                                     2016 IL App (1st) 142323

                                                                              SIXTH DIVISION
                                                                 Opinion filed: October 21, 2016

                                 No. 1-14-2323
______________________________________________________________________________

                                             IN THE

                               APPELLATE COURT OF ILLINOIS

                                        FIRST DISTRICT


 THE PEOPLE OF THE STATE OF ILLINOIS,          )     Appeal from the
                                               )     Trial court of
       Plaintiff-Appellee,                     )     Cook County
                                               )
 v.                                            )     No. 89 CR 27587 (3)
                                               )
 MICHAEL MEYERS,                               )     Honorable
                                               )     Lawrence E. Flood,
       Defendant-Appellant.                    )     Judge, Presiding.
______________________________________________________________________________

          JUSTICE HOFFMAN delivered the judgment of the court, with opinion.
          Justices Cunningham and Rochford concurred in the judgment and opinion.

                                            OPINION

¶1        The defendant, Michael Meyers, appeals from the trial court's denial of his petition

seeking relief pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq.

(West 1994)). For the reasons which follow, we affirm.

¶2        The facts leading up to the defendant's conviction of two counts of first-degree murder

and his sentence to natural life imprisonment are set forth in detail in this court's opinion in

People v. Young, 263 Ill. App. 3d 627 (1994). Consequently, we will set forth only those facts

necessary to an understanding of our resolution of the issues raised by the defendant in this

appeal.
No. 1-14-2323


¶3     The defendant and six codefendants were charged with the shooting deaths of Dan

Williams and Thomas Kaufman which occurred near the Stateway Gardens housing complex

(Stateway complex). The shootings occurred on November 9, 1989, at approximately 10 p.m.

and originated from the ground and first floor porches of a building at 3517-3519 South Federal

Street (building) which is located in the Stateway complex. The defendant and five codefendants

were tried jointly before a jury.

¶4     At trial, Deanda Wilson, who was 12 years old at the time of the shooting, testified that

he saw seven men dressed in black clothing, one of whom was the defendant, shoot at Williams.

Specifically as to the defendant, Wilson testified that he saw him step out from under the

building, retrieve a gun from under his coat and fire at Williams. According to Wilson, Williams

stumbled through a play lot toward a building occupied by the Illinois Institute of Technology

(IIT) and eventually fell in the revolving door of the building. The defendant and the other six

men fled the scene with guns in their hands.

¶5     The trial testimony of IIT security personnel established that the group of assailants

chased Williams towards the IIT building, firing multiple gunshots. Several of the bullets struck

and killed Kaufman, an IIT security guard stationed inside of IIT's front door.

¶6     A.W., the minor girlfriend of one of the codefendants, Kevin Young, testified that,

several hours before the shooting, she was in an apartment located in the Stateway complex with

five men, including the defendant. According to A.W., the five men left the apartment at

approximately 10 p.m., each dressed in black and carrying a gun. She testified that, when the

defendant and his four companions returned to the apartment approximately 20 minutes later,

they were wearing ski masks or stocking caps over their faces.

¶7     Following the trial, the jury found the defendant guilty of two counts of first-degree


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murder, and he was sentenced to natural life imprisonment. On direct appeal, this court affirmed

the defendant's conviction and sentence. Young, 263 Ill. App. 3d at 643.

¶8     In 1995, the defendant filed a pro-se petition for postconviction relief pursuant to the Act.

In 2000, counsel representing the defendant filed a supplemental petition, asserting in relevant

part: (1) the defendant's actual innocence based upon newly discovered evidence consisting of

Wilson's recantation of his trial testimony; and (2) ineffective assistance of trial counsel, George

Nichols, for having failed to interview or call Sherrie Parker both as an alibi witness and for the

purpose of impeaching the testimony of A.W. The supplemental petition was supported by

Parker's affidavit, stating, inter alia, that the defendant came to her apartment at approximately

9:30 p.m. on the night of the shooting and left at about 10 p.m. The affidavit stated that she

heard gunshots "[a]lmost immediately after [he] *** left [her] apartment." Parker averred that

she did not know who Nichols was and that she never spoke to him about the shooting.

