Opinion
No. 1-15-0972
03-30-2018
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FRANKIE GARIBAY, 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 Circuit Court of Cook County. 13 CR 7726 Honorable Geary Kull, Judge Presiding. JUSTICE HALL delivered the judgment of the court.
Presiding Justice Reyes and Justice Rochford concurred in the judgment.
ORDER
¶1 HELD : Pursuant to our authority under Illinois Supreme Court Rule 615(b)(4), we reduce defendant's 16-year sentences on counts 8 and 10 for armed violence with a bludgeon to the maximum Class 2 sentence, which is 7 years, we affirm the remaining sentences, and affirm the judgment of the trial court in all other respects. ¶2 Defendant Frankie Garibay was named, along with codefendants and identical twin brothers, Elias Ponce and Rudy Ponce, in a multi-count indictment arising from the physical beatings of David Hernandez and Nicholas Villarreal. Following a mistrial and a subsequent second bench trial, defendant was convicted of three counts of armed violence: armed violence predicated on the offense of mob action, for committing a battery against Nicholas Villarreal while armed with a knife having a blade over three inches long (count 6); armed violence predicated on the offense of aggravated battery, for knowingly causing great bodily harm to Villarreal while armed with a baseball bat (count 8); and armed violence predicated on the offense of mob action, for committing a battery against Villarreal while armed with a bludgeon (count 10). Defendant was also convicted of two counts of aggravated battery (counts 14 and 18) and one count of mob action (count 20). ¶3 The trial court merged the conviction for mob action into the convictions for armed violence. Defendant was sentenced to 16 years' imprisonment on each of the armed violence convictions and 2 years' imprisonment on the aggravated battery convictions, with all sentences to be served concurrently. ¶4 After his motions to reconsider sentence and for a new trial were denied, defendant filed this timely appeal. Defendant challenges his convictions and sentences. For the reasons that follow, we affirm as modified.
Codefendants Elias Ponce and his twin brother Rudy Ponce were tried at the same time as defendant, but they are not parties to this appeal.
The court granted defense counsels' requests for a mistrial, without prejudice, based on its finding that the prosecution violated the disclosure requirements set forth in Brady v. Maryland, 373 U.S. 83 (1963), by belatedly disclosing the destruction of physical evidence (wooden bats or dowels with blood on them) by the Melrose Park Police Department and failing to timely disclose evidence that an alleged witness to the attack (Ricky Alvarado) had been threatened and consequently given funds to relocate. The court determined that this undisclosed evidence was important in regard to defense counsels' opportunities to impeach Alvarado and defendants' decisions to either choose a jury trial or go with a bench trial.
¶5 BACKGROUND
¶6 The following evidence was presented at defendant's second bench trial. Prior to calling any witnesses the parties stipulated that if called to testify, Bob Houpy would testify that he is the owner of the Lucky Dog restaurant located at 1819 West Lake Street in Melrose Park, Illinois. Houpy would testify that the fast food restaurant is equipped with a video surveillance system that includes both interior and exterior cameras. He would further testify that the surveillance system was functioning properly on March 18, 2012, the date of the incident. The parties stipulated to admission of footage from the surveillance video cameras. ¶7 Ricky Alvarado testified that on March 18, 2012, at approximately 1 o'clock in the morning, he, David Hernandez, and Nicholas Villarreal were eating at the Lucky Dog restaurant. While they were eating, Alvarado noticed a white Ford Explorer pull into the parking lot. Defendant, William Ramos, and a third man whom Alvarado did not know, exited the vehicle and entered the restaurant. Ramos looked at Hernandez and said, "What the f**k you looking at?" Words were exchanged. Ramos challenged Alvarado and his friends to go outside with them, but the owner of the restaurant told defendant's group to leave. ¶8 Ramos, defendant, and the third man left the restaurant, entered their vehicle, and then began throwing gang signs and hand gestures to Alvarado and his friends through the restaurant window. Alvarado went outside to talk to the other group in an attempt to keep the peace. Ramos told Alvarado they wanted Hernandez. Defendant said they would be back and the vehicle sped off. Alvarado went back inside the restaurant and told his friends they should leave, which they did. The group drove to Villarreal's house, which was located nearby, and went to the backyard where they took out beers and sat around talking. ¶9 According to Alvarado, approximately 15 to 30 minutes later, the back gate to the backyard swung open and a group of men rushed into the backyard from the alley. The backyard was illuminated by motion-sensor lights. Alvarado testified that Ramos came in first, carrying a wooden bat. He was followed by defendant who was also carrying a wooden bat. Codefendants Rudy Ponce and his brother Elias Ponce followed behind defendant. ¶10 Alvarado testified that Ramos approached Hernandez, said something to him and then swung the bat at his