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                                                                         document
                                Appellate Court                          Date: 2017.10.16
                                                                         15:50:18 -05'00'




                  People v. Ramirez-Lucas, 2017 IL App (2d) 150156



Appellate Court     THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption             DAVID RAMIREZ-LUCAS, Defendant-Appellant.



District & No.      Second District
                    Docket No. 2-15-0156



Filed               August 8, 2017



Decision Under      Appeal from the Circuit Court of Winnebago County, No.
Review              07-CF-4698; the Hon. Fernando L. Engelsma, Judge, presiding.



Judgment            Reversed and remanded with directions.


Counsel on          Michael J. Pelletier, Thomas A. Lilien, Alan D. Goldberg, and Aliza
Appeal              R. Kaliski, of State Appellate Defender’s Office, of Chicago, for
                    appellant.

                    Joseph P. Bruscato, State’s Attorney, of Rockford (Patrick Delfino,
                    Lawrence M. Bauer, and Victoria E. Jozef, of State’s Attorneys
                    Appellate Prosecutor’s Office, of counsel), for the People.



Panel               JUSTICE SCHOSTOK delivered the judgment of the court, with
                    opinion.
                    Justices Jorgensen and Burke concurred in the judgment and opinion.
                                             OPINION

¶1        Following a jury trial, the defendant, David Ramirez-Lucas, was convicted of first degree
     felony murder in connection with the deaths of two men at a Rockford bar. He was sentenced
     to natural life imprisonment. On direct appeal, this court affirmed those convictions and the
     sentence. See People v. Ramirez-Lucas, 2013 IL App (2d) 110940-U. The defendant
     thereafter filed a postconviction petition, arguing that his trial counsel was ineffective for
     failing to investigate and present three occurrence witnesses whose testimony would have
     corroborated his self-defense theory. The trial court dismissed the defendant’s petition as
     frivolous and patently without merit. We reverse and remand for additional proceedings.

¶2                                         BACKGROUND
¶3       We previously summarized the relevant facts in our resolution of the defendant’s direct
     appeal (see id.), and we restate the pertinent facts here.
¶4       On December 19, 2007, the State charged the defendant with the knowing and felony
     murders (720 ILCS 5/9-1(a)(2), (a)(3) (West 2006)) of Tomas Mora and Heriberto Mendez.
     The defendant was charged with aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1)
     (West 2006)) as to Jesus Medrano, Leonardo Medrano, and Jose Ibarra. He was charged with
     aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 2006)) as to Cristiano
     Ramirez.
¶5       Between May 3 and May 10, 2010, the trial court conducted a jury trial on the charges
     against the defendant. The evidence presented indicated that on the evening of December 8,
     2007, the defendant went to the El Tenampa bar on South Main Street in Rockford. El
     Tenampa was celebrating its fifth anniversary in business, and had a band playing in addition
     to various special events such as a raffle and giveaways of promotional items. The defendant
     arrived between 7:30 and 8 p.m. and sat at a table near the restrooms. The bar was U-shaped,
     with the back door to the parking lot at the southwest end of the U. The defendant was sitting
     in the northwest corner. The defendant drank at least 10 beers, ordering 3 or 4 “buckets” of
     beer (buckets filled with ice and bottles of beer). The bar was crowded, primarily with family
     and friends of the owner, Jesus Medrano, Sr. Witnesses estimated that there were between 40
     and 60 people there.
¶6       Sometime between 11 p.m. and midnight, the defendant went to the restroom. There he
     encountered Jesus Medrano, Jr., and the two got into an altercation when (according to
     Medrano, Jr., and his friend Hugo Garza) the defendant made a comment about urinating in
     the bathroom sink. Garza joined in and began fighting with the defendant, hitting him seven
     or eight times. A few minutes later, Medrano, Sr., broke up the fight and told the defendant
     he had to leave. At that point, the defendant’s nose was bloody, as was his shirt. Garza’s shirt
     also had blood on the sleeve, and he changed it later while still at the bar. Various witnesses
     testified that the defendant left El Tenampa peacefully (accompanied to the door by
     Medrano, Sr.), although the defendant testified that he was angry.
¶7       A friend gave the defendant a ride to his home, which was about 10 minutes away. The
     defendant did not have his keys, so he used a hidden key to enter his home. (The defendant
     originally testified that when he got home, he looked for his keys and realized at that point he
     did not have them. However, the defendant later testified that he realized as he was being


