People v. Lacy

SUPREME COURT CASES

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People v. Lacy

State: Illinois

Court: 1st District Appellate

Docket No: 1-09-2863 Rel

Case Date: 02/10/2011

Preview:FIRST DISTRICT SIXTH DIVISION FEBRUARY 10, 2011 No. 1-09-2863 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL LACY, Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County. No. 01 CR 22606 Honorable Douglas J. Simpson, Judge Presiding.

JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Justices Cahill and McBride concurred in the judgment and opinion. OPINION Following a jury trial, defendant Michael Lacy was convicted of aggravated criminal sexual assault and two counts of armed robbery. Judgment was entered on the verdict, and defendant was sentenced to 25 years' imprisonment. Defendant's conviction was upheld on appeal ( People v. Lacy, No. 1-05-2137 (2007) (unpublished order under Supreme Court Rule 23)), and defendant filed a petition for postconviction relief in which he claimed ineffective assistance of counsel. The postconviction petition was dismissed at the second stage of the proceedings, and defendant appeals. We affirm. BACKGROUND Defendant's arguments on appeal are focused on trial counsel's examination of a witness both during a hearing on defendant's motion to suppress and at trial. Defendant challenges counsel's examination of the witness during the suppression hearing and counsel's failure to use the pretrial testimony to impeach the witness' trial testimony. The two accounts are not identical

No. 1-09-2863 and accordingly, we set out the witness' testimony during each proceeding in detail. Defendant was arrested and charged in connection with an incident occurring on August 6, 2001, in Eastgate Park in Park Forest, during which three men threatened two victims with a gun, took the victims' property, and forced the female victim to perform oral sex on two of the men. Defendant and his two codefendants, Antonio Hale and Maurice Shelton, were charged with and indicted on 12 charges, including aggravated criminal sexual assault (720 ILCS 5/1214(a)(4) (West 2000)) and armed robbery (720 ILCS 18-2(a)(2) (West 2000)). Defendant filed a petition for severance of his case from that of his codefendants, which was granted. Motion to Suppress Defendant filed a motion to suppress certain identification testimony of the State's witnesses. In the motion, defendant claimed that the two victims, T.D. and Dorwin Vines, identified defendant in a photo array after viewing a police lineup in which they were unable to identify defendant. Defendant also claimed that he was the only person who was both in the photo array and the lineup and that he was the only man in either who was a light-complexioned African-American male. From the "grossly suggestive nature of the pre-trial confrontation," as well as from the circumstances surrounding the incident and the "vague description" of the offenders given to police by the witnesses, defendant requested that any pretrial and in-court identification of defendant be excluded. A hearing on the motion was held on November 18, 2004. In its opening statement, the State indicated that several of defendant's claims in the motion were factually incorrect. First, the State denied defendant's claims that T.D. viewed the photo array after the lineup but said that

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No. 1-09-2863 defendant was identified in the photo array prior to the lineup. The State also indicated that T.D. identified defendant both in the photo array and in the lineup, and that one of the codefendants was also present in both the photo array and the lineup. Defendant called Park Forest police officer Padilla as his first witness. Officer Padilla, an officer in the K-9 unit of the patrol division, testified that on the evening of August 6, 2001, he and two other officers responded to a call concerning a potential aggravated criminal sexual assault that had occurred in Eastgate Park. Officer Padilla went to the home of Vines, who had telephoned the police. Vines told Officer Padilla that three people had been involved in the incident and described them as being in their late teens, all wearing black, hooded sweatshirts and dark pants; the only physical characteristics provided were gender, race, and clothing. Officer Padilla further testified that he went to Eastgate Park that evening. He described himself as "pretty familiar" with the park, having been a Park Forest police officer for 25 years, and indicated that the park was a small park approximately a block from railroad tracks. He testified that at the time Vines indicated that the incident occurred, it was dark outside, and opined that the park was not well lit. Defendant also called T.D., the female victim, as a witness. She testified that on August 6, 2001, she was walking through Eastgate Park with Vines at approximately 9 or 9:30 p.m., when three unfamiliar men came up to them. T.D. said that two of the men were wearing hooded sweatshirts and the third was not. T.D. did not see where the men came from and was surprised by their presence. The men asked her and Vines if they smoked "weed"; they replied that they did not and kept walking. At that time, T.D. saw the men only briefly and did not pay any attention

