                                       2014 IL App (1st) 123527
                                             No. 1-12-3527
                                      Opinion filed June 18, 2014
                          Modified Upon Denial of Rehearing August 6, 2014
                                                                                  THIRD DIVISION

     ___________________________________________________________________________

                                                IN THE
                                 APPELLATE COURT OF ILLINOIS
                                           FIRST DISTRICT
     ______________________________________________________________________________

     THE PEOPLE OF THE STATE OF ILLINOIS, )                  Appeal from the Circuit Court
                                          )                  of Cook County.
          Plaintiff-Appellee,             )
                                          )
          v.                              )                  No. 94 CR 8397
                                          )
     EDDIE L. BOLDEN,                     )
                                          )                  The Honorable
          Defendant-Appellant.            )                  William G. Lacy,
                                          )                  Judge presiding.

     ______________________________________________________________________________

                  JUSTICE NEVILLE delivered the judgment of the court, with opinion.
                  Justices Pucinski and Mason concurred in the judgment and opinion.


                                               OPINION

¶1         Eddie Bolden appeals from the dismissal of his postconviction petition without an

        evidentiary hearing. A jury found Bolden guilty of two murders. The appellate court

        affirmed the convictions. People v. Bolden, No. 1-96-4221 (1999) (unpublished order under

       Supreme Court Rule 23). In his postconviction petition, Bolden asserted that he received

       ineffective assistance of counsel because his trial counsel failed to contact an alibi witness,
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        and because trial counsel failed to move for discovery sanctions when police destroyed

        physical evidence defense counsel requested in discovery. We find that Bolden has made a

        substantial showing of ineffective assistance of trial counsel. We reverse and remand for an

        evidentiary hearing on the postconviction petition.

¶2                                           BACKGROUND

¶3         Around 8 p.m. on January 29, 1994, Lee Williams heard gunshots outside his home near

        66th and Minerva on Chicago's south side. He saw a car with black smoke coming out of its

        tailpipe in front of his home. Someone got out of the backseat of the car and started walking

        north. Police, responding to a call of a car on fire near 66th and Minerva, found Irving

        Clayton and Derrick Frazier, dying from gunshot wounds, in the burning car's front seats.

        Police found spent cartridges in the car.

¶4         Around 8 or 8:30 p.m. the same evening, Derrick's brother, Clifford Frazier, ran into J&J

        Fish, a restaurant near 64th and Cottage Grove, a few blocks from the car on fire. Clifford

        held a gun. He said, "I'm shot in the back, help me." Someone from the restaurant called

        911. Near the restaurant, police found two guns: a .40 automatic and a Mack-11 semi-

        automatic.

¶5         A bullet wound to the back of Derrick's head killed him. Stippling indicated that the

        killer fired the fatal shot with the gun nearly in contact with Derrick's head. Clayton died

        from three gunshot wounds to the right side of his head.

¶6         Detective Michael Baker interviewed Clifford in the hospital. Clifford described the man

        who shot him and gave an account of the circumstances that led to the shooting. After Baker

        talked to Clifford, police found two kilograms of cocaine in Clayton's car.



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¶7           Police later learned that Bolden frequented the J&J Fish near 64th and Cottage Grove.

          Police left word with Bolden's mother that they wanted to question Bolden about the

          shooting. Bolden hired Charles Ingles, an attorney, to help him with the encounter with

          police.   Ingles contacted police and arranged to accompany Bolden to the Area 2 violent

          crimes unit, where police would question Bolden.

¶8           On February 26, 1994, police questioned Bolden briefly, and then asked him to

          participate in a lineup. Following the lineup, police arrested Bolden and charged him with

          the murders of Clayton and Derrick, and the attempted murder of Clifford.

¶9                                            Pretrial Proceedings

¶ 10         Bolden moved to suppress the lineup identification. At the hearing on the motion, Ingles

          testified that police directed Bolden to wait with Ingles in the waiting room before they

          began questioning him. Ingles saw a man matching Clifford's description walk directly past

          him, escorted by a detective. The man looked back at Bolden. Bolden later agreed to

          participate in the lineup as long as police allowed Ingles to observe the identification

          procedures. Police told Ingles he could do so. Bolden joined the other participants in the

          lineup. The man fitting Clifford's description went into the room where a witness would

          view the lineup to make an identification. Ingles went to follow him, but Detective Angelo

          Pesavento blocked him and told him he could not enter the room. No one other than police

          saw what the police did to elicit the identification of Bolden as the shooter.

