Opinion
08-27-2013
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY CHATMAN, Defendant-Appellant.
NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the
the Circuit Court
of Cook County
No. 01 CR 19561
Honorable
Kevin Sheehan,
Judge Presiding.
PRESIDING JUSTICE delivered the judgment of the court.
Justices Quinn and Simon concurred in the judgment.
ORDER
Held: Defendant's postconviction actual innocence claim fails because the new evidence provided would not change the result upon retrial. Similarly, his three postconviction allegations of ineffective assistance of appellate counsel also fail because he cannot show that he was prejudiced by the alleged errors. Therefore, we hold that the circuit court did not err when it summarily dismissed defendant's petition because defendant failed to state the gist of a meritorious claim. ¶ 1 Defendant, Larry Chatman, appeals the dismissal of his petition for postconviction relief brought under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(West 2010)). The circuit court summarily dismissed the petition finding it frivolous and patently without merit. Defendant had been convicted of first degree murder following a joint but severed jury trial and sentenced to a 40-year prison term. In his postconviction petition, defendant raised five issues. Before this court, however, defendant only briefed four of those issues. First he asserts his actual innocence based on the outcome of his co-defendant Trevelle Jackson's appeal. In Jackson's appeal, this court suppressed Jackson's confession in which he implicated defendant. People v. Jackson, 374 Ill. App. 3d 93 (2007). Defendant also contends that his appellate counsel was ineffective for failing to raise on direct appeal the following issues: (1) whether his trial counsel was ineffective for failing to call two potential impeachment witnesses at his trial; (2) whether a detective's testimony regarding a witness's identification of defendant was improper hearsay; and (3) whether the circuit court improperly limited his trial counsel's cross-examination of the police detective regarding the lineup where a witness identified defendant. We hold that defendant's actual innocence claim fails because the new evidence would not change the result of his trial upon retrial. Similarly, his three allegations of ineffective assistance of appellate counsel also fail because he cannot show that he was prejudiced by the alleged errors. Therefore, the circuit court did not err when it summarily dismissed defendant's petition because defendant failed to state the gist of a meritorious claim.
¶ 2 JURISDICTION
¶ 3 On April 23, 2010, the circuit court denied defendant leave to file a successive postconviction petition. On May 24, 2010, defendant filed a motion to vacate the summary dismissal of his postconviction petition. On June 22, 2010, the circuit court denied defendant's motion to vacate the summary dismissal of his postconviction petition. Defendant timely appealed on July 13, 2010. Accordingly, this court has jurisdiction pursuant to Illinois Supreme Court Rule 651. Ill. S. Ct. R. 651 (eff. Feb. 6, 2013).
¶ 4 BACKGROUND
¶ 5 A more detailed recitation of the facts of defendant's initial appeal can be found in this court's order affirming his conviction, and do not need to be repeated here. People v. Chatman, No. 1-06-2990 (2009) (unpublished order under Supreme Court Rule 23). Two men shot and killed Anthony Redmond in the parking lot of the Spin Cycle Laundromat located at 4258 West Madison Street, in Chicago, Illinois, at around 12:15 p.m. on June 19, 2001. Sonja Haggard testified at trial on behalf of the State regarding the shooting. She traveled to the area by bus so that she could meet the father of her children. She testified that after exiting the bus, she "didn't see my kids father so I was going to stop at the church on the corner to buy a snowball." She stated, "[t]hey didn't have any ice so I had to make a phone call to call my kids father." She planned to cross the street to the laundromat to call her children's father, but then she saw two men standing outside the laundromat. She saw the two men pull guns from their waistbands and begin shooting Redmond. While trying to run, Redmond fell to the ground. The bigger of the two men ran over to Redmond and proceeded to shoot Redmond multiple times. Haggard identified the larger gunman as defendant both in court and in a police lineup. Although she was not able to identify the smaller gunman, Haggard testified that she was able to get a "good look" at defendant's face during the incident. The two gunmen fled in a car. ¶ 6 Jacob Wilder was in the laundromat at the time of the shooting. He testified that he saw Redmond running towards a car after he heard shouting coming from outside the laundromat. Wilder also stated that one of the gunmen was larger, and that the bigger one shot Redmond multiple times after Redmond fell to the ground. Although Wilder testified that he identified the bigger gunman in an earlier lineup, he answered "no" when asked if he remembered whom he identified. ¶ 7 Detective John Pellegrini testified that Wilder identified defendant as one of the gunmen in a lineup on July 16, 2001. When asked "[w]ho did *** Wilder pick [defendant] out as being," Detective Pellegrini answered "[o]ne of the shooters who shot the victim, and after the victim fell down, walked up to him and then continued shooting at the victim as he laid on the ground." The circuit court overruled defense counsel's hearsay objection. Detective Pellegrini also testified that Haggard identified defendant out of a lineup that was conducted on July 17, 2001. Detective Pellegrini testified that photographs of the lineups that Wilder and Haggard viewed, truly and accurately reflected the lineup as it appeared on July of 2001. ¶ 8 During cross-examination, the following exchange occurred between Detective Pellegrini, defense counsel, counsel for the State and the court:
"MR. PALMER [Assistant Public Defender]: Detective, pursuant to your part in this investigation, you stated that you were present when [Wilder] viewed a lineup, correct?