Following an evidentiary hearing confined to the issue of Wilson's recantation, the trial court

denied the defendant postconviction relief based upon newly discovered evidence and dismissed

the defendant's claim of ineffective assistance of trial counsel without a hearing. The defendant

appealed, and this court affirmed that portion of the trial court's order which rejected Wilson's

recantation as a basis for granting the defendant postconviction relief, but found that the trial

court erred in dismissing that portion of the defendant's petition which sought relief based upon

ineffective assistance of trial counsel without an evidentiary hearing. As a consequence, we

reversed that portion of trial court's order dismissing the defendant's ineffective-assistance claim

and remanded the matter back to the trial court for further proceedings consistent with the

mandates of the Act.      People v. Meyers, No. 1-06-0214 (2008) (unpublished order under

Supreme Court Rule 23).


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¶9     On remand, the defendant's postconviction counsel, Assistant Public Defender (APD)

Timothy Leeming, filed a motion to withdraw after reviewing trial counsel's file and concluding

that, contrary to the assertions in the defendant's petition, Nichols contacted and interviewed

Parker prior to trial. The trial court granted the motion and invited the State to file a motion to

dismiss the defendant's postconviction petition. Thereafter, the State filed the invited motion

which the trial court granted, and the defendant appealed. Initially, this court issued an order

affirming the dismissal. However, after granting the defendant's petition for rehearing, we

vacated our original order and entered an order reversing the dismissal of the defendant's petition

and remanded the matter back to the trial court for further proceedings. People v. Meyers, 2012

IL App (1st) 102398-U, ¶¶ 17-18.

¶ 10   On remand, the trial court held a third-stage postconviction evidentiary hearing,

addressing the defendant's claim that he received ineffective assistance based upon his trial

counsel failure to interview Parker or call her to testify both as an alibi witness and for the

purpose of impeaching A.W.'s testimony. At the evidentiary hearing, the defendant and Parker

testified in support of the petition, and APD Leeming, Detective Edward Winstead, and

Investigator Brannigan testified for the State. In addition to the witness's testimony, the parties

stipulated that the defendant's trial attorney, Nichols, was dead.

¶ 11   The defendant denied any involvement in the shooting of Williams and Kaufman and

also denied having made any postarrest statements regarding the shootings. According to the

defendant, he was at Parker's apartment when the shootings took place. He testified that he and

Parker were in the hallway of her apartment building when he heard gunfire.             On cross-

examination, however, the defendant acknowledged that he made a motion prior to trial to

suppress his postarrest statements. The defendant testified that he told Nichols that he was with


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Parker at the time of the shooting. He also stated that, on the date of his trial, Nichols told him

that he knew that Parker was in the courthouse, but that he did not plan to call her as a witness.

¶ 12   Parker testified that the defendant came to her apartment on the day of the shooting.

Although she was unsure of the exact time of the defendant's arrival, she recalled that it was

before 10 p.m. and that it was dark outside. According to Parker, the defendant had been at her

apartment for at least 30 minutes and was near the front door, about to leave, when she heard

shots. She testified that the defendant's trial attorney did not meet with her before trial and did

not believe that anyone working for the attorney ever spoke to her. Parker did acknowledge,

however, that someone came to talk to her before the trial, but it was not the defendant's

attorney. Parker stated that she received a subpoena to testify at the defendant's trial, came to

court, and waited outside of the courtroom. According to Parker, she was willing to testify but

was never called as a witness.

¶ 13   Parker identified her signature on the affidavit which was attached to the defendant's

supplemental postconviction petition.      She stated that she did not know who prepared the

affidavit or who brought it to her for her signature. She testified that she read the affidavit and

decided to sign it despite the fact that it contained inaccuracies. Although the affidavit states that

Parker heard gunshots almost immediately after the defendant left her apartment, she testified

that she and the defendant were in the process of leaving her apartment when she heard gunshots.

Contrary to the statement in her affidavit, Parker denied that she saw an individual carrying a

gun running from the scene of the shootings. She admitted that she spoke to an investigator in

2009 who questioned her about her affidavit, and acknowledged that she told the investigator

that the defendant was in her apartment at 3 p.m. and that the shooting took place during daylight

hours. She also testified that she told the investigator that parts of her affidavit were untrue.


