People v. Evans

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Appellate Court Date: 2017.09.18

08:45:23 -05'00'

People v. Evans, 2017 IL App (1st) 143268

Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.

Caption SHANNON EVANS, Defendant-Appellant.

District & No. First District, Second Division

Docket No. 1-14-3268

Filed June 6, 2017

Rehearing denied July 6, 2017

Decision Under Appeal from the Circuit Court of Cook County, No. 06-CR-12790; the

Review Hon. Thaddeus L. Wilson, Judge, presiding.

Judgment Affirmed.

Counsel on Michael J. Pelletier, Patricia Mysza, and Stephen Gentry, of State

Appeal Appellate Defender’s Office, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,

Christine Cook, and Claire Wesolik Connolly, Assistant State’s

Attorneys, of counsel), for the People.

Panel JUSTICE MASON delivered the judgment of the court, with opinion.

Presiding Justice Hyman and Justice Neville concurred in the

judgment and opinion.

OPINION

¶1 Defendant Shannon Evans was convicted of first degree murder in the October 13, 2005,

shooting death of Robert Duffy. He filed a postconviction petition asserting (1) actual

innocence based on affidavits from two witnesses stating that Evans was not present when

Duffy was shot and (2) ineffectiveness of trial counsel for failing to investigate witnesses who

could have testified for Evans at trial. The trial court dismissed Evans’s petition at the second

stage of postconviction proceedings, finding that in light of the State’s strong evidence of

Evans’s guilt, his “new” witnesses did not conclusively disprove the State’s theory of the case

nor was Evans prejudiced by the alleged mistakes of counsel. Evans now appeals. We agree

with the trial court and affirm.

¶2 BACKGROUND

¶3 Because Evans purports to raise an actual innocence claim, it is necessary to set forth the

trial testimony in some detail. Tina Mosley, Duffy’s longtime girlfriend, testified that Duffy

and Evans were friends and members of the Gangster Disciples street gang. They sold drugs

together out of a house at 12210 South Parnell Avenue. One of their customers was Rashad

Bethany, and Mosley frequently saw the three of them together.

¶4 The day after Duffy’s death, Mosley met with Bethany and Evans. Evans had bloodshot

eyes, was trembling, and appeared nervous. He told Mosley that he and Duffy had been

conducting a drug deal at the Parnell house with members of another street gang. One of the

other gang members pulled out a gun, and a fight ensued, during which Duffy was shot. Evans

told Mosley he shot one of the other gang members and then fled to hide his gun. When he

returned, he saw two bodies being placed in an ambulance. Mosley later learned that Duffy had

been killed.

¶5 Eischa Toney testified that she lived about a block from the Parnell drug house. She had

known Evans and Bethany since childhood. On the night of October 13, Evans, Bethany, and

two other men known as Little Ricky and Peanut were drinking on her porch, as they often did.

Shortly before Duffy was shot, all four left, heading in the direction of Parnell Avenue. Five to

ten minutes later, Toney heard gunshots and saw the four men running away from Parnell

Avenue, along with “everybody on the block.” All of them ran in different directions.

¶6 Toney next saw Evans on the day of Duffy’s funeral. Evans said that he was worried about

being framed for Duffy’s murder because the Parnell house was “his dope spot.” He asked

Toney whether she had heard anything about the shooting or if she knew people who were

talking about it. Toney said she had not heard anything. A month or two later, when the four

men returned to her home, Bethany bragged about robbing and shooting Duffy. Toney testified

that she could not recall what, if anything, Evans said on that occasion. The State reminded

Toney of her grand jury testimony, in which she stated that Evans admitted being “part of it”

and also said that he helped to steal Duffy’s money and drugs. Toney said, “I was asked those

questions, and you say I answered that. Evidently, I answered that.” After Toney’s grand jury

testimony, the State helped her relocate for her safety and paid her relocation expenses.

¶7 Patrick Fallie testified that he had known Evans since childhood. He claimed not to recall

his whereabouts on the night of October 13, and he denied having any knowledge related to

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Duffy’s murder. He was then impeached with his grand jury testimony in which he testified

that he was an eyewitness to the shooting and gave a detailed account of the murder.

