People v. Wicks

2021 IL App (1st) 171454-UNo. 1-17-1454
Order filed March 26, 2021
Sixth 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
______________________________________________________________________________
PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 98 CR 8276
)
PARIS WICKS, ) Honorable
) Thomas J. Byrne,
Defendant-Appellant. ) Judge, Presiding.
JUSTICE SHARON ODEN JOHNSON delivered the judgment of the court.
Presiding Justice Mikva and Justice Connors concurred in the judgment.
ORDER
¶1 Held: We affirmed the second stage dismissal of defendant’s successive postconviction
petition where defendant failed to establish prejudice from trial counsel’s cross-
examination of a State’s witness; thus, defendant failed to make a substantial
showing of appellate counsel’s ineffectiveness.
No. 1-17-1454
¶2 Defendant Paris Wicks 1 appeals from the second stage dismissal of his successive
postconviction petition on the State’s motion. On appeal, he contends that the trial court’s
dismissal should be reversed where he made a substantial showing that appellate counsel was
ineffective for failing to argue that defendant’s trial counsel rendered ineffective assistance when
he elicited damaging identification testimony from Brandon Lemon (Lemon), one of his
codefendants. For the following reasons, we affirm.
¶3 BACKGROUND
¶4 A. Procedural Background
¶5 Following a jury trial, defendant was convicted of first degree murder for the shooting
death of Adrian Uriostegui (decedent) and sentenced to 40 years’ imprisonment. His conviction
and sentence were affirmed on direct appeal. People v. Wicks, 1-02-2429 (2004) (unpublished
order under Supreme Court Rule 23). On January 7, 2005, through counsel who had represented
him on direct appeal, defendant filed a postconviction petition. That petition was summarily
dismissed on March 14, 2005. We affirmed the dismissal on September 20, 2006. People v. Wicks,
No. 1-05-1145 (2006) (unpublished order under Supreme Court Rule 23). Defendant’s petition for
leave to appeal was denied on March 1, 2007.
¶6 Defendant filed a pro se motion for leave to file a successive postconviction petition on
January 5, 2009. The trial court denied leave in a written order on March 6, 2009. This court
reversed and remanded the matter for second stage postconviction proceedings on October 12,
1
Although defendant is referred to in the notice of appeal as “Paris Wicks-El,” our review of the
record reveals no documented basis for the change of his last name and that is the only document where
he is referred to by a different last name. Accordingly, we shall continue to refer to defendant as “Paris
Wicks,” consistent with how he was identified in all prior proceedings.
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No. 1-17-1454
2010. People v. Wicks, No. 1-09-0940 (2010) (unpublished order under Supreme Court Rule 23).
Appointed counsel filed an amended postconviction petition. On April 20, 2017, the trial court
granted the State’s motion to dismiss the petition. This appeal followed.
¶7 B. Factual Background
¶8 On March 6, 1998, the decedent was shot and killed at the corner of Hollywood and Clark
in Chicago. Shortly thereafter, police went to a nearby apartment and arrested a group of teenagers,
including defendant, who was 16 years old at that time. After being identified in a lineup, defendant
made an inculpatory statement. Defendant was charged, along with codefendants Lemon, Dakari
Williams (Williams), William Cox (Cox), Joseph Nolen (Joseph), and Alvine Nolen (Alvine), with
first degree murder, attempted first degree murder, and aggravated discharge of a firearm.
Defendant’s pre-trial motions were denied.
¶9 At trial, Kerri Ellis (Ellis) testified that she was walking west on Hollywood towards Clark
at approximately 6:40 p.m. on March 6, 1998, behind two African-American boys, one of whom
was light-skinned with a big nose and taller than the other boy. The taller boy looked back at her,
told the shorter boy that it was okay, and the shorter boy crossed the street and joined three other
African-American boys. Ellis passed the taller boy before reaching the corner and she crossed
Clark and entered a restaurant to pick up a food order. When she exited the restaurant, a Hispanic
boy she had never seen before started screaming and staring at her. Ellis testified that the group
she saw earlier was running east on Hollywood. She heard someone say that the Hispanic boy had
been shot, so she said to call the police. When police arrived, Ellis told them about the group of
boys running down Hollywood, and that the tall boy she saw had short hair and a big nose.
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¶ 10 Corrine John (John) testified that at approximately 6:40 p.m. on the day of the shooting,
she was on the back porch at her apartment located at 1413 West Hollywood when she heard
running and saw four African-American men run through the gangway, kitty-corner through the
alley. They wore dark coats, and one man wore a coat with a yellow stripe. When the police arrived
10 minutes later, she described the man in the coat with the yellow stripe to them.