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Although Parker remembered that, in 2013, she spoke to two investigators who questioned her

about her affidavit, one of whom was the same investigator to whom she spoke in 2009, she did

not recall telling those investigators that the shooting took place at either 3 p.m. or 7 p.m. She

also remembered speaking to someone in an office who might have been APD Leeming.

Throughout her testimony, Parker reiterated that it was dark when the shooting took place,

although she was unsure as to the exact time. In addition, Parker admitted to daily drug use in

1989.

¶ 14    Investigator Brannigan testified that he interviewed Parker in both 2009 and 2013. He

stated that, when he interviewed Parker in 2009, she told him that the defendant was with her at 3

p.m. when the shooting occurred and that she remembered that it was light outside. According to

Brannigan, when he interviewed Parker again in 2013, she told him that the shooting took place

at approximately 7 p.m. and that the defendant was with her at the time, "probably" doing drugs

in her apartment. Brannigan admitted, however, that both in 2009 and 2013, Parker stated that

the defendant was with her inside of her apartment building when she heard gunshots.

¶ 15    Detective Winstead testified that he interrogated the defendant after he was taken into

custody. According to Winstead, the defendant told him that he went to the location of the

shooting to buy marijuana where he saw his five codefendants.           Winstead stated that the

defendant also told him that he saw Williams walking and heard someone tell Williams to stop

after which a group of men began shooting at Williams. However, the defendant did not identify

the men who he saw shooting. Winstead testified that the defendant told him that he would

cooperate if the police "took care" of other unrelated charges which were pending against him.

He admitted that the defendant always denied any involvement in the shooting. In addition, he

stated that, during the course of his interrogation, the defendant never mentioned Parker.


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¶ 16   The parties stipulated that, if called as a witness, Assistant State's Attorney (ASA) Jerry

Marconi would testify that the defendant gave him an account of events similar to the statement

he gave to Detective Winstead. Neither the statement which the defendant gave to Detective

Winstead nor the one which he gave to ASA Marconi was committed to writing, and the State

never introduced evidence of either statement at the defendant's trial.

¶ 17   APD Leeming testified that, in 2009, he was assigned to represent the defendant in his

postconviction proceeding.     According to Leeming, he found his office's trial file which

contained notes of an interview of Parker on March 27, 1990. There is no reference in those

notes that Parker said that she was with the defendant at the time of the shooting. Leeming

admitted that he had "no idea" who composed the notes. He testified that he interviewed Parker

in his office and went through her affidavit. He stated that she told him that the shooting

occurred at about 3 p.m. Leeming also testified that he and a law student named David Weiss

interviewed Nichols at his home in 2010 and notes were taken of that interview. According to

Leeming, the interview did not establish whether Nichols did, or did not, meet with Parker prior

to the defendant's trial. When Leeming was shown a document purporting to be Weiss's notes of

his interview of Nichols on March 8, 2010, Leeming testified that he did not recognize the notes,

but assumed that they were accurate. The defendant's counsel sought to have the notes admitted

in evidence, but the State objected based on lack of foundation. The trial court sustained the

objection, stating that, unless Weiss was called as a witness, the notes could not be admitted.

Weiss was never called as a witness.

¶ 18    After the close of the evidence, the trial court made a number of statements which, when

taken as a whole, make it clear that it found portions of the testimony of both the defendant and

Parker lacking in credibility. However, the trial court never made any specific credibility finding


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No. 1-14-2323


addressed to the defendant's assertion that he informed his trial attorney that he was with Parker

at the time of the shooting. Commenting on the defendant's claim that he was with Parker, the

trial court summarized the testimony of Detective Winstead who stated that the defendant gave a

statement admitting that he was at the scene of the shooting to purchase marijuana and that he

observed the shooting, but was not involved. The court also noted the parties' stipulation that, if

called as a witness, ASA Marconi would testify that the defendant made essentially the same

statement to him. The court commented that the defendant's testimony denying that he gave any

postarrest statements was impeached by the presence in the record of his pretrial motion to

suppress the statements.