                                                -2-
       ejected from El Tenampa that he did not have his keys or cell phone and that he asked
       Medrano, Sr., to get those items for him, but Medrano, Sr., merely repeated that the
       defendant had to leave.) At his home, the defendant went to the bathroom, washed his face,
       and changed his clothes. He then decided to go back to El Tenampa to get his phone and
       keys. He took with him a fully-loaded .45-caliber semi-automatic handgun. The same friend
       who had given him a ride home gave him a ride back to El Tenampa.

¶8                                  The Shooting of Leonardo Medrano
¶9         The defendant arrived back at El Tenampa about 30 to 45 minutes after he had been
       ejected, and entered by the back door (the door most commonly used by patrons).
       Immediately inside the back door was a short hallway with two side doors, one leading to the
       area where drinks were served and one to the kitchen. Beyond that was the main room of El
       Tenampa. The defendant testified that he had his gun in the pocket of his jacket, with the
       handle sticking out a little bit. He walked into the main room and toward the area where he
       had been sitting earlier. According to the defendant, when he was a short distance away from
       the table where he had been sitting, he saw that his keys and phone were not on the table and
       turned around to leave. Without warning he was then grabbed from behind. He took his gun
       out of his pocket and fired a shot into the floor. He fired into the floor because he did not
       want to hurt the man who had grabbed him.
¶ 10       Various witnesses had differing accounts of the events that occurred immediately after
       the defendant returned to the bar. Nicole Beard, a waitress at El Tenampa, testified that she
       was in front of a closet near the back door when the defendant came in. He walked past her,
       and then he bumped into someone else and his coat flew open. At that point, people started
       screaming in Spanish. (Beard did not understand Spanish.) The defendant kept walking
       toward the crowd, and the crowd came toward him. The defendant then raised his hand above
       the crowd. He was holding a gun and started shooting in the air toward the crowd. Beard
       heard two to four shots as she left.
¶ 11       Medrano, Sr., testified that he did not notice that the defendant had come into the bar
       until someone yelled, “He has a gun!” The defendant was standing near the dartboard (near
       the restrooms) when Medrano, Sr., heard the first shot. After the first shot, the defendant
       began walking back toward the exit. Leonardo Medrano (one of the owner’s sons) came up to
       the defendant and tried to take his gun away. Leonardo fell back and the defendant shot him
       in the leg. Leonardo’s sister, Nidya Angeles, covered Leonardo with her body, and the
       defendant kicked at Leonardo’s face. Medrano, Sr., hit the bar’s “panic button” to call the
       police.
¶ 12       Angeles testified that she, Leonardo, and some others were at a table between the pool
       table and the restrooms. She saw the defendant escorted out. Later, she heard someone yell,
       “he has a gun!” The defendant was near the dartboard then. She saw the defendant pointing
       the gun, then shooting. Leonardo was near her and the defendant pointed the gun at him. She
       pulled Leonardo backward, and he fell. Angeles then covered him with her body. Angeles
       did not recall the defendant shooting Leonardo. However, as she and Leonardo were lying on
       the floor, she “felt kicking.”
¶ 13       Leonardo testified that he had followed his father as the defendant was escorted out after
       the restroom fight. When the defendant returned about 30 minutes later, Leonardo saw him.
       He approached the defendant and asked “what are you doing?” because the defendant had a