¶ 11 Armando Correa (Correa) testified that he and the decedent were members of the Latin
Kings at the time of the shooting. They were walking north on Clark toward Hollywood when
they passed defendant standing outside of a bar. As they walked past the bar, Correa looked at
defendant’s face. When Correa and the decedent reached the corner, he heard three gunshots from
behind them. Correa looked back after the second gunshot and saw defendant pointing a black
gun with a brown handle at the decedent. Defendant ran past Correa after the shooting, heading
east on Hollywood towards three other males who were coming up the alley. When the police
arrived, Correa told them what he saw and shortly thereafter, identified defendant as the shooter
in a lineup. Correa also identified defendant in court as the shooter.
¶ 12 On cross-examination, Correa admitted that it was dark outside when the shooting
happened but said that the lighting conditions were good enough to see someone’s face. Correa
also admitted that he was told there was a suspect in custody before viewing the lineup and based
on that, he expected to see the shooter.
¶ 13 Chicago police officer Janice Scott testified that on March 6, 1998, she and her partner
went to the area of 5701 North Clark at 6:40 p.m. in response to a call of shots fired. When they
arrived, they spoke to witnesses, including Correa, and sent out a flash message that the shooter
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was a light-skinned African-American male, approximately 18 years old, six feet tall, 165 pounds,
wearing a dark blue baseball cap and jacket, and dark blue jeans.
¶ 14 Chicago police officer Robert Bridges testified that on March 6, 1998, at 6:40 p.m., he and
his partner Officer Melchiori received a call of a man shot on Hollywood. Based on information
received from John, Melchiori went to the front of 5644 North Glenwood, where he saw an
African-American male wearing a black jacket with yellow stripes, whom he later learned was
Lemon. After arresting Lemon, Officer Bridges went to the second floor of 5644 North Glenwood
where he found three African-American males, one of whom was defendant. All three were taken
into custody and taken to the police station.
¶ 15 Chicago police sergeant Michael Ogliore testified that he was assigned to the 20th District
and was familiar with the territories of the Conservative Vice Lords and Latin Kings. On the
evening of the shooting, Sergeant Ogliore received information that led him to proceed to 6424
North Greenview, where he found and arrested Alvine.
¶ 16 Chicago police officer Philip Gonzalez testified that he and his partner responded to a call
of shots fired at 5701 North Clark. While canvassing the area, he received a call from Officer Pat
Cain, which led him to go to an apartment at 5882 North Ridge and look for a person named
“Dakari” and a gun. At the apartment, Officer Gonzalez and Officer Cain encountered a young
lady named “Kisha” and Williams. Kisha motioned Officer Cain towards a stack of boxes in the
hallway, where he recovered a gun. Kisha and Williams were both taken into custody.
¶ 17 Chicago police officer William Moore testified that he was a forensic investigator assigned
to the Cook County Medical Examiner’s Office (Medical Examiner’s Office) on March 7, 1998.
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On that date, he went to the morgue to collect a bullet envelope from the pathologist, who had
collected evidence from the decedent’s body.
¶ 18 Detective Robert Labbe testified that at 6:50 p.m. on March 6, 1998, he was assigned to
investigate the shooting at Hollywood and Clark. While he was at the scene, the evidence
technicians arrived and recovered a .32 caliber casing. Detective Labbe later learned from other
officers that a .32 caliber weapon was recovered from a nearby location. At approximately 4:30
a.m. the following morning, he and an Assistant State’s Attorney (ASA) interviewed Lemon with
Lemon’s mother present. At the conclusion of the interview, the ASA took a handwritten statement
from Lemon, who read and made changes to it before he and his mother signed each page of the
statement. Lemon was never promised anything in return for his statement, nor did Lemon appear
to be under the influence of alcohol or drugs.
¶ 19 Dr. Nancy Jones of the Medical Examiner’s Office testified that she performed an autopsy
on the decedent. She determined that the cause of death was multiple gunshot wounds, and that
the manner of death was homicide.
¶ 20 No latent fingerprints were found on the recovered gun, magazine, pouch, two live
cartridges, or discharged cartridge case. Tests revealed that the fired cartridge recovered from the
scene had at one time been chambered in the recovered gun, and that the bullet recovered from the
decedent’s body had the same characteristics as the gun. However, tests were inconclusive as to
whether the bullet was fired from the weapon.