face. Hernandez fell to the ground and one of the Ponce brothers started beating him. Meanwhile, defendant and the other Ponce brother dragged Villarreal off the stairs he was sitting on and began beating him. Alvarado claimed he saw defendant hit Villarreal in the head with his bat. Alvarado further testified that he saw one of the Ponce brothers attacking Villarreal in a "stabbing motion," but did not see what the brother had in his hand. Alvarado then saw one of the Ponce brothers repeatedly stab Hernandez with a knife. He claimed the knife was approximately 5 inches long. ¶11 Alvarado claimed he saw Ramos hit Hernandez six or seven times in the head with a bat and saw defendant hit Villarreal six or seven times in his head with a bat. Alvarado claimed he was in shock by what he saw and remained in the backyard for a number of seconds before deciding to run away to avoid being beaten. He hopped a backyard fence and ran about three houses down from the backyard and hid, remaining hidden for about 5 to 10 minutes until he heard Villarreal's mother screaming. ¶12 Alvarado testified that when he returned to the backyard, he saw Villarreal and Hernandez lying on the ground bleeding. Villarreal's mother was attending to him. The police arrived and Alvarado gave them an account of the incident. An ambulance transported Villarreal and Hernandez to the hospital. ¶13 The next day Alvarado met with detectives and identified defendant, Ramos, and one of the Ponce brothers from photo arrays. Later that same day Alvarado viewed a live lineup and identified one of the Ponce brothers as one of the individuals he saw armed with a knife. Alvarado also met with an assistant state's attorney and gave a statement regarding the incident. The statement was reduced to writing and Alvarado reviewed and signed it. ¶14 Approximately two months later, on May 5, 2012, Alvarado viewed another live lineup and identified the other Ponce brother. The following year, on March 25, 2013, Alvarado viewed a third live lineup and identified defendant as the man he saw beat Villarreal with a bat. ¶15 The surveillance video was admitted into evidence after Alvarado testified that he had reviewed the video and that it accurately depicted the events he saw occur at the Lucky Dog restaurant on March 18, 2012. The surveillance video was published and played for the court. Alvarado identified defendant in the video. ¶16 On cross-examination Alvarado testified that when he returned to the backyard after the incident, he did not see a knife or any wooden dowels or bats lying around. Alvarado testified that when he gave his statement to the assistant state's attorney (ASA), the ASA said he was going to refer to defendant as the "unknown Hispanic male," since Alvarado was not certain of defendant's name at that time. ¶17 Nicholas Villarreal gave testimony similar to that given by Alvarado in regard to the events leading up to the attack. He suffered partial loss of memory of the attack as a result of the head injuries he sustained in the beating. ¶18 Villarreal testified that in the early morning hours of March 18, 2012, he was with Alvarado and Hernandez at the Lucky Dog restaurant when Ramos and defendant came into the restaurant. Villarreal testified that Ramos began talking to him and friends in a "very loud and obnoxious" manner, saying disrespectful things, and appearing to pick a fight. Villarreal testified that he and Hernandez both stood up when Ramos walked behind them talking loudly. The restaurant manager came out and told everyone to leave. ¶19 Ramos and defendant left the restaurant throwing up gang signs as they exited the establishment and got into their vehicle. The vehicle remained parked in the parking lot. Villarreal and his friends remained in the restaurant. Alvarado eventually left the restaurant and walked up to the vehicle to speak with Ramos and defendant. When Alvarado returned to the restaurant, Ramos and defendant threw up gang signs and drove off. ¶20 Villarreal did not remember anything after he and his friends left the restaurant. His next memory was waking up in the hospital. Villarreal sustained numerous injuries in the beating, including a fractured skull. He remained in the hospital for approximately a month and afterwards was released to a rehabilitation center where he remained for another couple of months. ¶21 On March 25, 2013, Villarreal met with detectives and identified defendant out of a live lineup. Villarreal testified that at the time he identified defendant, he did not know his name, but he recognized his face and appearance from the restaurant. ¶22 Villarreal's mother, Marisa Villarreal-Alba, testified that on March 18, 2012, at approximately 2 o'clock in the morning, she and her husband had just gotten into bed when she heard screaming and a "ruckus" outside. She and her husband jumped out of bed. She ran to the front of the house, while he ran to the back. Villarreal-Alba testified that when she got outside she bumped into a man running down the gangway from her backyard. She described the man as a Hispanic male, about the same weight (200 pounds) and height (5'10") as her husband, with black hair in braids, and wearing a red shirt. Villarreal-Alba identified defendant in court as the man she bumped into. ¶23 Villarreal-Alba, who was barefoot, briefly chased defendant, but quickly gave up the chase after she grew tired due to having lupus. When she