                               Illinois Official Reports

                                       Appellate Court



                        People v. Minniefield, 2014 IL App (1st) 130535



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



District & No.            First District, Fifth Division
                          Docket No. 1-13-0535



Filed                     December 31, 2014
Rehearing denied          February 5, 2015



Held                       The appellate court upheld the trial court’s second-stage dismissal of
(Note: This syllabus defendant’s pro se postconviction petition, as supplemented by
constitutes no part of the defense counsel, filed following a jury’s finding that he was guilty of
opinion of the court but first-degree murder and the sentence of 25 years plus a 25-year
has been prepared by the enhancement for personally discharging a firearm, since defendant’s
Reporter of Decisions claims that he made a substantial showing that he acted in self-defense
for the convenience of and was innocent and that his counsel was ineffective for failing to
the reader.)               request an involuntary manslaughter instruction and for failing to
                           investigate a call from occurrence witnesses were not persuasive.




Decision Under            Appeal from the Circuit Court of Cook County, No. 03-CR-1284; the
Review                    Hon. Maura Slattery Boyle, Judge, presiding.




Judgment                  Affirmed.
     Counsel on               Michael J. Pelletier, Alan D. Goldberg, and Yasaman Hannah Navai,
     Appeal                   all of State Appellate Defender’s Office, of Chicago, for appellant.

                              Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
                              Michele Grimaldi Stein, and Peter Maltese, Assistant State’s
                              Attorneys, of counsel), for the People.



     Panel                    JUSTICE GORDON delivered the judgment of the court, with
                              opinion.
                              Presiding Justice Palmer and Justice Reyes concurred in the judgment
                              and opinion.


                                               OPINION

¶1         Defendant Gregory Minniefield was found guilty after a jury trial of first-degree murder
       and sentenced to 25 years for murder, plus a 25-year enhancement for personally discharging a
       firearm, for a total of 50 years with the Illinois Department of Corrections.
¶2         At his jury trial, defendant testified: that he walked with a gun at his side toward the
       victim’s parked vehicle, that the victim said “Oh, s***!” and reached toward something on the
       floor, that defendant reached his gun inside the victim’s vehicle and fired two shots in
       self-defense toward “whatever” the victim was reaching for, that the victim’s vehicle moved
       forward, and that the driver’s window frame hit defendant’s gun, causing it to discharge
       multiple times accidentally. Thus, there was no dispute at trial that defendant was the shooter
       or that the shots from defendant’s gun killed the victim. The only issues at trial concerned
       self-defense and accident and, at defense counsel’s request, the jury received second-degree
       murder instructions and a self-defense instruction. However, the jury rejected these options
       and convicted defendant of first-degree murder.
¶3         On direct appeal, defendant claimed that his counsel was ineffective for failing to request
       an involuntary manslaughter instruction because his testimony demonstrated that he acted
       recklessly when he shot the victim. The appellate court held that, since the record did not
       disclose whether counsel and defendant discussed this option, “the basis of defendant’s
       ineffective assistance claim wholly relies on matters not of record,” and “the claim must be
       raised in a collateral proceeding,” such as a postconviction proceeding. People v. Minniefield,
       No. 1-05-2792, slip op. at 6 (2007) (unpublished order under Supreme Court Rule 23).
¶4         Defendant then filed a pro se postconviction petition in December 2007, alleging
       ineffective assistance of trial counsel based on counsel’s alleged failure both to request an
       involuntary manslaughter jury instruction and to investigate witnesses. The trial court
       summarily dismissed the petition on February 6, 2008, finding his claims frivolous and
       patently without merit. On May 28, 2010, this court reversed the trial court’s summary
       dismissal holding that, on the record before it, defendant’s “allegation that counsel failed to
       investigate or present witnesses has an arguable basis in law and fact.” People v. Minniefield,


                                                  -2-
       No. 1-08-0649, slip op. at 4 (2010) (unpublished order under Supreme Court Rule 23)
       (remanding the case for second-stage proceedings). After remand and appointment of counsel,
       counsel filed a supplemental petition, which the trial court dismissed on January 15, 2013.
¶5         It is this January 15, 2013, second-stage dismissal which is the subject of the current
       appeal. On this appeal, defendant argues: (1) that he has made a substantial showing that he
       acted in self-defense and thus is actually innocent; and (2) that his counsel was ineffective (a)
       for failing to ask for an involuntary manslaughter jury instruction and (b) for failing to
       investigate or call occurrence witnesses. At the second-stage proceeding which we are
       reviewing, the State conceded that the two affidavits which defendant submitted in support of
       his actual innocence claim are newly discovered. Defendant requests this court to remand for a
       third-stage evidentiary hearing.
¶6         For the following reasons, we affirm.

¶7                                          BACKGROUND
¶8                                      I. The Evidence at Trial
¶9                                           A. The Events
¶ 10       On direct appeal, we summarized the evidence at trial as follows:
                   “The trial evidence demonstrated that, on December 17, 2002, defendant fatally
              shot the victim, Theopolis[1] Ransberry. Immediately prior, defendant was driving a car
              with two passengers, his girlfriend and cousin. The victim was simultaneously driving
              his car with three passengers. Although defendant admitted that he shot the victim, the
              trial testimony conflicted regarding the exact chain of events leading to the victim’s
              death. The State’s witnesses, including the victim’s passengers and defendant’s cousin,
              testified that defendant instigated the exchange with the victim by shooting at the
              victim’s car. Then, after the victim subsequently pulled his car over, defendant
              approached on foot and shot the victim several more times absent provocation.
              Contrarily defendant testified that he did not shoot the victim until, after approaching
              the victim’s car to merely talk, he thought the victim was reaching for a gun, and thus
              responsively shot the victim’s hand twice. Then because the victim began to drive
              away while defendant’s hand remained partially inside the car, defendant’s hand hit the
              window causing the handgun to fire several more times.” Minniefield, No. 1-05-2792,
              slip op. at 2.

