                                  Illinois Official Reports

                                          Appellate Court



                             People v. Morrow, 2013 IL App (1st) 121316




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



District & No.               First District, Fifth Division
                             Docket No. 1-12-1316



Filed                        December 31, 2013
Rehearing denied             January 30, 2014




Held                         Defendant’s convictions and sentences for armed robbery and murder
(Note: This syllabus         were upheld notwithstanding his contention that the trial court erred in
constitutes no part of the   denying him leave to file a successive postconviction petition alleging
opinion of the court but     that his trial counsel was ineffective in failing to request a
has been prepared by the     second-degree murder instruction, since the evidence at trial did not
Reporter of Decisions        support a finding of second-degree murder.
for the convenience of
the reader.)



Decision Under               Appeal from the Circuit Court of Cook County, No. 94-CR-26967
Review                       (03); the Hon. Evelyn B. Clay, Judge, presiding.




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

                               Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Jon
                               Walters, and Nancy Colletti, Assistant State’s Attorneys, of counsel),
                               for the People.




     Panel                     PRESIDING JUSTICE GORDON delivered the judgment of the
                               court, with opinion.
                               Justices McBride and Taylor concurred in the judgment and opinion.




                                              OPINION


¶1          Following a jury trial, defendant Mitchell Morrow was convicted of the August 28, 1994,
       armed robbery and murder of Kazmierz Kosinski. After considering factors in aggravation and
       mitigation, the trial court sentenced defendant to 60 years in the Illinois Department of
       Corrections, to be served concurrently with a 20-year sentence for armed robbery. On direct
       appeal, we reversed defendant’s armed robbery conviction, but we affirmed his conviction and
       sentence for murder. People v. Morrow, 303 Ill. App. 3d 671 (1999). Defendant next filed his
       first postconviction petition in which he raised numerous claims of ineffective assistance of
       trial counsel and trial court errors. The trial court granted the State’s motion to dismiss, and we
       affirmed the dismissal on appeal. People v. Morrow, No. 1-00-3878 (2002) (unpublished order
       under Supreme Court Rule 23).
¶2          Afterwards, defendant requested leave to file his second postconviction petition in which
       he claimed for the first time that his appellate counsel provided ineffective assistance of
       counsel when he failed to argue on direct appeal that defendant’s trial counsel ineffectively
       failed to request a second-degree murder jury instruction. The trial court found that, although
       defendant established cause to file a successive petition, he did not show prejudice to support
       his claim because the evidence at trial did not support a finding of second-degree murder. As a
       result, the trial court denied defendant leave to file a successive postconviction petition, and
       defendant now appeals. On this appeal, defendant argues that the trial court erred since he
       established both cause and prejudice required to file a second postconviction petition. For the
       following reasons, we affirm.


                                                    -2-
¶3                                       BACKGROUND
¶4                                            I. Trial
¶5       The State’s evidence at trial relied primarily on the prior statement and grand jury
     testimony of Ramona Siler, an alleged eyewitness to the murder. Siler told detectives that she
     was a prostitute and that defendant was her boyfriend and pimp. In August 1994, Siler was five
     months pregnant with defendant’s child, and she had previously told him that he was the father.
     On August 28, 1994, Siler was performing sex acts for Kazmierz Kosinski, the victim, in his
     vehicle with another prostitute, Birandi Paschal, when Paschal reached for Kosinski’s wallet.
     A fight ensued, and Siler called for the help of defendant and Alanda McComb, Paschal’s
     pimp, both of whom were sitting in their vehicle nearby. McComb ran toward Kosinski’s
     vehicle and punched him. McComb then instructed Siler and Paschal to exit Kosinski’s
     vehicle, and as the two women ran away, defendant approached Kosinski, pulled out a gun, and
     shot him twice as he sat in the driver’s seat. Defendant, Siler, Paschal, and McComb then
     returned to their own vehicle and McComb drove away with Kosinski’s wallet. At some point,
     McComb hid the gun under the hood of his vehicle, and the four equally split $160 in cash
     recovered from Kosinski’s wallet.
¶6       Siler repeated essentially the same account of events in both her written statement to the
     police and in her grand jury testimony. However, she recanted her story at trial, explaining that
     she lied because she was addicted to heroin and that she wanted to go home as soon as possible
     so that she would not suffer from withdrawal. Defendant testified in his own defense and
     claimed that he did not shoot Kosinski and that he was not with Siler, Paschal, or McComb on
     the night of the shooting. Defendant also claimed that Siler was no longer his prostitute in
     August 1994; that they were no longer in a relationship; and that he was not the father of Siler’s
     child.
¶7       At opening argument, defendant’s counsel told the jury, “[Defendant] was not at the scene
     of this crime, did not ask [Siler] to do anything to Kazmierz Kosinski, did not derive any
     benefit from this crime, and is absolutely innocent of these charges.”

