People v. Simmons

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Appellate Court Date: 2021.10.06
11:50:58 -05'00'
People v. Simmons, 2020 IL App (1st) 170650Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption DONELL SIMMONS, Defendant-Appellant.
District & No. First District, Fifth Division
No. 1-17-0650
Filed July 10, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 03-CR-27277; the
Review Hon. Lawrence E. Flood, Judge, presiding.
Judgment Affirmed in part, reversed in part, and remanded with directions.
Counsel on James E. Chadd, Thomas A. Lilien, and Sherry R. Silvern, of State
Appeal Appellate Defender’s Office, of Elgin, for appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
Janet C. Mahoney, and Brian A. Levitsky, Assistant State’s Attorneys,
of counsel), for the People.
Panel PRESIDING JUSTICE HOFFMAN delivered the judgment of the
court, with opinion.
Justices Rochford and Delort concurred in the judgment and opinion.
OPINION
¶1 The defendant, Donell Simmons, appeals from an order of the circuit court of Cook County,
granting the State’s motion to dismiss his postconviction petition pursuant to the Post-
Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) at the second stage of
proceedings. On appeal, the defendant argues that he made a substantial showing that he is
actually innocent of the crimes for which he was convicted, his trial counsel was ineffective
for failing to investigate and present an eyewitness, and his appellate counsel was ineffective
for failing to argue that the circuit court erred in denying his motion to suppress. For the
following reasons, we reverse and remand for a third-stage evidentiary hearing on the
defendant’s claim that his trial counsel was ineffective for failing to investigate and present an
eyewitness.
¶2 The defendant was charged, along with codefendants Labar “Bro-Man” Spann, Martise
“Shorty” Nunnery, and Marcus “Black” Ware (also known as John Coleman) with, inter alia,
multiple counts of first degree murder and aggravated battery with a firearm. The charges
against the defendant stemmed from the June 4, 2003, shooting that resulted in the death of
Randy “Kato” Rangel Jr. and the injury of Harrison Hall. Following a severed bench trial on
June 2, 2008, the defendant was convicted of first degree murder and aggravated battery with
a firearm and sentenced to consecutive terms of 47 years’ imprisonment for the murder and 6
years’ imprisonment for the aggravated battery.
¶3 The following facts relevant to the disposition of this appeal were derived from the record.
¶4 Prior to his trial, the defendant filed a motion to quash his arrest and suppress evidence,
alleging that police did not have probable cause to arrest him without a warrant. At the hearing,
the defendant presented the testimony of Detective Keith Allen. According to Detective Allen,
on November 22, 2003, he went to 4223 West Wilcox Street with 10 members of a gang tactical
team. The officers went to the building because they had an investigative alert stating that the
defendant was suspected of killing Rangel. Detective Allen was positioned at the rear entrance
to the building, and after other officers entered, they opened the rear door for him. Inside, he
saw the defendant in handcuffs. Detective Allen acknowledged that he did not have a search
or arrest warrant for the defendant.
¶5 The State presented Sergeant Charles Daly, who testified that, at the time, he was a
detective assigned to investigate the June 4, 2003, shooting. As part of his investigation,
Sergeant Daly learned that an individual named “Rio” wore a body wire to record
conversations with Nunnery. Sergeant Daly stated that Rio was “fighting a federal drug case
and decided to cooperate with investigative officers from organized crime.” Sergeant Daly
reviewed a transcript of the recorded conversation between Rio and Nunnery, testifying that
the two largely used slang terms and expressions. According to Sergeant Daly, he subsequently
spoke to Rio, who told him that it was his belief that the conversation referred to Nunnery’s
involvement in Rangel’s shooting. Rio also told him that he believed that Nunnery was telling
him that “Squeaky” shot Rangel and that “Bro-Man” was also involved.
¶6 On November 13, 2003, Sergeant Daly met with Spann following his arrest on unrelated
charges. According to Sergeant Daly, Spann told him the following: he was with the defendant
and Nunnery on the day of the shooting; Nunnery received a phone call and they drove to
Sacramento Boulevard and Roosevelt Road, where Nunnery handed the defendant a .45-caliber
handgun; the defendant exited the vehicle, and shortly thereafter, he heard gunshots and left
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the area; he subsequently spoke with the defendant, who told him that he killed Rangel. Spann
also told Sergeant Daly that Squeaky was the defendant’s nickname.
¶7 Nunnery was arrested the following day and provided a videotaped statement. Sergeant
Daly testified that he viewed the recording and he described the contents to the court. Nunnery
stated that he received a phone call from Ware informing him that Rangel was at a barber shop
near the intersection of Sacramento Boulevard and Roosevelt Road. He drove to that location
with Spann and the defendant. He handed the defendant a handgun, who then exited the car
and entered the barber shop. A short time later, he heard gunshots. He subsequently spoke with
the defendant, who told him that he shot and killed Rangel. The parties stipulated that Nunnery
initially denied any involvement in the shooting.
¶8 Ware, who goes by the nickname “Black,” was arrested on November 14, 2003, and gave
a videotaped statement. Sergeant Daly testified as to the contents of that statement. Ware stated
that Nunnery asked him to call if he saw Rangel at the barber shop on Sacramento Boulevard
and Roosevelt Road. He believed that Nunnery intended to rob Rangel and that he would be
paid $1500 for making the phone call. On June 4, 2003, he saw Rangel at the barber shop and
called Nunnery. Subsequently, he learned from Nunnery that “they” had successfully killed
Rangel.
¶9 Sergeant Daly also obtained information from Darren McCline, who was arrested and made
a statement to Detective Patrick O’Donovan and an assistant state’s attorney (ASA), which
was reduced to writing on November 19, 2003. According to McCline’s statement, the
defendant told him that he had shot and killed Rangel and that he was enticed to do so by
Nunnery and Spann.
