Opinion
1-20-0110
09-29-2021
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GREGORY HAYNES, Defendant-Appellant.
This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County No. 10 CR 5414 Honorable Carol M. Howard, Judge presiding.
JUSTICE BURKE delivered the judgment of the court. Presiding Justice Gordon and Justice Ellis concurred in the judgment.
ORDER
BURKE, JUSTICE
¶ 1 Held: The summary dismissal of defendant's postconviction petition is affirmed where defendant's claims of ineffective assistance of counsel are patently without merit as the trial record and defendant's exhibits attached to his petition show they have no arguable basis in fact or law.
¶ 2 Following a bench trial, defendant Gregory Haynes was found guilty of first-degree murder of Terrell Thomas and sentenced to 55 years' imprisonment. Defendant's conviction was affirmed on direct appeal. People v. Haynes, 2017 IL App (1st) 150590-U. Defendant later filed a petition for postconviction relief, raising various claims of ineffective assistance of trial and appellate counsel. Defendant appeals from the first-stage dismissal of his petition, arguing that the circuit court conflated the standards for first- and second-stage postconviction proceedings and imposed a higher burden of proof on him. For the following reasons, we affirm.
¶ 3 I. BACKGROUND
¶ 4 We previously set forth the facts from defendant's trial in Haynes, 2017 IL App (1st) 150590-U. We discuss them briefly here to the extent necessary, supplementing from the record where relevant.
¶ 5 A. Bench Trial
¶ 6 The trial evidence showed that on March 8, 2008, defendant was at a birthday party at someone's house with approximately 40 to 50 other people present. Defendant was playing cards in a bedroom with three other people, including the victim, Terrell Thomas, when he pulled out a gun and shot the victim. The State offered the testimony of four eyewitnesses who were in the room at the time of the shooting.
¶ 7 Krystal Kennedy testified that defendant previously told her that he did not like the victim and that the victim was involved in the killing of defendant's cousin. Kennedy shared this information with the victim and his friend, Jason Greenfield, who was the father of her baby. Kennedy testified that defendant was "real drunk" at the party and threw up. At some point, the victim arrived at the party with his friends: Greenfield, "Lonnie" or Marshall Stewart, and Michael Baker. Kennedy sat down at a table in the bedroom to play cards with another female, Brandi Thompson, and defendant and the victim. She testified that Stewart and Baker stood behind defendant at the table. As they were playing cards, defendant pulled out a gun, shouted something to the effect of "f*** this s***" and fired the gun at the victim. She could not recall if defendant was standing or sitting when he shot the gun. Stewart and Baker ran out of the room first. Defendant continued squeezing the trigger after the clip was empty, and he then ran out of the room. Kennedy testified that the victim raised his arms in front of his face during the shooting. The victim had cards in his hands and did not have a gun. Kennedy denied that there was an argument preceding the shooting. She went with the police to the station that night and identified defendant in a photographic lineup.
¶ 8 Thompson testified that she sat across from Kennedy and defendant sat across from the victim to play cards. There were six people in the bedroom. Defendant told the victim, "[w]e gonna beat they a***, so it's all right," referring to Kennedy and Thompson. She testified that no one was arguing and defendant was in a good mood and making jokes. She testified that they played a few rounds of cards, and then defendant pulled out a gun from under the table and shot the victim seven or eight times. Kennedy testified that there was no argument before the shooting; defendant just suddenly pulled out the gun. The first shot struck the victim's outstretched hand as he raised it in front of his body, and the remaining shots hit him in the chest. The victim did not have a gun. The victim's friends ran out of the room when defendant pulled the gun and she never saw them return to the bedroom. Defendant shot the gun until it emptied and then ran out of the room. Thompson later identified defendant in a photographic lineup and a live lineup and gave a written statement to police.
¶ 9 Stewart testified that he sat behind Kennedy as the card game started. Stewart did not see what the victim was doing immediately prior to defendant firing the gun. He was bent over picking up a drink that had been knocked over when he heard defendant state, "I'm sick of this s*** bro. This s*** is killing me." Then Stewart heard five shots. Stewart did not observe the victim with a weapon. Stewart testified that were "[n]o words, no confrontation whatsoever" by the victim before the shooting and no one threatened defendant. Stewart ran out of the room after the shooting, and later ran back in after everyone had come out. He saw a young woman trying to administer CPR to the victim. He did not see any weapon near the victim. He later spoke to police at the station and identified defendant in a photographic array. He testified that when he first encountered defendant at the party, defendant was throwing up and stated that he had been taking ecstasy, although Stewart did not tell police this in his handwritten statement.
