                                   2017 IL App (1st) 151405

                                                                             FIRST DIVISION
                                                                              October 30, 2017

No. 1-15-1405


THE PEOPLE OF THE STATE OF ILLINOIS,                      )       Appeal from the
                                                          )       Circuit Court of
       Plaintiff-Appellee,                                )       Cook County.
                                                          )
v.                                                        )       No. 11 CR 09691
                                                          )
MICAH UPSHAW,                                             )       Honorable
                                                          )       Kenneth Wadas,
       Defendant-Appellant.                               )       Judge Presiding.


       JUSTICE MIKVA delivered the judgment of the court, with opinion.
       Presiding Justice Pierce and Justice Simon concurred in the judgment and opinion.


                                          OPINION

¶1     Micah Upshaw appeals from the second-stage dismissal of his petition for relief under the

Post-Conviction Hearing Act (Post-Conviction Act) (725 ILCS 5/122-1 et seq. (West 2000)). Mr.

Upshaw contends that the circuit court erred in dismissing his petition without holding an

evidentiary hearing. We agree with Mr. Upshaw as to two of the issues raised in his

postconviction petition and also agree that he made a substantial showing that he was not

culpably negligent for the untimely filing of his petition. We reverse and remand for further

proceedings in accordance with this opinion.

¶2                                     BACKGROUND

¶3     Mr. Upshaw was convicted of two counts of attempted first degree murder, based on a

shooting incident that occurred on February 23, 1996, during which two police officers—Officer

Joanne Stewart and Officer Bradford Lee—were fired at and Officer Stewart was injured. The
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evidence presented at Mr. Upshaw’s trial and at the hearing on his pretrial motion to suppress a

statement he gave to the police is summarized in the order issued by this court in his direct

appeal. People v. Upshaw, No. 1-99-4043 (2001) (unpublished order under Supreme Court Rule

23). Those facts are set forth here only as necessary to frame the issues raised in this appeal.

¶4     In the early morning hours of February 23, 1996, officers Stewart and Lee were in an

unmarked car conducting surveillance near 54th Street and Prairie Avenue in Chicago, Illinois.

Officer Stewart was shot and severely injured, and Officer Lee got out of the car and chased

what he testified to was “one shooter,” whom he described at trial as being 25 to 30 years old, 6

feet tall, and weighing 170 pounds. Officer Lee saw the shooter get into the passenger side of a

car parked in a nearby alley and leave the area. Neither officer could identify anyone involved in

the shooting.

¶5     Four days later, Chicago police officer Peck was contacted by an unnamed confidential

informant who told Officer Peck that he had overheard people he knew as Bilal and “Little

Mike” discussing their involvement in the shooting. The confidential informant gave Officer

Peck a description of “Little Mike” and his car that led the police to arrest Mr. Upshaw later that

day. The informant then came to the police station and identified Mr. Upshaw as “Little Mike.”

Bilal Williams was arrested the next day and gave a statement implicating himself and Mr.

Upshaw in the shooting. After Mr. Upshaw had been in police custody for approximately 28½

hours, he also gave a statement.

¶6     In that statement—which Assistant State’s Attorney Joseph Kosman wrote out and Mr.

Upshaw initialed and signed—Mr. Upshaw said that he and Bilal Williams were both members

of the Gangster Disciples street gang. According to the statement, on the night of February 22

and into the early morning hours of February 23, 1996, Mr. Upshaw and Bilal were driving


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around together in Bilal’s car when they “began to talk about f***ing up” members of a rival

gang in retaliation for a drive-by shooting that had occurred earlier that month and in which a

fellow Gangster Disciple had been shot. Mr. Upshaw eventually parked the car in a field on the

5400 block of South Calumet Avenue near Prairie Avenue, and Mr. Upshaw and Bilal both got

out of the car. Bilal grabbed two guns from the car that he had brought from his house, giving

one to Mr. Upshaw. Mr. Upshaw was then following Bilal down Prairie Avenue when Bilal

made a “whistle type” sound and began shooting at a parked vehicle. In his statement, Mr.

Upshaw said that he thought that the people inside the parked vehicle were security for the rival

gang and that when Bilal began shooting, so did he. Bilal shot eight times, Mr. Upshaw shot

three times, and then they both ran back to Bilal’s car and drove away.

¶7     The jury found Mr. Upshaw guilty on two counts of attempted first degree murder. On

November 8, 1999, the trial court imposed an extended-term sentence of 50 years on one count

and a sentence of 25 years on the other, to be served consecutively, for a total of 75 years.

¶8     On direct appeal, Mr. Upshaw raised three issues, arguing that the trial court erred in

refusing to suppress his confession because it was coerced, the State made an improper closing

argument, and the consecutive sentences imposed by the trial judge ran afoul of the United States

Supreme Court’s opinion in Apprendi v. New Jersey, 530 U.S. 466 (2000). This court affirmed

Mr. Upshaw’s convictions and sentence. Upshaw, No. 1-99-4043, slip op. at 16. His pro se

petition for leave to appeal to the Illinois Supreme Court was denied on December 5, 2001.

People v. Upshaw, 197 Ill. 2d 582 (2001) (table).

¶9     On February 14, 2003, Mr. Upshaw mailed to the clerk of the circuit court a pro se

postconviction petition, arguing in part that his untimely filing of the petition was not due to his

culpable negligence. A public defender was appointed to Mr. Upshaw’s case on May 16, 2003.


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Following a delay that is not explained by the parties, on November 4, 2010, the public defender

filed a “Supplemental Petition for Post-Conviction Relief-Allegation of Actual Innocence”

(supplemental petition), which is the subject of this appeal. The claims in the supplemental

petition that are before this court now on appeal are (1) Mr. Upshaw’s trial counsel was

ineffective for failing to call alibi witness Tyrone White; (2) Mr. Upshaw’s appellate counsel

was ineffective for (a) failing to challenge Mr. Upshaw’s extended-term sentence as violative of

Apprendi, (b) failing to argue that the trial court erred in barring evidence that another man,

Marvin Williams, may have committed the crimes, and (c) failing to argue that the State

improperly introduced multiple hearsay identifications of Mr. Upshaw as the shooter; and (3) the

denial of Mr. Upshaw’s motion to suppress should be reconsidered based on newly discovered

evidence of a pattern and practice of coercion by two of the detectives involved in his case.

¶ 10   Multiple documents were attached in support of Mr. Upshaw’s petition, including

affidavits from himself and from Tyrone White. In his own affidavit, dated April 23, 2009, Mr.

Upshaw said that he had informed his trial counsel that he was not involved in the shooting and

that he was with Tyrone White at Mr. White’s home “at 5132 S. Champlain in Chicago” at the

time of the shooting. Mr. Upshaw also said that he gave his trial counsel Mr. White’s name,

address, and telephone number and that he told his trial counsel that Mr. White would be an alibi

witness for him, but that Mr. White was never called to testify.

