People v. Delgado , 2021 IL App (1st) 181102-U ( 2021 )

2021 IL App (1st) 181102-UNo. 1-18-1102
Order filed June 30, 2021
First Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent 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. 90 CR 13367
)
DAVID DELGADO, ) Honorable
) Nicholas Ford,
Defendant-Appellant. ) Judge, presiding.
JUSTICE HYMAN delivered the judgment of the court.
Justices Pierce and Coghlan concurred in the judgment.
ORDER
¶1 Held: Summary dismissal of defendant’s postconviction petition affirmed where actual
innocence claim barred by res judicata as further advocacy of Delgado’s strategy
of self-defense, which the appellate court rejected on direct appeal; even if not
barred, the claim is meritless because the newly discovered affiant’s proposed
testimony was cumulative to the trial testimony and the defense witnesses’
testimony. The ineffectiveness claim was meritless where trial counsel failed to
impeach one of the defense witnesses with prior statement to police.
¶2 Delgado appeals from the trial court’s summary dismissal of his petition for post-
conviction relief. The postconviction petition claimed actual innocence based on newly discovered
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evidence in affidavits from two inmates at Pontiac prison, Eladio Gomez and Marcos Alcantar.
They both stated they saw the shooting for which Delgado was convicted, including three men
attacking Delgado, who then retrieved a gun and shot two of the men. Alcantar’s affidavit added
that the police shot at Delgado three times and Delgado was unarmed.
¶3 Delgado asserts (i) an actual innocence claim based on Alcantar’s affidavit, and (ii) an
ineffective assistance claim based on trial counsel’s failure to use available impeaching evidence
to discredit one of the State’s eyewitnesses.
¶4 We affirm. Alcantar’s affidavit contained assertions heard at trial from other witnesses.
Although a “new” witness in that he had not testified at trial, the evidence Alcantar attested to was
not new or cumulative, and unlikely to result in a different outcome. In addition, the ineffective
assistance of counsel claim is unfounded. The “impeachment” evidence Delgado proffers contains
an insignificant discrepancy between one witness’s statement to the police that differed from his
trial testimony.
¶5 Background
¶6 On November 6, 2019, the Illinois Supreme Court issued a supervisory order directing this
Court “to treat the notice of appeal filed on April 23, 2018, and assigned case No. 1-18-1102, as a
properly perfected appeal from the trial court’s March 27, 2018, judgment summarily dismissing
Delgado’s post-conviction petition and the circuit court’s June 7, 2018, judgment denying his
motion for reconsideration.”
¶7 Trial
¶8 Delgado was charged with first degree murder of Daniel Ramos, first degree murder of
Jose Macias, and two counts of attempted murder of Chicago police officers Mark Severino and
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Paul Venticinque stemming from a shooting on May 7, 1990, outside a Chicago tavern. After a
bench trial, Delgado was convicted of two counts of first degree murder and two counts of
attempted murder.
¶9 At trial, Venticinque testified that about 4:00 a.m. on May 7, 1990, he and his partner
(Severino) were patrolling in a marked police car. As they drove eastbound on Fullerton,
Venticinque saw a crowd of 15 to 20 people leaving a tavern on West Fullerton. They slowed
down and Venticinque saw people running and leaning over, “trying to get cover for some reason.”
Venticinque then saw Delgado facing another man near the door of the tavern. The other man was
unarmed. The man moved his hands towards his face, with his palms out, and Venticinque saw
Delgado point a gun at him. He heard two shots. and the man fell to the sidewalk. Venticinque
never saw the unarmed man strike or make threatening motions towards Delgado.
¶ 10 Another man came running towards the police car, and Venticinque motioned for him to
get down. Delgado then turned toward the officers and waved his gun at them. At that point,
Severino was getting out of the police car, and Venticinque yelled, “Get down. He’s going to
shoot.” Other people were running between cars to get away. Venticinque heard a third shot that
appeared to have been fired in his direction and saw the second man, who was running towards
the officers, fall, disappearing from his sight. Venticinque fired one shot toward Delgado, and
Delgado turned and ran. Severino chased Delgado on foot; Venticinque called for assistance as he
drove toward Delgado.