¶8                         A. Autopsy, Ballistics, and Other Evidence
¶9       Forensic investigator Carl Brasic testified that, on August 28, 1994, he processed the crime
     scene. There, Brasic observed Kazmierz Kosinski’s body in the driver’s seat of his vehicle,
     which was parked on Leclaire Avenue near Blackhawk Park in Chicago. Both of the vehicle’s
     front seats were reclined, and Brasic recovered a condom wrapper on the floor of the vehicle.
     Brasic recovered three .25-caliber cartridge cases inside the vehicle. One cartridge case was
     recovered on the floor of the front passenger seat, another was on the floor of the rear
     passenger seat, and a third was found on the driver’s seat after Kosinski’s body was removed.
     No weapons were recovered in the vehicle or on Kosinski’s person. Kosinski appeared to have
     a gunshot wound on his left chest and right wrist, but his face did not appear to be injured.
     Brasic recovered several palm prints on the outside of Kosinski’s vehicle.


                                                 -3-
¶ 10       Dr. Mitra Kalelkar testified that she performed the autopsy on Kosinski’s body. Prior to the
       autopsy, Kalelkar observed a used condom inside Kosinski’s clothing and a bullet on the cart
       on which Kosinski’s body was lying. Kosinski did not have any bruises or injuries to his face,
       but he had three apparent gunshot wounds to his body. Kosinski was shot once in the left chest
       wall, and the bullet traveled to the right and down to his spinal cord, where the bullet was
       recovered. Due to the path of the bullet, Kalelkar opined that the gun was positioned to the left
       and slightly above the victim. Kosinski also sustained a gunshot wound to his right wrist, and
       the bullet entered his inside palm and exited through the wrist. Kalelkar observed evidence that
       both gunshots were contact wounds, meaning that the barrel of the gun was touching
       Kosinski’s skin when it was fired. Kosinski had a third gunshot graze wound on his right hip,
       but there was no evidence that the shot was fired from close range. A toxicology test revealed
       that Kosinski’s blood alcohol level was twice the legal limit at the time of his death. Kalelkar
       opined that Kosinski died as a result of multiple gunshot wounds and that the manner of his
       death was a homicide.
¶ 11       Police officer Richard Chenow, a ballistics expert, testified that he examined the three
       cartridge cases recovered from the vehicle, but he could not determine whether they were fired
       from the same gun. Also, he examined two bullets recovered from the crime scene, but they
       were mutilated and unsuitable for comparison.
¶ 12       The parties stipulated that Victoria Psichalinos would testify that she is an expert
       fingerprint examiner, and that she examined the palm prints recovered from the outside of
       Kosinski’s vehicle. Psichalinos compared those prints to individual palm prints taken from
       defendant, Siler, McComb, Paschal, and Kosinski, and she opined that they did not match the
       prints recovered from the vehicle.
¶ 13       The parties also stipulated that a pedestrian recovered Kosinski’s wallet and placed it in a
       mailbox on August 28, 1994. Psichalinos examined three fingerprints recovered from inside
       the wallet and opined that they did not match the individual fingerprint samples provided by
       defendant, Siler, McComb, Paschal, or Kosinski.

¶ 14                                  B. Interview of Ramona Siler
¶ 15        Detective William Johnston testified that he investigated Kosinski’s murder, and that he
       initially thought it was related to prostitution since the victim was found near Blackhawk Park,
       a place known for prostitution, and a used condom was recovered inside Kosinski’s clothing.
       On September 5, 1994, Johnston learned that a prostitute named Ramona “Tracy” Siler, who
       usually worked nearby at the intersection of Dickens and Cicero Avenues, had not been
       observed for several days following the murder. Police officers later observed Siler at 8:30
       p.m. that evening and arrested her on a bond forfeiture warrant.
¶ 16        Following her arrest, Siler was placed in an interview room at the 25th District police
       station and Detective Johnston and his partner, Detective Stephen Gawrys, questioned her
       concerning Kosinski’s murder. Siler initially told Johnston that she did not know anything
       about Kosinski’s death, and that she needed to be released from custody so that she could
       attend to her children, who were alone in a hotel room. Johnston did not release Siler and

