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                               Appellate Court                            Date: 2019.08.12
                                                                          09:55:06 -05'00'



                  People v. Castillo, 2019 IL App (2d) 160873



Appellate Court    THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption            ALEXANDER G. CASTILLO, Defendant-Appellant.



District & No.     Second District
                   Docket No. 2-16-0873



Filed              January 24, 2019



Decision Under     Appeal from the Circuit Court of Winnebago County, No. 10-CF-
Review             2035; the Hon. Joseph G. McGraw, Judge, presiding.



Judgment           Affirmed.


Counsel on         James E. Chadd, Patricia Mysza, and Jonathan Pilsner, of State
Appeal             Appellate Defender’s Office, of Chicago, for appellant.

                   Joseph P. Bruscato, State’s Attorney, of Rockford (Patrick Delfino,
                   David J. Robinson, and Sally A. Swiss, of State’s Attorneys Appellate
                   Prosecutor’s Office, of counsel), for the People.



Panel              JUSTICE SCHOSTOK delivered the judgment of the court, with
                   opinion.
                   Presiding Justice Birkett and Justice Zenoff concurred in the judgment
                   and opinion.
                                              OPINION

¶1       Defendant, Alexander G. Castillo, appeals from the summary dismissal of his pro se
     petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2016))
     for relief from his convictions of two counts of first degree murder (720 ILCS 5/9-1(a)(1)
     (West 2010)) and a single count of home invasion (id. § 12-11(a)(5)). Defendant contends that
     his petition sufficiently stated a claim that he was deprived of his right to the effective
     assistance of counsel in his direct appeal. The claim was based on appellate counsel’s failure
     to argue that the trial court erred by restricting the cross-examination of a witness who testified
     that defendant admitted committing the murders. We affirm.

¶2                                        I. BACKGROUND
¶3       After a jury trial, defendant was found guilty of two counts each of first degree murder and
     home invasion. He was sentenced to concurrent natural-life prison terms for the first degree
     murder convictions and concurrent 51-year prison terms for the home invasion convictions.
     The trial court ordered the sentences for the home invasion convictions to be served
     consecutively to the sentences for first degree murder. We vacated one of the convictions of
     home invasion, but affirmed defendant’s other convictions. People v. Castillo, 2015 IL App
     (2d) 130515-U (Castillo I).
¶4       For the sake of efficiency, we will borrow, with appropriate modifications, Castillo I’s
     summary of the evidence at trial. In the early morning hours of May 10, 2010, Christa Clark
     and her husband, Michael Clark, were shot to death in their Rockford home. Christa’s seven-
     year-old son, A.B., and her infant daughter were in the house at the time of the shooting. After
     the shooting, A.B. went to the home of a neighbor, David Saunders. Saunders testified that his
     daughter woke him at about 2 a.m. and told him that someone was knocking on the door. When
     Saunders answered the door, A.B. told him that a friend of Christa’s had shot and killed Christa
     and Michael. Saunders contacted the police. Saunders’s daughter testified that, when she heard
     the knocking, she looked at her clock, which indicated that it was 2:13 a.m. A police officer
     arrived at the scene at 2:24 a.m.
¶5       One of the victims’ neighbors, Andrew Fry, testified that he heard a “spurt” of gunshots at
     around 2 a.m. on May 10, 2010. Fry then heard an engine noise that sounded like it could have
     come from a muscle car or a loud muffler. Another neighbor, Steve Peterson, testified that
     shortly after 2 a.m. on May 10, 2010, he heard a loud noise while watching television. Peterson
     described the noise as a “metal bang” that sounded like metal trash cans being knocked over.
     Peterson went outside to see what was happening. He did not see anything, so he went back
     inside. Then he heard two more loud metal banging noises. He went to the front door and saw
     an individual running toward a car that had its engine running. The individual got into the car
     and drove away quickly. Peterson did not know what type of car the individual was driving,
     but it looked like an Oldsmobile 88 or Cutlass from the 1980s.
¶6       Rockford police officer Melissa Sundly testified that she spoke to A.B. both at Saunders’s
     house and at SwedishAmerican Hospital. A.B. told Sundly that he saw the man who shot
     Christa. He was a friend of Christa’s and Michael’s, and A.B. knew him as “Blizz.” A.B. told
     Sundly that Blizz looked through Christa’s pockets for money after shooting her. A.B.
     described Blizz as a white male who was 18 years old or possibly in his twenties. Blizz lived
     in Wisconsin and drove a red car or a black truck.