DETECTIVE PELLEGRINI: Yes.
Q. And in that lineup I'll draw your attention to what's been marked People's Exhibit Number 44. My client is the only big guy in that lineup, correct?¶ 9 Defendant's former girlfriend, Miriah Davidson, testified she was with defendant at a motel in Lyons, Illinois, during the evening of June 18 and the morning of June 19, 2001. She was not able to remember what time they checked out of the motel. Her house was less than a 20 minute ride away from the motel. She was certain that defendant then went to her home to eat and watch a movie. According to Davidson, defendant left "after school got out" at 2:30 in the afternoon. The manger of the motel testified that defendant checked in at midnight on June 19, 2001. The manager, however, was unaware what time defendant left the motel. ¶ 10 A jury convicted defendant of first degree murder. Prior to sentencing, defendant filed a pro se motion for a new trial alleging the ineffectiveness of his trial counsel. Later, both the public defender's office and defendant, pro se, each filed amended motions for a new trial. Relevant to this appeal, the public defender argued in its motion that the circuit court erred in permitting Detective Pellegrini to testify regarding Jacob Wilder's identification of defendant in a lineup. In his amended pro se motion for a new trial, defendant asserted that his trial counsel was ineffective for failing to procure key witnesses, which defendant did not name. On June 27, 2005, defendant, now represented by a private attorney after his trial counsel was allowed to withdraw, filed another amended motion for a new trial. Relevant to this appeal, defendant alleged that Detective Pellegrini's testimony regarding Jacob Wilder's identification of defendant was impermissible hearsay; that trial counsel was ineffective for failing to investigate and call witnesses on his behalf who could impeach Sonia Haggard's testimony; and that trial counsel was ineffective for failing to investigate and call eyewitnesses to the crime. ¶ 11 Maurice Williamson testified at the hearing on defendant's motion for a new trial. Williamson testified that he was at Mount Pilgrim Missionary Baptist Church at the time of the shooting. He was familiar with the SpinCycle Laundromat, which he described as being located "[a]pproximately a forty-five degree angle to the right of our church." He estimated that the church was 75 feet away from the laundromat. Williamson answered "[n]o" when asked wether his "church ever sold snow cones either at or in front of its church." Regarding the shooting, he testified as follows:
MS. NAZARIAN [Assistant State's Attorney]: Objection.
THE COURT: Basis.
MS. NAZARIAN: The picture speaks for itself, Judge.
THE COURT: Sustained.
MR. PALMER: My client is substantially larger than the other three people in that lineup, correct?
MS. NAZARIAN: Same objection.
THE COURT: Same question.
MR. PALMER: Then I ask to publish that picture to the jury at this time, Judge.
THE COURT: No. I'm not going to do that.
MR. PALMER: Thank you, Judge."
