                                                                           Digitally signed by
                                                                           Reporter of Decisions
                        Illinois Official Reports                          Reason: I attest to the
                                                                           accuracy and
                                                                           integrity of this
                                                                           document
                                Appellate Court                            Date: 2017.12.04
                                                                           10:33:54 -06'00'




                  People v. Viramontes, 2017 IL App (1st) 160984



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            LUIS VIRAMONTES, Defendant-Appellant.



District & No.     First District, Second Division
                   Docket No. 1-16-0984



Filed              September 26, 2017



Decision Under     Appeal from the Circuit Court of Cook County, No. 10-CR-5564; the
Review             Hon. Timothy J. Joyce, Judge, presiding.



Judgment           Affirmed.


Counsel on         Douglas H. Johnson and Nicholas M. Curran, of Kathleen T. Zellner
Appeal             & Associates, of Downers Grove, for appellant.

                   Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg,
                   Miles J. Keleher, and Lisanne P. Pugliese, Assistant State’s Attorneys,
                   of counsel), for the People.



Panel              JUSTICE HYMAN delivered the judgment of the court, with opinion.
                   Presiding Justice Neville and Justice Mason concurred in the
                   judgment and opinion.
                                               OPINION

¶1        After discovering that his wife was having an affair with a former coworker, Luis
     Viramontes brutally beat her, and she later died from her injuries. At trial, Luis admitted he
     caused the injuries that led to his wife’s death, but claimed he was seriously provoked by her
     infidelity and that she willingly engaged in aggression against him. A jury convicted Luis of
     first degree murder, and the trial court sentenced him to 25 years in prison.
¶2        Luis appealed his conviction, arguing the trial court (i) should have given a second degree
     murder instruction because the suggestive text messages and photographs equate to personal
     discovery of the adulterous act itself and warrant a provocation instruction; (ii) should have
     granted his request for instructions on involuntary manslaughter, aggravated battery, and
     domestic battery; (iii) should not have allowed the jury to view two autopsy photographs of his
     wife’s head injuries, which he claimed were unduly prejudicial and inflammatory; and (iv)
     improperly limited his cross-examination of State witness Liliana Almazan, which might have
     revealed bias or motive to lie. The appellate court rejected all of these arguments and affirmed
     the conviction and sentence. People v. Viramontes, 2014 IL App (1st) 130075.
¶3        Through private counsel, Luis filed a postconviction petition contending: (i) he was denied
     effective assistance of trial counsel because his trial attorney failed to consult with or call an
     expert witness to rebut the State’s medical evidence, (ii) his trial counsel was ineffective for
     failing to make a proper offer of proof to admit impeachment evidence against Liliana
     Almazan, (iii) the trial court’s refusal to issue an involuntary manslaughter instruction violated
     his rights to due process and a jury trial, (iv) he was denied his right to a fair trial because the
     trial court admitted into evidence irrelevant and prejudicial text messages between him and his
     wife, (v) his appellate counsel was ineffective for failing to properly argue that the trial court’s
     refusal to give an involuntary manslaughter instruction violated his rights to due process, and
     (vi) his appellate counsel was ineffective for failing to raise the improper text message
     testimony on appeal.
¶4        The trial court summarily dismissed Luis’s petition finding that all issues raised were
     frivolous and patently without merit or barred by res judicata. We agree and affirm.

¶5                                           BACKGROUND
¶6       At trial, Luis testified that on January 9, 2010, he and his wife, Sandra Rincon-Viramontes,
     went out for dinner and drinks with family and friends to celebrate his birthday. Sandra’s
     mother watched their two children overnight. The party ended around 11 p.m. Luis testified
     that on the drive home, he noticed Sandra received a text message, which he thought was
     strange. Sandra fell asleep in the car, and when they arrived home, Luis carried her inside and
     put her to bed. When he returned to the car for their belongings, he checked Sandra’s phone
     and saw a sexually explicit text message exchange between Sandra and “Denise.”
¶7       Luis testified that, unknown to him at the time, Sandra was having an extramarital affair
     with Andres (Andy) Ochoa, a former coworker. Sandra saved Andy’s phone number in her cell
     phone as “Denise.” On January 9, Sandra and Andy exchanged 18 text messages. Their
     conversation mentioned meeting up and a request from Andy for suggestive photographs. In
     reply, Sandra sent four or five naked pictures of herself.