¶ 11                               B. Defendant’s Pretrial Confession
¶ 12       We further described defendant’s pretrial confession as follows:
                  “At trial, Assistant State’s Attorney (ASA) John Brady testified that defendant
             agreed to have his statement videotaped, and it was published to the jury over defense
             counsel’s objections. In the statement, defendant admitted that he chased the victim’s
             car on the day in question because they were engaged in an ongoing feud over money.
             Defendant further admitted that, while chasing the victim’s car, he fired two gunshots
             into the air. Defendant additionally admitted that he approached the victim’s car,

           1
            The victim’s first name is spelled several different ways in the appellate record and we are not
       certain which spelling is correct.

                                                     -3-
               grabbed the chain around his neck and demanded money that the victim owed him. The
               victim moved and defendant fired his handgun toward the victim’s leg. Then, while
               defendant’s handgun remained inside the car, the car moved approximately two feet
               causing defendant to shoot the victim four additional times. Defendant admitted that no
               one was armed in the victim’s car. Defendant knew that bullets hit both the victim and
               Roshawn Adams, one of the passengers; however, he fled the scene and disposed of his
               handgun. Defendant stated that he merely intended to scare the victim, not to hurt him.”
               Minniefield, No. 1-05-2792, slip op. at 2.

¶ 13                              C. Defendant’s Testimony at Trial
¶ 14       We described defendant’s trial testimony as follows:
                 “Defendant testified that, in April 2002, he and the victim had a conversation
             during which the victim denied involvement in an incident with defendant’s girlfriend.
             He further testified that, early in the afternoon on the day in question, defendant was
             driving with his two-year[-]old son when the victim opened fire at defendant’s car.
             Defendant found a police officer in the area and reported the incident; however, the
             officer was forced to leave on an emergency call. At some point during the day,
             defendant purchased a loaded handgun for protection.
                 Later in the evening, defendant was driving with his girlfriend, Nicole Saunders,
             and his cousin, Erica Simmons, when he recognized the victim’s car pass him and stop.
             Defendant approached the victim’s car on foot, armed with his handgun, to talk to him
             about a misunderstanding involving Sanders. Defendant, however, saw the victim
             reach for what he thought was a handgun, and as a result, shot inside the car in an
             attempt to shoot whatever the victim was trying to retrieve. After firing two shots, the
             victim began to drive away. Defendant’s hand, however, was still inside the car. As a
             result, the window frame hit defendant’s hand causing the gun to fire several more
             times. Defendant testified that he did not intend to fire the handgun and he did not think
             that he shot anyone.
                 Defendant further maintained that he was mistreated while in police custody, and
             despite expressly invoking his rights to an attorney and to remain silent, his Miranda
             rights were violated.[ 2 ] Defendant claimed that he told Detective Ron Lewis and
             Timothy Nolan that the victim threatened him and that he shot the victim because he
             thought the victim was reaching for a weapon. Defendant, however, admitted that he
             did not make the same claims in his videotaped statement.
                 On cross-examination, defendant stated that he thought the victim initially shot at
             his car because the victim mistakenly thought that defendant was involved in a prior
             attack on the victim, which was actually instigated by defendant’s girlfriend. He
             admitted, however, that during the incident the victim did not make any threats.”
             Minniefield, No. 1-05-2792, slip op. at 2-4.




           2
            Prior to trial, the trial court denied defendant’s motion to suppress the statements he made while in
       police custody.

                                                       -4-
¶ 15                              D. The State’s Rebuttal Evidence
¶ 16      We described the State’s rebuttal case as follows:
                “In rebuttal, Detective Lewis testified that defendant did not report that the victim
            shot at him while he was driving his son or that he thought the victim was reaching for
            a handgun. On cross-examination, however, Lewis admitted that defendant told him
            that the victim had threatened defendant. Also, in rebuttal, Detective Nolan reiterated
            that defendant did not report that the victim shot at him. On cross-examination,
            however, Nolan admitted that defendant requested that he only shot inside the victim’s
            car because the victim was reaching for something.” Minniefield, No. 1-05-2792,
            slip op. at 4.

¶ 17                                         E. Jury Instructions
¶ 18        At the jury instruction conference, defense counsel requested instructions on both
       second-degree murder and self-defense, which the trial court gave over the State’s objection.
¶ 19        The jurors were instructed that, in order to sustain the charge of first-degree murder, the
       State had the burden of proving that “the defendant was not justified in using the force he
       used.”
¶ 20        As to when force is justified, the jurors were instructed:
                    “A person is justified in the use of force when and to the extent that he reasonably
               believes that such conduct is necessary to defend himself against the imminent use of
               unlawful force.
                    However, a person is justified in the use of force which is intended or likely to
               cause death or great bodily harm only if he reasonably believes that such force is
               necessary to prevent imminent death or great bodily harm to himself.”
¶ 21        With respect to second-degree murder, the jury was instructed:
                    “You may not consider whether the defendant is guilty of the lesser offense of
               second degree murder until and unless you have first determined that the State has
               proved beyond a reasonable doubt each of the previously stated propositions.
                    The defendant has the burden of proving by a preponderance of the evidence that a
               mitigating factor is present so that he is guilty of the lesser offense of second degree
               murder instead of first degree murder. By this I mean that you must be persuaded,
               considering all the evidence in this case, that it is more probably true than not true that
               the following mitigating factor is present: that the defendant, at the time he performed
               the acts which caused the death of Theopulous Ransberry, believed the circumstances
               to be such that they justified the deadly force he used, but, his belief that such
               circumstances existed was unreasonable.”
       Thus, the jurors were also instructed to consider, if they first found that the State had proved
       that “the defendant was not justified in using the force he used” and he was guilty of
       first-degree murder, whether he had an unreasonable belief in the need for the use of deadly
       force.
¶ 22        After receiving its instructions, the jury convicted defendant of first-degree murder, and
       defendant was sentenced to 50 years of imprisonment, and his conviction was affirmed on
       direct appeal.


                                                    -5-
¶ 23                                 II. Postconviction Proceedings
¶ 24       Defendant filed a pro se postconviction petition on December 27, 2007, alleging
       ineffective assistance of counsel, which the trial court summarily dismissed as frivolous on
       February 6, 2008.