                                                  -3-
       gun in his hand. Leonardo described the defendant as holding the gun with his elbow bent
       and the gun pointed upward at a 45-degree angle. As the defendant walked toward the
       dartboard, he straightened his arm and began sweeping the gun back and forth in a panning
       motion. Leonardo tried to grab the gun from the defendant, but the defendant pulled away
       and shot once. The shot was toward Leonardo but missed him. Leonardo tried again to grab
       the gun. The defendant pushed him and then shot him in the leg as he fell backward. Angeles
       jumped on top of Leonardo and covered him, screaming at the defendant to leave him alone.
       The defendant then kicked Leonardo in the mouth.
¶ 14        Antonio Ramirez testified that he was at El Tenampa with his brother Christiano. He was
       sitting near the front door and the pool table, near the east end of the room. He saw the
       defendant escorted out after the restroom fight. About half an hour later, he saw the
       defendant run in, screaming “where is he, where is he?” and scanning the bar. (This is
       contrary to the testimony of most of the witnesses, who stated that the defendant did not say
       anything while he was moving through the bar.) Christiano pointed the defendant out to
       Antonio. Antonio saw the defendant holding the gun straight out in front of him and
       sweeping it back and forth toward people in a horizontal panning motion. Antonio saw
       Leonardo approach the defendant and try to calm him down. The defendant got mad and
       pushed Leonardo, who fell backward. The defendant then shot toward Leonardo. Antonio
       and Christiano heard a second shot, and people began screaming and running.

¶ 15                           The Confrontation With Christiano Ramirez
¶ 16       Antonio and Christiano turned to go, but were blocked by other people. The defendant
       began approaching them. Christiano, who was holding a bottle of beer, stepped in front of
       Antonio. Christiano testified that the defendant approached until the gun was within a foot of
       Christiano’s chest. Both Christiano and Antonio testified that the defendant pointed the gun
       at them. The defendant said something to Christiano in Spanish that he did not understand;
       according to Antonio, the man wanted Christiano to drop the bottle. The defendant testified
       that, as he was heading for the door, Christiano was in front of him holding a beer bottle. The
       defendant was afraid that Christiano would hit him with the bottle, and so the defendant told
       him to drop the bottle. On cross-examination, the defendant agreed that Christiano had not
       threatened him before the defendant pointed his gun at Christiano and told him to drop the
       bottle. Antonio testified that the defendant then “let out a shot toward us.” Antonio confirmed
       that he told police that night that the defendant “shot the gun at our feet” and that he felt “the
       bullet hit near the floor.” Christiano did not recall the defendant firing. In his statement to
       police later that night, he said that the defendant fired a shot into the floor between
       Christiano’s legs, but he said this based on seeing a bullet hole in the floor when he showed
       the police where the confrontation occurred. The defendant confirmed that he fired a shot
       during the confrontation with the Ramirez brothers, “so that [Christiano] would drop the
       bottle.” However, he stated that he fired at the floor, not at Christiano.

¶ 17                                       The Shooting of Mora
¶ 18       The defendant testified that he continued toward the back door, but Tomas Mora
       approached him and hit him twice on the back with a bar stool. Most of the other patrons
       who testified at the trial agreed that Mora had lifted a bar stool and swung it down toward the
       defendant. Medrano, Sr., who was in the service area at the time, stated that Mora missed his

                                                   -4-
       step as he was doing this and fell. The defendant shot Mora in the chest. Mora fell on the
       floor, near the dance floor. The defendant conceded that, at the time Mora attacked him, he
       had already fired two shots.
¶ 19       Medrano, Sr., stated that, after the defendant shot Mora, Medrano, Sr., began to shout
       “bad words” at the defendant. The defendant came toward Medrano, Sr., pointing his gun at
       him, and Medrano, Sr., dropped to the floor.

¶ 20                                       The Shooting of Ibarra
¶ 21       José Ibarra testified that he had arrived at El Tenampa at about midnight, as the defendant
       was being ejected. Ibarra was near the pool table 30 to 45 minutes later when he saw the
       defendant come back with a gun. As the defendant began shooting, Ibarra moved around the
       pool table. Ibarra saw the defendant shoot Mora, Ibarra’s cousin. Ibarra went to help Mora.
       Ibarra then saw the defendant going toward Ibarra’s sister. Ibarra hit the defendant with a
       pool cue and tried to grab his gun hand. As they were struggling, the defendant shot Ibarra in
       the abdomen. Ibarra testified that he spent two weeks in the hospital as a result. As to this
       shooting, the defendant testified that, after he shot Mora, someone hit him with a stick,
       people jumped on him, and he shot again, but he did not see where that shot went.

