People v. Jackson

2022 IL App (1st) 210022-USECOND DIVISION
February 8, 2022
No. 1-21-0022
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
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 13 CR 248
)
DEMETRIUS JACKSON, ) Honorable
) Vincent M. Gaughan,
Defendant-Appellant. ) Judge Presiding.
______________________________________________________________________________
JUSTICE HOWSE delivered the judgment of the court.
Justices Lavin and Cobbs concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court of Cook County summarily dismissing
defendant’s petition for postconviction relief from defendant’s conviction for first degree
murder is affirmed; defendant failed to state an arguable claim he received ineffective
assistance of trial counsel based on trial counsel’s failure to call defendant’s son as a
witness, failure to challenge testimony by defendant’s spouse, or failure to offer
additional evidence of defendant’s injuries resulting from the incident between defendant
and the victim.
¶2 In June 2016, following a bench trial, the circuit court of Cook County convicted
defendant, Demetrius Jackson, of first degree murder. At trial, defendant raised the affirmative
defense of self-defense. This court affirmed defendant’s conviction and sentence on direct
appeal. 2017 IL App (1st) 143395-U. In August 2018, defendant filed a petition for
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postconviction relief on the grounds of ineffective assistance of trial and appellate counsel. In
October 2018 the circuit court summarily dismissed defendant’s petition for postconviction
relief. In January 2021 defendant filed a notice of appeal from the final judgment of summary
dismissal of his petition for postconviction relief.
¶3 For the following reasons, we affirm the trial court’s order summarily dismissing
defendant’s petition for postconviction relief.
¶4 BACKGROUND
¶5 On November 21, 2012, defendant got into an argument with his wife, Charity Hamilton.
Defendant’s wife informed the victim, William Terry, of the altercation, and Terry intervened.
As a consequence of Terry’s intervention defendant stabbed Terry to death. We will summarize
only that testimony from defendant’s trial that is pertinent to the issues in this appeal.
¶6 An Assistant Medical Examiner testified that the victim died of multiple stab wounds and
that he observed defensive wounds to the victim. Before trial, defendant asserted self-defense as
an affirmative defense and filed a motion to admit evidence of the victim’s “aggressive and
violent character” specifically in the form of the victim’s criminal history, of which defendant
was aware. See People v. Lynch, 104 Ill. 2d 194, 201-02 (1984) (“Convictions for crimes of
violence, such as *** convictions for battery, are reasonably reliable evidence of a violent
character.”). In October 2013 the trial court granted defendant’s motion and defendant entered
into evidence a certified copy of the victim’s convictions for home invasion, residential burglary
(two counts), robbery of a victim over 60 years of age, aggravated battery, aggravated battery of
a senior citizen, and intimidation.
¶7 At defendant’s trial, a neighbor, Michelle Nellis, testified she saw defendant and the
victim arguing in the street. She also saw defendant “going toward” the victim and the victim
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backing up, but she did not see anything in defendant’s hands. Nellis saw defendant swinging his
arms at the victim as defendant continued to advance while the victim was backing up. Nellis
saw the victim trip over the curb as he backed away whereupon defendant returned to his own
home. The victim stood, and Nellis saw blood on this shirt. Nellis testified on cross-examination
that when she saw defendant and the victim arguing in the street she did not see Charity. Nellis
also testified on cross-examination that she never saw the victim swinging his arm.
¶8 Charity’s son from a prior relationship, Jasean Smith, testified defendant and his mother,
Charity, were arguing in the kitchen, and Charity left the house “to go get” the victim. Jasean
testified defendant initially followed Charity out of the house but defendant returned and
retrieved two knives. Defendant took the knives onto the porch of his home holding one in each
hand. Charity and the victim returned to the porch at defendant’s house whereupon the victim
asked defendant what was going on. Charity stood behind the victim and she and defendant
resumed their argument. Defendant was saying “I’m going to kill you.” Jasean testified that
defendant approached the victim and the victim pushed defendant away with one hand while
backing up.