                                                   -4-
       instead sent two police officers to check on the children. The officers later telephoned Johnston
       from the hotel and told him that Siler’s pimp, defendant, was alone in the hotel room, and that
       defendant stated that Siler’s children did not live there. Johnston instructed the officers to ask
       defendant to accompany them to the police station for an interview, and defendant arrived at
       the Area 5 police station later that evening. Johnston identified defendant in court.
¶ 17       Johnston resumed the interview with Siler, and she received her Miranda warnings. This
       time, Siler admitted that she did have information concerning the murder near Blackhawk
       Park. On the night of the shooting, Siler was working “her corner,” which was the intersection
       of Dickens and Cicero Avenues, with another prostitute, named Birandi “Brittany” Paschal.
       Defendant, Siler’s pimp, and Alanda “JR” McComb, Paschal’s pimp, were also present that
       evening.
¶ 18       Siler told Johnston that, at 2 a.m., a prior customer pulled up to Siler and motioned for her
       to approach his vehicle. The customer told Siler that he wanted to hire two prostitutes that
       evening, and he pointed to Paschal. Siler and Paschal both entered the customer’s vehicle, and
       he drove to a location near Blackhawk Park. Defendant and McComb followed behind them in
       their own vehicle and parked ahead of the customer.
¶ 19       After the customer parked his vehicle, Siler and Paschal performed sex acts on him. Siler
       eventually stopped and told the customer that his “time was up,” but he reached into the
       vehicle’s visor and handed Siler $10, and she resumed. Shortly thereafter, Paschal reached into
       the customer’s pants for his wallet, and an argument ensued. The customer became physical
       with Paschal and called her a “black bitch,” so Siler shouted for defendant and McComb to
       come help. Defendant and McComb ran to the customer’s vehicle, and McComb punched him.
       Defendant then pulled out a small, semiautomatic handgun and shot the customer twice. Siler
       observed the muzzle of the gun flash, and she heard both shots.
¶ 20       After the shooting, Siler and Paschal returned to McComb and defendant’s vehicle, and
       they drove away1 with the victim’s wallet. McComb handed the customer’s wallet to Paschal,
       who then removed $160 in cash and divided it equally amongst the group before throwing the
       wallet out the vehicle’s window. While they were in the vehicle, Siler observed the victim’s
       blood on defendant’s shoes. At some point, they stopped and McComb hid the gun underneath
       the hood of the vehicle, and they continued to drive away.
¶ 21       Siler told Johnston that, at the time of the shooting, she had been using $40 of heroin per
       day and that defendant used $200 of heroin daily. Up until this point in the interview, Johnston
       had not shown Siler any photographs of the crime scene or potential suspects.
¶ 22       Siler remained in police custody overnight following her interview. The next day,
       Assistant State’s Attorney Myles Hahn arrived at the Area 5 police station and spoke with
       Siler. Afterwards, Siler provided a written statement in the presence of Johnston and Hahn.
       Siler remained in police custody a second night, and Johnston arranged to have her testify
       before the grand jury the next day.



          1
           Johnston did not testify whether Siler identified who drove the vehicle or where they drove.
                                                     -5-
¶ 23                                C. Ramona Siler’s Prior Statement
¶ 24        The parties stipulated that Assistant State’s Attorney (ASA) Myles Hahn would testify that
       he interviewed Siler on September 6, 1994, and that he summarized what she told him in a
       written statement. Siler’s prior statement was offered into evidence and published to the jury at
       trial. In the statement, Siler stated that she received her Miranda warnings and that she
       understood them. She then described the shooting that took place on August 28, 1994, and her
       account was substantially similar to what she told Detective Johnston. Siler stated that she
       worked as a prostitute at the time, and that defendant was her protector and pimp, as well as her
       boyfriend of two years. At 2 a.m., she was standing at the corner of Dickens and Cicero
       Avenues with another prostitute, named Brittany, when a man drove up and propositioned
       them for sex. Siler did not know the man’s name at the time, but she identified him as the
       victim, Kazmierz Kosinski, in a Polaroid photograph, which she signed. Siler and Brittany
       accepted Kosinski’s offer and they entered his vehicle. Kosinski then drove to Leclaire Street
       near Palmer Street, and defendant and “JR,” a man that Brittany stayed with, followed.
¶ 25        Siler stated that she and Brittany performed sexual acts for Kosinski for five minutes, at the
       conclusion of which Kosinski negotiated Siler for extra time in exchange for more money. At
       the same time, Brittany reached into Kosinski’s pocket, and he responded, “Stop that, black
       bitch,” and hit Brittany on the side of her head. Siler then yelled to defendant and JR for help,
       both of whom were sitting in their vehicle parked three parking spaces away. JR, the driver,
       exited his vehicle and ran toward Kosinski and punched him as he sat in his vehicle. Defendant
       then approached Kosinski, pulled out a gun, and shot him twice. Defendant, JR, Siler, and
       Brittany returned to JR’s vehicle, and JR drove away. As they drove away, defendant told
       Brittany to split up the money that she recovered from Kosinski’s wallet amongst the four of
       them. Defendant then asked Siler if he had any blood on him, but Siler’s statement does not
       include her response.
¶ 26        Siler’s statement concluded with an acknowledgement that she was treated well by ASA
       Hahn and the police, and that she was not threatened in any way. Siler also stated that she was
       not offered any promises in exchange for giving her statement and that she was not under the
       influence of any drugs or alcohol at the time. No corrections were made to the statement, and
       Siler, Hahn, and Johnston signed each page.