¶ 10 Defense counsel argued that the State did not establish that it had probable cause to arrest
the defendant because Rio’s recorded conversation with Nunnery did not explicitly reference
either a shooting or Rangel and the information linking the defendant to the shooting was
unreliable as it all came from individuals who were under arrest. The circuit court denied the
defendant’s motion, finding “that there was more than sufficient, almost overwhelming
probable cause as to each defendant *** to make their arrest and any evidence derived there
from should not be suppressed.”
¶ 11 At the defendant’s severed bench trial, Hall testified that, on June 4, 2003, he was in a
trailer on the corner of Sacramento Boulevard and Roosevelt Road where he worked as a
barber. He was cutting Rangel’s hair when a man, whom he identified in court as the defendant,
entered the trailer and fired several shots at Rangel. Hall was standing about two feet away
from the defendant when he opened fire and could see his face under bright florescent lights.
Hall ran past the defendant, exiting the trailer. He went to the hospital where he learned that
he was shot in the foot.
¶ 12 Hall acknowledged that he initially told the police that he did not get a good look at the
shooter’s face. He testified that he lied about seeing the shooter because he did not want to be
involved in the situation. On November 22, 2003, he was asked to view a lineup at the police
station. After viewing the lineup, he identified the defendant as the shooter. On cross-
examination, Hall testified that the police told him prior to viewing the lineup that the shooter
might be in the lineup. Defense counsel then asked Hall if, when he was viewing the lineup,
he “expected that maybe somebody in there was the person who shot in the trailer at you?” He
responded, “Right.”
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¶ 13 Lavelle Green testified that, on the day in question, he was 15 years old and he and his
friend, Maurice Williams, were sitting outside the barber shop trailer waiting to get a haircut
when a man went into the trailer. He heard gunshots and ran. Green testified at trial that he
could not identify the individual he saw enter the trailer that day. He acknowledged that, on
November 22, 2003, he viewed a lineup and identified the defendant as the man he saw enter
the trailer that day. He stated that he identified the defendant after the police told him to “pick
the person who looked like [the shooter].” The State impeached Green with a written statement
that he provided to the police. He acknowledged that he signed the statement, but he stated that
he could not remember the particulars of the statement. He stated that he signed the statement
so “they could let [him] go.” In the written statement, Green identified the defendant as the
shooter.
¶ 14 The parties also stipulated that, if called to testify, Chicago police sergeant Jose Lopez
would state under oath that he was present when Green identified the defendant as the
individual who shot Rangel.
¶ 15 Ware testified that his given name is John Coleman and that “Ware” is his “alias for the
police.” He acknowledged that he has prior convictions for unlawful use of a weapon,
obstruction of justice, and traffic offenses. He testified that he was a named codefendant in this
case and, pursuant to an agreement with the State, pled guilty to conspiracy to commit first
degree murder in exchange for an agreed sentence of 12 years and the truth of his testimony at
trial. He explained that, pursuant to the agreement, he must testify truthfully or else be charged
with first degree murder and perjury. He stated that, as of the date of the trial, he was housed
in the witness protection quarters of the county jail.
¶ 16 Ware testified that, in April 2003, Nunnery called and asked if he could call him if he saw
Rangel. He believed that the plan was to kidnap Rangel, a high-ranking member of the Latin
Kings, whom he had known for several years. Later in that month, he drove with Nunnery and
the defendant looking for Rangel, but they were unsuccessful. A few days later, Nunnery told
him that the plan was to kill, not kidnap, Rangel and that there was a “ransom” of $190,000
and 15 kilograms of cocaine. Nunnery offered to pay him $2000 in exchange for providing
Rangel’s location. On June 4, 2003, he called Nunnery and told him that Rangel was in Hall’s
barber shop on Sacramento Boulevard and Roosevelt Road. After the call, he waited in
Douglas Park across the street from the trailer. Shortly thereafter, he heard gunshots coming
from the trailer and could see people running out of the trailer, including the defendant. He
saw the defendant run down Sacramento Boulevard toward Roosevelt Road and then into an
alley. Ware did not see anything in the defendant’s hand.
¶ 17 On cross-examination, Ware testified that he gave a videotaped statement to the police after
his arrest on November 14, 2003. He acknowledged that, in the statement, he said he did not
know Nunnery intended to kill Rangel. He also acknowledged that his testimony included
several details he did not provide to the police, such as looking for Rangel with Nunnery and
the defendant, that Nunnery was going to receive $190,000 and 15 kilograms of cocaine for
the murder, that he was at Douglas Park when Rangel was shot, and that he saw the defendant
exit the trailer. Instead, he told the police and the ASA that he was a few blocks away when he
heard the gunshots and that it was a few days later that he found out that “Squeaky” shot
Rangel. He acknowledged that he did not provide these details until after he entered plea
negotiations and the plea deal was finalized. On redirect-examination, Ware stated that he did
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not tell the police and ASA “everything” at the time of his arrest because he did not want to
“involve” himself in the case.
¶ 18 Chicago police detective O’Donovan testified that he interviewed the defendant on
November 22, 2003, following his arrest. He advised the defendant of his Miranda warnings
and the defendant agreed to speak with him. During the course of the interview, the defendant
admitted that he was the shooter and detailed how Nunnery and Spann approached him and
promised him money to shoot Rangel. Detective O’Donovan testified that the defendant
provided him with the following version of events. On the date of the shooting, Spann and
Nunnery picked him up and told him that they knew Rangel’s location. They drove by a
carwash and observed Rangel’s truck there. They stopped one block west of Sacramento
Boulevard, and Spann handed him a firearm. The defendant walked into a trailer that was
operating as a barber shop, saw Rangel in the barber’s chair, and fired at him before fleeing.
The defendant told Detective O’Donovan that the motive for killing Rangel was retribution for
stealing a significant quantity of drugs.