¶9 On cross-examination Jasean testified that the victim pushed defendant multiple times
and defendant kept telling the victim “don’t touch me,” but the victim persisted in pushing
defendant in the chest. Jasean also testified on cross-examination that defendant was yelling at
that time, defendant was trying to talk to Charity but the victim was between defendant and
Charity, and the victim continued to push defendant. Jasean testified defendant continued to
approach the victim and the victim continued to back away until the two men reached the street.
Jasean testified defendant was not swinging the knives when the victim was pushing defendant.
Jasean testified that when they got into the street the victim punched his father in the jaw. Jasean
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testified defendant was trying to get close to the victim when the victim punched defendant.
Jasean opined the victim punched defendant “just like to back him up.” After the victim punched
defendant, that is when defendant started swinging the knives. The victim tripped over the curb
and fell to the ground, and defendant also fell. Defendant got up and came back into defendant’s
house.
¶ 10 Charity testified that at some point during her argument with defendant she went onto
their front porch and then went to a neighbor’s house, the home of the victim’s sister a few doors
down, because Charity had forgotten her cell phone inside the home. Charity wanted a cell phone
to call the police. The victim sometimes stayed at the neighbor’s home, and Charity encountered
him. Charity explained the situation to the victim, the victim gave Charity his cell phone to use,
and the victim and Charity proceeded back to defendant and Charity’s house. As he approached,
the victim was asking defendant what was happening and trying to calm defendant. Charity
testified defendant did initially calm down as the victim was talking to him. Charity testified the
victim was touching defendant while still trying to calm him. She testified defendant had been
approaching her and the victim from defendant’s house. Then, when the victim touched
defendant again, defendant yelled “don’t [expletive] touch me again, don’t touch me.” Charity
testified defendant then went back into defendant’s house and retrieved two knives.
¶ 11 On cross-examination, Charity testified defendant did not have, or go to retrieve, any
knives the first time the victim pushed defendant. She also testified on cross-examination that the
victim did not push defendant until defendant started “coming aggressively towards” the victim.
Defendant returned with the knives, came off the porch, and began approaching her and the
victim while yelling he would kill them. Charity testified the victim walked toward defendant “to
touch him to put the knives down” then defendant “kind of launched at him [(the victim).]” That
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is when the victim started backing toward the street. Defendant was coming toward the victim
swinging the knives. Charity looked away at her children in the window of her house and when
she looked back, defendant and the victim had both tripped over the curb and were lying on the
ground. Charity testified she never heard the victim threaten defendant.
¶ 12 Defendant testified that when Charity left and went to the victim’s sister’s house, he
realized he had been locked out of his basement and retrieved a knife to open the door. On cross-
examination the State impeached defendant with his statement to police that when he was
arguing with Charity in their kitchen, he grabbed a couple of knives and “told her not to talk
[expletive.]” Defendant testified that when defendant opened the basement door and retrieved his
keys and cigarettes he went to his front porch. Charity was with the victim. Defendant testified
that when the victim and Charity first approached him, he was on his own front porch and the
victim was “very loud and angry.” Defendant testified he told the victim to stay out of the
argument between defendant and his wife. The victim instead pushed defendant in the chest,
hard, with two hands, causing defendant to stumble but not fall. Defendant testified he continued
to argue with his wife, and the victim pushed him “aggressively” in the chest with two hands. At
that point defendant told the victim to stay out of the argument and not to touch him again. On
cross-examination defendant testified that he grabbed the knife after the victim pushed him.
Defendant testified he tried to step around the victim and that is when the victim punched him in
the face. As a result of the punch defendant suffered a cut on the inside of his mouth which later
led to an infection. Defendant testified that after the punch he swung at the victim and the two
started tussling.
¶ 13 On cross-examination, defendant testified he swung at the victim with the knife in his
hand and the victim stepped back; then the two men started to tussle. Defendant testified the
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victim held him and defendant tried to pull away but the victim would not let go. The two men
continued in this way until they tripped and fell over the curb. Defendant testified he still had the
knife at that time, and he “actually feared for [his] life, and [he] stabbed [the victim] in self-
defense.” Defendant stated, “once he punched me in the mouth, I was kind of dazed. And when
we fell to the ground, I was terrified. I just only acted in self-defense.” Defendant testified that he
was terrified because the victim told him “several stories about his past and the fact that he was
sentenced to 14 years for the aggravated battery on a senior citizen and a lot of different stories
that we talked about over the years.” Defendant stabbed the victim after the two men were on the
ground.