¶ 25                                A. Reversal of First-Stage Dismissal
¶ 26       On appeal, we reversed the summary first-stage dismissal. Minniefield, No. 1-08-0649, slip
       op. at 7. Since “[t]he law-of-the-case doctrine prohibits the reconsideration of issues that have
       been decided by a reviewing court in a prior appeal” (In re Christopher K., 217 Ill. 2d 348, 363
       (2005)), we provide here our prior holding and reasoning:
               “We find defendant’s claim should have survived first-stage review because his
               allegation that counsel failed to investigate or present witnesses has an arguable basis
               in law and fact. [Citation.] As a threshhold matter, we note that defendant appended his
               own affidavit as well as one from Ratliff. A claim that trial counsel failed to investigate
               and call a witness must be supported by an affidavit from the proposed witness.
               [Citation.] Therefore, we do not consider the proposed testimony from Knighton in our
               determination. [Citation.]
                    We find that defendant’s allegation has an arguable basis in fact. At trial,
               defendant’s testimony presented an ‘imperfect self-defense’ theory: that he fired his
               gun at the victim after believing he saw the victim reach for a gun. However, the State’s
               testimony established that police did not recover a gun from the victim’s automobile. In
               his petition, defendant alleged that Ratliff would testify that an unknown man removed
               a silver gun from the automobile before police arrived on the scene. Defendant
               appended an affidavit in which Ratliff averred as such, and also that counsel never
               investigated his statement. In his own affidavit, defendant averred that he told counsel
               about Ratliff and Knighton. Taken as true at this stage [citation], Ratliff’s affidavit
               lends support to defendant’s theory of defense and defendant’s affidavit establishes
               that counsel knew of the witnesses. Therefore we cannot find the facts in defendant’s
               allegations ‘fantastic or delusional.’ [Citation.]
                    We also cannot find defendant’s allegation presented an indisputably meritless
               legal theory. A constitutional claim that a defendant did not receive effective assistance
               of counsel must demonstrate that it is arguable that counsel’s performance fell below
               an objective standard of reasonableness and the defendant was arguably prejudiced as a
               result. [Citation.] Defendant testified at trial that he believed the victim was reaching
               for a gun and that based on this belief, fired one or two shots toward the victim.
               Testimony presented by the State established that the police did not recover a gun from
               the victim’s automobile. The allegations related to Ratliff’s testimony corroborate
               defendant’s belief that the victim was reaching for a gun. We find this failure to
               investigate could arguably demonstrate that counsel’s performance was objectively
               unreasonable. [Citation.] Finally, the affidavits support the allegation that counsel
               failed to investigate Ratliff’s testimony. Although the evidence against defendant was
               strong, it is at least ‘arguable’ that evidence of a gun in the victim’s car could have
               changed the outcome.” Minniefield, No. 1-08-0649, slip op. at 5-7.



                                                    -6-
       Thus, it is the law of the case that “it is at least ‘arguable,’ ” based on the record then before the
       appellate court, “that evidence of a gun in the victim’s car could have changed the outcome.”
       Minniefield, No. 1-08-0649, slip op. at 7.
¶ 27       The prior appellate panel did not reach defendant’s second allegation concerning
       ineffectiveness based on a failure to ask for further jury instructions, since it was already
       reversing on the first issue. Minniefield, No. 1-08-0649, slip op. at 7. The court stated that,
       because the law “does not permit partial summary dismissals, we need not consider whether
       defendant’s second allegation has an arguable basis in law and fact.” Minniefield,
       No. 1-08-0649, slip op. at 7.

¶ 28                                B. Trial Court’s Order on Remand
¶ 29                                 1. Petitions Under Consideration
¶ 30       On remand, counsel was appointed and filed a supplemental petition, supplementing the
       claims and allegations that defendant already made in his pro se petition. Since counsel’s Rule
       651(c) (Ill. S. Ct. R. 651(c) (eff. Dec. 1, 1984)) certificate states that he “amended,
       supplemented and adopted the arguments of the pro se petition,” we describe first the pro se
       petition and the affidavits attached to it, and then counsel’s supplemental petition and the
       affidavits attached to it.

¶ 31                                   a. Defendant’s Pro Se Petition
¶ 32       In his pro se petition, filed December 31, 2007, defendant alleged that “prior to trial, I
       informed my trial attorney that Michelle Knighton and Thomas Ratliff were present[ ] after the
       shooting and saw an unknown male take a silver gun off the front passenger floor and [leave]
       with it before the police came” and that defense counsel was ineffective for failing to call these
       two witnesses to testify. Defendant also alleged that “defense counsel was ineffective for not
       requesting an involuntary manslaughter instruction where there was sufficient evidence to
       support it.”
¶ 33       In support, defendant swore in his own “Affidavit,” that “I informed my lawyer *** about
       the two witnesses on behalf of my defense and I also asked my attorney to put in a[n]
       involuntary manslaughter instruction to the jury.”
¶ 34       The two affidavits submitted with defendant’s petition are signed but the signatures are not
       dated or notarized. They are certified by the affiant under section 1-109 of the Code of Civil
       Procedure (735 ILCS 5/1-109 (West 2006)).
¶ 35       In support, defendant also submitted the “Affidavit” of Thomas Ratliff, which stated:
                   “On December 17, 2002[,] I was coming out [of] a friend[’s] house after we heard
               gun fire and saw [the victim] in a tan or brown car crashed into another car. I walked up
               44th Place and saw three guys and two females in [the victim’s] car. One female was
               crying. She was shot and one of the guys by the car took a silver looking gun off the
               front passenger floor and left with it before the police came. I informed [defendant’s]
               attorney and he took my information down and he was going to contact me before trial
               but never did so?”
¶ 36       Defendant also attached a sheet of what appear to be a police officer’s investigation notes,
       and his pro se petition also referred to a “police report.” The report did not mention Ratliff but
       stated the following concerning Michelle Knighton: “Heard approximately five shots. Saw a

                                                     -7-
       female black with a beig[e] jacket, blond and black braids standing near the victim’s auto. Saw
       three unknown males leaning into victim’s car.” Defendant did not include an affidavit from
       Knighton.