                                                  -2-
¶8         Luis testified that when he saw the messages and photographs, he “felt like [his] whole life
       was turned upside down.” He tried calling Denise’s number to discover who Sandra had been
       texting, but no one answered. Luis testified that when he saw the text from Denise stating
       “you’re making me hard,” he knew it was from a man and that Sandra was having an affair.
¶9         Luis testified he then went into the house to confront Sandra about the affair. He found her
       in the bathroom snorting cocaine, and they argued about the drugs. The argument continued
       into the living room, where Luis confronted Sandra about the text messages and naked photos.
       Sandra asked for her phone back. Luis tried again to call Denise’s number. Sandra told Luis
       that “Denise” was really Andy, she had been intimate with him, and they were in love.
¶ 10       Luis testified he was “angry” and “devastated.” He hit Sandra in the face with an open
       hand. Sandra ran into the bedroom and locked the door. Luis continued to yell at Sandra,
       calling her vulgar names and reading the text messages aloud. Luis then spray painted the
       living room and hallway walls and their wedding pictures with explicit words related to the
       affair. He sat at the kitchen table, put his head down, and cried.
¶ 11       Sandra came out of the bedroom. When she saw the spray-painted walls, she ran toward
       Luis screaming and swinging at him. She began to hit him in the chest, so he grabbed Sandra’s
       shoulders, “threw her against the door, and then tossed her over the table.” Luis told Sandra he
       was leaving her. She got up and ran at him again. Luis grabbed her by the shoulders and threw
       her against the refrigerator and then onto the kitchen floor, telling her “Get off me. Leave me.
       I’m leaving you. I’m not going to be with you no more.” He then walked toward the back door.
¶ 12       Sandra got up from the floor, threw her wedding rings at Luis, and said she did not want to
       be married. Luis testified that Sandra then told him that she had an abortion and killed his baby.
       Luis said he thought he had facilitated the abortion because he drove her to a doctor’s
       appointment he thought was related to her cancer diagnosis. Luis testified he “lost it” and
       “couldn’t control [himself] after that.” Luis grabbed Sandra and threw her into the refrigerator,
       causing her to hit her head hard. He then threw her onto the floor, where she hit her head again.
       On the floor in the fetal position, Sandra tried to cover herself as Luis hit her in the face with
       his hands four or five times.
¶ 13       Luis testified that although he hit and threw Sandra, he was not trying to kill her. He said he
       was close to potential weapons, including knives, but did not use any because, as he put it, “I
       wasn’t trying to kill her.” Luis went outside to calm down and texted “Denise,” who did not
       respond. Around 2:30 a.m., he called his brother, Fernando, and asked him to come over.
¶ 14       When Luis went back in the house, Sandra was in bed. He went over to her and asked if she
       was alright. She responded, “Babe, I’m sorry,” to which he replied he was sorry too. Luis
       testified Sandra told him to lie next to her and he did. He claimed she hugged him and told him
       she loved him. Luis testified he tried to comfort her and then she went to sleep.
¶ 15       Luis’s brother, Fernando, testified he arrived at the house shortly after 3 a.m. He looked in
       the bedroom and saw Sandra. He said she did not look hurt, and he thought she was sleeping
       off her intoxication. He did not notice her breathing unusually and did not believe she needed
       medical attention. When he asked Luis what happened, Luis seemed confused and repeated the
       same phrase over and over, “I trusted her, I trusted her.” Luis told Fernando he had hit Sandra
       with his hands. Fernando testified he suggested Luis lay down with Sandra and comfort her.
       Fernando slept in a separate bedroom.



                                                    -3-
¶ 16       Luis woke Fernando around 7:30 a.m. and told him that Sandra was breathing differently.
       Fernando ran to the bedroom. Sandra’s breathing was heavy; she mumbled and moaned. He
       noticed redness on her face, shoulders, and chest. And, he saw blood on the mirror and bed
       sheet. Fernando again asked Luis what happened. Luis told him to call an ambulance, which
       Fernando did. According to Fernando, Luis was “very nervous, shocked, [and] confused” and
       in a state he had never seen his brother. Luis left the house at his instruction, but called
       “countless times” throughout the day to check on Sandra.
¶ 17       Sandra was taken to the hospital by ambulance. In the emergency room, she was unable to
       communicate. Photographs were taken of her injuries and extensive bruising. She had no
       fractures or injuries to her internal organs, other than her brain. Toxicology reports were
       positive for cocaine. Sandra was put on life support. She remained in a coma until her family
       had her ventilator removed when they were informed she would not recover. Sandra died on
       January 31, 2010. Luis turned himself in to the police on January 13.
¶ 18       When asked by his attorney on direct examination if he and Sandra ever exchanged “sexy
       pictures” via text message Luis said no. On cross-examination, the State asked Luis about texts
       of a sexual nature that he exchanged with his wife and specifically asked about text messages
       sent between January 5 and 9, 2010. Defense counsel’s objections based on marital privilege
       were overruled. Luis responded that he could not recall sending and receiving most of the
       messages. Luis admitted sending Sandra text messages on the night he beat her asking, “Do
       you have a problem with me?”
¶ 19       On re-direct, Luis’s attorney asked him about additional text messages Luis sent to Sandra
       in the days before the beating, telling her that he loved her. The parties then stipulated that all
       of the text messages referred to during direct and cross-examination were exchanges between
       Luis and Sandra.
¶ 20       Before trial, the State argued a motion in limine, asking the court to allow testimony from
       two witnesses who said they saw Luis hit Sandra on other occasions and saw her with black
       eyes. The motion was denied with regard to the testimony about black eyes but was granted to
       allow the witnesses to testify about seeing Luis hit Sandra for the limited purposes of showing
       intent. At trial, the State presented only one of the witnesses, Liliana Almazan. Liliana had a
       child with Sandra’s brother. She said she knew Sandra for 11 years and considered her a
       “sister.” A year before Luis and Sandra married, Almazan attended a party at their home and
       was sitting in front of the house with Sandra when Luis walked down the stairs and “slapped
       her upside the head.” She testified that Luis did not say anything to Sandra but he looked upset.
¶ 21       Before Almazan testified, defense counsel sought to introduce photographs during
       cross-examination showing injuries Luis’s niece, Crystal Viramontes, sustained during a fight
       with Almazan in June 2010. The State acknowledged Almazan had a misdemeanor battery
       conviction related to the fight but objected to it being raised on cross-examination. Defense
       counsel said he planned to raise only the fight not the conviction during cross-examination.
       Crystal was on the State’s witness list but the State told the trial court they would not be calling
       her. When asked about the relevance of the fight, defense counsel said, “It goes to show her
       motives to lie. The fact that she’s engaging in the battery of a member of the defendant’s
       family. You have to understand the context of this. Liliana has a child with the brother of the
       alleged victim in this matter and both sides have been very hostile toward one another. This
       will go right to her motive and bias to lie.” The court prohibited the defense from
       cross-examining Liliana about the fight but allowed defense counsel to make it part of the