¶ 11         Bolden's testimony at the hearing corroborated Ingles's testimony. Bolden added that

          during the lineup, Detective George Karl twice asked, "you, Eddie Bolden, right?"




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¶ 12          Detective Pesavento admitted that Clifford failed to choose Bolden's photo from a photo

          lineup as a picture of the shooter. Police did not find persons comparable to Bolden's height

          for the lineup in person. Police had the participants sit for the lineup in person.

¶ 13          Detective Karl testified that when Ingles first asked to watch the police procedures during

          the lineup, Karl told him police would not permit observation. Karl testified that he did not

          call Bolden by name during the lineup.

¶ 14          The court held that police acted properly and denied the motion to suppress the lineup

          identification.

¶ 15          A state employee tested the two guns found near the murder scene on the night of the

          shootings. In discovery, defense counsel requested production of all physical evidence,

          including the guns. Police destroyed the guns before any defense expert could test them.

¶ 16                                            Trial and Appeal

¶ 17          The trial took place in 1996. The State sought the death penalty. Bolden moved to have

          the court not question prospective jurors about their attitudes to the death penalty, because

          studies have shown that juries that meet Witherspoon, (Witherspoon v. Illinois, 391 U.S. 510

          (1968)) criteria for accepting the death penalty convict defendants on significantly weaker

          evidence than that needed to persuade juries drawn from the general population. See Grigsby

          v. Mabry, 758 F.2d 226, 232-38 (8th Cir. 1985), rev'd, Lockhart v. McCree, 476 U.S. 162,

          173-78 (1986); see also People v. Free, 112 Ill. 2d 154, 171-72 (1986) (upholding the

          constitutionality of using Witherspoon questions to get a death-qualified jury; like the

          Lockhart Court, the Free court accepted the validity of the studies cited in Grigsby which

          show that death-qualified juries consistently convict defendants on weaker evidence than the

          evidence needed to obtain convictions from juries drawn from the general population).

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¶ 18         The trial court denied the motion to restrict questioning of the members of the venire.

          The court selected 12 jurors and 3 alternates who did not find the death penalty problematic.

¶ 19         Clifford presented the only narrative account of the murders. Clifford testified that

          Derrick and Clayton planned to sell two kilograms of cocaine, and they asked Clifford to

          accompany them. They gave Clifford two loaded guns: a .40 automatic and a Mack-11 semi-

          automatic. They took three separate cars to J&J Fish. Clayton left the cocaine in his car.

          Derrick introduced Clifford to Anthony Williams, who had purchased drugs from Derrick

          and Clayton on other occasions. Anthony told Derrick that Clifford could not stay in J&J

          because Clifford had guns. Clifford went across the street to a carry-out restaurant. Through

          the window he watched as a man he had never seen before entered the restaurant and joined

          Anthony, Derrick and Clayton. After a few minutes, Derrick, Clayton and the other man

          came into the carry-out place. Clifford looked at the man he did not know when that man

          asked for change from the carry-out cashier. Derrick, Clayton and the other man then went

          to Derrick's car (although Clayton's car still held the cocaine). Derrick and Clayton got in the

          front, and the other man got in the backseat. They drove off.

¶ 20         Clifford testified that he stood by his car and waited for Derrick and Clayton, with the .40

          in his pocket. About 15 minutes after they drove off, the man he saw earlier in the carry-out

          place came up and started shooting at him, hitting Clifford in the back and leg. Clifford shot

          back, emptying the .40. Clifford dropped the .40 and the man picked it up. The man came

          up to Clifford and put a gun to his head. When he did not shoot, Clifford grabbed the man's

          arm. The man hit Clifford's head repeatedly and ran off. Employees of J&J let Clifford in.

          He described the shooter to police. He identified Bolden, in court, as the man who met with

          Derrick, Clayton and Anthony in J&J, who came with Derrick and Clayton into the carry-out

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          place, who rode in the back of Derrick's car, and who shot and pummeled Clifford. Clifford

          also testified that he identified Bolden as the shooter in a lineup held at Area 2 on February

          26, 1994. Although Clifford admitted that he participated in a drug transaction, police never

          charged him with any crime.