¶ 21 Lemon, a codefendant, testified for the State that he was incarcerated after he pled guilty
to murder of the decedent a year earlier. He stated that at the time of the shooting, he was 16 years
old and lived at 5644 North Glenwood with his parents and was a member of the Conservative
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Vice Lords. Lemon stated that he and defendant were friends. He also testified that the area of
Clark and Ridge was Vice Lords territory, and at the time of the shooting, the Vice Lords were at
war with the Latin Kings, whose territory was near Hollywood and Clark.
¶ 22 Lemon testified that he knew Williams, a/k/a “Cheese;” Joseph, Alvine a/k/a Alvin2; and
Cox, a/k/a “Country.” Lemon stated that prior to the shooting, stated that they were all present at
a gang meeting at William’s apartment, but he refused to say whether defendant was at the meeting.
The State confronted Lemon with his prior handwritten statement that was made to police the day
after the shooting, which he acknowledged signing. Lemon admitted that the statement indicated
that defendant was present at the meeting and that gang business was discussed. Lemon
acknowledged that he, his mother, the ASA and a detective signed each page of the statement and
that the photograph attached to the statement was of he and his mother, taken after they signed the
statement.
¶ 23 Lemon refused to say whether a decision was made at the meeting to kill a Latin King, and
he refused to answer the State’s questions about what his prior statement said about the matter. He
requested to be taken back to jail and indicated to the trial court that he was refusing to answer
because he was “mad” and that “[they] should’ve notified [him].” After Lemon refused to answer
the State’s next three questions, the trial court directed Lemon to answer the questions, but Lemon
continued to refuse to answer. The court then stopped the State’s questioning.
¶ 24 Outside the presence of the jury, the trial court ordered him to answer or face contempt,
but Lemon still refused. The trial court indicated that there was no reason to put him back on the
stand, but she offered defense counsel an opportunity to cross-examine Lemon on what had already
2
We shall continue to refer to codefendant as Alvine throughout our discussion.
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No. 1-17-1454
been elicited. The trial court stated that it would allow the State to examine Lemon further if he
started to answer questions. The State also indicated that it wanted to question Lemon regarding
the transcript of his guilty plea.
¶ 25 During defense counsel’s cross-examination, which is the subject of this appeal, Lemon
was questioned about the origins of his statement, and Lemon claimed that the ASA told him he
could go home if he signed the statement. Lemon also stated that the police assaulted him while
he was at the station. Defense counsel asked Lemon who was present when the ASA made
promises to him and brought out that Lemon made certain statements to the police because he
thought that would allow him to go home. Lemon admitted that his statement indicated that
defendant and “Cheese” were across the street together, that “Cheese” nodded at defendant when
they saw the decedent, and defendant then started shooting at the decedent.
¶ 26 On redirect examination, Lemon testified that he was drunk and high at the time of his
statement and that not all of it was true. However, he also acknowledged that at his guilty plea
hearing, he swore that his written statement was true and accurate regarding his and his
codefendants’ involvement in the shooting. Lemon also acknowledged that at his guilty plea
hearing, he testified under oath regarding their involvement in the shooting: the six men arrested
in conjunction with the shooting, including defendant, were members of the Conservative Vice
Lords gang; they all attended a gang meeting prior to the shooing; they walked to Hollywood and
Clark to search for rival Latin King members; and Alvine gave defendant a .32 caliber
semiautomatic handgun. Lemon first refused to answer, and then claimed he could not remember
whether the group decided they would shoot a Latin King in retaliation for an earlier incident. He
also refused to answer whether he testified at his guilty plea hearing that it was true that defendant
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and Williams approached the decedent, defendant shot him three times, then the group fled the
scene. Lemon claimed that the State was wasting its time because he had nothing to say and was
ready to return to the penitentiary.
¶ 27 The court reporter from Lemon’s guilty plea hearing, Christine Rockwell, testified for
impeachment purposes as to those portions of the plea that Lemon refused to answer or stated that
he could not remember. She testified that on April 4, 2001, she was the official court reporter in
Circuit Court Judge Clayton Crane’s courtroom when Lemon pled guilty to murder in case number
98 CR 8276. Rockwell read the following from the transcript of the plea hearing:
“During the course of the meeting the arrestees decided that they were going to the
Latin Kings area, a rival gang area near Clark and Hollywood and shoot a Latin King in
retaliation for an earlier incident. * * * Finally [defendant] and Dakari Williams saw the
victim. The offenders approached the victim and [defendant] shot the victim three times.