¶ 19 ASA Andreana Turano testified that, in the early morning hours of November 22, 2003,
she spoke with the defendant in an interview room. After advising him of his Miranda warnings
(see Miranda v. Arizona, 384 U.S. 436 (1966)), he agreed to have a conversation. He indicated
that he had been treated fine and did not have any complaints. He agreed to make a handwritten
statement, which was published at trial. According to the defendant’s handwritten statement,
he goes by the nickname “Squeaky.” In May 2003, Spann, whom he knew as “Bro-Man,”
approached him about shooting someone and introduced him to Nunnery. He learned that the
target was Rangel and that Spann would pay him $30,000 for killing him. At some point, he
rode in a car with Ware, whom he knew as “Black,” Spann, and another person he did not
know, when Spann got a phone call from Nunnery. They drove to a location where Spann
pointed out that the man shaking hands with Nunnery was Rangel, the intended target. On June
4, 2003, he got into a van with Spann and Nunnery and drove to a trailer that operated as barber
shop. They parked about one block away, where Spann gave him a firearm. He exited the car,
entered the trailer, and shot Rangel as he was getting his haircut. He then ran back to the van
and gave the gun to Spann. The defendant stated that he was enticed into the shooting by
Nunnery and Spann but was never paid the money he was promised.
¶ 20 The court found the defendant guilty of first degree murder. In announcing its verdict, the
court stated that it believed Ware’s testimony and that the defendant’s confession was
“convincing and compelling” and that his insistence that he was enticed by Nunnery and Spann
“have a definite ring of truth going to the reliability and trustworthiness of [his] confession.”
¶ 21 The court denied the defendant’s motion for a new trial, stating that “I believe that the
evidence in this case was overwhelming, not at all close and that any possible error in this
bench trial would be harmless beyond a reasonable doubt ***.” 1 Following a sentencing
hearing, the court sentenced the defendant to consecutive terms of 47 years’ imprisonment for
first degree murder and 6 years’ imprisonment for aggravated battery with a firearm.
¶ 22 On direct appeal, we affirmed the defendant’s convictions and sentences over his
contention that his jury waiver was invalid. People v. Simmons, No. 1-08-2532 (2010)
(unpublished summary order under Illinois Supreme Court Rule 23(c)).
1
We could not find a copy of the defendant’s motion for a new trial in the record nor did the parties
cite a copy in their briefs on appeal.
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¶ 23 On December 1, 2008, the defendant filed a petition for relief from judgment pursuant to
section 2-1401 of the Code of Civil Procedure (Code) (735 ILCS 5/2-1401 (West 2008)),
arguing that the prosecution fabricated the indictment and that the homicide statute violated
both the ex post facto doctrine and the single subject rule. On February 18, 2009, the circuit
court dismissed the defendant’s section 2-1401 petition, and the defendant filed an appeal (No.
1-09-0742). The defendant filed a motion to reconsider the circuit court’s denial of his section
2-1401 petition, which the court denied, and the defendant appealed (No. 1-09-1652). We
granted the defendant’s motions to dismiss both appeals on December 14, 2009, and January
27, 2010, respectively.
¶ 24 On September 20, 2011, the defendant filed a combined pro se postconviction petition for
relief under the Act and under section 2-1401 of the Code. In his petition, the defendant argued,
inter alia, that his trial counsel was ineffective for failing to investigate and call Green’s
brother, Shardell Green, as a witness. According to the defendant, Shardell was a witness to
the shooting, gave a statement to the police, and was willing to testify that someone other than
the defendant committed the offense.
¶ 25 In support of his claim, the defendant attached two affidavits from Shardell to his
postconviction petition. In the first affidavit, which was signed by Shardell and notarized on
July 30, 2009, he averred that, in September 2007, a lawyer he identified as “Mr. Fulton” came
to visit him in jail and asked if he witnessed the June 4, 2003, shooting. Shardell told him that,
after hearing gunshots coming from inside the barber shop, he saw “a skinny medium
complexion man about [5’9”] run out of the barber shop.” Shardell stated that the man “was
still shooting” when he exited the shop and then “ran toward Whipple.” Shardell also stated
that the picture Fulton showed him did not depict the shooter he saw running out of the barber
shop. Shardell told Fulton he would be willing to testify, but Fulton did not contact him again.
In the second affidavit, which is notarized but undated, Shardell averred that he witnessed the
June 4, 2003, shooting and spoke with the police. He stated that he told the police the same
thing that he told a lawyer named “Mike Fulton,” which was that he saw a “skinny light-
skinned man run out the [sic] barber shop shooting.” The man he saw then “ran west down
Roosevelt Rd.” Shardell also averred that Fulton showed him photographs of the defendant
and Nunnery and he told Fulton that neither of them were the shooter. He told Fulton that he
was “willing to come to court” but was never contacted.
¶ 26 On December 23, 2011, the circuit court appointed postconviction counsel to represent the
defendant. On August 16, 2015, appointed counsel filed a supplemental petition that included
the above mentioned claims from the defendant’s pro se petition and added two claims: that
the defendant’s appellate counsel was ineffective for failing to challenge the trial court’s ruling
on his motion to quash arrest and suppress evidence where the State failed to establish probable
cause because the officer who issued the investigative alert did not testify and that the
defendant was actually innocent of the crimes for which he was convicted based on Shardell’s
affidavit. Regarding Shardell, the supplemental petition argued that he should have been
known to trial counsel because his name is listed in police reports as a “potential eyewitness”
to the shooting and he was interviewed by Nunnery’s counsel.
¶ 27 Attached to the supplemental petition was a third affidavit from Shardell and a copy of the
investigative alert. In Shardell’s affidavit, which was signed and notarized on March 20, 2015,
he stated that, on June 4, 2003, he was sitting on the steps of the barber shop with his brother
Lavelle and Williams when a man ran past them into the barber shop. Shardell’s description
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of the shooter and the ensuing events was the same as the previous two affidavits. He also
averred that he saw a picture of the defendant and he was not the person he saw that day.