¶8 In his grand jury testimony on April 12, 2006, Fallie stated that on the night of October 13,

he was sitting in his car across the street from the Parnell house, waiting for two friends named

Mike and Markina to purchase cigarettes from a neighboring house. As Fallie waited, he saw

Duffy limp out of the front of the house, followed closely by Evans and another man. Both of

the men following Duffy were holding handguns. Duffy turned to face Evans, holding his

hands in front of his face as if to block a bullet and saying, “Don’t shoot, don’t shoot, it ain’t

worth it, don’t kill me.” Evans shot him four or five times, then picked up a bag that Duffy was

carrying and ran away. Fallie told the grand jury that he did not tell this information to the

police sooner because he was afraid for his life.

¶9 A forensic investigator with the Chicago police department testified that he recovered

casings from two different caliber weapons at the Parnell house.

¶ 10 Evans’s sole witness was Markina Polk, who testified that she witnessed the murder.

Together with a friend she referred to as “Mike Mike,” she went to the house next to the Parnell

drug house to purchase cigarettes. Fallie, whom Polk knew, was sitting across the street in his

car and waved to her. As Polk approached the cigarette house, she saw Duffy on the lawn of the

house next door, arguing with two men whom she did not recognize, one of whom was armed.

Polk did not see Evans on the scene. One of the men pushed Duffy, and the other man began

shooting Duffy, at which point Polk ran into the cigarette house. She heard around five shots in

total.

¶ 11 Some time later, Polk learned that Evans had been arrested for Duffy’s murder. She

attempted to contact authorities to tell them what she knew, but she did not pursue the matter

because she was afraid of the real murderers. Additionally, Polk admitted that shortly before

trial, Fallie asked her to deny seeing him at the scene of the murder.

¶ 12 Evans was found guilty of first degree murder with a firearm. He was sentenced to 45

years’ imprisonment, plus a consecutive 20-year add-on for personally discharging a firearm.

On direct appeal to this court, he argued that he was denied his right to a speedy trial, the trial

court improperly admitted hearsay evidence, and the State failed to prove him guilty beyond a

reasonable doubt. We affirmed his conviction in People v. Evans, 2011 IL App (1st)

091389-U, and his petition for leave to appeal to the Illinois Supreme Court was denied on

November 30, 2011 (People v. Evans, No. 113097 (Ill. Nov. 30, 2011)).

¶ 13 Nine months later, on August 30, 2012, Evans filed his pro se postconviction petition.

After Evans obtained counsel, his amended petition raised (1) an actual innocence claim and

(2) an ineffective assistance of counsel claim based on trial counsel’s alleged failure to

investigate and present available evidence of Evans’s innocence. The petition also raised

various other claims that Evans does not pursue on appeal.

¶ 14 Evans’s actual innocence claim is based upon the affidavits of Mike Miles and Tiara

Murph. In Miles’s affidavit, he stated that on the night of October 13, 2005, he drove Polk to

the cigarette house. While he was waiting outside, he saw Duffy limping out of the house next

door, being chased by two men. Miles recognized one of the men as “Gutta.” He saw Gutta

shoot Duffy in the head, and then the two men both shot Duffy three or four more times.

Afterwards, the two men ran away; one of them made eye contact with Miles while running.

Miles stated that he did not see Evans at any time during the incident. He never contacted the

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police because he feared for his life. Nevertheless, he said that he was willing to testify for

Evans at an evidentiary hearing and would have testified for him if called at trial.

¶ 15 In Murph’s affidavit, she stated that she was walking home when she observed two men

with guns chasing Duffy out of the house next to the cigarette house. She heard shooting and

ran. Because she was scared for her life, she told nobody about the incident except for her

grandmother, who moved Murph to Indiana for her safety. A few years ago, Murph moved

back to Chicago because she thought “enough time had passed that it would be okay,” although

she was still afraid. Four months ago, she learned that Evans had been convicted of Duffy’s

murder. She knew Evans from the neighborhood and knew that she did not see him on the day

of the murder, so she decided to come forward to tell what she had witnessed.