¶ 27                             D. Ramona Siler’s Grand Jury Testimony
¶ 28        ASA Ray Regner testified that he spoke with Siler concerning Kosinski’s murder, and she
       agreed to testify before the grand jury on September 7, 2004. Regner testified that Siler was
       coherent when he spoke with her and that he did not offer her any promises in exchange for her
       testimony. Specifically, Regner did not promise Siler that she could go home after she testified.
¶ 29        Siler’s grand jury testimony was also offered into evidence and published to the jury at
       trial. Siler testified that defendant had been her boyfriend for four years and that they had lived
       together for the past two years. Siler made a living as a prostitute, and defendant was her
       “protector,” meaning that if she ever fought with a man she was “dating,” then defendant


                                                    -6-
       would “jump in” and help her. On the evening of September 6, 1994, 2 Siler was at the
       intersection of Dickens and Cicero Avenues with a woman that Siler knew only as “Brittany.”
       Defendant was there that evening to protect Siler, and JR was there to protect Brittany. At 2
       a.m., Siler observed a blue vehicle that she had observed three times before, so she flagged it
       down. She recognized the driver as Kazmierz Kosinski, the victim. Kosinski pulled over and
       Siler offered him sex in exchange for money. Kosinski told her that he wanted the services of
       two women that evening, and Brittany agreed to the offer. Siler and Brittany entered
       Kosinski’s vehicle and he drove them to a location near Blackhawk Park. Siler observed that
       defendant had followed them and was parked in front of Kosinski’s vehicle.
¶ 30       Siler testified that she and Brittany began to perform sex on Kosinski, and that Siler
       stopped after six minutes and told him that he needed to pay her more money if he wanted her
       to continue. Kosinski agreed and paid Siler, and he placed his wallet on the side of his seat.
       Brittany then reached for his wallet, but Kosinski caught her. He grabbed Brittany’s hair, hit
       her head, and called her a “black bitch.” At that point, Siler, Brittany, and Kosinski started
       fighting, but defendant was too strong for the two women, so Siler exited the vehicle and called
       for defendant to help by yelling his name and urging him to “come on.” JR ran to the vehicle,
       pulled Kosinski halfway out of the vehicle, and punched him. JR then told Siler and Brittany to
       exit Kosinski’s vehicle. Siler testified that she assumed JR was searching for Kosinski’s
       money since she thought she heard JR say, “Give me the money,” though she was not sure.
¶ 31       Siler testified that she and Brittany then ran to JR’s vehicle and passed defendant on their
       way. Defendant had a gun in his hand and Siler urged him to “come on” and “get in the car.”
       Siler had observed the gun before and knew that defendant was armed that evening; however,
       Siler did not observe a weapon in Kosinski’s possession. Defendant continued running to
       Kosinski’s vehicle, faced him, and shot him once. Siler and Brittany then entered JR’s vehicle
       and Siler backed it up to pick up defendant and JR. As she was backing up, she heard a second
       gunshot. Siler exited the vehicle to find out what happened, and she observed defendant and JR
       running back toward their vehicle. Siler reentered the vehicle and sat in the backseat with
       defendant, and JR drove away. JR stopped the vehicle nearby on Palmer Street and hid the gun
       under the hood, and then continued to drive away. Defendant asked Siler if she observed any
       blood on him, and she responded that he had a little bit on his shirt. JR handed Kosinski’s
       wallet to Brittany and, on his instructions, she removed the money and threw the wallet out the
       window. Brittany handed the money to JR, and he handed $40 to defendant, who later used the
       money to buy drugs. JR drove to North Avenue and Siler finished working that evening at that
       location.
¶ 32       Siler testified that she provided this information in a prior written statement to ASA Hahn
       and Detective Johnston on September 6, 1994. Siler identified the statement and

           2
            ASA Regner testified that he mistakenly asked Siler about the events of September 6, 1994,
       instead of August 28, 1994, the actual date of the murder. However, Regner testified that when he
       spoke with Siler prior to her grand jury testimony, they discussed the events that occurred on the night
       of the murder, not September 6, 1994. Also, Siler was taken into custody at the Area 5 police station on
       September 5, 1994, and released on September 7, 1994, after she testified before the grand jury.
                                                      -7-
       acknowledged that she signed each page. The statement contained a true and accurate account
       of what happened the night of the murder, and no threats or promises were made to Siler in
       exchange for her statement. Siler was read her Miranda rights and she was treated well by the
       ASA and the police. Siler also testified that she was not made any threats or promises in
       exchange for her grand jury testimony and that her testimony was true and accurate.