Shardell also described meeting with Fulton “some time” before he pled guilty in a separate
case in September 2007. Shardell stated that “[a]ny picture that Mr. Fulton showed me was not
of the person I saw at the trailer that day.” Shardell averred that no other lawyer or investigator
ever interviewed him about the shooting.
¶ 28 The attached copy of the investigative alert stated that “[t]he above subject was identified
as the person who shot the victim with a handgun thereby causing his death” and lists Detective
William Ruck as the contact person.
¶ 29 On April 26, 2016, the State filed a motion to dismiss both the combined pro se
postconviction petition and the supplemental petition, arguing that the defendant’s section 2-
1401 petition was untimely and that the defendant’s appellate counsel was not ineffective
because the evidence at the suppression hearing established that the officers had probable cause
to arrest. The State also argued that the defendant’s actual innocence claim should be dismissed
because Shardell’s testimony was not of such a conclusive nature that it would probably change
the result on retrial in light of the defendant’s confession and Hall’s eyewitness testimony. The
State’s motion does not appear to make any argument as to the defendant’s claim that his trial
counsel was ineffective for failing to investigate or present Shardell.
¶ 30 On July 21, 2016, the defendant filed a response to the State’s motion to dismiss and a
motion for leave to file a supplemental affidavit from Irineo Barbosa in support of his claim of
actual innocence. In an attached affidavit, Barbosa averred that he was Spann’s cellmate in
December 2003. He stated that Spann told him, while “bragging” about past crimes, that
someone named “the Post-man” shot Rangel and that Spann, the Post-man, and Spann’s “girl’s
little brother” were the ones involved. According to Barbosa, Spann told Ware to say that
Nunnery “set the whole thing up” and threatened Ware’s mother. Barbosa subsequently met
Nunnery and told him that he would be willing to sign an affidavit relating what Spann told
him.
¶ 31 On February 21, 2017, the circuit court granted the State’s motion to dismiss the
defendant’s combined pro se petition and supplemental petition. Regarding the defendant’s
section 2-1401 claims, the court found that the claims were untimely filed. As to the
defendant’s claim of actual innocence, the court found that Shardell’s affidavit did not contain
newly discovered evidence because he was listed on police reports as a potential eyewitness
and, therefore, could have been discovered sooner with due diligence. Regarding Barbosa’s
affidavit, the court found that it was not of such a conclusive character that it would have
changed the result because it consisted of inadmissible hearsay and did not identify the actual
shooter or provide the defendant with an alibi. As to the defendant’s claim of ineffective
assistance of trial counsel for failing to investigate and call Shardell, the court concluded that
the defendant could not establish prejudice because Shardell “did not observe the shooting and
therefore cannot exonerate [the defendant]” and his testimony was “vastly outweighed by the
multiple occurrence witnesses at the scene and [the defendant’s] own inculpatory statements.”
Lastly, the court found that the defendant’s claim of ineffective appellate counsel was
“meritless.” This appeal followed.
¶ 32 On appeal, the defendant argues that the circuit court erred in granting the State’s motion
to dismiss his postconviction petition at the second stage of proceedings because his petition
made a substantial showing that (1) he is actually innocent of the crimes for which he was
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convicted based on Barbosa’s affidavit; (2) his trial counsel was ineffective for failing to
investigate and present Shardell, an eyewitness to the shooting; and (3) his appellate counsel
was ineffective for failing to argue that the State failed to establish that his arrest was supported
by probable cause.
¶ 33 The Act provides a procedural mechanism through which a petitioner may assert a
substantial denial of his constitutional rights in the proceedings that resulted in his conviction.
725 ILCS 5/122-1 et seq. (West 2012). At the first stage of a postconviction proceeding, the
circuit court independently reviews the defendant’s petition, taking the allegations as true, and
determines if it is frivolous or patently without merit. People v. Hodges, 234 Ill. 2d 1, 10
(2009). If the postconviction petition is not summarily dismissed, as here, it advances to the
second stage, where the State may file a motion to dismiss the petition and the postconviction
court must determine whether the petition and any accompanying documents make a
substantial showing of a constitutional violation. Id. at 10-11, 11 n.3. At the second stage of
proceedings, the postconviction court takes “all well-pleaded facts that are not positively
rebutted by the trial record” as true. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If the
petition fails to make a substantial showing of a constitutional violation, it is dismissed; if such
a showing is made, the postconviction petition advances to the third stage where the court
conducts an evidentiary hearing. 725 ILCS 5/122-2.1, 122-6 (West 2012). We review a
dismissal of a petition at the second stage de novo. People v. Whitfield, 217 Ill. 2d 177, 182
(2005).
¶ 34 The defendant first contends that he made a substantial showing that he is actually innocent
of the crimes for which he was convicted. The defendant’s argument on appeal is based only
on the evidence contained in Barbosa’s affidavit and does not include any argument regarding
Shardell’s affidavit.
¶ 35 In order to succeed on a postconviction claim of actual innocence, the defendant must
present new, material, noncumulative evidence that is so conclusive it would probably change
the result on retrial. People v. Washington, 171 Ill. 2d 475, 489 (1996). New evidence means
it was discovered after trial and could not have been discovered earlier through the exercise of
due diligence. People v. Burrows, 172 Ill. 2d 169, 180 (1996). Material means the evidence is
relevant and probative of the defendant’s innocence. See People v. Smith, 177 Ill. 2d 53, 82-
83 (1997) (plurality opinion). Noncumulative means the evidence adds to what the jury heard.
