People v. Brown , 2020 IL App (1st) 170980 ( 2021 )

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People v. Brown, 2020 IL App (1st) 170980Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption KIAR BROWN, Defendant-Appellant.
District & No. First District, Sixth Division
No. 1-17-0980
Filed March 27, 2020
Rehearing denied May 8, 2020
Decision Under Appeal from the Circuit Court of Cook County, No. 09-CR-9598; the
Review Hon. Matthew E. Coghlan, Judge, presiding.
Judgment Affirmed.
Counsel on James E. Chadd, Patricia Mysza, Linda Olthoff, and Michael
Appeal Gentithes, of State Appellate Defender’s Office, of Chicago, for
appellant.
Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg
and Marci Jacobs, Assistant State’s Attorneys, of counsel), for the
People.
Panel JUSTICE HARRIS delivered the judgment of the court, with opinion.
Justices Cunningham and Connors concurred in the judgment and
opinion.
OPINION
¶1 Following a jury trial, defendant Kiar Brown was found guilty of first degree murder (720
ILCS 5/9-1(a)(1) (West 2008)) and sentenced to 55 years’ imprisonment. We affirmed
defendant’s conviction on direct appeal. People v. Brown, 2013 IL App (1st) 110453-U.
¶2 In November 2013, defendant pro se filed a petition pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)), in which he asserted, inter alia, a
claim of ineffective assistance of counsel based on his counsel’s failure to inform the trial court
that defendant had overheard an assistant state’s attorney tell a witness the contents of previous
witnesses’ testimonies. The circuit court advanced the petition to the second stage of
proceedings under the Act and, on the State’s motion, dismissed defendant’s petition.
Defendant appeals, arguing the court erred by dismissing his petition where he made a
substantial showing of a constitutional violation of his right to effective assistance of counsel.
We affirm.
¶3 I. JURISDICTION
¶4 The circuit court dismissed defendant’s postconviction petition on March 22, 2017.
Defendant filed his notice of appeal on April 4, 2017. Accordingly, this court has jurisdiction
pursuant to Illinois Supreme Court Rule 651(a) (eff. July 1, 2017), governing appeals in
postconviction proceedings.
¶5 II. BACKGROUND
¶6 Defendant’s arrest and prosecution arose out of the April 25, 2009, shooting death of
Zachary Allmon, which occurred at approximately 4:30 p.m. on the 5200 block of South
Carpenter Street in Chicago. The shooting was witnessed by two young girls, M.O. and A.M.,
who were playing outside at the time, and Andrell Singleton, who was eating in his car directly
across the street from where the final shots were fired. M.O., A.M., and Singleton identified
defendant as the shooter both in a lineup and at trial.
¶7 Prior to defendant’s jury trial, the parties made a mutual motion to exclude witnesses,
which the trial court granted.
¶8 At trial, M.O. testified that she was 12 years old at the time of the shooting. At
approximately 4 p.m. on April 25, 2009, she, her cousin A.M., and her four-year-old sister
were outside her father’s house on the 5200 block of South Carpenter Street playing with her
father’s dog. The girls played on the outside of a fenced area because A.M. was scared of the
dog, which was inside the fenced area. Allmon, who M.O. knew from the neighborhood,
walked by, and they said “hey” to each other.
¶9 Shortly thereafter, M.O. heard gunshots. She pushed her little sister to the ground and got
on top to cover her. Three to four seconds later, M.O. looked up and saw Allmon lying on the
sidewalk with defendant standing over him. Defendant then shot Allmon three or four times.
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In total, M.O. heard 9 or 10 gunshots. A.M. leaned on a gate in M.O.’s father’s yard, and the
dog ran out and chased defendant. Defendant ran to a light blue van, got in the passenger seat,
and the van drove off “fast.” M.O. identified defendant in court as the shooter.
¶ 10 The girls ran inside M.O.’s father’s house after the shooting stopped. When police arrived
at the scene, M.O. described the shooter as a “light-skinned boy with box braids with beads on
it.” M.O. also told police the shooter was wearing an all-black outfit and a black hat. His jacket
had the brand name “Coogi” on it. On cross-examination, M.O. admitted that when she first
spoke with police, she did not say defendant had box braids; instead she told them he had
“braids with beads, clear or white.”