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No. 1-09-2863 to them. After T.D. and Vines had gone a few feet, T.D. heard the men ask whether they should "get them," after which they came up to her and Vines, pointed a gun, and demanded her purse. T.D. testified that she was startled and scared when she saw the gun. T.D. further testified that they took her purse and Vines' watch and then, while she and Vines were standing next to each other, the men patted both of them down to see if they had anything else. The men told Vines to lie down on the ground; T.D. testified that one man went to Vines, while the other two stayed with her. They then told T.D. to remove all of her clothing; T.D. described the two men's positions as standing "at ten and two o'clock" in relation to her position. T.D. was upset and began crying. When asked how long the incident lasted, T.D. could not remember, but said that "[i]t felt like a long time. Like 10 minutes, maybe 15 minutes." She testified that Hale sat on a bench with her and she performed oral sex on him, after which defendant came over and forced her to perform oral sex on him; she then was forced to perform oral sex on Hale again. T.D. confirmed that this occasion was the first time she had seen any of the men, but testified that she was able to see the faces of the men well, and saw defendant's face for approximately three to four minutes while she was "doing him." T.D. testified that the incident occurred a few feet from two benches in the park. When asked whether there were lights near the benches, T.D. replied: "WITNESS: It was a light over the bench. DEFENSE COUNSEL: Over the bench? WITNESS: Yeah, like over part." On cross-examination, the State also asked about the lighting in the area:

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No. 1-09-2863 "PROSECUTOR: [W]hen you were in the park, it was night time but you said there was lighting over the bench; is that correct? WITNESS: Yes. PROSECUTOR: Is that the bench you were made to sit on beginning with Antonio Hale? WITNESS: Yes. PROSECUTOR: Did that light shine right down upon where you were sitting? WITNESS: It was probably like more to the left, but it was, you know, yeah, basically it did, but it was more -- it was like on the left, and it was shining over. PROSECUTOR: So it provided light on the bench where you were? WITNESS: Yes." After the incident, T.D. went to Vines' house, where they called the police. T.D. testified that when the police arrived, Vines did most of the talking because she was "shook up" from what had occurred. She could not provide a description that night because she was "so shooken up," but gave one the next day. After speaking with the police, she went to the hospital, and she returned to the police station the next day. T.D. testified on cross-examination that she met Detective Mannino for the first time when

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No. 1-09-2863 she went to the hospital; at that time, she was calmer and was able to describe the events of the night. When she spoke with Detective Mannino at the hospital, she gave him descriptions of all three men, including "a light skinned boy that had braids." However, on direct examination, T.D. testified that she spoke to Detective Mannino at the police station the day after the attack and gave him "a description of one that I remembered," who was later identified as Hale. She described the man as "a black guy with -- he was dark, had braids." On direct examination, T.D. recalled giving Detective Mannino a description of defendant as "light skinned with braids," but could not remember when that conversation took place. On August 9, 2001, T.D. was called back to view a computer screen of photographs. She agreed that looking at the computer screen was similar to looking through mug shots in a book and that they appeared on the screen approximately 12 at a time. T.D. recognized Hale from the first set of photographs and did not look any further after she had identified him. T.D. testified that after she identified Hale, the police officers asked her if she wanted to "do the other photographs," and she responded "no. I picked him out. I just knew that was him." T.D. testified that all of the people on the page were dark-skinned African-American males. Later, Detective Mannino called T.D. and told her that he "had the guy" and that the person apprehended had identified the other two men. After several days had elapsed, T.D. was called to the station again to view a lineup of six people. She recalled seeing a man with a light complexion and braids in the lineup; when she saw him, she testified that "I just had, I just knew it was him. I just knew. I just had a feeling." When asked whether that meant that she had no doubt when she saw defendant, she replied: "No. I am