People v. Molstad, 101 Ill. 2d 128, 135 (1984). And conclusive means the evidence, when
considered along with the trial evidence, would probably lead to a different result. See People
v. Ortiz, 235 Ill. 2d 319, 336-37 (2009). This standard “is extraordinarily difficult to meet.”
People v. Coleman, 2013 IL 113307, ¶ 94. The conclusiveness of the new evidence is the most
important element. People v. Sanders, 2016 IL 118123, ¶ 47.
¶ 36 The defendant contends that the evidence contained in Barbosa’s affidavit is newly
discovered, noncumulative material and of such a conclusive character that it would probably
change the outcome at retrial. He also argues that the circuit court erred in finding that the
affidavit contained inadmissible hearsay because hearsay is admissible at collateral
proceedings, citing People v. Sanchez, 115 Ill. 2d 238, 284-85 (1986), and People v. Warren,
2016 IL App (1st) 090884-C, ¶¶ 89-90. The State responds that Barbosa’s affidavit would not
change the outcome of a retrial because of the overwhelming evidence of the defendant’s guilt,
such as his written confession, Ware’s testimony detailing the defendant’s involvement, and
Hall’s eyewitness identification. We agree with the State.
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¶ 37 We first address the State’s contention that Barbosa’s affidavit fails because it contains
inadmissible hearsay. The supreme court recently adopted and amended Illinois Rule of
Evidence 1101, which added “postconviction hearings” to a list of proceedings to which the
rules of evidence—including the rules against hearsay—“do not apply.” Ill. R. Evid.
1101(b)(3) (eff. Apr. 8, 2013). Because the rules of evidence do not apply to postconviction
proceedings, we will consider the contents of Barbosa’s affidavit even though it contains
hearsay. See People v. Velasco, 2018 IL App (1st) 161683, ¶ 119 (finding that the hearsay
affidavits at issue in that case, indicating that a gang member had bragged to one of the affiants
about shooting the victim, were admissible under Rule 1101(b)(3) and must be taken as true,
at the second stage of postconviction proceedings).
¶ 38 Here, Barbosa’s affidavit states that Spann told him, while “bragging” about his past
crimes, that someone named “Post-Man” shot and killed Rangel. However, Barbosa’s affidavit
does not indicate that Spann’s reference to Post-Man is a reference to someone other than the
defendant. The defendant argues that the record indicates his nickname was Squeaky, not Post-
Man. However, this argument supposes that an individual can have one, and only one,
nickname. “Evidence of actual innocence must support total vindication or exoneration, not
merely present a reasonable doubt.” People v. Adams, 2013 IL App (1st) 111081, ¶ 36. Simply
put, this evidence does rise to that level.
¶ 39 Moreover, Barbosa’s affidavit must be viewed in light of the overwhelming evidence of
the defendant’s guilt presented at trial. Most significantly, the State presented the defendant’s
signed statement in which he confessed to shooting Rangel at the behest of Nunnery and Spann.
“ ‘A confession is the most powerful piece of evidence the State can offer, and its effect ***
is incalculable.’ ” People v. Miller, 2013 IL App (1st) 110879, ¶ 82 (quoting People v. Fillyaw,
409 Ill. App. 3d 302, 316 (2011)). Furthermore, an eyewitness and a codefendant both
implicated the defendant as the shooter. Hall, who testified that the perpetrator stood two feet
away from him and was illuminated by bright florescent lights, identified the defendant.
Similarly, Ware testified that he once drove with the defendant and Nunnery looking for
Rangel. He also testified that, after informing Nunnery of Rangel’s location, he stood in
Douglas Park and watched the defendant flee from the trailer after hearing gunshots. Lastly,
he testified that he subsequently spoke with the defendant, who admitted to him that he shot
and killed Rangel. Given this evidence, we conclude that Barbosa’s affidavit was not
conclusive enough that it would probably lead to a different result. Accordingly, we find that
the defendant failed to make a substantial showing of actual innocence.
¶ 40 The defendant next argues that he made a substantial showing that his trial counsel was
ineffective for failing to investigate or present Shardell, an eyewitness to the shooting, who
would testify that the man he saw shooting into the barber shop was not the defendant.
¶ 41 Ineffective assistance of counsel claims are considered under the two-pronged test set forth
in Strickland v. Washington, 466 U.S. 668 (1984). “To prevail on a claim of ineffective
assistance [of counsel] under Strickland, a defendant must show both that counsel’s
performance ‘fell below an objective standard of reasonableness’ and that the deficient
performance prejudiced the defense.” Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S.
at 687-88). “If an ineffectiveness claim can be disposed of on the ground of insufficient
prejudice, then that course should be taken, and the court does not need to consider the quality
of the attorney’s performance.” People v. Williams, 2017 IL App (1st) 152021, ¶ 36.
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¶ 42 It is well-established that the choice on what witnesses to call “is a matter of trial strategy,
left to the discretion of counsel after consultation with the defendant.” People v. Peterson,
2017 IL 120331, ¶ 80. However, trial counsel has a duty to conduct reasonable investigations
into possible defenses. People v. Domagala, 2013 IL 113688, ¶ 38. The failure to interview
known witnesses can indicate incompetence when their testimony could be exonerating.
People v. Steidl, 177 Ill. 2d 239, 256 (1997). “ ‘[A] particular decision not to investigate must
be directly assessed for reasonableness in all the circumstances, applying a heavy measure of
deference to counsel’s judgments.’ ” People v. Guest, 166 Ill. 2d 381, 400 (1995) (quoting
Strickland, 466 U.S. at 691); accord People v. Pecoraro, 175 Ill. 2d 294, 324 (1997).