returned to the house, she heard her husband yelling for her to call 911. Villarreal-Alba ran back inside her home, retrieved a cell phone, and then ran to the backyard to see why her husband had told her to call 911. Her husband was administering first aid to someone and told her to administer first aid to her son. ¶24 Villarreal-Alba administered first aid to her son and observed that he and David Hernandez, the person her husband was attending to, were both seriously injured. Her son was bleeding from his head, jaw, and cheek, while Hernandez was completely bloody. Hernandez' shirt was soaked in blood and he had blood on his head and face. Villarreal-Alba testified she was in such "desperation" that she was unable to give the 911 operator her location. A neighbor took the cell phone and gave the 911 operator their location. ¶25 On March 25, 2013, Villarreal-Alba accompanied her son to the police station so he could view a live lineup. After her son identified defendant as one of the men he saw at the Lucky Dog restaurant on the date of the incident, Villarreal-Alba requested police to order defendant to turn to the side because he looked like the man she bumped into running down the gangway from her backyard. When defendant turned to the side, Villarreal-Alba identified him as the same man she bumped into on the date of the incident. ¶26 Detective Jeffrey Juan of the Melrose Park Police Department was assigned to investigate the beatings of Villarreal and Hernandez. The detective started his investigation by going to the hospital to interview the victims, but they were unable to be interviewed due to the severity of their injuries. The detective reviewed a police report prepared by police officer Chane Fogg, who was the first officer to respond to the scene of the incident and who spoke with Alvarado. ¶27 Detective Juan subsequently interviewed Alvarado at the police station. Alvarado was shown photo arrays, and identified defendant and Ramos as two of the men he saw at the Lucky Dog on the date of incident and whom he later saw strike the victims with bats in the backyard. Detective Juan testified that Alvarado was unable to distinguish between the Ponce twins, but he identified a photo of Elias Ponce as one of the individuals he saw attack the victims using a stabbing or punching motion. The detective testified that a photo of Rudy Ponce was not included in any of the photo arrays because he was already in custody. Alvarado identified Rudy Ponce out of a live lineup as one of the individuals he saw attack the victims in the backyard. ¶28 Numerous attempts to locate defendant were unsuccessful and a warrant was issued for his arrest. Defendant was eventually arrested on March 25, 2013, by the Cicero Police Department. Detective Juan later prepared a live lineup that included defendant. Alvarado identified defendant out of the lineup. Villarreal and his mother also identified defendant out of a live lineup. ¶29 On cross-examination Detective Juan testified that some of the items of physical evidence recovered from the backyard included a folding knife and some wooden dowels or pieces of handrails. The detective was shown photographs of the wooden dowels with what appeared to be blood on them and believed the wooden dowels may have been used to beat the victims. ¶30 At the time of trial, this physical evidence had either been lost or destroyed. However, before their loss or destruction, the evidence had been submitted to the crime lab for testing. The wooden dowels tested positive for blood. The evidence was also tested for fingerprints, however, no fingerprints suitable for comparison were found on either the knife or the wooden dowels. ¶31 In a sidebar, one of the prosecutors informed the trial court that during the previous bench trial which resulted in a mistrial without prejudice to the State, certain defense attorneys had filed motions regarding the destruction of the physical evidence. The prosecutor told the trial court that the Melrose Park Police Department subsequently located the knife, but not the wooden dowels. ¶32 One of the defense counsels informed the trial court that he wished to cross-examine Detective Juan as to whether the wooden dowels were ever submitted for DNA testing. The court permitted him to do so. The detective claimed he could not recall if he requested DNA testing to be performed on the blood found on the wooden dowels, but to his knowledge no such testing was performed. The detective testified that he never requested a DNA sample from the defendant. On redirect examination the detective testified that he had no reason to believe he would find blood from the attackers on any of the recovered physical evidence. ¶33 Melrose Park police officer Daniel Richter was the evidence technician assigned to investigate the beating incident. When officer Richter arrived in the backyard, he observed a red blood-like substance on the ground in several places. He recovered three wooden dowels. Some of the wooden dowels were attached to metal brackets. The officer also recovered an open blue knife with orange trim. He did not observe any blood on the knife. ¶34 Following officer Richter's testimony, the State moved to have its exhibits admitted into evidence. Counsel for codefendant Rudy Ponce objected to admission of People's exhibit no. 33, a photo of the police evidence box containing the recovered knife. Counsel argued that the