People v. Griebahn , 2023 IL App (1st) 220299-U ( 2023 )

2023 IL App (1st) 220299-UNo. 1-22-0299
Order filed June 21, 2023
Third Division
NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the
limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 15 CR 14420
)
BRITTANI GRIEBAHN, ) Honorable
) Marc W. Martin,
Defendant-Appellant. ) Judge, presiding.
JUSTICE BURKE delivered the judgment of the court.
Presiding Justice McBride and Justice Reyes concurred in the judgment.
ORDER
¶1 Held: We affirm the second-stage dismissal of defendant’s postconviction petition over
her contentions that counsel on direct appeal rendered ineffective assistance by
failing to argue that police use of detection powder in a package containing
narcotics violated her Fourth Amendment rights and that the trial court improperly
limited cross-examination regarding an “alternate suspect” theory.
¶2 Following a bench trial, defendant, Brittani Griebahn, was found guilty of one count of
possession of a controlled substance (PCS) with intent to deliver and two counts of simple PCS
and was sentenced to 20 years’ imprisonment. On direct appeal, we affirmed her convictions over
No. 1-22-0299
her challenge to the sufficiency of the evidence of possession and her claim of ineffective
assistance of trial counsel. People v. Griebahn, 2019 IL App (1st) 171693-U. Defendant filed a
petition for postconviction relief, alleging that police use of ultraviolet theft detection powder
violated her Fourth Amendment rights, the State failed to prove that she knew that narcotics were
inside a package addressed to her, and raising multiple claims of ineffective assistance of trial
counsel and appellate counsel. Defendant now appeals from the second-stage dismissal of her
petition, contending that (1) police use of theft detection powder violated her Fourth Amendment
rights; (2) trial counsel rendered ineffective assistance by not filing a motion to suppress premised
on the use of detection powder; and (3) counsel on direct appeal rendered ineffective assistance by
not challenging the use of detection powder and by not raising the trial court’s limitation of her
cross-examination. For the following reasons, we affirm.
¶3 I. BACKGROUND
¶4 Defendant was charged with one count of PCS with intent to deliver (720 ILCS
570/401(a)(7.5)(A)(i) (West 2014)) and two counts of simple PCS (720 ILCS
570/402(a)(7.5)(A)(i) (West 2014); 720 ILCS 570/402(c) (West 2014)). We previously detailed
the evidence at trial in our order resolving defendant’s direct appeal. See Griebahn, 2019 IL App
(1st) 171693-U. We recite only those facts that are germane to the issues raised in this appeal.
¶5 A. Motion to Suppress Evidence
¶6 Prior to trial, defendant filed a motion to suppress evidence and a motion to suppress her
statements to police.1 The motion to suppress evidence alleged that defendant was arrested without
1
Defendant’s motion to suppress her statements, which the trial court granted in part and denied
in part, is not at issue in this appeal.
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a warrant or probable cause and that the narcotics at issue were “in the direct and actual possession
of another person located in the residence.”
¶7 Mount Prospect police detective William Ryan and U.S. postal inspector Michael Todd
testified at the hearing on defendant’s motion to suppress evidence. Their testimony established
that, in July 2015, federal law enforcement intercepted a package at O’Hare International Airport,
addressed to defendant at 1094 South Tamarack Drive, apartment 485 in Mount Prospect, with a
return address in Germany. A dog sniff indicated that narcotics were inside the package, and a
field test confirmed that the package contained methylenedioxymethamphetamine (MDMA, also
known as ecstasy) inside a DVD case. A Department of Homeland Security (DHS) agent conveyed
this information and the package to Mount Prospect police. On July 22, 2015, Ryan obtained an
anticipatory search warrant authorizing a search of “[a]ny person taking control of a US Postal
Service black envelope addressed to Brittani Griebahn, 1094 S. Tamarack Drive, number 485,
Mount Prospect, Illinois.” That day, Todd installed a light sensor that activated when the package
was opened and a trip wire that activated when the DVD case was removed from the package. A
court order authorized the installation of these devices. 2 Todd then left a delivery slip at the
apartment. Approximately an hour later, a woman whom Todd identified as defendant called him;
Todd arranged a delivery time for the next day.