¶ 14 In August 2018 defendant filed the pro se petition for postconviction relief that is the
subject of this appeal. Defendant’s petition alleged, in pertinent part, that (1) defendant was
denied his right to the effective assistance of counsel because his trial counsel failed to (a) object
to Charity’s testimony, (b) investigate Demetrius Jackson, Jr. (defendant’s biological son who
also witnessed the incident) and call him as a witness, and (c) call defendant’s civil attorneys to
testify as to injuries defendant received as a result of the altercation with the victim as evidenced
by defendant’s settlement of a civil suit against the city of Chicago based on denying him
medical attention for those injuries. Specifically, defendant’s pro se petition alleged trial counsel
should have objected to Charity’s testimony based on spousal privilege and because the State
coerced Charity to testify. Defendant’s pro se petition also alleged that trial counsel provided
ineffective assistance by failing to interview Demetrius Jackson, Jr. and call him as a witness to
corroborate defendant’s testimony. Defendant’s petition also alleged that defendant received
ineffective assistance of appellate counsel based on the failure to preserve and raise alleged
prosecutorial misconduct and trial counsel’s alleged ineffectiveness related to that issue on direct
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appeal. Defendant alleged the State committed prosecutorial misconduct by coercing Charity to
testify falsely against defendant. The petition alleged that in a phone call between Charity and
defendant, Charity told him that an assistant state’s attorney threatened to jail her for 30 days if
she failed to testify. Charity allegedly told defendant that under threat of spending 30 days in jail
she “only did what she was told to do and say.” Finally, defendant’s pro se petition asserted his
civil attorneys were willing to testify at the criminal trial, but defendant did not attach their
affidavits to the petition. Defendant did attach a copy of a letter from his civil attorneys
informing defendant that settlements with the city of Chicago and Cook County had been
finalized and his civil suit against the city dismissed with prejudice. Defendant did not attach the
executed settlements and releases or dismissal of the complaint to the petition.
¶ 15 In October 2018, the trial court entered a written order finding defendant’s postconviction
petition frivolous and patently without merit and summarily dismissing the petition. The court
summarized the evidence in part as follows:
“[The victim] intervened [in an argument between defendant and his wife] and a
verbal altercation escalated into a physical one. [Defendant] had knives in each
hand. [The victim] pushed and punched [defendant.] [Defendant] swung the
knives at [the victim] as [the victim] backed away. The two fell to the ground and
[defendant] stabbed [the victim] multiple times. Both got up and walk (sic) to
their houses. [The victim] eventually succumbed to his injuries.”
As to defendant’s allegations, the court found defendant failed to present arguable claims of
ineffective assistance because (1) the marital privilege in Illinois did not apply to any of
Charity’s testimony; (2) defendant’s claim trial counsel was ineffective for failing to argue the
State coerced Charity to testify, and that the State committed prosecutorial misconduct, are not
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arguable because Charity did, in fact, risk jail time for contempt if she refused to testify, and at
best the information provides impeachment material and trial counsel did impeach Charity’s
testimony with prior inconsistent statements; (3) Demetrius Jr.’s proposed testimony does not
materially differ from the evidence at trial and does not provide evidence to establish self-
defense or unreasonable belief self-defense and thus would not have arguably changed the
outcome of the case; and (4) defendant offered evidence of his civil suit to substantiate that the
victim injured him but that was not a contested fact where the witnesses agreed the victim hit
defendant.
¶ 16 In November 2018, defendant filed a pro se notice of appeal from the judgment
summarily dismissing the petition as well as a motion to reconsider that judgment. In February
2019 the trial court entered an order striking the motion to reconsider on the ground of lack of
jurisdiction resulting from the filing of a notice of appeal. In July 2020 this court entered an
order dismissing defendant’s appeal and directing the trial court to rule, pursuant to Illinois
Supreme Court Rule 606(b) (eff. Jul. 1, 2017), on defendant’s motion to reconsider the judgment
summarily dismissing the postconviction petition. In November 2020, the trial court entered a
written order denying defendant’s motion to reconsider the order summarily dismissing the
postconviction petition. In January 2021, defendant filed a notice of appeal from the trial court’s
November 2020 judgment.