¶ 19   After summarizing the evidence, the trial court found that the reasonable inferences to be

drawn from the totality of the evidence presented at the postconviction hearing are that "George

Nichols was aware of Sherry [sic] Parker and as a matter of trial strategy decided not to call her."

The trial court then concluded that the defendant failed to establish by a preponderance of the

evidence that his constitutional rights had been violated and denied his petition for

postconviction relief. This appeal followed.

¶ 20   In urging reversal of the denial of his postconviction petition, the defendant argues that

the trial court erred in sustaining the State's objection to the admission into evidence of Weiss's

notes of APD Leeming's interview of Nichols, or, in the alternative, that his postconviction

counsel did not provide reasonable assistance by failing to call Weiss as a witness to establish a

foundation for the admission of his notes. In either case, the defendant requests that we reverse

the denial of his postconviction petition and remand the matter back to the trial court for a new

evidentiary hearing.

¶ 21   We apply a manifestly erroneous standard to our review of a trial court's denial of a


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postconviction petition after a third-stage evidentiary hearing, and we accord great deference to

the trial court's factual determinations. People v. Childress, 191 Ill. 2d 168, 174 (2000).

¶ 22   We first address the defendant's argument that the trial court erred in sustaining the

State's objection to the admission into evidence of Weiss's notes of APD Leeming's interview of

Nichols. According to the defendant, the excluded notes: support his claim that his trial attorney

rendered ineffective assistance by failing to interview Parker or call her as a witness at his trial;

rebut the State's argument that his trial attorney interviewed Parker and strategically decided not

to call her as a witness; and impeach APD Leeming's testimony regarding his interview of

Nichols.

¶ 23   Whether evidence is admitted in an evidentiary hearing on a postconviction petition is a

matter committed to the sound discretion of the trial court, and its decision in the matter will not

be disturbed on review absent an abuse of that discretion. People v. Jones, 2012 IL App (1st)

093180, ¶ 52. A trial court abuses its discretion in admitting or refusing to admit evidence when

its decision is arbitrary, fanciful or unreasonable or when no reasonable person would take the

view adopted by the trial court. Id. (citing People v. Donoho, 204 Ill. 2d 159, 182 (2003)). We

find no abuse of discretion in this case.

¶ 24   When APD Leeming was confronted with a copy of Weiss's notes of his interview of

Nichols, he testified that he did not recognize the notes, and there is no evidence in the record

authenticating them. Authentication is a necessary element of the foundation necessary for the

admission of documentary evidence. People v. Alsup, 373 Ill. App. 3d 745, 758 (2007). In the

absence of evidence authenticating Weiss's notes, the trial court did not err in sustaining the

State's objection to their admission on foundational grounds.

¶ 25   We turn next to the defendant's argument that his postconviction counsel provided


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unreasonable assistance by failing to call Weiss as a witness to establish a foundation for the

admission of his notes of the Nichols interview into evidence. According to the defendant,

Weiss's notes were affirmative proof of his trial attorney's failure to interview Parker and went

directly to the central issue in the case. He argues that, assuming the trial court properly declined

to admit Weiss's notes on foundational grounds, postconviction counsel's failure to call Weiss as

a witness to provide a proper foundation for his notes amounted to unreasonable assistance,

entitling him to a new evidentiary hearing.        We conclude, however, that the defendant's

unreasonable assistance claim fails because he cannot show that he was prejudiced by counsel's

failure to call Weiss as a witness.

¶ 26   The right to counsel in a postconviction proceeding is wholly statutory in origin. People

v. Lander, 215 Ill. 2d 577, 583 (2005). As a consequence, a postconviction petitioner is entitled

only to the level of assistance provided by the Act. People v. Flores, 153 Ill. 2d 264, 276 (1992).

The Act requires that counsel provide a reasonable level of assistance. People v. Perkins, 229 Ill.

2d 34, 42 (2007).

