People v. Foat , 2022 IL App (2d) 210406-U ( 2022 )

2022 IL App (2d) 210406-UNo. 2-21-0406
Order filed October 17, 2022
NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
SECOND DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Winnebago County.
)
Plaintiff-Appellee, )
)
v. ) No. 08-CF-32
)
DeMICHAEL FOAT, ) Honorable
) Ronald J. White,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________
PRESIDING JUSTICE BRENNAN delivered the judgment of the court.
Justices McLaren and Jorgensen concurred in the judgment.
ORDER
¶1 Held: Defendant failed to make a substantial showing that his trial counsel was ineffective
for neglecting to call two witnesses who defendant claimed would substantiate his
defense to first-degree murder. First, trial counsel could reasonably conclude that
the witnesses might harm the defense given that one witness was vulnerable to
substantial impeachment and the other would give testimony inconsistent with
defendant’s on the issue of whether the shooting was justified. Second, there was
no prejudice to defendant from counsel’s conduct given the substantial evidence of
guilt.
¶2 Defendant, DeMichael Foat, appeals from the second-stage dismissal of his petition under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). He contends that
he made a substantial showing that his trial counsel was ineffective for failing to call certain
2022 IL App (2d) 210406-Uwitnesses at his first-degree murder trial. Because counsel was not deficient in failing to call the
witnesses and defendant was not prejudiced by counsel’s failure, we affirm.
¶3 I. BACKGROUND
¶4 The State indicted defendant on six counts of first-degree murder (720 ILCS 5/9-1(a)(1),
(a)(2) (West 2008)) arising out of the shooting death of Jermaine Malone (Malone).
¶5 The following facts were presented at defendant’s jury trial. On January 1, 2008, at about
4:20 a.m., a red Pontiac was driving north on Central Avenue in Rockford when it slid on the icy
road, entered the oncoming lane, and struck a southbound white Chevrolet. There was significant
front-end damage to both vehicles.
¶6 Lekeisha Hill was driving the Pontiac. Malone, Hill’s boyfriend and the father of her two
children, was the front-seat passenger. Terricka N. Purifoy (Terricka) (to be distinguished from
Terrica C. Purifoy, infra ¶ 14) was in the rear seat. Hill admitted that she had been drinking earlier
both at a club and in the Pontiac and that there were bottles of Grey Goose and Remy in the car.
After the accident, she threw the bottles into a nearby field to avoid being arrested for driving
under the influence.
¶7 Jermaine Foat (Jermaine), defendant’s cousin, was driving the Chevrolet. In the front
passenger seat was defendant’s brother, DeAngelo Matlouck, who was partially paralyzed from a
prior incident. Raven Cherry was the rear-seat passenger.
¶8 A black van, driven by Lewis Darby, followed the Chevrolet. Also in the van were
defendant and several companions, including Derrick Neville. After the accident, the van stopped.
¶9 Defendant exited the van to check on Matlouck in the Chevrolet. According to defendant,
Matlouck was seriously injured but alive. Matlouck testified that he lost consciousness shortly
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2022 IL App (2d) 210406-Uafter the crash. One witness heard defendant saying things that suggested he thought Matlouck
was dead. Several other men exited the van and placed Matlouck into the van.
¶ 10 Hill backed her car into the northbound lane after the accident, upon which someone
approached, took the keys out of the ignition, and said, “ ‘[Y]ou’re not going nowhere.’ ”
¶ 11 Malone exited the Pontiac to see if everyone was okay. He then walked over to the
Chevrolet to see if its occupants were okay. When he did so, defendant and several of his
companions approached Malone. Neither Hill nor Terricka saw anything in Malone’s hands.
Defendant approached Malone as Malone stood near the rear passenger side of the Pontiac.
According to Hill, who was four or five steps away, defendant pulled out a gun. Defendant was
within arm’s reach of Malone and pointed the gun close to his head. Defendant shot Malone one
time. Malone jerked and fell to the ground. Hill screamed and laid on top of Malone. She then
called 911.