¶ 22                                       Events in the Kitchen
¶ 23       Leonardo testified that, after the defendant shot him in the leg and kicked him, he got up
       in time to see the defendant shoot Mora. Leonardo hid behind the bar, but then saw the
       defendant aim a gun at his father. Leonardo came out from behind the bar and approached
       the defendant, grabbing him around the chest and trying to pin his arms downward.
       Leonardo’s cousin Heriberto Mendez (Ibarra’s nephew) came to help, and they wrestled the
       defendant into the kitchen. The lights were off in the kitchen. The defendant testified that he
       was trying to leave El Tenampa but people were hitting him and he was thrown into a dark
       room. Medrano, Sr., also came out from behind the bar to assist Leonardo and Mendez at this
       point.
¶ 24       The four men scuffled in the dark kitchen. Medrano, Sr., testified that the men were
       standing at first but then fell and continued fighting on the floor. They were yelling at the
       defendant to drop the gun, but he would not, so they continued to fight with him to try to get
       the gun away from him. The defendant fired the gun “a lot of times.” At some point, Mendez
       was shot in the head and died. Leonardo was shot in the foot. Medrano, Sr., was shot through
       the shoulder; the bullet also grazed his neck and chin. Medrano, Sr., Leonardo, and the
       defendant all agreed that the gun remained in the defendant’s hand throughout the fighting.
       The defendant testified that he did not intend to pull the trigger or shoot anyone while he was
       in the kitchen. Agreeing with a question from his attorney, the defendant stated that the gun
       might have gone off when people in the kitchen pulled on the gun while his finger was on the
       trigger. Medrano, Sr., stated that no one could get the gun away from the defendant until all
       of the bullets were gone. Leonardo testified that he eventually bit the defendant on the hand
       to make him let go of the gun. The defendant testified that, because he was afraid, he held on
       to the gun tightly until he lost consciousness from the blows being showered on him.




                                                  -5-
¶ 25                                          The Aftermath
¶ 26       When the police arrived (in response to several calls to 911), they found a small crowd in
       the kitchen, beating the defendant, who was unconscious. The defendant, Leonardo, Ibarra,
       Mora, and Medrano, Sr., were all taken to the hospital. The defendant had cuts on his face
       and scalp and his nose was broken. Leonardo had been shot twice, once in the left shin and
       once in the left foot. Ibarra had been shot through the abdomen. Mora, who had been shot in
       the chest, was pronounced dead at the hospital. Medrano, Sr., was shot through the shoulder.
       Mendez’s body was taken directly to the coroner’s office.
¶ 27       Police crime-scene investigators found eight spent .45-caliber shell casings in El
       Tenampa: four in the main room and four in the kitchen. The .45-caliber handgun recovered
       from the scene had a magazine that could hold eight bullets, but it was empty. A second
       magazine, fully loaded with .45-caliber bullets, was also found at the scene, but no evidence
       linked it to the defendant.

¶ 28                                   The Verdicts and the Sentence
¶ 29       On May 13, 2010, the jury returned its verdicts. As to the charges of knowing murder, the
       jury found the defendant guilty of second degree murder as to Mora and involuntary
       manslaughter as to Mendez. The jury also found the defendant guilty of the first degree
       felony murders of both Mora and Mendez, based on two predicate felonies that the jury
       found the defendant had committed: (1) the aggravated battery of Ibarra and (2) the
       aggravated discharge of a firearm toward Christiano. The jury also returned a guilty verdict
       on the misdemeanor charge of reckless conduct toward Medrano, Sr. The jury returned
       verdicts of not guilty on all of the remaining charges, including the charge of aggravated
       battery of Leonardo. Finally, the jury found that the State proved that the defendant
       personally fired the shot that killed Mora but did not prove that the defendant personally fired
       the shot that killed Mendez.
¶ 30       Following the denial of his motion for a new trial, the trial court sentenced the defendant
       to natural life imprisonment for the felony murders of Mora and Mendez. The defendant
       thereafter filed a timely notice of appeal.