¶ 16 Regarding his ineffective assistance of counsel claim, Evans argued that his trial counsel

should have called Miles to testify on his behalf. He stated that counsel should have been

aware of Miles’s existence because both Fallie and Polk named “Mike” as a witness to the

crime.

¶ 17 Evans also argued that trial counsel was ineffective for failing to investigate Hosea West as

a potential exculpatory witness. In pretrial discovery, the State disclosed a police report

detailing an interview with West on October 23, 2005. West told police that he was in the area

of the shooting on the evening of the murder. He saw Bethany and spoke briefly with him; then

Bethany left, accompanied by Little Ricky and Peanut. Later, West heard gunshots. He saw

Little Ricky and Peanut running toward him from the direction of Parnell Avenue, followed by

Bethany, who glared at him. West did not see Evans on that day. According to West, word on

the street was that Bethany “set up” Duffy to be killed, but Evans did the actual shooting.

¶ 18 The State filed a motion to dismiss Evans’s postconviction petition, which the circuit court

granted on August 5, 2014. The court found that Evans’s petition was untimely, having been

filed two days after the statutory deadline. The court also found that Evans’s claims were not

meritorious. Regarding the actual innocence claim, the court found that Miles’s and Murph’s

affidavits were cumulative of Polk’s testimony and did not add anything to the theory of the

case Evans advanced at trial. It also found that Miles’s affidavit was not newly discovered

since multiple witnesses referenced “Mike” at trial, indicating that counsel could have

discovered Mike through due diligence. Regarding the ineffective assistance of counsel claim,

the court found that since Miles’s testimony would have been cumulative of Polk’s testimony,

Evans was not prejudiced by counsel’s failure to call Miles at trial. The court did not

specifically address the police interview with West.

¶ 19 Evans filed a motion to reconsider, arguing that he was not culpably negligent for his

untimely filing because he relied on the erroneous advice of counsel. Before Evans filed his

postconviction petition, his mother contacted Evans’s current postconviction counsel for

advice, although she was unable to pay the required retainer. Counsel incorrectly informed

Evans that the filing deadline was nine months from the denial of his petition for leave to

appeal, and Evans relied on that advice in filing his petition. Evans attached an affidavit from

his postconviction counsel in which she corroborated Evans’s allegations.

¶ 20 On September 30, 2014, the trial court found that Evans was not culpably negligent for his

untimely filing, but it ruled that the portion of the court’s order dismissing his petition on the

merits would stand.

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¶ 21 ANALYSIS

¶ 22 The Post-Conviction Hearing Act sets forth a three-stage process for adjudicating a

postconviction petition. 725 ILCS 5/122-1 et seq. (West 2014). At the first stage, the court

independently reviews the petition to determine whether it sets forth the gist of a constitutional

claim. People v. Hodges, 234 Ill. 2d 1, 9 (2009). If so, the petition advances to the second stage,

where the petitioner may amend his petition with the assistance of appointed counsel and the

State may move to dismiss or answer the petition. People v. Gaultney, 174 Ill. 2d 410, 418

(1996). To survive a motion to dismiss, the petition must make a “substantial showing of a

constitutional violation.” People v. Edwards, 197 Ill. 2d 239, 246 (2001). All well-pleaded

facts not positively rebutted by the trial record are taken as true, and the trial court is not to

engage in factfinding or credibility determinations. People v. Coleman, 183 Ill. 2d 366, 385

(1998); People v. Hall, 217 Ill. 2d 324, 334 (2005). Credibility determinations are reserved for

the third stage of postconviction proceedings, where the trial court holds an evidentiary

hearing on petitioner’s claims. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). We review the

second-stage dismissal of a postconviction petition de novo. Id.

¶ 23 Timeliness of Evans’s Petition

¶ 24 Initially, the State argues that Evans’s postconviction petition was untimely since it was

filed two days after the statutory deadline. This deadline does not apply to actual innocence

claims, which are not subject to time constraints (725 ILCS 5/122-1(c) (West 2014)), but it

does apply to Evans’s ineffective assistance of counsel claim. Evans concedes untimeliness,

but he argues that his late filing was not due to his culpable negligence, since he was relying on

the erroneous advice of postconviction counsel. We agree with Evans.