¶ 10 Baker similarly testified that when he arrived at the party, he observed defendant vomiting on the floor. Baker and his friends entered the bedroom and the victim and defendant sat down to play cards with two females. Baker testified that neither he nor Stewart ever stood behind defendant while he sat at the card table. Baker testified that as they started dealing the cards, defendant leaned back, took out a black automatic handgun, and started shooting the victim in the chest. The victim raised his hands and said, "no, no." Baker testified that the victim did not have a weapon in his hands, he only had cards. Baker did not hear the victim and defendant argue or make any threats before the shooting. Baker and Stewart ran out of the house after the shooting and he never reentered the bedroom. Baker later identified a photograph of defendant.
¶ 11 The parties stipulated that eight 9-millimeter expended cartridge cases and three fired bullets were recovered at the scene and that they were fired from the same gun. The parties also stipulated to the admission of the testimony of forensic pathologist Dr. John Ralston, who performed the autopsy examination of the victim and concluded that he died of multiple gunshot wounds to the chest, abdomen, and arms and hands, and ruled his death a homicide.
¶ 12 In the defense case-in-chief, defendant and his cousin, Alexis Crenshaw, testified. Defendant testified that he had problems with Stewart, Baker, and the victim since grade school and he did not know they would be at the party. Defendant testified that he initially joked with the victim about beating the females at cards. As Thompson started dealing the cards, Stewart and Baker came up and stood behind him and Stewart said something. Defendant noticed that Stewart was frowning. Defendant testified that he then "jumped up like what the-I say what the F, and I pulled out the gun." Defendant testified that as he pulled out his gun, the victim rose from his seat and pulled out a gun, at which point defendant started shooting. Defendant testified that he reached for his gun first, in order to protect himself "from these guys that was coming up on me." He testified that Stewart was really close to him. He did not know if Stewart or Baker had a gun. Prior to defendant shooting, the victim did not threaten him or say anything to defendant. Defendant subsequently destroyed the gun, left the state, and obtained a driver's license in a different name.
¶ 13 Based on a pretrial motion, the defense offered evidence of the victim's violent character under People v. Lynch, 104 Ill.2d 194 (1984). Defendant testified that in 2001, he had a conversation with an individual who informed him that the victim had shot him in the stomach. In 2004, Crenshaw informed defendant that the victim had killed her boyfriend. Crenshaw also told defendant about an incident in 2000 when the victim pulled out a gun and stated that he "wanted to pop somebody." Further, defendant testified that in 2006, the victim shot at defendant while defendant was in a car.
¶ 14 The trial court found defendant guilty of first-degree murder, finding defendant was the initial aggressor and there was no imminent danger of harm. The court sentenced defendant to 55 years' imprisonment.
¶ 15 B. Direct Appeal
¶ 16 On direct appeal, defendant contended that the trial court conflated the legal standards for self-defense and second-degree murder and imposed a more onerous standard on the defense than legally required. Id. ¶ 43. In rejecting his argument, the appellate court found that the trial court applied the appropriate preponderance-of-the-evidence standard in considering defendant's theory of second-degree murder, but found defendant was the initial aggressor and did not establish an unreasonable belief in the need to defend himself. Id. ¶ 53. Defendant's subsequent appeals to the Illinois Supreme Court and the United States Supreme Court were both denied. See People v. Haynes, No. 123403 (May 30, 2018) (petition for leave to appeal denied); Haynes v. Illinois, 139 S.Ct. 1348 (2019) (petition for writ of certiorari denied).
¶ 17 C. Post-Conviction Proceedings
¶ 18 On September 19, 2019, defendant filed, through counsel, a petition for postconviction relief, raising claims of ineffective assistance of trial and appellate counsel. Defendant asserted that he was denied due process, equal protection, and effective assistance of counsel in violation of his Federal and State Constitutional rights through the following failures of his trial counsel: (1) allowing faulty forensic evidence to be admitted without checking the accuracy of the stipulation regarding Dr. Ralston's testimony; (2) failing to interview the forensic pathologist; (3) failed to consult defendant regarding the stipulation involving Dr. Ralston's testimony; (4) failing to argue that the physical evidence contradicted eyewitness testimony; (5) failing to object to the State's assertion that there were 11 shots fired into the victim; and (6) failing to cross-examine the four eyewitnesses regarding the 911 call and their statements made to the police. By extension, defendant argued that his appellate counsel (1) failed to raise these issues on direct appeal and (2) failed to raise on direct appeal the trial court's partial denial of his Lynch motion.