¶ 31                                       The Direct Appeal
¶ 32      On appeal, this court vacated two of the defendant’s four murder convictions based on
       one-act, one-crime principles. Specifically, this court vacated the felony-murder convictions
       based on the aggravated battery of Ibarra, leaving the felony-murder convictions based on the
       aggravated discharge of a firearm toward Christiano. We affirmed his sentence of natural life
       imprisonment. People v. Ramirez-Lucas, 2013 IL App (2d) 110940-U, ¶¶ 27, 65.

¶ 33                                   The Postconviction Petition
¶ 34        On June 18, 2014, the defendant filed a postconviction petition. The petition alleged that
       trial counsel failed to investigate and call witnesses who were at the bar and would have
       testified that the defendant was not the aggressor but acted in self-defense. In support of his
       petition, the defendant attached the affidavits of Erasmo Soto, Jose Luis Ildefonso, and
       Manuel Tello. The men testified that, when the defendant returned to the bar, someone
       grabbed him from behind. The defendant pulled out a gun and yelled “Don’t touch me!” as a


                                                  -6-
       couple of men approached him. He then shot at the floor. At that point, people began yelling
       and started heading toward the door. The defendant appeared scared and began to leave, but
       someone blocked him while holding a bottle in his hand. That man pushed the defendant and
       threw the bottle toward him, and the defendant fired one more shot at the floor.
¶ 35       The three witnesses further testified that the defendant was going toward the exit when
       someone hit him in the back, and then someone hit him in the head with a pool cue when he
       turned around. The defendant tried to get away, but a group of men jumped him and took him
       toward the kitchen. The witnesses heard yelling and more shots. When the police and
       ambulance arrived, the witnesses left the crowd. They explained that they did not talk to the
       police because they did not want to be involved. However, they now wanted to assist the
       defendant with his case.
¶ 36       The defendant attached his own affidavit. He stated that the man with the beer bottle
       pushed him and that a bottle was thrown near him, causing him to react. The defendant
       further stated that he told his attorney that many people in the bar could support his
       self-defense theory.
¶ 37       On September 11, 2014, the trial court dismissed the defendant’s petition as frivolous and
       patently without merit. The trial court explained that the defendant’s allegations were
       conclusory and involved matters of trial strategy. The trial court also found that the three
       identical affidavits would have been cumulative of the other evidence presented at trial or
       constituted “nothing more than opinion evidence.” Following the denial of his motion to
       reconsider, the defendant filed a timely notice of appeal.

¶ 38                                            ANALYSIS
¶ 39       On appeal, the defendant argues that the trial court erred in summarily dismissing his
       petition. Specifically, the defendant contends that his petition set forth a potentially
       meritorious claim of ineffective assistance of counsel, due to trial counsel’s failure to
       investigate and present the three occurrence witnesses whose testimony would have
       corroborated his self-defense theory and would have undercut the State’s case for aggravated
       discharge of a firearm toward Christiano.
¶ 40       The Post-Conviction Hearing Act (the Act) (725 ILCS 5/122-1 (West 2014)) provides a
       remedy to criminal defendants who have had substantial violations of their constitutional
       rights during their criminal trials. See People v. Vernon, 276 Ill. App. 3d 386, 391 (1995). A
       postconviction proceeding is not an appeal per se, but a collateral attack upon a final
       judgment. See People v. Lester, 261 Ill. App. 3d 1075, 1077 (1994). A pro se petitioner is
       entitled to an evidentiary hearing on his postconviction petition only when he presents the
       “gist” of a meritorious constitutional claim (People v. Porter, 122 Ill. 2d 64, 74 (1988)) and
       the record or accompanying affidavits support the allegations in the petition (Vernon, 276 Ill.
       App. 3d at 391). The “gist” standard represents a “low threshold,” and during the summary
       dismissal stage the allegations in the petition must be taken as true and liberally construed.
       People v. Gaultney, 174 Ill. 2d 410, 418 (1996). A petition may be summarily dismissed as
       frivolous or patently without merit only if it has no arguable basis in either law or fact.
       People v. Hodges, 234 Ill. 2d 1, 11-12 (2009). Whether the allegations in the petition are
       sufficient to avert summary dismissal is a legal inquiry, subject to de novo review. People v.
       Coleman, 183 Ill. 2d 366, 388 (1998).