¶ 11   Mr. White attested, in his affidavit, that on the evening of February 22, 1996, he was at

his mother’s house “at 6132 S. Champlain,” hanging out with Mr. Upshaw, his sister, and a girl

named Monique Jackson. Mr. White stated that, at approximately 2 a.m. on February 23, he left

the house to visit a friend and, at the time he left, Mr. Upshaw was asleep on the couch. He

explained that he remembered “these events” because he passed the scene of what he “later


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learned was [the] shooting at 54th and Prairie and saw all of the police cars” and because he met

a woman that night that he “ended up dating for several years.” He discussed the case with Mr.

Upshaw prior to the trial and “discussed [his] being an alibi witness for [Mr. Upshaw].” Mr.

White said in his affidavit that he would have been willing to testify at Mr. Upshaw’s trial but

that he was never contacted by Mr. Upshaw’s trial counsel.

¶ 12   Mr. Upshaw also attached several documents in support of his argument that two officers

involved in his case—detectives Boudreau and Halloran—had a “pattern and practice” of using

physical coercion to obtain inculpatory statements from suspects. The details of these documents

are discussed later in this opinion. See infra ¶¶ 76-77.

¶ 13   On December 7, 2011, the State filed a motion to dismiss Mr. Upshaw’s petition, arguing

that Mr. Upshaw’s initial pro se petition was untimely filed. In addition, the State argued that

Mr. Upshaw’s claims lacked merit. In his response to the motion to dismiss, Mr. Upshaw argued

that he was not culpably negligent for the untimely filing of his postconviction petition. He

argued that documents he attached to his response demonstrated that, due to no fault of his own,

his correctional facility was on general lockdown for 179 days between the time his petition for

leave to appeal to the supreme court was denied and when he filed his petition and that staff at

the correctional facility library also lost his trial transcripts and legal materials. In support of

these arguments, Mr. Upshaw submitted lockdown records for the Stateville Correctional Center

(Stateville), his own affidavit explaining that during lockdown he had no access to the prison law

library and that it would take two weeks after a lockdown to regain library access, and affidavits

from the prison law library staff corroborating that the library staff lost Mr. Upshaw’s records as

early as March 2002 and that Mr. Upshaw made multiple attempts to retrieve them.

¶ 14   The circuit court held a hearing on the State’s motion to dismiss and granted the motion


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that same day. The circuit court did not directly address Mr. Upshaw’s claim that his trial

counsel had been ineffective for failing to interview his alibi witness. The circuit court ruled that

there was no ineffective assistance of appellate counsel because some issues were, in fact, raised

on appeal. The circuit court also agreed with the State that Mr. Upshaw’s initial pro se

postconviction petition filed on February 14, 2003, was untimely because the court was “not sure

if the explanation offered in terms of the lockdown actually sufficiently mitigate[d] the

untimeliness issue.”

¶ 15                                     JURSIDICTION

¶ 16   The circuit court granted the State’s motion to dismiss Mr. Upshaw’s postconviction

petition on April 20, 2015, and Mr. Upshaw timely filed his notice of appeal that same day.

Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois

Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme Court Rules 606 and 651,

governing criminal appeals and appeals from final judgments in postconviction proceedings (Ill.

S. Ct. R. 606 (eff. Dec. 11, 2014); R. 651(a) (eff. Feb. 6, 2013)).

¶ 17                                        ANALYSIS

¶ 18   In noncapital cases, postconviction proceedings have three possible stages. People v.

Tate, 2012 IL 112214, ¶ 9. A petition may only be dismissed at the first stage if it is frivolous or

patently without merit. People v. Hodges, 234 Ill. 2d 1, 10 (2009). If a petition advances to the

second stage, the stage at which Mr. Upshaw’s petition was dismissed, counsel may be appointed

to an indigent petitioner (725 ILCS 5/122-4 (West 2000)), the State enters the process as the

respondent (725 ILCS 5/122-5 (West 2000)), and the State may move to dismiss the petition

(People v. Gerow, 388 Ill. App. 3d 524, 526 (2009)). At the second stage, “the circuit court must

determine whether the petition and any accompanying documentation make a substantial


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showing of a constitutional violation.” (Internal quotation marks omitted.) Tate, 2012 IL 112214,

¶ 10. “If no such showing is made, the petition is dismissed.” Id. But if a motion to dismiss is

denied, the State must file an answer to the petition (Gerow, 388 Ill. App. 3d at 526-27), and if

the petitioner sets forth a substantial showing of a constitutional violation, “the petition is

advanced to the third stage, where the circuit court conducts an evidentiary hearing” (Tate, 2012

IL 112214, ¶ 10). “At the second stage, ‘all well-pleaded facts that are not positively rebutted by

the trial record are to be taken as true.’ ” Gerow, 388 Ill. App. 3d at 526 (quoting People v.

Pendleton, 223 Ill. 2d 458, 473 (2006)). Because Mr. Upshaw’s petition was dismissed at the

second stage, we review the dismissal de novo. Pendleton, 223 Ill. 2d at 473.

¶ 19   We first address the timeliness of Mr. Upshaw’s petition. Because we find that Mr.

Upshaw has made a substantial showing that the untimely filing of his petition was not due to his

culpable negligence, we then address the merits of each of the substantive claims that he raises

on appeal.

¶ 20                               A. Timeliness of the Petition

¶ 21   During the relevant time period, the Post-Conviction Act provided that “[n]o proceedings

under this Article shall be commenced more than 6 months after the denial of a petition for leave

to appeal *** unless the petitioner alleges facts showing that the delay was not due to his or her

culpable negligence.” 725 ILCS 5/122-1(c) (West 2000). Thus, we have held that “[a] petition

that is untimely will not be dismissed if the petitioner alleges facts showing that the delay in

filing the petition was not due to his or her culpable negligence.” People v. Johnson, 2017 IL

120310, ¶ 26. According to our supreme court, “culpably negligent” means “ ‘something greater

than ordinary negligence and is akin to recklessness.’ ” Id. (quoting People v. Boclair, 202 Ill. 2d

89, 108 (2002)). Our supreme court has recognized that this definition “comports with [its] long-


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held view that the Act in general must be liberally construed to afford a convicted person an

opportunity to present questions of deprivation of constitutional rights.” (Internal quotation

marks omitted.) People v. Rissley, 206 Ill. 2d 403, 420-21 (2003).

¶ 22   The Illinois Supreme Court denied Mr. Upshaw’s petition for leave to appeal (PLA) to

the supreme court from his direct appeal in this court on December 5, 2001, making his

postconviction petition due by June 5, 2002. Mr. Upshaw did not mail his initial pro se

postconviction petition until February 14, 2003. The date of mailing by the prisoner is considered

to be the date of filing. See People v. Saunders, 261 Ill. App. 3d 700, 702-03 (1994). It is this

delay—from June 5, 2002, until February 14, 2003—that the parties agree is at issue here.

¶ 23   In his original and supplemental petitions, Mr. Upshaw provides two reasons why he is

not culpably negligent for this late filing. First, Mr. Upshaw alleges that his unit at the Stateville,

where he was then incarcerated, was on lockdown for 179 days between the time that his PLA

was denied by the Illinois Supreme Court and the time that he filed his postconviction petition.

Second, between December 2001 and March 2002, prison employees lost Mr. Upshaw’s trial

transcripts and legal materials.