"Well, I was getting ready to go to the post office to get our mail for the day and I heard two, three shots, which is not uncommon in the area, and I just walked out the door and walked up the street, crossed the Laundromat lot, went around the corner and got our mail."Williamson had to walk past the laundromat to get to the post office. Initially, Williamson testified that he did not see any individuals get into a car, but later testified that he saw two men getting into one. He was not able to decipher the race of the two men. He did not see any females in the area around the laundromat wearing a purple dress, but he did answer "I did" when asked whether he saw "any females period." He walked out the door on the side of the church approximately five seconds after he heard the shots. Williamson estimated it took him approximately ten seconds to reach the street where he could see the laundromat. He was still able to see two men get into a car and drive away. He answered ,"[n]o" when asked whether "[a]t any time did you observe anyone run away in the direction towards your church." ¶ 12 On cross-examination, Williamson testified that when he walked to the laundromat he saw a "young man laying on the ground." He testified that the weather was "fairly nice" that day and agreed that "there were a lot of people out on the street or in the general area around the Laundromat and the street." He also agreed that the laundromat was large and busy because it was the middle of the day. Williamson further agreed with the question that "you weren't paying specific attention about anything when you walked out, you were thinking about going to the post office, right." When asked whether "[i]t's not uncommon for there to be self-employed street vendors or people traveling around the street selling items to people there, is it," Williamson agreed. On redirect examination, defense counsel asked Williamson whether there were any snow cone vendors out that day selling snow cones, to which Williamson replied "[n]ot by my church." ¶ 13 Lawrence Williams also testified on defendant's behalf at the hearing on the motion for a new trial. Williams testified that his home is next door to Praise Temple Baptist Church, where he is also a part-time security officer. He was at home at the time of the shooting. Upon hearing gunfire, Williams looked out his "front window to see who was shooting." He was asked whether he saw "any persons," to which he responded, "[n]o. I just saw people crowding up, looking toward the back toward the laundromat." He stressed that he only heard the gunshots, he did not see them. He testified that after he looked out his front window, the following occurred: "So I ran immediately to the back of my house inside my house, to the back porch, and I looked out and I saw a dead body. Its about 75, 80 feet away. I couldn't even recognize the guy." When he was asked what he did after seeing "this dead body on the ground," Williams answered "I went back to the front room and watched television." He testified that he did not physically go outside until three hours later. ¶ 14 Defense counsel also asked Williams about a woman named "Sonja," to which Williams answered, "I don't know her personally but I know what the fellas have told me about her." He had "seen her quite a bit up and down Madison street," in the same vicinity as the church and laundromat. He did not recall seeing "Sonja," at the time of the shooting nor did he see any woman wearing a purple dress. ¶ 15 On cross-examination, Williams testified that he did not know "Sonja's" real name. He clarified that, when he looked out his back porch, there were a lot of people. He agreed that a lot of people went to the area after the shots were fired. When asked whether he "didn't stand out there looking to see who everybody was," Williams answered "[n]o, I looked to see what happened, then the police came in and I just went on back in the house and watched television." ¶ 16 Lorenzo Palmer, the Assistant Cook County Public Defender who represented defendant at his original trial, testified on the State's behalf at the hearing on the motion for a new trial. During cross-examination, defense counsel asked him if he had ever spoken to Williams. Palmer said he had not because "[t]here was nothing in the police reports showing that he saw the faces of the offenders." Palmer also explained that Williams did not see the shooting. The circuit court denied defendant's motion for a new trial and defendant appealed. Defendant was sentenced to a 40-year prison term. ¶ 17 On direct appeal, defendant argued that the circuit court allowed the State to present improper motive evidence during closing arguments. This court affirmed defendant's conviction and sentence. People v. Chatman, No. 1-06-2990 (2009) (unpublished order under Supreme Court Rule 23). Our supreme court denied defendant's petition for leave to appeal. People v. Chatman, 232 Ill. 2d 585 (2009). ¶ 18 On February 24, 2010, defendant filed his petition for postconviction relief making five claims. Defendant's first claim was a claim of actual innocence based on newly discovered evidence. The newly discovered evidence defendant relied on was the outcome of his co-defendant's, Trevelle Jackson's, appeal. People v. Jackson, 374 Ill. App. 3d 93 (2007). This court, in Jackson, remanded the matter for a new trial, holding that Jackson's conviction and sentence must be reversed and the confession Jackson made to the police, suppressed. Id. at 109. Defendant, in the instant petition, alleged that he was only arrested after Jackson's confession implicated him in the crime. According to defendant, without his co-defendant's suppressed confession and the resulting illegal arrest, the State's evidence in his own trial "amounted to no more than a mere modicum of evidence which is insufficient to" prove his guilt beyond a reasonable doubt. ¶ 19 Similar to his first claim, defendant's second claim was also based on his co-defendant Jackson's confession. Specifically, defendant alleged that his trial counsel was ineffective for failing to file a motion to quash his arrest based on Jackson's confession, which was ultimately suppressed by this court. Id. ¶ 20 Defendant's third claim was that his appellate counsel was ineffective for failing to allege, on direct appeal, that defendant's trial counsel was ineffective for failing to call two potential witnesses at defendant's