¶8 On July 23, 2015, Todd placed theft detection powder, which glowed when exposed to
ultraviolet light, on the exterior of the DVD case. At approximately 12:55 p.m. that day, Todd
went to 1094 South Tamarack dressed as a mail carrier while Ryan waited in a vehicle outside the
2
The exhibits that were admitted at the suppression hearing are not included in the record on
appeal.
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apartment building. Todd knocked on the door of apartment 485, and a man named Marek
Mikolajczyk answered. Mikolajczyk signed for the package and went back inside the apartment.
Todd returned to a postal vehicle outside, where Ryan was located, and the alarms for the light
sensor and trip wire activated within minutes. Ryan and other officers entered the apartment to
execute the search warrant and Todd entered after them. Ryan found defendant, whom he identified
in court, and Mikolajczyk in a bedroom and handcuffed them. Two detectives positioned outside
the bedroom window told Ryan that they saw an “unknown subject forcibly remove the screen”
and throw the DVD case out of the window; they recovered it. Ryan acknowledged that neither he
nor any officer under his command saw defendant take control of the package.
¶9 Todd entered the apartment after the officers and saw defendant, whom he identified in
court. Todd examined defendant’s hands with an ultraviolet light and saw “[a] large amount of the
ultraviolet powder” on both hands. He also saw a “miniscule amount” of ultraviolet powder on
one of Mikolajczyk’s hands. Todd identified photographs of the powder on defendant’s hands,
visible under the ultraviolet light.
¶ 10 Defendant argued that the anticipatory search warrant only authorized a search of the
person who took possession of the package, which, as far as the officers knew, was Mikolajczyk.
She also contended that Todd’s observation of detection powder on her hands was an illegal search
because it required the use of an ultraviolet light to see things that would not be visible to the
unassisted eye. The State argued that the officers were lawfully inside the apartment pursuant to
the search warrant and that the detection powder showed that defendant had taken control of the
package, which, along with the package being addressed to her, supported probable cause for her
arrest.
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¶ 11 The court denied defendant’s motion to suppress. The court found that “the officers had
probable cause to arrest defendant with or without a search warrant” because the package was
addressed to her, it was opened within minutes of delivery, and no one answered the door when
the police knocked, suggesting consciousness of guilt. The court also concluded that the detection
power showed that defendant “was the only person who was exerting control over this envelope
or package” and held “there was a proper search, whether it was incident to a lawful arrest or
incident to the achievement of the search warrant.”
¶ 12 B. Trial and Direct Appeal
¶ 13 At defendant’s bench trial, U.S. Customs and Border Protection officer Jeffrey De La Cruz
testified to the recovery of the package at O’Hare International Airport and its subsequent delivery
to DHS.
¶ 14 Ryan and Todd testified consistent with their testimony at the suppression hearing. Ryan
also testified that, on the kitchen counter of the apartment, he found the mailer envelope that the
DVD case was packaged in and the delivery slip that Todd left the day before. In addition, Ryan
found a plastic bag containing six yellow pills and two orange pills underneath the kitchen sink,
and empty capsules, digital scales, a cannabis grinder, and pipes commonly used to smoke
cannabis inside a kitchen cupboard. At the police station, defendant stated that “the package wasn’t
meant for anyone else and that Marek [Mikolajczyk], her boyfriend, should not be getting
arrested.” Mikolajczyk was released without charges.
¶ 15 During Todd’s cross-examination, the trial court sustained the State’s objections to some
of defendant’s questions about Todd’s conversation with Mikolajczyk during delivery of the
package, whether Todd told Ryan that Mikolajczyk accepted delivery of the package, whether
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Todd gave Ryan a description of Mikolajczyk, and whether Ryan showed Todd a photograph of
Mikolajczyk when Todd returned to the postal vehicle. During Ryan’s cross-examination, the court
sustained the State’s objections to defendant’s questions about whether Ryan knew that
Mikolajczyk was a narcotics trafficker from Central Europe, whether he investigated any
relationship between Mikolajczyk and the sender of the package in Germany, whether Mikolajczyk
lived in the apartment, whether he knew that Mikolajczyk was in the apartment at noon on July
23, 2015, whether he searched Mikolajczyk’s vehicle, and whether he designated Mikolajczyk as
a suspect in his police report.
¶ 16 Mount Prospect police detective Johnathan Juhl testified that he saw a screen fall out of a
second-floor window at the apartment building on July 23, 2015, and then a small item came out
of the window. He recovered the item, saw that it was a DVD case containing apparent narcotics,
and gave it to Ryan.