¶ 11 Venticinque heard another shot fired as he turned the corner. When he got to the mouth of
the alley, he stopped and parked. Delgado moved a dumpster and crouched between the dumpster
and the building in an “aiming” position. Delgado’s hand “protrude[ed]” from behind the
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dumpster, and Venticinque “realized he’s going to fire.” He yelled to Severino to get back. Instead,
Severino fired his at Delgado, who dove under nearby boxes. As Venticinque approached on foot,
Delgado lay face-down and motionless, with his hands beneath his body. Venticinque turned
Delgado over. Suddenly, Delgado “opened his eyes and took a swing” at Venticinque. After a short
scuffle, Venticinque and two other officers arrested Delgado.
¶ 12 In his testimony, Severino said he heard a shot fired but did not see Delgado shoot. He
fired once at Delgado as he reached the corner and again at the mouth of the alley. Severino
estimated the entire encounter lasted three minutes.
¶ 13 Chicago police officer Richard Tufano testified that he responded to the radio call for help.
When he arrived at the alley, he saw Delgado lying face down. Delgado sat up and began to
struggle with Venticinque. After Delgado’s arrest, Tufano went to the tavern where one man was
lying on the sidewalk in front of the tavern and another man lying in the street. He recovered a gun
on the sidewalk next door. But, no gun was ever found in the alley.
¶ 14 Jose Diaz and Valentin Padilla testified as eyewitnesses.
¶ 15 On the night of the shooting, Jose Diaz was at the tavern with Padilla and Hector Bira. Diaz
left the tavern when it closed. He admitted he “was a little bit drunk,” having consumed 15-16
beers over seven hours. A group of people was in front of the tavern. Diaz got into a fight with
another man from his hometown in Mexico. When the fight ended, Diaz heard shots and saw
Delgado running away with a gun in his hand. He told police he saw Delgado shoot two people.
Diaz did not know Delgado but had seen him before that night.
¶ 16 Padilla testified that he left the tavern with Diaz. Ten or twelve people were outside as he
walked to his car nearby. A man with a gun was leaning against the front of the tavern, and Padilla
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saw another man push him. The armed man shot the man who was pushing him and a second man
who was walking away. Padilla heard two shots and then saw the armed man wave the gun
overhead, drop it, and run with the police chasing him. Padilla could not identify the armed man.
Padilla had consumed 6-8 beers.
¶ 17 Finally, two witnesses who lived across the street from the tavern testified. Margaret
Skrodzka testified the sound of two gun shots woke her, and she ran to her bedroom window that
faced the street. People were standing in front of the tavern, and she saw someone fall near the
curb. A man, whom Skrodzka identified in court as Delgado, ran towards the corner. A police car
drove towards him, and when the squad car’s door opened, Delgado turned toward the officers
with his arm outstretched. Skrodzka was unsure if she saw anything in Delgado’s hand. A police
officer then chased Delgado on foot, and she heard another gunshot.
¶ 18 Kurzac testified he was awake before the shooting, having recently arrived home from
work. He looked out a window and saw 15 people leaving the tavern and five people standing in
front. While he did not see a fistfight, he did see Delgado fire three shots and a man fall onto the
sidewalk near the tavern. Delgado then ran and the police chased him. Police fired one shot at him;
Kurzac later heard a second shot. He identified Delgado from a line up. On cross-examination,
Kurzac said he saw 20 to 30 people in front of the tavern.
¶ 19 Defense Witnesses
¶ 20 Casimir Gomez testified that he had known Delgado for three years and had seen him about
six months before his trial testimony. On the night of the shooting, Gomez went to the tavern with
his father. They left at closing and walked toward Gomez’s car parked about 75 feet away. Gomez
looked back and saw Delgado leave. Gomez saw two men “attack” Delgado. Five other people
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were standing in front of the tavern. Gomez watched the fight for two minutes as Delgado fought
back. Gomez drove away and heard four gunshots from a block away.
¶ 21 Segundo Cazares knew Delgado from playing pool and had known Gomez for about four
years. Cazares, together with his father, were among the last people to leave the tavern. After about
six beers, he was “halfway drunk” when he left. He saw Delgado on the ground about 30 feet away,
with two men hitting him. Cazares heard something metal hit the ground. Cazares did not see a
gun in Delgado’s hands but saw him “defending himself going upward with his hands.” Cazares
left and never looked back. As he reached his parked car, he heard gunshots.