¶ 27   Assuming for the sake of analysis only, but not deciding, that Weiss's notes, although

hearsay, could have been admitted in evidence (see Ill. R. Evid. 1101(b)(3) (eff. Jan. 6, 2015)), if

Weiss had been called as a witness and had authenticated them, we would still find that the

defendant suffered no prejudice by reason of postconviction counsel's failure to call Weiss as a

witness. If admitted, Weiss's notes would only have been relevant to the issue of whether

Nichols interviewed Parker. However, as noted earlier, the trial court did not rest its conclusion

that Nichols' decision not to call Parker as a witness was based upon his interview of her.

Rather, the trial court found that Nichols was aware of Parker and "as a matter of trial strategy

decided not to call her." We believe that the trial court's determination that Nichols' decision not


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to call Parker as a witness was a matter of trial strategy is adequately supported by the record

even assuming, as the defendant contends, that Nichols never interviewed Parker.

¶ 28   There is no question that Nichols was aware of Parker. The defendant testified that he

told Nichols that he was with Parker in her apartment at the time of the shooting and that she was

willing to testify to that effect. Nichols listed Parker as a potential witness in answer to

discovery and issued a subpoena commanding her to appear at the defendant's trial.             The

evidence also established that, although he was aware that Parker was present in the courthouse

on the day of the defendant's trial, Nichols decided not to call her as a witness. According to the

defendant, Nichols told him on the day of trial that he did not plan to call Parker as a witness.

Clearly, Nichols' decision in that regard was a matter of strategy. The question remains whether

the strategy was reasonable under the circumstances.

¶ 29   Had Parker testified that the defendant was with her at the time of the shooting, the State

could have called Detective Winstead and ASA Marconi as rebuttal witnesses to testify to the

defendant's postarrest statements placing himself at the scene of the shooting. Clearly, Nichols

was aware that the State was able to introduce evidence of the defendant's postarrest statements

as he not only filed a pretrial motion to suppress those statements, he also filed a pretrial motion

in limine seeking to bar the State from using those portions of the defendant's statement relating

to his use of marijuana. In relevant part, the body of the motion in limine states: "In his

statement to the police the defendant stated that he came to the vicinity of the shooting to buy

marijuana."   We believe that declining to call an alibi witness whose testimony could be

contradicted by the defendant's own postarrest statements as to his whereabouts falls within the

realm of reasonable trial strategy, even if the known alibi witness had never been interviewed.

¶ 30   Weiss's testimony and his notes are relevant only to the question of whether Nichols


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interviewed Parker prior to deciding not to call her as an alibi witness. However, having found

that the trial court's determination that Nichols' decision not to call Parker as a witness was a

matter of trial strategy is adequately supported by the record even assuming that Nichols never

interviewed Parker, we conclude that the defendant suffered no prejudice by reason of his

postconviction counsel's failure to call Weiss as a witness, and therefore, his claim of

unreasonable assistance fails.

¶ 31   We are left then with the question of whether the trial court's ultimate conclusion that the

defendant failed to establish by a preponderance of the evidence that his constitutional rights had

been violated and its consequential denial of his postconviction petition are manifestly

erroneous. As the defendant's claim to postconviction relief was predicated upon the argument

that his trial attorney, Nichols, was ineffective for failing to interview Parker or call her as an

alibi witness at trial, it was his burden to show (1) that Nichols' performance in that regard fell

below an objective standard of reasonableness, and (2) that he was prejudiced by that deficient

performance. Both prongs of this test must have been satisfied in order to establish ineffective

assistance of counsel and failure to establish either prong is fatal to the claim. Strickland v.

Washington, 466 U.S. 668, 687, 697 (1984).

¶ 32   In this case, the trial court found that the reasonable inference to be drawn from the

totality of the evidence presented at the postconviction hearing is that Nichols' decision not to

call Parker as a witness was a matter of trial strategy. For the same reasons articulated in our

analysis of the defendant's claim of unreasonable assistance by postconviction counsel, we find

that the trial court's determination in this regard is amply supported by the evidence. We,

therefore, affirm the trial court's denial of the defendant's postconviction petition as its

conclusion that the defendant failed to establish by a preponderance of the evidence that his


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constitutional rights had been violated is not manifestly erroneous.

¶ 33   Affirmed.




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