¶ 12 On cross-examination, Hill denied telling a police detective that she heard a “pop” but did
not see a gun. She acknowledged that, in photo arrays, she was able to identify who took her car
keys but was unable to identify the shooter.
¶ 13 On redirect examination, Hill testified that Malone was not drunk at the time of the accident
and had not been drinking in the car. Malone was not fighting with anyone before being shot and
did not have a weapon in his hands. Hill was “[o]ne hundred percent” certain that defendant shot
Malone.
¶ 14 Terricka testified that she exited the Pontiac after the accident. Defendant was waving a
gun and yelling, “ ‘What the F is wrong with my brother?’ ” She then flagged down a car driven
by her cousin, Terrica C. Purifoy (Terrica), so that she could use her cell phone to call her mother.
While sitting in her cousin’s car talking to her mother on the phone, Terricka looked back and saw
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2022 IL App (2d) 210406-Usomeone raise a gun from their side and point it at Malone. The shooter was about two inches
from Malone. She yelled, “ ‘[N]o, don’t do that.’ ” She then saw fire come from the gun. Malone
did not have a gun or anything else in his hands. She identified defendant in court as the shooter.
Although there were several people around Malone, no one was between defendant and Malone at
the time of the shooting.
¶ 15 On cross-examination, Terricka admitted that she drank before the incident and that there
was a bottle of Grey Goose in Hill’s car. She also admitted that she did not testify before the grand
jury that she saw who shot Malone. Specifically, she was asked at the grand jury proceeding if
she saw what happened to Malone and she answered, “ ‘[N]o, I just looked back and he was on
the ground.’ ” She maintained at trial that she did indeed see who shot Malone, and she explained
that she was “probably was confused” when she gave a different account to the grand jury. She
also admitted that, in a statement to the police, she reported that she observed a black male with a
gun but did not identify him as defendant.
¶ 16 Terrica was driving on Central Avenue when she encountered the traffic accident. There
was a red car, a white car, a black van, and 10 to 12 people standing around. She stopped because
she recognized Terricka, who asked to use her cell phone. As she sat in her car, she heard a single
shot and saw a flash. She did not see the person who fired the shot.
¶ 17 Cherry testified that, after the crash, everyone exited the Chevrolet except Matlouck. She
saw several people from the black van remove Matlouck and put him in the van. As Cherry stood
near the Chevrolet, she heard people arguing, then heard a shot. She did not see where the shot
came from. After the shot, defendant and Darby entered the van and left.
¶ 18 Dontrell Bennett and Steve Owens were passengers in the black van that was following the
Chevrolet. After the accident, Bennett heard one shot fired near the Pontiac. He denied seeing
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2022 IL App (2d) 210406-Udefendant with a gun. He claimed that he did not recall testifying before the grand jury that he
saw defendant with a handgun at a party before the shooting and that he observed defendant put
the gun in his pants after the shooting.
¶ 19 Owens testified that, after the accident, everyone but him exited the van. At one point, he
saw Malone, whom he knew from grade school, go over to the Chevrolet and ask if everyone was
okay. According to Owens, Malone was drinking from a bottle of Hennessey in his hand but was
not arguing with anyone. Owens testified that defendant, who thought Matlouck was dead, went
over and held a gun to Malone’s head. Owens thought that defendant was “drunk, off pills, and
everything else” and was trying to scare Malone. Defendant was waving the gun when it suddenly
went off and Malone was “gone.” Owens further testified that defendant raised the gun with his
right hand. The gun “was shaking *** and it went off.” Defendant did not say anything before
shooting Malone. Defendant was one foot from Malone when he shot. Malone had no gun. After
shooting Malone, defendant looked at Malone for a second and then walked to the van. At that
point, Owens and several others, including defendant, left in the van to take Matlouck to the
hospital. On the way there, Darby stopped the van and defendant jumped out and ran off.