                                                    -4-
       record. Defense counsel submitted four photos of Crystal Viramontes as she appeared after the
       fight with Almazan for the record.
¶ 22       The State presented two expert witnesses. Dr. David McElmeel, the hospital trauma and
       surgical critical care attending physician, testified that when Sandra was admitted, he saw
       multiple bruises on Sandra’s body, decreased consciousness, and severe edema or swelling of
       the brain. He found bilateral subdural hematomas (an accumulation of blood on the brain’s
       surface) from blunt head trauma; bruising around her forehead, eyes, nose, arms, shoulders,
       chest area, hands, and hip; and lacerations on the bridge of her nose, her forehead, and right
       ankle. Dr. McElmeel explained Sandra suffered significant trauma and that severe force had to
       be applied to cause her injuries. Regarding the toxicology screen testing positive for cocaine,
       McElmeel testified cocaine did not contribute to or cause Sandra’s death.
¶ 23       During cross-examination by defense counsel, Dr. McElmeel acknowledged that Sandra’s
       urine toxicology screen was positive for a high level of cocaine. She had high blood pressure
       when she arrived at the hospital, and he agreed that the high blood pressure could be related to
       cocaine toxicity or could also be related to her head injury. Dr. McElmeel said Sandra had no
       trauma to her neck; no internal injuries to her chest, abdomen, or back; and no facial or skull
       fractures. She had lacerations on her nose and forehead, but nowhere else on her head.
¶ 24       Dr. Michael Humilier performed Sandra’s autopsy. He testified that Sandra was 30 years
       old and weighed 91 pounds (the parties stipulated she weighed 104 pounds when she entered
       the hospital). He noted 27 external evidences of injury and extensive bruising covering almost
       every body surface. He found a subdural hemorrhage, a collection of blood under the skull
       between the layers of tissue that surround the brain, and cerebral edema, swelling of the brain.
       Dr. Humilier testified that the force had to be significant to inflict the devastating injuries,
       something appreciably more severe than banging her head against the wall. In Humilier’s
       opinion, the cause of death was bronchopneumonia due to blunt force trauma from the assault.
       He ruled the death a homicide. He also testified that a drug overdose did not contribute to or
       cause Sandra’s death.
¶ 25       During cross-examination by defense counsel, Dr. Humilier agreed that cocaine can cause
       cerebral edema (which he found in Sandra’s head), subarachnoid hemorrhage (which he did
       not find), as well as respiratory problems, elevated blood pressure, and convulsions. He
       confirmed that (i) hospital records showed Sandra had cocaine in her system when she was
       admitted and (ii) he could not determine whether the bruising on Sandra’s body, aside from the
       injuries to her head, happened during the fight with Luis or at the hospital. Dr. Humilier
       acknowledged that he did not find any fractured bones or any injuries to Sandra’s internal
       organs.
¶ 26       At the jury instruction conference, the defense tendered 18 jury instructions, including a
       lesser-included instruction for second degree murder based on provocation. The defense
       argued sufficient evidence existed for provocation based on adultery and mutual combat. The
       State responded that the case did not fit into any of the four categories meriting a second degree
       instruction. The court agreed. The defense also sought instructions on involuntary
       manslaughter, domestic battery, and aggravated battery. The court denied these as well.
¶ 27       The jury convicted Luis of first degree murder. The trial court sentenced Luis to 25 years in
       prison. The posttrial motion for a new trial was denied. Luis appealed, arguing that the trial
       court (i) should have given a second degree murder instruction as the suggestive text messages
       and photographs equate to personal discovery of the adulterous act itself and warrant a

                                                   -5-
       provocation instruction; (ii) should have granted his request for instructions on involuntary
       manslaughter, aggravated battery, and domestic battery; (iii) should not have allowed the jury
       to view two autopsy photographs of his wife’s head injuries, which he claimed were unduly
       prejudicial and inflammatory; and (iv) improperly limited his cross-examination of State
       witness Liliana Almazan, which might have revealed bias or motive to lie. The appellate court
       affirmed the conviction and sentence. Viramontes, 2014 IL App (1st) 130075.
¶ 28        In his postconviction petition, which was filed on December 21, 2015, through private
       counsel, Luis alleged (i) he was denied effective assistance of trial counsel because his trial
       attorney failed to consult with or call an expert witness to rebut the State’s medical evidence,
       (ii) his trial counsel was ineffective for failing to make a proper offer of proof that would have
       persuaded the trial court to allow Crystal Viramontes to testify and impeach Almazan’s
       testimony, (iii) the trial court’s refusal to issue an involuntary manslaughter instruction
       violated his rights to due process and a jury trial, (iv) he was denied his right to a fair trial
       because the trial court admitted into evidence irrelevant and prejudicial text messages between
       him and his wife, (v) his appellate counsel was ineffective for failing to argue the trial court
       erred by admitting Luis’s text message testimony, and (vi) his appellate counsel was
       ineffective by failing to properly argue that the trial court’s refusal to give an involuntary
       manslaughter instruction violated his rights to due process.
¶ 29        Luis attached two affidavits to his postconviction petition. First, Dr. Larry Blum, a board
       certified forensic pathologist, averred that after reviewing the trial testimony, Sandra’s medical
       records, the postmortem report, and autopsy photographs, he concluded that Dr. Humilier’s
       testimony that it would take a “relatively significant force” to inflict the injuries seen in
       Sandra’s brain was “not necessarily true.” He asserted that cerebral edema, or brain swelling,
       can be associated with even mild brain injury and that the amount of cerebral edema found in a
       patient at the time of death is not necessarily proportional to the blunt force used to inflict the
       initial injury. He also stated that cocaine can contribute to cerebral edema.
¶ 30        Dr. Blum opined that the bruising to Sandra’s face and body did not contribute in any
       significant way to her death and that it is difficult to assess the amount of force used because
       bruising varies significantly between individuals based on a number of factors. Dr. Blum noted
       that Sandra had Hodgkin’s lymphoma and that complications from lymphoma or treatment for
       lymphoma can increase bleeding and bruising. He stated that the volume of blood in Sandra’s
       hematoma, as described by Dr. Humilier, was relatively small and would not necessarily be
       lethal. Also, the existence of a subdural hematoma in the brain is not necessarily indicative of
       an injury from a “significant force.”
¶ 31        Dr. Blum stated that although Dr. Humilier and Dr. McElmeel used the term “significant
       force,” the evidence did not show that Sandra sustained scalp lacerations, skull fractures, or
       other injuries typically seen with blunt force trauma. Moreover, Sandra was responsive
       immediately after the beating and did not have fractures, which “strongly suggests that her
       initial injury, although clinically significant, could have been caused by something less than
       ‘significant’ blunt force.” Dr. Blum concluded that her injuries were not severe enough to infer
       that Luis intended to either kill her or cause her death.
¶ 32        Luis also attached the affidavit of Crystal Viramontes, his niece. Crystal averred that she
       was close to Sandra and never saw Luis act violently toward her. She said she knew Liliana
       Almazan through Sandra and that after Luis was charged with Sandra’s murder, Almazan
       attacked her twice and she believed Almazan was prosecuted and spent time in jail for both