knife had no relevance because it was never identified by any of the witnesses. Over counsel's objection, the trial court admitted the exhibit into evidence based on its determination that the knife had some relevancy because it was recovered from the backyard by the evidence technician. The State then rested. ¶35 After defense counsels' motions for directed verdicts were denied, defendants presented their cases. Counsel for codefendant Elias Ponce called officer Fogg as the first defense witness. Counsels for codefendant Rudy Ponce and defendant adopted the direct examination of officer Fogg, in addition to asking questions of their own. ¶36 Officer Fogg was the first officer on the scene who spoke with Alvarado. According to the officer, Alvarado told him that the Ponce twins were two of the attackers, but that he could not tell them apart. One of the brothers was wearing a black hoodie and the other a red t-shirt. The officer answered "yes" when counsel asked him whether Alvarado told him that one of the Ponce brothers was at the Lucky Dog making gang signs prior to the incident. ¶37 On cross-examination officer Fogg testified that Alvarado told him that defendant, along with Ramos and the Ponce twins, were all in the backyard during the attack. The officer further testified that although Alvarado told him the attackers used baseball bats, he wrote "possible wooden baseball bat" in his police report, because he observed wooden dowels at the crime scene rather than wooden baseball bats. Officer Fogg testified that Alvarado told him that the man wearing a white shirt was possibly the defendant, but acknowledged that Alvarado was upset at the time he gave this information. ¶38 Defendant called his friend Keith Longoria as an alibi witness. Longoria testified that around the time of the attacks, he saw defendant in Forest Park at a bar called Doc Ryan's. Longoria claimed he bought defendant a shot of liquor. Longoria testified that defendant was still at the bar when it closed around 2 o'clock in the morning. Defense counsels for the Ponce twins did not adopt Longoria's direct examination. ¶39 On cross-examination Longoria admitted that after he discovered defendant was being accused of the crimes at issue, he never went to the police with his alibi information. Longoria also acknowledged that when he was at the bar, he did not see defendant the whole time. ¶40 Rudy Ponce called his mother, Maria Flores, to testify on his behalf, and he also testified as well. Rudy Ponce testified that he was at home around the time of the attacks. On cross-examination Rudy Ponce denied knowing either defendant or William Ramos. He also testified that he did not go to the Lucky Dog restaurant on the date of the incident. ¶41 Following closing argument, the trial court found defendant's two codefendants, the Ponce brothers, not guilty on all counts. The court determined that Alvarado's identification testimony as it related to the brothers was inconsistent and unreliable because it contained certain inaccuracies such as placing the brothers in the restaurant at the time of the verbal altercation even though the videotape revealed they were not in the restaurant at that time. ¶42 The trial court, however, found defendant guilty of armed violence, mob action, and aggravated battery. In finding defendant guilty of these charges, the court noted that the defendant was identified by three individuals. Alvarado and Villarreal both identified defendant as one of the men they saw at the Lucky Dog restaurant during the verbal altercation which precipitated the physical attack, and Villarreal's mother, Villarreal-Alba, identified defendant as the man who bumped into her as he ran past her down the gangway from the backyard following the attack. The trial court stated in part:
"I believe that [Villarreal-Alba] was able to identify the individual she saw running from the backyard. I believe that Mr. Alvarado who was able to identify [defendant] in the Lucky Dog, and little or no question that he was in the Lucky Dog. There was no contradiction that he was in the Lucky Dog with Mr. Ramos. I believe Mr. Villarreal who in fact testified himself that it was in the Lucky Dog that he saw [defendant] and all of the identifications that attend thereto. So in believing all of those 3, the 2 corroborative testimonies."¶43 At the subsequent sentencing hearing, the State called Lieutenant James Nowicki of the Melrose Park Police Department, who, after being qualified as an expert witness on street gangs in general and the Latin Kings street gang in particular, testified regarding the defendant's involvement with the Latin Kings. The police lieutenant testified that defendant was the "enforcer" for the Melrose Park set of the Latin Kings of Maywood, Illinois. ¶44 The State also published a victim impact statement prepared by Villarreal's mother, Villarreal-Alba. In mitigation, defendant presented a package of material which included letters from friends and family. Defendant gave a brief statement in allocution declaring his innocence. ¶45 The trial court sentenced defendant to 16 years' imprisonment on each of the three armed violence convictions and 2 years' imprisonment on the two aggravated battery convictions, with all sentences to be served concurrently. After the court denied his motion to reconsider sentence and for a new trial, defendant timely appealed his convictions and sentences.