¶ 19 Defendant contended that there was no evidence of any bullet wounds to the victim's face or hands and that most of the bullet trajectory paths went upwards through the victim's body; only one went straight through and one traveled downwards. Defendant asserted that the eyewitness testimony conflicted with this physical evidence in that the eyewitnesses testified that the victim was unarmed, seated, and put his hands up to protect his face when he was shot. Defendant also argued that the initial police report indicated the 911 call was for a "well-being check," and not a shooting. He further argued that the police report indicated that witnesses at the scene told police that there was a verbal altercation before the shooting, which differed from the testimony of the eyewitnesses at trial. Regarding the Lynch issue, defendant asserted that the trial court denied evidence that the victim had previously beat up defendant's brother when they were teenagers.
Regarding the bullet wounds, the stipulated testimony from Dr. Ralston was as follows: (1) left lower chest-wound trajectory was front to back, left to right, and upwards; (2) right lower chest-wound trajectory was front to back, right to left, and upwards; (3) upper right abdomen-wound trajectory was front to back, right to left, and upwards; (4) left chest-wound trajectory was front to back, right to left, and downwards; (5) left lower chest-wound trajectory was front to back, right to left, and upwards; (6) left chest-wound trajectory is front to back; (7) left forearm-wound trajectory was from the front to the back; (8) left hand-wound trajectory was from back to front; (9) right wrist-wound trajectory was from front to back and downwards; (10) left elbow-wound trajectory was from back to front and upwards; (11) lower left arm-wound trajectory was from right to left.
¶ 20 In support of his petition, defendant attached the following exhibits: four redacted handwritten statements to the police made by individuals whose names were also redacted, a redacted Chicago Police Department (CPD) case supplementary report, a diagram of the victim's injuries, and a redacted CPD general offense case report.
¶ 21 Defendant's exhibit 1 was a handwritten statement from a female dated March 9, 2008; the name was redacted. This witness stated she was at the party on March 8, 2008, when they decided to play cards in an adjacent room. She testified that defendant sat across from the victim and she also sat at the table, along with another person whose name is redacted. She stated that the cards had been dealt when defendant stated, "I'm tired of this s***" and pointed a gun at the victim and started shooting. She stated that the victim had cards in his hands and did not have gun in his hands and that the victim was shocked and was not arguing with defendant.
¶ 22 Defendant's exhibit 2 was a handwritten statement dated March 10, 2008, from another female who name was redacted. She stated that defendant sat across from the victim to play cards on his team, stating, "that's ok as we are about to kick their a*** as they are females." The witness stated that a few minutes into the card game, defendant pulled out a handgun from under the table and fired six or seven shots into the victim's chest. Defendant continued to pull the trigger after the gun was empty. The witness stated that the victim only had cards in his hands at the time and had not threatened defendant in any way. The witness did not recall defendant saying anything before shooting. Defendant ran out of the room immediately after the shooting.
¶ 23 Defendant's exhibit 3 was a handwritten statement dated March 9, 2008, from a male whose name is partially redacted, but is possibly "Stuart" or "Lonnie." The witness stated that the victim was his cousin and he called him "LB." He stated that that while another player was dealing cards, defendant stood up and stated, "This s*** is killing me bro. I can't take it no more." Defendant took out a black-handled 9-milimeter handgun with a chrome top and shot directly at the victim. The witness stated that the victim was surprised and was not fighting or arguing with defendant at the time and did not have a weapon. The witness stated that defendant shot four to five times and then ran out of the room.
¶ 24 Defendant's exhibit 4 was another handwritten statement dated March 9, 2008, from a male whose name was redacted. This witness stated that he has known the victim since he was little and called him "LB." He stated that at the party, defendant sat across from the victim and two females sat across from each other. The witness stated that right before they started playing cards, defendant pulled out a black, semiautomatic handgun from his pants and fired several shots at the victim. He stated that the victim was not arguing with defendant and did not have a weapon in his hands. Defendant shot the victim four to five times and then ran out of the room.
¶ 25 Defendant's exhibit 5, the CPD case supplementary report, indicates, inter alia, that the victim died of multiple gunshot wounds and noted nine specific gunshot wounds and their location (six wounds to the chest/abdomen and three wounds to the arms/hands). Defendant's exhibit 6 was a diagram showing the location of the victim's gunshot wounds. Defendant's exhibit 7 was the CPD general case report indicating that officers responded to a call about a "well-being check" and found the victim on the floor with multiple gunshot wounds. The report notes that "witnesses on the scene stated that *** the victim and suspect were in an adjacent room playing cards when a verbal altercation erupted. At which time the suspect brandished a 9mm semiautomatic handgun and fired numerous rounds into the victim's upper torso area."