¶ 20 Owens acknowledged that the police showed him a photo lineup, in which he identified
defendant as the one who shot Malone.
¶ 21 On cross-examination, Owens admitted that, when he first spoke to Rockford police
detective Eric Harris, he said that he did not see who shot Malone. The second time he talked to
Detective Harris, he fabricated a story about an ambush and someone jumping out and shooting
Malone.
¶ 22 On redirect examination, Owens testified that Malone was not arguing with anyone before
the shooting but was telling defendant to leave him alone because he was just trying to check if
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2022 IL App (2d) 210406-Ueveryone was okay. According to Owens, defendant put the gun to Malone’s head and Malone
slapped it away. Defendant then “turned [Malone] around” and slapped Malone on the side of his
face with the gun. Malone stood there, looked at defendant, and did not say anything. Defendant
then shot him. Defendant fired one shot and retained the gun.
¶ 23 Owens testified that the “third time” he was interviewed by the police, he told them that
defendant shot Malone. He explained that, because of “everything [that] was going through [his]
head,” he did not initially tell the police that defendant was the shooter.
¶ 24 Dr. Larry Blum reviewed the report of the autopsy performed on Malone. Based on the
wound and powder marks on the skin around the entry hole, Dr. Blum opined that the gun was
from ½ inch to 2 inches away when fired. It was not a contact wound; the muzzle was not touching
the skin when the gun discharged. The path of the bullet was front to back, right to left, and
downward. A blood alcohol test revealed no alcohol or illegal drugs in Malone’s system.
¶ 25 Detective Harris testified that, on January 2, 2008, an arrest warrant was issued for
defendant. In April 2008, the police located defendant in someone’s home. When defendant was
found in the basement on a bed, he said, “[W]hat took you so long[?]”
¶ 26 Rockford detective Daniel Scharlau testified for the defense that Hill told him at the scene
that she heard a “pop” but did not initially say that she saw a gun. She did also tell him, however,
that the person who shot Malone was the same person who told the occupants of the Pontiac that
“ ‘nobody is going nowhere.’ ” However, Detective Sharlau admitted that he wrote in his notes
that Hill “ ‘didn’t see who shot.’ ”
¶ 27 Defendant testified that he had a gun the night of the incident because he had seen someone
display a gun earlier at a party. After the accident, defendant approached the Chevrolet to check
on Matlouck. Matlouck was bleeding from the mouth, but defendant did not think he was dead.
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2022 IL App (2d) 210406-UWhen the Pontiac backed up, defendant and Jermaine told the occupants that they would not be
going anywhere. When Jermaine approached the Pontiac, Malone got out. Jermaine asked Malone
what happened, and Malone told him to ask Hill. Jermaine then removed the keys from the
Pontiac. Jermaine said to Malone, “ ‘I should knock you out.’ ” Jermaine then turned his back to
defendant. Defendant saw that Malone had a bottle of Remy in his hand but did not know if
Malone was drinking from it. As Jermaine walked away, defendant saw Malone raise the bottle
like he was going to hit Jermaine. Defendant then “pulled [his] gun and smacked [Malone].”
Defendant denied waving the gun around before striking Malone. According to defendant, when
he struck Malone with the gun, it discharged. He denied that he intended to shoot Malone. Rather,
he “smacked” Malone to protect Jermaine.
¶ 28 After the gun went off and Malone fell to the ground, defendant looked at him but did not
think that he shot him. He did not see any blood and assumed that the blow alone caused Malone
to fall. He was surprised when he learned later that morning that Malone had died.
¶ 29 On cross-examination, defendant admitted that he kept the gun in the front pocket of his
hoodie and that it was loaded that night. He struck Malone on the right side of the head while his
finger was on the trigger. He admitted that he lied to the police when he told them that he did not
have a gun on the night of the incident and that someone else shot Malone. Defendant denied that
he aimed the gun at Malone or that he was angry. He claimed that he accidently shot Malone.