¶ 24   At the second stage of postconviction proceedings, “all well-pleaded facts that are not

positively rebutted by the trial record are to be taken as true.” Pendleton, 223 Ill. 2d at 473. “[I]n

cases where the record contains evidence that the lockdown prevents a [petitioner] from having a

‘meaningful opportunity’ to prepare a timely postconviction petition, the delay is not the result of

the [petitioner’s] culpable negligence.” People v. Van Hee, 305 Ill. App. 3d 333, 337 (1999). As

we have recognized, “[i]n many instances, the only opportunity available to petitioners to learn

the procedural and substantive rules governing the preparation of postconviction petitions is

through access to the resources available in a law library.” Id.; see also People v. Scullark, 325


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Ill. App. 3d 876, 885 (2001) (finding that where a petitioner, who had begun work on a

postconviction petition, was then placed in segregation through no fault of his own until the end

of the time period for filing, his delay in filing was not due to his culpable negligence).

¶ 25   Here, Mr. Upshaw attached to his response to the State’s motion to dismiss records

purporting to show the lockdown periods that were imposed at Stateville between 2001 and

2003. While it is not clear that these records precisely match Mr. Upshaw’s statement in his

affidavit that the facility was on general lockdown for 179 days between the time his PLA to the

supreme court was denied and the date his postconviction petition was filed, they do appear to

show the following. In the six months between when his PLA was denied and when his

postconviction petition was due, the facility was on lockdown for at least 86 days. This court’s

calculation excluded days in which the records reflect that the lockdown was for only a part of

the day. In Mr. Upshaw’s affidavit, he states that after a period of lockdown, a new library pass

was needed and getting that pass took an additional two weeks. If that is accurate, it means that

of the time remaining during which Mr. Upshaw could have been working on his petition in the

prison law library before its due date, he had, at most, 27 nonconsecutive days of access. Then,

in the 254 days between the petition’s due date and the date the petition was filed, this court’s

own review indicates that Stateville was on lockdown for, at least, an additional 60 days. Due to

the two-week delay in regaining library access following each period of lockdown, Mr. Upshaw

only had, at most, 90 nonconsecutive additional days of library access before he mailed his

petition on February 14, 2003. Thus this court’s calculation reflects 146 days in which it appears

that a lockdown was in effect for the entire day. Mr. Upshaw also alleged in his affidavit that the

lockdowns were due to no fault of his own.

¶ 26   In addition to detailing the lockdowns, the attachments to Mr. Upshaw’s postconviction


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petitions and response to the State’s motion to dismiss show that Mr. Upshaw began working on

his petition before the due date and was thwarted in his efforts by the fact that prison staff lost

his trial transcripts and legal materials. Mr. Upshaw stated in his initial affidavit, attached to his

pro se postconviction petition, that he asked for assistance on his petition from a law clerk at the

Stateville law library, Anthony Williams, on December 7, 2001—just two days after his PLA

was denied—and gave Anthony Williams these materials to keep in the library. According to

letters that Mr. Upshaw sent to library employees and prison officials as early as February

2002—which were also attached to his pro se petition—Mr. Upshaw attempted but was unable

to retrieve his records from the library in order to complete his petition. Mr. Upshaw sent six

letters between February 2002 and January 2003 asking for access to his records, which he still

did not have at the time he filed his pro se postconviction petition. That Mr. Upshaw’s records

were lost sometime in February or March 2002 is further corroborated by the affidavits—

attached to his response to the State’s motion to dismiss—from Anthony Williams and another

clerk employed in the Stateville law library in 2001 and 2002, Dominique Johnson. Thus, while

Mr. Upshaw ultimately filed his petition without the aid of his trial transcripts and legal

materials, he spent a great deal of time and effort trying to regain access to these records to help

him obtain meaningful postconviction relief. Most significantly, these efforts began immediately

after his PLA was denied.

¶ 27   We find that Mr. Upshaw has carried his burden of providing sufficient and specific facts

to make a substantial showing that the delay in filing his petition was not due to his culpable

negligence. While the State will have the opportunity at an evidentiary hearing to rebut those

facts, at this point we must accept them as true.

¶ 28   The State relies on People v. Cortez, 338 Ill. App. 3d 122, 130-31 (2003), where this


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court found that a petitioner’s showing that he was in segregation with limited access to the law

library was insufficient to meet his burden of showing that his delay was not due to his “culpable

negligence.” But there the petitioner did not begin to prepare his petition until “long after the due

date for filing had passed.” Id. at 130. That is not true in this case. Moreover, in Cortez, the

records that the petitioner attached in response to the State’s motion to dismiss showed that the

petitioner was placed in segregation “due to his own misconduct.” Id. at 131. Here, Mr. Upshaw

has alleged, and the State has not disputed, that the facility was on lockdown through no fault of

Mr. Upshaw’s. Finally, it appears that in Cortez, in contrast to this case, the petitioner did not

provide specific dates that he was denied access to the law library, but instead made a more

general allegation that he had “ ‘sharply reduced access.’ ” Id. at 131-32. Given this lack of

detail, the Cortez court assumed that the petitioner’s denial of access to the library was “short in

duration.” Id. at 132. We cannot assume that here.

¶ 29   The State also relies on the holding of our supreme court in People v. Diefenbaugh, 40

Ill. 2d 73, 75 (1968), that a “mere allegation that [the petitioner] was unable to obtain” a trial

transcript is insufficient to show that he was not culpably negligent for a late filing. Here,

however, Mr. Upshaw has not set forth a “mere allegation” that he was unable to obtain a

transcript. Rather, his allegations were supported by affidavits from former Stateville law library

employees and were combined with supported allegations that his law library access was limited

by a series of lockdowns. More importantly, it is not the lack of a transcript alone that Mr.

Upshaw relies on to explain his delay in filing. Even if Mr. Upshaw had had his transcript, the

State does not dispute that he needed access to the prison law library to be able to put together a

pro se postconviction petition.

¶ 30   We also note that Mr. Upshaw was only about eight months late in submitting his


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postconviction petition, and this court has found such a relatively short delay to be a factor in

favor of determining that the petitioner did not act with culpable negligence. See People v.

Wilburn, 338 Ill. App. 3d 1075, 1077-78 (2003) (no culpable negligence where the petitioner

filed his postconviction petition 16 months after discovery of the claim and approximately 43

months after it was due); see also People v. Hernandez, 296 Ill. App. 3d 349, 352 (1998) (no

manifest error in the circuit court’s finding that the petitioner was not culpably negligent where

he filed his petition 11 months after his claim was established by a change in the law and 14

months after the due date). In contrast, this court found petitioners to be culpably negligent for

filing a petition 27 months late (Gerow, 388 Ill. App. 3d at 530) and 40 months late (People v.

Ramirez, 361 Ill. App. 3d 450, 454 (2005)). And in both Gerow and Ramirez, we specifically

noted that the filing delays in Wilburn and Hernandez were “relatively short” and supported the

findings in those cases that the petitioners were not culpably negligent. Gerow, 388 Ill. App. 3d

at 530; Ramirez, 361 Ill. App. 3d at 454.

