People v. Douglas

ILLINOIS OFFICIAL REPORTS
Appellate Court

People v. Douglas, 2011 IL App (1st) 093188

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

District & No. First District, Sixth Division
Docket No. 1-09-3188

Filed November 23, 2011
Rehearing denied December 22, 2011
Held Defendant’s pro se postconviction petition was properly dismissed as
(Note: This syllabus “frivolous and patently without merit” where there was no factual support
constitutes no part of for his claim that he invoked his right to counsel right after his arrest and
the opinion of the court his counsel should have objected to the introduction of his custodial
but has been prepared statements on that basis and his claim that his counsel should have called
by the Reporter of a witness to contradict the testimony of the State’s key witnesses did not
Decisions for the constitute an arguable constitutional claim.
convenience of the
reader.)

Decision Under Appeal from the Circuit Court of Cook County, No. 04-CR-30561; the
Review Hon. Lawrence P. Fox, Judge, presiding.

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

Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg, Marie
Q. Czech, and Joan F. Frazier, Assistant State’s Attorneys, of counsel),
for the People.

Panel JUSTICE GARCIA delivered the judgment of the court, with opinion.
Presiding Justice R. Gordon and Justice Cahill concurred in the judgment
and opinion.

OPINION

¶1 This court affirmed defendant Ronchawn Douglas’s conviction of the first-degree murder
of Grover Anthony George, following a jury trial, and his sentence of 60 years. People v.
Douglas, No. 1-06-1394 (2008) (unpublished order under Supreme Court Rule 23). The
defendant now challenges the first-stage dismissal of his pro se postconviction petition. He
contends his petition stated the gist of a constitutional claim of ineffective assistance of
counsel based on two omissions. The defendant contends he invoked his right to counsel
soon after his arrest, which should have been the basis to exclude his two custodial
statements introduced at trial. The defendant faults his defense counsel for not objecting to
the introduction of his postarrest statements. The defendant also contends trial counsel
should have called a witness to contradict the testimony of one of the State’s key witnesses.
We find there is no factual support for his first claim and his second does not rise to an
arguable constitutional claim. We agree with the circuit court’s summary dismissal of the
defendant’s “frivolous and patently without merit” petition and affirm.

¶2 BACKGROUND
¶3 On February 1, 2006, the defendant was convicted of first-degree murder. Soon after the
defendant’s arrest, attorney Thomas Organ filed his appearance on behalf of the defendant.
Approximately eight months before trial, the court allowed attorney Organ to withdraw and
appointed new counsel for the defendant. At trial, the State presented several witnesses; the
defense presented one. The State presented David Butler and Thomas Brewer as
eyewitnesses.
¶4 Butler testified that he was with the defendant and the victim shortly before the shooting.
Butler knew the defendant well and was the victim’s cousin. Before the crime took place, the
three were initially gathered at the victim’s car. Butler left to enter his house. From the front