¶ 43 We conclude that the defendant has made a substantial showing that his trial counsel was
deficient for failing to contact Shardell as a potential exculpatory witness, meeting the first
prong of the Strickland test. Shardell stated in his affidavit that he was present outside the
barber shop on June 4, 2003, and that the person he saw fleeing the barber shop while shooting
was not the defendant. He averred that he told this information to the police and to Mr. Fulton,
who the defendant alleges was Nunnery’s counsel. Shardell also stated that he would have
testified at the defendant’s trial but was never contacted by counsel. According to the record,
police reports listed Shardell as a potential eyewitness. We can find no strategic reason to
explain why counsel may have decided not to interview Shardell. Taking the facts presented
in the affidavits as true, as we must at this stage (Pendleton, 223 Ill. 2d at 473), the defendant
met his burden of making a substantial showing that his trial counsel was deficient.
¶ 44 To determine, under the second prong of the Strickland test, whether trial counsel’s failure
to investigate prejudiced the defendant, we must look at the evidence presented at his trial.
“Prejudice is demonstrated if there is a reasonable probability that, but for counsel’s deficient
performance, the result of the proceeding would have been different.” People v. Makiel, 358
Ill. App. 3d 102, 105-06 (2005). “Whether the failure to investigate constitutes ineffective
assistance of counsel is determined by the value of the evidence not presented at trial and the
closeness of the evidence that was presented at trial.” People v. Harmon, 2013 IL App (2d)
120439, ¶ 26.
¶ 45 Here, the State presented the following evidence of the defendant’s guilt at trial: the
defendant’s handwritten confession, Hall’s identification of the defendant as the man who shot
him and Rangel, and Ware’s testimony regarding the defendant’s involvement in the plot to
kill Rangel. The defendant contends that, given the weaknesses in the State’s evidence,
Shardell’s testimony would have increased his chances of acquittal. Specifically, the defendant
argues that his confession occurred after 10 hours in custody and multiple interrogations, Hall’s
identification is not credible given that he initially told police that he did not see the shooter’s
face, and Ware’s testimony “was doubtful considering his status as a co-defendant testifying
under a plea agreement.” The State responds that the defendant failed to make a substantial
showing of prejudice because the evidence of his guilt was overwhelming. We agree with the
defendant.
¶ 46 Shardell’s testimony that he was present at the barber shop and saw someone other than
the defendant firing a weapon would have significantly bolstered defense counsel’s argument
that the State could not prove the defendant guilty beyond a reasonable doubt. Moreover,
Shardell’s testimony regarding the direction the shooter fled after the shooting would have
contradicted Ware’s testimony, possibly giving the trier of fact another reason to question his
credibility. See People v. Rodriguez, 227 Ill. App. 3d 397, 405 (1991) (“[T]he testimony of an
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accomplice is to be viewed with suspicion.”). In reaching this decision, we acknowledge that
the State did present considerable evidence indicating the defendant’s guilt. However,
prejudice “may be found even when the chance that minimally competent counsel would have
won an acquittal is ‘significantly less than 50 percent,’ as long as a verdict of not guilty would
be reasonable.” People v. McCarter, 385 Ill. App. 3d 919, 935 (2008) (quoting Miller v.
Anderson, 255 F.3d 455, 459 (7th Cir. 2001)). Here, we conclude that, if Shardell had testified
in a manner consistent with his affidavit, a verdict of not guilty would at least be reasonable.
As such, we conclude that the defendant made a substantial showing that his trial counsel was
ineffective for failing to investigate or present Shardell, and the circuit court should proceed to
a third-stage evidentiary hearing on that claim.
¶ 47 The defendant’s next contention on appeal is that he made a substantial showing that his
appellate counsel was ineffective for failing to challenge the circuit court’s ruling on his motion
to quash arrest and suppress evidence where the probable cause to arrest was based on an
investigative alert and the officer who issued that alert did not testify at the hearing. He also
argues, in the alternative, that his appellate counsel was ineffective for failing to argue that his
trial counsel was ineffective for failing to preserve the issue for appeal.
¶ 48 Claims of ineffective assistance of appellate counsel are judged against the same two-
pronged Strickland standard. People v. Lacy, 407 Ill. App. 3d 442, 457 (2011) (citing People
v. Edwards, 195 Ill. 2d 142, 163 (2001)). “[A] defendant must show both that counsel’s
performance ‘fell below an objective standard of reasonableness’ and that the deficient
performance prejudiced the defense.” Hodges, 234 Ill. 2d at 17 (quoting Strickland, 466 U.S.
at 687-88). “Appellate counsel is not required to brief every conceivable issue on appeal,
however, and it is not incompetence for counsel to refrain from raising issues that counsel
believes are without merit.” Edwards, 195 Ill. 2d at 163-64. Unless the underlying issue has
merit, a defendant suffers no prejudice as the result of appellate counsel’s failure to raise an
issue on appeal. Lacy, 407 Ill. App. 3d at 457.
¶ 49 Here, the defendant argues that his appellate counsel was ineffective for failing to challenge
the trial court’s denial of his motion to quash arrest and suppress evidence. On a motion to
quash arrest and suppress evidence, the defendant generally bears the burden of proof. People
v. Garcia, 2017 IL App (1st) 142141, ¶ 28. However, “[a]n arrest without probable cause or a
warrant based thereon violates” both the United States and Illinois Constitutions. People v.
Lee, 214 Ill. 2d 476, 484 (2005). Thus, “[o]nce the defendant submits evidence which shows
that, at the time of the arrest, he was doing nothing unusual (i.e., his conduct was not indicative
of the commission of a crime) and he was arrested without a warrant, the defendant has made
a prima facie case that the police lacked probable cause,” and the burden then shifts to the State
to show that the warrantless arrest was based on probable cause. People v. Drake, 288 Ill. App.
3d 963, 967 (1997). That said, the ultimate burden of proof remains with the defendant. People
v. Cregan, 2014 IL 113600, ¶ 23.