¶ 33                               E. Ramona Siler’s Testimony at Trial
¶ 34       At trial, Ramona Siler testified that she is a 25-year-old high school dropout with seven
       children. In August 1994, Siler worked as a prostitute and defendant was her pimp. Defendant
       was also her boyfriend of nearly four years at that time, and they had lived together in a hotel
       for two years. That month, Siler was pregnant with her sixth child, of whom defendant was the
       father. Siler told defendant that he was the father of the child, the first and only child that they
       had together. Siler testified that she and defendant used heroin every day, and that she would
       typically spend over $50 to support her habit. Siler identified defendant in court.
¶ 35       Siler testified that she has been arrested for prostitution at least 30 times, and that she has
       used 8 false names. Siler typically performed sexual acts for customers in their vehicles, while
       defendant would “protect” her, meaning that he would follow Siler and park nearby and help
       her if she ever fought with a customer. In August 1994, Siler worked at the intersection of
       Dickens and Cicero Avenues with another prostitute, Birandi “Brittany” Paschal, whom she
       identified in court. Paschal’s boyfriend, Alanda “JR” McComb, was also Paschal’s pimp, and
       would also protect Brittany when she was working.
¶ 36       Siler first testified that she was working as a prostitute at the intersection of Dickens and
       Cicero Avenues during the early morning hours of August 28, 1994, but then stated that she did
       not remember the exact dates when she was working. Siler then denied knowing who
       Kazmierz Kosinski was and testified that she was not with Kosinski, defendant, Paschal, and
       McComb on the night of Kosinski’s death.
¶ 37       Siler admitted that she provided a prior written statement to ASA Hahn and Detective
       Johnston and that she testified before the grand jury. The State asked Siler about a number of
       specific statements she made in her prior written statement and grand jury testimony, and Siler
       admitted to providing the statements. Siler acknowledged that she was treated well by both
       ASAs and the police and that she was never made any promises or threats in exchange for her
       written statement and grand jury testimony.
¶ 38       On cross-examination, Siler testified that, at the time of the shooting, she had five children
       from three different fathers, and that her heroin addiction was so strong that her first priority
       was to become high before taking care of her children. Siler admitted that she used heroin even
       though she knew that it could harm her unborn child. Siler was six months pregnant with
       defendant’s child in August 1994, and defendant repeatedly told her that he was not the father.
       Defendant has two other prostitutes, Gina and Rhonda. Like Siler, Rhonda has a child with
       defendant as well as a tattoo of defendant’s nickname on her hand.
¶ 39       Siler also testified that she lied to the police because she was a heroin addict and she did not
       want to suffer from withdrawal in jail. When Siler was arrested, she lied to the police that she

                                                    -8-
       had five children alone in her hotel room because she thought that they would release her from
       custody. Detective Johnston then interviewed Siler concerning Kosinski’s death, and Siler was
       not released from custody even though she told him that she did not know anything about the
       murder. Siler then made up a story based on the photographs that Johnston showed her, and she
       implicated defendant and McComb, the only two pimps she knew, in the shooting. Siler was
       still in custody when she testified before the grand jury, and she was going through heroin
       withdrawal at the time. She admitted that she lied under oath because she thought she would be
       able to go home and avoid a murder charge if she testified. Siler was in fact released without
       charges after she testified before the grand jury.

¶ 40                               F. Defendant’s Testimony at Trial
¶ 41       Defendant testified in his own defense and denied shooting Kosinski. Defendant admitted
       that he was Siler’s pimp and that she frequently worked at the intersection of Dickens and
       Cicero Avenues. Defendant would sometimes follow Siler to protect her from other pimps, but
       he denied being present the night Kosinski was murdered. Defendant explained that he was
       previously in a relationship with Siler, but that he told her in August 1994 that he could not
       support her once she became pregnant since her stomach was showing and she did not make
       enough money. Defendant denied that he was the father of Siler’s child and noted that the
       child’s skin color and hair texture were different from his own. However, Siler still told him
       that he was the father.
¶ 42       On cross-examination, defendant admitted that he was previously Siler’s pimp and
       boyfriend, and that McComb was Paschal’s pimp. However, defendant denied working with
       McComb, and he testified that he did not carry a gun. Defendant further denied that he was
       Siler’s pimp and boyfriend in August 1994, and he stated that she no longer lived with him at
       that time. Defendant admitted that he was addicted to heroin in August 1994. Defendant
       testified that he had lied to the police and provided false names on several occasions. On
       September 5, 1994, two police officers arrived at defendant’s hotel room looking for Siler’s
       children, and defendant voluntarily returned to the Area 5 police station with them. At the
       police station, defendant spoke with Detectives Johnston and Gawrys concerning the shooting,
       but defendant denied telling them that he had spent every night with Siler except the night of
       the shooting.
¶ 43       In rebuttal, the State called Detective Stephen Gawrys, who testified that when he asked
       defendant where he was on the night of the shooting, defendant stated that he was with Siler
       every other night except that one.

¶ 44                            G. Closing, Conviction, and Sentence
¶ 45        At closing argument, the defense argued that Siler was not credible and that defendant was
       not present when Kosinski was shot and killed. The jury convicted defendant of murder and
       armed robbery. Codefendant Birandi Paschal was also found guilty of murder and armed
       robbery by a separate jury, but codefendant Alanda McComb was acquitted following a bench
       trial. After considering factors in aggravation and mitigation, the trial court sentenced

                                                  -9-
       defendant to 60 years in the Illinois Department of Corrections for murder, to be served
       concurrently with a 20-year sentence for armed robbery.