¶ 25 After Evans’s conviction was affirmed on direct appeal, his petition for leave to appeal to

the Illinois Supreme Court was denied on November 30, 2011. From that date, Evans had 90

days to file a petition for a writ of certiorari to the United States Supreme Court (Sup. Ct. R.

13) and an additional six months to commence postconviction proceedings (725 ILCS

5/122-1(c) (West 2012))—i.e., until August 28, 2012. But Evans relied on the advice of his

postconviction counsel, who erroneously told him that he had nine months in which to file his

petition. Evans therefore filed his petition two days after the deadline, on August 30, 2012.

¶ 26 Thus, we can only consider Evans’s claim of ineffective assistance of counsel if Evans

demonstrates that his late filing was not due to his culpable negligence. Id. Culpable

negligence is “something greater than ordinary negligence and is akin to recklessness.” People

v. Boclair, 202 Ill. 2d 89, 108 (2002). To show a lack of culpable negligence, a defendant must

present allegations of specific fact showing why his tardiness should be excused (People v.

Hobson, 386 Ill. App. 3d 221, 233 (2008)); vague or conclusory assertions will not suffice

(People v. Gunartt, 327 Ill. App. 3d 550, 552 (2002)).

¶ 27 Under the circumstances, we find that Evans’s untimely filing was not due to his culpable

negligence. Our supreme court dealt with a similar situation in People v. Rissley, 206 Ill. 2d

403, 410 (2003), where defendant’s counsel erroneously informed him that he had three years

from the date of his sentencing to file a postconviction petition. Defendant had no reason to

question the advice of his counsel and had every reason to believe his petition was timely filed.

Id. at 421. Thus, the Rissley court held that defendant was not culpably negligent for his late

filing. Id.; see also Hobson, 386 Ill. App. 3d at 237 (finding a lack of culpable negligence upon

similar facts). Likewise, Evans was not culpably negligent for relying upon the erroneous

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advice of his postconviction counsel regarding the filing deadline.

¶ 28 Actual Innocence

¶ 29 Evans argues that the trial court erred in dismissing his actual innocence claim because, he

contends, the eyewitness accounts of Miles and Murph were new and noncumulative evidence

that he did not kill Duffy. The State contends that the facts contained in their affidavits were

not newly discovered, and in any event, their affidavits were cumulative of the testimony of

Polk, who also stated that Evans was not present when Duffy was shot.

¶ 30 We first take issue with Evans’s characterization of his claim as one asserting his actual

innocence. An actual innocence claim does not merely challenge the strength of the State’s

case against the defendant. People v. Collier, 387 Ill. App. 3d 630, 636 (2008). Indeed, it is

well-established that sufficiency of the State’s evidence is not a proper issue for a

postconviction proceeding. Id. at 638. Rather, the hallmark of an actual innocence claim is

“ ‘total vindication’ ” or “exoneration” (id. at 636 (quoting People v. Savory, 309 Ill. App. 3d

408, 414-15 (1999))); it is a claim that the defendant is free of any criminal involvement, either

in the crime for which he was convicted or any lesser included offense. People v. Barnslater,

373 Ill. App. 3d 512, 520 (2007).

¶ 31 In light of (i) Evans’s admission to Mosley that he was present at the time Duffy was shot,

he was armed, and he fired his weapon, (ii) Toney’s and Fallie’s grand jury testimony admitted

substantively during Evans’s trial, and (iii) Polk’s trial testimony that Evans was not the man

pointing a gun at Duffy, Miles’s and Murph’s affidavits bear only on the sufficiency of the

evidence. Evans has already advanced—and lost—a sufficiency of the evidence argument in

his direct appeal. Evans, 2011 IL App (1st) 091389-U, ¶ 33. And, as we discuss below, the

evidence Evans proffers is cumulative of Polk’s testimony to the effect that Evans was not

present when Duffy was shot and that, in fact, someone else was pointing a gun at Duffy. Thus,

we could dispose of the issues in this appeal (save for Evans’s ineffective assistance claim) on

res judicata grounds. People v. Fair, 193 Ill. 2d 256, 267 (2000) (res judicata precludes issues

that were raised on direct appeal from being raised again in postconviction petition (citing

People v. Emerson, 153 Ill. 2d 100, 106 (1992) (postconviction petitioner cannot avoid the bar

of res judicata simply by rephrasing claims raised on direct appeal))); see also Collier, 387 Ill.