¶46 ANALYSIS
¶47 Defendant first contends the evidence was insufficient to prove him guilty beyond a reasonable doubt of armed violence against Nicholas Villarreal as alleged in count six of the 13 indictment. In count six, defendant and his two codefendants were charged with armed violence in violation of section 33A-2(a) of the Criminal Code of 1961 (Code) (720 ILCS 5/33A-2(a) (West 2004)). ¶48 Count six alleged that defendant and codefendants, "while armed with a dangerous weapon, to wit: a knife with a blade greater than 3 inches," committed the felony offense of mob action in violation of section 25-1(a)(1) of the Code (720 ILCS 5/25-1(a)(1) (West 2004)), by committing a battery against Villarreal. Defendant argues the evidence was insufficient to prove him guilty beyond a reasonable doubt on count six because the State failed to establish that the knife used in the attack had a blade greater than 3 inches long. ¶49 A criminal conviction will not be set aside on grounds of insufficient evidence unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of defendant's guilt. People v. Jackson, 232 Ill. 2d 246, 280 (2009). When reviewing the sufficiency of the evidence in a criminal case we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." People v. Cooper, 194 Ill. 2d 419, 430-31 (2000). In reviewing a challenge to the sufficiency of the evidence, it is not our role to retry the defendant; rather, it is for the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony, and the reasonable inferences to be drawn from the evidence. People v. Enis, 163 Ill. 2d 367, 393 (1994). This standard of review applies regardless of whether the defendant received a bench or jury trial. People v. Siguenza-Brito, 235 Ill. 2d 213, 225 (2009). ¶50 Applying the above standard, we find the evidence sufficient to support defendant's conviction for armed violence in count six. Alvarado testified that he saw one of the codefendants attacking Villarreal in a "stabbing motion." He claimed the knife he observed was 14 approximately 5 inches long. The trial court stated in open court that the record should reflect that Alvarado was describing a knife approximately 5 inches in length. ¶51 As the trier of fact, it was the responsibility of the trial court to determine the weight to be given the witnesses' testimony, their credibility, and the reasonable inferences to be drawn from the evidence (People v. Walker, 2017 IL App (2d) 160589, ¶ 20). Here, the trial court obviously determined that Alvarado testified credibly when he claimed the knife he observed was approximately 5 inches long. ¶52 In light of Alvarado's description of the attack and the extensive injuries sustained by Villarreal and the blood caused by those injuries, it was not unreasonable for the trial court to conclude that Alvarado testified credibly regarding the length of the knife used in the attack. On this record, we will not disturb the trial court's credibility determinations (People v. Jackson, 2016 IL App (1st) 141448, ¶ 14). ¶53 We find the evidence presented at trial was not so improbable or unsatisfactory that there is reasonable doubt as to defendant's guilt. The evidence, when viewed in a light most favorable to the State, was sufficient to allow a rational fact finder to find defendant guilty beyond a reasonable doubt of the charge of armed violence against Villarreal as alleged in count six of the indictment. In addition, since we find the evidence identifying defendant as one of the individuals who attacked Villarreal was reliable and sufficient to sustain his conviction for armed violence as alleged in count six of the indictment, we find this evidence was also sufficient to support the charge of aggravated battery of which defendant was found guilty. ¶54 Defendant next contends, the State concedes, and we agree that defendant's 16-year sentences in counts 8 and 10 for armed violence with a bludgeon must be vacated because the sentences exceed the statutory maximum sentence allowable for the offense of armed violence 15 with a category III weapon, a class 2 felony, with a sentencing range of three to seven years. 730 ILCS 5/5-4.5-35(a) (West 2012). However, it is unnecessary to remand to the trial court for resentencing. Under Illinois Supreme Court Rule 615(b)(4) (Ill. S. Ct. R. 615(b)(4) (eff. Aug. 27, 1999), we may reduce a defendant's sentence to that which is within the statutory limits. Therefore, because the 16-year sentences in counts 8 and 10 for armed violence were to be served concurrently with count 6, we reduce the sentences in counts 8 and 10 to the maximum Class 2 sentence, which is 7 years. We affirm the remaining sentences. ¶55 Defendant next contends he was denied his right to a fair trial by the State's destruction of the wooden dowels. Defendant argues that if the wooden dowels were available for forensic testing they may have produced exculpatory evidence