¶ 31   Bearing in mind that our supreme court has defined culpable negligence as “ ‘akin to

recklessness’ ” (People v. Johnson, 2017 IL 120310, ¶ 26), and taking into consideration the

combined circumstances alleged by Mr. Upshaw—that he had limited access to the law library,

he began to work on his petition within days of the denial of his PLA, he was unable to retrieve

his lost trial records, and his petition was only eight months late—we find that Mr. Upshaw has

made a substantial showing that he was not culpably negligent.

¶ 32   We also reject any argument by the State that the claims in Mr. Upshaw’s supplemental

petition that were not included in his pro se petition are untimely even if his pro se claims are

not. Our supreme court has made clear that appointed counsel on a postconviction petition “may

conduct a broader examination of the record [citation], and may raise additional issues if he or


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she so chooses.” (Emphasis omitted.) People v. Pendleton, 223 Ill. 2d 458, 476 (2006). The State

has cited no authority to suggest that additional arguments raised in a supplemental petition are

under a separate timeline for filing than those raised in a pro se petition. See Ill. S. Ct. R.

341(h)(7), (i) (eff. Jan. 1, 2016) (the argument section of the parties’ briefs “shall contain the

contentions of the [party] *** with citation of the authorities *** relied on”).

¶ 33                         B. The Merits of Mr. Upshaw’s Petition

¶ 34    The circuit court must consider, at a third-stage evidentiary hearing, the merits only of

those claims on which a petitioner has made a substantial showing of constitutional error at the

second stage. People v. Cleveland, 2012 IL App (1st) 101631, ¶ 55. We consider whether Mr.

Upshaw has made this necessary showing on each of his claims. As we explain below, we find

that Mr. Upshaw has made a substantial showing of a constitutional error on two of his claims,

but find that the circuit court properly dismissed the remainder of his claims.

¶ 35                1. Ineffective Assistance of Trial Counsel—Alibi Witness

¶ 36    Mr. Upshaw argues that he made a substantial showing that his trial counsel was

ineffective for failing to investigate an alibi witness, Tyrone White. We agree.

¶ 37    Ineffective assistance of counsel claims are considered under the two-prong test set forth

in Strickland v. Washington, 466 U.S. 668 (1984). People v. Gale, 376 Ill. App. 3d 344, 351

(2007). To succeed on an ineffective assistance claim, a defendant must satisfy both components

of the test:

                “ ‘First, the defendant must show that counsel’s performance was deficient. This

                requires showing that counsel made errors so serious that counsel was not

                functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.

                Second, the defendant must show that the deficient performance prejudiced the


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                defense. This requires showing that counsel’s errors were so serious as to deprive

                the defendant of a fair trial, a trial whose result is reliable. Unless a defendant

                makes both showings, it cannot be said that the conviction *** resulted from a

                breakdown in the adversary process that renders the result unreliable.’ ” People v.

                Coleman, 168 Ill. 2d 509, 528 (1995) (quoting Strickland, 466 U.S. at 687).

¶ 38   Trial counsel “has a duty to make reasonable investigations or to make a reasonable

decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691. Thus,

“[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed

for reasonableness in [light of] all [of] the circumstances, [and] applying a heavy measure of

deference to counsel’s judgments.” Id.

¶ 39   Although the decision of whether to present a witness is generally considered a matter of

trial strategy, “counsel may be deemed ineffective for failure to present exculpatory evidence of

which he is aware, including the failure to call witnesses whose testimony would support an

otherwise uncorroborated defense.” People v. Tate, 305 Ill. App. 3d 607, 612 (1999). Moreover,

“strategic decisions may be made only after there has been a ‘thorough investigation of law and

facts relevant to plausible options.’ ” People v. Gibson, 244 Ill. App. 3d 700, 703-04 (1993)

(quoting Strickland, 466 U.S. at 690). Thus, this court had held that “ ‘[t]he failure to interview

witnesses may indicate actual incompetence [citation], particularly when the witnesses are

known to trial counsel and their testimony may be exonerating [citation].’ ” People v. Davis, 203

Ill. App. 3d 129, 140-41 (1990) (quoting People v. Greer, 79 Ill. 2d 103, 123 (1980)).

¶ 40   The affidavits of Mr. Upshaw and Mr. White attached to Mr. Upshaw’s supplemental

petition support a substantial showing that trial counsel was deficient for failing to contact Mr.

White as a possible alibi witness, meeting the first prong of the Strickland test. Mr. Upshaw


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alleged in his affidavit that he was with Mr. White at Mr. White’s home at the time of the

shooting, that he provided his trial counsel with Mr. White’s address and telephone number, and

that he told trial counsel that Mr. White would be willing to serve as an alibi witness. Mr. White

similarly attested in his affidavit that he and Mr. Upshaw were together on the night of the

shooting, that he had reason to remember that night, and that he “saw all of the police cars” when

he drove past 54th Street and Prairie Avenue at about 2 a.m. Mr. White also stated that he would

have testified at Mr. Upshaw’s trial but was never contacted by counsel. The record suggests no

strategic reason that counsel may have decided not to investigate Mr. Upshaw’s alibi or not to

even interview Mr. White. Taking the facts presented in the affidavits as true, as we must at this

stage (Pendleton, 223 Ill. 2d at 473), Mr. Upshaw met his burden of making a substantial

showing that his trial counsel was deficient.

¶ 41   Consideration, under the second prong of the Strickland test, of whether counsel’s failure

to investigate prejudiced Mr. Upshaw requires us to look at the evidence presented at Mr.

Upshaw’s trial. “Prejudice is demonstrated if there is a reasonable probability that, but for

counsel’s deficient performance, the result of the proceeding would have been different.” People

v. Makiel, 358 Ill. App. 3d 102, 105-06 (2005). “Whether defense counsel was ineffective for

failure to investigate is determined by the value of the evidence that was not presented at trial

and the closeness of the evidence that was presented.” Id. at 107.

¶ 42   The State concedes that neither victim could identify Mr. Upshaw or his codefendant,

Bilal Williams, as the shooter; no weapon was recovered, no physical evidence tying Mr.

Upshaw or Bilal to the shooting was recovered, and there was evidence that the initial

description of the shooter did not come close to matching Mr. Upshaw’s appearance. As

discussed later in this opinion, the trial court admitted evidence of out-of-court statements by


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Bilal Williams and an unnamed confidential informant that identified Mr. Upshaw as being

involved in this crime, under the theory that these statements explained the course of the police

investigation. However, neither of those out-of-court statements was admissible for the truth of

the matter asserted. Thus, the State’s entire case against Mr. Upshaw rested on the inculpatory

statement he finally gave after he spent 28½ hours in police custody.

¶ 43   According to the statement—which Assistant State’s Attorney Kosman read to the jury

and testified that he wrote out and had Mr. Upshaw sign—Mr. Upshaw and Bilal Williams were

both members of the Gangster Disciples street gang. In early February 1996, Mr. Upshaw was

with a fellow gang member, Little Moose, when Little Moose was shot in the back during a

drive-by shooting. Mr. Upshaw recognized one of the shooters as a “BD,” a rival gang member.

The night of the shooting, Mr. Upshaw was standing on the corner of 62nd Street and St.