App. 3d at 638 (rejecting petitioner’s actual innocence claim where “it is inescapable that the

defendant has repackaged the reasonable doubt arguments advanced at trial, on direct appeal,

and collateral review and placed them upon the altar of actual innocence”).

¶ 32 But even if we accepted the “actual innocence” label Evans attaches to his petition, we

would reach the same result. Because the conviction of an innocent person violates due

process, a postconviction petitioner has the right to assert a claim of actual innocence based

upon newly discovered evidence. People v. Coleman, 2013 IL 113307, ¶ 84 (citing People v.

Washington, 171 Ill. 2d 475, 488-89 (1996)). To obtain relief, defendant must present evidence

that is (1) new, in that it could not have been discovered prior to trial through due diligence, (2)

material to the issue of defendant’s innocence, (3) noncumulative of the evidence presented at

trial, and (4) sufficiently conclusive that it would probably change the result on retrial. Id. ¶ 96.

Defendant bears the burden of demonstrating these elements by a preponderance of the

evidence. Id. ¶ 92.

¶ 33 Miles’s affidavit was not newly discovered because defendant has not shown that his

testimony was undiscoverable prior to trial. On the contrary, both Polk and Fallie (via his grand

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jury testimony) testified that Polk was accompanied to the cigarette house by her friend

“Mike.” Thus, defense counsel should have been aware of “Mike” as a potential witness to the

shooting. Miles, for his part, never averred that after the shooting he made himself unavailable

to investigators. On the contrary, he stated that he would have testified for Evans if called at

trial. Accordingly, Evans has failed to make a substantial showing that Miles’s testimony could

not have been discovered prior to trial through due diligence.

¶ 34 As for Murph’s affidavit, Evans argues that it is newly discovered because he could not

have discovered prior to trial that Murph was a witness to the crime: she told nobody about the

incident except for her grandmother and moved to Indiana afterwards. The State argues that,

regardless of Murph’s availability, her affidavit is not new because the facts she alleges were

already known to defendant at the time of trial. See Barnslater, 373 Ill. App. 3d at 523

(“evidence is not ‘newly discovered’ when it presents facts already known to the defendant at

or prior to trial, though the source of those facts may have been unknown, unavailable, or

uncooperative” (emphasis added)).

¶ 35 We need not resolve this issue because, regardless of whether Murph’s affidavit qualifies

as newly discovered, it is readily apparent that it is cumulative of Polk’s trial testimony. Both

witnesses had substantially the same version of events. Polk stated that she saw Duffy on the

lawn of the Parnell house, arguing with two men, neither of whom were Evans. One of the men

shoved Duffy, and then the other man shot him. Murph averred that she saw Duffy being

chased out of the Parnell house by two men, and then she heard gunshots. Evans, whom Murph

knew, was not one of the men. Murph’s testimony does not differ from Polk’s testimony in any

material aspect, except that she describes the confrontation in less detail and did not see the

actual shooting. Presenting her testimony at trial would not have added anything to the

evidence that was already before the jury.