                                                  -2-
¶7          Kevin Nordberg, a detective with the Rockford Police Department, testified that he spoke
       to A.B. at the hospital. A.B. stated that he had been awakened by gunshots. A.B. saw Blizz—
       whom he had seen on two prior occasions—point a gun at Christa and then pull the trigger.
       A.B. saw Blizz going through Christa’s pockets and saw money lying near Christa. After Blizz
       left the house, A.B. saw that Michael had also been shot. A.B. told Nordberg that he picked up
       a cell phone that he found and unsuccessfully tried to call his “dad,” Jack Buttita. A.B. did not
       recognize the cell phone; he told Nordberg that it must have belonged to Blizz. A.B. told
       Nordberg that Blizz lived in Janesville, Wisconsin, and drove a red car or a black truck. At
       about 9 a.m., Nordberg and Detective John Eissens showed a photo lineup to A.B. A.B. pointed
       to a photograph of defendant and said, “ ‘That’s Blizz.’ ” Nordberg testified that the police
       learned that Blizz was the nickname of an individual named Jeremy Haynes, who lived in
       Rockford. When shown a photograph of Haynes, A.B. said that Haynes was Blizz. A.B. said
       that Haynes was not the person he had seen at his house. Nordberg testified that A.B. had
       thought that defendant went by the name Blizz.
¶8          Buttita testified that he was not A.B.’s father but had previously dated Christa and had
       stayed in contact with her and with A.B. Buttita received four phone calls at around 2 a.m. on
       May 10, 2010. The calls were from a number with the Wisconsin area code 608. Buttita did
       not recognize the number, so he did not answer the calls. Shortly thereafter, Saunders called
       Buttita. Although Buttita did not recognize Saunders’s number, he answered the call. Saunders
       told Buttita that Christa and Michael had been killed and that A.B. and his sister had been taken
       to the hospital. At some point that morning, Buttita informed a detective with the Rockford
       Police Department about the four calls he had received from the number with the 608 area
       code. Buttita told the detective that he dialed the number and that his call was transferred to
       voicemail for someone named “Alex.” Buttita recalled that Christa had mentioned in passing
       that she had a friend named “Alex.” The State presented evidence that the number was assigned
       to a telephone registered to defendant.
¶9          Eissens testified that he received custody of a cell phone from another detective. Eissens
       showed the cell phone to A.B., who indicated that it was Michael’s. Eissens testified that there
       were three text messages sent from Michael’s phone to defendant’s phone on May 9, 2010.
       The first message stated, “ ‘I’m on my way to your house.’ ” The second message stated, “ ‘We
       don’t have any money to get home.’ ” The third message stated, “ ‘You don’t call my wife
       right now. I am going to punch you in the face, promise.’ ”
¶ 10        Defendant was arrested in Janesville on the afternoon of May 10, 2010, after leaving the
       home of Josie Cook, the mother of his daughter. Defendant left Cook’s home in a Pontiac
       Sunfire. A search of that vehicle resulted in the discovery of the cell phone that A.B. had used
       to call Buttita. A blue Oldsmobile with a piece of cardboard covering the rear license plate was
       parked in Cook’s driveway.
¶ 11        Two detectives with the Rockford Police Department interviewed defendant during the
       afternoon of his arrest. Defendant stated that he had owed Christa $3450 and had gone to the
       victims’ house at about 12:30 a.m. to repay her. He drove to their house in the blue Oldsmobile.
       Defendant indicated that Christa had been texting him all day and had been making various
       threats. Christa informed defendant that someone called “Spanky” had been giving her a hard
       time. Defendant told the detectives that he did not go to the victims’ house right away because
       he was afraid that Spanky would be there. When defendant arrived, he waited outside. Michael