¶ 11 On May 2, 2009, M.O. went to the police station with her mother and A.M. Before she
viewed the lineup, the police advised M.O. the shooter may or may not be in the lineup and
she was not required to make an identification. Separated from A.M., M.O. identified
defendant as the shooter in a live lineup. M.O. testified that defendant’s hair and clothing had
changed when she viewed the lineup, but she was still able to recognize defendant as the
shooter. M.O. also made a handwritten statement, in which she stated defendant’s hair was
“braided back in French braids” which, according to M.O.’s testimony at trial, were the same
as box braids. On May 8, 2009, in front of the grand jury, M.O. identified defendant as
Allmon’s shooter in a photograph.
¶ 12 A.M. testified that she was 11 years old at the time of the shooting. At approximately 4:30
p.m., she was at her uncle’s house on South Carpenter Street with M.O. and M.O.’s sister. As
the girls were sitting on the porch, Allmon, who A.M. knew from the neighborhood, walked
by, and they said “hey” to each other. The girls then moved to a gate on the side of the house
and played with M.O.’s father’s dog. The dog stayed inside the fenced area while the girls
played outside the fenced area because A.M. was initially scared of the dog.
¶ 13 A.M. heard gunshots, and she and M.O. pushed M.O.’s sister to the ground and covered
her. A.M. looked up to the left and saw Allmon lying on the sidewalk. Defendant, who she had
seen previously in her neighborhood and who she identified in court, was standing over and
shooting Allmon as he lay on the ground. A.M. heard “about eight” gunshots.
¶ 14 A.M. then leaned on the gate, and M.O.’s father’s dog ran out of the fenced area and chased
defendant to a “bluish green” car. Defendant “jumped in” the passenger side of the car, and the
car drove off “fast.”
¶ 15 A.M. looked at Allmon and then ran into the house. A.M.’s uncle told the girls to sit on the
couch, and he called the police. When the police arrived, A.M. told them the shooter had “box
braids,” light skin, and was “kind of tall” and “lanky.” A.M. also told the police the shooter
was wearing a black “Coogi outfit,” with black and white shoes and a “hoodie.” A.M. saw the
“Coogi” logo on defendant’s pants, not his jacket. A.M. testified nothing was covering
defendant’s face at the time of the shooting.
¶ 16 On May 2, 2009, A.M. went to the police station with M.O. and M.O.’s mother. Prior to
viewing the lineup, the police advised A.M. the shooter may or may not be in the lineup and
she was not required to identify someone. A.M. viewed a live lineup separately from M.O. and
identified defendant as the person who shot Allmon. After viewing the lineup, she met with an
assistant state’s attorney and identified defendant as Allmon’s shooter in a photograph. A.M.
denied telling the assistant state’s attorney that she had only seen the side of defendant’s face.
On May 8, 2009, in front of the grand jury, A.M. identified defendant as Allmon’s shooter in
a photograph.
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¶ 17 Singleton testified that he knew both Allmon and defendant. He went to school with
defendant’s sister, defendant went to school with his brother, and Singleton had seen defendant
around the neighborhood. At approximately 4:30 p.m. on April 25, 2009, Singleton was sitting
in his parked car across the street from his house located in the 5200 block of South Carpenter
Street. He saw Allmon standing on the corner of 52nd Street and Carpenter Street. A “sky
blue” station wagon “roll[ed] up,” and someone got out. Singleton heard two gunshots and
ducked down. He looked behind him and saw someone chasing and shooting at Allmon.
Allmon fell to the ground in front of Singleton’s house, and defendant fired “like five more
shots” into Allmon’s back. Singleton identified defendant in court as the shooter.
¶ 18 After the shooting stopped, Singleton saw defendant place a gun in his right pocket and
walk toward the station wagon. As defendant was walking toward the car, Singleton saw
defendant’s face and immediately recognized him. At the time, defendant was wearing a White
Sox hat, designer jacket, some blue jeans, and gym shoes. Defendant had braids with beads on
them. Defendant got into the station wagon, and it sped away south on Carpenter Street.
¶ 19 Singleton got out of his car, ran toward Allmon, and called the police. Singleton told the
operator he saw a sky blue station wagon but had “ducked down” in his car and did not see the
shooter. Singleton explained he told the operator he did not see the shooter because his primary
concern was to get help for Allmon and if he “would have answered one question that would
have led to another one, another one, another.” Singleton also explained he was not “ducked
down” in his car for the entire occurrence. When the police arrived, he spoke to them and told
them what he had seen, but he did not tell them defendant’s name because he did not feel it
was safe to do so.