¶ 36 Evans argues that Murph’s testimony should not be considered cumulative because Polk

was “substantially impeached” at trial and, therefore, Murph’s testimony would have been

more convincing. We note that this argument is directly contrary to Evans’s position on direct

appeal, where he argued that Polk’s testimony “was not impeached or inconsistent in any

manner.” In any event, Evans does not provide any authority for the proposition that an actual

innocence claim is valid when a newly discovered witness, whose testimony is cumulative of

exculpatory testimony presented at trial, is “better” than the witness who actually testified. The

sole case cited by Evans on this issue is In re Lane, 71 Ill. App. 3d 576, 580 (1979), which did

not concern a postconviction proceeding, but the court’s exclusion of an alibi witness at a

probation hearing. Finding the exclusion of the witness to be an abuse of discretion, the court

in Lane noted that the alibi witness that had been permitted to testify had been “clearly

discredited” because he admitted to being drunk. Id. No such circumstances are present here.

¶ 37 We disagree that Murph’s testimony was “better” than Polk’s. Most critically, because

Murph did not see the actual shooting, her testimony is of limited value in determining whether

Evans was the shooter. On the issue of credibility, Evans argues that Polk’s credibility was

impaired by her statement on cross-examination that she did not come forward sooner because

she feared for her life. But Murph’s testimony suffers the same alleged infirmity: she also

initially chose not to contact authorities out of fear for her life.

¶ 38 Evans also lists various other ways in which Polk’s testimony was purportedly impeached:

she purchased marijuana from Fallie, she was an acquaintance of Evans, and she only saw one

of Duffy’s assailants holding a gun (unlike Murph, who stated that both men were armed). We

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would not characterize any of this as substantial impeachment. First, the trial court struck

Polk’s testimony about purchasing marijuana, and the jury is therefore presumed not to have

considered that statement. City of Chicago v. Eychaner, 2015 IL App (1st) 131833, ¶ 105. In

any event, there was no implication that Polk was under the influence of marijuana at the time

she witnessed Duffy’s murder. Furthermore, the fact that she only saw one of the assailants

holding a gun is a minor discrepancy that does not significantly discredit her testimony that

Evans was not present. And Murph, like Polk, was acquainted with Evans.

¶ 39 Finally and most importantly, Miles’s and Murph’s affidavits, whether viewed individually

or together, are not sufficiently conclusive that they would likely change the result on retrial,

given the strength of the State’s evidence against Evans. See People v. Sanders, 2016 IL

118123, ¶ 47 (“the conclusiveness of the new evidence is the most important element of an

actual innocence claim”). First, according to Mosley’s unimpeached testimony, Evans

admitted the day after the murder that (i) he was present when Duffy was shot (supposedly by

a rival gang member), (ii) he had a gun, and (iii) he shot someone. Thus, Evans’s own

admissions contradict the testimony of his witnesses that he was not present during the

shooting.

¶ 40 Second, both Fallie and Toney directly implicated Evans in their grand jury testimony,

which was admitted as substantive evidence at trial. Fallie, who was sitting in his car across the

street from the Parnell house, testified that he saw Evans shoot Duffy four or five times. Toney

testified that on the night of the murder, she saw Evans, Bethany, and two other men heading

for the Parnell house; shortly thereafter, gunshots were fired, and Toney saw all four men

running away from the house. Evans later admitted to her that he was “part of it” and helped to

steal Duffy’s money and drugs.

¶ 41 Although Fallie and Toney recanted their grand jury testimony at trial, recantations are

considered inherently unreliable (People v. Morgan, 212 Ill. 2d 148, 155 (2004)). Fallie’s

recantation is particularly incredible under the circumstances: before the grand jury, he gave a

detailed eyewitness account of the murder that was consistent with the physical evidence and

the testimony of the State’s other key witness, but, at trial, he claimed to have no memory of

that evening. The jury was entitled to disregard Fallie’s claimed lack of memory and to credit

his grand jury testimony. As for Toney, she admitted that after her grand jury testimony, the

State paid to relocate her for her safety—which would only be necessary if she did, in fact,

implicate Evans.

¶ 42 Thus, in light of the State’s evidence against Evans, the testimony of Miles and Murph

would not have changed the jury’s verdict. See Sanders, 2016 IL 118123, ¶ 53 (evidence was

not so conclusive as to change the probable result on retrial where it “merely contradict[ed] the

testimony of other occurrence witnesses”). For this reason, as well as our earlier findings that

Miles’s testimony was not newly discovered and Murph’s testimony was cumulative of Polk’s

testimony, Evans has not established the necessary elements for a claim of actual innocence.