All the offenders fled the scene. Several of the offenders were subsequently located by
members of the 20th District gang unit and placed under arrest.”
¶ 28 Kisha Dickerson-Gonzalez testified that on March 6, 1998, she was Williams’ girlfriend
and lived with him at 5882 North Ridge in Chicago. At approximately 6 p.m. that evening, she
was in the front room of their third-floor apartment with Williams and several of his friends,
including Alvine, “Country,” and defendant. Williams and his friends left the apartment after 6
p.m. but Alvine returned later and gave her a black gun with a brown handle. Kisha took the gun,
placed it inside a black bag and put the bag between two boxes. Williams returned home shortly
thereafter. When the police came to the apartment later that evening, Kisha told them where she
hid the gun and both she and Williams were taken to the police station.
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¶ 29 On cross-examination Kisha admitted that she did not tell the truth when she told police
that defendant gave her the gun prior to telling them that Alvine gave it to her because she was
afraid. She also admitted telling police that a man named “Sam” gave her the gun.
¶ 30 Detective James Gildea testified that while he escorted defendant to an interview room
after the lineup on March 6, 1998, defendant confessed that he shot the decedent in retaliation for
an earlier incident when members of the Latin Kings gang chased and harassed him. Later that
evening, defendant gave an inculpatory statement to Detective Gildea, Detective Turney, and
Youth Officer Rivera. Detective Gildea was also present in the interview room when ASA
Markakos gave defendant his Miranda rights and interviewed him, though he was not present for
the entire conversation. The ASA did not promise defendant anything or threaten him.
¶ 31 Konstantinos Markakos, a criminal defense attorney at the time of defendant’s trial,
testified that he was an ASA on March 6, 1998, and was assigned to investigate the shooting. At
11:55 p.m. that night, he, Detective Turney and Youth Officer Rivera spoke with defendant.
Defendant told them that he was a member of the Vice Lords gang and on the day of the shooting,
he attended a gang meeting where the decision was made to shoot a Latin King in retaliation for
an earlier incident. At the meeting, a gang member named Alvine took the gun, but defendant had
decided to do the shooting. Defendant and five other gang members, including Alvine and
“Cheese,” left the meeting and went looking for Latin Kings to shoot. Defendant took the gun
from Alvine and when they saw the decedent and another boy walking by on Clark near
Hollywood, defendant shot the decedent at least two times. He shot the decedent because “it did
not matter which one to shoot at, because they are all the same.” At the conclusion of the interview,
ASA Markakos memorialized defendant’s statement in a handwritten document, he reviewed it
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with defendant, and had defendant sign the document sometime after 3 a.m. on the morning
following the shooting.
¶ 32 ASA Markakos testified that he first spoke to defendant at approximately midnight after
speaking to defendant’s father. While ASA Markakos denied that he spoke to defendant before
his father arrived at the police station, he admitted that he authored a felony review memo that
indicated defendant gave an oral statement to him, Detective Turney and Youth Officer Rivera
regarding the shooting, after which, defendant’s father arrived at the station.
¶ 33 Following the admission of exhibits into evidence, the State rested its case-in-chief.
Defendant moved for a directed verdict, which was denied.
¶ 34 The defense proceeded by stipulation. The parties stipulated that if called to testify, Officer
Fred Snyder would testify that on March 6, 1998, he interviewed Ellis and that his police report
does not indicate the complexion of the two boys or whether one boy was taller than the other. It
was further stipulated between the parties that Detective Labbe would testify that on March 6,
1998, he interviewed Kisha and that his report of the incident reflects that the man “Sam,” from
whom Kisha stated she got the gun, was light complected.
¶ 35 Following closing arguments, the jury found defendant guilty of first degree murder and
not guilty of aggravated discharge of a firearm. Defendant’s motion for new trial was denied. After
hearing evidence in aggravation and mitigation, the trial court sentenced defendant to a 40-year
prison term.
¶ 36 C. Direct Appeal
¶ 37 On direct appeal, defendant contended that: (1) his statement should have been suppressed
because he was questioned and gave a statement without the presence of a parent or youth officer;
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(2) the general description of the offender was insufficient to justify his arrest; (3) his trial counsel
was ineffective for failing to request that an eyewitness instruction be tendered to the jury; and (4)
his sentence was excessive. We affirmed defendant’s conviction and sentence. People v. Wicks,
No. 1-02-2429 (2004) (unpublished order under Supreme Court Rule 23).