¶ 50 In the instant case, the parties do not dispute that the defendant was not arrested pursuant
to a warrant. Additionally, Detective Allen testified at the suppression hearing that the
defendant was already in handcuffs when he entered the residence and he did not see the
defendant doing anything unusual or illegal at the time. Therefore, the State was required to
demonstrate that the arrest was based on probable cause and, therefore, legally justified.
¶ 51 The defendant contends that the State failed to satisfy this burden because Detective Allen
testified that he was arrested based solely on an investigative alert and the only other officer
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who testified, Sergeant Daly, offered no evidence that he was “connected” with the
investigative alert. The defendant also notes that the investigative alert lists “Detective William
Ruck” as the contact person. As a result, the defendant contends that we should not “presume”
that Sergeant Daly “issued the directive to arrest.”
¶ 52 The State responds by raising three arguments. First, the State argues that the defendant
failed to preserve this claim for appellate review because it is “dissimilar” to the claim he raised
in his supplemental postconviction petition. Second, it argues that the defendant’s claim should
be dismissed because his current claim is “substantively dissimilar to the argument raised by
trial counsel at the pretrial hearing, which explains why the argument was not previously
raised.” The State goes on to contend that “[h]ad trial counsel specifically argued, for example,
that the officer who issued the investigative alert lacked probable cause to do so, both parties
would have had an opportunity to develop the record and the trial court would have had an
opportunity to make a ruling based on that issue.” Lastly, the State argues that it presented
sufficient evidence to establish that officers had probable cause to arrest the defendant and any
claim to the contrary on appeal would not have been meritorious.
¶ 53 To begin, we first address the State’s contention that the defendant’s argument on appeal
is dissimilar to the argument raised in his supplemental postconviction petition. We find no
merit to the State’s contentions. In his supplemental petition, the defendant argued that his
appellate counsel was ineffective for failing to challenge the denial of his motion to quash
arrest and suppress evidence because “the State failed to meet its burden of demonstrating that
the arresting officers actually knew of sufficient facts or that the directive to arrest was actually
made by an officer who knew sufficient facts.” Noting that he was arrested pursuant to an
investigative alert, the defendant argued that the record was silent as to who issued the alert
and, given that Detective Ruck is listed as the contact person on the alert, “it should not be
assumed” that it was Sergeant Daly, the officer who testified at the hearing. This is precisely
the argument the defendant now raises on appeal, and we conclude, therefore, that he has not
forfeited this argument.
¶ 54 We next address the State’s contention that the defendant’s claim of ineffective assistance
of appellate counsel fails because the claim is “substantively dissimilar to the argument raised
by trial counsel at the pretrial hearing, which explains why the argument was not previously
raised.” At the suppression hearing, the defendant’s only arguments were that Rio’s tape-
recorded conversations did not explicitly reference either a shooting or Rangel and that the
information implicating the defendant was unreliable because it came from individuals who
were under arrest. We agree with the State that the defendant’s argument at the suppression
hearing was substantively dissimilar to the claim he now faults his appellate counsel for failing
to raise. However, the defendant also argued in his supplemental postconviction petition that
“[i]n the event this claim is viewed as inadequately preserved for review, trial counsel’s
ineffectiveness in failing to adequately preserve it could have been raised on appeal.”
Consequently, the State’s argument does not have merit, and we must, therefore, determine
whether a challenge to the trial court’s denial of the defendant’s motion to quash arrest and
suppress evidence on the grounds that the State failed to prove that the investigative alert was
supported by probable cause would be meritorious.
¶ 55 An arrest secured without a warrant is valid only where it is supported by probable cause.
People v. Grant, 2013 IL 112734, ¶ 11. Police have probable cause to arrest an individual when
the facts known to the officer at the time of the arrest are sufficient to lead a reasonably cautious
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person to believe that the individual has committed a crime. Id. Whether probable cause exists
depends on the totality of the circumstances at the time of the arrest. Id. An officer’s factual
knowledge, based on his or her police experience, is relevant to determining probable cause.
Id. Whether probable cause exists is governed by commonsense considerations, and the
calculation concerns the probability of criminal activity rather than proof beyond a reasonable
doubt. Id.¶ 56 Although an arrest may be based on information of which the arresting officer does not
have personal knowledge, the State must show that the information the officer relied on was
based on facts sufficient to show probable cause to support an arrest. People v. Hyland, 2012
IL App (1st) 110966 ¶ 22. An arresting officer may rely on information received in an official
police communication, provided that the officer who issued the communication had probable
cause to arrest. People v. Lawson, 298 Ill. App. 3d 997, 1001 (1998).
¶ 57 After reviewing the record, we conclude that the State presented sufficient evidence to
establish that the police had probable cause to arrest the defendant for the shooting death of
Rangel. At the hearing, Detective Allen testified that he arrested the defendant pursuant to an
investigative alert stating that the defendant was suspected of shooting Rangel. Sergeant Daly,
a former detective who was assigned to investigate the June 4, 2003, shooting, testified that his
investigation produced the following information: Rio, a confidential informant, told him that
a recorded conversation with Nunnery indicated that the defendant shot and killed Rangel;
Spann, who had admitted to being involved in the shooting, told him that the defendant
subsequently confessed to him that he shot and killed Rangel; an individual named McCline
provided a statement indicating that the defendant told him that he had shot and killed Rangel
and that he was enticed to do so by Nunnery and Spann; and Nunnery recorded a confession
implicating the defendant as the shooter. We agree with the trial court that this evidence “was
more than sufficient” to establish that police had probable cause to arrest the defendant.
¶ 58 In urging reversal, the defendant relies primarily on Hyland, 2012 IL App (1st) 110966, to
support his argument that his appellate counsel should have challenged the court’s denial of
his motion to quash arrest and suppress evidence on appeal. In Hyland, a defendant was
approached by two officers based on an investigative alert stating that the defendant violated
an order of protection. Id. ¶ 6. The officers took the defendant into custody and performed a
custodial search that produced a weapon. Id. ¶ 3. He was arrested and charged with unlawful
use of a weapon by a felon and unlawful possession of a firearm by a street gang member. Id.