¶ 20 On April 27, 2009, Singleton was at his children’s mother’s house. While there, the police
were called, and Singleton was placed in the back of a squad car because someone told the
police he “broke into the house or something.” After checking his identification card, a police
officer was going to let him leave, but Singleton asked the officer whether he knew anything
about Allmon’s shooting. The officer asked Singleton what he knew, and when he began giving
information, the officer asked him to go to the station to give a statement. Singleton was not
under arrest and went to the station voluntarily. He denied he was taken to the station because
he had violated an order of protection or violated a law. While at the station, Singleton spoke
with detectives and gave a written statement in which he named defendant as Allmon’s shooter.
Although he had a case pending at the time, Singleton was not promised anything in exchange
for his cooperation.
¶ 21 On April 28, 2009, Singleton was shown a photographic lineup, and he identified defendant
as Allmon’s shooter. Later that morning, he spoke with an assistant state’s attorney and again
identified defendant in a photograph. On April 30, 2009, Singleton identified defendant in a
photograph before the grand jury. On May 2, 2009, Singleton was shown a live lineup, and he
identified defendant as Allmon’s shooter.
¶ 22 Detective John Murray testified that on April 25, 2009, he and his partner, Detective Tom
Vovos, were assigned to investigate Allmon’s shooting. That day, Murray and Vovos went to
the scene and spoke with M.O., A.M., and Singleton. Murray and Vovos obtained a description
of the shooter: “Generally, it was a male black between the years of 18 and 20 years old; light-
skinned to medium complected [sic], thin, five-seven to five-ten, in that area; with braids with
white or clear beads on them, wearing dark clothing, with the word Coogi on it.” When Murray
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spoke with Singleton at the scene, Singleton gave only a general description. He did not tell
Murray he wanted to speak with him at a later time or inside his residence.
¶ 23 Two days later, the police were called to a house party attended by Singleton. Singleton
“made it be known that he had more information that he wished to tell the detectives.” He was
not under arrest and came voluntarily to the station to speak with detectives. Based on his
information, Detectives Turner and Davis produced a photographic lineup that was presented
to Singleton. 1 An investigative alert was issued for defendant, and he was arrested on May 2,
2009. Murray was not present when defendant was arrested. Murray testified that a blue jacket
with the word “Coogi” was collected from defendant after his arrest but on cross examination
admitted defendant was wearing a “C.K. Starting Dean” jacket that did not have “Coogi” on
it.
¶ 24 While defendant was in custody, Murray showed a live lineup including defendant to
Singleton, M.O., and A.M. Murray testified he was with Singleton, M.O., and A.M. as they
separately viewed the lineup, and all three identified defendant as Allmon’s shooter without
hesitation. On cross-examination, however, Murray admitted he was with the participants in
the lineup when Singleton viewed the lineup, and Vovos was with Singleton. During an
interview with an assistant state’s attorney, A.M. gave a written statement, which she later
signed, in which she stated she saw the side of the shooter’s face.
¶ 25 After Singleton identified defendant in the lineup, he spoke with an assistant state’s
attorney while Murray was present. Murray was not aware Singleton had a pending charge for
possession of a weapon, and the charge was not mentioned during the meeting. During his
investigation, Murray never learned that Singleton had been detained for a possible violation
of an order of protection. Turner and Davis never told Murray that another officer, Officer
Mitchell, received an order to bring Singleton to the station.
¶ 26 The State also presented the testimony of a latent fingerprint examiner, a forensic scientist
specializing in firearm identification, and a deputy medical examiner, who testified the victim
was shot several times in his back. After the State rested its case, defendant moved for a
directed verdict, which the trial court denied.
¶ 27 Tenija Ratcliffe testified for the defense. She stated that defendant lived down the street
from her grandmother. In April 2009, Ratcliffe braided defendant’s hair in individual braids
but did not put white or clear beads in his hair. On April 25, 2009, Ratcliffe saw defendant at
a barbecue that she was hosting in her boyfriend’s grandmother’s backyard in the 900 block of
West 50th Street. At the time, he did not have French braids and did not have beads in his hair.
The barbecue began at approximately 2 p.m., after Ratcliffe returned from the grocery store.