¶ 37                                  b. Counsel’s Supplemental Petition
¶ 38       Counsel’s supplemental petition argued (1) that trial counsel was ineffective for not calling
       Ratliff, who indicated prior to trial that the victim was armed; and (2) that the newly available
       testimony of Noah Redic and Antoine Nash that the victim was armed with a gun would have
       changed the outcome at trial, resulting in an acquittal or reducing the conviction to
       second-degree murder. The supplemental petition states that Ratliff is not a newly discovered
       witness and that his affidavit is submitted to support defendant’s ineffective assistance claim.
¶ 39       Attached to counsel’s supplemental petition were (1) two additional affidavits from
       defendant, dated August 9, 2011, and August 25, 2011; (2) the prior “Affidavit” from Thomas
       Ratliff; (3) an affidavit from Noah Redic, dated May 14, 2010; and (4) an affidavit from
       Antoine Nash, dated May 14, 2010.
¶ 40       In his August 9, 2011, affidavit, which is not notarized but is sworn to under penalty of
       perjury, defendant stated: “I asked my attorney why Mr. Ratliff wasn’t called to testify and my
       attorney said the investigator never got the chance to interview him before my trial.” His
       August 25, 2011, affidavit realleges this information and is dated and notarized. Thomas
       Ratliff’s affidavit contains substantially the same information as the affidavit attached to
       defendant’s pro se petition and is also sworn to under penalty of perjury but the Ratliff
       affidavit attached to the supplemental petition is dated September 6, 2007.
¶ 41       Noah Redic’s affidavit is dated and notarized, and it states:
                    “On December 17, 2002, I was waiting outside between 44th and 45th [and]
                Lavergne [Avenue] on my brother to pick me up so we could go out to eat. While I was
                waiting a tan car pulled up with people in it. Once I realized it was [the victim] I walked
                up to the car to see what he was up to. He had three females in the car and we all started
                talking when twan [sic] walked up and all of a sudden [defendant] pulled up behind [the
                victim’s] car and got out. [The victim] looked back and said oh s*** as [defendant]
                approached the driver[’]s side door. I thought nothing of it until I saw [the victim]
                grab[ ] a silver gun from between the armrest and [defendant] upped a black gun[,]
                stepped back and let off a shot. I pushed twan out my way so I wouldn’t get hit and
                heard about four or five more shots and cars driving away. At that time, my brother
                rode up and I jumped in his car and we left the neighborhood. I’m coming forward now
                because [defendant’s] mother reached out to my mother and told her that I knew what
                happened that night and I should have come forward with this information, so I wrote
                up this affidavit and gave it to [defendant’s] mother ***.”
       Thus, in Redic’s affidavit, he admits that defendant’s mother knew that he knew what
       happened that night and believed that he should have come forward earlier. He also admits that
       defendant’s mother knew how to reach him, which was by contacting Redic’s own mother.
       Redic offers no reason in his affidavit either why he did not come forward earlier or why
       defendant did not try to contact him earlier.
¶ 42       Antoine Nash’s affidavit is also dated and notarized, and it states:



                                                    -8-
                  “On December 17, 2002, myself and my girlfriend was standing in front of my
              house when it started getting dark outside, so I decided to walk her halfway home. I
              walked her to 44th and Lavergne [Avenue], so I started walking. I saw Noel talking to
              [the victim] and a car full of females. I walked up to the passenger side of the car where
              Noel was standing, when all of a sudden a white car driven by [defendant] pulled up
              behind [the victim’s] car. [Defendant] jumped out and approached the driver[’]s side of
              [the victim’s] car. I heard the victim say ‘Oh s***,’ and [defendant] said something.
              That’s when [the victim] grabbed a silver gun from between the armrest and
              [defendant] stepped back and let off a shot. Noel pushed me between a parked car and I
              heard a lot more shots. Once the shooting stopped I ran back home because I knew my
              house arrest box was going off. I didn’t come forward that night because I didn’t want
              to get locked up for not being where I was supposed to be. I did come forward but
              [defendant] had already went to trial and once I saw everybody from the neighborhood
              there, I got scared and left because I didn’t want people to think I was a trick. Now that
              I’m moved out of the neighborhood I’m willing to testify if called to do so.”
       While Nash’s affidavit explains why he did not want to come forward, it does not explain why
       defendant or defendant’s family did not approach him.
¶ 43       Both Redic and Nash swear in their affidavits that defendant “stepped back” from the
       victim’s vehicle immediately before firing the first shot. These statements contradict
       defendant’s trial testimony that he reached his hand inside the victim’s vehicle to fire the first
       couple of shots at whatever the victim was reaching for on the floor.

¶ 44                              2. The Trial Court’s Second-Stage Ruling
¶ 45       The State then moved to dismiss defendant’s pro se petition as supplemented by counsel.
¶ 46       At the second-stage hearing, the parties acknowledged that, in order to show actual
       innocence, defendant had to show that his evidence was: (1) newly discovered; (2) material
       and not merely cumulative; and (3) of such a conclusive character that it would probably
       change the result on trial. People v. Ortiz, 235 Ill. 2d 319, 333-34 (2009). The State conceded
       that Redic’s and Nash’s affidavits, which were submitted in support of defendant’s actual
       innocence claim, were newly discovered. The assistant State’s Attorney (ASA) stated that
       Redic’s and Nash’s affidavits are “reportedly newly discovered and I have no doubt that they
       are newly discovered.” The ASA repeated: “[T]he case law requires that actual innocence
       claims be supported by newly discovered information which I grant exist[s] in this case.”
¶ 47       However, the State argued that “it’s not material” and that it would not have changed the
       result at trial. The State argued that Redic’s and Nash’s testimony would not have changed the
       result at trial because, at most, their affidavits showed mutual combat3 not self-defense by


           3
            “Mutual combat” has been defined by our supreme court as a “fight or struggle which both parties
       enter willingly or where two persons upon a sudden quarrel and in hot blood, mutually fight upon equal
       terms and where death results from the combat.” People v. Austin, 133 Ill. 2d 118, 125 (1989). See also
       People v. Leach, 2012 IL 111534, ¶ 152 (the offense of first-degree murder may be “mitigated” to
       second-degree murder if the defendant “killed while under the influence of a sudden, intense passion
       engendered by mutual combat”); 720 ILCS ILCS 5/9-2(a)(1) (West 2002) (a “mitigating factor” for
       second-degree murder occurs if defendant is “acting under a sudden and intense passion resulting from