¶ 46                                     II. Posttrial Proceedings
¶ 47        On direct appeal, defendant claimed that his convictions should be reversed because: (1)
       the evidence was insufficient to convict him; (2) certain evidence was improperly admitted; (3)
       the trial court erred in instructing the jury; and (4) his counsel provided ineffective assistance
       by not objecting to the inadmissible evidence. On March 1, 1999, we reversed defendant’s
       armed robbery conviction, but rejected defendant’s other claims. People v. Morrow, 303 Ill.
       App. 3d 671 (1999). Defendant was denied leave to appeal on June 2, 1999. People v. Morrow,
       184 Ill. 2d 567 (1999) (table).
¶ 48        While defendant’s petition for leave to appeal to the Illinois Supreme Court was still
       pending, defendant’s counsel filed his first postconviction petition on April 23, 1999. In his
       petition, defendant claimed: (1) that his trial counsel provided ineffective assistance by failing
       to interview Siler before trial, investigate alibi witnesses, and object to improper evidence and
       arguments; (2) that he was forced to be tried by a jury and to testify in his own defense; and (3)
       that his sentence was excessive and improperly entered without a presentence investigation.
       The trial court later granted the State’s motion to dismiss the petition, and we affirmed the
       dismissal on appeal. People v. Morrow, No. 1-00-3878 (2002) (unpublished order under
       Supreme Court Rule 23).
¶ 49        On February 11, 2010, defendant filed a pro se habeas corpus petition, which was later
       dismissed by the trial court, and we affirmed the dismissal on appeal. Morrow v. Ryker, No.
       1-10-1243 (2010) (unpublished order under Supreme Court Rule 23). In February 2011,
       defendant filed a petition for relief from judgment pursuant to section 2-1401 of the Code of
       Civil Procedure. 735 ILCS 5/2-1401 (West 2006). The trial court later dismissed the section
       2-1401 petition, and defendant appealed; however, the appellate record in this case does not
       reveal the outcome of defendant’s prior appeal.
¶ 50        While defendant’s appeal of the dismissal of his pro se habeas petition was still pending,
       defendant filed a motion for leave to file a successive pro se postconviction petition on
       December 5, 2011. In his successive petition, defendant argued that his appellate counsel was
       ineffective for not arguing on direct appeal that defendant’s trial counsel was ineffective for
       failing to request second-degree murder instructions. Defendant explained that he filed his
       original postconviction petition on April 23, 1999, while his petition for leave to appeal to the
       Illinois Supreme Court was still pending, in order to comply with the statute of limitations
       under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1(c) (West 2006)), which
       required petitions to be filed within the sooner of three years from conviction or six months
       after direct appeal. As a result, defendant argued that he had cause to file a successive
       postconviction petition since he had to file his first petition to comply with the Act and he did
       not discover his appellate counsel’s ineffectiveness until his petition for leave to appeal was
       denied later on June 2, 1999. The trial court denied defendant leave to file a successive petition,
       finding that, although defendant established cause to file his successive petition, he did not
       show prejudice since the evidence did not support a finding of second-degree murder.
                                                      - 10 -
¶ 51       Defendant now appeals the denial of his leave to file a successive pro se postconviction
       petition.