Defendant helped her carry the groceries into the house and he stayed for three to four hours,
never leaving the barbecue. At approximately 4:30 p.m., Ratcliffe heard “about six or seven”
gunshots, which sounded like they came from the south. Defendant was tending the grill at the
time.
¶ 28 Defendant elected not to testify and rested his case. The next day, before the jury was
brought out, the State indicated it wished to present a portion of defendant’s postarrest video-
recorded statement to rebut defendant’s alibi defense. The State indicated “the detective [was
present] to set the foundation.” After a lengthy discussion about the propriety of introducing
the statement and application of the doctrine of completeness, the trial court ruled it would
1
Turner’s and Davis’s first names are not identified in the record.
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allow the State to play a limited portion of the statement. The court then recessed so the parties
could “work on the tape to make sure that [they did not] offer any improper portions.”
¶ 29 The State called Murray in rebuttal, and he testified that he and Vovos spoke with defendant
after he was arrested on May 2, 2009. Defendant waived his Miranda rights and agreed to
speak with the detectives. See Miranda v. Arizona, 384 U.S. 436 (1966) The interview room
had an audio- and video-recording device that was activated before they spoke with defendant.
¶ 30 During the interview, defendant told Murray and Vovos that on April 25, 2009, “he got up
[and] walked down the block to a barbecue. I believe it was at Re-Re’s house.” He stated that
around 3:00 to 3:30 in the afternoon he then went and played basketball with a subject by the
name of Jaylyn Williams. He stated that while he was playing basketball, he heard the shots or
shots being fired in the area. Defendant did not tell Murray and Vovos that he was at a barbecue
with Ratcliffe at the time of the shooting. On May 2, 2009, Murray spoke with Williams, and
after their conversation, defendant remained a suspect in Allmon’s shooting. The recording of
defendant’s statement was played for the jury.
¶ 31 The jury found defendant guilty of first degree murder and found that he personally
discharged a firearm that proximately caused Allmon’s death. Defendant filed a posttrial
motion, which was later amended. The court denied the motion and sentenced defendant to 55
years in prison, which included a 30-year sentence for first degree murder and a 25-year
enhancement based on defendant’s personal discharge of the firearm that caused Allmon’s
death.
¶ 32 On direct appeal, defendant contended he was deprived of his sixth amendment right to
effective assistance of counsel where his trial counsel presented Ratcliffe’s alibi testimony,
which contradicted his postarrest statement to police. This court affirmed defendant’s
conviction in Brown, 2013 IL App (1st) 110453-U.
¶ 33 In March 2012, while defendant’s direct appeal was pending, he filed a petition for
injunctive relief. Defendant alleged that various improprieties in the grand jury process
rendered the indictment invalid. The trial court dismissed defendant’s petition. Defendant
appealed, and appellate counsel was appointed to represent him. We granted counsel’s motion
to withdraw pursuant to the procedures set forth in Pennsylvania v. Finley, 481 U.S. 551(1987), and affirmed the trial court’s judgment. People v. Brown, No. 1-12-2413 (2013)
(unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶ 34 In November 2013, defendant filed a postconviction petition in which he asserted a litany
of claims, including a claim of ineffective assistance of counsel. His ineffective assistance
claim was based on counsel’s failure to inform the trial court that defendant had overheard an
assistant state’s attorney tell Murray the contents of previous witnesses’ testimonies, what she
was going to ask Murray during his testimony, and what she expected Murray to say in
response. No action was taken on the petition within 90 days. Therefore, the circuit court
advanced the petition to the second stage and appointed counsel for defendant. Defendant
subsequently filed a motion to proceed pro se, and the court granted defendant’s motion and
granted his counsel leave to withdraw.
¶ 35 The State filed a motion to dismiss defendant’s petition. Defendant responded and
submitted an affidavit in support of his claim. The court heard the parties’ arguments with
respect to the State’s motion and took the matter under advisement. Thereafter, defendant
sought, and the court granted, leave to supplement his petition with additional claims. The
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State filed a motion to dismiss the claims in defendant’s supplemental petition, and defendant
responded.
¶ 36 The circuit court entered a written order granting the State’s motion to dismiss defendant’s
postconviction petition and his supplemental claims. Defendant filed a motion to reconsider,
which the court denied. This appeal followed.
¶ 37 III. ANALYSIS
¶ 38 On appeal, defendant contends the well-pled allegations in his petition and affidavit
substantially showed that he was deprived of his right to the effective assistance of counsel.