                                                      -9-
       defendant. Defendant testified that he was armed when he approached the victim’s vehicle.
       Redic and Nash both swore in their affidavits that the victim said “Oh, s***” when he observed
       defendant’s approach and then reached for a gun. At most, this chain of events shows
       aggression by defendant, a self-defense response by the victim, and then shooting by defendant
       toward the seated victim. The State argued that this chain of events could not possibly serve as
       the basis for a self-defense claim by defendant.
¶ 48       The trial court again dismissed the petition, ruling (1) that trial counsel was not ineffective
       for allegedly failing to investigate; and (2) that defendant had failed to make a substantial
       showing of actual innocence.
¶ 49       The trial court did not rule on whether trial counsel was ineffective for allegedly failing to
       offer an involuntary manslaughter instruction. In his appellate brief, defendant concedes that:
       “post-conviction counsel did not argue this error at the hearing on the State’s motion to dismiss
       and did not say anything in his reply to the State’s motion to dismiss, when the State failed to
       address the claim. *** In addition, counsel did not attempt to obtain a ruling on its merits
       during oral arguments.” This appeal followed.

¶ 50                                            ANALYSIS
¶ 51        On this appeal, defendant claims: (1) that he has made a substantial showing that he acted
       in self-defense and thus is actually innocent; and (2) that his counsel was ineffective (a) for
       failing to ask for an involuntary manslaughter jury instruction and (b) for failing to investigate
       or call occurrence witnesses. For the following reasons, we do not find these claims persuasive.

¶ 52                                 I. Stages of a Postconviction Petition
¶ 53        Under the Post-Conviction Hearing Act (Act), individuals convicted of a criminal offense
       may challenge their convictions if there was a violation of their constitutional rights (725 ILCS
       5/122-1 et seq. (West 2012)). See also People v. Domagala, 2013 IL 113688, ¶ 32. The Act
       provides for three stages of review by the trial court. At the first stage, the trial court may
       summarily dismiss a petition that is frivolous or patently without merit. 725 ILCS
       5/122-2.1(a)(2) (West 2012); Domagala, 2013 IL 113688, ¶ 32.
¶ 54        If the trial court does not dismiss a petition at the first stage, the petition advances to the
       second stage, where counsel is appointed if a defendant is indigent. After counsel determines
       whether to amend the petition, the State may file either a motion to dismiss or an answer to the
       petition. 725 ILCS 5/122-4, 122-5 (West 2012); Domagala, 2013 IL 113688, ¶ 33. At the
       second stage, the trial court must determine whether the petition and any accompanying
       documents make a “substantial showing of a constitutional violation.” People v. Edwards, 197
       Ill. 2d 239, 246 (2001).
¶ 55        If the defendant makes this showing at the second stage, then the petition advances to a
       third-stage evidentiary hearing. At a third-stage evidentiary hearing, the trial court acts as fact
       finder, determining witness credibility and the weight to be given particular testimony and
       evidence, and resolving any evidentiary conflicts. Domagala, 2013 IL 113688, ¶ 34.



       serious provocation by the individual killed *** but he negligently or accidentally causes the death of
       the individual killed”).

                                                     - 10 -
¶ 56                                       II. Standard of Review
¶ 57       In this appeal, the trial court dismissed defendant’s postconviction petition at the second
       stage. During a second-stage dismissal hearing, the defendant bears the burden of making a
       substantial showing of a constitutional violation. Domagala, 2013 IL 113688, ¶ 35.
¶ 58       At this stage, the trial court accepts as true all well-pled facts that are not positively
       rebutted by the record. Domagala, 2013 IL 113688, ¶ 35 (citing People v. Coleman, 183 Ill. 2d
       366, 385 (1998)). There is no fact finding or credibility determination at this stage. Domagala,
       2013 IL 113688, ¶ 35 (citing Coleman, 183 Ill. 2d at 385). As a result, the State’s motion to
       dismiss raises solely the issue of whether the petition is sufficient as a matter of law.
       Domagala, 2013 IL 113688, ¶ 35 (citing Coleman, 183 Ill. 2d at 385). The question before the
       court is whether the petition’s well-pled allegations, if proven, would entitle the defendant to
       relief. Domagala, 2013 IL 113688, ¶ 35. Since this is a purely legal question, our review at the
       second stage is de novo. People v. Coleman, 183 Ill. 2d 366, 387-89 (1998). De novo
       consideration in the case at bar means that we perform the same analysis that the trial judge
       would have performed, if we had been sitting during the second-stage dismissal hearing. See
       Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).

¶ 59                                         III. Actual Innocence
¶ 60        In this appeal, defendant claims that he is actually innocent of the underlying offense,
       which is first-degree murder. The wrongful conviction of an innocent person violates due
       process under the Illinois Constitution of 1970 (Ill. Const. 1970, art. I, § 2) and, thus, a
       defendant can raise in a postconviction proceeding a freestanding claim of actual innocence
       based on newly discovered evidence. People v. Ortiz, 235 Ill. 2d 319, 334 (2009); People v.
       Parker, 2012 IL App (1st) 101809, ¶ 80. See also People v. Washington, 171 Ill. 2d 475, 489
       (1996).
¶ 61        In Ortiz, our supreme court held that, to assert a claim of actual innocence based on newly
       discovered evidence, a defendant must show that the evidence was: (1) newly discovered; (2)
       material and not merely cumulative; and (3) of such a conclusive character that it would
       probably change the result on trial. Ortiz, 235 Ill. 2d at 333-34; People v. Orange, 195 Ill. 2d
       437, 450-51 (2001) (citing People v. Molstad, 101 Ill. 2d 128 (1984)). See also Parker, 2012 IL
       App (1st) 101809, ¶ 81.
¶ 62        The Ortiz court defined newly discovered evidence as “evidence [(1)] that has been
       discovered since the trial and [(2)] that the defendant could not have discovered sooner through
       due diligence.” Ortiz, 235 Ill. 2d at 334.
¶ 63        Defendant claims that Redic’s and Nash’s affidavits are newly discovered evidence, and
       the State conceded at the second-stage hearing that the affidavits were newly discovered. On
       appeal, the State admits in its brief that it made this concession at the second-stage hearing,
       which is the proceeding we are now reviewing. Relying on the State’s representation at the
       second-stage hearing, the trial court also stated that “these affidavits *** are newly
       discovered.” Minniefield, No. 1-08-0649, slip op. at 7.
¶ 64        In addition, a prior panel of the appellate court also held, based on the record before it, that
       “it is at least ‘arguable’ that evidence of a gun in the victim’s car would have changed the
       outcome.” Minniefield, No. 1-08-0649, slip op. at 7. However, the prior panel had before it