                                                    -6-
       attacks. During the attacks, Almazan told her she was “going to make [Luis] and me pay dearly
       for what Luis did to Sandra.” Crystal never spoke to Luis’s attorney but before trial, she told
       Luis about the attacks and thought he would inform his attorney about them. During trial she
       was told she might be called to testify but she was not.
¶ 33       On March 3, 2016, the trial court issued a written order finding all issues raised by Luis’s
       petition to be “frivolous and patently without merit or barred by res judicata” and summarily
       dismissed the petition. As to Luis’s claim of ineffective assistance of trial counsel for failing to
       call an expert to refute the State’s experts, the trial court found it waived for not be raised on
       direct appeal and meritless because “Dr. Blum’s testimony *** amounts to nothing more than
       second-guessing counsel’s performance, which Strickland strongly cautions the court to
       avoid.” “Rather than call an expert, counsel made a strategic decision to engage in adversarial
       testing of the State’s expert testimony by extensively cross-examining the witnesses.” After
       noting the information elicited on cross-examination—including information about the effects
       cocaine may have had on Sandra, alternative explanations for her bruising, and the absence of
       any fractures—the trial court concluded “counsel’s decision to challenge the medical evidence
       through cross-examination and closing argument fell within the wide range of reasonable
       professional conduct.” The court further stated, even if “an expert witness would have
       inherently made the defense’s case stronger, the decision not to call an expert is not per se
       ineffective assistance because the State could always call additional experts to offer
       contrasting opinions.”
¶ 34       Luis claimed he was prejudiced by his attorney’s failure to call an expert witness because it
       not only prevented his possible acquittal but deprived him of an involuntary manslaughter
       instruction. The court rejected this argument, finding that the decision whether to give an
       involuntary manslaughter instruction was based on factors other than the medical testimony
       regarding Sandra’s injuries, including the physical disparity between Luis and his wife, so the
       introduction of that testimony would not have necessarily resulted in the requested jury
       instruction. Further, Luis failed to show that had the jury instruction been given, the jury would
       have found him guilty of involuntary manslaughter instead. And he cannot demonstrate an
       arguable likelihood that the jury would have felt obligated to disregard the State’s medical
       experts and other evidence and would have found him not guilty.
¶ 35       As to Luis’s claim that he received ineffective assistance because his trial counsel did not
       make a proper offer of proof, the trial court also found this argument waived, because it was
       not raised on direct appeal, and meritless, because it amounted to “an erroneous attempt to
       second-guess counsel’s performance through the distorting lens of hindsight.” The court stated
       that the offer of proof was a matter of “trial strategy” and even if counsel’s strategic decision
       demonstrated deficient performance, “petitioner fails to establish that the alternative offer of
       proof advanced in the petition would have had any greater likelihood of success or that
       introduction of the desired impeachment testimony would have resulted in an entirely different
       outcome at trial.”
¶ 36       Regarding the alleged trial court errors, the court found Luis’s claim of error for failing to
       issue a jury instruction for involuntary manslaughter was barred by res judicata as it had been
       raised and affirmed on direct appeal.
¶ 37       The trial court found Luis’s testimony on cross-examination about his text messages with
       Sandra properly admitted because defense counsel opened the door by asking Luis whether he
       had exchanged text messages of a sexual nature with Sandra and, as a matter that affects

                                                    -7-
       witness credibility, it was a proper subject of cross-examination. The trial court also found that
       Luis did not demonstrate that he was prejudiced by the testimony; he failed to show the
       testimony was a material factor in his conviction in light of the trial evidence.
¶ 38        Lastly, as to Luis’s argument that his appellate counsel was ineffective by failing to
       sufficiently raise the trial court’s refusal to submit a manslaughter instruction, Luis contended
       that if his attorney had raised this argument on federal rather than state law grounds, the
       appellate court would have applied a de novo rather than an abuse of discretion standard of
       review. But the trial court found no cases supporting his position. Luis also failed to
       demonstrate deficient performance as his appellate attorney made a strategic decision about
       which arguments to press. And Luis failed to prove he was prejudiced because, based on the
       evidence, he cannot show that if the appellate court had applied a de novo standard of review,
       there would have been a different outcome. The trial court also rejected, on the basis that the
       underlying claim was meritless, Luis’s claim that his appellate counsel was ineffective for
       failing to raise the text message testimony.