¶ 38 D. Initial Postconviction Petition
¶ 39 As noted above, defendant’s initial postconviction petition was filed on January 7, 2005,
by the same attorney who represented him on direct appeal. Defendant’s initial petition alleged
ineffective assistance of trial counsel for failing to allege that defendant was unfit to give a
statement for trial and sentencing. The trial court summarily dismissed that petition as frivolous
and patently without merit on March 14, 2005. We affirmed the dismissal of defendant’s initial
postconviction petition on September 20, 2006. People v. Wicks, No. 1-05-1145 (2006)
(unpublished order under Supreme Court Rule 23). Our supreme court denied defendant’s petition
for leave to appeal on March 1, 2007.
¶ 40 E. Initial Successive Postconviction Petition Proceedings
¶ 41 On January 5, 2009, defendant sought leave to file a pro se successive postconviction
petition alleging that he received ineffective assistance of appellate counsel for failing to raise on
direct appeal that: (1) he was arrested without probable cause; (2) the State made improper closing
arguments; (3) the jury returned inconsistent verdicts; (4) trial counsel was ineffective for failing
to properly file a motion to suppress statements; (5) the jury had evidence of defendant’s moral,
intellectual and emotional deficiencies and his use of psychotropic medications at the time of his
confession; (6) trial counsel failed to request a fitness hearing to determine if defendant had the
ability to make a knowing and voluntary confession or a knowing and intelligent waiver of his
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Miranda warnings; (7) trial counsel failed to introduce evidence of involuntary intoxication and
request jury instructions for involuntary intoxication; (8) portions of the felony review folder and
impeaching witness statements were withheld from defendant in violation of his Sixth Amendment
right to confront witnesses; (9) trial counsel improperly questioned a State witness during trial;
and (10) trial counsel should have sought to re-open the motion to suppress statements after being
presented with impeaching evidence against ASA Markakos. Defendant argued that he should be
exempted from the procedural bar against successive petitions because he was represented by the
same attorney during both his direct appeal and first postconviction proceeding. The trial court
denied defendant leave to file the successive petition on March 6, 2009, finding that defendant
failed to satisfy the cause-and-prejudice test under the Post-Conviction Hearing Act (Act) (725
ILCS 5/122-1 et seq. (West 2008)).
¶ 42 F. Appeal of Denial of Leave to File Successive Petition
¶ 43 Defendant appealed the denial of his request for leave to file a successive postconviction
petition, contending that the trial court erred in analyzing his petition as a successive petition when
he was represented by the same attorney on direct appeal and in his first postconviction proceeding.
The State conceded that defendant may properly raise his ineffective assistance of counsel claim
in a second petition but asked this court to affirm the judgment because the petition was meritless.
¶ 44 We agreed with defendant, noting that defendant could not have raised issues of his
appellate counsel’s effectiveness during his first postconviction proceeding as it would have placed
counsel in the position of having to allege and argue his own ineffectiveness. Additionally, we
found that nothing in the record indicated that the trial court dismissed the petition as frivolous or
patently without merit, as required by the summary dismissal procedure in the Act (725 ILCS
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5/122-2.1(a)(2) (West 2008)), and further that if the petition was not summarily dismissed, it must
proceed to the second stage of proceedings (725 ILCS 5/122-2.1(b) (West 2008)). Accordingly,
we reversed the judgment of the trial court and remanded for second stage proceedings. People v.
Wicks, No. 1-09-0940 (2010) (unpublished order under Supreme Court Rule 23).
¶ 45 G. Second Stage Postconviction Proceedings
¶ 46 On remand, defendant was appointed counsel, who filed an amended petition and a Rule
651(c) (eff. Feb. 6, 2013) certificate on July 7, 2016. The amended petition supplemented
defendant’s allegations that appellate counsel was ineffective for failing to claim: (1) prosecutorial
misconduct based on the State’s closing argument and that trial counsel was ineffective for failing
to object to remarks made by the State during closing argument; (2) that trial counsel was
ineffective for not requesting a fitness hearing; (3) that trial counsel was ineffective for not arguing
and presenting evidence of defendant’s psychological deficiencies and involuntary intoxication at
the time of the offense; (4) that trial counsel was ineffective for eliciting damaging prior
identification evidence of defendant during cross-examination of Lemon; and (5) that the trial court
erred in denying trial counsel’s request to file the State’s felony review folder under seal.