¶ 26 Defendant's postconviction proceedings occurred before the same trial judge. The court issued a written order on December 3, 2019, dismissing defendant's postconviction petition at the first stage. The circuit court found that the issues defendant raised were frivolous and patently without merit. It found that defendant's claims of ineffective assistance of counsel were entirely conclusory and his petition was "devoid of any facts supporting petitioner's contentions." The court found that defendant's exhibits actually supported the trial evidence and did not support any of his contentions in his petition. Defendant filed a timely appeal.
We note that defendant attempted to file a reply brief on appeal, which this court denied without prejudice because it was not separately submitted for filing. No reply brief has since been re-filed.
¶ 27 II. ANALYSIS
¶ 28 A. Standard of Review
¶ 29 The Post-Conviction Hearing Act (the Act) provides a three-stage mechanism by which a criminal defendant may assert that his conviction was the result of a substantial denial of his constitutional rights. 725 ILCS 5/122-1 (West 2010); People v. Delton, 227 Ill.2d 247, 253 (2008). A postconviction petition is a collateral attack on the trial court proceedings; as such, "issues raised and decided on direct appeal are barred by res judicata, and issues that could have been raised but were not are forfeited." People v. Tate, 2012 IL 112214, ¶ 8. The doctrines of res judicata and forfeiture serve as proper bases for first-stage dismissals. People v. Blair, 215 Ill.2d 427, 443 (2005).
¶ 30 At the first stage of proceedings, the defendant is required to set forth only the "gist" of a constitutional claim, and the circuit court may summarily dismiss the petition if it finds that the petition is frivolous or patently without merit, i.e., that it has no arguable basis in law or fact. People v. Hodges, 234 Ill.2d 1, 9, 16 (2009). "Meritless legal theories include ones completely contradicted by the record, while fanciful factual allegations may be 'fantastic or delusional.' [Citation.] In evaluating the allegations in the petition, the circuit court must take them as true and construe them liberally." People v. Allen, 2015 IL 113135, ¶ 25. We review the summary dismissal of a postconviction petition de novo. People v. Coleman, 183 Ill.2d 366, 389 (1998).
¶ 31 In evaluating defendant's claims of ineffective assistance of counsel presented in his postconviction petition, we follow the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668 (1984). Defendant must establish that counsel's representation fell below an objective standard of reasonableness, and that, but for this deficient performance, there is a reasonable probability that the outcome of the litigation would have been different. Id. at 694. There is a strong presumption that counsel's conduct fell within the wide range of reasonable professional assistance. Id. at 689. Defendant must satisfy both prongs of this test in order to prevail. People v. Simpson, 2015 IL 116512, ¶ 35. In applying the Strickland test to first-stage postconviction proceedings, our supreme court has explained that a lower pleading standard applies." 'At the first stage of postconviction proceedings under the Act, 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.'" (Emphases added in Tate) Tate, 2012 IL 112214, ¶¶ 19-20 (quoting Hodges, 234 Ill.2d at 9).
¶ 32 B. Defendant's Arguments on Appeal
¶ 33 On appeal from the dismissal of his postconviction petition, defendant does not specifically proceed claim-by-claim and contend that the claims in his petition were not frivolous or patently without merit. Rather, he argues that the circuit court (1) conflated the standards for first- and second-stage postconviction proceedings, and thereby imposed a greater burden of proof on defendant; (2) improperly imposed an affidavit requirement; (3) impermissibly resolved disputed factual issues; and (4) inappropriately determined that his trial and appellate counsels made strategic decisions. Defendant's approach overlooks the fact that this court reviews de novo the postconviction court's judgment dismissing his petition at the first stage. Coleman, 183 Ill.2d at 389. As such, we address defendant's issues on appeal within the context of determining whether the claims in his petition are frivolous and patently without merit.
¶ 34 1. Standard Applied to First-Stage Postconviction Proceeding
¶ 35 Defendant first argues that the circuit court conflated the standards for first- and second- stage proceedings and imposed a higher burden on him.
¶ 36 Our review of the circuit court's written opinion demonstrates that this claim has no merit. The circuit court set forth the proper legal standard in analyzing defendant's postconviction petition at the first stage, that is, whether defendant set forth the gist of a constitutional claim, and that it may summarily dismiss his petition if it had no arguable basis in fact or law. Hodges, 234 Ill.2d at 9, 16. Defendant argues in his brief on appeal, without further elaboration, that he stated the "gist" of a constitutional claim because the eyewitnesses should have been impeached because they testified that defendant was the only one who had a gun and their accounts conflict with the forensic evidence. However, defendant fails to further elaborate on this argument. His assertions do not contain citations to the record and he does not develop his assertions into a cohesive arguments, and has thereby forfeited them. See People v. Evans, 405 Ill.App.3d 1005, 1007 (2010) (citing Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013) ("Points not argued are waived ***.")); Vancura v. Katris, 238 Ill.2d 352, 369-70 (2010) ("[a]n issue that is merely listed or included in a vague allegation of error is not 'argued' and will not satisfy the requirements of" Rule 341(h)).