¶ 17 This appeal followed.
¶ 18 ANALYSIS
¶ 19 This court will review the trial court’s summary dismissal of a defendant’s petition for
postconviction relief under the de novo standard of review. People v. Steward, 406 Ill. App. 3d
82, 89 (2010). “Under a de novo standard of review, the reviewing court owes no deference to
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the trial court’s judgment or reasoning. [Citation.] De novo consideration means that the
reviewing court performs the same analysis that a trial judge would perform.” People v. Jackson,
2021 IL App (1st) 190263, ¶ 38. When performing this analysis, the question for this court is
whether the petition has an arguable basis in either law or in fact. Steward, 406 Ill. App. 3d at 89
(quoting People v. Hodges, 234 Ill. 2d 1, 17 (2009)). A petition lacks an arguable basis in law or
in fact when it is based on an indisputably meritless legal theory or it is based on fanciful factual
allegations. Hodges, 234 Ill. 2d at 16. “An example of an indisputably meritless legal theory is
one which is completely contradicted by the record” whereas fanciful factual allegations “include
those which are fantastic or delusional.” Id. at 16-17. Additionally, “[t]he petition is required to
have attached affidavits, records or other evidence to support its allegations or state why this
evidence is not attached. Steward, 406 Ill. App. 3d at 88 (citing 725 ILCS 5/122–2 (West 2008)).
¶ 20 On appeal, defendant argues his petition states an arguable claim that he received
ineffective assistance of counsel at trial. A claim of ineffective assistance in a postconviction
petition is evaluated under the same two-prong standard set out in Strickland. People v. Shief,
2016 IL App (1st) 141022, ¶ 55. At this stage of postconviction proceedings, under the first
prong of the Strickland test the defendant must show that it is arguable that his attorney’s
representation fell below an objective standard of reasonableness. Id. ¶ 56. See also Scott, 2011
IL App (1st) 100122, ¶¶ 27, 29 (“At the first stage of postconviction proceedings, a petition
alleging ineffective assistance of counsel may not be dismissed if: (1) counsel’s performance
arguably fell below an objective standard of reasonableness.”). The question is whether it is
arguable that counsel made errors so serious that counsel was not functioning at the “counsel”
guaranteed by the sixth amendment. Id.; People v. Temple, 2014 IL App (1st) 111653, ¶ 53.
Under the second prong of the ineffective assistance of counsel test, the defendant must show
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that it is arguable that counsel’s deficient performance prejudiced him. Scott, 2011 IL App (1st)
100122, ¶ 29 (“At the first stage of postconviction proceedings, a petition alleging ineffective
assistance of counsel may not be dismissed if: *** (2) the petitioner was arguably prejudiced.”).
Under the second prong, the question is whether it is arguable that but for counsel’s deficient
performance the outcome of the trial would have been different. Id.; Temple, 2014 IL App (1st)
111653, ¶ 53.
¶ 21 Although defendant raised additional claims in his petition he pursues only three on
appeal: (1) trial counsel failed to call Demetrius Jr. as a witness; (2) trial counsel failed to adduce
evidence the State coerced Charity to testify falsely against defendant with a threat of jail time if
she refused to testify; and (3) trial counsel failed to present evidence of the severity of his
injuries from the victim. We address these, and only these arguments, in turn. See People v.
Deloney, 341 Ill. App. 3d 621, 625 n1 (2003) (“we note that while defendant alleged in his
petition that there was ‘judicial bias’ at trial, he fails to further discuss or offer any evidence in
support of this issue in either of his briefs. Therefore, we consider the issue waived on appeal.”).