                                                    - 11 -
       only Ratliff’s affidavit, and not Redic’s and Nash’s affidavits which are the subject of
       defendant’s present actual-innocence claim.
¶ 65        The State argued that Redic’s and Nash’s affidavits would not have changed the result at
       trial, and the trial court agreed, and so do we. Defendant testified at trial that he was armed
       when he approached the victim’s vehicle. Defendant testified: “I had my gun on the side of
       me.” Redic and Nash both swore in their affidavits that the victim said “Oh, s***” when he
       observed defendant’s approach and then the victim reached for a gun. At most, this chain of
       events shows aggression by defendant, a self-defense response by the victim, and then
       shooting by defendant toward the seated victim. This chain of events could not possibly serve
       as the basis for a self-defense claim by defendant; otherwise, every time a victim responded in
       self-defense, the aggressor could then claim self-defense and fire.
¶ 66        In addition, Redic’s and Nash’s affidavits contradict defendant’s trial testimony in a crucial
       respect. Both Redic and Nash swore that defendant “stepped back” from the victim’s vehicle
       and then fired the first shot. By contrast, defendant testified that he reached his gun inside the
       vehicle to fire the first shots, in order to shoot at what the victim was reaching for. Defendant
       argues that it was this act, of reaching inside the vehicle, that resulted in his gun being caught
       by the window frame when the vehicle moved forward and that caused his gun to accidentally
       discharge multiple times. Defendant testified that, when the victim “pressed on the gas pedal,
       *** my hand was still in the car shooting at what I seen him reaching at ***. As he took off, the
       frame hit the gun and the gun went off.” However, if defendant “stepped back” as both Redic
       and Nash swore under penalty of perjury, then defendant’s hand was not inside the vehicle and
       was not caught by the window frame.
¶ 67        Since defendant’s proposed witnesses contradict his trial testimony in key respects, we
       agree with the trial court that the proffered evidence was not of such a conclusive character that
       it would probably change the result at trial. Ortiz, 235 Ill. 2d at 333-34.

¶ 68                           IV. Strickland and Ineffectiveness of Counsel
¶ 69       On this appeal, defendant also claims that his trial counsel was ineffective.
¶ 70       Every Illinois defendant has a constitutional right to the effective assistance of counsel
       under the sixth amendment to the United States Constitution and the Illinois Constitution. U.S.
       Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8; Domagala, 2013 IL 113688, ¶ 36. Claims
       of ineffective assistance are judged against the standard set forth in Strickland v. Washington,
       466 U.S. 668 (1984). Domagala, 2013 IL 113688, ¶ 36 (citing People v. Albanese, 104 Ill. 2d
       504, 526 (1984) (adopting Strickland for Illinois)). To prevail on a claim of ineffective
       assistance, a defendant must show both: (1) that counsel’s performance was deficient; and (2)
       that this deficient performance prejudiced defendant. Domagala, 2013 IL 113688, ¶ 36 (citing
       Strickland, 466 U.S. at 687).
¶ 71       To establish the first prong, that counsel’s performance was deficient, a defendant must
       show “that counsel’s performance was objectively unreasonable under prevailing professional
       norms.” Domagala, 2013 IL 113688, ¶ 36. To establish the second prong, that this deficient
       performance prejudiced the defendant, the defendant must show that there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the proceeding would
       have been different. Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694).
       “[A] reasonable probability that the result would have been different is a probability sufficient
       to undermine confidence in the outcome–or put another way, that counsel’s deficient

                                                   - 12 -
       performance rendered the result of the trial unreliable or fundamentally unfair.” People v.
       Evans, 209 Ill. 2d 194, 220 (2004); People v. Colon, 225 Ill. 2d 125, 135 (2007).
¶ 72       Although the Strickland test is a two-prong test, our analysis may proceed in any order.
       Since a defendant must satisfy both prongs of the Strickland test in order to prevail, a trial court
       may dismiss the claim if either prong is missing. People v. Flores, 153 Ill. 2d 264, 283 (1992).
       Thus, if a court finds that defendant was not prejudiced by the alleged error, it may dismiss on
       that basis alone without further analysis. People v. Graham, 206 Ill. 2d 465, 476 (2003);
       People v. Albanese, 104 Ill. 2d 504, 527 (1984).

¶ 73                                           V. Jury Instruction
¶ 74       Defendant claims that his trial counsel was ineffective in two ways: (1) by allegedly failing
       to offer a jury instruction; and (2) by allegedly failing to investigate or call a witness.
¶ 75       Defendant claims that his trial counsel was ineffective for failing to request an involuntary
       manslaughter jury instruction. As a preliminary matter, it is not clear whether defendant
       waived this issue by failing to obtain a ruling on this particular claim from the trial court which
       considered his petition during the second-stage proceedings. However, even if the claim was
       not waived, it would not succeed. Since the prior appellate court which considered defendant’s
       petition after its first-stage dismissal never reached this claim (Minniefield, No. 1-08-0649,
       slip op. at 7), there is no law of the case with respect to this claim.
¶ 76       It is well established in Illinois that a counsel’s choice of jury instructions, and the decision
       to rely on one theory of defense to the exclusion of another, is a matter of trial strategy. People
       v. Falco, 2014 IL App (1st) 111797, ¶ 16; People v. Sims, 374 Ill. App. 3d 231, 267 (2007).
       Our supreme court has stated: “Such decisions enjoy a strong presumption that they reflect
       sound trial strategy, rather than incompetence,” and therefore are “generally immune from
       claims of ineffective assistance of counsel.” People v. Enis, 194 Ill. 2d 361, 378 (2000).
¶ 77       Nonetheless, the failure to request a particular jury instruction may still be grounds for
       finding ineffective assistance of counsel, if the instruction was so critical to the defense that its
       omission denied the accused the right to a fair trial. Falco, 2014 IL App (1st) 111797, ¶ 16;
       People v. Johnson, 385 Ill. App. 3d 585, 599 (2008) (citing People v. Pegram, 124 Ill. 2d 166,
       174 (1988)).
¶ 78       In addition, the State concedes in its appellate brief that defendant is correct that the
       decision whether to request an instruction on a lesser included offense is one for the defendant
       to make. People v. Brocksmith, 162 Ill. 2d 224, 229-30 (1994). Defendant submitted an
       affidavit in which he states that he asked his counsel to request an involuntary manslaughter
       instruction.
¶ 79       Defendant argues that, although his counsel asked for and received both a self-defense
       instruction and a second-degree murder instruction based on unreasonable-belief self-defense,
       counsel’s performance fell below that of a reasonably competent attorney because counsel
       failed to also request an instruction on involuntary manslaughter.
¶ 80       However, a court may give an involuntary murder instruction only if the instruction is
       supported “by some credible evidence in the record that would reduce the crime of first-degree
       murder to involuntary manslaughter.” People v. Sipp, 378 Ill. App. 3d 157, 163 (2007). “[A]
       manslaughter instruction should not be given where the evidence shows that the homicide was
       murder, not manslaughter.” Sipp, 378 Ill. App. 3d at 163. “ ‘[A] defendant is not entitled to