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No. 1-09-2863 not saying it was no doubt, but you know, he just stood out, you know, out of all of them." T.D. acknowledged that defendant was the only person in the lineup with a light complexion and braids; none of the other men had a light complexion, and all of the other men had shaved heads. After identifying defendant in the lineup, T.D. identified defendant from a photo array; the photo array was not on the computer but consisted of six photographs on a file folder. T.D. also identified Shelton from the same lineup and photo array in which she identified defendant. However, on cross-examination, T.D. testified that she identified defendant and Shelton in the photo array prior to viewing them in a physical lineup. She testified that after identifying Hale, Detective Mannino came to T.D.'s home one morning approximately a week to 10 days later with a folder displaying a photo array of six photographs. All six of the men in the photographs were African-American, but they had different complexions and different hairstyles. T.D. testified that she recognized defendant's skin color and also testified that she recognized his face; he was not wearing braids in the photograph. When the State asked T.D. whether she recognized defendant only based on his skin color, she responded, "No. It was his face," and she said that she knew his face. T.D. also recognized Shelton in the same photo array. On redirect examination, T.D. repeated that she viewed the photo array including defendant and Shelton at her home and not at the police station as she had testified on direct examination; she said that when she testified on direct examination she "was talking about the other" photo array, when she had identified Hale. Later on the same day, T.D. went to the police station to view a police lineup, during which she identified defendant and Shelton. T.D. testified that she went into the room to view the

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No. 1-09-2863 lineup alone and that her instructions were to let Detective Mannino "know if anyone looks familiar." Detective Mannino did not "definitely tell" her that someone from the crime was in the lineup. During the lineup, all of the men were seated, then individually stood up and turned around. T.D. testified that Vines also viewed a lineup, although they did not view it together, and she did not tell him who she chose. The State questioned T.D. about her testimony on direct examination in which she testified that she identified defendant and Shelton in the physical lineup prior to identifying them in the photo array: "PROSECUTOR: So just for the record, the question I am asking you clearly is did you see the photo array first or the line up first? WITNESS: I seen the photo first. PROSECUTOR: Okay. So when [defense counsel] was asking you were you confused about what you had seen at what time? WITNESS: Yeah, he was, he was confusing me, yeah. PROSECUTOR: And just so we know for the record, we're calling the computer screen the photo array [and] the one with the real bodies the line up. So you saw the photo array in the morning. WITNESS: And then the line up.

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No. 1-09-2863 PROSECUTOR: In the evening? WITNESS: Yes." Detective Christopher Mannino, the lead detective on the case, also testified at the hearing and was able to supply exact dates for the steps of his investigation. Detective Mannino testified that in the early morning hours of August 7, 2001, he spoke with Vines, who gave him a description of the three men who had attacked him and T.D., saying that they were three male blacks roughly in their late teens. Detective Mannino also spoke briefly to T.D. at that time, and he spoke to her again at the hospital. At the hospital, T.D. provided Detective Mannino descriptions of all three men: "One was a male black with braids. She said he had distinctive facial features in his mouth and nose area. She described the second male black that was light skinned with braids; and then the third that was medium skinned, had a somewhat receding hairline, looked a little bit younger." On August 9, 2001, Detective Mannino contacted T.D. and Vines and had them come to the Park Forest police station to view a photo array on a computer.1 When they viewed the first screen of photographs, there was "spontaneous excitement," and both identified Hale as one of the attackers. After Hale subsequently identified defendant and Shelton, Detective Mannino arranged a photo array consisting of six photographs on a folder, including those two suspects. He showed T.D. the photo array on August 16, 2001, at her aunt's home, and also showed the photo array to Vines at his home on the same day. Both witnesses identified defendant in the