¶ 22 A. Failure to Call Demetrius Jr. as a Witness
¶ 23 Defendant argues his petition states an arguable claim trial counsel was ineffective in
failing to call Demetrius Jr. as a witness because Demetrius Jr.’s testimony would have provided
critical evidence in support of defendant’s affirmative defense of self-defense. Defendant
attached Demetrius Jr.’s affidavit in which Demetrius Jr. averred that he was supposed to be a
witness for his father at his father’s trial. Demetrius Jr. averred he attempted to contact
defendant’s trial attorney but defendant’s attorney never called him back. Demetrius Jr. averred
he was present before, during and after the argument between defendant and Charity and the
incident between defendant and the victim. Demetrius Jr. averred defendant went to the kitchen
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to get a knife to unlock the basement door then defendant sent him into the basement to retrieve
defendant’s keys and cigarettes. Defendant then went onto their front porch to smoke. The victim
came on their porch and “started to hollering at [defendant] real loud.” Demetrius Jr. and Jasean
watched from the window. Demetrius Jr. averred defendant told the victim he had nothing to do
with the argument between defendant and Charity, and the victim “pushed [defendant] as he was
standing on the end porch (sic).” Defendant told the victim to keep his hand off of him and the
victim “was getting loud again, pushed him 4 times, [defendant] said ‘Don’t touch me again,’
and defendant tried to step around the victim. Demetrius averred the victim swung at defendant
and “bust his mouth open.” Defendant swung back and the two men started tussling. Defendant
said, “ ‘Let me go,’ “ and the victim grabbed defendant by the neck. Demetrius Jr. averred they
fell over the curb and both went down to the ground. Demetrius Jr. and Jasean continued to
watch from the window. He stated both men got up, the victim went toward his sister’s house
and defendant came toward their house. Demetrius Jr.’s affidavit opines the victim “started the
fight attacking [defendant.]”
¶ 24 First, defendant argues his allegations concerning Demetrius Jr. are not fanciful nor
delusional. We agree. See Hodges, 234 Ill. 2d at 18-19 (in postconviction claim of ineffective
assistance for failing to call certain witnesses, finding allegations did not lack an arguable basis
in fact where the defendant identified potential witnesses, summarized their testimony, attached
the witnesses’ signed affidavits, and potential testimony was corroborated by the State’s
evidence). Therefore, we find this claim in defendant’s postconviction petition is not lacking an
arguable basis in fact.
¶ 25 Second, we begin by noting that this court has recognized that where the evidence the
defendant claims should have been offered is cumulative to that evidence already in the record
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the defendant cannot make out a claim that his counsel was incompetent. People v. Vernon, 276
Ill. App. 3d 386, 393 (1995). See also People v. Evans, 2017 IL App (1st) 143268, ¶¶ 35, 42
(rejecting claim of ineffective assistance in part because newly proffered testimony was
cumulative of trial testimony where both witnesses provided substantially the same version of
events); People v. Giles, 209 Ill. App. 3d 265, 271 (1991) (rejecting claim of ineffective
assistance of counsel based on failure to call additional alibi witness where witness’s testimony
“would have only been cumulative”). Furthermore, the decision whether to call various witnesses
is a matter of trial strategy which may not be second-guessed under Strickland. People v. Simms,
168 Ill. 2d 176, 200 (1995).
¶ 26 In this case, defendant recognizes that the weakness in his argument that it is arguable
that he was prejudiced by trial counsel’s failure to call Demetrius Jr. as a witness is that other
witnesses provided similar testimony, and he argues that the testimony is not just cumulative but
is corroborative, and evidence corroborating the defense’s version of events has the potential to
change the outcome of a trial. In this instance, defendant argues that Demetrius Jr.’s testimony
makes it more probable that there would have been a finding that defendant was in fear of his
life, reasonably or unreasonably, and acted in self-defense. In support of his argument defendant
relies on People v. Warren, 2016 IL App (1st) 090884-C, where this court wrote that
“[c]orroborative evidence is not the same as cumulative evidence.” Warren, 2016 IL App (1st)
090884-C, ¶ 81. Defendant’s reliance on Warren is misplaced.
¶ 27 First, defendant ignores this court’s finding as to what constitutes “cumulative” evidence.