¶ 22 Delgado testified on his own behalf. He arrived at the tavern between 12:30 and 1:00 a.m.
and stayed until closing. “[A] lot of people” left at closing time, and he was in the middle of the
group. When outside, he saw two people fighting and stopped to see if he recognized anyone.
Someone grabbed his neck from behind and knocked him down, while a second person grabbed
chains around his neck. Delgado grabbed the hand that held his chain and “took [the person] down
with” him.
¶ 23 Three unknown Hispanic men, whose physical characteristics he could not remember, hit
and kicked him. Delgado defended himself with his hands and feet while on the ground. A gun
“fell” from one of the men; Delgado picked up the gun and began to shoot because “they were on
top of me.” Delgado could not recall what position he was in when he was shooting or how many
times he fired. Once the “attack” ended, he ran and threw the gun down along the way. He denied
seeing the police before he began running and denied firing at officers.
¶ 24 While running, Delgado heard more gunshots and thought the same people who had
attacked him were shooting at him. He denied turning and extending his arm and stated, “I have
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never used a weapon.” He hid between a wall and “a garbage can” in an alley, face-down, with his
hands on top of himself to cover him.
¶ 25 The police arrived 10 to 15 minutes later and handcuffed him. He denied ever “lunging” at
an officer. He did not remember what happened after he was handcuffed and stated that when he
“woke up,” he was in the police station, being interviewed. He was not “feeling well” and did not
tell detectives that some men grabbed his chains. He was “scared” and “conscious about what they
were telling me at the time.”
¶ 26 During cross-examination, Delgado claimed that he was unconscious after being hit on the
back of his head while being arrested. He knew he was at the police station because two men were
shot. He did not tell detectives that he shot the gun to protect or defend himself; he “felt nervous”
and “didn’t feel like speaking to them” about his “personal problem.” Two men were fighting
when he left the tavern, and seven or eight people were standing around them. Delgado exchanged
no words with the three men who allegedly attacked him.
¶ 27 After Delgado grabbed the gun that one of his attackers dropped, he turned around, looked
up, and began to shoot. He “could have” fired the gun three times. When he began shooting, his
attackers began to “walk backwards” because “they were frightened.” When questioned how
Macias was shot in the back, Delgado stated, “I don’t know exactly how this happened during the
fight we had because they were on top of me trying to take the gun from me.” When asked if he
was standing or on the ground when shooting, Delgado responded, “I don’t recall exactly at that
time. Because it was—I was shocked what was happening to me.”
¶ 28 The trial court admitted Virginia Lopez’s testimony from Delgado’s bond reduction
hearing as she was unavailable to testify at trial. Lopez said she was a prostitute and cocaine addict
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and had been arrested three times for prostitution and drugs. That night, she was at the tavern and
saw Delgado with money, buying people drinks, and wearing lots of jewelry. Macias, whom she
had dated in the past, approached her and suggested she set up Delgado to be robbed. Lopez refused
and left with her mother. They were sitting in a restaurant across the street when the tavern closed.
Lopez saw “about two or three guys” run toward Delgado after he left the tavern. Two of them,
Macias and Velarde, grabbed Delgado from behind, and a struggle followed. While they struck
Delgado, something fell to the ground, which Delgado picked up. She then heard gunshots. She
did not tell the police what she saw. Ten days before her testimony, she had contacted Delgado’s
attorney, after hearing a friend of her mother’s talk about the shooting.
¶ 29 The trial court found Delgado guilty of two counts of first degree murder and two counts
of attempted murder. The trial court sentenced Delgado to concurrent terms of life imprisonment
for the murder conviction and 15 years each for the attempted murder convictions.
¶ 30 Direct Appeal
¶ 31 On direct appeal, Delgado claimed that: (1) he was not proven guilty beyond a reasonable
doubt of the attempted murder convictions; and (2) he was acting in self-defense. On September
9, 1992, this Court affirmed Delgado’s conviction and sentence. People v. Delgado, 1-91-1267
(1992) (unpublished order under Supreme Court Rule 23). The appellate court found Delgado’s
use of deadly force unnecessary and not justified as self-defense. And it held the evidence
overwhelmingly supported conviction on the two counts of attempted murder of police officers.