                                                    - 13 -
       reduce first degree murder to [involuntary manslaughter] by a hidden mental state known only
       to him and unsupported by the facts.’ ” People v. Sipp, 378 Ill. App. 3d 157, 164 (2007)
       (quoting People v. Jackson, 372 Ill. App. 3d 605, 614 (2007)).
¶ 81        The Criminal Code of 1961 (the Code) defines involuntary manslaughter, in relevant part,
       as:
                 “A person who unintentionally kills an individual without lawful justification commits
                 involuntary manslaughter if his acts whether lawful or unlawful which cause the death
                 are such as are likely to cause death or great bodily harm to some individual, and he
                 performs them recklessly ***.” 720 ILCS 5/9-3(a) (West 2002).
¶ 82        “Recklessness” is defined as follows in the Code:
                 “A person is reckless or acts recklessly, when he consciously disregards a substantial
                 and unjustifiable risk that circumstances exist or that a result will follow, described by
                 the statute defining the offense; and such disregard constitutes a gross deviation from
                 the standard of care which a reasonable person would exercise in the situation. An act
                 performed recklessly is performed wantonly, within the meaning of a statute using the
                 latter term, unless the statute clearly requires another meaning.” 720 ILCS 5/4-6 (West
                 2002).
¶ 83        “Illinois courts have consistently held that when the defendant intends to fire a gun, points
       it in the general direction of his or her intended victim, and shoots, such conduct is not merely
       reckless and does not warrant an involuntary-manslaughter instruction, regardless of the
       defendant’s assertion that he or she did not intend to kill anyone.” (Internal quotation marks
       omitted.) People v. Sipp, 378 Ill. App. 3d 157, 164 (2007).
¶ 84        Here, defendant testified at trial: that he fired two shots inside the victim’s vehicle in an
       attempt to shoot something that the victim was trying to retrieve; that, after firing these two
       shots, defendant’s hand was inside the window of the victim’s vehicle; and that, when the
       victim’s vehicle moved forward, the frame in between the driver’s window and the back
       passenger seat hit defendant’s gun which then discharged several times.
¶ 85        However, defendant’s testimony was contradicted by the physical evidence at trial. At least
       five bullet casings were found outside the vehicle and on the street, and the casings were all
       fired from defendant’s gun. Police found bullet holes in the driver’s side of the vehicle where
       the victim was sitting. If defendant’s gun had discharged inside the vehicle, then there would
       be no bullet holes in the door or cartridge cases on the street. In addition, the back window
       behind the driver’s seat was shot out. Although the medical examiner made no determination
       about which bullet was the fatal one and concluded only that the victim died of multiple
       gunshot wounds, the examiner specifically determined that there was no evidence of
       close-range firing when he examined the bullet wound on the victim’s upper back and that this
       bullet struck the victim’s pulmonary artery and lungs, causing massive bleeding. If defendant’s
       hand was caught by the frame of the driver’s window, then this would have been in close range
       to the driver.
¶ 86        In response, defendant argues in his brief that the fact that defendant’s “hand was hit by the
       window frame when the car moved indicates that it was almost outside the car” and thereby
       explains the lack of close-range firing. This makes no sense. For defendant’s hand to be hit by
       the window frame as the vehicle moved forward, the hand would have to be inside the driver’s
       window and very close to the driver. Defendant further argues “that the car moved, which