¶ 37 2. Affidavit Requirement
¶ 38 Defendant next contends that the trial court impermissibly imposed a requirement that he produce affidavits to support all of the allegations in his petition at the first stage.
¶ 39 Reviewing the circuit court's statements and written order, we disagree with defendant's characterization of the proceedings. The circuit court did not require him to produce an affidavit to support every allegation he made.
¶ 40 Section 122-2 of the Act specifically provides that "the petition shall *** clearly set forth the respects in which petitioner's constitutional rights were violated. The 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 2018). Indeed, "the failure to either attach the necessary 'affidavits, records, or other evidence' or explain their absence is 'fatal' to a postconviction petition [citation] and by itself justifies the petition's summary dismissal." People v. Collins, 202 Ill.2d 59, 66 (2002).
¶ 41 In accordance with this principle, the circuit court observed that the petition lacked "the necessary affidavits and other documentation required to support the allegations therein." Similarly, in its written order, the circuit court noted that it had reviewed defendant's attached exhibits-which were not affidavits-and specifically found that they did not support defendant's allegations in his petition and the petition contained "merely bald, conclusory allegations." "During first-stage review, a court may examine the trial record, the court file of the proceeding in which the defendant was convicted, any action taken by an appellate court in such a proceeding, any transcripts of such proceedings, and affidavits or records attached to the petition. These records should be reviewed in order to determine whether the petition's well-pleaded facts are positively rebutted by the record." People v. Diehl, 335 Ill.App.3d 693, 700 (2000) (citing 725 ILCS 5/122-2.1(c) (West 1998)). Here, the circuit court did not state that defendant was required to provide affidavits to support every claim. Rather, the circuit court permissibly examined the trial record and other proceedings and the exhibits defendant attached to his petition and determined that his allegations were positively rebutted, and/or not supported, by the record.
¶ 42 3. Factual Issues
¶ 43 Defendant next asserts that the circuit court improperly resolved disputed factual issues in favor of the State, citing the following excerpt from the circuit court's order:
"Contrary to petitioner's assertions, none of these proffered exhibits support any of the contentions made here within. Rather, they support the forensic evidence presented at trial (that there were seven chest wounds and four wounds to the victim's arms/hands). Furthermore, the statements given to the police are heavily redacted and do not include even the name of each person who gave a statement. Regardless of this fact, the provided specifics within the statements corroborate the testimony provided at trial and do not, in any way, indicate a failure on the part of trial counsel to cross-examine a witness. Moreover, the 911-phone call referenced in exhibit 7 does not point to any ineffectiveness of counsel. The shooting occurred in the bedroom of a house
during a very busy party. According to the witness statements, there were perhaps as many as forty people in the house and exhibit 7 makes no reference as to who may have called 911, nor does it give any substance of the call. Lastly, petitioner claims ineffective assistance of appellate counsel. However, petitioner provides no support whatsoever for this conclusory claim. The petitioner bears the burden in a post-conviction proceeding to establish a substantial deprivation of his constitutional rights. *** Here, petitioner's claims are merely bald, conclusory allegations, and thus, will not prevail on post-conviction review."
¶ 44 Defendant correctly states that, in reviewing his petition at the first stage, the court must take his allegations as true and construe them liberally. Allen, 2015 IL 113135, ¶ 25. Nevertheless, despite the lower threshold applicable to first-stage review, a pro se petitioner must still provide factual support for his claims, that is, a "sufficient factual basis to show the allegations in the petition are 'capable of objective or independent corroboration.'" Id. ¶ 24. As stated, during first-stage review, the circuit court is permitted to review the trial record, court file, and other proceedings and transcripts, in addition to the affidavits or other exhibits attached to the petition, in order to determine whether the allegations in the petition are positively rebutted by the record. Diehl, 335 Ill.App.3d at 700. "When the record sufficiently contradicts a pro se post-conviction petition containing a bare-bones statement of a violation of a constitutional right, the court has the authority to evaluate the claim in light of the record and determine whether or not the claim is frivolous or patently without merit." People v. Seaberg, 262 Ill.App.3d 79, 84-85 (1994). The excerpt defendant quotes from the circuit court's order merely demonstrates that the circuit court found defendant's allegations were positively rebutted by the record and were not supported by his exhibits, which is an appropriate finding during first-stage proceedings. Diehl, 335 Ill.App.3d at 700; Seaberg, 262 Ill.App.3d at 84-85.