¶ 32 Postconviction
¶ 33 Private counsel signed and filed Delgado’s postconviction petition raising 27 claims of
error, including an actual innocence claim based on Alcantar’s affidavit. Another claim of error
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was ineffective assistance of trial counsel claim for failure to impeach Kurzac, one of the State’s
main eyewitnesses, with his prior inconsistent statements. The trial court summarily dismissed the
petition as frivolous and patently without merit and denied Delgado’s motion to reconsider the
summary dismissal.
¶ 34 Pertinent to this appeal, Alcantar’s affidavit, dated February 23, 1994, stated:
“1) I was outside of the Club Verde, in the city of Chicago, Illinois.
2) I observed three (3) individuals attact [sic] Mr. David Delgado, whereupon he
retrieved a handgun and shot the two (2) of Three (3) individuals whereupon the other
individual ran.
3) Mr. David Delgado, droped [sic] the weapon and ran.
There were Chicago Police Officers who arrived on the scene and shot Mr. David
Delgado approximately Three (3) times, while he was unarmed at the time he was shot by
the Chicago police.”
¶ 35 The second claim of error was ineffectiveness of trial counsel for failing to interview
Kurzac before trial and failing to impeach his trial testimony with earlier statements to police.
Delgado acknowledged that his trial counsel received Kurzac’s statements in discovery. Yet, he
asserted that the statements were “favorable to the self-defense theory because on [sic] his original
statement Kurzac stated that he saw approximately 20-30 people involved in a fistfight in front of
Club Verde and that the fight lasted approximately 5 to 10 minutes.” At trial, Kurzac testified that
he saw 15 people leaving the tavern and five people standing in front. Kurzac saw Delgado and
victims “pulling” at each other, and denied seeing a fistfight.
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¶ 36 In support of the ineffective assistance of trial counsel claim, Delgado attached a general
progress report, authored by Detective Dickinson, regarding his May 7, 1990, interview with
Kurzac. Detective Dickinson’s handwritten notes, contained in the GPR, on Kurzac’s interview,
stated:
“Looking out window. Saw fistfight in front of bar. Saw off. involved in
fight. 20-30 people. Bar was closed. 5-10 minutes[.] Heard 3 shots[.] Saw
police pull up right away. Saw Police shoot 1 time at Spaulding &
Fullerton [.] Think Police shot 2 times [.] Heard total of about 5 shots [.]”
(C. 243)
Delgado also attached a portion of a typed police report on Kurzac’s interview that stated :
“[Kurzac] said that he had been at his residence and that he awoke during
the middle of the night, approx. 0330-0400hrs. He was then sitting and
looking out of his front window when he observed people exiting the Club
Verde Lounge. He then observed what appeared to be a fistfight in front of
the bar involving male Hispanic subjects. He believed that there were
approximately 20 to 30 people in front of the bar. He observed this
disturbance for approximately 5 to 10 minutes, at which time he heard what
he believed to be 3 gunshots. During the time he heard the gunshots he did
not see who was doing the shooting. At that same time he observed a
marked Chicago Police vehicle pull up toward the curb and double park in
the street. He then observed one of the police officers chasing the subject
listed in custody. He observed them run eastbound on Fullerton toward
Spaulding and then southbound on Spaulding from Fullerton. He observes
the officer fire one shot southbound down Spaulding from Fullerton. The
officer continued to chase the subject in custody southbound on Spaulding
from Fullerton. He then observes the other police officer in the marked
police vehicle then turn and proceed southbound on Spaulding from
Fullerton. He then hears another shot shortly after observing the subject in
custody and the police officers go southbound on Spaulding. He further
stated that he believed that from the time this incident commenced he heard
what he believed to be a total of 5 gunshots. He further added that when he
first observed the officer chase the subject listed in custody, he did observe
that the subject in custody did have a gun in his hand. When both the
subject in custody and the officer turned and proceeded southbound on
Spaulding he observed a gun lying on the sidewalk approximately 3 doors
east of where this incident occurred. The above listed subject subsequently
viewed a line up in Area 5 at which time he positively [identified] the
subject listed in custody as the person that he observed running from the
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police with a gun in his hand. The results of the lineup are contained in an
additional supplemental report.”
¶ 37 The trial court summarily dismissed Delgado’s petition for postconviction relief, stating:
“Petitioner claims he is actually innocent based on newly discovered [sic] in the
form of affidavits from Eladio Gomez and Marcos Alcantar. Gomez avers that he was at
Club Verde the night of the shooting and saw petitioner being attacked and beaten by three
men outside the bar. He saw petitioner retrieve a gun and shoot two of the three men.