At the defendant’s motion to suppress, the State presented only the testimony of the arresting
officers, who stated that they approached the defendant based on the investigative alert but did
not have personal knowledge of the facts underlying the issuance of the investigative alert. Id.
¶¶ 5-6. We reversed the trial court’s denial of the defendant’s motion to quash his arrest and
suppress evidence, finding that the State “presented no evidence that the underlying facts of
the investigative alert established probable cause to arrest defendant, either from the officer
who issued the investigative alert or from the individual who obtained the protective order that
defendant allegedly violated.” Id. ¶ 25.
¶ 59 In relying on Hyland, the defendant acknowledges that his direct appeal was resolved on
March 30, 2010, and that our opinion in Hyland case was issued on November 21, 2012, over
two years later. See People v. Simmons, No. 1-08-2532 (2010) (unpublished summary order
under Illinois Supreme Court Rule 23(c)). Appellate counsel’s assessment of the merits of an
issue depends on the state of the law at the time of the direct appeal. People v. English, 2013
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IL 112890, ¶ 34 (citing People v. Weninger, 292 Ill. App. 3d 340, 345 (1997)). The defendant
nevertheless insists that, although Hyland was not decided at the time his case was on appeal,
his direct appellate counsel was “not required to be prescient in terms of knowing how [the
appellate court] would eventually rule in Hyland” because the cases that formed the basis for
Hyland were available, such as People v. Lawson, 298 Ill. App. 3d 997 (1998).
¶ 60 In Lawson, the circuit court granted a motion to quash arrest and suppress evidence filed
by a defendant who was charged with, inter alia, armed robbery. The State appealed, and we
affirmed, finding that the only witness for the State at the suppression hearing was the arresting
officer, who testified that he arrested the defendant solely because he matched the description
of a suspect in a radio bulletin. We stated that “when the State attempts to justify a warrantless
arrest on the basis of a radio bulletin it must establish that the officer who issued the bulletin
had probable cause to effect an arrest. (Emphasis in original.) Lawson, 298 Ill. App. 3d at 1001.
¶ 61 We find that the instant case is meaningfully distinguishable from both Lawson and
Hyland. Here, unlike in Lawson and Hyland, the State presented Sergeant Daly, a former
detective who was assigned to investigate the June 4, 2003, shooting, and who testified to the
considerable information that his investigation into Rangel’s death produced implicating the
defendant as the shooter prior to his November 22, 2003, arrest. We acknowledge that Sergeant
Daly did not directly testify as to whether he issued the investigative alert; however, his
testimony regarding what investigators knew prior to the issuance of the alert and the
defendant’s subsequent arrest is clearly an order of magnitude beyond what was presented to
the court in Lawson and Hyland. Moreover, given the sheer amount of information uncovered
by Sergeant Daly as part of his investigation, we believe that it was not unreasonable for the
circuit court to infer that Sergeant Daly was responsible for the investigative alert.
Accordingly, we conclude that the circuit court did not err when it denied the defendant’s
motion to quash his arrest and suppress evidence, and therefore, his appellate counsel was not
ineffective for failing to challenge the ruling on appeal.
¶ 62 Lastly, we address the defendant’s citation to People v. Bass, 2019 IL App (1st) 160640,
appeal allowed, No. 125434 (Ill. Mar. 25, 2020). In Bass, a divided panel of this court
concluded that an arrest is unconstitutional when it is based solely on an investigative alert,
even where the investigative alert is supported by probable cause. Id. ¶ 43. In reaching that
conclusion, the majority found that the Illinois Constitution required a warrant, based on
probable cause, to issue before an arrest could be made and that an investigative alert,
validating an arrest without the issuance of a warrant, violated the Illinois Constitution. Id.
¶ 62. The majority based its decision on the notion that the Chicago Police Department
improperly utilized investigative alerts in an effort to circumvent the process of obtaining a
warrant and arrest individuals without establishing probable cause to do so. Id.¶ 63 The State argues that we should find that the defendant has forfeited any argument pursuant
to Bass because he failed to raise such an argument in his supplemental postconviction petition.
It also contends that, if we do address the issue, we should follow People v. Braswell, 2019 IL
App (1st) 172810, which disagreed with the majority’s decision in Bass. We agree with the
State that the defendant failed to raise an argument similar to Bass in his postconviction
petition, and he cannot raise it for the first time on appeal. People v. Jones, 213 Ill. 2d 498, 505
(2004) (finding that the courts have “generally held that a claim not raised in a petition cannot
be argued for the first time on appeal”).
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¶ 64 Forfeiture aside, we agree with Braswell and decline to follow Bass. As the Braswell court
stated, the flaw in Bass’s reasoning is “that arrests must be based on probable cause, not
warrants as the majority in Bass suggests.” Braswell, 2019 IL App (1st) 172810, ¶ 39. This
flawed reasoning in Bass “creates the somewhat paradoxical situation where police may arrest
an individual without a warrant and without an investigative alert if they have probable cause
to do so, but that same arrest becomes unconstitutional if police issue an investigative alert
based on the same facts that gave rise to the probable cause.” Id. Accordingly, we conclude, as
did Braswell, that “the investigative alert must have a proper basis to show probable cause.”
See id. And, as we have already concluded, the State did present sufficient evidence in this
case to establish that the police had probable cause to arrest the defendant based on an
investigative alert.
¶ 65 In sum, we find that the defendant made a substantial showing that his trial counsel was
constitutionally ineffective for failing to investigate and present Shardell as an exculpatory
witness, and we remand to the circuit court for a third-stage evidentiary hearing on that issue.
We affirm the circuit court in all other respects.
¶ 66 Affirmed in part, reversed in part, and remanded with directions.
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