¶ 52                                           ANALYSIS
¶ 53        On appeal, defendant argues that the trial court improperly denied him leave to file a
       successive pro se postconviction petition since he established both cause and prejudice.
       Specifically, defendant argues that he demonstrated prejudice in his claim that his trial counsel
       was ineffective for failing to request a second-degree murder instruction, and that his appellate
       counsel ineffectively failed to raise this claim on direct appeal. In response, the State argues
       that defendant did not establish prejudice since the evidence did not support a finding of
       second-degree murder. However, we find that counsel’s decision not to request a
       second-degree murder instruction was appropriate as a matter of trial strategy, and we affirm
       defendant’s conviction and sentence as a result.
¶ 54        The Post-Conviction Hearing Act provides that “[o]nly one petition may be filed by a
       petitioner under this Article without leave of the court.” 725 ILCS 5/122-1(f) (West 2006). A
       petitioner may be granted leave to file another postconviction petition “only if a petitioner
       demonstrates cause for his or her failure to bring the claim in his or her initial post-conviction
       proceedings and prejudice results from that failure.” 725 ILCS 5/122-1(f) (West 2006). “To
       establish ‘cause,’ the defendant must show some objective factor external to the defense
       impeded his ability to raise the claim in the initial postconviction proceeding.” People v.
       Coleman, 2013 IL 113307, ¶ 82 (citing People v. Pitsonbarger, 205 Ill. 2d 444, 460 (2002)).
       “To establish ‘prejudice,’ the defendant must show the claimed constitutional error so infected
       his trial that the resulting conviction violated due process.” Coleman, 2013 IL 113307, ¶ 82
       (citing Pitsonbarger, 205 Ill. 2d at 464). Our review of the trial court’s dismissal of
       defendant’s postconviction petition is de novo. People v. Edwards, 197 Ill. 2d 239, 247 (2001).
       De novo consideration means we perform the same analysis that a trial judge would perform.
       Khan v. BDO Seidman, LLP, 408 Ill. App. 3d 564, 578 (2011).
¶ 55        As an initial matter, we address defendant’s argument that our review is subject to a more
       lenient consideration of cause and prejudice as set forth in People v. LaPointe, 365 Ill. App. 3d
       914, 924 (2006). In that case, the Second District held that a section 122-1(f) motion “need
       state only the gist of a meritorious claim of cause and prejudice.” LaPointe, 365 Ill. App. 3d at
       924. Although defendant points to Justice Burke’s dissent in People v. Evans, 2013 IL 113471,
       ¶¶ 23-24, in support of his argument that there is a “split of authority in the appellate court”
       concerning the applicable standard for a successive pro se postconviction petition, defendant
       has not cited another decision that has accepted LaPointe’s “gist” standard. Moreover, Justice
       Burke noted in Evans that LaPointe has been rejected in People v. Edwards, 2012 IL App (1st)
       091651, ¶¶ 21-22. Also, our supreme court recently rejected the argument that successive
       petitions should be considered under the same first-stage “gist” standard as an initial
       postconviction petition. People v. Edwards, 2012 IL 111711, ¶ 25. As such, we decline to
       follow the more lenient standard set forth in LaPointe.
¶ 56        Next, we consider defendant’s claim that he established prejudice sufficient to file a
       successive petition because his trial counsel was ineffective for not requesting a second-degree
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       murder instruction at trial, and that his appellate counsel was ineffective for failing to raise this
       claim on direct appeal. “ ‘The sixth and fourteenth amendment of the United States
       Constitution guarantee the fundamental right of a defendant in a criminal case to be effectively
       assisted by counsel.’ ” People v. Young, 347 Ill. App. 3d 909, 927 (2004) (quoting People v.
       Spann, 332 Ill. App. 3d 425, 429 (2002), citing U.S. Const., amends. VI, XIV). A claim of
       ineffective assistance of counsel is judged according to the two-prong, performance-prejudice
       test established in Strickland v. Washington, 466 U.S. 668 (1984). People v. Albanese, 104 Ill.
       2d 504, 525 (1984); People v. Boyd, 363 Ill. App. 3d 1027, 1034 (2006). “To obtain relief
       under Strickland, a defendant must prove [1] that defense counsel’s performance fell below an
       objective standard of reasonableness and [2] that this substandard performance caused
       prejudice by creating a reasonable probability that, but for counsel’s errors, the trial result
       would have been different.” Boyd, 363 Ill. App. 3d at 1034 (citing Strickland, 466 U.S. at
       687-88). A defendant must satisfy both prongs of the Strickland test to prevail on a claim of
       ineffective assistance of counsel. People v. Flores, 153 Ill. 2d 264, 283 (1992).
¶ 57       A person commits the offense of second-degree murder when he or she commits the
       offense of first-degree murder, and he or she unreasonably believes at the time of the killing
       that the circumstances are such that, if they existed, they would justify or exonerate the killing.
       720 ILCS 5/9-2(a)(2) (West 2010). The statute “takes into account that human beings, in a
       heated atmosphere, might reach conclusions which seem to them under the circumstances
       reasonable, but which in the cold light of rational analysis are obviously unreasonable. It is the
       genius of our law that, while not condoning unreasonable behavior, it nevertheless recognizes
       and takes into account that human beings may reach unreasonable beliefs, given the
       circumstances of the moment and the conditions under which beliefs are formulated and
       drawn.” People v. Vaughn, 26 Ill. App. 3d 247, 255 (1975). Where there is even slight
       evidence in the record that, if believed by the jury, would reduce the crime to a lesser-included
       offense, an instruction defining the lesser offense should be given. People v. Upton, 230 Ill.
       App. 3d 365, 374 (1992) (citing People v. Perry, 19 Ill. App. 3d 254, 257-58 (1974), People v.
       Stevenson, 196 Ill. App. 3d 225, 230 (1990), and People v. Willis, 170 Ill. App. 3d 638, 641
       (1988)).
¶ 58       Defendant argues that his counsel was ineffective since the evidence at trial was sufficient