¶ 39                                             ANALYSIS
¶ 40       The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) provides a
       process for a convicted defendant to assert a substantial denial of his or her constitutional rights
       in the proceedings that led to the conviction. People v. Harris, 224 Ill. 2d 115, 124 (2007). A
       proceeding under the Act does not constitute a continuation of the criminal case or substitute
       for direct appeal. Rather, it serves as a collateral proceeding that is limited to claims that were
       not, but could have been, litigated earlier. People v. Petrenko, 237 Ill. 2d 490, 499 (2010).
       “Consequently, any issues that were decided on direct appeal are res judicata, and any issues
       that could have been presented on direct appeal, but were not, are forfeited.” People v. Reyes,
       369 Ill. App. 3d 1, 12 (2006). A defendant bears the burden of showing that he qualifies for
       relief under the Act by demonstrating a violation of a constitutional right. 725 ILCS
       5/122-1(a)(1) (West 2014).
¶ 41       A postconviction proceeding has three distinct stages. People v. Boclair, 202 Ill. 2d 89, 99
       (2002). At the first stage, the trial court must determine whether the defendant’s petition is
       “frivolous” or “patently without merit.” 725 ILCS 5/122-2.1(a)(2) (West 2014). A petition is
       considered “frivolous” or “patently without merit” when it has “no arguable basis either in law
       or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009). A petition will have “no arguable basis
       either in law or in fact” when it “is based on an indisputably meritless legal theory or a fanciful
       factual allegation.” Id. Where the record contradicts a defendant’s legal theory, the theory is
       meritless. Id. “Fanciful factual allegations include those which are fantastic or delusional.” Id.
       at 17. The petition will be dismissed only if it is frivolous or patently without merit. 725 ILCS
       5/122-2.1(a)(2) (West 2014).
¶ 42       The trial court should not dismiss a petition at the first stage if sufficient facts are alleged
       “to state the gist of a constitutional claim.” People v. Allen, 2015 IL 113135, ¶ 24. All
       well-pled facts in the petition and supporting affidavits are taken as true. People v.
       Pitsonbarger, 205 Ill. 2d 444, 455 (2002). We review a first-stage dismissal de novo. Allen,
       2015 IL 113135, ¶ 19.




                                                    -8-
¶ 43                               Ineffective Assistance of Trial Counsel
¶ 44        Luis contends his trial counsel should have (i) investigated and presented an expert witness
       on the issue of the force necessary to cause Sandra’s injuries and the effects of cocaine on her
       system and (ii) made a sufficient offer of proof to admit impeachment evidence against Liliana
       Almazan.
¶ 45        In determining whether a defendant was denied his or her right to effective assistance of
       counsel, we apply the two-prong test of Strickland v. Washington, 466 U.S. 668 (1984); People
       v. Colon, 225 Ill. 2d 125, 135 (2007) (citing People v. Albanese, 104 Ill. 2d 504 (1984)
       (adopting Strickland)). Under Strickland, a defendant must prove (1) his or her attorney’s
       actions constituted errors so serious as to fall below an objective standard of reasonableness
       and, (2) absent those errors, there was a reasonable probability that the trial’s outcome would
       have been otherwise. People v. Ward, 371 Ill. App. 3d 382, 434 (2007) (citing Strickland, 466
       U.S. at 687-94). To prevail, the defendant must satisfy both prongs of the Strickland test.
       Colon, 225 Ill. 2d at 135. “That is, if an ineffective-assistance claim can be disposed of because
       the defendant suffered no prejudice, we need not determine whether counsel’s performance
       was deficient.” People v. Graham, 206 Ill. 2d 465, 476 (2003).
¶ 46        Combining the standard for a first-stage summary dismissal with the standard for
       ineffective assistance of counsel, our supreme court has held that a postconviction petition
       alleging ineffective assistance of counsel may not be summarily dismissed, if: “(i) it is
       arguable that counsel’s performance fell below an objective standard of reasonableness and (ii)
       it is arguable that defendant was prejudiced.” Petrenko, 237 Ill. 2d at 497 (citing People v.
       Golden, 229 Ill. 2d 277, 283 (2008)).

¶ 47                                   Failure to Call an Expert Witness
¶ 48        Luis contends his trial counsel was ineffective for failing to investigate or call an expert
       witness to testify about the amount of force necessary to cause Sandra’s injuries. Luis asserts
       that the degree of force necessary to cause Sandra’s injuries was determinative of whether he
       had the requisite knowledge or intent for a first-degree murder conviction. The State presented
       two medical experts, Dr. Humilier and Dr. McElmeel, who testified that Sandra’s injuries were
       the result of “relatively significant force” and a “severe amount of force,” and so Luis must
       have known his action was likely to result in death or serious bodily injury. Luis claims,
       however, he only hit Sandra four or five times with his open hand and pushed her into a
       refrigerator and a table and did nothing showing he knew she would likely suffer that degree of
       harm. He further asserts that Sandra’s injuries were exacerbated by heavy cocaine use and that
       his attorney should have called an expert, like Dr. Blum, to testify as to the scientific validity of
       the State’s arguments or contradict the State’s experts. He also contends the failure to call an
       expert to rebut the medical testimony precluded his requested involuntary manslaughter
       instruction.
¶ 49        For support, Luis relies on People v. Domagala, 2013 IL 113688, and People v. Tate, 2012
       IL 112214. In Tate, the Illinois Supreme Court reversed the summary dismissal of a
       postconviction petition, finding it was arguable that the defendant was prejudiced by his
       attorney’s failure to investigate or call four witnesses, two of whom could have provided the
       defendant with an alibi defense. Tate, 2012 IL 112214, ¶¶ 24-25. One witness would have
       testified (i) he was five feet from the victim at the time of the shooting, (ii) he saw the shooting,
       (iii) he had known defendant for years, and (iv) he was “sure” that the defendant was not the