Alcantar avers to the same as Gomez but adds that the police shot three times at Delgado,
who was unarmed.”
***
Even if it is not barred, petitioner’s claim is meritless. The potential testimony of Gomez
and Alcantar is cumulative to the testimony of several witnesses at trial—including
Casamir Gomez, Segundo Cazarez, Virginia Lopez, and petitioner—who testified that they
saw three people attacking petitioner before he fired a weapon at them.”
¶ 38 The trial court found the claim one of self-defense, the same as advanced and decided on
direct appeal, and barred by the doctrine of res judicata. Moreover, even if not barred, the trial
court found Delgado’s claim meritless. The testimony of affiants was cumulative and “not of such
a conclusive nature that the result on retrial would have been different.”
¶ 39 Regarding the ineffectiveness of counsel claim, the trial court ruled: “Petitioner contends
that trial counsel rendered ineffective assistance by failing to interview Lester Kurzac prior to trial.
He claims that his trial testimony about 15 to 30 people being outside the bar at closing time was
more favorable to Delgado than his pretrial statement that 20 to 30 people were outside. This claim
is meritless. The difference of five people from pretrial to trial testimony is not significant,
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especially here where the trier of fact heard that 30 people were outside the bar at trial, which is
consistent with the pretrial statement. Therefore, this claim is frivolous and patently without
merit.”
¶ 40 Analysis
¶ 41 Standard of Review
¶ 42 We review the trial court’s summary dismissal de novo because the sufficiency of the
allegations contained in a postconviction petition presents a legal question. People v. Sanders,
2016 IL 118123, ¶ 31. We review the judgment, not the reasons given for the judgment (People v.
Lee, 344 Ill. App. 3d 851, 853 (2003)), and may affirm on any basis supported by the record.
People v. Jones, 399 Ill. App. 3d 341. 350 (2010).
¶ 43 Post-conviction Proceedings
¶ 44 The Post-Conviction Hearing Act, 725 ILCS 5/122-1 et seq. (2018), provides a three-step
process for a defendant to seek to prove that his constitutional rights were violated at the
proceedings which resulted in his conviction. People v. English, 2013 IL 112890, ¶ 23. The trial
court may summarily dismiss a first stage postconviction petition only if the petition “has no
arguable basis either in law or in fact.” People v. Tate, 2012 IL 112214, ¶ 9. A petition lacks an
arguable basis when “based on an indisputably meritless legal theory or a fanciful factual
allegation.” Id. at 16. At this stage, all well-pleaded allegations in the petition and supporting
affidavits not positively rebutted by the trial record are to be taken as true. People v. Robinson,
2020 IL 123849. ¶ 39. The court must determine whether the petition’s allegations sufficiently
demonstrate a constitutional infirmity that would merit postconviction relief. People v. Sparks,
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383 Ill. App. 3d 878, 883 (2009). Fact findings and credibility determinations are not made at the
summary dismissal stage. People v. Coleman, 183 Ill. 2d 366, 391 (1998).
¶ 45 A proceeding under the Act constitutes neither a continuation nor substitute for direct
appeal; rather, it is a collateral proceeding. People v. Petrenko, 237 Ill. 2d 490, 499 (2010). The
proceeding allows inquiry into constitutional issues involved in the original conviction and
sentence that have not and could not have been adjudicated on direct appeal. People v. Harris, 224
Ill. 2d 115, 124-25 (2007); People v. Jones, 211 Ill. 2d 140, 144 (2004) (quoting People v. McNeil,
194 Ill. 2d 134, 140) (Res judicata and waiver doctrine limit postconviction relief to matters which
have not been and could have not been, adjudicated earlier). In the post-conviction petition, the
petitioner has the burden to show a violation of his or her constitutional rights. People v. Edwards,
197 Ill. 2d 239, 244 (2001). If defendant fails, the petition is summarily dismissed. 725 ILCS
5/122-2.1.