trial: Maurice Williamson and Lawrence Williams. According to defendant, the witnesses in question would have impeached Haggard's trial testimony related to identification. ¶ 21 Defendant's fourth claim was that his appellate counsel was ineffective for failing to allege, on direct appeal, that Detective Pellegrini's testimony regarding the lineup identification by Jacob Wilder was improper hearsay. ¶ 22 Defendant's fifth and final claim was that his appellate counsel was ineffective for failing to allege, on direct appeal, that the circuit court improperly limited his counsel's cross-examination of Detective Pellegrini. According to defendant, his counsel was not able to properly cross-examine Detective Pellegrini concerning the size difference between the individuals in the lineup Wilder viewed and from which he identified defendant. Defendant alleged that he was the only "large person" in the photograph of the lineup which he alleged shows the identification's unreliability. ¶ 23 Defendant attached an affidavit to his petition that he prepared for himself. In it, he attested that he prepared the petition pro se, that the matters discussed therein were both true and correct, and that he was unable to procure several documents for various reasons including: "General Progress Reports;" "Sonya Haggard's statement and grand jury testimony;" a statement made by Haggard to Detective James Sanchez and Assistant State's Attorney Daniel Kirk; and "[t]he said documents alleged in paragraph 2 and 3." ¶ 24 On April 23, 2010, the circuit court summarily dismissed defendant's postconviction petition, finding it frivolous and patently without merit. The circuit court found defendant's evidence was not "newly discovered or indicative of [defendant's] innocence." The circuit court characterized defendant's allegations as "bald, conclusory allegations of either [defendant's] or his co-defendant's constitutional rights with respect to the trial." Additionally, the circuit court pointed out that defendant never stated in his petition that he was actually innocent. Rather, he only asserted that had his co-defendant's statement and confession been suppressed, he would not have been implicated in the crime. Furthermore, the circuit court noted that defendant did not argue that his own arrest was illegal, only that his co-defendant's arrest was illegal. The circuit court reasoned that defendant did not have standing to challenge the constitutional violations of his co-defendant. The circuit court further found that defendant's ineffective assistance of appellate counsel claims were without merit. ¶ 25 On May 24, 2010, defendant filed a motion to vacate the summary dismissal of his postconviction petition. On June 22, 2010, the circuit court denied defendant's pro se motion to vacate. On July 13, 2010, defendant filed his notice of appeal.
The photograph of the lineup Wilder viewed was marked as "People's Exhibit Number 44" while the photograph of the lineup Haggard viewed was marked as "People's Exhibit 6."
Defendant's final amended motion for new trial stated that all prior motions for a new trial filed both by himself, the public defender's office, or by his current counsel, were incorporated into the then current motion. The new information in the final amended motion does not contain anything relevant to defendant's postconviction petition and does not need to be addressed here.
¶ 26 ANALYSIS
¶ 27 The Act allows a criminal defendant to challenge his or her sentence or conviction based on violations of his or her constitutional rights. People v. Pendleton, 223 Ill. 2d 458, 471 (2006). Its purpose "is to permit inquiry into constitutional issues involved in the original conviction and sentence that were not, nor could have been, adjudicated previously on direct appeal." People v. Peeples, 205 Ill. 2d 480, 510 (2002). A petition under the Act is a collateral proceeding, not an appeal. People v. Williams, 209 Ill. 2d 227, 232 (2004). Therefore, res judicata bars issues previously decided on appeal. Id. at 233. Similarly, issues not raised, even though they could have been raised on appeal, are waived. Id. ¶ 28 At the first stage of proceedings, at issue here, the circuit court independently reviews the petition without any input from the parties. People v. Brown, 236 Ill. 2d 175, 184 (2010). In doing so, the circuit court may look to any actions taken by this court, any transcripts, and the court file. Id. Citation to legal authority and legal argument are not required of a defendant at this stage of proceedings as the defendant only needs to provide a limited amount of detail. Id. Specifically, our supreme court has explained the standard as follows:
"The allegations of the petition, taken as true and liberally construed, need only present the gist of a constitutional claim. [Citation]. This standard presents a 'low threshold' [citation], requiring only that the petitioner plead sufficient facts to assert an arguably constitutional claim [citation]." Id¶ 29 A pro se defendant, however, must provide some factual detail concerning the alleged deprivation of his or her constitutional rights. Id. at 184 ("A pro se petitioner is not excused, however, from providing any factual detail whatsoever on the alleged constitutional violation."). Furthermore, the Act provides that "[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2010). This requirement allows for the allegations to be corroborated independently and objectively. People v. Hodges, 234 Ill. 2d 1, 10 (2009). " 'Thus, while a pro se petition is not expected to set forth a complete and detailed factual recitation, it must set forth some facts which can be corroborated and are objective in nature or contain some explanation as to why those facts are absent.' " Id. (quoting People v. Delton, 227 Ill. 2d 247, 254-55 (2008)). Furthermore, "the affidavits and exhibits which accompany a petition must identify with reasonable certainty the sources, character, and availability of the alleged evidence supporting the petition's allegations." Delton, 227 Ill. 2d at 254. As such, failure to provide such documentation, or to explain its absence, justifies the summary dismissal of a petition at the first stage. Id. at 255; see also People v. Harris, 224 Ill. 2d 115, 126 (2007) ("The failure to comply with section 122-2 is fatal and by itself justifies the petition's summary dismissal."). ¶ 30 Although the Act provides for three stages of review of a defendant's petition, the circuit court may, at the initial stage of proceedings, "dismiss postconviction petitions that are 'frivolous or *** patently without merit.' " People v. Domagala, 2013 IL 113688, ¶32 (quoting 725 ILCS 5/122-2.1(a)(2)(West 2010)). The circuit court may only dismiss the petition at the first stage of review if the petition "has no arguable basis either in law or fact." Domagala, 2013 IL 113688, ¶32. Our supreme court has described such petitions as follows:
"A petition lacking an arguable basis in law or fact is one 'based on an indisputably meritless legal theory or a fanciful factual allegation.' [Citation]. A claim completely contradicted by the record is an example of an indisputably meritless legal theory. [Citation]. Fanciful factual allegations include those that are fantastic or delusional." Brown, 236 Ill. 2d at 185.Our review of the summary dismissal of a petition at the first stage is de novo. Id. at 185. As such, we may affirm the judgment of the circuit court on any basis supported by the record. People v. Lee, 344 Ill. App. 3d 851, 853 (2003). ¶ 31 Before we address the issues raised in defendant's brief below, we initially note that defendant raised five issues in his postconviction petition, but only briefed four of those issues before this court. Defendant's second claim in his petition was that his trial counsel was ineffective for failing to file a motion to quash his arrest based on the suppression of his co-defendant's confession as stated in this court's opinion in People v. Jackson, 374 Ill. App. 3d 93 (2007). We do not, however, need to address this issue even though it was in defendant's petition because he does not raise it in his brief before this court. Accordingly, defendant has waived review of this contention by failing to argue it in his brief before this court. Ill. S. Ct. R. 341(h)(7) (eff. Feb. 6, 2013) (stating points not argued in appellant's brief are waived); Ill. S. Ct. R. 612 (eff. Feb. 6, 2013) (stating Rule 341 applies to criminal appeals). We also note that defendant did not file a reply brief before this court. With these principles in mind, we will address each of defendant's claims that he has raised in his brief before this court.
¶ 32 Actual Innocence
¶ 33 In his petition, defendant makes a claim of actual innocence based on newly discovered evidence, i.e., the outcome of his co-defendant, Trevelle Jackson's, appeal. People v. Jackson, 374 Ill. App. 3d 93 (2007). As discussed earlier, Jackson's confession to the police, where he implicated defendant, was suppressed after Jackson's appeal. Id. Before this court, defendant does not address the actual innocence aspect of his claim, rather, he only argues that he has made a viable constitutional claim because his own "arrest derived from the illegal arrest and illegal statement made by Trevelle Jackson." ¶ 34 In response, the State argues that defendant's claim has no basis in law because defendant does not have standing to challenge the legality of his co-defendant's arrest. The State additionally argues that his co-defendant's statements established probable cause for defendant's arrest such that defendant's own arrest and subsequent admissions "were not fruits of the poisonous tree." The State argues that defendant's claim has no basis in fact because it is fantastic and delusional. Specifically, it is fantastic and delusional because it asks that the police ignore Jackson's statements implicating defendant. ¶ 35 The due process clause of the Illinois constitution allows postconviction petitioners to make free standing claims of actual innocence based on newly discovered evidence. People v. Washington, 171 Ill. 2d 475, 489 (1996). To be considered a free standing claim of innocence, "the newly discovered evidence being relied upon 'is not being used to supplement an assertion of a constitutional violation with respect to [the] trial.' " People v. Hobley, 182 Ill. 2d 404, 443-44 (1998) (quoting Washington, 171 Ill. 2d at 479). "For new evidence to warrant a new trial, the evidence (1) must be of such conclusive character that it will probably change the result on retrial; (2) must be material to the issue, not merely cumulative; and (3) must have been discovered since trial and be of such character that the defendant in the exercise of due diligence could not have discovered it earlier." People v. Orange, 195 Ill. 2d 437, 450-51 (2001). "Evidence is considered cumulative when it adds nothing to what was already before the jury." Ortiz, 235 Ill. 2d at 335. ¶ 36 In this case, we hold that defendant's actual innocence claim fails because he does not have standing to contest the legality of his co-defendant's arrest. This case is factually similar to People v. James, 118 Ill. 2d 214, 217-218 (1987)), a case where co-defendants each moved to suppress statements made following their respective arrests. The circuit court granted the co-defendant Meeks', motion but denied the defendant James', motion. Id. A jury subsequently found James guilty on all charges. Id. at 218. Our supreme court held that James did not have standing to contest the legality of Meeks' arrest, and explained:
"It is a fundamental principle that a claim to suppress the product of a fourth amendment violation can be asserted ' only by those whose rights were violated by the search or seizure itself.' Since [James'] own rights were not violated, he may not vicariously seek suppression of evidence as a remedy for such a violation of another's fourth amendment rights." Id. at 227.Our supreme court further reasoned that Meeks had "standing to seek suppression of the fruit of that arrest." Id. James, however, "may be aggrieved by the admission of the product of someone's illegal arrest, but his personal privacy rights have not been violated." (Emphasis in original). Id. ¶ 37 In the case at bar, as in James, defendant attempts to contest the legality of his co-defendant's arrest. His only argument that his own arrest was illegal is based entirely on his co-defendant's illegal arrest. Accordingly, we hold, like in James, that defendant does not have standing to contest the illegality of his co-defendant's arrest in this matter. Therefore, defendant's actual innocence claim fails because the evidence would not change the result of defendant's trial upon retrial due to his lack of standing to contest his co-defendant's arrest. Orange, 195 Ill. 2d at 450-51.