¶ 30 The trial court instructed the jury on first-degree murder, second-degree murder,
involuntary manslaughter, and defense of another. The jury found that defendant fired the gun
that killed Malone and also found him guilty of first-degree murder.
¶ 31 Defendant filed a motion for a new trial, which he twice amended. In the second amended
motion, trial counsel alleged that he denied defendant the effective assistance of counsel by failing
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2022 IL App (2d) 210406-Uto call certain witnesses. At a hearing on that motion, defendant told the court that counsel should
have called Dwarn Bennett, Martell Williams, and Quamane Simmons, all of whom were in the
black van and witnessed the incident. After counsel explained why he did not call those witnesses,
he volunteered that, as a matter of trial strategy, he did not call Neville because his testimony
would have been inconsistent with defendant’s testimony. Counsel explained that, based on his
witness statement, Neville would have testified that Malone was going to hit defendant and not
Jermaine with a bottle. Neville also had “heavy impeachables” in the form of felony convictions.
The court found that there was no neglect by trial counsel that would require appointment of new
counsel to investigate defendant’s ineffectiveness claim.
¶ 32 The trial court sentenced defendant to 75 years’ imprisonment, which included a 25-year
enhancement based on defendant’s use of a firearm.
¶ 33 On appeal, defendant claimed only that his sentence was excessive. We affirmed. People
v. Foat, 2011 IL App (2d) 100129-U.
¶ 34 In February 2012, defendant filed a pro se postconviction petition under the Act. In August
2019, he was allowed to amend the pro se petition.
¶ 35 In his amended petition, defendant claimed, among other things, that his trial counsel was
ineffective for failing to call Neville and Darby as witnesses to corroborate his version of events.
Defendant asserted that, had the jury heard their testimony, there was a “great possibility” that he
would have been found not guilty of first-degree murder or guilty of a lesser offense.
¶ 36 Defendant attached an affidavit obtained from Neville in 2016. In his affidavit, Neville
averred that Jermaine took the keys out of Hill’s car when it looked like she was going to leave
the scene. Malone then exited the car while holding a bottle of alcohol and told Jermaine to give
the keys to Hill. Jermaine replied that no one was going anywhere and turned to walk away.
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2022 IL App (2d) 210406-UNeville was a few feet away when he saw Malone raise the bottle and take several quick steps
toward Jermaine. Defendant then took a gun from his pants and struck Malone on the side of the
head with the gun, which discharged in the process. Defendant was holding the gun in the palm
of his hand and did not point the gun at Malone. Neville thought that Malone had been knocked
out and not shot. Neville further averred that he shared this account with trial counsel before trial.
He told counsel that he wanted to testify that defendant did not intend to shoot Malone and that
Malone was going to hit Jermaine in the back of the head with the bottle. According to Neville,
trial counsel told him that his testimony would not be helpful because it was the same testimony
defendant planned to give.
¶ 37 Darby’s affidavit was not attached to the amended postconviction petition but appears
elsewhere in the record. The affidavit was dated February 16, 2021. Defendant read the affidavit
into the record at a prehearing proceeding. Darby averred that he saw Jermaine take the keys from
the Pontiac and start to walk away. “The guy” (Malone) walked up and “grabbed” Jermaine.
Defendant then pulled a gun, swung it at Malone, and the gun fired. Darby did not hear defendant
shout or see him point the gun at Malone. Darby stated that he had given the same testimony to
the grand jury and was willing to give it again at trial. The affidavit was signed and dated February
16, 2021.
¶ 38 At the hearing on the State’s motion to dismiss the petition, defendant asserted that,
although Neville was brought to court, trial counsel opted not to call him. According to defendant,
counsel told him that he decided not to call Neville, because (1) his testimony would have been
the same as defendant’s and (2) Neville had pending charges. Defendant pointed out that, at the
hearing on the motion for a new trial, counsel told the court that he did not call Neville because
his testimony would have been inconsistent with defendant’s.