¶ 17 The parties stipulated to the chain of custody of the package between DHS and Mount
Prospect police. They also stipulated that the DVD case contained approximately 70 grams of
MDMA, and that the pills recovered from beneath the kitchen sink contained alprazolam.
¶ 18 The trial court found defendant guilty on all counts. Relevant here, the trial court found
that defendant opened the package because she had detection powder “all over her hands,” whereas
Mikolajczyk only had a few specks of detection powder on his. The court also noted that defendant
stated that the package was not meant for Mikolajczyk, that the package was addressed to her, that
she was present at the delivery address when police executed the search warrant, and that the DVD
case being thrown out the window demonstrated her consciousness of guilt. Defendant filed a
motion for a new trial, which the trial court denied. The court merged the counts and sentenced
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defendant to a total of 20 years’ imprisonment. Defendant filed a motion to reconsider sentence,
which was denied.
¶ 19 On direct appeal, defendant argued that the State failed to prove that she constructively
possessed the MDMA because the evidence showed that both it and the apartment belonged to
Mikolajczyk. Griebahn, 2019 IL App (1st) 171693-U, ¶ 24. Defendant also contended that trial
counsel rendered ineffective assistance because “he failed to challenge the validity of the
anticipatory search warrant on grounds that it did not explicitly give police authorization to insert
the theft detection powder into the package.” Id. ¶ 40. We affirmed defendant’s convictions. Id. ¶
57. With respect to defendant’s ineffective assistance claim, we explained that:
“even assuming that the officers erred in placing the theft detection powder in the package
without court authorization, we would nevertheless conclude that there was no prejudice.
The record supports that the anticipatory warrant was valid and supported by a sufficient
factual basis and it was also executed in accordance with its terms. As such, a motion to
quash would have been futile.” Id. ¶ 49.
¶ 20 C. Postconviction Proceedings
¶ 21 Defendant’s amended postconviction petition, which is at issue in this appeal, alleged two
claims of “plain error” and six claims of ineffective assistance of counsel. The “plain error” claims
alleged that (1) the officers’ warrantless use of detection powder in defendant’s mail violated her
Fourth Amendment rights; and (2) under the “unopened package doctrine,” the State failed to
prove that defendant knew what was inside the DVD case. Defendant alleged that trial counsel
rendered ineffective assistance by failing to (1) file a motion to suppress challenging the use of
detection powder; (2) file a motion for a new trial raising the “unopened package doctrine;” and
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(3) preserve challenges to Ryan’s testimony about defendant’s confession. Defendant also alleged
that counsel on direct appeal rendered ineffective assistance by failing to challenge (1) the
constitutionality of the use of detection powder; (2) the evidence of defendant’s knowledge of the
contents of the DVD case; and (3) the trial court’s limitation of her cross-examination regarding
Mikolajczyk.
¶ 22 The trial court advanced defendant’s petition to the second stage. The State filed a motion
to dismiss, which argued that defendant’s petition was “simply an attempt to relitigate the direct
appeal” and claims that should have been raised on direct appeal. The State also contended that
defendant’s “plain error” claims and her claim regarding the trial court’s limitation of cross-
examination would not have been successful on direct appeal had appellate counsel raised them.
In response, defendant argued that appellate counsel failed to cite case law in support of her
argument regarding the use of detection powder and failed to challenge the trial court’s limitation
of her cross-examination of Ryan, and that the State did not explicitly move to dismiss her claims
of ineffective assistance of trial counsel.
¶ 23 At oral argument on the State’s motion to dismiss, postconviction counsel was unable to
cite case law supporting his contention that the use of detection powder in defendant’s mail
violated the Fourth Amendment. Postconviction counsel also acknowledged that he presented no
evidence in support of his claim that Mikolajczyk was a confidential informant for the Mount
Prospect police, and that “you can call [that claim] speculation.”