       for a finding of second-degree murder. Siler testified at trial that, at the time of the shooting,
       defendant was her pimp and “protector”; defendant was her boyfriend of four years and she
       lived with him for two years; she was five months pregnant with defendant’s child; and she
       “loved” defendant and his nickname was tattooed on her wrist. On August 28, 1994, Kosinski
       fought with Siler and she called to defendant for help, and in response defendant ran to her
       defense and shot Kosinski to protect the life of his girlfriend and unborn child. Defendant
       argues that, since defendant unreasonably believed that he was justified in killing Kosinski, the
       evidence supports a conviction of second-degree murder, and his trial counsel was ineffective
       in failing to request an instruction.
¶ 59       However, even if we determine that there was sufficient evidence to support a
       second-degree murder instruction, defense counsel may have concluded that a self-defense
       theory would have been incompatible with the theory presented, since it would require
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       defendant to admit to the shootings. “ ‘[T]he decision of whether to submit an instruction on a
       lesser included offense is typically considered to be one of trial strategy that has no bearing on
       the competency of counsel because counsel could have reasonably believed that the instruction
       would have converted a likely acquittal into a likely conviction of the lesser crime.’ ” People v.
       White, 2011 IL App (1st) 092852, ¶ 70 (quoting People v. Cathey, 406 Ill. App. 3d 503, 512
       (2010), rev’d on other grounds, 2012 IL 111746). Here, defense counsel made the strategic
       decision to argue that the State failed to prove its case, and although defendant’s trial counsel’s
       argument was ultimately unsuccessful, that “does not mean counsel performed unreasonably
       and rendered ineffective assistance.” People v. Walton, 378 Ill. App. 3d 580, 589 (2007).
¶ 60        This case would be different if the defense counsel had conceded in his or her opening that
       defendant had committed the murder. “ ‘[W]here defense counsel argues a theory of defense
       but then fails to offer an instruction on that theory of defense, the failure cannot be called trial
       strategy and is evidence of ineffective assistance of counsel.’ ” White, 2011 IL App (1st)
       092852, ¶ 65 (quoting People v. Serrano, 286 Ill. App. 3d 485, 492 (1997)). When defense
       counsel concedes that defendant is the murderer, then the only issues left for the jury to resolve
       at trial are issues relating to affirmative defenses and second-degree murder. If counsel then
       fails to follow through and fails to request the appropriate instructions, then this may be
       considered ineffectiveness of counsel. People v. Lewis, 240 Ill. App. 3d 463, 469-70 (1992)
       (finding that where trial counsel told the jury in closing, “ ‘You got an easy job on Nimrod. If it
       was justified, you turn him loose, if it wasn’t, you convict him,’ ” trial counsel was ineffective
       for failing to submit an instruction on justification or voluntary manslaughter).
¶ 61        However, that is not the case here. In the case at bar, the defense counsel contested the fact
       that defendant was the murderer, from the opening remarks through cross-examination, and
       right through to the closing. Defendant testified in his own defense that he did not shoot
       Kosinski and that he was not even present during the commission of the offense. At that point,
       the decision whether to request a second-degree instruction, and thus give the jury a
       compromise point short of a full acquittal, became a part of the trial strategy.
¶ 62        Although defendant argues now that he unreasonably believed he was justified in killing
       Kosinski to protect his girlfriend and unborn child, at trial defendant testified that, in August
       1994, he no longer lived with Siler and she was no longer his girlfriend, and he denied that he
       was the father of Siler’s child. Since defendant himself denied that he was in a relationship
       with Siler at the time of the shooting, defendant’s testimony does not support his theory for
       second-degree murder and instead supports the conclusion that the decision not to request a
       second-degree murder instruction was a matter of trial strategy.
¶ 63        We observe that the sentencing range for first-degree murder is 20 to 60 years (730 ILCS
       5/5-4.5-20(a) (West 2012)), while the sentencing range for second-degree murder is 4 to 20
       (730 ILCS 5/5-4.5-30(a) (West 2012)). Although one’s exposure under first-degree murder is
       greater, it is possible to receive the same sentence whether one is convicted of first-or
       second-degree murder. The ultimate sentence is left to the trial court’s discretion, which
       counsel may address at sentencing by showing mitigating factors. People v. Haley, 2011 IL
       App (1st) 093585, ¶ 63. This overlap in possible sentences is part of the reason why the

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       decision whether to ask for a second-degree murder instruction is usually considered part of
       the defense’s trial strategy.
¶ 64       We conclude that defendant’s trial counsel did not render ineffective assistance because
       the “record here establishes that defense counsel thoroughly investigated and prepared
       defendant’s case and reasonably chose to argue defendant’s complete innocence in the
       shooting, rather than a justification for it.” People v. Jones, 234 Ill. App. 3d 1082, 1098 (1992).
       In turn, defendant’s appellate counsel was not ineffective in failing to raise the issue on direct
       appeal since there was no merit to defendant’s claim. As a result, the trial court did not err in
       denying defendant leave to file a successive postconviction petition since defendant did not
       establish prejudice, and we affirm defendant’s conviction and sentence. Since we find that
       defendant did not show prejudice, we need not consider whether he had cause to file his
       successive petition.

¶ 65                                      CONCLUSION
¶ 66      For the foregoing reasons, we affirm defendant’s conviction and sentence.

¶ 67      Affirmed.




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