¶ 21         Richard Chenow testified as an expert for the State. He tested eight bullet casings, three

          from the murder scene and five from the shooting of Clifford. He found that a single gun

          fired all of the bullets. He tested both the .40 and the Mack-11 and found that neither gun

          could have fired any of the bullets that hit Clifford or the bullets that killed Derrick and

          Clayton.

¶ 22         The defense relied primarily on two alibi witnesses. Tenesha Gatson, who worked at

          J&J, testified that she knew Bolden from the neighborhood where they both grew up. On

          January 29, 1994, Bolden came into J&J around 6:30 p.m. and started playing at a Pacman

          machine in the restaurant. Gaston spoke to him several times that evening. Bolden did not

          leave her sight for any prolonged period of time. Bolden was still in the restaurant when

          Clifford ran in, bleeding.

¶ 23         Edna Williams, owner of J&J, corroborated Gaston's testimony. She, too, saw Bolden in

          the restaurant after 6 p.m. on January 29, 1994. Bolden was still in the restaurant when

          Clifford ran in. On cross-examination, Edna admitted that Bolden had frequented J&J for

          years. When Bolden lived in the building over the restaurant, Edna saw Bolden every day.

          He sometimes helped out with the work at J&J.

¶ 24         Defense counsel attacked Clifford's credibility. Detective Baker testified for the defense

          about his interview of Clifford in the hospital. Baker admitted that Clifford did not say he

          had seen the shooter meeting Derrick and Clayton or that the shooter came into the carry-out

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          place. Although the police report indicated that Clifford described the attacker as 5 feet 10

          inches to 6 feet tall with a medium build, Baker testified that Clifford described the attacker

          as skinny, 6 feet tall, and clean shaven, with a light complexion. Clifford also told police the

          attacker had low-cut hair, like Clifford's.

¶ 25         Bolden, who had a moderately dark complexion, stood 6 feet 2 inches, weighed 150

          pounds, and was bald, with a mustache, on the night of the murders.

¶ 26         In closing argument, the prosecutor argued that because the alibi witnesses sought to help

          their friend, Bolden, the jury should not believe their testimony.

¶ 27         The jury found Bolden guilty of murdering Derrick and Clayton, and attempting to

          murder Clifford. The trial court sentenced Bolden to life in prison.

¶ 28         Bolden appealed.       His appellate counsel argued that the trial court should have

          suppressed the lineup identification, the court should not have instructed the jury that Bolden

          had no right to have his counsel view the lineup, the court should not have barred Ingles from

          testifying that police usually allow attorneys to watch when a witness attempts to make an

          identification from a lineup, the State impermissibly argued facts not in evidence, and the

          evidence did not prove Bolden guilty beyond a reasonable doubt.           The appellate court

          rejected all of the arguments and affirmed the convictions and sentence. Bolden, No. 1-96-

          4221.

¶ 29                                         Postconviction Petition

¶ 30         In October 1999, Bolden filed a postconviction petition in which he argued that he

          received ineffective assistance of trial counsel and appellate counsel.        Bolden claimed

          primarily that trial counsel should have moved to dismiss the indictment after police

          destroyed the guns, and that trial counsel failed to interview and bring into court three

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          witnesses who had seen Clifford enter J&J after the shooting, one of whom would provide

          credible alibi testimony.

¶ 31         In support of the petition, Bolden presented a form on which his trial counsel submitted a

          written request for an investigator working for the public defender to contact Vondell Goins,

          Octavia Jackson, and Todd Henderson. Trial counsel supplied phone numbers, addresses,

          and dates to contact the witnesses. The forms show that an investigator wrote "oral response

          has been given" to trial counsel.

¶ 32         Bolden also attached to the petition affidavits from Goins, Jackson and Henderson.

          Goins swore that she spoke to police in J&J after the shooting, but no investigator or attorney

          contacted her between the night of the murders in 1994 and 2011, when an investigator

          working on the postconviction petition contacted her. Goins said she was in J&J when

          Clifford ran in. The investigator who contacted her in 2011 showed her a picture of Bolden.