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2022 IL App (2d) 210406-U¶ 39 Defendant further stated that he told trial counsel that he wanted to call Darby as a witness,
but counsel said that discovery showed that Darby would testify that defendant killed Malone.
According to defendant, it was not until 2019, when he reviewed the grand jury transcript and
other written statements, that he learned that Darby’s account was not as counsel described.
¶ 40 The trial court granted the State’s motion to dismiss. In doing so, the court found that trial
counsel’s failure to call either Neville or Darby was a matter of trial strategy. Defendant, in turn,
filed this timely appeal.
¶ 41 II. ANALYSIS
¶ 42 On appeal, defendant contends that he made a substantial showing that trial counsel was
ineffective for failing to call Neville and Darby as witnesses, as they would have corroborated his
defense to first-degree murder.
¶ 43 The Act allows a defendant to challenge a conviction or sentence for violations of federal
or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). In noncapital cases,
postconviction proceedings contain three stages. People v. Domagala, 2013 IL 113688, ¶ 32.
Relevant here, at the second stage of review, the defendant bears the burden of making a
“ ‘substantial showing of a constitutional violation.’ ” Domagala, 2013 IL 113688, ¶ 33 (quoting
People v. Edwards, 197 Ill. 2d 239, 246 (2001)). The second stage tests the legal sufficiency of
the petition: unless the allegations are positively rebutted by the record, they are taken as true, and
the question to be resolved is whether those allegations establish a constitutional violation.
Domagala, 2013 IL 113688, ¶ 35. Put another way, the “substantial showing” of a constitutional
violation at the second stage is a measure of the legal sufficiency of the defendant’s well-pled
allegations of a constitutional violation, which, if proven at an evidentiary hearing, would entitle
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2022 IL App (2d) 210406-Uthe defendant to relief. Domagala, 2013 IL 113688, ¶ 35. We review de novo the trial court’s
second-stage dismissal. Pendleton, 223 Ill. 2d at 473.
¶ 44 Claims of ineffective assistance of counsel are governed by the familiar standard set forth
in Strickland v. Washington, 466 U.S. 668 (1984). People v. Petrenko, 237 Ill. 2d 490, 496 (2010).
To establish ineffective assistance, a defendant must show both that (1) counsel’s performance
was deficient, and (2) the deficient performance prejudiced the defendant. Petrenko, 237 Ill. 2d at
496. Deficient performance is that which is objectively unreasonable under prevailing professional
norms, and prejudice is found where there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different. Petrenko, 237 Ill.
2d at 496-97. The failure to establish either prong is fatal to the claim. People v. Clendenin, 238
Ill. 2d 302, 317-18 (2010).
¶ 45 Matters of trial strategy are generally immune from claims of ineffective assistance of
counsel. People v. West, 187 Ill. 2d 418, 432-33 (1999). Indeed, even a mistake in trial strategy
will not alone render representation constitutionally defective unless counsel’s trial strategy is so
unsound that he entirely fails to conduct meaningful adversarial testing of the State’s case. People
v. Peterson, 2017 IL 120331, ¶ 80. Thus, we must be highly deferential to decisions of trial
strategy and evaluate counsel’s performance from his perspective at the time and not as a matter
of hindsight. People v. Stewart, 104 Ill. 2d 463, 491-92 (1984). A defendant bears the burden of
overcoming the presumption that his counsel’s decision was the product of a sound trial strategy.
People v. Gacy, 125 Ill. 2d 117, 126 (1988).
¶ 46 The decision of whether to call a certain witness for the defense is a matter of trial strategy,
left to the discretion of counsel after consultation with the defendant, and such decisions will not
ordinarily support a claim of ineffective assistance of counsel. Peterson, 2017 IL 120331, ¶ 80.