1

Detective Mannino's testimony did not specifically indicate whether T.D. and Vines

viewed the photo array separately or together. 9

No. 1-09-2863 photo array, and T.D. also identified Shelton; Detective Mannino testified that T.D. did not show any hesitancy in identifying defendant. Detective Mannino explained that the photographs in the photo array were individuals who had been arrested in Park Forest and that he had difficulty finding photographs that were similar to defendant's because defendant "has such a unique skin coloring." Detective Mannino also confirmed that both witnesses positively identified defendant despite his being bald in the photo array. After the witnesses identified defendant and Shelton, defendant and Shelton were arrested on the evening of August 16, 2001, and T.D. and Vines separately viewed a physical lineup containing them that same evening. T.D. positively identified defendant and Shelton; Vines identified defendant but was unable to positively identify Shelton. Detective Mannino testified that T.D. displayed no hesitancy in identifying defendant and that defendant was the first person she picked; Vines similarly displayed no hesitancy in identifying defendant. Detective Mannino confirmed that he had difficulty finding people for the lineup that had defendant's exact skin tone. In closing, defendant again argued that the photo array was viewed after the lineup and that T.D.'s account of the order of events changed on cross-examination. He also argued that her identification was unreliable, emphasizing that she had never seen defendant before, that the incident occurred at night in a park that was not well lit, under circumstances "so startling and excitable" that immediately after the incident, T.D. was unable to provide a description of any of the men. Defendant further argued that the descriptions given by T.D. and Vines were vague and that "thousands of people running around the south suburbs of Chicago" fit the description of a light-skinned African-American teenager with braids. Defendant ended his argument by again

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No. 1-09-2863 emphasizing that due to the "the trauma involved in this incident," T.D.'s "opportunity and her degree of attention at the time of the incident should really be called into question." During its closing, the State argued that the lineup and photo array were not suggestive and that the identifications made were reliable. Additionally, the State argued that T.D. had an opportunity to view defendant at the time and that the circumstances did not impede her memory. As part of its argument, the State noted: "It might not be a well lit park, Judge, but she had said it happened almost immediately underneath a light post. May be [sic] the park's not that well lit, but this person and his cohorts decided to make their attack where it is well lit, Judge. That is unimpeached." In ruling on the motion, the trial court noted that "I have viewed the photo array and the line up, and based on the testimony I heard here today, neither are perfect." However, the court found that the lineup and photo array were not so unduly suggestive as to cause a misidentification and denied defendant's motion to suppress the identification. Trial On April 26, 2005, defendant's trial began. The State indicated that it would be proceeding on four counts of the indictment, including two counts of aggravated criminal sexual assault and two counts of armed robbery. As its first witness, the State called T.D. T.D. testified that on August 6, 2001, she was 18 years old and had been visiting her aunt in Park Forest. Earlier that day, she had met Vines for the first time and had gone to his house to watch a movie.

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No. 1-09-2863 After the movie, it was late, and Vines walked T.D. to her aunt's house, which was approximately a block from Vines' house. On their way, they decided to stop at nearby Eastgate Park to "sit down and talk for a while." At approximately 11 p.m., she and Vines were walking through Eastgate Park when they encountered three men. The men asked if T.D. and Vines smoked "weed"; they responded that they did not and continued walking. T.D. testified that she and Vines "didn't think anything of that." After they had gone a few feet, T.D. testified that the men said "should we get them" and came up behind her and Vines. They turned around and saw the three men, one of whom was pointing a gun at them, "in our face." When T.D. turned around, the first thing she saw was "[t]he gun to the head." T.D. testified that she was able to see their faces, but they were wearing hooded sweatshirts. The State asked T.D. whether there was any lighting at the location, and T.D. responded, "Yes. It was like apartment buildings in the back of the park where there [sic] lights, you know." T.D. described Eastgate Park as having a path from the sidewalk to the "park."2 There was a bush along the path, where the men were standing when they first spoke. There was a bench facing the "park" and an open field on the other side of the "park." T.D. testified that there were townhouses either behind or in front of the "park," and the light came from there. She also indicated that there was a school across the street, and the parking lot for the school had "a lot of light."