                                                   -3-
       found defendant and told him that there was nothing to worry about. Defendant left the victims’
       home a little after 1 a.m.
¶ 12        Defendant initially denied that someone else could have used his phone. After the
       detectives informed defendant that A.B. had used defendant’s phone to call Buttita, defendant
       said that he did not know how A.B. was able to make the call. Later, defendant related that he
       had left his phone at the victims’ house. Defendant indicated that he returned to the house about
       15 minutes later to retrieve his phone. When he arrived, he observed that Christa and Michael
       had been shot. Defendant denied that he was responsible for the shooting, but he admitted that
       he told no one that Christa and Michael had been shot.
¶ 13        A.B. testified that defendant was at Michael and Christa’s wedding. A.B. also saw
       defendant on May 9, 2010, when A.B. and his sister traveled with Michael and Christa to
       defendant’s apartment complex in Janesville. A.B.’s account of the events of the early morning
       hours of May 10, 2010, was essentially consistent with the account he provided to police. A.B.
       testified that, when he spoke with the police, he thought that defendant’s nickname was Blizz.
       A.B. identified defendant in open court as the individual who had shot Christa.
¶ 14        David Reimann testified that he was serving a seven-year prison sentence for burglary. In
       December 2015, while the burglary charge was pending, he shared a cell in the Winnebago
       County jail with defendant. At one point, after defendant visited with his attorney, defendant
       spoke to Reimann about the circumstances of the crimes. Defendant told Reimann that he had
       feelings for Christa and that there was a “confrontation” via text messages. Defendant stated
       that he had gone to the victims’ house at approximately 12:15 or 12:30 a.m. on the day of the
       killings but did not get inside. Defendant returned to the victims’ home at about 2:15 or 2:30
       a.m. He then entered the dwelling and shot Michael and Christa. Reimann testified that he had
       not been promised any consideration in exchange for his testimony. He acknowledged that,
       shortly before his testimony, he had told the prosecutor that he had memory problems partly
       due to seizures and that he did not recall what defendant had told him. Reimann testified that
       his seizures did not affect his memory.
¶ 15        During cross-examination of Reimann, the trial court barred defendant’s attorney from
       inquiring about the sentencing range for burglary. Defendant’s attorney sought to show that
       Reimann faced a prison term of 4 to 15 years. 1 He argued that the seven-year sentence that
       Reimann received was lenient and that it “[went] to the bias, interest, and motive.”
¶ 16        The trial court imposed sentence on May 14, 2013. In his direct appeal, defendant argued
       that he did not receive the effective assistance of counsel at trial. He contended that trial
       counsel should have moved to suppress A.B.’s identification. Defendant also argued that the
       State failed to prove home invasion beyond a reasonable doubt and that the evidence did not
       support multiple convictions of home invasion.
¶ 17        Defendant filed his pro se postconviction petition on July 5, 2016, claiming inter alia that
       counsel on direct appeal should have argued that the trial court erred by barring cross-
       examination of Reimann about the sentencing range for the burglary charge that he was facing
       when he spoke with police about his conversation with defendant. The trial court summarily
       dismissed the petition on July 22, 2016. This appeal followed.


          1
           In this appeal, defendant contends that, based on Reimann’s criminal history, Reimann actually
       could have been sentenced as a Class X offender to a prison term of up to 30 years.