This court found that “[e]vidence is considered cumulative if it ‘adds nothing’ to what the jury
heard at trial.” Id. ¶ 81. In this case, defendant does not and cannot argue that Demetrius Jr.’s
testimony would add to what the jury heard at trial because Demetrius Jr.’s proffered testimony
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is wholly consistent with the evidence adduced at defendant’s trial. In contrast, the proffered
evidence in Warren was testimony that two other men confessed to committing the crime the
defendant was convicted of (id. ¶ 84), and there had been “no evidence at trial that either
[witness] had confessed to [the] murder” (id. ¶ 81). Thus, in Warren, this court held that the
proffered testimony “would add something to the evidence the jury heard.” Id. ¶ 81. In this case,
there was substantial evidence at trial as to the facts and circumstances of the incident, including
evidence that the victim punched defendant and evidence from which a reasonable trier of fact
might have concluded that the victim was the initial aggressor. See supra, ¶ 9. We find that
Demetrius Jr.’s testimony would not add anything to the evidence the trier of fact heard in this
case and, therefore, is merely cumulative. See Warren, 2016 IL App (1st) 090884-C, ¶¶ 81-84;
see also People v. Molstad, 101 Ill. 2d 128, 134-35 (1984) (relied upon by Warren and finding
that additional testimony from five witnesses who participated in the crime as to who was
present at the time of the offense “raises additional questions concerning the trial court’s verdict”
where at the defendant’s trial “the only testimonial evidence that [the defendant] could offer ***
was his testimony that he was not present” (Emphases added.)).
¶ 28 This court relied on Molstad for its general statement that corroborative evidence is not
the same as cumulative evidence; but the context in which courts have made that observation
completely differ from the facts of this case. In Molstad, the trier of fact had not heard evidence
as to who was present at the time of the offense, therefore we may conclude that the proffered
testimony in that case would have added to what the trier of fact heard at trial. Molstad, 101 Ill.
2d at 134-35. Accord, Hodges, 234 Ill 2d at 5, 20-21 (finding that independent witness testimony
the victim was armed would have supported theory defendant believed his actions were
justifiable where State’s occurrence witness testified the victim as unarmed and only
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contradictory evidence came from the defendant); People v. Sparks, 393 Ill. App. 3d 878, 886
(2009) (also relied upon by Warren and finding that proffered evidence presented a “conflicting
version about the incident”). Defendant argues that Demetrius Jr.’s testimony, that “[i]t was only
after Jackson was punched by [the victim] that [defendant] started to swing the knives,” is part of
a “competing version of events” to the State’s evidence. We disagree. Evidence that defendant
began to swing his knives at the victim after the victim pushed and punched him was before the
trial court. See supra, ¶ 9. Demetrius Jr.’s testimony to that effect would have been merely
cumulative of the evidence at trial. Defendant’s argument here, fails.
¶ 29 Defendant’s ineffective assistance of counsel claim rests on an indisputably meritless
legal theory because the record completely contradicts defendant’s claim that it is arguable
counsel’s performance was deficient or that defendant was prejudiced by failing to call
Demetrius Jr. to offer merely cumulative testimony. See Evans, 2017 IL App (1st) 143268, ¶ 35;
Vernon, 276 Ill. App. 3d at 393. Accordingly, we hold the trial court properly summarily
dismissed defendant’s postconviction petition alleging ineffective assistance of counsel on this
ground. Hodges, 234 Ill. 2d at 16.
¶ 30 B. Failure to Elicit Evidence the State Coerced Defendant’s Wife’s Testimony
¶ 31 Next, defendant argues that his petition states an arguable claim that trial counsel was
ineffective in failing to adduce evidence that the State coerced Charity to testify falsely against
him by threating her with jail time if she refused to testify. Defendant attached Charity’s affidavit
in which she averred as follows:
“I had to testify against my husband in court because the state’s attorney
told me if I didn’t I would have to serve 30 days in jail. So I had to testify due to
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the fact that if I didn’t I did not have anyone to watch our kids if I did 30 days in
jail.”
¶ 32 Initially, we note that Charity’s affidavit does not say that she perjured herself at
defendant’s trial. The Post-Conviction Hearing Act requires the defendant to attach some factual
documentation which supports the allegations in the petition. People v. Delton, 227 Ill. 2d 247,
254 (2008). Regardless, defendant’s argument admits the only value to this evidence would be to
impeach Charity by demonstrating her bias to testify favorably for the State, and he asserts that
demonstrating that bias would have impacted the outcome of the trial; therefore, defendant
argues, he has stated an arguable claim of ineffective assistance of counsel. “Whether and how to
cross-examine or impeach a witness is generally a matter of trial strategy, which will not by itself
support an ineffective assistance claim. People v. Bell, 2021 IL App (1st) 190366, ¶ 79.