¶ 47 The State filed a motion to dismiss on January 3, 2017, contending that defendant failed to
allege a cognizable constitutional claim under the Act and did not show prejudice under Strickland
v. Washington, 466 U.S. 668 (1984).
¶ 48 On April 20, 2017, after hearing the parties’ arguments and reviewing the entire record, the
trial court indicated that it would address defendant’s claims raised in his successive petition under
the standard for an initial postconviction petition based on this court’s remand, which allowed
those claims to be raised for the first time. Stating that the standard was whether defendant made
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a substantial showing of a constitutional violation, the court found that he did not because under
Strickland, defendant did not suffer prejudice from appellate counsel’s decision not to raise certain
issues on appeal unless such issues were meritorious. The court then examined each of the claims
raised in defendant’s postconviction petition and ruled as follows: (1) defendant failed to make a
substantial showing that he was arrested without probable cause; (2) defendant failed to make a
substantial showing that the State’s remarks during closing were improper because they were
merely persuasive statements and reasonable inferences from the evidence; (3) defendant failed to
demonstrate how the verdicts were inconsistent and did not cite any caselaw in support of his
argument; (4) defendant’s claims that appellate counsel was ineffective for failing to raise trial
counsel’s ineffectiveness for failure to file a proper motion to suppress, failure to argue involuntary
intoxication and failure to call a doctor to testify regarding his mental condition were either barred
by res judicata as it was raised in defendant’s initial postconviction petition or otherwise meritless
because defendant failed to establish prejudice; (5) defendant failed to show how the State’s
tardiness in turning over the felony review file prejudiced him; (6) defendant failed to demonstrate
a substantial showing that trial counsel’s cross-examination of Lemon was unreasonable where the
record supported the inference that counsel was trying to mitigate what Lemon had already testified
to and to call his credibility into question. The trial court reasoned that because all the issues raised
concerning trial counsel’s ineffectiveness were without merit, defendant did not suffer any
prejudice from appellate counsel’s decision not to raise them on appeal. Finding that appellate
counsel was not ineffective, the trial court concluded that defendant failed to make a substantial
showing of a constitutional violation and granted the State’s motion to dismiss the petition. This
appeal followed.
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¶ 49 ANALYSIS
¶ 50 On appeal, defendant contends that this court should reverse the second stage dismissal of
his petition where he made a substantial showing that appellate counsel was ineffective for failing
to argue on direct appeal that his trial counsel was ineffective for eliciting damaging identification
evidence from codefendant Lemon. Defendant raises many of the same arguments from the
postconviction petition itself as well as those made before the trial court during the proceedings
on the petition. Specifically, defendant claims that trial counsel’s decision to cross-examine
Lemon regarding a prior statement to police that identified defendant as the shooter was extremely
damaging because it allowed the State to present additional statements from Lemon that
incriminated defendant, including the factual basis of Lemon’s guilty plea.
¶ 51 As a preliminary matter, we note that defendant has concentrated his appellate argument
on this single claim, and thus has abandoned the remaining claims set forth in his postconviction
petition. Accordingly, defendant had forfeited review of those claims. Ill. S. Ct. R. 341(h)(7) (eff.
May 25, 2018); People v. Guest, 166 Ill. 2d 381, 414 (1995).
¶ 52 The Act provides a means by which a defendant may challenge his conviction or sentence
for violations of federal or state constitutional rights. People v. Whitfield, 217 Ill. 2d 177, 183
(2005). To be entitled to postconviction relief, a defendant must show that he has suffered a
substantial deprivation of his federal or state constitutional rights in the proceedings that produced
the conviction or sentence being challenged. Id.¶ 53 The Act also provides a three stage process for reviewing postconviction petitions. At the
first stage, the trial court may summarily dismiss a petition if it is frivolous or patently without
merit. 725 ILCS 5/122-2.1(a)(2) (West 2016). At the second stage, counsel may be appointed for
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defendant, if he is indigent. 725 ILCS 5/122-4 (West 2016). Counsel duties, pursuant to Rule
651(c), include consultation with the defendant to ascertain his contentions of deprivation of
constitutional right, examination of the record of the trial proceedings, and amendment of the
petition, if necessary, to ensure that defendant’s contentions are adequately presented. Ill. S. Ct. R.
651(c) (eff. Feb. 6, 2013). Counsel is not required to raise frivolous claims on defendant’s behalf.