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2022 IL App (2d) 210406-UThe failure to call a witness will not support an ineffectiveness claim where it was reasonable for
counsel to believe that the anticipated testimony would have no probative value to guilt or
innocence (People v. Ashford, 121 Ill. 2d 55, 74-75 (1988)), would be unreliable, or would likely
harm the defendant’s case (People v. Flores, 128 Ill. 2d 66, 106 (1989)). Further, a defense
attorney may choose not to call a witness who could be subject to severe impeachment. See People
v. Smado, 322 Ill. App. 3d 329, 335 (2001).
¶ 47 We first address whether defendant made a substantial showing that trial counsel was
deficient for failing to call either Darby or Neville as a witness. In doing so, we note that we accept
as true all well-pled facts in the petition and affidavits. Our task is to determine whether, based on
those facts, defendant’s claim is legally sufficient.
¶ 48 We begin by reiterating that the decision to call a particular witness is a matter of trial
strategy that will not support a claim of ineffectiveness unless it resulted in an entire lack of
meaningful adversarial testing of the State’s case. We hold that trial counsel’s decision not to call
either Darby or Neville did not result in a lack of meaningful adversarial testing.
¶ 49 At the hearing on defendant’s posttrial motion, counsel explained that he opted not to call
Neville because (1) the account he gave in his witness statement was slightly inconsistent with
defendant’s version, in that Neville would testify that Malone was attempting to hit defendant (not
Jermaine) with the bottle; and (2) Neville had felony convictions that would have subjected him
to heavy impeachment. However, in his affidavit, Neville stated that he told counsel before trial
that Malone attempted to strike Jermaine (not defendant) with the bottle. Assuming, as we must,
that Neville’s version in his affidavit was true, counsel was aware that Neville was prepared to
testify, consistent with defendant’s account, that Malone attempted to hit Jermaine with the bottle.
However, counsel was also aware that Neville had provided a contrary version in his witness
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2022 IL App (2d) 210406-Ustatement. Accordingly, counsel knew that Neville would be subject to cross-examination about
his prior inconsistent statement. Thus, had counsel called him as a witness, Neville would have
potentially harmed defendant’s case when the jury heard about Neville’s prior inconsistent version
of events.
¶ 50 Additionally, Neville had a prior felony conviction for a drug offense, which would have
subjected him to impeachment, whether it was brought up via direct or cross-examination.
Although counsel’s statement that Neville had “heavy impeachables” may have been overblown,
Neville’s credibility as a witness was certainly subject to an attack that would have lessened any
positive impact of his potential testimony.
¶ 51 Based on the reasonable concern that Neville would be impeached by his prior felony
conviction and cross-examined about his prior inconsistent statement, counsel was entirely
reasonable in deciding not to call Neville as a witness. More importantly, his failure to do so does
not show a lack of meaningful adversarial testing.
¶ 52 As for Darby, he averred in his affidavit that he saw Malone walk up and “grab[ ]”
Jermaine. Defendant then pulled a gun, swung it at Malone, and the gun fired. Darby did not see
defendant point the gun at Malone. According to Darby, he testified before the grand jury
consistent with his affidavit.
¶ 53 Counsel was not unreasonable in not calling Darby as a witness. While defendant testified
that he intervened when Malone was about to hit Jermaine with a bottle, Darby’s affidavit never
mentioned his seeing Malone attempt to swing a bottle at Jermaine. Instead, he saw Malone merely
“grab[ ]” Jermaine. Absent the presence of a deadly weapon or some other indication that Malone
was threatening the imminent use of deadly force upon Jermaine, simply grabbing Jermaine would
not have justified defendant’s use of deadly force, i.e., either shooting Malone or striking him in
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2022 IL App (2d) 210406-Uthe head with the gun. Thus, if Darby testified consistently with his affidavit, the jury would have
had to reconcile his testimony with defendant’s on the crucial issue of whether Malone threatened
deadly force. Because Darby’s testimony would not have helped—and indeed might have
affirmatively harmed—defendant on the issue of whether the use of deadly force was justified,
counsel was not unreasonable in failing to call Darby.