¶ 46 Through private counsel, Delgado filed his post-conviction petition. The petition raised 28
claims which fell into five categories of error: (i) actual innocence; (ii) ineffective assistance of
counsel; (iii) trial court error; (iv) violation of Brady v. Maryland, 373 U.S. 83 (1963); and (v)
indictment based on false testimony. In this appeal, Delgado argues the trial court erroneously
dismissed both the actual innocence claim and the ineffective assistance of trial counsel claim
because counsel failed to use available impeaching evidence to discredit Kurzak.
¶ 47 Actual Innocence
¶ 48 We turn to Delgado’s contention that his “post-conviction petition presented an arguable
claim of actual innocence.” Delgado presents an affidavit of a “newly discovered eyewitness” who
attested that Delgado acted in self-defense when he shot at the two victims. And that Delgado did
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not possess or fire a gun at police officers. Delgado asserts this testimony “would negate the
inference that Delgado intended to kill the officers.” Delgado argues Alcantar’s affidavit
constitutes newly discovered, material, and non-cumulative evidence and is likely to change the
result on retrial.
¶ 49 The State maintains that the petition was “frivolous and patently without merit.”
Specifically, as to Delgado’s actual innocence claim, the State argues Alcantar’s affidavit is not
new or cumulative and would not change the trial’s outcome.
¶ 50 Alcantar’s affidavit asserted that he was outside the tavern on the night of the shooting,
and saw three people attack Delgado, who retrieved a handgun and fired at two attackers, dropped
the gun, and ran. Alcantar further asserted that police officers fired three gunshots at an unarmed
Delgado.
¶ 51 To establish a claim of actual innocence, Delgado must show the evidence is: (i) newly
discovered after trial; (ii) could not have been discovered earlier through due diligence; (iii)
material and not merely cumulative; and (iv) of such a conclusive character that it would probably
change the result on retrial. People v. Robinson, 2020 IL 123849, ¶ 47. Material evidence means
“relevant and probative of the petitioner’s innocence” (People v. Coleman, 2013 IL 113307, ¶ 96);
non-cumulative evidence adds to the information that the fact-finder heard at trial. People v
Molstad, 101 Ill. 2d 128, 135 (1984).
¶ 52 The critical element of an actual innocence claim is the conclusiveness of the new
evidence—evidence that, when considered along with the trial evidence, would probably lead to a
different result. Robinson, 2020 IL 123849, ¶ 47 (first stage dismissal of successive postconviction
petition reversed; new evidence of actual innocence need not be dispositive ). “Probability, rather
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than certainty, is the key in considering whether the fact-finder would reach a different result after
considering the prior evidence along with the new evidence.” Id. ¶ 48.
¶ 53 Delgado argues Alcantar’s testimony should be considered newly discovered—there was
no reference in discovery to Alcantar and no indication the police interviewed him. See People v.
Munoz, 406 Ill. App. 3d 844, 855 (2010) (occurrence witness who provided an affidavit attached
to defendant’s post-conviction petition and who was not disclosed in discovery tended to show the
witness as newly discovered). Alcantar’s affidavit was dated February 23, 1994, almost three years
after Delgado’s trial. Despite the lengthy and unexplained delay in bringing forth this affidavit, we
will accept it as “newly discovered” posttrial.
¶ 54 Material
¶ 55 Material evidence is probative of a question before the trier of fact. People v. Favors, 254
Ill. App. 3d 876, 888 (1993). In other words, the evidence tends to prove or disprove a matter at
issue. Id. The “new evidence” must “place the trial evidence in a different light and undermine the
court’s confidence in the judgment of guilt”; it may support a showing of actual innocence even
where it conflicts with the trial evidence. Robinson, 2020 IL 123849, ¶ 48. But, this newly
discovered evidence virtually duplicates the evidence at trial presented in the testimony of several
persons who had been inside the tavern and came outside at closing just as the fight began.
¶ 56 Gomez and Cezares testified they saw a fight, heard shots, and saw two of the men fighting
go down and one man run. Diaz identified Delgado as the man who ran. Padilla’s ability to recall
the events leading up to the shooting was “diminished” due to his alcohol intake; however, his
testimony aligned with the other witnesses’ accounts. Skrodzka and Kurzac saw the altercation
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from their apartment window, and, after hearing shots, both saw Delgado run away. The officers
who arrived as the shots were fired saw Delgado shoot.