2

From the record, the area referred to as the "park" appears to be a playground area

within Eastgate Park. 12

No. 1-09-2863 On cross-examination, T.D. explained more about the lighting: "DEFENSE COUNSEL: Now, on direct you told the State's Attorney about some town homes or other properties sitting near the park? WITNESS: Yes. *** DEFENSE COUNSEL: Any light in the park came from whatever reflection on those buildings? WITNESS: Right. The school and apartment buildings. DEFENSE COUNSEL: Now, in the park *** are there any lights posted in the park? WITNESS: No, there is not. DEFENSE COUNSEL: Any lamps or lanterns in the park? WITNESS: No. DEFENSE COUNSEL: Only light could possibly illuminate over the park area came from those buildings? WITNESS: Yes." When the men pointed the gun at T.D. and Vines, they told Vines to give them his watch and forced T.D. to give them her purse. The men then forced them to lie facedown on the ground; T.D. testified that she followed their directions and faced the ground. T.D. heard the men say that she did not have anything in her purse, and one of the men told T.D. to stand up and

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No. 1-09-2863 patted her down from behind. One of the men indicated that T.D. had a nice body and said that, since she did not have any money, she had to "do something" for them. The men told her to remove her clothing. T.D. testified that while the men were talking, they were "maybe on the side of" her and kept the gun pointed to the back of her head. T.D. removed her clothing very slowly until one of the men told her to hurry up or they would shoot her. T.D. testified that while she was removing her clothing, Vines was lying on the ground facing away from her, so he was unable to view what was happening. After she had removed her clothes, the men told T.D. that she needed to perform oral sex on them. The first man, Hale, sat on a bench and forced T.D. to sit on the bench and perform oral sex on him; defendant was standing next to T.D., holding a gun to her head. One of the men told T.D. to "do it right or I'm going to shoot you." T.D. testified on cross-examination that she was leaning "[s]omewhat forward to the side," and was "face down." Defendant then took T.D.'s head and forced her to perform oral sex on him while he was standing in front of her; Hale took the gun and pointed it at her. T.D. testified that she was "looking up." While T.D. was performing oral sex on defendant, three boys rode up on their bicycles, so defendant had T.D. stop and defendant and Shelton chased the boys away. T.D. was then forced to perform oral sex on Hale again until she stopped and said "shoot me." Hale then told T.D., "oh, it is going to be all right. Don't cry," and then "got up and left." T.D. testified that she had an opportunity to "get a good look at" the three men and had a clear view of their faces. She testified that she saw defendant's face clearly "[w]hen he came on the side of me. And, I had to suck his penis. I was sitting down, and I was looking up. And, also

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No. 1-09-2863 Antonio Hale `cause he was sitting down; and I had to look at him." She confirmed that there was enough light for her to be able to clearly observe their faces, their sizes, and their hairstyles. T.D. testified that the hoods on their sweatshirts were not up while she was performing oral sex on Hale and defendant, and there was lighting in the park. After the three men left, Vines stood and helped T.D. dress, collected her purse, and carried her to his mother's house. Vines told his mother what had occurred and they called the police. When the police arrived, T.D. talked to them briefly and gave a general description of "three black guys." They then went to the police station for a few minutes, where T.D. first met Detective Mannino, and then went to the hospital. At the hospital, T.D. was examined and a rape kit was collected; however, T.D. testified that neither defendant nor Hale had ejaculated into her mouth. At approximately 1 a.m., T.D. again spoke with Detective Mannino and gave him a "better" description of the three men. On August 9, 2001, T.D. went to the Park Forest police station, where she spoke to a police officer and described Shelton's facial features so that the officer could make a composite sketch on the computer, including a description that Shelton was a "dark guy" with a low cut hairstyle called a "fade." T.D. testified that she described the other two men for the police to make composite sketches, but the police did not make sketches of the other two men. On the same day, she viewed a photo array of images on the computer based on her descriptions of Hale, who she described as a "dark guy with braids," and defendant, described as "[l]ight skinned with braids." T.D. and Detective Mannino looked at approximately 12 images at once on the computer screen, and T.D. recognized Hale on the first page of photographs. T.D. testified that