          She swore that she was talking with Bolden and Jackson when she heard gunshots outside the

          restaurant, and Bolden remained in the restaurant when Clifford entered.

¶ 33         According the Jackson's affidavit, Jackson could not remember speaking to any defense

          investigator or attorney about the events of January 29, 1994. She corroborated Goins's

          statement that they were in J&J talking to a young man when they heard shots. In her

          affidavit, Jackson did not say whether she could identify Bolden as the young man she and

          Goins spoke with.

¶ 34         Henderson, in his affidavit, swore that he saw Goins and Jackson in J&J, saw the fight

          outside J&J, and he could describe both the victim in the fight and all the persons in J&J at

          the time of the fight. He, too, swore that no investigator or attorney for Bolden ever

          contacted him.

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¶ 35         The State moved to dismiss the petition. The trial court held that the request to the

          investigator showed that Bolden's trial counsel made a reasonable investigation and a

          strategic decision not to call Goins and the corroborating witnesses at trial. The trial court

          held that the claim related to the destroyed guns did not require a hearing because "[t]here

          was no indication that the weapons were linked to the petitioner or used by him during the

          shooting." The court granted the motion to dismiss the postconviction petition without

          holding an evidentiary hearing. Bolden now appeals.

¶ 36                                             ANALYSIS


¶ 37         We review de novo the dismissal of a postconviction petition at the second stage of

          postconviction proceedings. People v. Coleman, 183 Ill. 2d 366, 381-89 (1998). At this

          stage of postconviction proceedings, the court must assume the truth of all facts alleged in the

          postconviction petition and its supporting documents, unless the record contradicts the

          allegations. Coleman, 183 Ill. 2d at 385; People v. Ward, 187 Ill. 2d 249, 255 (1999). We

          must determine whether the petition and its accompanying documents make a substantial

          showing of a violation of the defendant's constitutional rights. People v. Edwards, 197 Ill. 2d

          239, 243-46 (2001). The court must not resolve any issues of fact without an evidentiary

          hearing. People v. Domagala, 2013 IL 113688, ¶ 35.

¶ 38                               Failure to Move for Discovery Sanctions

¶ 39         The trial record shows that Bolden's trial counsel did not move for sanctions when he

          learned that police destroyed the guns found near the crime scene, after he had requested

          production of those guns in discovery. Bolden argues that under the law in effect at the time

          of the trial, he had a reasonable probability of persuading the court to dismiss the charges


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          against him if his trial counsel had filed an appropriate motion. The State asks us to consider

          how the trial court should have decided the motion under People v. Sutherland, 223 Ill. 2d

          187 (2006), even though our supreme court had not decided that case before Bolden's trial.

          We agree with Bolden that in assessing whether trial counsel provided ineffective assistance,

          we must evaluate counsel's conduct in light of the law in effect at the time counsel provided

          assistance. Strickland v. Washington, 466 U.S. 668, 690 (1984).

¶ 40         At the time of Bolden's trial, in 1996, People v. Newberry, 166 Ill. 2d 310 (1995), stated

          the applicable law. In Newberry, the State charged Newberry with selling a look-alike

          substance as narcotics. When the State changed the charge to selling narcotics, an officer

          who received notice of the dismissal of the original charge destroyed the substance Newberry

          had sold, the substance the State claimed to be narcotics. The trial court found that the

          destruction of the evidence, without permitting Newberry to test the substance to determine

          whether it contained narcotics, deprived him of due process, even though police had already

          tested the substance and even though Newberry could not show that police acted in bad faith

          when they destroyed the substance. Our supreme court affirmed the trial court's decision to

          dismiss the charges against Newberry as an appropriate sanction for the destruction of crucial

          evidence.   The Newberry court emphasized the trial court's broad discretion to impose

          sanctions proportional to the magnitude of the discovery violation. Newberry, 166 Ill. 2d at

          317-18; see Julio C., 386 Ill. App. 3d 46, 52 (2008) (although the State disputes the relevance

          of In re Newberry to this case, it cites Julio C. for the proposition that the trial court has

          discretion to impose a sanction proportional to the discovery violation).