¶ 57 Alcantar’s affidavit stated he saw three “individuals” attack Delgado outside the tavern;
Delgado “retrieved” a handgun, and shot two of them and the third ran away; then Delgado
dropped the gun and ran. According to Alcantar, police shot at an unarmed Delgado three times.
¶ 58 Delgado argues that “Kurzac did not testify if Delgado had dropped the gun before the
police fired at him” and that Padilla’s powers of observation were diminished by his alcohol
consumption. But the State presented multiple eyewitnesses who testified to essentially the same
facts. After the tavern closed, several people were in front when a fight broke out. Some of the
witnesses saw Delgado shoot a gun—where he got the gun is irrelevant. After shooting the two
men, Delgado ran, police officers caught up to him, a struggle ensued, and Delgado was arrested.
Two police officers testified that Delgado shot at them as he ran.
¶ 59 Delgado further argues that he shot in self-defense, and Alcantar’s proposed testimony
“regarding the details of the fight” would have provided context to decide the issue. This argument
ignores this court’s decision on direct appeal that Delgado’s use of deadly force was unnecessary,
and he did not act in self-defense. Delgado, 1-91-1267 (1992) (unpublished order under Supreme
Court Rule 23). Even taking the allegations in the affidavit as true, the affidavit is cumulative and
not so conclusive that a retrial would probably result in an acquittal.
¶ 60 Ineffectiveness of Trial Counsel
¶ 61 Next, Delgado argues his “post-conviction petition has raised an arguable claim that his
trial counsel was ineffective for failing to investigate and present an available police report to
impeach Lester Kurzac with a prior inconsistent statement that he saw Delgado engaged in a
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fistfight outside of Club Verde minutes before the shooting.” The State responds that Delgado
failed to establish that “he was arguably prejudiced by his trial counsel’s alleged deficient
performance.”
¶ 62 Under the test announced in Strickland v. Washington, 466 U.S. 668 (1984), to succeed on
a claim of ineffective assistance, Delgado must show that counsel’s representation fell below an
objective standard of reasonableness and, but for the deficient representation, the outcome of the
proceeding would have been different. See also People v. Smith, 2014 IL 115946, 34.
¶ 63 Delgado asserted that if his trial attorney had conducted such an investigation, he would
have discovered that Kurzac told officers that he saw Delgado engaged in a fistfight in front of the
tavern, the fight lasted five to 10 minutes, and three gunshots were fired shortly after the fight
ended. In support of his claim, Delgado attached two reports from Detective Dickinson
memorializing Kurzac’s statements. And, when assessing the importance of the failure to impeach
for purposes of a Strickland claim, the “value of the potentially impeaching material must be placed
in perspective.” People v. Jimerson, 127 Ill. 2d 12, 33 (1989). Kurzac was not the State’s main
witness, and the record does not suggest a probability of a different outcome had trial counsel
cross-examined him on his statements.
¶ 64 “The manner in which to cross-examine a particular witness involves the exercise of
professional judgment which is entitled to substantial deference from a reviewing court.” People
v. Pecoraro, 175 Ill. 2d 294, 326-327 (1997). The only way for defendant to prevail on his
ineffectiveness of counsel claim is by “showing that counsel’s approach to cross-examination was
objectively unreasonable.” Id. at 327. Delgado takes exception to Kurzac’s testimony that he saw
the men outside the restaurant “pushing and pulling” at each other, after he told the police he saw
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No. 1-18-1102
a fistfight going on. Delgado argues the “additional details” contained in the police reports would
have bolstered Delgado’s claim of self-defense.
¶ 65 But, again, on direct appeal, this court rejected the self-defense argument. The trial court
heard the State’s witnesses, which included various perspectives of the activities outside the tavern.
In a bench trial, we presume the trial court knows the law and applies it properly (People v Howery,
17 Ill. 2d 1, 32 (1997)), and we presume that the trial court considered only competent evidence.
People v Naylor, 229 Ill. 2d 584, 603 (2008).
¶ 66 Finally, the proper test at the first stage is whether it is arguable that counsel’s performance
fell below an objective standard of reasonableness and whether the defendant was arguably
prejudiced. Tate, 2012 IL 112214, ¶ 22. Delgado was afforded an adequate opportunity to present
his legal theory with sufficient detail for this court’s review. Even had trial counsel’s performance
been deficient, Delgado fails to show he suffered prejudice.
¶ 67 Affirmed.
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