Lawrence Avenue when Bilal pulled up in his car. Mr. Upshaw got into the car, and they drove

to Bilal’s house, where Bilal got two black automatic handguns. As they were driving around,

they saw six or seven “BDs” standing in front of a sandwich shop on the south side of 55th Street

between Calumet Avenue and Prairie Avenue. The two “began to talk about f***ing up some

BD over what happened to Little Moose.” They parked the car and Bilal grabbed the guns,

handing Mr. Upshaw a 9-millimeter weapon. They exited the car at 55th Street and walked west

toward Prairie Avenue. Bilal turned north on Prairie Avenue, and Mr. Upshaw followed. They

passed a parked car, then Bilal “made a whistle type sound to alert” Mr. Upshaw. According to

the statement, the two of them then began shooting into the car because they believed the car

“contained security for the BDs across the street.” Mr. Upshaw was “about even with the car’s

right front tire,” and when Bilal started shooting, so did Mr. Upshaw. The two then ran back to

Bilal’s car and drove to the alley behind Bilal’s house. Bilal took the guns, and Mr. Upshaw left.


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¶ 44   Mr. Upshaw’s statement was inconsistent with the events as described by Officer Lee,

who testified that there was only one shooter and that the shooter ran into the alley and entered

the passenger side of a waiting car. The police investigating the crime testified that Officer Lee

described the shooter as 6 feet tall, between 25 and 30 years old, and weighing 160 or 170

pounds. At trial, a police officer testified that he spoke with Mr. Upshaw in January 1996, and

Mr. Upshaw at that time was approximately 5 feet, 5 inches tall, and weighed 125 pounds. Mr.

Upshaw’s trial counsel focused on these inconsistencies and the lack of any corroboration to

argue to the jury that Mr. Upshaw’s statement was coerced and should not be believed. Trial

counsel also argued that the police failed to make reasonable attempts to find Mr. Upshaw’s

mother once they learned that he was a juvenile and that they kept Mr. Upshaw in a room at the

station for 29 hours “to wear him down, to get him to sign a statement.”

¶ 45   The jury sent a note to the trial court during deliberations asking for transcripts of the

testimony given by Detective Coughlin and Assistant State’s Attorney Kosman, the two

witnesses for the State who testified about Mr. Upshaw’s statement. The jury note read: “we are

at an impass[e] about the believability of the statement. Any legal counsel would be

appreciated.” The trial court responded: “You have heard all the evidence and have been

instructed on the law. Continue to deliberate.”

¶ 46   In short, the only evidence against Mr. Upshaw was his statement, which the jury had

reasons to disbelieve and about which at least some jurors had doubt. In light of this, we agree

with Mr. Upshaw that, based on this record, if trial counsel had interviewed and presented Mr.

White as an alibi witness, there is a reasonable probability that the result of the trial would have

been different.

¶ 47   The State argues that “defense counsel obviously chose to pursue the strategy with the


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jury that, due to [Mr. Upshaw’s] youth, and the fact that he was alone with experienced law

enforcement personnel when he confessed, that his confession should not be believed by them,”

apparently suggesting that offering an alibi would be inconsistent with this strategy. But such a

defense strategy would only have been strengthened by Mr. White’s alibi testimony.

¶ 48   The State also makes much of the differences between Mr. Upshaw’s affidavit and Mr.

White’s affidavit, including the difference in the address provided (5132 S. Champlain Avenue

versus 6132 S. Champlain Avenue), who the house belonged to (Mr. White versus Mr. White’s

mother), and who was present (Mr. White versus Mr. White, Mr. White’s sister, and Monique

Jackson). The difference in one digit of the address could well be a clerical error. The remaining

differences are simply not inconsistencies: the house may have been where Mr. White lived at

the time while now only his mother lives there and it is possible that everyone Mr. White

mentioned was at his house that night but Mr. Upshaw did not include the fact that they were

present in his account. The State also argues that Mr. Upshaw failed to show that counsel had a

way to contact Mr. White. However, Mr. Upshaw says in his affidavit that he provided his trial

counsel with Mr. White’s telephone number.

¶ 49   Our conclusion that the failure to investigate this alibi witness necessitates a third-stage

evidentiary hearing is supported by this court’s decisions in Tate, 305 Ill. App. 3d 607, and

Makiel, 358 Ill. App. 3d 102. In Tate, a petitioner was convicted of first degree murder and

attempted first degree murder. Tate, 305 Ill. App. 3d at 608-10. On appeal from the second-stage

dismissal of his postconviction petition, the petitioner argued that trial counsel’s failure to call

three alibi witnesses amounted to ineffective assistance. Id. at 610. This court found that the

petitioner made a substantial showing that he received ineffective assistance of counsel, noting

that, considering the evidence in the alibi witnesses’ affidavits as true, “it supports [the


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petitioner’s] theory that he was misidentified, and there is no apparent strategic reason for not

calling them to testify.” Id. at 611-12. Although the State argued that the trial counsel’s decision

must have been strategic because counsel interviewed two of the three alibi witnesses and

decided not to call them, the court said it could not “say as a matter of law that was counsel’s

reasoning” and accordingly remanded for an evidentiary hearing. Id. at 612-13.

¶ 50    In Makiel, the petitioner appealed from the second-stage dismissal of his postconviction

petition, alleging ineffective assistance of trial counsel for failure to call a witness to testify at

trial who, according to his affidavit, “would have directly contradicted” the testimony of the

State’s key witness. Makiel, 358 Ill. App. 3d at 106-09. This court found that the record reflected

“no strategic reason” for defense counsel’s failure to contact, interview, subpoena, or call this

witness, and therefore the circuit court improperly dismissed the petitioner’s postconviction

petition at the second stage. Id. at 109. The court remanded for a third-stage evidentiary hearing.

Id. at 120.

¶ 51    Here, we reach a conclusion similar to those reached by the Tate and Makiel courts; Mr.

Upshaw has made a substantial showing that his trial counsel was ineffective for failing to

investigate Mr. White. Not only could Mr. White’s proposed testimony have supported the

defense theory at trial, but there is simply nothing in the record to suggest that trial counsel’s

failure to investigate Mr. White’s potential as an alibi witness was a strategic choice. We find

that Mr. Upshaw has made a substantial showing that he received ineffective assistance of trial

counsel by his counsel’s failure to investigate Mr. White as an alibi witness, and the circuit court

should proceed to a third-stage evidentiary hearing on that claim.

¶ 52                2. Ineffective Assistance of Appellate Counsel—Apprendi

¶ 53    Mr. Upshaw also contends that his appellate counsel was ineffective for failing to argue


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on direct appeal that the trial court improperly sentenced him to an extended-term prison

sentence of 50 years for attempted first degree murder, based on the court’s own finding that his

offense was “accompanied by exceptionally brutal behavior indicative of wanton cruelty.” Mr.

Upshaw argues that, pursuant to the Supreme Court’s decision in Apprendi, 530 U.S. 466, the

finding that this factual predicate to an enhanced sentence existed could only have been made by

the jury.