¶ 24 The trial court granted the State’s motion to dismiss. Relevant here, the court found that
defendant’s claim that police violated the Fourth Amendment by inserting detection powder into
her mail without judicial authorization was procedurally barred because she could have raised it
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No. 1-22-0299
on direct appeal. The court also held that issue preclusion applied because, on direct appeal, we
rejected the essence of that claim in resolving defendant’s claim of ineffective assistance of trial
counsel for not filing a motion to suppress based on the use of detection powder. Next, the court
found that defendant forfeited her claims of ineffective assistance of trial counsel because they
could have been raised on direct appeal. In addition, the court concluded that appellate counsel did
“allege reversible error in connection with the theft detection powder” and that case law cited by
defendant did “not come close to showing a substantial denial of constitutional rights.” Finally,
the court found that appellate counsel’s decision not to challenge the trial court’s limitation of
defendant’s cross-examination was reasonable because trial counsel thoroughly cross-examined
Ryan and Todd, and because defendant was able to present her “alternate suspect theory” involving
Mikolajczyk to both the trial and appellate court.
¶ 25 Defendant timely appealed.
¶ 26 II. ANALYSIS
¶ 27 On appeal, defendant contends that we should reverse the second-stage dismissal of her
postconviction petition. Specifically, defendant appeals the dismissal of her Fourth Amendment
claim regarding police use of detection powder, one claim of ineffective assistance of trial counsel
for failing to file a motion to suppress evidence based on the use of detection powder, and two
claims of ineffective assistance of appellate counsel for failing to raise the detection powder issue
and the trial court’s limitation of cross-examination regarding Mikolajczyk as a potential “alternate
suspect” or police informant.
¶ 28 The Post-Conviction Hearing Act provides a three-stage process for a criminal defendant
to allege that her conviction was the result of the substantial denial of her constitutional rights. 725
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ILCS 5/122-1 et seq. (West 2014); People v. Myles, 2020 IL App (1st) 171964, ¶ 17. The trial
court dismissed defendant’s petition at the second stage. At the second stage, the trial court must
determine whether the petition and any accompanying documentation make a substantial showing
of a constitutional violation. Myles, 2020 IL App (1st) 171964, ¶ 17. If the defendant makes such
a showing, then she is entitled to a third stage evidentiary hearing. Id. The trial court may only
dismiss a petition at the second stage if the allegations, liberally construed in favor of the defendant
and taken as true, do not make a substantial showing of a constitutional violation. People v.
Sanders, 2016 IL 118123, ¶ 31. We review the second-stage dismissal of a postconviction petition
de novo (id.), meaning that we perform the same analysis that the trial court performed (In re N.H.,
2016 IL App (1st) 152504, ¶ 50).
¶ 29 A. Forfeiture
¶ 30 We first consider whether defendant has properly preserved her postconviction claims. “A
postconviction proceeding is a collateral attack on a final judgment, and constitutional issues that
were raised and decided on direct appeal are barred from postconviction consideration are barred
by the doctrine of res judicata, while issues that could have been raised, but were not, are
forfeited.” People v. Wilson, 2023 IL 127666, ¶ 22 (not yet released for publication and subject to
revision or withdrawal) (citing People v. Taliani, 2021 IL 125891, ¶ 53).
¶ 31 Defendant could have raised her Fourth Amendment claim regarding the use of detection
powder on direct appeal. That issue was apparent from the record when defendant filed her direct
appeal. During the hearings on defendant’s motion to suppress evidence and at trial, Detective
Ryan and Inspector Todd testified about the use of detection powder on the day of defendant’s
arrest. Because defendant did not raise this issue on direct appeal, she has forfeited it. Defendant’s
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related claim of ineffective assistance of trial counsel is also procedurally barred. On direct appeal,
defendant argued that trial counsel was ineffective because he did not “challenge the validity of
the anticipatory search warrant on grounds that it did not explicitly give police authorization to
insert the theft detection powder into the package.” Griebahn, 2019 IL App (1st) 171693-U, ¶ 40.
Defendant’s postconviction claim that trial counsel rendered ineffective assistance by failing to
file a motion to suppress that challenged the use of the detection powder is the same as the claim
that we rejected on direct appeal (see id. ¶ 54), so it is barred by res judicata.
¶ 32 That leaves defendant’s claims of ineffective assistance of appellate counsel. A
postconviction petitioner can avoid forfeiture by framing claims that could have been raised on
direct appeal as claims of ineffective assistance of appellate counsel. People v. Addison, 2023 IL
127119, ¶ 23 (not yet released for publication and subject to revision or withdrawal) (citing People
v. Turner, 187 Ill. 2d 406, 413 (1999)). Defendant’s petition alleged that appellate counsel rendered
ineffective assistance by failing to challenge (1) the constitutionality of the use of detection
powder; (2) the evidence of defendant’s knowledge of the contents of the DVD case; and (3) the
trial court’s limitation of cross-examination regarding Mikolaczyk. She appeals only the dismissal
of the first and third claims. These two claims of ineffective assistance of appellate counsel are not
procedurally barred, so we will address their merits.