-2-
 picture window of his home, Butler saw the victim and the defendant standing on Thomas
Brewer’s porch across the street. Butler testified he saw the victim and the defendant leave
the porch and walk back toward the car. Butler then saw the defendant shoot the victim in
the back of the head. As Butler ran out of his house toward the victim, he saw the defendant
jump into a Ford van and leave the scene. Later that day, Butler identified the defendant from
a photo array. On the back of the defendant’s photograph, Butler wrote, “This is the killer
that shot my cousin.” Approximately nine months after the shooting, Butler identified the
defendant at an in-person lineup. During defense counsel’s cross-examination of Butler, he
acknowledged that he witnessed the shooting through a picture window and the shooting
occurred before he could “say anything.”
¶5 Thomas Brewer testified that the defendant and the victim came to his house. After they
left, Brewer heard a “pow” and looked through the blinds of his front door. He saw the
victim lying on the ground and the defendant standing over him. He then saw the defendant
shoot the victim. He called 911. Brewer admitted on direct examination that he did not
initially tell the police what he saw. He explained he did not want to get involved and he
believed in street justice to an extent. He also testified that his children were staying with the
defendant’s mother at the time, and he worried about their safety. After the defendant’s
arrest, Brewer came forward with information because he would “rather have people mad at
[him] over a truth than over a lie.”
¶6 On cross-examination, Brewer testified that he told police on the day of the shooting that
he heard the shots, but did not see the shots fired. He also admitted that the blinds he looked
through were “for the most part” closed. He admitted he told the defendant’s mother he did
not see the defendant shoot the victim.
¶7 The State’s next witness, Muriel Brewer, Thomas Brewer’s sister, testified she was at
home with her brother on the day of the shooting. She had known the defendant since he was
10 years old. She saw the defendant at her home with her brother and the victim shortly
before the shooting. After she heard noise from the street, she looked out and saw Butler
standing over the victim’s body. She tried to call 911, but her brother was already on the
phone.
¶8 The State called several of the investigating police officers. An arresting officer testified
that when the defendant was apprehended he claimed his name was Cortez Ford. The
defendant also claimed he did not know the victim and he had never been to the intersection
where the shooting took place.
¶9 Following the denial of the defendant’s motion for a directed verdict, the defense called
its only witness. Officer David Eaglin testified that he spoke to Butler soon after the crime
occurred. Butler initially told Officer Eaglin that he saw the defendant shoot the victim.
Later, Butler told Officer Eaglin that he did not actually see the defendant shoot the victim
but, rather, heard the shot and saw the defendant standing over the victim.
¶ 10 After deliberating a few hours, the jury sent a note indicating it was having difficulty
reaching a decision. No response to this note appears in the record. After more deliberation,

-3-
 the jury was sent home for the night. The following morning, after the jury resumed
deliberating, the jury sent another note indicating it was having difficulty once again reaching
a verdict. The parties agreed to have the judge return the note with directions that the jury
continue to deliberate. A few hours later, the jury reached its verdict of guilty.
¶ 11 In his direct appeal, the defendant alleged prosecutorial misconduct and ineffective
assistance of counsel. This court found no reversible error occurred at trial. People v.
Douglas, No. 1-06-1394 (2008) (unpublished order under Supreme Court Rule 23).
¶ 12 On October 5, 2009, the defendant filed a petition for postconviction relief alleging
ineffective assistance of counsel. The defendant alleged counsel committed professional error
by not discovering that the defendant had invoked his right to counsel immediately upon his
arrest, which would have provided a basis to object to the admission of the defendant’s use
of an alias at the time of his arrest and his statement that he had never been to the intersection
where the murder occurred. His petition also alleged that counsel was ineffective for not
calling Erin Wells, who would have contradicted Thomas Brewer’s testimony that his fear
for his children kept him from talking initially to the police and that Brewer said he
“presumed” the defendant had shot the victim because he saw the two together. The
defendant submitted affidavits in support of his petition. The defendant’s own affidavit stated
he was arrested while riding in a taxi, and he invoked his right to counsel immediately upon
encountering the police. The affidavit further stated the defendant told his initial counsel that
he had requested an attorney upon being arrested. The defendant conceded he never told this
to his trial counsel, but explained his trial counsel never asked him about his arrest or his
interviews with police investigators.
¶ 13 A friend of the defendant’s mother, Gaynette Hoskin, submitted an affidavit stating that
she was at the defendant’s mother’s house on the day the defendant was arrested. When the
telephone rang, Ms. Hoskin answered it. Ms. Hoskin stated the caller was a taxi driver, who
told her the defendant had been arrested and had told the police he wanted a lawyer. Ms.
Hoskin stated that she gave the phone to the defendant’s mother, Willia Douglas. Ms.
Douglas stated in her affidavit that the taxi driver told her that her son had been arrested and
that upon being arrested, the defendant told the police he wanted a lawyer.
¶ 14 Finally, the defendant submitted an affidavit from Erin Wells. In her affidavit, Ms. Wells
stated she is the mother of Thomas Brewer’s children. She stated she heard Brewer say that
he did not see the defendant shoot the victim, but he merely “presumed” the defendant had
done it because the defendant was with the victim shortly before the crime. Ms. Wells
averred that Brewer told her their children were in no danger from the defendant’s family.
¶ 15 The trial court dismissed the postconviction petition as frivolous and patently without
merit. The court noted that no affidavit was submitted from the defendant’s first attorney,
Thomas Organ, to corroborate the defendant’s claim that he informed this attorney that he
had invoked his right to counsel upon his arrest. The court also ruled the sworn statements
from Willia Douglas and Gaynette Hoskin regarding their telephone conversations with the
taxi driver constituted inadmissible hearsay. Regarding the defendant’s own affidavit, the
trial judge concluded it failed to explain why the issues raised in the petition were not raised