¶ 54    “Claims of ineffective assistance of appellate counsel are measured against the same

standard as those dealing with ineffective assistance of trial counsel.” People v. Childress, 191

Ill. 2d 168, 175 (2000). “A petitioner who contends that appellate counsel rendered ineffective

assistance of counsel must show that the failure to raise an issue on direct appeal was objectively

unreasonable and that the decision prejudiced petitioner.” Id. A petitioner can show that he was

prejudiced by appellate counsel’s failure to raise an issue on appeal if “there is a reasonable

probability that, but for appellate counsel’s errors, the appeal would have been successful.”

People v. Golden, 229 Ill. 2d 277, 283 (2008). “Appellate counsel is not obligated to brief every

conceivable issue on appeal, and it is not incompetence of counsel to refrain from raising issues

which, in his or her judgment, are without merit, unless counsel’s appraisal of the merits is

patently wrong.” People v. Easley, 192 Ill. 2d 307, 329 (2000).

¶ 55    When this offense was committed, the sentencing range for attempted first degree

murder, a Class X felony, was 6 to 30 years in prison. 720 ILCS 5/8-4(c)(1) (West 1996); 730

ILCS 5/5-8-1(a)(3) (West 1996). Illinois law provided that, if a court found that “the offense was

accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty” (730

ILCS 5/5-5-3.2(b)(2) (West 1996)), the court had the discretion to sentence a defendant

convicted of attempted first degree murder to a prison sentence in the range of 30 to 60 years


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(730 ILCS 5/5-8-2(a)(2) (West 1996)). The trial court made this finding and sentenced Mr.

Upshaw to 50 years in prison.

¶ 56   In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior

conviction, any fact that increases the penalty for a crime beyond the prescribed statutory

maximum must be submitted to a jury, and proved beyond a reasonable doubt.” Apprendi, 530

U.S. at 490.

¶ 57   Our supreme court has made clear that, without a jury finding beyond a reasonable doubt

that the crime was “accompanied by exceptionally brutal or heinous behavior indicative of

wanton cruelty,” the extended-term sentencing provision used by the trial court here to impose a

50-year extended-term sentence on Mr. Upshaw is inconsistent with Apprendi. People v. Nitz,

219 Ill. 2d 400, 405, 409 (2006); People v. Swift, 202 Ill. 2d 378, 388 (2002). And at the time

Mr. Upshaw’s appeal was pending, two cases from this district had already found extended-term

statutes similar to the one at issue here to be unconstitutional under Apprendi. People v.

Beachem, 317 Ill. App. 3d 693, 707-08 (2000) (finding unconstitutional statutory provisions that

allowed the court to sentence a defendant to between 60 and 100 years for the offense of first

degree murder if the court found that the murder was “ ‘accompanied by exceptionally brutal or

heinous behavior indicative of wanton cruelty’ ” (quoting 730 ILCS 5/5-5-3.2(b)(2) (West

1996)), vacated, 201 Ill. 2d 577 (2002) (supervisory order); People v. Lee, 318 Ill. App. 3d 417,

419-21 (2000) (finding unconstitutional statutory provisions that allowed a court to sentence a

defendant to natural life imprisonment for a conviction of murder on the basis of the same court

finding); see also People v. Joyner, 317 Ill. App. 3d 93, 109-10 (2000) (a Second District case

finding extended-term sentencing provisions unconstitutional under Apprendi).

¶ 58   As the State points out, because Mr. Upshaw’s trial counsel failed to object to the


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Apprendi error, a plain error analysis would have been applied on appeal. This is the procedural

posture our supreme court had before it in Nitz, 219 Ill. 2d at 409-11. There, the supreme court

held that if trial counsel failed to object to an Apprendi violation, such a violation only provided

a basis for reversal under the plain error doctrine if the “evidence was closely balanced as to

whether [the petitioner’s] crime was exceptionally brutal or heinous and indicative of wanton

cruelty.” Id. at 420-21.

¶ 59   In Nitz, the supreme court found that the petitioner failed to make this showing because

the trial evidence showed that he struck the murder victim repeatedly in the head with a baseball

bat, shot the victim, and then severed the victim’s head in an attempt to conceal the ballistics

evidence. Id. at 403. The petitioner also told a witness that he had put the “remainder of the body

in the trunk of the victim’s car” then “tried to burn the car.” Id. at 417. Our supreme court

defined the terms “brutal,” “heinous,” and “indicative of wanton cruelty” by their “ordinary and

popular meaning,” explaining:

                “For behavior to be heinous, it must be ‘hatefully or shockingly evil; grossly bad;

                enormously and flagrantly criminal.’ [Citation.] We defined brutal behavior as

                ‘behavior that is grossly ruthless, devoid of mercy or compassion; cruel and cold-

                blooded.’ [Citation.] Brutal or heinous behavior generally involves prolonged

                pain, torture, or premeditation [citation], but does not necessarily require them

                [citation]. Behavior must qualify as either brutal or heinous for the sentencing

                enhancement to apply. [Citation.]

                       In addition to being exceptionally brutal or heinous, the crime must also

                be indicative of wanton cruelty. ‘ “[W]anton cruelty” requires “proof that the

                defendant consciously sought to inflict pain and suffering on the victim of the


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                offense.” ’ [Citation.]” Id. at 418

The Nitz court went on to find that the “cold-blooded” act of severing and concealing the

victim’s head, “denying his family the closure of burying their loved one intact,” and the

repeated striking of the victim in the head with a bat supported the finding that the petitioner’s

offense was brutal and displayed wanton cruelty. Id.

¶ 60   Mr. Upshaw argues that, here, “no such finding of brutal or heinous behavior can be

justified.” In stark contrast to the facts of Nitz, here the offense involved no extended violence,

beating, or beheading, and no attempt to burn a decapitated body. Instead, the offense involved

what the State claimed was a gang shooting, in which the perpetrators believed that the

individuals in the car were serving as security for a group of rival gang members across the

street. According to the State’s theory, the shooters approached the vehicle, fired several shots in

quick succession, and immediately ran away. The record in this case also reflects that Mr.

Upshaw’s codefendant—who was older than Mr. Upshaw and, according to the trial evidence,

was the leader of this crime—pled guilty and received a total sentence of 15 years. While we do

not dismiss the seriousness of this crime or the severity of Officer Stewart’s injuries, the State

points to no facts supporting a finding that this crime was exceptionally brutal or heinous and

indicative of wanton cruelty. These are the findings that, under Apprendi, should have been made

by the jury “ ‘beyond a reasonable doubt.’ ” Apprendi, 530 U.S. at 490. As our supreme court

has observed, “[a]ll murders are brutal and heinous to a certain degree. *** Section 5-8-2,

however, allowing for extended-term sentences, was not intended to convert every offense into

an extraordinary offense subject to an extended-term sentence.” (Internal quotation marks

omitted.) People v. Andrews, 132 Ill. 2d 451, 466 (1989).