¶ 33 B. Ineffective Assistance of Appellate Counsel
¶ 34 To establish that appellate counsel was ineffective, a defendant must satisfy the standard
set out in Strickland v. Washington, 466 U.S. 668 (1984), and adopted by the Illinois Supreme
Court in People v. Albanese, 104 Ill. 2d 504 (1984). People v. English, 2013 IL 112890, ¶ 33.
Under the Strickland standard, a defendant must show both that appellate counsel’s performance
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was deficient and that, but for counsel’s errors, there is a reasonable probability that the appeal
would have been successful. Id. Appellate counsel is not obligated to raise “ ‘every conceivable
issue on appeal;’ ” rather, counsel must “ ‘exercise professional judgment to select from the many
potential claims of error that might be asserted on appeal.’ ” Id. (quoting People v. Williams, 209
Ill. 2d 227, 243 (2004)). That is, appellate counsel is not required to raise issues that he or she
reasonably determines are not meritorious. Id. ¶ 34.
¶ 35 1. Detection Powder
¶ 36 Defendant contends that appellate counsel should have argued that police use of detection
powder on the DVD case violated her Fourth Amendment rights because it was not authorized by
the anticipatory search warrant or any other court order. Appellate counsel raised this issue on
direct appeal, albeit framed as a claim of ineffective assistance of trial counsel. Specifically,
appellate counsel argued that “trial counsel provided constitutionally deficient assistance because
he failed to challenge the validity of the anticipatory search warrant on grounds that it did not
explicitly give police authorization to insert the theft detection powder into the package,” and that
defendant “was prejudiced by this alleged error because the theft detection powder evidence was
the State’s strongest evidence connecting her to the MDMA.” 3 Griebahn, 2019 IL App (1st)
171693-U, ¶ 40. We did not reach the constitutional question of whether the Fourth Amendment
authorized the use of detection powder on the DVD case. Id. ¶¶ 48-49. However, we found that a
motion to suppress evidence premised on the allegedly unconstitutional use of detection powder
3
The record reflects that, at the suppression hearing, trial counsel argued that Todd’s use of an
ultraviolet light to see detection powder on defendant’s hands was an unlawful search under the Fourth
Amendment because it was a specialized technique that revealed things that would not be visible to the
unassisted eye. Counsel cited Kyllo v. United States, 533 U.S. 27 (2001) in support of this argument and
discussed other case law with the trial court.
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would have been futile because police recovered the MDMA pursuant to their lawful execution of
the valid anticipatory search warrant. Id. ¶ 49. The activation of the light sensor and trip wire
triggered the execution of that valid search warrant, not the detection powder. Id. ¶ 50. We also
found that “there was sufficient evidence to establish defendant’s guilt even without consideration
of the theft detection powder evidence,” so defendant could not “show that had counsel challenged
the theft detection powder as she asserts, there is a reasonable probability that the result of her trial
would have changed.” Id. ¶¶ 52, 54. Just as defendant could not establish prejudice on direct
appeal, she cannot establish prejudice with respect to her claim of ineffective assistance of
appellate counsel for failing to challenge the constitutionality of the use of detection powder.
Because trial counsel was not ineffective for not challenging the use of detection powder under the
Fourth Amendment, it follows that appellate counsel was not ineffective for not making the same
argument. See People v. Hayden, 338 Ill. App. 3d 298, 310 (2003).
¶ 37 Defendant contends that appellate counsel was ineffective in presenting this claim because
he did not cite legal authority in support of it. Defendant claims that counsel should have cited Ex
Parte Jackson, 96 U.S. 727 (1878) for the proposition that the Fourth Amendment protects a
person’s reasonable expectation of privacy in their sealed mail, and United States v. Jones, 565
U.S. 400 (2012), which held that the use of a GPS tracking device to monitor a vehicle was a
search within the meaning of the Fourth Amendment. However, the United States Supreme Court
has also held that a person has no legitimate interest in possessing contraband, and government
conduct that reveals only the possession of contraband does not implicate the Fourth Amendment.