                                                     -9-
       shooter. Id. ¶ 5. No physical evidence linked the defendant to the crime and the defendant did
       not make a confession. Id. ¶ 24. Hence, the witness’s testimony would have provided a
       first-person account of the incident that directly contradicted the State’s eyewitness testimony.
       Id.
¶ 50        Luis notes that in Tate, the supreme court rejected the State’s argument that trial counsel
       had strategic reasons for not calling certain witnesses because their testimony would have hurt
       defendant rather than helped him. The supreme court stated that the State’s “argument is 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. The State’s strategy argument is inappropriate for the first stage,
       where the test is whether it is arguable that counsel’s performance fell below an objective
       standard of reasonableness and whether it is arguable the defendant was prejudiced.” Id. ¶ 22.
¶ 51        Luis asserts that as in Tate, as a first-stage proceeding, we should reject the State’s
       argument that his attorney had strategic reasons not to present an expert witness. But his
       reliance on Tate is misplaced. While Tate did hold that the strategy argument is not appropriate
       for the first stage, unlike in Tate, Dr. Blum’s affidavit does not meet the “arguable” Strickland
       standard. In Tate, as the supreme court noted, the affidavits of the witnesses who were not
       called at trial averred that they were present when the shooting happened, with one witness
       stating he was five feet from the victim, knew the defendant, and was “sure” he was not the
       shooter. Conversely, neither Dr. Blum nor any other expert witness could have unequivocally
       testified that Luis did not commit the crime.
¶ 52        Moreover, unlike in Tate, Luis’s attorney cross-examined the State’s expert witnesses on
       most of the issues Dr. Blum discusses. On cross-examination, the State’s experts
       acknowledged that Sandra did not have broken bones; that she tested positive for cocaine,
       which can cause cerebral edema; and that her bruising may have been caused by her cancer
       diagnosis. And during closing argument, defense counsel relied on the testimony he elicited
       during his cross-examination of the State’s experts to argue, in part, that Sandra had not been
       severely beaten but had signs of cocaine toxicity, which caused her death. Thus, the defense
       counsel did present an alternate theory to the jury, namely, that Sandra was not severely beaten
       and that cocaine significantly contributed to her death. The jury opted not to accept that theory
       and Luis, with the benefit of hindsight, wants to argue that the jury might have decided
       otherwise if his attorney had presented and expert witness. But, as the trial court noted, “Dr.
       Blum’s testimony *** amounts to nothing more than second-guessing counsel’s performance,
       which Strickland strongly cautions the court to avoid.”
¶ 53        In addition to failing to establish that his attorney’s performance was deficient, Luis fails to
       show prejudice in light of the overwhelming evidence against him, including his own
       admissions. Luis argues that the lack of expert testimony, which could have shown that
       something other than his beating Sandra caused her death, prevented him from receiving an
       involuntary manslaughter instruction and an acquittal. This claim is based on speculation and
       cannot support a claim for ineffective assistance of counsel. People v. Gosier, 165 Ill. 2d 16, 24
       (1995). First, as the trial court noted, its decision regarding the involuntary manslaughter
       instruction was “not rooted solely in the State’s medical testimony regarding the nature of the
       victim’s injuries but was also based on other factors such as the disparity between petitioner
       and victim.” Thus, we cannot say it is arguable that introduction of an expert witness would
       have changed the trial court’s mind about giving the involuntary manslaughter instruction.

                                                    - 10 -
¶ 54       In addition, the evidence of Luis’s guilt, including his own testimony was overwhelming
       and thus, he cannot establish that it is arguable the outcome of the trial would have been
       different if his attorney had presented expert medical testimony. Luis testified as to the severity
       of the beating, stating that he threw Sandra against a door, over the table, and into the
       refrigerator, causing her to hit her head against the refrigerator, “really hard.” He then threw
       her onto the floor, where she hit her head again. On the floor in the fetal position, Sandra tried
       to cover herself as Luis hit her in the face with his hands four or five times.
¶ 55       With respect to his counsel’s alleged failure to investigate whether to present an expert
       witness, Luis asserts his attorney had an obligation to investigate his case and explore all
       readily available sources of evidence that could have benefited him. He argues that his attorney
       could not be deemed to have made the decision on an expert witness based on valid trial
       strategy when his attorney did not even investigate the possibility or determine the substance
       of a potential expert witness.
¶ 56       It is well settled that trial counsel has a professional duty to conduct reasonable
       investigations and independently investigate any possible defenses. Strickland, 466 U.S. at
       691. Further, “[l]ack of investigation is to be judged against a standard of reasonableness given
       all of the circumstances, ‘applying a heavy measure of deference to counsel’s judgments.’ ”
       People v. Kokoraleis, 159 Ill. 2d 325, 330 (1994) (quoting Strickland, 466 U.S. at 691).
       Defense counsel’s cross-examination of the expert witnesses regarding the types of injuries
       Sandra suffered and the possible effects of cocaine in exacerbating those injuries show that
       defense counsel engaged in reasonable investigation of Luis’s case and possible defenses. His
       decision to elicit the testimony on cross-examination of the State’s experts did not constitute
       ineffective assistance of counsel.

¶ 57                                           Offer of Proof
¶ 58       Luis contends the trial court should not have summarily dismissed his claim that his trial
       counsel was ineffective by failing to make a sufficient offer of proof to admit impeachment
       evidence against Liliana Almazan, who testified for the State that she saw Luis hit Sandra on
       the head. Luis argues that his attorney failed to adequately make a proffer to allow evidence
       showing that Almazan committed a battery against his niece, Crystal Viramontes, several
       months after Sandra died, which would have shown that Almazan was biased against him. Luis
       submitted Crystal’s affidavit providing extensive details of the fight and averring that Almazan
       told Crystal that she would “make Luis and me pay dearly for what Luis did to Sandra” and that
       she was “going to make sure that Luis went back to jail.”
¶ 59       A postconviction proceeding is not a substitute for a direct appeal, but instead, is a
       collateral attack on the conviction that allows only limited review of constitutional claims that
       could not be raised on direct appeal. People v. Harris, 224 Ill. 2d 115, 124 (2007). Therefore,
       claims that could have been raised on direct appeal, but were not, are forfeited, and claims that
       were addressed on direct appeal are barred by res judicata. Id. at 124-25; 725 ILCS 5/122-3
       (West 2014); see also People v. Makiel, 358 Ill. App. 3d 102, 105 (2005) (any issues decided
       on direct appeal are barred by res judicata; any issues that could have been raised on direct
       appeal are defaulted). This rule is relaxed where “the facts relating to the claim do not appear
       on the face of the original appellate record.” Makiel, 358 Ill. App. 3d at 105. Forfeiture is not
       implicated, however, when a claimant relies on evidence outside the original appellate record.
       People v. Enis, 194 Ill. 2d 361, 375-76 (2000).