However, the complete failure to impeach the sole eyewitness when significant impeachment is
available is not trial strategy and, thus, may support an ineffective assistance claim. [Citation.]”
(Internal quotation marks omitted.) People v. Layton, 2021 IL App (1st) 172418, ¶ 86 (quoting
People v. Salgado, 263 Ill. App. 3d 238, 246-47 (1994)). “When assessing the importance of the
failure to impeach for purposes of a Strickland claim, ‘[t]he value of the potentially impeaching
material must be placed in perspective.’ “ Id. at 247.
¶ 33 Defendant’s claim of ineffective assistance in this regard is based on a meritless legal
theory that is completely contradicted by the record. Hodges, 234 Ill. 2d at 16. Defendant argues
that Charity “provided critical testimony for the State that [defendant] threatened to kill her and
[the victim.]” Defendant later asserts that Charity “provided the most damning evidence against
[defendant]” by testifying that defendant “threatened to kill her and [the victim.]” He also notes
that Charity did not testify that the victim punched defendant. However, the record contains
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ample evidence the victim punched defendant and that fact was not contested at trial. Thus,
defendant’s argument reduces to the failure to impeach Charity to show her bias to testify falsely
that defendant threated to kill her and the victim.
¶ 34 Our supreme court has instructed that the value of the potentially impeaching material
must be placed in perspective with the State’s case. Jimerson, 127 Ill. 2d at 33. The State, and
defendant, adduced evidence that defendant intentionally stabbed the victim to death with the
sole difference in the proffered evidence being whether defendant acted based on a reasonable or
an unreasonable belief he needed to use deadly force in self-defense.
“The elements of self-defense are: (1) that unlawful force was threatened
against a person; (2) that the person threatened was not the aggressor; (3) that the
danger of harm was imminent; (4) that the use of force was necessary; (5) that the
person threatened actually and subjectively believed a danger existed that required
the use of the force applied; and (6) the beliefs of the person threatened were
objectively reasonable.” People v. Lee, 213 Ill. 2d 218, 225 (2004) (citing 720
ILCS 5/7-1 (West 1998)).
¶ 35 Defendant’s trial counsel could have concluded that attempting to impeach Charity with
evidence of possible coercion by the State to testify defendant threatened her and the victim—
which the trial court found evidenced that defendant was the aggressor—would not have added
significantly to the defense’s case given the testimony of another witness as to defendant’s
utterances and, more importantly, the similarities in the testimony as to defendant’s conduct and
the victim’s conduct. “Whether a killing is justified under the law of self-defense depends upon
the surrounding facts and circumstances and is to be determined by the trier of fact.” People v.
Woods, 81 Ill. 2d 537, 542 (1980).
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¶ 36 Defendant argues the trial court’s finding that defendant’s utterances establish that
defendant was the initial aggressor proves trial counsel was ineffective for failing to impeach
Charity. However, we note the trial court had sufficient evidence to determine which party was
the aggressor from evidence other than Charity’s testimony. A defendant fails to establish
prejudice from trial counsel’s strategic decisions regarding challenging or admitting certain
evidence when other evidence of record is “more than sufficient to convict.” See, e.g., People v.
Williams, 2012 IL App (1st) 100126, ¶ 36 (finding defendant failed to show he was prejudiced
by trial counsel’s cross-examination that allegedly undermined the defense’s theory of the case).
Furthermore, “[a] defendant can overcome the strong presumption that defense counsel’s choice
of strategy was sound if counsel’s decision appears so irrational and unreasonable that no
reasonably effective defense attorney, facing similar circumstances, would pursue such a
strategy.” (Emphasis in original.) People v. King, 316 Ill. App. 3d 901, 916 (2000). We find that
in the context of this case, the record establishes that trial counsel could have reasonably
determined as a matter of sound trial strategy that any potential impeachment evidence was not
“significant.” Compare Salgado, 263 Ill. App. 3d at 247 (“the impeachment value of directly
contradictory testimony made under oath at a prior trial by the State’s premier eyewitness[—in
fact, “the only witness at the defendant’s trial to implicate him through direct testimony—]can
hardly be overestimated”).