¶ 61   In sum, even under plain error analysis, appellate counsel could have easily shown that


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the evidence to support an extended-term sentence was either nonexistent or, at best, closely

balanced. Counsel was clearly aware of Apprendi at the time Mr. Upshaw’s appeal was filed, as

evidenced by the fact that counsel challenged Mr. Upshaw’s consecutive sentences as an

Apprendi violation. Thus, Mr. Upshaw has made a substantial showing that appellate counsel’s

failure to raise the claim that Mr. Upshaw’s extended-term sentence violated Apprendi was

objectively unreasonable and prejudiced him. Accordingly, we find the circuit court erred in

dismissing this claim at the second stage of postconviction proceedings.

¶ 62                           3. Other Errors by Appellate Counsel

¶ 63   Mr. Upshaw also contends that appellate counsel was ineffective for failing to raise two

other arguments on appeal: that the trial court refused to allow evidence that another person,

Marvin Williams, may have committed the shooting; and that the trial court admitted out-of-

court statements by Mr. Upshaw’s codefendant, Bilal Williams, and an unnamed “confidential

informant” that accused Mr. Upshaw of this shooting, under the theory that these statements

were admitted only to explain the police investigation. But both of these rulings were within the

discretion of the trial court and we cannot find that the failure of appellate counsel to raise either

of these issues meets the Strickland standard. As noted above, we will not find ineffective

assistance by appellate counsel’s choice not to brief an issue on appeal, unless the failure to do so

“is patently wrong.” Easley, 192 Ill. 2d at 329.

¶ 64                                    a. Marvin Williams

¶ 65   Mr. Upshaw argues that appellate counsel was deficient in failing to argue that the trial

court abused its discretion in prohibiting him from presenting evidence that a man named Marvin

Williams, who matched the description given by witnesses of the shooter, presented himself at

Mercy Hospital, which was only three miles away, within two hours of the shooting, had a hand


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injury, and tested positive for gunshot residue despite claiming not to have fired a gun.

¶ 66   Although it is true that an accused “may attempt to prove that someone else committed

the crime with which he is charged,” “this right is not without limitations.” People v. Ward, 101

Ill. 2d 443, 455 (1984). “[I]f the evidence is too remote or too speculative, or if it fails to link a

third person with the commission of the crime, then the trial court should exclude the evidence.”

People v. Fort, 248 Ill. App. 3d 301, 314 (1993). The decision of whether to admit evidence is

within the trial court’s discretion, “and its ruling should not be reversed absent a clear showing

of abuse of that discretion.” Ward, 101 Ill. 2d at 455-56. “An abuse of discretion will be found

only where the court’s ruling is arbitrary, fanciful, unreasonable, or where no reasonable person

would take the view adopted by the trial court.” (Internal quotation marks omitted.) People v.

Baez, 241 Ill. 2d 44, 106 (2011).

¶ 67   Appellate counsel may have legitimately concluded that this court would find that the

trial court’s decision to bar evidence regarding Marvin Williams was within its discretion. No

one identified Marvin Williams as being at the scene of the shooting. Although Marvin

Williams’s gunshot residue test yielded a positive result and he lied about having fired a gun that

evening, having fired a gun does not mean that he shot officers Stewart and Lee. Without

something more connecting Marvin Williams to the shooting, we cannot say that the trial court’s

decision to bar this evidence was so arbitrary or unreasonable that appellate counsel’s failure to

raise this issue was “patently wrong.” In addition, as the State points out, the failure on the part

of defense counsel at trial to have made a complete offer of proof on the evidence that the

petitioner would have presented on this point might have resulted in forfeiture of this issue on

appeal. People v. Wood, 341 Ill. App. 3d 599, 604 (2003). (“When evidence is refused, no

appealable issue remains unless a formal offer of proof is made.”). The circuit court therefore is


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not required to hold a third-stage evidentiary hearing regarding whether appellate counsel was

deficient for failure to raise this argument.

¶ 68                                 b. Out-of-Court Statements

¶ 69   Mr. Upshaw also argues that his appellate counsel was ineffective for failing to challenge

the admission of out-of-court statements made by his codefendant, Bilal Williams, and by an

unnamed confidential informant that either directly or indirectly identified Mr. Upshaw as being

involved in the crime. These out-of-court statements were presented to the jury through the

testimony of the police officers investigating the shooting. The State argued at trial and argues

now on appeal that this testimony was properly admitted to explain the course of the police

investigation that led to Mr. Upshaw’s arrest. We need not decide if this evidence was properly

admitted because we find that Mr. Upshaw’s petition does not make a substantial showing that

appellate counsel’s failure to raise this issue on appeal amounted to ineffective assistance.

¶ 70   The testimony at issue came from officers Peck and Worsham, and Detective Halloran.

According to that testimony, the unnamed confidential informant told the police that “Little

Mike” had shot the officers together with “Bilal.” The confidential informant provided details to

the police about “Little Mike’s” car that matched the car that Mr. Upshaw was found in, and

another officer testified at trial that, in 1994, Mr. Upshaw had said that his nickname was “Little

Mike G.” Detective Halloran testified at Mr. Upshaw’s trial that Bilal Williams had made a

statement “implicating himself and this defendant.”

¶ 71   A criminal defendant has a right to be confronted with the witnesses against him under

both the United States and Illinois Constitutions. U.S. Const., amend. VI; Ill. Const. 1970, art. I,

§ 8. For that reason, hearsay—an out-of-court statement offered to prove the truth of the matter

asserted—is generally inadmissible at trial. People v. Tenney, 205 Ill. 2d 411, 432 (2002). Mr.


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Upshaw argues that the above-challenged testimony was problematic because the “whole range

of inference, starting with [Officer] Peck, led inevitably to [Mr. Upshaw] being accused by those

who never took the witness stand to be cross examined.” But when an out-of-court statement is

offered “for the limited purpose of showing the course of a police investigation,” that statement

is not considered to be hearsay. People v. Williams, 181 Ill. 2d 297, 313 (1998). An officer may

establish his course of conduct by testifying that he “had a conversation with an individual” and

that he “subsequently acted on the information received.” (Internal quotation marks omitted.)

People v. Mims, 403 Ill. App. 3d 884, 897 (2010).

¶ 72   Considering the record as a whole, we cannot find that Mr. Upshaw made a substantial

showing that his appellate counsel was ineffective for failing to challenge this testimony on

direct appeal. Where, as here, the police made an arrest a few days after the shooting in an area

unconnected to the scene of the shooting, the trial court’s allowance of testimony to provide

some explanation as to why the police proceeded as they did was not unreasonable. We also note

that the trial court instructed the jury that the evidence was to be considered not for the truth of

the matter asserted, but only for the purpose of understanding the police investigation. “We must

presume, absent a showing to the contrary, that the jury followed the trial judge’s instructions in

reaching a verdict.” Williams, 181 Ill. 2d at 314. Evidentiary rulings are reviewed deferentially

on appeal because the trial court has the advantage over the appellate court of having heard the

witnesses firsthand. See People v. Caffey, 205 Ill. 2d 52, 89 (2001). We cannot say that it was

patently erroneous for appellate counsel not to raise the issue on appeal. Coleman, 168 Ill. 2d at

523. Thus, the circuit court need not hold a third-stage evidentiary hearing on this issue.

¶ 73                 4. Newly Discovered Evidence of Abuse by Detectives

¶ 74   Mr. Upshaw’s supplemental petition also purports to raise “newly discovered evidence of


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the pattern and practice of abuse of suspects” by detectives Halloran and Boudreau. Mr. Upshaw

argues that if this evidence had been considered in conjunction with his motion to suppress, the

result of the motion would have been different. This issue would generally be barred by the

doctrine of res judicata because the claim that Mr. Upshaw’s statement should have been

suppressed was rejected on direct appeal (Upshaw, No. 1-99-4043, slip op. at 10-14). People v.