                                                   - 11 -
¶ 60       On direct appeal, Luis alleged the trial court improperly precluded him from
       cross-examining Almazan about the misdemeanor battery conviction (Viramontes, 2014 IL
       App (1st) 130075, ¶¶ 87-92). At that time, he also could have raised the argument that his trial
       counsel was ineffective for not offering a sufficient proffer. Thus, his argument that his
       attorney was ineffective for failing to make a sufficient proffer was forfeited.
¶ 61       Even if the alleged failure to proffer was not forfeited, Luis cannot establish it constitutes
       an arguable claim of ineffective assistance of counsel because Luis’s attorney made a
       sufficient offer of proof. First, although Luis’s brief suggests Crystal would have testified and
       impeached Liliana Almazan’s testimony, the record shows defense counsel did not seek to call
       Crystal as a witness but wanted to use Almazan’s battery conviction on cross-examination to
       impeach her for bias. Defense counsel informed the court of the nature of the battery Almazan
       committed against Crystal and the reason why he wanted to introduce it on cross-examination.
       When the trial court questioned the relevance of the fight, trial counsel said that Almazan had a
       child with the victim’s brother, that “both families have been very hostile to one another,” and
       that the evidence “will go right to her motive and bias to lie.” He also informed the trial court
       that the fight occurred in June 2010, within a few months of Sandra’s death. When the trial
       court precluded the questioning, defense counsel asked that photos depicting Crystal after the
       fight be made part of the record and impounded for the appellate court. Although Crystal’s
       affidavit perhaps provides a more vivid description of both the fight and Almazan’s comments
       to Crystal, it does not add more information than was offered in the proffer as to the
       testimony’s purpose—to show that Almazan as biased against Luis. Although the trial court
       denied defense counsel’s request, as noted, we will not second guess counsel’s performance
       through the distorting lens of hindsight. See People v. Rodriguez, 364 Ill. App. 3d 304, 312
       (2006) (“For purposes of Strickland’s first prong, it is not enough that another lawyer, with the
       benefit of hindsight, would have acted differently than trial counsel.”).

¶ 62                            Involuntary Manslaughter Jury Instruction
¶ 63       Luis next contends summary dismissal of his petition was not warranted because the trial
       court denied him the right to a fair trial by refusing to grant his request for a jury instruction on
       involuntary manslaughter. Luis asserts the facts at trial showed he did not intend to kill Sandra
       and supported giving an involuntary manslaughter instruction. Specifically, he notes the
       evidence showed that the fight was over Sandra’s sexual infidelity, Sandra did not suffer any
       broken bones, Sandra hit him back, Luis did not use weapons that were available to him,
       Sandra was not unresponsive until hours after the fight, and Luis asked his brother to call 911.
       Relying on Beck v. Alabama, 447 U.S. 625 (1980), Luis argues that the trial court’s refusal to
       consider a lesser included offense where the evidence supported it is a denial of due process.
¶ 64       The State counters that, because the appellate court addressed this specific claim in Luis’s
       direct appeal, the claim was waived and barred by res judicata. The State acknowledges that
       Luis did not raise a due process argument on direct appeal and instead argued that the evidence
       supported an involuntary manslaughter instruction because the jury could have rationally
       found he acted recklessly and not with the intent to kill Sandra. The State argues, however, that
       Luis cannot obtain relief under the Act by rephrasing previously addressed issues in
       constitutional terms in a postconviction petition.
¶ 65       We agree with the State. Although the purpose of the postconviction proceeding is to
       permit inquiry into the constitutional issues involved in the “original” proceeding, a petitioner

                                                    - 12 -
       cannot obtain relief under the Act simply by “ ‘rephrasing previously addressed issues in
       constitutional terms’ ” in his or her petition. People v. Flores, 153 Ill. 2d 264, 277-78 (1992)
       (quoting People v. Gaines, 105 Ill. 2d 79, 90 (1984)). Such claims will be properly defeated by
       operation of waiver and res judicata. Id. at 278. The question of whether the trial court erred in
       refusing to give an involuntary manslaughter instruction was raised on direct appeal, albeit not
       phrased in constitutional terms. So, Luis previously raised this issue, and it is barred by
       res judicata. The trial court properly dismissed it. See People v. Blair, 215 Ill. 2d 427, 447
       (2005) (trial court may properly dismiss first-stage petition based on res judicata).

¶ 66                                            Text Messages
¶ 67        According to Luis, the trial court improperly allowed into evidence irrelevant text
       messages of a sexual nature exchanged between he and Sandra that were prejudicial and
       denied him the right to a fair trial. Luis notes that in dismissing his petition, the trial court
       found that Luis opened the door for questions about the text messages—on direct examination,
       he denied exchanging messages of a sexual nature with Sandra. In addition, the court found
       that the messages went to the issue of Luis’s credibility. Luis contends, however, the questions
       on direct examination about sexually explicit texts between Sandra and Andy were
       foundational; they went to the issue of how he learned about her affair. He asserts that,
       conversely, the text messages he exchanged with Sandra had no probative value, had no
       bearing on his guilt or innocence, and did not prove or disprove a disputed fact or relate to what
       happened on the night of the altercation. Luis argues the messages served only to prejudice him
       in minds of jurors, who might find these messages inappropriate or evidence that he was a
       sexual deviant.
¶ 68        Generally, cross-examination is limited in scope to the subject matter of direct examination
       of the witness and to matters affecting the credibility of the witness. This limitation is
       construed liberally, however, to allow inquiry into whatever subject tends to explain, discredit,
       or destroy the witness’s direct testimony. People v. Terrell, 185 Ill. 2d 467, 498 (1998). The
       latitude to be given on cross-examination falls within the trial court’s discretion. People v.
       Hall, 195 Ill. 2d 1, 23 (2000). A reviewing court will not interfere unless the trial court plainly
       abused its discretion resulting in manifest prejudice to the defendant. Id.
¶ 69        Luis asserts that the questions on direct examination were foundational to establish that the
       text messages came from Sandra’s boyfriend and did not open the door to cross-examination.
       But Luis had already testified the messages were sent by “Denise,” which turned out to be a
       fake name but were obviously not an exchange between Luis and Sandra. When defense
       counsel asked Luis if he and Sandra ever sent “sexy pictures” to each other, he said no. This
       opened the door to the line of questioning by the State on cross-examination and was relevant
       to Luis’s truthfulness. As the trial court noted in its dismissal order, “[t]he State’s
       cross-examination questions pertained to subject matter first brought up on direct examination
       and disputed the veracity of petitioner’s testimony, which concerns his credibility as a
       witness.” Luis was a witness on his own behalf, and “[a]ny permissible matter which affects
       the witness’s credibility may be developed on cross-examination.” People v. Kliner, 185 Ill. 2d
       81, 130 (1998). On direct, Luis falsely stated that he and his wife did not exchange messages of
       a sexual nature, even though they had done so in the immediate days before their fight. This
       does go to Luis’s credibility and was a permissible subject of cross-examination. Thus, the trial