¶ 45 Defendant continues on to specifically argue that he stated the gist of a constitutional claim because his trial counsel failed to cross-examine the eyewitnesses regarding the written statements made to the police. We observe that matters of trial strategy are ultimately the province of trial counsel and usually will not support a claim of ineffective assistance unless counsel "entirely fails to conduct any meaningful adversarial testing." People v. Guest, 166 Ill.2d 381, 394 (1995). See People v. Pecoraro, 175 Ill.2d 294, 326 (1997) (Whether to cross-examine a witness or impeach a witness constitute matters of trial strategy, and as such, "which will not support a claim of ineffective assistance of counsel").
¶ 46 We agree with the circuit court's assessment that the redacted witness statements merely serve to corroborate the trial testimony, and do not support defendant's postconviction allegations or demonstrate any ineffectiveness of counsel. The written statements defendant attached are heavily redacted and the identity of each witness is unknown. Even assuming the written statements were from the same individuals as the eyewitnesses who testified at trial, the written statements essentially corroborated the trial testimony and evidence. None of the statements indicated that they personally called 911 or spoke to police at the scene. Further, none of the statements indicated that the victim had a gun. In fact, they stated the opposite-that defendant pulled out a gun and started shooting and that the victim did not have a gun in his hands. Other than defendant's own testimony, there was no evidence that the victim had a gun. Additionally, the written statements also corroborated the eyewitnesses' testimony that there was no argument preceding the shooting. The statements did not contradict the trial testimony or otherwise show that trial counsel failed to cross-examine or impeach the trial witnesses about any aspect of the written statements that could have arguably benefited defendant's defense or shown ineffective assistance. Defendant was also not denied the right to confront witnesses as his counsel cross-examined each of the four eyewitnesses at trial regarding their observations. Accordingly, the trial court did not impermissibly "resolve factual issues" in determining that defendant failed to show that trial counsel's conduct arguably fell below an objective standard of reasonableness or that he arguably suffered any prejudice with regard to this particular claim. Tate, 2012 IL 112214, ¶¶ 19-20.
¶ 47 Defendant further contends that trial counsel failed to cross-examine the trial witnesses regarding the CPD general offense case report or interview or call the officers noted in the report. "It has been held that the failure to adequately prepare for trial by not conducting an investigation or by failing to interview witnesses known to counsel whose testimony may potentially exonerate defendant can support an ineffectiveness claim." People v. Coleman, 267 Ill.App.3d 895, 899 (1994).
¶ 48 As the circuit court aptly noted, this exhibit does not lend any factual support to defendant's claim that his trial counsel was ineffective for failing to cross-examine witnesses regarding the police report or interview or call as witnesses the officers involved in the report. The police case report indicated that officers responded to a call about a "well-being check" and found the victim on the floor with multiple gunshot wounds, and that "witnesses on the scene" told police that a verbal altercation occurred before defendant "brandished a 9mm semiautomatic handgun and fired numerous rounds into the victim's upper torso area." There were approximately 40 people in attendance at the party and the police case report does not indicate any names of individuals who spoke to the police, it does not provide the name of the individual who called the police, and it does not relate what the substance of the call entailed. The fact that someone called the police does not contradict the trial evidence or the trial witnesses' testimony. Whether officers were called for a well-being check or specifically for a shooting would not have impeached any of the testimony that the eyewitnesses gave at trial or aided defendant's defense. Further, although defendant faults his trial counsel for not cross-examining the eyewitnesses regarding the note in the police report that a verbal argument preceded the shooting, defendant, by his own admission, testified at trial that prior to shooting the victim, the victim did not threaten him or say anything to defendant. Defendant, by his own testimony, admitted that he was the initial aggressor who was the first to pull out a gun and shoot the unarmed victim.
¶ 49 What is more, counsel did, in fact, extensively cross-examine the trial eyewitnesses about the circumstances immediately preceding the shooting, including whether the victim had a gun; what defendant and the victim said before the shooting, if anything; where the witnesses were looking at the time defendant pulled out the gun and started shooting; and the witnesses' opportunity to observe the victim at the time. Accordingly, defendant's exhibit failed to support his argument and demonstrates that his claim was patently without merit. Seaberg, 262 Ill.App.3d at 84-85. Defendant failed to show that trial counsel's conduct arguably fell below an objective standard of reasonableness or that he arguably suffered any prejudice. Tate, 2012 IL 112214, ¶¶ 19-20.