                                                  -7-
¶ 41       As the defendant’s claim alleges the ineffective assistance of counsel, the standards set
       forth in Strickland v. Washington, 466 U.S. 668 (1984), apply. People v. Albanese, 104 Ill. 2d
       504, 526-27 (1984). To succeed on such a claim, a defendant must show both that his
       counsel’s performance “fell below an objective standard of reasonableness” (Strickland, 466
       U.S. at 688) and that “there is a reasonable probability that, but for counsel’s unprofessional
       errors, the result of the proceeding would have been different” (id. at 694). To satisfy the first
       portion of the Strickland test, a defendant must show that counsel’s performance fell below
       an objective standard as measured by prevailing professional norms. People v. Spann, 332 Ill.
       App. 3d 425, 430 (2002). There is a strong presumption, which a defendant must overcome,
       that counsel’s performance “falls within the wide range of reasonable professional
       assistance.” People v. Miller, 346 Ill. App. 3d 972, 982 (2004). Decisions involving
       judgment, strategy, or trial tactics will not support a claim of ineffective assistance. People v.
       Lindsey, 324 Ill. App. 3d 193, 197 (2001). At the first stage of postconviction proceedings, a
       petition alleging ineffective assistance may not be summarily dismissed if it is arguable that
       counsel’s performance fell below an objective standard of reasonableness and it is arguable
       that the defendant was prejudiced. People v. Wright, 2013 IL App (4th) 110822, ¶ 22.
¶ 42       A defense attorney’s basic function is to “make the adversarial testing process work in
       the particular case.” (Internal quotation marks omitted.) People v. Domagala, 2013 IL
       113688, ¶ 38. As a result, attorneys have an obligation to “explore all readily available
       sources of evidence that might benefit their clients.” People v. Morris, 335 Ill. App. 3d 70, 79
       (2002). The failure to develop an available defense and present available witnesses to support
       that defense thus amounts to ineffective assistance of counsel. Id. Further, an attorney is
       ineffective when he fails to present evidence of which he is aware to support an otherwise
       uncorroborated defense. People v. King, 316 Ill. App. 3d 901, 913 (2000); People v. Skinner,
       220 Ill. App. 3d 479, 485 (1991). Moreover, an attorney who fails to fully investigate cannot
       make a sound strategic decision about whom to call. People v. Truly, 230 Ill. App. 3d 948,
       954 (1992); Mosley v. Atchison, 689 F.3d 838, 848 (7th Cir. 2012) (explaining that defense
       counsel who never found out what potential witnesses’ testimony would be “could not
       possibly have made a reasonable professional judgment that their testimony would have been
       cumulative or bolstered the State’s case and could not have chosen not to call [them] as a
       matter of strategy”).
¶ 43       We find this case to be analogous to Hodges, 234 Ill. 2d 1. In that case, the defendant
       testified that he acted in self-defense when he shot and killed a man at a gas station. Id. at
       4-5. After his conviction was affirmed on direct appeal, he filed a postconviction petition
       alleging that trial counsel was ineffective for failing to investigate and present testimony
       from three witnesses who would have supported his self-defense theory. Id. at 6-8. On
       appeal, the supreme court held that the defendant had presented an arguable claim of
       counsel’s ineffectiveness for failing to investigate and present those witnesses. In so ruling,
       the supreme court found that the defendant “identified each of the three witnesses and
       summarized the testimony they would give” and that he satisfied the corroboration
       requirement by providing signed affidavits from those three witnesses. Id. at 18. The supreme
       court further found that none of the allegations about those witnesses “could be described as
       fantastic or delusional” and that the defendant’s legal theory was not meritless, as it
       supported his unreasonable belief in the need for self-defense. Id. at 19-22.