People v. Greer, 212 Ill. 2d 192, 205 (2004). After counsel has made any necessary amendments
to the petition, the State may move to dismiss it. 725 ILCS 5/122-5 (West 2016). If that motion is
denied, or if no motion to dismiss is filed, the State must answer the petition, and the proceeding
advances to the third stage, an evidentiary hearing where the defendant may present evidence in
support of the petition. 725 ILCS 5/122-6 (West 2016).
¶ 54 During the second and third stages of a postconviction proceeding, the defendant bears the
burden of making a substantial showing of a constitutional violation. People v. Coleman, 206 Ill.
2d 261, 277 (2002). At the second stage of proceedings, all well-pleaded facts that are not
positively rebutted by the trial record are to be taken as true, and, in the event the trial court
dismisses the petition at that stage, we generally review that decision de novo. People v. Childress,
191 Ill. 2d 168, 174 (2000). When a petition advances to the third stage, where fact-finding and
credibility determinations are made, we will not reverse a trial court’s decision unless manifestly
erroneous. Id.¶ 55 In this case, defendant’s petition was dismissed on the State’s motion at the second stage
of proceedings. Thus, our review is de novo. Id. De novo review is completely independent of the
trial court’s decision and means that the reviewing court performs the same analysis that a trial
judge would perform. People v. Knowles, 2019 IL App (3d) 180190, ¶ 40.
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¶ 56 Claims of ineffective assistance of appellate counsel are measured against the same
standard as claims of ineffective assistance of trial counsel, namely, the familiar two-prong
Strickland test. People v. Golden, 229 Ill. 2d 277, 283 (2008). A defendant must show that
appellate counsel’s performance fell below an objective standard of reasonableness and that the
substandard performance caused prejudice, i.e., there is a reasonable probability that but for
appellate counsel’s errors, the appeal would have been successful. Id. Because both prongs of
Strickland must be satisfied before a defendant can prevail, courts may resolve ineffectiveness
claims by reaching only one component of the Strickland analysis. People v. Wiley, 205 Ill. 2d
212, 230-31 (2001).
¶ 57 It is well-settled that appellate counsel is not required to brief every conceivable issue on
appeal, and counsel is not ineffective for not raising issues, which, in his or her judgment, are
without merit, unless his appraisal of the merits is patently wrong. People v. Smith, 195 Ill. 2d 179,
190 (2000). Appellate counsel’s choices concerning which issues to pursue are entitled to
substantial deference, and unless the underlying issue is meritorious, a defendant cannot show
prejudice from the failure to raise the issue on appeal. Childress, 191 Ill. 2d at 175; People v.
West, 187 Ill. 2d 418, 435 (1999).
¶ 58 In this case, defendant argues that appellate counsel was ineffective for failing to raise the
issue of trial counsel’s ineffectiveness for the damaging cross-examination of Lemon on direct
appeal. Generally, decisions on cross-examination and impeachment of witnesses are matters of
trial strategy immune to claims of ineffective assistance of counsel. People v. Pecoraro, 175 Ill.
2d 294, 326 (1997). The way to cross-examine a particular witness involves the exercise of
professional judgment, entitled to substantial deference from a reviewing court. Id. at 326-27. A
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defendant can only prevail on a claim of ineffective assistance of counsel by showing that
counsel’s approach to cross-examination was objectively unreasonable. Id. at 327.
¶ 59 Here, Lemon testified on direct, to the extent that he answered the State’s questions, that
he and four of the codefendants were present at a gang meeting at William’s apartment but refused
to say whether defendant was present. The State confronted Lemon with a portion of his
handwritten statement in which he indicated that defendant was also present at the meeting. He
refused to say whether a decision was made the meeting to kill a Latin King and was subsequently
held in contempt of court for failing to respond to the State’s questions or to the court’s inquiry.
The record indicates that defense counsel then stated that he wanted to cross-examine Lemon and
the State additionally stated that it wanted to question Lemon about the transcript from his guilty
plea hearing.
¶ 60 On cross-examination, Lemon testified that he was told that if he signed the statement, he
could go home, and that he was assaulted by police while he was at the station. Defense counsel
questioned Lemon about who was present when the ASA made promises to him, and specifically
questioned whether certain statements were made to police because Lemon thought the statements
would allow him to go home. The “certain statements” were that defendant and “Cheese” were
across the street together, “Cheese” nodded at defendant when they saw the decedent, and
defendant then started shooting at the decedent.