                                                   -4-
¶ 18                                             II. ANALYSIS
¶ 19        We begin our analysis with a brief summary of the general principles governing
       proceedings under the Act. In People v. Meeks, 2016 IL App (2d) 140509, ¶ 3, we observed as
       follows:
                     “Under the Act, a person imprisoned for a crime may mount a collateral attack on
                 his conviction and sentence based on violations of his constitutional rights. [Citation.]
                 Within 90 days after a petition for relief under the Act is filed and docketed, the trial
                 court must examine the petition and either summarily dismiss it or docket it for further
                 proceedings. [Citation.] If the trial court finds that the petition is ‘frivolous or is
                 patently without merit,’ the petition will be summarily dismissed. [Citation.] Summary
                 dismissal is proper if the petition ‘is based on an indisputably meritless legal theory or
                 a fanciful factual allegation.’ [Citation.]”
       We review de novo a summary dismissal. People v. Hodges, 234 Ill. 2d 1, 9 (2009).
¶ 20        In his petition, defendant claimed, inter alia, that he did not receive the effective assistance
       of counsel on appeal. As a matter of due process, a criminal defendant is entitled to the effective
       assistance of counsel on his or her first appeal as of right. Evitts v. Lucey, 469 U.S. 387, 396-
       97 (1985). Claims of ineffective assistance of counsel on appeal are evaluated under the
       standard set forth in Strickland v. Washington, 466 U.S. 668, 688, 694 (1984), which requires
       a showing that counsel’s performance “fell below an objective standard of reasonableness” and
       that the deficient performance was prejudicial in that “there is a reasonable probability that,
       but for counsel’s unprofessional errors, the result of the proceeding would have been different.”
¶ 21        When the State presents a witness who had criminal charges pending when he or she agreed
       to testify, the defendant is entitled to cross-examine the witness about his or her motivation to
       testify. 2 People v. Dopson, 2011 IL App (4th) 100014, ¶ 29. The defendant need not show that
       the witness received any consideration in exchange for testifying. Id. “[T]he defense is entitled
       to inquire into *** promises or expectations [of leniency] whether they are based on fact or are
       simply imaginary.” People v. Ramey, 152 Ill. 2d 41, 68 (1992) (citing People v. Triplett, 108
       Ill. 2d 463, 475-76 (1985)). When gauging a witness’s credibility, the trier of fact may consider
       the witness’s “fear of potential punishment and the hope of potential benefit that the witness
       believes he or she stands to gain from testifying for the State.” Dopson, 2011 IL App (4th)
       100014, ¶ 30. Thus, the defendant may explore the possibility that the witness’s testimony was
       designed “to garner favor with the same body responsible for prosecuting [the witness in his
       or her] pending cases.” Id. ¶ 31.
¶ 22        Defendant argues that, for the jurors to fully appreciate Reimann’s incentive to testify
       against defendant, they should have been made aware of the maximum penalty Reimann faced
       if convicted of the charge against him. In theory, the penalty Reimann faced had some bearing
       on his credibility. The more severe the penalty Reimann faced, the more likely that hope for
       leniency would overcome any reluctance to lie to police or to provide false testimony against
       defendant. However, when the jury is generally aware that a prosecution witness faces a severe
       penalty for criminal activity, the probative value of the specific sentencing range is marginal.
       See, e.g., United States v. Cropp, 127 F.3d 354, 359 (4th Cir. 1997).

           2
            For purposes of our analysis, we will assume that, when Reimann informed police that defendant
       had admitted killing Michael and Christa, it was understood that Reimann would testify about what he
       heard.