¶ 41         Here, police destroyed the guns found near the scene of the crime after defense counsel

          requested them in discovery.      The destruction of the evidence precluded Bolden from

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          obtaining the opinion of an expert who did not work for the prosecutors as to whether his

          own tests confirmed the conclusion of the State's expert that neither of those guns could have

          fired the bullets that killed Derrick and Clayton. We cannot see any strategic purpose for the

          decision not to move for sanctions after police destroyed the evidence defense counsel

          requested. See Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) (failure to seek discovery

          served no strategic purpose). We find that trial counsel provided objectively unreasonable

          assistance when he failed to move for discovery sanctions after police destroyed some of the

          evidence he requested in discovery.

¶ 42         Next, we must determine whether Bolden has substantially shown a reasonable

          probability of achieving a better result if his attorney had moved for discovery sanctions.

          Bolden argues that under Newberry, the trial court likely would have dismissed the charges.

          The Newberry court affirmed the dismissal of drug charges against Newberry because of the

          "pivotal nature" of the substance destroyed before defendant could independently test the

          substance. Newberry, 166 Ill. 2d at 318. Here, police did not destroy the bullets that killed

          the victims, it destroyed two guns that, according to the State's expert, did not fire the fatal

          bullets. Bolden points out that he could have hired an expert to run separate tests and

          challenge the opinion of the State's expert, if the State had not destroyed the evidence. But

          we find that the proposed tests here have primarily speculative value (see Newberry, 166 Ill.

          2d at 315), and therefore, we find that Bolden has not substantially shown a reasonable

          probability that the trial court would have dismissed the charges entirely due to the

          destruction of the evidence.

¶ 43         In line with the trial court's broad authority to fashion an appropriate sanction for a

          discovery violation (see Julio C., 386 Ill. App. 3d at 52), we find a reasonable likelihood that

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          a motion for discovery sanctions would have induced the court to impose a lesser, more

          appropriate sanction, such as precluding the State's firearms expert from testifying about the

          results of his tests on the guns found at the scene, and precluding the State from arguing that

          any testing or expert opinion supports the conclusion that Clifford's two guns did not fire the

          fatal shots. Just as the defense's inability to contest testimony through cross-examination

          renders the testimony inadmissible, the defense's inability to test physical evidence because

          the State destroyed the evidence after the defense requested it should render testimony about

          the physical evidence inadmissible. See Crawford v. Washington, 541 U.S. 36, 59 (2004)

          (testimony of deceased witness admissible only if defendant had an adequate prior

          opportunity to challenge the testimony through cross-examination). We will not consider the

          effect of this sanction on the likely outcome of the trial in isolation. Instead, we consider the

          cumulative effect of trial counsel's errors. See People v. Vera, 277 Ill. App. 3d 130, 141

          (1995).

¶ 44                                         Failure to Investigate

¶ 45         Bolden contends that his trial counsel provided ineffective assistance by failing to

          interview and present at trial Vondell Goins and two other witnesses who would corroborate

          some aspects of her alibi testimony. The State answers first that the record shows Bolden's

          trial counsel took adequate steps to find out about the possible alibi witnesses' testimony, as

          he asked an investigator to interview Goins and the other supporting witnesses. The record

          shows only that the investigator reported back to trial counsel about an effort to reach Goins.

          The record does not contradict Goins's sworn statement that no investigator or attorney for

          the defense ever contacted her. The record does not show what steps, if any, the investigator

          took in response to trial counsel's request. The record does not show that trial counsel made

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          adequate efforts to contact Goins and the supporting witnesses, or that he adequately

          investigated the alibi witnesses.

¶ 46         The failure to call an available alibi witness substantially showed ineffective assistance of

          counsel in People v. Tate, 305 Ill. App. 3d 607, 612 (1999). We find that here, too, the

          failure to contact Goins and the other witnesses substantially shows an objectively

          unreasonable investigation of the case. We also find that Bolden has substantially shown that

          if trial counsel had not committed unprofessional errors, he could have presented Goins at

          trial as an alibi witness, providing credible evidence that Bolden arrived at J&J before the

          shooting and he stayed there until some time after Clifford was shot. Bolden also could have

          presented testimony from Jackson and Henderson to corroborate aspects of Goins's alibi

          testimony.