¶ 61 On redirect examination, Lemon further stated that he was drunk and high when he gave
the statement and that not all of it was true. However, the State impeached him with his oath at his
guilty plea hearing that the written statement was true and accurate regarding his and his
codefendants’ involvement in the shooting. Lemon then acknowledged some of his testimony at
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No. 1-17-1454
his guilty plea hearing, but subsequently refused to answer or claimed not to remember the answer
to questions surrounding whether the decision to shoot a Latin King was retaliatory, and whether
defendant approached and shot the decedent three times.
¶ 62 Based on our review of the record, we conclude that defense counsel’s questions had merit
and were not irrational and unreasonable in light of the circumstances that defense counsel
confronted at the time. See People v. Faulkner, 292 Ill. app. 3d 391, 394 (1997). It is clear that
defense counsel was attempting to discount some of the evidence against defendant by discrediting
Lemon’s written statement and by questioning the circumstances surrounding the statement, i.e.,
that Lemon was assaulted, and that the ASA made promises to him in exchange for the statement.
Even on redirect, Lemon’s testimony that he was drunk and high when the statement was given
and that not all the claims contained in the statement were true were attempts to discredit the
statement.
¶ 63 If defense counsel had not cross-examined Lemon, the jury would still have been left with
Lemon’s acknowledgment on direct that defendant was present at the meeting when gang business
was discussed. His subsequent refusal to answer the State’s questions opened the door for the
introduction of his testimony from his guilty plea hearing into evidence. Therefore, contrary to
defendant’s assertions on appeal, it is not clear that defense counsel’s cross-examination of Lemon
made matters much worse for defendant. Additionally, although defendant’s arguments on appeal
do not acknowledge the other identification evidence against defendant at trial, specifically
defendant’s own confession and written statement, defense counsel’s cross-examination of Lemon
was not as damaging as argued on appeal.
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¶ 64 It is clear that this is not a circumstance where defense counsel elicited evidence proving
an element of the charge that the State otherwise could not prove (See People v. Bailey, 374 Ill.
App. 3d 608, 615 (2007)), or introduced evidence in violation of defendant’s right to confront
witnesses (See People v. Moore, 356 Ill. App. 3d 117-123-27 (2005)). Defense counsel had reason
to question Lemon to try and discredit his testimony as well as some of the other damaging
evidence that the State had against defendant. The fact that other evidence was also introduced as
a result of the cross-examination, standing alone is insufficient to overcome the presumption of
sound representation.
¶ 65 Moreover, even if counsel’s performance was deficient, defendant cannot establish
prejudice. As noted previously, to establish prejudice, defendant must show that there is a
reasonable probability that the result of the proceedings would have been different without defense
counsel’s errors. People v. Houston, 229 Ill. 2d 1, 4 (2008). Defendant can make no such showing
here.
¶ 66 The State’s evidence included defendant’s confession that he shot the decedent in
retaliation for an earlier incident that day where he was harassed by members of the Latin Kings
gang. Defendant also gave a handwritten statement in the presence of an ASA, detectives, and a
youth officer where he again stated that he shot the decedent in retaliation and further that it did
not matter which one he shot because they were “all the same.” Eyewitness Correa testified that
he saw defendant during and after the shooting and was able to identify defendant in a lineup and
in court. Correa also described the gun as a black gun with a brown handle, which was also how
Kisha described the gun that Alvine gave to her to hide after the shooting. Additionally, based on
other witness testimony about the group of teenagers running through the alley after the shooting,
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defendant and codefendants were arrested in an apartment nearby very shortly after the shooting.
Clearly, the evidence elicited by defense counsel was merely cumulative of the other evidence that
the State presented at trial; it is not evidence that the jury would not have heard otherwise. We
cannot say that but for defense counsel’s cross-examination, there was a reasonable probability
that the outcome of the trial would have been different. See People v. Johnson, 331 Ill. App. 3d
239, 247 (2002). Accordingly, we conclude that defendant has not established that he was
prejudiced by defense counsel’s cross-examination.
¶ 67 Based on our conclusion that defendant was not prejudiced by trial counsel’s cross-
examination of Lemon, it follows then that appellate counsel cannot be found ineffective for failing
to raise this issue on direct appeal. People v. Easley, 192 Ill. 2d 307, 328 (2000). Thus, we find
that defendant failed to make a substantial showing of appellate counsel’s ineffectiveness in his
postconviction petition, and the trial court properly dismissed it.
¶ 68 CONCLUSION
¶ 69 For the foregoing reasons, we affirm the judgment of the circuit court of Cook County.
¶ 70 Affirmed.
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