¶ 38 Ineffective Assistance of Appellate Counsel
¶ 39 The right to the effective assistance of counsel is guaranteed under both the federal and Illinois constitutions. Domagala, 2013 IL 113688, ¶ 36 (citing U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8). Ineffective assistance claims are analyzed under the standards set forth in Strickland v. Washington, 466 U.S. 668 (1984), as adopted by our supreme court in People v. Albanese, 104 Ill. 2d 504 (1984). Id. Specifically, a defendant, to be successful on a claim of ineffective assistance of counsel, must show that counsel was deficient and that he or she suffered prejudice as a result of counsel's deficient performance. Id.; People v. Easley, 192 Ill. 2d 307, 317 (2000) ("The test is composed of two prongs: deficiency and prejudice."). "Effective assistance of counsel refers to competent, not perfect, representation." People v. Hillenbrand, 121 Ill. 2d 537, 548 (1988). ¶ 40 To demonstrate counsel's deficient performance, "a defendant must overcome the strong presumption that the challenged action or inaction of counsel was the product of sound trial strategy and not of incompetence." People v. Clendenin, 238 Ill. 2d 302, 317 (2010). Counsel's performance is measured under "an objective standard of competence under prevailing professional norms." Easley, 192 Ill. 2d at 317. Accordingly, "the defendant must prove that counsel made errors so serious, and that counsel's performance was so deficient, that counsel was not functioning as the 'counsel' guaranteed by the sixth amendment." Id. ¶ 41 To establish prejudice, a "defendant must prove that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. Therefore, "[a] reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. As such, the results of the proceedings must be shown to be fundamentally unfair or unreliable. Id. at 318. The failure to demonstrate either deficient performance or prejudice is fatal to a defendant's claim of ineffective assistance of counsel. Clendenin, 238 Ill. 2d at 317-18. ¶ 42 In the context of a first stage summary dismissal of a postconviction petition, our supreme court has held that "a petition alleging ineffective assistance may not be summarily dismissed if (I) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that the defendant was prejudiced." Hodges, 234 Ill. 2d at 17. Our supreme court, however, has noted that allegations of ineffective assistance of counsel that are "broad" and "conclusory" are not permitted under the Act. Delton, 227 Ill. 2d at 258. Furthermore, a defendant cannot base claims of incompetent representation on conjecture or speculation. People v. Pecoraro, 175 Ill. 2d 294, 324 (1997). ¶ 43 The standards set forth under Strickland are the same standards we use to evaluate claims of ineffective assistance of appellate counsel. People v. Barrow, 195 Ill. 2d 506, 522 (2001). "As applied to claims involving the failure of appellate counsel to raise a particular issue, the defendant must show that the failure to raise the issue was objectively unreasonable and that, but for this failure, a reasonable probability exists that the sentence or conviction would have been reversed." People v. Ward, 187 Ill. 2d 249, 258 (1999). We stress that our review of such a claim is governed by the standards set forth in Strickland, not on the basis of a defendant's preferences. People v. Williams, 209 Ill. 2d 227, 243 (2004). "Appellate counsel is not obligated to brief every conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues which, in his or her judgment, are without merit, unless counsel's appraisal of the merits is patently wrong." Easley, 192 Ill. 2d at 329. Accordingly, prejudice does not result from appellate counsel's failure to raise an issue unless the underlying issue has merit. People v. Childress, 191 Ill. 2d 168, 175 (2000). With these principles in mind, we analyze defendant's three claims of ineffective assistance of appellate counsel.