¶ 54 Therefore, the trial court properly dismissed the postconviction petition on the basis that
trial counsel was not deficient in failing to call either Neville or Darby as a witness.
¶ 55 Further, even if trial counsel were deficient in failing to call Neville or Darby, that
deficiency was not prejudicial, as it is not reasonably probable that the outcome of the trial would
have been different if counsel had called those witnesses. There was substantial evidence to
support the jury’s verdict. In discussing that evidence, we emphasize that much of the trial
testimony focused on whether defendant was the shooter. However, defendant testified that,
although he did not intentionally shoot Malone, he struck Malone in the side of the head with the
gun and it discharged in the process. Thus, the primary factual dispute, in light of defendant’s
testimony, was whether defendant aimed the gun and shot Malone or whether the gun went off
accidentally when defendant hit Malone with the gun.
¶ 56 To that end, there were three witnesses—Hill, Terricka, and Owens—who testified that
they saw defendant point the gun at and shoot Malone. According to Hill, she was only a few feet
away when she saw defendant pull out a gun, aim it at Malone—who was not armed or acting
aggressively—and shoot him. Defendant was within arm’s reach of Malone when he shot him.
Although Hill was subject to cross-examination about her prior drinking and some inconsistencies
in her story, it was the jury’s province to assess her credibility and her opportunity to observe the
events. Terricka testified that she saw defendant waving a gun. As she sat in her cousin’s car, she
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2022 IL App (2d) 210406-Usaw defendant, who was two inches from Malone, raise the gun and shoot Malone. She admitted
on cross-examination that she (1) drank before the incident, (2) had testified before the grand jury
that she did not see who shot Malone, and (3) did not identify defendant as the shooter in her
statement to the police. Nonetheless, it was for the jury to assess her credibility. Owens, who was
a passenger with defendant in the black van, testified that he saw defendant point the gun at
Malone’s head to scare him. According to Owens, defendant raised the gun and, as it was shaking,
it discharged. Defendant was about a foot away. Malone was not armed. The testimony of Hill,
Terricka, and Owens was consistent in describing defendant as standing close to Malone as he
aimed the gun at Malone and fired.
¶ 57 Additionally, Dr. Blum testified that the gunshot wound to Malone’s head showed that the
gun’s muzzle was ½ inch to 2 inches from Malone’s skin when the gun was fired. Further, the
bullet struck Malone in the right side of his forehead, then traveled on a downward angle from
right to left and from front to back through Malone’s brain. The bullet’s trajectory was not
consistent with defendant’s testimony—or the potential testimony of Neville and Darby—that
defendant slapped Malone with the gun in his palm and it discharged. As Dr. Blum testified, the
forensic evidence supported that defendant held the weapon and fired it at Malone’s head, which
was consistent with the State’s witnesses who testified that defendant pointed the gun at and shot
Malone at close range.
¶ 58 Further, on January 2, 2008, an arrest warrant was issued for defendant, but he was not
taken into custody until April of 2008. Thus, he eluded capture for nearly three months. This
showed consciousness of guilt and, thus, was additional evidence from which the jury could infer
that defendant had committed the crime as charged. See People Williams, 266 Ill. App. 3d 752,
760 (1994); People v. Moore, 98 Ill. App. 3d 507, 512-13 (1981).
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2022 IL App (2d) 210406-U¶ 59 In sum, there was substantial evidence that Malone was not armed or the aggressor yet
defendant pointed the gun at Malone and intentionally shot him in the head. Thus, it was not
reasonably probable that Neville’s and Darby’s testimony would have resulted in a different
verdict on the first-degree murder charge. Accordingly, defendant failed to make a substantial
showing that he suffered prejudice from counsel’s allegedly deficient performance. The lack of
prejudice was sufficient by itself to justify the dismissal of the petition.
¶ 60 III. CO NCLUSION
¶ 61 For the reasons stated, we affirm the judgment of the circuit court of Winnebago County.
¶ 62 Affirmed.
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