Therefore, the court erred by dismissing his postconviction petition.
¶ 39 The Act sets forth a procedure under which a criminal defendant can assert his or her
conviction was the result of a substantial denial of his or her rights under the United States
Constitution, the Illinois Constitution, or both. People v. Hodges, 234 Ill. 2d 1, 9 (2009). The
Act contemplates a three-stage proceeding, which is initiated by the filing of a petition. Id.;
725 ILCS 5/122-1(b) (West 2012). The petition must “clearly set forth the respects in which
[the defendant’s] constitutional rights were violated.” 725 ILCS 5/122-2 (West 2012). The
defendant must attach affidavits, records, or other evidence to support his or her allegations or
shall state why they are not attached, but the petition need not contain argument or citation and
discussion of pertinent authority. Id.¶ 40 During the first stage, the trial court has 90 days to summarily dismiss petitions that are
frivolous. People v. Brown, 2015 IL App (1st) 122940, ¶ 43. If the court does not dismiss the
petition within 90 days, the matter advances to the second stage. At this stage, the court may
appoint counsel to represent defendant, and the State may either move to dismiss or answer the
petition. Id. If the petition is not dismissed at the second stage, it advances to the third stage
for an evidentiary hearing on the defendant’s claims. Id.¶ 41 Defendant’s petition was dismissed at the second stage on the State’s motion. A second-
stage dismissal is proper “where the defendant’s claims, liberally construed in light of the trial
record, fail to make a substantial showing of a constitutional violation.” People v. Turner, 2012
IL App (2d) 100819, ¶ 21. We accept as true all well-pled facts in the petition and affidavits
unless such facts are positively rebutted by the trial record. Id. We review de novo the second-
stage dismissal of a defendant’s petition. Brown, 2015 IL App (1st) 122940, ¶ 44.
¶ 42 When evaluating a claim of ineffective assistance of counsel, we apply a two-prong test
under which the defendant must prove his counsel’s performance fell below an objectively
reasonable standard and the deficient performance prejudiced him. Strickland v. Washington,
466 U.S. 668, 687 (1984); People v. Caballero, 126 Ill. 2d 248, 259-60 (1989). The defendant
must show that counsel’s performance was both objectively unreasonable under prevailing
professional norms and that there is a reasonable probability that, but for counsel’s errors, the
result of the proceeding would have been different. People v. Veach, 2017 IL 120649, ¶ 30.
The burden is on defendant to satisfy both prongs of the Strickland test, and the failure to
establish either defeats the claim. Id.¶ 43 Defendant asserts the conversation between the assistant state’s attorney and Murray
violated the court’s pretrial witness-exclusion order, and counsel’s failure to seek exclusion of
Murray’s testimony based on the violation denied him the effective assistance of counsel. We
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disagree. We find defendant has not made a substantial showing that he was prejudiced by trial
counsel’s allegedly deficient performance.
¶ 44 Presuming that the conversation with Murray violated the pretrial order, “[a] violation of a
court order excluding witnesses or prohibiting witnesses from discussing their testimony does
not result in the automatic exclusion of a witness’s testimony.” In re H.S.H., 322 Ill. App. 3d
892, 896 (2001). Rather, the court exercises discretion to determine whether the exclusion of
testimony is the appropriate remedy. Id. “The dominant inquiry is whether the inclusion or
exclusion of the testimony would prejudice the affected party.” Id. at 896-97. Thus, if counsel
had raised the issue at trial, the exclusion of Murray’s testimony would not have been
guaranteed.
¶ 45 Furthermore, even if we presume Murray’s testimony would have been excluded at trial, it
is unlikely the outcome would have been different. The record shows the three eyewitnesses,
M.O., A.M., and Singleton, all viewed defendant under circumstances that would permit a
positive identification. It is undisputed the shooting occurred in a residential area during the
daytime hours. All the witnesses viewed the shooting at close range. M.O. and A.M. were
playing outside next door to where Allmon fell to the ground, and Singleton was in his parked
car across the street. These eyewitnesses also provided consistent physical descriptions and
positively identified defendant as the shooter in photographs, a live lineup, and at trial.
Eyewitness identification is sufficient to support a conviction where it was made under
circumstances permitting a positive identification. People v. Slim, 127 Ill. 2d 302, 307 (1989).