Reyes, 369 Ill. App. 3d 1, 15 (2006) (“Issues that were decided on direct appeal are barred by

res judicata.”). But “our supreme court has recognized that, ‘in the interests of fundamental

fairness, the doctrine of res judicata can be relaxed if the defendant presents substantial new

evidence.’ ” Id. (quoting People v. Patterson, 192 Ill. 2d 93, 139 (2000)).

¶ 75   For new evidence to be sufficient to overcome the bar of res judicata and warrant a new

trial, the evidence (1) must have been discovered since trial and be of such character that the

petitioner could not have discovered it sooner through due diligence, (2) must be material and

not merely cumulative of existing trial evidence, and (3) must be “of such conclusive character

that it will probably change the result on retrial.” Patterson, 192 Ill. 2d at 124. Here, Mr. Upshaw

has failed to make a substantial showing that his newly discovered evidence is of such a

“conclusive character that it [would] probably change the result on retrial.” Id. Therefore, the

circuit court properly dismissed this claim.

¶ 76   Mr. Upshaw’s postconviction petition includes a newspaper article that Mr. Upshaw

alleges “catalog[ues] Detective Boudreau’s coercive interrogation exploits,” a report from the

Chicago police department office of professional standards showing five complaints filed against

Detective Boudreau between January 1992 and August 1994, and affidavits from eight

individuals “outlining Detective Boudreau and Halloran’s coercive interrogation practices.” The

affidavits include specific allegations of abusive tactics used by detectives Halloran and


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Boudreau in January and February 1992 and again in February 1993, September 1995, April and

September 1996, and March 1998, including arresting suspects without a warrant; failing to

inform suspects of their Miranda rights; handcuffing suspects to the wall during many hours of

interrogation; denying suspects access to lawyers, use of a telephone, food, water, or trips to the

bathroom until they agreed to cooperate; choking, punching, slapping, and kicking suspects;

suffocating suspects with a plastic bag; electrically shocking suspects; and beating suspects with

a flashlight.

¶ 77    Mr. Upshaw also attached records from the Illinois Torture Inquiry and Relief

Commission in three cases: In re Claim of George Ellis Anderson, Ill. Torture Inquiry & Relief

Comm’n Cl. No. 2011.016-A (2012) (allegations that suspect was “beaten repeatedly, including

being kicked on the wrists while he was handcuffed to the wall” and “threatened with further

beatings if he didn’t sign a confession” by detectives Halloran and Boudreau in August 1991); In

re Claim of Clayborn Smith, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2011.007-S (2013)

(allegations that suspect was interrogated over a period of 39 hours by detectives Halloran and

Boudreau, during which time he was “threatened, beaten, portions of his hair braids came

undone because his head was jerked around” in October 1992); and In re Claim of Anthony

Jakes, Ill. Torture Inquiry & Relief Comm’n Cl. No. 2011.035-J (2013) (allegations that a 15-

year-old suspect was interrogated over a period of 16 hours by Detective Boudreau, during

which time he was “slapped, punched, beaten, and kicked” and sustaining injuries to his “back,

stomach, knee, elbow, and ribs” in September 1991).

¶ 78    Mr. Upshaw testified at some length during the hearing on his motion to suppress,

recounting his many hours of detention and stating that several of the officers involved in the

investigation slapped him, poked him with a stick, and struck him with their fists—and that this


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was why he signed the statement. The trial court denied the motion to suppress based on its

determination that Mr. Upshaw was not credible.

¶ 79   Despite the horrific conduct described in the documents that he attaches, Mr. Upshaw

cannot meet his high burden of demonstrating that this new evidence is of such conclusive

character that it would probably change the result on retrial in his case. The attached newly

discovered evidence all describes conduct by two officers—detectives Halloran and Boudreau—

in other cases. It is not at all clear that Mr. Upshaw ever claimed that either of these detectives

was the perpetrator of the physical abuse against him. In his supplemental petition, Mr. Upshaw

only says that the record establishes “that Detectives Boudreau and Halloran were the lead

detectives on the case and, by Detective Halloran’s testimony, the two [d]etectives were involved

in [Mr. Upshaw’s] interrogations during the time when [Mr. Upshaw] alleged that the coercive

tactics outlined in his testimony were employed.” At the hearing, Mr. Upshaw made attempts to

identify the officers whose conduct he was describing by giving physical descriptions, but was

not able to identify any of the officers by name, and the record is clear that both detectives

Halloran and Boudreau were off duty for many hours before Mr. Upshaw agreed to sign his

statement.

¶ 80   Also, Mr. Upshaw’s newly discovered evidence concerns conduct that is quite different

from what he alleges happened to him. Evidence of other bad acts is not admissible to prove “a

propensity” to commit bad acts but can be used to show “a course of conduct on the part of the

officers involved.” Reyes, 369 Ill. App. 3d at 18. This case stands in sharp contrast to the

Patterson case that Mr. Upshaw relies on. In Patterson, our supreme court found newly

presented evidence of coercion was sufficient to justify a third-stage postconviction evidentiary

hearing, in part because the petitioner’s claims were “strikingly similar” to the police abuse


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described in his new evidence. Patterson, 192 Ill. 2d at 145. We do not find Mr. Upshaw’s

allegations of physical abuse to be “strikingly similar” to the allegations in the new evidence.

Mr. Upshaw alleged he was beaten with a stick on the way to the police station, handcuffed to

the wall for a short duration of time in the beginning of his 28½-hour detainment, and was left

alone for large periods of time during which he slept. He was also taken to the bathroom and

eventually given food. In contrast, the affidavits attached and the Illinois Torture Inquiry and

Relief Commission case reports generally describe very different conduct, including repeated

beatings by punching, kicking, hitting with a flashlight and a rubber hose, choking, and the use

of electric shock and suffocation. This newly discovered evidence does not provide a sufficient

basis for holding a third-stage evidentiary hearing.

¶ 81                                     CONCLUSION

¶ 82   In sum, because we find that Mr. Upshaw made a substantial showing that he was not

culpably negligent for the delayed filing of his petition, we find that the circuit court erred in

dismissing his postconviction petition as untimely. We also find that Mr. Upshaw made a

substantial showing of constitutional violations with respect to two issues raised in his petition:

that his trial counsel was ineffective for failing to investigate his alibi witness, Tyrone White;

and that his appellate counsel was ineffective for failing to challenge his extended-term sentence

of 50 years based on Apprendi. This case is remanded to the circuit court for a third-stage

evidentiary hearing on these three issues. For the foregoing reasons, we reverse the circuit

court’s dismissal of Mr. Upshaw’s postconviction petition and remand for further proceedings

consistent with this opinion.

¶ 83   Reversed and remanded.




                                               - 31 -