                                                   - 13 -
       court did not err in summarily dismissing this claim in his postconviction petition.

¶ 70                            Ineffective Assistance of Appellate Counsel
¶ 71        Lastly, Luis contends the trial court erred in summarily dismissing his claims that his
       appellate counsel was ineffective by (i) failing to argue the trial court’s refusal to submit a jury
       instruction on involuntary manslaughter violated his right to due process and a fair trial and (ii)
       failing to argue the trial court erred by admitting into evidence the text messages between him
       and Sandra.
¶ 72        The Strickland test applies to claims of ineffective assistance of appellate counsel. People
       v. Rogers, 197 Ill. 2d 216, 223 (2001). A defendant who claims that appellate counsel was
       ineffective for failing to raise an issue in his or her appeal must allege facts demonstrating that
       (i) the failure was objectively unreasonable and (ii) counsel’s decision prejudiced the
       defendant. Id. Appellate counsel is not obligated to brief every conceivable issue, and it is not
       incompetence to refrain from raising issues that, in counsel’s judgment, are without merit,
       unless counsel’s assessment is patently wrong. People v. Simms, 192 Ill. 2d 348, 362 (2000).
       Thus, the prejudice inquiry requires the reviewing court to examine the merits of the
       underlying issue. Id. Appellate counsel’s choices about which issues to pursue are entitled to
       substantial deference. Rogers, 197 Ill. 2d at 223.
¶ 73        First, on the involuntary manslaughter jury instruction, appellate counsel did raise the issue
       on direct appeal, arguing that when Luis beat Sandra, he was acting under sudden and intense
       passion stemming from serious provocation. He asserted that the manner of his discovery was
       akin to being present during an adulterous act and warranted a second degree murder
       instruction. In his postconviction petition, Luis asserts his appellate counsel did not properly
       raise the issue because instead of arguing the court’s error was an abuse of discretion based on
       state law, he should have framed it as a violation of his constitutional due process rights, which
       the appellate court would have reviewed de novo.
¶ 74        In its order summarily dismissing Luis’s petition, the trial court observed that the United
       States Supreme Court has addressed the issue of due process rights to a jury instruction only in
       the context of capital cases and expressly reserved the question of a defendant’s general
       constitutional right to a jury instruction. See Beck v. Alabama, 447 U.S. 625, 637 (1980). Luis
       argues, however, that the absence of binding precedent should not have precluded his appellate
       counsel from raising the argument. He also asserts support for his due process argument in
       Justice O’Connor’s concurring opinion in Gilmore v. Taylor, 508 U.S. 333, 348-49 (1993)
       (O’Connor, J., concurring, joined by White, J.). There, Justice O’Connor stated that
       “erroneous state-law instructions *** may violate due process and hence form the basis for
       relief, even in a noncapital case.” Id. at 349. Although Justice O’Connor’s concurrence is not
       binding authority, Luis asserts it is an “arguable” foundation for an ineffective assistance of
       counsel claim at the first stage.
¶ 75        We agree that the absence of Supreme Court precedent does not preclude appellate counsel
       from raising the issue. But it does support a finding that appellate counsel was not incompetent
       for deciding instead to argue, as appellate counsel did, that the trial court abused its discretion
       by denying the involuntary manslaughter instruction. It was reasonable for appellate counsel to
       decide that in the absence of cases to support the due process argument, he was more likely to
       succeed by arguing that the trial court abused its discretion in refusing the instruction.


                                                    - 14 -
¶ 76       Moreover, Justice O’Connor’s concurring opinion in Gilmore does not, as Luis contends,
       lend strong support to his due process argument. In Gilmore, the defendant received an
       erroneous jury instruction and the court held that outside of capital cases, “instructions that
       contain errors of state law may not form the basis for federal habeas relief.” Id. at 342 (majority
       opinion). Thus, Justice O’Connor’s concurrence was addressing the possibility of a due
       process claim in noncapital cases where the instruction was incorrect, not where the trial
       court’s decided against giving a requested jury instruction based on the evidence. In the
       absence of any cases, we cannot say that Luis has a meritorious argument that his due process
       rights were violated. Thus, he cannot arguably show that he was prejudiced by appellate
       counsel’s failure to further develop the due process argument.
¶ 77       As to the cross-examination regarding the text messages between Luis and Sandra, failing
       to raise this issue did not amount to ineffective assistance of counsel. As noted, unless the
       underlying issue is meritorious, petitioner suffered no prejudice from counsel’s failure to raise
       it on direct appeal. We already have found a lack of merit in Luis’s argument that the trial court
       erred in permitting cross-examination about the text messages he and Sandra exchanged.
       Appellate counsel was not ineffective for failing to raise it on appeal, and the trial court
       correctly dismissed Luis’s ineffective assistance of appellate counsel claim.

¶ 78      Affirmed.




                                                   - 15 -