¶ 50 Defendant next argues that counsel allowed "faulty forensic evidence" to be admitted into evidence. The police case supplemental report that defendant attached to his petition contains a section titled, "morgue supplemental report," which notes that the postmortem examination by Dr. Ralston found nine gunshot wounds to the victim. Defendant argues that this contradicted Dr. Ralston's stipulated trial testimony that there were eleven gunshot wounds. However, defendant fails to show how this discrepancy supports a "gist" of a constitutional violation. The summary report nevertheless mirrors Dr. Ralston's stipulated testimony in that the victim sustained multiple gunshot wounds to his chest, abdomen, arms, and hands. Even assuming there were nine gunshot wounds instead of eleven, the cause and manner of death remained the same, that is, homicide by multiple gunshot wounds. As such, we agree with the trial court that defendant failed to show that trial counsel's performance in that regard arguably fell below an objective standard of reasonableness or that he arguably suffered any prejudice. Tate, 2012 IL 112214, ¶¶ 19-20.
¶ 51 Defendant next contends that trial counsel failed to use the forensic evidence, that is, Dr. Ralston's stipulated trial testimony about the autopsy findings, to impeach the eyewitnesses because (1) the forensic evidence showed that some of the bullets traveled through the victim's body in an upwards trajectory, but the eyewitnesses testified that the victim was seated at the card table when defendant shot him, and (2) Thompson's testimony that the victim raised his right hand when defendant was shooting was contradicted by the fact that there were no injuries to his right hand or arm.
¶ 52 However, we find these arguments have been waived because they are based on actions or tactics that defendant's trial counsel took or could have taken at trial in examining witnesses and are not based on or relying on any proof outside of the record. Defendant asserts that his trial counsel was ineffective in failing to cross-examine trial witnesses regarding certain aspects of Dr. Ralston's stipulated testimony regarding the autopsy findings, but this testimony was admitted at trial and was thus part of the trial record and was available for defense counsel to use as impeachment material if he so chose. "It is established law that the doctrine of res judicata precludes review in a post-conviction proceeding of all issues actually raised on direct review and the doctrine of waiver precludes review of those issues which could have been presented, but were not raised." Coleman, 267 Ill.App.3d at 898. Thus, because defendant's claim is premised on what the record discloses counsel did and could have done based on the available trial evidence, it is procedurally barred. Id.; Tate, 2012 IL 112214, ¶ 14.
¶ 53 Even if we were to consider this argument, we would find no arguable basis in fact or law to grant his postconviction petition. Whether to question eyewitnesses specifically about the bullet trajectories detailed in the autopsy testimony was a matter of trial strategy that cannot support defendant's claim of ineffective assistance of counsel here. "[G]enerally speaking, whether to call particular witnesses and the manner and extent of cross-examination are matters of trial strategy that will not ordinarily support an ineffective-assistance-of-counsel claim." People v. Watson, 2012 IL App (2d) 091328, ¶ 32 (citing People v. Ramey, 152 Ill.2d 41, 54 (1992)). "Counsel has the ultimate authority to direct trial strategy and we will generally not sustain a claim of ineffectiveness of counsel based on inadequate trial strategy except where counsel entirely fails to conduct any meaningful adversarial testing." (Internal quotation marks omitted.) People v. Segoviano, 189 Ill.2d 228, 248 (2000).
¶ 54 In addition, the record reflects that counsel did, in fact, cross-examine the eyewitnesses extensively regarding how everyone was positioned immediately before and during the shooting, whether the witnesses were looking at defendant, the victim, or the gun as the shooting occurred, and whether the victim raised his arms or hands at the time. Dr. Ralston's stipulated testimony that several of the bullets traversed the victim's body in an upwards trajectory, one bullet traveled downwards, and one bullet went straight through, did not contradict the eyewitnesses' testimony. Presumably, the victim did not remain motionless while he was being struck several times by bullets. Defendant asserts that counsel failed to cross-examine Kennedy about her written statement to police that defendant did not stand up when he shot the victim. We note that in the redacted handwritten statement that defendant cites in support, even assuming this statement is by Kennedy, the interviewed witness does not specifically state whether or not defendant was sitting or standing at the time of the shooting.