                                                   -8-
¶ 44       Here, as in Hodges, the defendant argued that he acted in self-defense when he shot at
       Christiano. The defendant’s claim was uncorroborated at trial. As in Hodges, the defendant in
       his postconviction petition identified three witnesses who would have corroborated his
       theory. He supported his petition with the affidavits of those witnesses. Moreover, as in
       Hodges, the defendant argued that his trial counsel was ineffective for failing to investigate
       and present testimony from those witnesses. As the supreme court held in Hodges that the
       defendant’s petition raised an arguable claim of counsel’s ineffectiveness, we determine here
       that the defendant raised an arguable claim that he received ineffective assistance of counsel.
¶ 45       The State insists that Hodges is distinguishable because in that case defense counsel
       could have easily discovered the three witnesses at issue. Two of those witnesses were
       friends of the victim’s and had arrived with the victim at the scene. The third witness was,
       according to the defendant’s postconviction petition, someone the defendant had told counsel
       about prior to trial. By contrast, the State notes, the defendant here did not tell counsel about
       any of the three witnesses prior to trial. Those witnesses did not speak with the police.
       Moreover, none of the witnesses in their affidavits indicated that anyone else at the bar knew
       they were there that night. As such, the State insists that counsel could not have known about
       those witnesses.
¶ 46       The record reveals that there were approximately 50 people at the bar the night of the
       shooting. The defendant told defense counsel that there were many people in the bar who
       could support his claim of being attacked or grabbed before any shots were fired. The
       defendant claimed that, despite his informing defense counsel of this, counsel did not
       investigate whether any such witnesses actually existed. This is consistent with the affidavits
       of Ildefonso, Tello, and Soto, who testified that they came forward only after hearing of the
       defendant’s conviction from the news. As almost all of the people at the bar on the night of
       the shooting were members of the Medrano family or friends of the family, it is at least
       arguable that defense counsel would have learned the names of Ildefonso, Tello, and Soto
       had he asked the known witnesses to identify everyone at the bar that night. See id. at 11-12;
       Wright, 2013 IL App (4th) 110822, ¶ 22. Although the identities of the witnesses at issue
       were more readily apparent in Hodges than in the present case, we hold that the defendant
       has presented enough evidence here to move the case to second-stage proceedings. See
       Wright, 2013 IL App (4th) 110822, ¶ 22 (“A trial court should not summarily dismiss a
       postconviction petition unless its lack of legal and factual merit is certain and indisputable.”).
¶ 47       In so ruling, we reject the State’s argument that the defendant was not arguably
       prejudiced by defense counsel’s representation because the proposed testimony would have
       been cumulative of the defendant’s testimony regarding his entry into the bar and the firing
       of the first gunshot. The defendant testified that, after he was grabbed by Leonardo from
       behind and after he tried to leave the bar, he shot at Christiano’s feet in self-defense. The
       defendant explained that he feared that Christiano, who had already pushed him and was
       blocking the exit, would hit him with a bottle.
¶ 48       In their affidavits, the three witnesses explained that, after the defendant was grabbed
       from behind after he returned to the bar, the defendant pulled out a gun and yelled, “Don’t
       touch me!” as men approached him, after which he shot at the floor. The defendant then tried
       to leave, but was blocked by a man holding a bottle. After that man pushed the defendant and
       threw the bottle at him, the defendant fired one more shot at the floor. Although the
       defendant headed toward the exit, someone hit him in the back, and someone hit him in the