                                                    - 14 -
       would mean that his hand would have been outside the car for the subsequent shots that hit the
       car’s exterior” and which thereby explains why the shots hit the vehicle’s exterior and the
       cartridges were found outside the vehicle. However, if defendant’s hand was outside the
       vehicle for the subsequent shots, then the vehicle’s movement could not have been causing the
       gun to accidentally discharge, thereby contradicting defendant’s claim of accidental and
       reckless discharge.
¶ 87       Since the record lacked credible evidence supporting defendant’s claim of merely reckless
       conduct, defendant suffered no prejudice from trial counsel’s alleged failure to request an
       involuntary manslaughter instruction. To establish the prejudice prong of the Strickland test, a
       defendant must show that there is a reasonable probability that, but for counsel’s
       unprofessional errors, the result of the proceeding would have been different. Domagala, 2013
       IL 113688, ¶ 36. Since the record lacks credible supporting evidence, there is not a reasonable
       probability that the result of the trial would have been different. Since we conclude that
       defendant was not prejudiced by the alleged error, we may dismiss on that basis alone without
       further analysis. Graham, 206 Ill. 2d at 476; Albanese, 104 Ill. 2d at 527.
¶ 88       However, we find, in addition, that counsel’s performance did not fall below an objective
       standard of reasonableness “under prevailing professional norms.” Domagala, 2013 IL
       113688, ¶ 36. For example, in People v. Shamlodhiya, 2013 IL App (2d) 120065, the appellate
       court held that a trial counsel’s decision to focus on self-defense instead of involuntary
       manslaughter during closing argument did not render his performance ineffective. In
       Shamlodhiya, counsel argued in closing that he considered involuntary manslaughter to be “ ‘a
       compromised verdict,’ ” and he did “ ‘[not] want a compromised verdict,’ ” because this was
       solely “ ‘a case of self defense.’ ” (Internal quotation marks omitted.) Shamlodhiya, 2013 IL
       App (2d) 120065, ¶ 6. In Shamlodhiya, the appellate court found that “[c]ounsel credibly
       explained” why he did not argue for involuntary manslaughter in the alternative. Shamlodhiya,
       2013 IL App (2d) 120065, ¶ 22. Counsel explained “that arguing for involuntary manslaughter
       would have undermined the credibility of his attempt to secure an acquittal based on
       self-defense, which *** would have been the best possible result for defendant.” Shamlodhiya,
       2013 IL App (2d) 120065, ¶ 22. The Shamlodhiya case does differ from our case because, in
       Shamlodhiya, the appellate court found that the involuntary manslaughter instruction was still
       before the jury (Shamlodhiya, 2013 IL App (2d) 120065, ¶ 23), whereas in our case counsel
       took this same strategy one step further and chose not to ask for the instruction at all.
¶ 89       However, this decision, to not request the instruction at all, does not make the decision less
       of a strategy decision; and reasonable strategy decisions, even if ultimately unsuccessful, do
       not make an attorney’s performance fall below prevailing norms. People v. Odie, 151 Ill. 2d
       168, 172-74 (1992) (a defense strategy is not constitutionally defective if unsuccessful);
       People v. Chapman, 262 Ill. App. 3d 439, 451 (1992) (“the fact that a defense tactic was
       unsuccessful does not retrospectively demonstrate incompetence”).
¶ 90       Thus, even if defendant did not waive his claim of ineffectiveness based on the failure to
       request an involuntary manslaughter instruction, we would not find it persuasive, because it
       does not satisfy either prong of the Strickland test.

¶ 91                                  VI. Failure to Investigate
¶ 92      Defendant also claims that his counsel was ineffective for failing to investigate and call a
       witness, Thomas Ratliff, who swore that he observed a silver gun on the floor of the victim’s

                                                   - 15 -
       vehicle. “The law-of-the-case doctrine prohibits the reconsideration of issues that have been
       decided by a reviewing court in a prior appeal” (In re Christopher K., 217 Ill. 2d 348, 363
       (2005)), and thus it is the law of the case, based on the record then before the appellate court,
       that it was “at least ‘arguable’ that evidence of a gun in the victim’s car could have changed the
       outcome.” Minniefield, No. 1-08-0649, slip op. at 7. However, there are differences between
       the case that was before the prior panel and the case that is before us. First, the burden of proof
       on defendant is different. At the first stage, all he had to show was that his claim was not
       frivolous. 725 ILCS 5/122-2.1(a)(2) (West 2012); Domagala, 2013 IL 113688, ¶ 32. By
       contrast, at the second stage, the burden is on defendant to make a “substantial showing of a
       constitutional violation.” Edwards, 197 Ill. 2d at 246.
¶ 93        Second, the record before us includes documents that were not before the prior panel,
       namely, Redic’s and Nash’s affidavits and Ratliff’s second affidavit, and we may consider
       those in addition. In conducting a second-stage review, we must consider both “the petition
       and any accompanying documentation” (Domagala, 2013 IL 113688, ¶ 33), and “[w]e may
       affirm the dismissal of a postconviction petition on any basis supported by the record” (People
       v. Rivera, 2014 IL App (2d) 120884, ¶ 8). Thus, the record before the prior panel is not the
       same as the record before us.
¶ 94        The record contains two handwritten “Affidavit[s]” signed by “Thomas Ratliff.” The first,
       which was submitted by defendant with his pro se petition, is undated; and the second, which
       was submitted by counsel on April 25, 2012, is dated September 6, 2007. Although the two
       documents relate substantially the same information, they are not the same, since the first has
       more detail than the second.
¶ 95        The first undated “Affidavit” states that defense counsel obtained Ratliff’s information and
       “said he was going to call me before trial but never did so?” In this first document, Ratliff
       wrote a question mark which does not appear in the second document. It is unclear whether this
       first question mark means that Ratliff was unsure of this fact.
¶ 96        In the first “Affidavit,” Ratliff states that he heard gunfire and observed the murder victim
       in a vehicle which had crashed into another vehicle. Ratliff observed that a female passenger
       “was shot” but his affidavit does not state that the murder victim was shot. Ratliff then relates
       that “one of the guys by the car” removed a silver gun off the front passenger-seat floor before
       the police arrived.
¶ 97        By contrast, the second affidavit makes no reference to the murder victim and describes the
       crashed vehicle by its color rather than as the victim’s vehicle. Without any reference to the
       victim, the second affidavit, if read by itself, could be describing any “tan or brown car” that
       “crashed into another car” near 44th Place on December 17, 2002. Unlike the first affidavit, the
       second affidavit does not mention that a female passenger had been shot. The second affidavit
       also does not mention a “guy[ ] by the car.” Instead it states that Ratliff “saw three guys *** in
       the tan car while one of the guys took a silver looking gun off the front passenger floor.”
¶ 98        Defendant has not made a substantial showing that there is a reasonable probability that,
       but for counsel’s alleged failure to call Ratliff, the result of his trial would have been different
       (Domagala, 2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694)) where, as we explained
       above, defendant’s testimony was contradicted by the physical evidence at trial. Supra ¶ 85. In
       addition, defendant’s own proposed witnesses also contradict his version of events. Supra
       ¶¶ 66-67.


                                                    - 16 -
¶ 99                                           CONCLUSION
¶ 100        For the foregoing reasons, and after a de novo review, we affirm the trial court’s
        second-stage dismissal of defendant’s pro se postconviction petition as supplemented by
        counsel. We do not find persuasive defendant’s claims: (1) that he has made a substantial
        showing that he acted in self-defense and thus is actually innocent; or (2) that his counsel was
        ineffective (a) for failing to ask for an involuntary manslaughter jury instruction or (b) for
        failing to investigate or call occurrence witnesses.

¶ 101      Affirmed.




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