¶ 37 Moreover, to establish an arguable claim of ineffective assistance of counsel defendant
must demonstrate that it is arguable that counsel’s allegedly deficient performance prejudiced
him. Hodges, 234 Ill. 2d at 17.
“As noted, the examination or impeachment of a witness is generally considered
to be trial strategy, which does not support a claim of ineffective assistance of
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counsel. [Citations.] ‘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.’ [Citation.] The only way for a defendant to
prevail on his ineffectiveness claim is by ‘showing that counsel’s approach to
cross-examination was objectively unreasonable.’ [Citation.]” People v. Lacy, 407
Ill. App. 3d 442, 463 (2011).
¶ 38 In this case, efforts to impeach Charity with the fact she only testified out of fear of
losing her children could have invited the trier of fact to conclude that her testimony was
believable because she was initially reluctant to testify against her husband which also may have
caused her to lose her children and her children to lose their father. See Jimerson, 127 Ill. 2d at
33-34 (finding efforts to impeach the witness with the full range of her prior testimony could
well have invited the jury to conclude that her testimony in this case was believable precisely
because of the unbelievable character of her earlier assertions that she knew nothing about the
crimes and that she and the defendant were innocent of the charges). Defendant’s trial counsel’s
selected strategy was to cross-examine Charity in a manner to highlight the victim’s aggressive
behavior toward defendant, that defendant did not initially respond with deadly force until after
the victim repeatedly pushed defendant, and Charity’s lack of awareness of the victim’s violent
past. In this case we cannot find that it is arguable that counsel was ineffective in his examination
of Charity because counsel’s performance was not objectively unreasonable. See Lacy, 407 Ill.
App. 3d at 463-65 (detailing points on which defense counsel cross-examined witness and
finding no ineffective assistance of counsel from failure to further impeach witness). We hold
defendant has not established an arguable claim that he received ineffective assistance of counsel
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based on the failure to impeach Charity with her fear of losing her children if she did not testify
favorably for the State.
¶ 39 C. Failure to Elicit Evidence Corroborating the Severity of Defendant’s Injury
¶ 40 Finally, defendant argues he stated an arguable claim that he received ineffective
assistance of counsel because his trial attorney failed to present “additional” evidence of the
severity of the injury defendant received when the victim punched him. Defendant argues that
had trial counsel presented additional evidence of the severity of his injuries, that evidence
would have “tipped the scales” in defendant’s favor and rebutted the State’s argument in closing
that defendant’s injury was not severe enough to warrant stabbing the victim to death. As noted
above, where the evidence the defendant claims should have been offered is cumulative to that
evidence already in the record, the defendant cannot make out a claim that his counsel was
incompetent. Vernon, 276 Ill. App. 3d at 393. Defendant’s argument in this court effectively
admits that this evidence would have been cumulative to his testimony at trial and, he argues,
“presented a stronger self-defense claim.” (Emphasis added.)
¶ 41 We find that evidence concerning defendant’s injury, whether through testimony by his
civil attorneys, medical records, or any other evidence, would add nothing to what the trier of
fact heard at trial and is, therefore, cumulative. Warren, 2016 IL App (1st) 090884-C, ¶ 81.
“Trial counsel’s performance cannot be considered deficient because of a failure to present
cumulative evidence.” People v. Henderson, 171 Ill. 2d 124, 155 (1996). Defendant’s claim of
ineffective assistance is based on an indisputably meritless legal theory. The trial court properly
summarily dismissed the petition on this ground.
¶ 42 Finally, because we have found defendant has not demonstrated that any of his individual
claims state an arguable claim of ineffective assistance of counsel, we cannot find that the
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cumulative effect of the alleged errors—because there were none—deprived defendant of his
right to effective assistance.
¶ 43 Accordingly, the trial court’s judgment is affirmed.
¶ 44 CONCLUSION
¶ 45 For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 46 Affirmed.
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