) 090884-C, ¶ 88 (considering the “problematic” nature of hearsay
affidavits used to support postconviction claim of actual innocence). Although we must accept
factual allegations at the first-stage of postconviction proceedings as true unless positively rebutted
by the record, defendant must still set forth facts which can be corroborated and are objective in
nature or explain why those facts are absent. See Hodges, 234 Ill. 2d at 10.
¶ 31 In most cases where, as here, a defendant raises a claim of ineffective assistance based on
counsels’ failure to investigate and call a witness, the defendant must include affidavits from the
potential witnesses because, without an affidavit from the proposed witness,” there can be no way
to assess whether the proposed witness could have provided evidence that would have been helpful
to the defense” People v. Dupree, 2018 IL 122307, ¶ 34. However, an affidavit from the proposed
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witness may not be required under section 122-2 of the Act, where the claim is supported by the
record or other evidence. Id.¶ 32 In this case, contrary to defendant’s claim that his trial counsels failed to interview potential
witnesses, the record shows that defendant provided counsel with a list of his potential witnesses
and counsel was “investigating that list of witnesses” prior to trial. Thus, in contrast to the cases
relied on by defendant, the record in this case does not support defendant’s claim that trial counsels
failed to investigate his potential witnesses, and defendant has not provided any other evidence or
documentation to support his claim. Cf. People v. Hanks, 335 Ill. App. 3d 894, 899 (1st Dist. 2002)
(finding affidavit from potential witness not required where the record contained factual support
for defendant’s claim); People v. Morris, 335 Ill. App. 3d 70, 84-85 (1st Dist. 2002) (same); see
People v. Hernandez, 351 Ill. App. 3d 28, 35 (1st Dist. 2004) (the defendant, who provided his
own affidavit, was not required to submit additional evidence to support his claim of ineffective
assistance where the court could “easily infer” that the only other evidence he could have furnished
would have been an affidavit from his attorney).
¶ 33 The Act provides that a petitioner must attach supporting documentation or explain why
he is unable to do so. See 725 ILCS 5/122-2 (West 2016). Although defendant repeatedly
referenced his own affidavit in his postconviction petition, it is not included in the record, and
defendant does not provide any explanation for his failure to include his own affidavit with his
petition. Defendant explained in his petition that he was unable to obtain affidavits from Gregory,
Street, or Fentry because he lost their contact information due to multiple transfers while
incarcerated. On its own, defendant’s incarceration does not explain his failure to supply
supporting documentation required under section 122-2 of the Act because relief under the Act is
available only to people who are “imprisoned in the penitentiary.” 725 ILCS 5/122-1(a) (West
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2016); see Harris, 2019 IL App (4th) 170261, ¶ 19 (“Because the Act contemplates defendants
seeking postconviction relief are likely to be imprisoned, we hold imprisonment, by itself, cannot
excuse a defendant’s failure to attach supporting material to a postconviction petition.”); but see
People v. Washington, 38 Ill. 2d 446, 448-49 (1967) (noting petition “stated why affidavits were
not attached” where it explained the defendant was not able to obtain affidavits because he was
“incarcerated and indigent” but finding the State forfeited argument that defendant failed to
support the allegations in his petition). Here, defendant does not describe any efforts that he made
to obtain any affidavits or any attempts he made to acquire them, or other supporting evidence.
¶ 34 Accordingly, the trial court did not err in summarily dismissing defendant’s postconviction
petition because defendant failed to provide any affidavits or other evidence to support his
allegation that his counsel was ineffective for failing to investigate or call potential alibi witnesses.
Based on our finding that defendant failed to properly support his claim, we need not consider
whether he stated an arguable claim that he was denied the effective assistance of counsel or his
contention that the circuit court engaged in improper fact-finding when summarily dismissing his
petition. See Brown, 2014 IL App (1st) 122549, ¶ 46 (“If a postconviction petition is unsupported
as required by section 122–2, then we need not consider whether the petition sets forth the gist of
a constitutional claim”) (citing Delton, 227 Ill. 2d at 255).
¶ 35 For the forgoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 36 Affirmed.
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