Illinois v. Caballes, 543 U.S. 405, 408 (2005); see also People v. Hill, 2020 IL 124595, ¶ 29 (“No
one possesses a legitimate interest in contraband.”). That is the case here. The package at issue
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contained only illegal narcotics stored in a DVD case, and the use of detection powder revealed
only that defendant handled the DVD case containing the illegal narcotics. Even if appellate
counsel had cited the cases defendant identifies, we likely would have concluded that the use of
detection powder in this case did not violate the Fourth Amendment because defendant had no
legitimate privacy interest to protect.
¶ 38 In addition, federal case law addressing the use of detection powder holds that an ultraviolet
light examination of theft detection powder on a suspect’s hands is not a search that implicates the
Fourth Amendment. See, e.g., United States v. Williams, 902 F.2d 678, 681 (8th Cir. 1990); United
States v. Richardson, 388 F.2d 842, 845 (6th Cir. 1968). Williams also supports a finding that,
even if the Fourth Amendment applied, the use of detection powder and ultraviolet light
examination of defendant’s hands was justified by exigent circumstances because defendant could
have washed her hands, and that the ultraviolet light examination was a lawful search incident to
her arrest. See Williams, 902 F.2d at 681; see also United States v. Baron, 860 F.2d 911, 918 (9th
Cir. 1988) (ultraviolet light examination of the defendant’s hands was a lawful search incident to
arrest).
¶ 39 People v. McPhee, 256 Ill. App. 3d 102 (1993), which defendant cites, did not involve a
postconviction petition, a claim of ineffective assistance of appellate counsel, or the use of
detection powder. While McPhee has some factual similarities to this case, the central issue in
McPhee was trial counsel’s failure to move to suppress the warrantless search the defendant’s
home, which did not occur in this case. See McPhee, 256 Ill. App. 3d at 105-111. Accordingly, we
affirm the dismissal of defendant’s claim of ineffective assistance of appellate counsel for failure
to challenge the constitutionality of the use of detection powder in this case.
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¶ 40 2. Limitation of Cross-Examination Regarding Mikolajczyk
¶ 41 Defendant also contends that appellate counsel should have argued that the trial court erred
by limiting her cross-examination of Ryan and Todd regarding whether Mikolajczyk was an
“alternate suspect” or police informant. According to defendant, the trial court “completely
thwarted” the development of her theory that Mikolajczyk was “a narcotics trafficker known to
the Mt. Prospect Police Department who was using [defendant’s] name, address and apartment to
‘receive’ and intercept an international delivery of MDMA that he had ordered, possibly from a
person he knew in Europe.” Defendant also alleges that Mikolajczyk was “a recent parolee” and
“a high value ‘confidential informant’ for the Mt. Prospect Police Department,” which the State
did not disclose. Defendant contends that she “was not allowed to ask questions to determine if
this ‘confidential informant’ theory was true, or to lay the foundation for a mistrial.”
¶ 42 A criminal defendant has a constitutional right to cross-examine the witnesses against her.
U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; People v. Klepper, 234 Ill. 2d 337, 355
(2009). However, the trial court has discretion to impose reasonable limits on cross-examination
based on concerns regarding relevance, repetition, prejudice, confusion of the issues, harassment,
and the witness’s safety. Klepper, 234 Ill. 2d at 355. Alternate suspect evidence is subject to the
standard relevance inquiry, and the trial court may exclude speculation regarding alternate
suspects. People v. Mayberry, 2020 IL App (1st) 181806, ¶ 39 (citing People v. Kirchner, 194 Ill.
2d 502, 539 (2000)). The ultimate question is “whether [the] defendant’s inability to make the
inquiry created a substantial danger of prejudice by depriving [her] of the ability to test the truth
of the witness’s direct testimony.” (Internal quotations omitted.) Klepper, 234 Ill. 2d at 356. We
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consider the record in its entirety and the alternative methods available to the defendant to impeach
the witness. Id.¶ 43 Defendant has not established prejudice with respect to this claim of ineffective assistance
of appellate counsel. Defendant cross-examined the State’s witnesses on, inter alia, how Todd
applied the detection powder to the DVD case, how Ryan obtained Mikolajczyk’s photograph and
contact information, the fact that no officer saw defendant holding the package, and the lack of
fingerprinting of the package and DVD case. Her cross-examinations of Ryan and Todd span more
than 70 pages of the reports of proceedings. The trial court only limited some of defendant’s cross-
examination on her theory that Mikolajczyk ordered the MDMA from a relative in Germany. There
was no constitutional issue with this limitation of defendant’s cross-examination. See People v.