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No. 1-09-2863 she continued looking at photographs, and saw a total of approximately 250, but was unable to identify anyone else. On August 16, 2001, T.D. viewed Hale in a physical lineup and identified him; she was alone with Detective Mannino in the room during the lineup, and he did not suggest to her who she should choose. Later that day, Detective Mannino came to her aunt's house with a folder containing six photographs and asked whether "anyone look[ed] familiar" to her. T.D. identified defendant and Shelton from the folder; she did not hesitate when identifying defendant. In the photograph, defendant was bald, but T.D. was able to identify him because she "kn[e]w his face." Later that day, Detective Mannino asked T.D. to come to the police station to view another lineup, and T.D. identified defendant and Shelton. T.D. acknowledged that defendant was the man in the lineup with the lightest complexion. T.D. also identified defendant in court, saying that she knew that he was the man who attacked her because "I will never ever forget. I'll never forget none of these faces." The State then had T.D. examine five photographs of Eastgate Park, including photographs taken in the evening where lights were visible, and also had her circle the area where the incident occurred. During cross-examination, defense counsel asked T.D. about her pretrial testimony that there were lights over the benches. T.D. clarified that there were no lights over the benches but that there was light coming from the apartment building behind the park. She opined that there was not enough light to read, but that there was enough light for children to play in the park. The State's second witness was Dorwin Vines. Vines testified to similar facts concerning

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No. 1-09-2863 the night of August 6, 2001, as T.D. had. Vines saw the faces of all three men, and said that there was lighting in the park; he later testified that he saw two of the men well. Since he was lying facedown on the ground, Vines was unable to observe what was occurring but was able to hear what was happening. Vines further testified that several days after the incident, he was asked to come to the police station to view photographs on the computer; he identified Hale. A few days later, Vines identified Hale in a physical lineup at the police station. On the same day, the police came to Vines' home and showed him several photographs, and Vines identified defendant. Vines identified defendant a second time when he selected him from a lineup. Vines also identified defendant in court. The State's third witness was Officer Padilla. Officer Padilla testified consistently with his pretrial testimony that he responded to the call of a sexual assault and armed robbery on August 6, 2001, and met with Vines. Officer Padilla then explained that he was a K-9 officer and had asked Vines to show him where the incident occurred so that the police dog could attempt to track where the offenders had gone. Officer Padilla testified that the dog tracked the scent across the street, to the school parking lot, over nearby railroad tracks, to a location approximately two blocks from 1935 River Street in Chicago Heights, which was where defendant was arrested. Officer Padilla also testified to the lighting surrounding the park and that the area with the benches where the incident occurred was approximately 500 feet from the main street. Captain Greg Baker of the Park Forest police department also testified, confirming that he arrested defendant and Shelton on August 16, 2001, outside 1935 River Street in Chicago Heights. Finally, the State called Detective Mannino, who testified consistently with his testimony

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No. 1-09-2863 during the motion to suppress concerning his investigation and the identifications made by T.D. and Vines. The State then rested its case, and defendant moved for a directed verdict, which was denied. Defendant called one witness in his defense, Samuel Bell, a private investigator. Bell testified that he took photographs of Eastgate Park at defendant's request at approximately 11 p.m. on March 12, 2005, and further testified that he needed to use the flash "because there is no lighting in that section down there." The jury found defendant guilty of aggravated criminal sexual assault of T.D. and armed robbery of both T.D. and Vines, and the trial court entered judgment on the verdict. Defendant filed a motion for a new trial, which was denied. Defendant was sentenced to 10 years' imprisonment on each of the counts of armed robbery, running concurrently, and 15 years' imprisonment on the count of aggravated criminal sexual assault,3 to run consecutively to the sentence for armed robbery. Defendant orally made a motion to reduce the sentence, which was denied. Defendant appealed his conviction, and we affirmed. People v. Lacy, No. 1-05-2137 (2007) (unpublished order under Supreme Court Rule 23). Postconviction Petition On June 24, 2008, defendant filed a petition for postconviction relief, in which he argued that his trial counsel was ineffective during the motion to suppress identification and at trial. Defendant argued that his trial counsel was ineffective during his motion to suppress because (1) counsel failed to view the scene of the crime, (2) counsel failed to view all of the mug shot