                                                   -9-
       head with a pool cue when he turned around. The defendant tried to get away, but a group of
       men jumped him and took him toward the kitchen.
¶ 49       Evidence is considered cumulative when it adds nothing to what was already before the
       jury. People v. Ortiz, 235 Ill. 2d 319, 335 (2009); People v. Gabriel, 398 Ill. App. 3d 332, 351
       (2010). However, evidence is not considered cumulative if it goes to an ultimate issue in the
       case. People v. Molstad, 101 Ill. 2d 128, 135 (1984).
¶ 50       The testimony at issue here, which would have corroborated the defendant’s otherwise
       uncorroborated defense, would not have been merely cumulative of the defendant’s
       testimony because the witnesses would have provided more details as to what happened at
       the bar that night than the defendant had. Specifically, the witnesses stated that the defendant
       (1) yelled, “Don’t touch me,” (2) shot at the floor in response to being pushed and having a
       bottle thrown at him, (3) was hit in the head with a pool cue, and (4) tried to get away but a
       group of men jumped him and took him toward the kitchen. Furthermore, the evidence is not
       cumulative because it goes to an ultimate issue of whether the defendant acted in self-defense
       when he shot at Christiano. See id.
¶ 51       In urging us to reach a different result, the State points to People v. Harmon, 2013 IL App
       (2d) 120439. In that case, the defendant was convicted of aggravated kidnapping and arson.
       Id. ¶ 17. The victim testified that the defendant sustained a hand injury after punching him.
       Id. ¶ 6. The defendant, however, testified that he injured his hand the day before the crime,
       when he was helping his aunt move. Id. ¶ 13. The defendant denied any involvement in the
       crime. Id. ¶ 14. In his postconviction petition, the defendant argued that his counsel was
       ineffective for not calling Willie Gulley as a witness. Id. ¶ 27. The defendant claimed that
       Gulley would have testified that the defendant hurt his hand helping his aunt move. Id.
       However, the defendant did not indicate if Gulley knew when the defendant had helped his
       aunt move. Id. This court held that the defendant did not present an arguable claim of
       counsel’s ineffectiveness because “Gulley was not even certain when defendant’s injury
       occurred” and because Gulley’s testimony would have been cumulative of the defendant’s
       testimony about the hand injury. Id. ¶ 33.
¶ 52       The State’s reliance on Harmon is misplaced because in that case, (1) Gulley could not
       corroborate the defendant’s alibi and (2) Gulley’s testimony would not have added any
       information for the jury to consider. As explained above, the three witnesses’ testimony here
       would have corroborated the defendant’s defense and would have provided additional
       information for the jury to consider.
¶ 53       The State further argues that the defendant was not arguably prejudiced by defense
       counsel’s failure to call the three witnesses because their proposed testimony would have
       contradicted the defendant’s testimony. The State notes that the witnesses indicated that
       Christiano blocked, pushed, and threw a bottle at the defendant before the defendant fired the
       gun. This differed from the defendant’s testimony that Christiano was standing in his way,
       held a bottle, and did not drop the bottle until the defendant fired the gun the second time.
       The defendant also denied that Christiano threatened him before he pointed the gun at a bar
       patron. Because the three witnesses would have contradicted the defendant’s testimony, the
       State insists that defense counsel’s failure to discover those witnesses does not constitute
       ineffective assistance of counsel.
¶ 54       In response, the defendant acknowledges that there were some contradictions between his
       testimony and the testimony of the three witnesses. However, the defendant insists that such

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       discrepancies can be easily explained because the scene was chaotic when the shooting
       occurred. The defendant argues that the chaos created numerous inconsistencies in the
       evidence, such as whether (1) Mora was shot before the encounter between the defendant and
       Leonardo, (2) Mora held a bar stool during his confrontation with the defendant, and (3) the
       defendant shot at the feet of Christiano and Antonio. The defendant further asserts that
       inconsistencies between the three witnesses’ testimony and his own are understandable in
       light of the fact that he was drinking heavily and also beaten and seriously injured during the
       night in question.
¶ 55       We agree with the defendant that the inconsistencies between his testimony and that of
       the three witnesses were not a basis to dismiss his petition. In Domagala, 2013 IL 113688,
       the defendant’s postconviction petition included a new physician’s expert opinion that
       contradicted the opinion given by a different physician at trial. The supreme court found that
       the conflicting opinions did not bar the defendant from receiving relief, explaining that
       resolving evidentiary conflicts was inappropriate at the first stage of postconviction
       proceedings. Id. ¶ 46. Rather, “[s]uch conflicts are only appropriately resolved at the third
       stage, where the circuit court can weigh credibility and determine the weight to be given [to]
       testimony and evidence.” Id.
¶ 56       Here, as in Domagala, we do not believe that it is proper to resolve inconsistencies in
       witness testimony at the first stage of postconviction proceedings. Instead, this is a matter for
       the trial court to resolve at a later stage of the proceedings. See id.

¶ 57                                       CONCLUSION
¶ 58       We reverse the circuit court of Winnebago County’s summary dismissal of the
       defendant’s petition for postconviction relief as frivolous and patently without merit. The
       cause is remanded to the circuit court with directions that the defendant’s request for the
       appointment of new counsel be granted and the matter be advanced to the second stage of
       postconviction proceedings.

¶ 59      Reversed and remanded with directions.




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