¶ 43 Ineffective Assistance of Trial Counsel

¶ 44 Evans next argues that his trial counsel was ineffective for failing to investigate and present

Miles and West as exculpatory witnesses. The State argues that Evans failed to establish a

reasonable probability that their testimony would have changed the outcome of the trial, given

the strength of the State’s case against Evans.

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¶ 45 Both the United States Constitution and the Illinois Constitution provide that a criminal

defendant has the right to effective assistance of counsel. U.S. Const., amends. VI, XIV; Ill.

Const. 1970, art. I, § 8. Under the two-prong test articulated in Strickland v. Washington, 466

U.S. 668, 687 (1984), a defendant is deprived of the effective assistance of counsel when (1)

counsel’s performance was deficient, in that it fell below an objective standard of

reasonableness and (2) the deficient performance prejudiced the defense. See People v. Lee,

2016 IL App (1st) 152425, ¶ 54 (applying Strickland).

¶ 46 To establish the first Strickland prong, a defendant must show that “counsel’s performance

was objectively unreasonable under prevailing professional norms.” People v. Domagala,

2013 IL 113688, ¶ 36. A mistake in trial strategy, without more, does not satisfy this prong; on

the contrary, counsel’s strategic decisions are afforded considerable deference. People v.

McGee, 373 Ill. App. 3d 824, 835 (2007). As the Strickland Court stated, “strategic choices

made after thorough investigation of law and facts relevant to plausible options are virtually

unchallengeable; and strategic choices made after less than complete investigation are

reasonable precisely to the extent that reasonable professional judgments support the

limitations on investigation.” Strickland, 466 U.S. at 690-91. Deciding whether to call a

witness at trial is a matter of trial strategy, and accordingly, there is a strong presumption that

such decisions reflect sound strategy rather than incompetence. People v. Enis, 194 Ill. 2d 361,

378 (2000).

¶ 47 For the second Strickland prong, the defendant must show that there is a reasonable

probability that the outcome of the proceeding would have been different if not for counsel’s

unprofessional errors. Strickland, 466 U.S. at 694. A reasonable probability is “a probability

sufficient to undermine confidence in the outcome” (People v. Colon, 225 Ill. 2d 125, 135

(2007)), but it need not be over 50% (People v. McCarter, 385 Ill. App. 3d 919, 935 (2008)

(citing Miller v. Anderson, 255 F.3d 455, 459 (7th Cir. 2001))).

¶ 48 It is not clear from the record whether trial counsel ever talked to West about appearing as

a defense witness. But even if counsel did not, we do not believe he may be faulted for that

decision. Based upon the police report adduced by Evans, West’s testimony would have been

of little value to the defense. West did not see any part of the altercation with Duffy, let alone

the actual shooting. Additionally, his statement that he saw Bethany, Little Ricky, and Peanut

after the shooting—but not Evans—is consistent with Toney’s testimony that after the

shooting, everyone (including Evans) fled the scene in different directions. Thus, it is unlikely

that West’s testimony would have changed the outcome of the trial, and counsel’s decision not

to pursue this avenue of investigation would have been reasonable.

¶ 49 As for Miles, Evans has not demonstrated that his testimony would have created a

reasonable probability of a different outcome. As discussed, the State’s case against Evans was

strong; if the jury chose to disbelieve Polk, it is unlikely that calling her friend to the stand to

recite a similar account of events would have changed their minds. Because Evans has not

satisfied the prejudice prong of Strickland, his ineffective assistance claim necessarily fails.

See People v. Garman, 2016 IL App (3d) 150406, ¶ 13 (if counsel’s actions did not prejudice

defendant, a court need not decide whether counsel’s performance was constitutionally

deficient (citing People v. Griffin, 178 Ill. 2d 65, 74 (1997))).

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¶ 50 CONCLUSION

¶ 51 For the foregoing reasons, we affirm the trial court’s second-stage dismissal of Evans’s

postconviction petition.

¶ 52 Affirmed.

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