i.e., lack of his fingerprints. He further contends his trial attorney was ineffective for failing to preserve this physical evidence. ¶56 Before we address the merits of defendant's contentions and argument, some context is necessary. The instant appeal arises from convictions following a second bench trial. The first bench trial resulted in a mistrial without prejudice to the State. The mistrial was based in part on the destruction of the wooden dowels now at issue. In the first bench trial, after Alvarado testified, there was discussion regarding the prosecution's failure to tender information concerning the State paying for some of Alvarado's relocation expenses. The matter was continued to allow the parties to brief the issue. ¶57 In a memorandum in support of defendant's motion for a mistrial, defense counsel submitted that on August 7, 2014, "defense counsel for all defendants was advised for the first time that evidence in this matter, the purported weapons used in the alleged attempted murder, was destroyed on or about July 26, 2013, despite defense motions for production. The non-disclosure of the amounts of payments to the purported eyewitness and the destruction of the 16 purported attempted murder weapons violate the rule set forth in Brady v. Maryland, 373 U.S. 83 (1963) and Illinois Supreme Court Rule 412." ¶58 The trial court granted defendant and his two codefendants mistrials without prejudice to the State. The trial court stated in part: "I have had an opportunity look at the briefs from the attorneys to go along with the transcript of our discussion. I think it certainly is clear that it's a Brady violation. I think it's very clear that also - because I did notice that in [defense counsel's] motion also she indicates that they found out that there was evidence that was destroyed a year ago, physical evidence, I believe it was a stick or bat and a knife. That absolutely makes a huge difference in what a defendant is going to do with respect to whether or not they are going to exercise their right to a jury trial or if they are going to go with a bench trial. Certainly, it has an effect on whether or not the defense counsels had an opportunity to impeach the witness who testified. And I am going to with respect to all three defendants grant a mistrial." ¶59 In response to arguments made by defense counsels and prosecutors regarding whether destruction of the physical evidence was intentional or reckless, the trial court remarked in part: "You know what, I can't say exactly if anybody did anything intentional. But here's what I do know: State's attorneys communicate with police departments. You are doing a trial. You know before the trial that there is physical evidence. And that evidence should have been brought - the State's Attorney should have requested that long before the trial started, and then she would have known that that evidence had been destroyed. So, you know, I can't say for sure that anybody did anything intentional. I'm not going to say that she intentionally withheld anything." 17 ¶60 Violation of a discovery request may be analyzed as either a due process violation or under Illinois Supreme Court Rule 415(g)(i) (eff. Oct.1, 1971). See People v. Borys, 2013 IL App (1st) 111629, ¶ 17; People v. Kladis, 403 Ill. App. 3d 99, 105 (2010). The United States Supreme Court and our supreme court have distinguished between instances where lost or destroyed evidence is materially exculpatory and where it is only potentially useful. Illinois v. Fisher, 540 U.S. 544, 547 (2004); People v. Sutherland, 223 Ill. 2d 187, 235 (2006). ¶61 If the evidence is materially exculpatory, the State has a duty to preserve it and the failure to do so constitutes a due process violation, even if the State did not act in bad faith. Sutherland, 223 Ill. 2d at 235-36. In order to be materially exculpatory, "evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means." People v. Pecoraro, 175 Ill. 2d 294, 317 (1997) (quoting California v. Trombetta, 467 U.S. 479, 488-89 (1984)). On the other hand, the State's failure to preserve evidence that is only potentially useful to a criminal defendant does not constitute a due process violation, unless the defendant can affirmatively demonstrate bad faith on the part of the State. Arizona v. Youngblood, 488 U.S. 51, 58 (1988); Fisher, 540 U.S. at 545; Sutherland, 223 Ill. 2d at 236; People v. Hobley, 159 Ill. 2d 272, 307 (1994). ¶62 Applying these principles, we find defendant's due process claim is meritless. The destroyed physical evidence at issue was not materially exculpatory, but rather was only potentially exculpatory, i.e., alleged lack of defendant's fingerprints on the wooden dowels. And moreover, defendant has not alleged any bad faith on the part of the State in the destruction of the wooden dowels and our review of the record reveals no evidence of bad faith on the part of the police or State. 