¶ 44 Failure to Argue that Trial Counsel Failed to Call Two Witnesses
¶ 45 Defendant argues that his appellate counsel was ineffective for failing to allege on direct appeal that trial counsel should have called two witnesses to testify on his behalf: Maurice Williamson and Lawrence Williams. According to defendant, Williamson and Williams' testimony would have impeached Haggard's testimony at trial. ¶ 46 In response, the State initially argues that defendant has waived review of this issue because defendant is raising the issue for the first time here and it could have been raised on direct appeal. Notwithstanding waiver, the State argues that trial counsel was not ineffective because the decision not to call Williams and Williamson to testify was a matter of trial strategy, which is immune from a claim of ineffective assistance of counsel. Furthermore, the State points out that neither Williams nor Williamson actually witnessed the shooting. Therefore, their testimony would not have changed the result of defendant's trial. ¶ 47 Initially, we note that we disagree with the State's contention that defendant waived this argument. The State is incorrect that defendant raised the issue for the first time here. The allegation is contained in his postconviction petition. Moreover, defendant's contention is not waived because the doctrine of waiver will be relaxed where the waiver stems from the ineffective assistance of appellate counsel. Williams, 209 Ill. 2d at 233 ("The doctrines of res judicata and waiver will *** be relaxed *** where the waiver stems from the ineffective assistance of appellate counsel"); Childress, 191 Ill. 2d at 174-75. In this case, defendant argued that his appellate counsel was ineffective for failing to raise the issue of trial counsel's ineffectiveness in not calling Williams and Williamson to testify during his trial. Accordingly, we will address defendant's contention on its merits. ¶ 48 Typically, "[d]ecisions concerning what witnesses to call and what evidence to present on a defendant's behalf are viewed as matters of trial strategy." People v. Munson, 206 Ill. 2d 104,139-40 (2002). Matters of trial strategy "are generally immune from claims of ineffectiveness of counsel." Id. at 140. "Counsel has only a duty to make a reasonable investigations or to make a reasonable decision which makes particular investigations unnecessary, and the reasonableness of a decision to investigate is assessed applying a heavy measure of deference to counsel's judgment." Pecoraro, 175 Ill. 2d at 324. It is not ineffective if an attorney forgoes additional investigation where the circumstances known to counsel at that time fail to reveal a sound basis for further investigation. Id. The value of the evidence also helps in determining whether counsel was incompetent for failing to investigate a claim. People v. Steidl, 177 Ill. 2d 239, 256 (1997). ¶ 49 In this case, we hold that trial counsel's decision to not call Williams or Williamson to testify was not objectively unreasonable. It follows, therefore, that appellate counsel was not ineffective for failing to raise the issue on direct appeal. Neither Williams nor Williamson actually witnessed the shooting. Both heard gunshots, and after the fact, investigated what happened. Williamson went outside and saw two men get into a car and drive away, but he could not identify them. Williams did not even leave his house. His testimony only established he heard gunshots, looked out his window and saw a dead body. We cannot say that either William's or Williamson's testimony would have made any difference in the outcome of the trial. Accordingly, there is no arguable basis for defendant's allegation. Hodges, 234 Ill. 2d at 17 ("a petition alleging ineffective assistance may not be summarily dismissed if (I) it is arguable that counsel's performance fell below an objective standard of reasonableness and (ii) it is arguable that defendant was prejudiced.") We hold appellate counsel was not ineffective for failing to raise this issue on direct appeal.
¶ 50 Hearsay Testimony
¶ 51 Defendant's next contention is that his appellate counsel was ineffective for failing to raise on direct appeal the issue of whether Detective Pellegrini's testimony regarding the lineup where Jacob Wilder identified defendant was improper hearsay testimony. ¶ 52 In response, the State asserts that defendant's argument has no merit as it was proper under section 115-12 of the Code of Criminal Procedure of 1963 (Criminal Code) (725 ILCS 5/115-12). Specifically, Wilder, the declarant, testified at trial and was subject to cross-examination. Therefore, his statement to Detective Wilder identifying defendant as one of the shooters was admissible under section 115-12 of the Criminal Code. Id. ¶ 53 Section 115-12 of the Criminal Code, titled "Substantive Admissibility of Prior Identification," provides, in relevant part:
"A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a person made after perceiving him." 725 ILCS 5/115-12 (West 2010).Section 115-12 of the Criminal Code provides a statutory exception to the general prohibition against hearsay. People v. Emerson, 189 Ill. 2d 436, 480 (2000). " 'Under section 115-12, a witness' prior statement of identification is admissible as substantive evidence in a criminal trial when testified to by the witness or by a third person, such as a police officer, who was present when the witness made the identification.' " Id. (quoting People v. Hayes, 139 Ill. 2d 89, 140 (1990)). ¶ 54 In this case, Wilder, the declarant, testified at defendant's trial and was available for cross-examination. Therefore, the identification statement was properly admitted. Accordingly, prejudice does not result from appellate counsel's failure to raise this issue because it lacks merit. Childress, 191 Ill. 2d at 175. Therefore, defendant's claim that his appellate counsel was ineffective lacks merit and was properly rejected by the circuit court.