¶ 55 Defendant also takes issue with counsel's alleged failure to cross-examine Thompson about her testimony on direct that the victim raised his hand in front of his face when defendant started shooting. We observe that when she gave this testimony, the State noted on the record that she raised her right hand. However, defense counsel then cross-examined Thompson about where she was specifically looking during the shooting, and she testified that she was looking at the gun, but also looked at the victim briefly and saw him raise his arms and hands, plural, as if trying to protect his face. Moreover, her testimony did not contradict the physical autopsy evidence. Defendant misrepresents the record in arguing that there were no injuries to the victim's right arm or hand. Dr. Ralston testified that the victim sustained gunshot wounds to the front of his right wrist, in addition to gunshot wounds to his left forearm, left hand, left elbow, and lower left arm. Dr. Ralston's testimony that the victim sustained gunshot wounds to his hands, arms, and chest supported the eyewitnesses' testimony that the victim raised his arms and hands in front of him as defendant started shooting and that defendant shot the victim in the hand, arms, and chest.
¶ 56 Accordingly, neither the trial record nor defendant's exhibit support his contentions. Rather, the evidence contradicts them. On that basis, we find trial counsel's performance did not arguably fall below an objective standard of reasonableness, nor did defendant arguably suffer any prejudice as a result. Tate, 2012 IL 112214, ¶¶ 19-20. Defendant's claims had no arguable basis in fact or law and were contradicted by the trial record and his exhibits. Jones, 213 Ill.2d at 504; Allen, 2015 IL 113135, ¶ 25.
¶ 57 4. Strategic Decisions
¶ 58 Defendant next contends that the circuit court determined that his trial and appellate counsel made strategic decisions, which he claims is inappropriate in first-stage proceedings. In that regard, defendant cites the circuit court's recitation of black-letter law as an example of it improperly determining that counsel's actions were matters of trial strategy, i.e., that the court presumes counsel's conduct constituted reasonable professional assistance, that matters of trial strategy generally cannot serve as a basis for such a claim, and that ineffectiveness claims are not cognizable in postconviction proceedings unless they relate to matters outside the trial record. We find no error. The circuit court was merely setting forth a correct recitation of black-letter law regarding claims of ineffective assistance of counsel brought in postconviction proceedings. See Strickland, 466 U.S. at 689; People v. Lopez, 371 Ill.App.3d 920, 929 (2007); Coleman, 267 Ill.App.3d at 898-99. The circuit court simply found that defendant's petition was devoid of any facts supporting his contentions.
¶ 59 Citing Tate, 2012 IL 112214, ¶ 22, defendant argues the circuit court improperly made "strategy arguments" at the first stage, which he asserts are "more appropriate to the second stage of postconviction proceedings, where both parties are represented by counsel, and where the petitioner's burden is to make a substantial showing of a constitutional violation." However, in the passage from Tate that defendant cites, our supreme court was referring to the State's argument in Tate that the defendant's claim that his counsel was ineffective in failing to present two alibi witnesses and two occurrence witnesses, whose affidavits the defendant attached to his postconviction petition, had no basis in fact or law. Id. ¶ 21. The affidavits in Tate affirmatively supported the defendant's contentions, that is, two affidavits established that defendant had an alibi for the time of the shooting, and the other two affidavits established that defendant was not in the vicinity at the time of the shooting and he was not the shooter. Id. ¶ 5. In contrast, here, the circuit court did not make a "strategy argument" in dismissing defendant's petition or require defendant to make a substantial showing of a constitutional violation. Rather, unlike the affidavits the defendant provided in Tate, defendant's exhibits attached to his petition did not affirmatively support his arguments in the present case.
¶ 60 Defendant also asserts that his appellate counsel rendered ineffective assistance. In his brief on appeal, defendant merely reiterates the allegation from his postconviction petition that appellate counsel failed to raise on appeal the previously discussed issues regarding trial counsel's alleged failures and the trial court's partial denial of his Lynch motion. Defendant fails to further elucidate upon any of these assertions or develop any argument as to how his ineffective assistance of appellate counsel claims have an arguable basis in fact or law. Accordingly, defendant has forfeited these arguments on appeal. Ill. S.Ct. R. 341(h)(7) (eff. Feb. 6, 2013); Evans, 405 Ill.App.3d at 1007; Vancura, 238 Ill.2d at 369-70. Defendant has not shown a gist of a constitutional violation, i.e., that appellate counsel's performance was arguably unreasonable, and has not provided any arguable basis in fact or law to support his contentions. Tate, 2012 IL 112214, ¶¶ 19-20; Jones, 213 Ill.2d at 504; Allen, 2015 IL 113135, ¶ 25.
¶ 61 III. CONCLUSION
¶ 62 For the reasons stated, we affirm the judgment of the circuit court dismissing defendant's postconviction petition.
¶ 63 Affirmed.