3

The two counts of aggravated criminal sexual assault were merged. 18

No. 1-09-2863 evidence of the Park Forest police department, and (3) counsel failed to properly question T.D. regarding her identification of the suspects. Defendant further argued that his trial counsel was ineffective at trial because (1) counsel failed to properly impeach T.D. with her testimony from the motion to suppress hearing, (2) counsel failed to present evidence that there was no lighting at Eastgate Park, (3) counsel failed to cross-examine T.D. regarding her ability to identify the suspects, (4) counsel failed to object to Officer Padilla's testimony concerning K-9 tracking, (5) counsel failed to cross-examine Officer Padilla about the K-9 tracking, and (6) counsel failed to call an alibi witness on defendant's behalf. Defendant also argued that the cumulative nature of the errors resulted in him receiving ineffective counsel. Defendant attached an affidavit from Matt Gross, a maintenance man working at the apartments near the park, stating that there was no artificial lighting in the park and that the closest light to the park was a single 70-watt recessed light approximately 120 feet from the benches. Defendant also attached an affidavit from the alibi witness, Brenda Rosemond. In her affidavit, Rosemond said that she was defendant's aunt and that defendant lived with her as a ward of the state. She further stated that defendant was living with her in Chicago at the time of the attack and that defendant was home with her for the entire night, beginning at 9 p.m.; her affidavit indicated that defendant was not permitted to go to Chicago Heights. Additionally, she stated that she had contacted the public defender's office to inform them of her willingness to testify and that she had met with the public defender's office. Defendant's petition was docketed on September 10, 2008, and on January 30, 2009, the State filed a motion to dismiss the petition for postconviction relief. The State argued that defendant's allegations should be barred due to res judicata or deemed waived. The State also

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No. 1-09-2863 argued that defendant failed to show that his trial counsel was ineffective. In his response to the motion to dismiss, defendant argued that res judicata and waiver should not apply because the failure to raise the issues on direct appeal resulted from ineffective assistance of appellate counsel. On May 1, 2009, the parties went before the trial court for hearing on the State's motion to dismiss. On September 4, 2009, the trial court ruled on the motion, finding that the petition was not barred by res judicata, but was barred by the waiver doctrine. The court additionally found that arguments that trial counsel did not visit the scene were speculative, that decisions about cross-examination and impeachment were trial strategy, and that the decision not to call an alibi witness was also trial strategy. The trial court also noted that the cumulative effect of any decisions by trial counsel did not rise to the level of ineffective assistance of counsel. The court then granted the State's motion to dismiss, finding that defendant had failed to make a substantial showing of a constitutional violation. This appeal follows. ANALYSIS On appeal, defendant argues that he made a substantial showing of a constitutional violation and that his postconviction petition should be allowed to proceed to the third stage for an evidentiary hearing. We affirm. Stages of a Postconviction Proceeding The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2000)) provides a means by which a defendant may challenge his or her conviction or sentence for violations of federal or state constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006) (citing People v. Whitfield, 217 Ill. 2d 177, 183 (2005)). To be entitled to postconviction relief, a