Edwards, 218 Ill. App. 3d 184, 194 (1991) (a constitutional issue does not arise merely because
defendant was prohibited from pursuing one particular line of questioning). Had counsel raised
this issue on direct appeal, we would have reviewed the trial court’s rulings for abuse of discretion.
See People v. Wilson, 2012 IL App (1st) 092910, ¶¶ 23-24 (abuse of discretion standard applies to
review of a trial court’s limitation of cross-examination when no constitutional issue exists). Abuse
of discretion is the most deferential standard of review next to no review at all. People v. Holman,
402 Ill. App. 3d 645, 650 (2010). Given that standard of review, it is unlikely that defendant would
have prevailed on this issue had appellate counsel raised it.
¶ 44 Moreover, we conclude that a more thorough presentation of defendant’s “alternate suspect
theory” would not have changed the outcome of trial. Even if defendant had elicited evidence that
Mikolajczyk ordered the MDMA from a relative in Europe and arranged for its delivery to
defendant’s apartment, that would not have negated defendant’s possession of the MDMA in the
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apartment on July 23, 2015. Possession of contraband can be joint, so Mikolajczyk was more akin
to an accomplice than an alternate suspect whose possession of the MDMA would vindicate
defendant. See People v. Givens, 237 Ill. 2d 311, 338 (2010). Moreover, defendant’s suggestion
that Mikolajczyk was an undisclosed confidential informant for the Mount Prospect police is
speculation. If defendant had evidence to suggest that was the case, she should have presented it
in support of her postconviction petition. Altogether, the record indicates that not allowing
defendant to shift blame to Mikolajczyk via cross-examination of Ryan and Todd had no impact
on the outcome of trial. Appellate counsel did not render ineffective assistance by not raising that
argument.
¶ 45 Defendant argues that the applicable prejudice analysis asks not whether the outcome of
trial would have been different, but whether the trial court would have had a different impression
of Ryan and Todd’s credibility had she been allowed to cross-examine them about Mikolajczyk.
We disagree. This is a claim of ineffective assistance of appellate counsel, and prejudice in this
context means “a reasonable probability that, but for appellate counsel’s errors, the appeal would
have been successful.” See People v. Golden, 229 Ill. 2d 277, 283 (2008). For the appeal to have
been successful, appellate counsel would have had to show that the trial court abused its discretion
in limiting cross-examination about Mikolajczyk. See Wilson, 2012 IL App (1st) 092910, ¶¶ 23-
24. In making that determination, we would have viewed the trial record as a whole (see Klepper,
234 Ill. 2d at 356), not the impact on Ryan or Todd’s testimony alone. For the same reasons, we
reject defendant’s contention that harmless error analysis applies to “the constitutionally improper
denial of [her] confrontation right.” Had counsel raised this issue on direct appeal, the abuse of
discretion standard would have applied for the reasons explained above.
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¶ 46 Defendant also contends that cross-examination would have undermined Ryan’s credibility
by showing his “favoritism or bias” toward Mikolajczyk. She insists that a showing of Ryan’s bias
in favor of Mikolajczyk would have undermined Ryan’s credibility about her statement that the
package belonged to her and not Mikolajczyk. Defendant claims that, in that scenario, she “might
not have waived her right to testify,” would have denied telling Ryan that the package belonged to
her, and could have “w[o]n the ‘he said/she-said’ credibility battle.” This imagined scenario is far
too speculative to support postconviction relief, and defendant’s affidavit attached to her petition
provides no support for it. More broadly, even if defendant showed that Ryan treated Mikolajczyk
favorably, that would not have supported an inference that Ryan testified untruthfully about the
evidence against defendant, nor would it have negated defendant’s guilt for PCS. Accordingly, we
affirm the second-stage dismissal of defendant’s postconviction petition.
¶ 47 III. CONCLUSION
¶ 48 For the foregoing reasons, we affirm the dismissal of defendant’s post-conviction petition.
¶ 49 Affirmed.
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