                                                     -5-
¶ 23        Here, the significance of the sentencing range that Reimann faced pales in comparison to
       the significance of the underlying fact, which was known to the jurors, that Reimann was facing
       a serious criminal charge when he spoke with police. Furthermore, the jurors were aware that,
       not long before testifying, Reimann claimed to have no memory of his conversation with
       defendant. Thus, regardless of what sentence he was facing when he spoke with police,
       Reimann’s credibility was already severely compromised. It is entirely possible that the jurors
       discounted Reimann’s testimony, based on the impeachment evidence they heard, but found
       defendant guilty based on the other evidence. On the other hand, if the jurors credited
       Reimann’s testimony despite what they already knew about his credibility, it seems highly
       unlikely that evidence about the sentencing range Reimann faced when he spoke with police
       would have made any difference. In either case, the guiding principle is that “[i]f ample
       impeachment evidence is allowed, limitations placed on a defendant’s cross-examination are
       harmless beyond a reasonable doubt.” People v. Kegley, 227 Ill. App. 3d 48, 55 (1992).
¶ 24        In any event, discrediting Reimann’s testimony was not the only hurdle (nor was it the
       highest one) that defendant had to clear to overcome the State’s evidence against him. A.B.
       identified defendant from a photo lineup and in open court as the person who shot Christa.
       A.B. recognized defendant as someone he had seen at Michael and Christa’s wedding, and he
       had been to defendant’s apartment complex in Janesville. In Castillo I, we held that the photo-
       lineup identification procedure was not suggestive. Castillo I, 2015 IL App (2d) 130515-U,
       ¶ 16. Before the photo lineup was shown to him, A.B. stated that the person who shot Christa
       was named Blizz. Although defendant was not Blizz, it is apparent that A.B. recognized
       defendant as the person who shot Christa, but that he was confused about defendant’s name.
       Moreover, defendant’s cell phone was at the victims’ home after they were killed. When he
       spoke with police, defendant was evasive about how A.B. had been able to use his phone.
       Defendant first said that he did not know. He then said that he had left the phone at the victims’
       home. Defendant also told police that he was unfazed by the sight of the victims’ bodies, but
       it strains credulity that defendant was innocent and yet did not report the victims’ deaths to
       anyone.
¶ 25        In addition, one of the victims’ neighbors heard gunfire and then heard a loud automobile
       engine. Another neighbor saw an individual run to, and drive off in, a vehicle that looked like
       an Oldsmobile. An Oldsmobile with cardboard covering the license plate was found at Cook’s
       home. It could be inferred that defendant was concerned about the vehicle being identified.
¶ 26        Defendant would have us believe that he left the victims’ home, that someone else killed
       them, and that A.B. mistakenly identified defendant as the perpetrator, even though A.B. would
       have had no reason to know that defendant had ever been in the home that morning. Unless
       defendant committed the crime, it would be a remarkable coincidence that A.B. identified him
       as the perpetrator and that he just happened to have been in the home shortly before the victims
       were killed.
¶ 27        Another remarkable coincidence—if defendant is innocent—is that he returned to retrieve
       his phone during the brief interval between when A.B. went to Saunders’s home and when the
       police arrived. Before going to Saunders’s home, A.B. attempted to call Buttita. The
       uncompleted calls were made between 2:05 and 2:08 a.m. According to Saunders’s daughter,
       it was 2:13 a.m. when she heard A.B. knocking on the door. The first officer arrived at the
       scene at 2:24 a.m. Thus, defendant would have us believe that, although he was not the killer,
       he returned to the scene no more than 11 to 16 minutes after A.B. went to Saunders’s home.

                                                   -6-
¶ 28       Under these circumstances, it is abundantly clear that the outcome of defendant’s direct
       appeal would have been no different if appellate counsel had challenged the trial court’s
       limitation of the cross-examination of Reimann. Appellate counsel’s choice not to raise the
       issue engendered no prejudice within the meaning of Strickland. Defendant’s corresponding
       postconviction claim was thus based on an indisputably meritless legal theory, and summary
       dismissal of the petition was proper.

¶ 29                                       III. CONCLUSION
¶ 30       For the foregoing reasons, the judgment of the circuit court of Winnebago County is
       affirmed. As part of our judgment, we grant the State’s request that defendant be assessed $50
       as costs for this appeal. 55 ILCS 5/4-2002(a) (West 2016); see also People v. Nicholls, 71 Ill.
       2d 166, 178 (1978).

¶ 31      Affirmed.




                                                  -7-