In his brief before this court, defendant asserts that "trial counsel did not object to the bolstering testimony." Our review of the record, however, shows that trial counsel both objected at trial and included the issue in defendant's motion for a new trial. Appellate counsel, however, did not raise the issue on direct appeal.
¶ 55 Cross-Examination
¶ 56 Defendant's final argument before this court is that his appellate counsel was ineffective for failing to raise, as a point of error on direct appeal, the issue of whether the circuit court improperly limited his counsel's cross-examination of Detective Pellegrini. Specifically, defendant points out that his counsel was not able to cross-examine Detective Pellegrini regarding the size difference between himself and the other members of the lineup. Defendant alleges he was the largest man in the lineup, which he characterizes as "suggestive." ¶ 57 In response the State argues that appellate counsel was not ineffective for failing to raise this issue because the circuit court did not abuse its discretion in limiting the cross-examination of Detective Pellegrini. The State contends that defendant was able to effectively cross-examine Detective Pellegrini. ¶ 58 In this case we hold that defendant cannot show that his appellate counsel was ineffective for failing to argue on direct appeal that he was denied the right to effective cross-examination because his claim is speculative. Section 122-2 of the Act provides that "[t]he petition shall have attached thereto affidavits, records, or other evidence supporting its allegations or shall state why the same are not attached." 725 ILCS 5/122-2 (West 2010). Furthermore, "[a] defendant cannot rely on speculation or conjecture to justify his claim of incompetent representation." Pecoraro, 175 Ill. 2d at 324. In this case we have no idea whether the photograph of the lineup showed that defendant was significantly larger than the rest of the individuals in the lineup. Detective Pellegrini did not testify that defendant was the largest person in the lineup. The photograph of the lineup is not in the record before this court. As discussed earlier, defendant's affidavit is the only evidence, record, or affidavit attached to his petition. Notably absent from his petition is any record, evidence, or affidavit, from any source, that corroborates defendant's contention that he was the only large person in the complained of lineup. ¶ 59 Defendant's allegation here is similar to situations where a postconviction defendant makes allegations that his trial counsel failed to call and or investigate a possible witness. It is well established that in such a situation, a postconviction defendant must provide an affidavit from the proposed witness to support such an allegation. Harris, 224 Ill. 2d at 142 (quoting People v. Enis, 194 Ill. 2d 361, 380 (2000). The reasoning behind this requirement is that " '[i]n the absence of such an affidavit, a reviewing court cannot determine whether the proposed witness could have provided testimony or information favorable to the defendant, and further review of the claim is unnecessary.' " Id. (quoting Enis, 194 Ill. 2d at 380). In Harris, our supreme court held that a postconviction defendant whose only support for his allegation that trial counsel failed to investigate proposed witnesses was his own affidavit attesting to what the proposed witness would have said. Id. at 142. Our supreme court held that defendant failed to supply the evidentiary support to state the gist of a meritorious claim. Id. In this case, defendant has provided no evidence from any source to corroborate his allegation. As such, he has not provided the requisite evidentiary support for his allegation. Accordingly, we hold that defendant's claim that his appellate counsel was ineffective for failing to raise, as an issue on direct appeal, that the circuit court improperly limited his cross-examination of Detective Pellegrini is without merit. Therefore, prejudice does not result from appellate counsel's failure to raise the issue because it lacks merit. Childress, 191 Ill. 2d at 175. ¶ 60 Overall, defendant's allegation of his actual innocence fails because the new evidence provided would not change the result upon retrial. Similarly, his three allegations of ineffective assistance of appellate counsel also fail as he cannot show that he was prejudiced by the alleged errors. Therefore, we hold that the circuit court did not err when it summarily dismissed defendant's petition because defendant failed to state the gist of a meritorious claim
¶ 61 CONCLUSION
¶ 62 The judgment of the circuit court is affirmed. ¶ 63 Affirmed.