¶ 46 The evidence against defendant was also overwhelming. M.O. testified she was outside
playing with A.M. and her sister when she heard gunshots and, after initially covering her sister
to protect her from the gunfire, she looked up and saw defendant standing over and shooting
Allmon, who lay on the ground. Defendant then got into the passenger seat of a “light blue
van,” which drove away quickly. Shortly after the shooting, M.O. described the shooter to a
police officer, stating he was a “light-skinned boy” with braided hair with clear or white beads
and was wearing an all-black outfit that included a “Coogi” jacket and a black hat.
¶ 47 A.M. testified she was outside playing with M.O. and M.O.’s little sister when she heard
gunshots. She looked to her left and saw defendant standing over and shooting Allmon, who
lay on the ground. Defendant then got into the passenger seat of a “bluish green” car, which
sped off. After the shooting, she told a police officer the shooter was “kind of tall,” “lanky,”
had “box braids” and light skin, and was wearing a black “Coogi outfit,” with black and white
shoes and a “hoodie.”
¶ 48 Singleton saw a “sky blue” station wagon drive to the area and let someone out. He “ducked
down” when he first heard gunshots and then looked behind him. He observed Allmon fall to
the ground and saw defendant fire “like five more shots” into Allmon’s back. He then observed
defendant walk toward the station wagon.
¶ 49 All three eyewitnesses testified consistently that defendant shot Allmon while Allmon lay
on the ground and then he entered the passenger side of a bluish vehicle which sped away from
the scene. Even without Murray’s testimony, the jury could have found defendant guilty of
shooting and killing Allmon. Since the outcome of his trial would not have been different
absent Murray’s testimony, defendant was not prejudiced by counsel’s performance and his
claim of ineffective assistance of counsel cannot be sustained. See People v. Beals, 162 Ill. 2d
497, 506-07 (1994) (finding no reasonable probability of different result where the State’s
evidence against the defendant was overwhelming).
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¶ 50 Defendant, however, points to numerous inconsistences in the eyewitnesses’ testimony and
contends he was prejudiced because Murray’s testimony “painted the eyewitnesses as reliable,
buttressing their identifications in front of the jury.” According to defendant, Murray testified
the eyewitnesses consistently described the shooter, including his hairstyle, but, in fact, the
eyewitnesses inconsistently described defendant’s hairstyle in their direct examinations at trial.
He claims this was particularly prejudicial as it related to Singleton’s testimony because
Singleton told the 911 operator he did not see the shooter. Defendant also asserts that Murray’s
testimony that a “Coogi” jacket was collected from defendant after his arrest bolstered the
eyewitnesses’ testimony that defendant was wearing a “Coogi” jacket, but on cross-
examination, Murray admitted defendant was wearing a different designer brand when he was
in custody. Finally, defendant notes that Murray’s description of the lineup identifications
improperly enhanced the reliability of the identifications in front of the jury where Murray
claimed Singleton had made his lineup identification voluntarily and that M.O. and A.M.
identified defendant without hesitation.
¶ 51 Minor inconsistencies between the descriptions of defendant’s hairstyle, i.e., whether he
had box braids, French braids, clear beads, white beads, or no beads, did not render their
identifications of defendant unreliable. See People v. Williams, 2015 IL App (1st) 131103,
¶¶ 74-75 (minor inconsistencies in eyewitnesses’ descriptions does not render positive
identifications unreliable). Nor did Singleton’s statement to the 911 operator that he did not
see the shooter and his failure to initially name defendant as the shooter render his
identification unreliable where he testified he was not “ducked down” in his car during the
entire occurrence, and he provided a reasonable explanation for his failure to name defendant
in his initial police encounter. We reiterate that where the eyewitness identification of
defendant was made under circumstances permitting a positive identification, it is sufficient to
sustain a conviction. Slim, 127 Ill. 2d at 307-08. We have determined that the identification
testimony of the eyewitnesses alone, without Murray’s testimony, is sufficient to sustain
defendant’s conviction.
¶ 52 In sum, because the eyewitnesses’ descriptions and identifications of the shooter were
positive and reliable, there is no reasonable probability the result of trial would have been
different but for counsel’s failure to seek exclusion of Murray’s testimony. Accordingly,
defendant’s petition did not set forth a substantial showing that he was deprived of his
constitutional right to the effective assistance of counsel, and the trial court properly dismissed
his postconviction petition.
¶ 53 IV. CONCLUSION
¶ 54 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 55 Affirmed.
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