¶ 47                                          Prejudicial Effect

¶ 48         We will not reverse the trial court's dismissal of the postconviction petition unless Bolden

          has also substantially shown that he would have achieved a better result if counsel had not

          committed the unprofessional errors.     Domagala, 2013 IL 113688, ¶ 36.          No physical

          evidence connects Bolden to the offenses. The prosecution rested its case against Bolden on

          Clifford's testimony and the testimony of the expert who said that the bullets that killed

          Clayton and Derrick came from the gun used to shoot Clifford. Clifford identified Bolden as

          the man he saw talking with Anthony, Derrick and Clayton during a drug deal, as the man he

          saw at close range in the carry-out place, and as the man who fired a gun at Clifford

          repeatedly and pummeled his head with a gun.

¶ 49         But Clifford's identification of Bolden has several weaknesses. Detective Baker testified

          that Clifford described the shooter as clean-shaven and light-complected. Clifford also told

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          police that the shooter had low-cut hair. The police report indicated that Clifford described

          the shooter as 5 feet 10 inches to 6 feet tall, with a medium build. Bolden was 6 feet 2 inches

          tall, very thin, dark-complected and bald, and he had a mustache. Bolden's attorney, Ingles,

          testified that Clifford walked very close to him and Bolden in the police station, shortly

          before the lineup, and police prevented Ingles, or anyone not on the police force, from

          viewing the methods they used to convince Clifford to identify Bolden as the shooter.

¶ 50         Also, the evidence suggests that Derrick and Clayton knew the shooter very well, and

          trusted him, as they allowed the shooter to sit alone in the back seat of Derrick's car while

          Derrick and Clayton sat in front. No evidence indicates that Derrick or Clayton knew Bolden

          before the night of the shooting. Clifford, Derrick's brother, had never met Bolden before.

¶ 51         Two alibi witnesses testified for Bolden, but the prosecution undercut the credibility of

          those witnesses by pointing out that they knew Bolden personally and sought to help him.

          Goins would have testified in support of Bolden's alibi, and her testimony would not suffer

          the same vulnerability that afflicted the testimony of Edna and Gaston. The exclusion of the

          expert testimony that Clifford's guns did not fire the fatal bullets could further persuade a

          trier of fact to find a reasonable doubt. In light of the substantial problems with Clifford's

          identification of Bolden as the shooter and the lack of any other evidence against Bolden, the

          failure to present Goins's alibi testimony, with partial corroboration from Jackson and

          Henderson, and the failure to move for discovery sanctions, which should have led the trial

          court to bar the State from presenting testimony from a firearms expert about testing

          Clifford's guns, had prejudicial effect.     Bolden has made a substantial showing of a

          reasonable likelihood that he would have achieved a better result but for trial counsel's errors.



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¶ 52                                        New Judge on Remand

¶ 53         Finally, Bolden asks us to direct the circuit court to appoint a new judge to hear the case

          on remand. He points out that the trial court said, "I got a call from a retired federal judge

          asking why this case was going on so long and when I explained to them that Mr. Bolden has

          been the cause of all the delays, Mr. Bolden writes letters to my presiding judge, I believe

          he's written letters to the chief judge downtown, and he did file that habeas petition." The

          trial court also commented on the credibility of Bolden's assertions, as he found the

          destruction of the guns insignificant because "[t]here was no indication that the weapons

          were *** used by [Bolden] during the shooting." We find that Bolden should present this

          argument to the circuit court before we address it. Bolden may present the issue to the circuit

          court on remand in a petition for substitution of judge.

¶ 54                                            CONCLUSION

¶ 55         Bolden made a substantial showing that his trial counsel committed unprofessional errors

          by failing to move to dismiss the indictment after police destroyed evidence that defense

          counsel requested in discovery, and when he failed to contact an alibi witness. In light of the

          extremely thin case for the prosecution, based solely on the identification testimony of a

          single witness who did not know Bolden, and whose initial description of the shooter did not

          closely match Bolden's appearance, we find that Bolden has substantially shown that he

          suffered prejudice due to trial counsel's errors. Accordingly, we reverse the trial court's

          judgment and remand for an evidentiary hearing on the postconviction petition.

¶ 56         Reversed and remanded.




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