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No. 1-09-2863 defendant must show that he or she has suffered a substantial deprivation of his federal or state constitutional rights in the proceedings that produced the conviction or sentence being challenged. 725 ILCS 5/122-1(a) (West 2000); Pendleton, 223 Ill. 2d at 471 (citing Whitfield, 217 Ill. 2d at 183). In noncapital cases, the Act provides for three stages. Pendleton, 223 Ill. 2d at 471-72. At the first stage, the trial court has 90 days to review a petition and may summarily dismiss it, if the trial court finds that the petition is frivolous and patently without merit. 725 ILCS 5/1222.1(a)(2) (West 2000); Pendleton, 223 Ill. 2d at 472. If the trial court does not dismiss the petition within that 90-day period, the trial court must docket it for further consideration. 725 ILCS 5/122-2.1(b) (West 2000); Pendleton, 223 Ill. 2d at 472. The Illinois Supreme Court has held that, at this first stage, the trial court evaluates only the merits of the petition's substantive claim, and not its compliance with procedural rules. People v. Perkins, 229 Ill. 2d 34, 42 (2007). The issue at this first stage is whether the petition presents " ` "the gist of a constitutional claim." ' " Perkins, 229 Ill. 2d at 42 (quoting People v. Boclair, 202 Ill. 2d 89, 99-100 (2002), quoting People v. Gaultney, 174 Ill. 2d 410, 418 (1996)). In the case at bar, defendant's petition proceeded to the second stage. The Act provides that, at the second stage, counsel may be appointed for defendant, if defendant is indigent. 725 ILCS 5/122-4 (West 2000); Pendleton, 223 Ill. 2d at 472. After an appointment, Illinois Supreme Court Rule 651(c) (eff. Dec. 1, 1984) requires the appointed counsel: (1) to consult with petitioner by mail or in person; (2) to examine the record of the challenged proceedings; and (3) to make any amendments that are "necessary" to the petition previously filed by the pro se

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No. 1-09-2863 defendant. Perkins, 229 Ill. 2d at 42. Our supreme court has interpreted Rule 651(c) also to require appointed counsel "to amend an untimely pro se petition to allege any available facts necessary to establish that the delay was not due to the petitioner's culpable negligence." Perkins, 229 Ill. 2d at 49. The Act provides that, after defense counsel has made any necessary amendments to the petition, the State may move to dismiss it. Pendleton, 223 Ill. 2d at 472 (discussing 725 ILCS 5/122-5 (West 2000)). See also Perkins, 229 Ill. 2d at 43. If the State moves to dismiss, the trial court may hold a dismissal hearing, which is still part of the second stage. People v. Coleman, 183 Ill. 2d 366, 380-81 (1998). A trial court is foreclosed "from engaging in any fact-finding at a dismissal hearing because all well-pleaded facts are to be taken as true at this point in the proceeding." Coleman, 183 Ill. 2d at 380-81. A court reviewing a dismissal of a postconviction petition without an evidentiary hearing will do so de novo. People v. Edwards, 195 Ill. 2d 142, 156 (2001) (citing Coleman, 183 Ill. 2d at 389). In the case at bar, the trial court dismissed defendant's petition at the second stage. On appeal, defendant argues that counsel was ineffective at the motion to suppress and at trial, and claims that his arguments are not barred by res judicata or the doctrine of waiver because his appellate counsel was ineffective in failing to raise the claims on direct appeal. We consider each of defendant's arguments in turn. Ineffective Assistance of Counsel Standard The Illinois Supreme Court has held that, to determine whether a defendant was denied his or her right to effective assistance of counsel, an appellate court must apply the two-prong test set

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No. 1-09-2863 forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504 (1984) (adopting Strickland)). Under Strickland, a defendant must prove both (1) his attorney's actions constituted errors so serious as to fall below an objective standard of reasonableness; and (2) absent these errors, there was a reasonable probability that his trial would have resulted in a different outcome. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466 U.S. at 687-94). Under the first prong of the Strickland test, the defendant must prove that his counsel's performance fell below an objective standard of reasonableness "under prevailing professional norms." Colon, 225 Ill. 2d at 135; People v. Evans, 209 Ill. 2d 194, 220 (2004). Under the second prong, the defendant must show that, "but for" counsel's deficient performance, there is a reasonable probability that the result of the proceeding would have been different. Colon, 225 Ill. 2d at 135; Evans, 209 Ill. 2d at 220. "[A] reasonable probability that the result would have been different is a probability sufficient to undermine confidence in the outcome

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