18 ¶63 Contrary to defendant's contention, our supreme court's decision in People v. Newberry, 166 Ill. 2d 310 (1995), does not require a different result. In Newberry, our supreme court considered the question of whether the State's mistaken destruction of suspect cocaine following receipt of a written discovery request by defense counsel amounted to a denial of due process. Id. at 311. The supreme court answered this question in the affirmative. ¶64 In Newberry, the police recovered a substance from defendant which they suspected was cocaine. Id. at 311-12. An initial field test yielded a negative result for cocaine. However, a subsequent laboratory test conducted approximately one month after defendant's arrest, came back positive for cocaine. Based on the lab results, defendant was indicted on new charges for possession of cocaine, while the original charge of unlawful possession of a look-alike substance with intent to distribute was nol-prossed. Id. at 312. In light of these new charges, defense counsel filed a discovery motion requesting, among other things, to examine all tangible objects seized from the defendant. Approximately a year after the discovery motion was filed, the State notified defense counsel that the seized suspect cocaine had been inadvertently destroyed by an evidence technician who mistakenly assumed that the material was no longer needed after a computer check showed that the look-alike drug charge had been nol-prossed. Id. at 312. Defense counsel then moved to dismiss the indictments against defendant, arguing that the State's destruction of the suspect cocaine, following receipt of the discovery request, amounted to a denial of due process. Id. at 313-14. Our supreme court agreed. ¶65 In finding a due process violation, our supreme court distinguished the bad-faith analysis discussed in Arizona v. Youngblood, where the United States Supreme Court determined that when the government fails to preserve evidence that is only "potentially exculpatory," as opposed to "materially exculpatory," there is no deprivation of due process, absent a finding of 19 bad faith on the part of the government. Youngblood, 488 U.S. at 58. In distinguishing Youngblood, our supreme court held that when a defendant makes a discovery request for "essential and outcome determinative" evidence, the State is put on notice that the evidence must be preserved, and as a result, a defendant suffers a deprivation of due process when the State mistakenly destroys the evidence, even if the State did not act in bad faith in doing so. Newberry, 166 Ill. 2d at 315-17. ¶66 Unlike Newberry, the physical evidence the police mistakenly destroyed in this case was only potentially exculpatory. The only exculpatory value defendant contends the pieces of wooden dowels may have had is that forensic testing may have shown that his fingerprints were not on the dowels. Since there was only a possibility that forensic testing on the wooden dowels might have revealed their supposed exculpatory value, the wooden dowels constituted "evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant." Youngblood, 488 U.S. at 58. ¶67 Because the evidence was, at best, only potentially exculpatory, defendant's due process claim turns on establishing bad faith on the part of the State in destroying the pieces of wooden dowels. However, as we have already observed, defendant has not alleged any bad faith on the part of the State and our review of the record reveals no such evidence. ¶68 Moreover, even assuming the fingerprint evidence was exculpatory, defendant has not shown that this evidence was central or critical to the State's case. The critical evidence was Alvarado's eyewitness testimony describing how defendant used a wooden bat to beat the victim. In light of this testimony, the pieces of wooden dowel would have been more inculpatory than exculpatory. The absence and destruction of this physical evidence was more beneficial to the defendant than its admission at trial would have been. 20 ¶69 For these reasons, defendant has failed to show the requisite prejudice to establish that his trial counsel was ineffective for allegedly failing to preserve the pieces of wooden dowel. It is well settled that if the claim can be disposed of on the ground that defendant did not suffer prejudice from the alleged ineffective performance, then the court need not decide whether counsel's performance was constitutionally deficient. Strickland v. Washington, 466 U.S. 668, 697 (1984); People v. Griffin, 178 Ill. 2d 65, 74 (1997). ¶70 Accordingly, pursuant to our authority under Illinois Supreme Court Rule 615(b)(4), we reduce defendant's sentences on counts 8 and 10 from 16 years to the maximum Class 2 sentence, which is 7 years, we affirm the remaining sentences, and affirm the judgment of the trial court of Cook County in all other respects. ¶71 Affirmed as modified.