-4-
 on direct appeal. The trial judge ruled the defendant’s claims were barred by res judicata.
Even if not barred, the judge determined the defendant failed to make out a gist of a
constitutional claim because his petition lacked factual support and, based on the trial record,
trial counsel’s representation was competent. The defendant timely appeals from the
summary dismissal.

¶ 16 ANALYSIS
¶ 17 The defendant alleged that his constitutional rights were violated based on two omissions
by his trial counsel, each of which he contends states the gist of a constitutional claim under
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2008)). First, the
defendant alleged trial counsel was ineffective for not discovering that he had invoked his
right to counsel upon arrest, which would have made his custodial statements subject to
suppression. Second, counsel was ineffective for failing to call Erin Wells to impeach
Thomas Brewer’s testimony.
¶ 18 The Act provides for postconviction relief when a conviction arises from a substantial
violation of a constitutional right. 725 ILCS 5/122-1 (West 2008). A postconviction
proceeding is a collateral attack on the conviction, not an appeal of the underlying judgment.
People v. Coleman, 206 Ill. 2d 261, 277 (2002) (citing People v. Williams, 186 Ill. 2d 55, 62
(1999)). A defendant bears the burden of demonstrating he qualifies for relief under the Act.
725 ILCS 5/122-1(a)(1) (West 2008).
¶ 19 There are three stages to the postconviction process. 725 ILCS 5/122-2.1 et seq. (West
2008). This case concerns only the first stage. Dismissal is proper at the first stage when the
petition is “frivolous or is patently without merit.” 725 ILCS 5/122-2.1 (West 2008); People
v. Blair, 215 Ill. 2d 427, 437 (2006). A petition is frivolous or patently without merit when
it has “no arguable basis either in law or in fact.” People v. Hodges, 234 Ill. 2d 1, 16 (2009).
An example of a frivolous petition or one patently without merit is a petition that is “based
on an indisputably meritless legal theory or a fanciful factual allegation.” Id. Allegations
based on established facts should be “liberally construed and taken as true.” People v.
Boclair, 202 Ill. 2d 89, 99 (2002).
¶ 20 A pro se petition, while it need not be exhaustive or fully developed, must “clearly set
forth the respects in which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-
2 (West 2008). To warrant consideration past the first-stage inquiry, a petition “must set forth
some facts which can be corroborated and are objective in nature or contain some
explanation as to why those facts are absent.” People v. Delton, 227 Ill. 2d 247, 255 (2008).
An appellate court reviews a first-stage summary dismissal of a postconviction petition de
novo. Hodges, 234 Ill. 2d at 9. De novo review “means we ‘are free to substitute our own
judgment for that of the circuit court in order to formulate the legally correct answer.’ ”
People v. Davis, 403 Ill. App. 3d 461, 464 (2010) (quoting People v. Newbolds, 364 Ill. App.
3d 672, 675 (2006)).

-5-
¶ 21 Ineffectiveness Based on Custodial Statements
¶ 22 The defendant contends that trial counsel should have discovered that immediately upon
the defendant’s arrest, he invoked his right to counsel. Premised on this claim, the defendant
asserts the statements elicited by the police that the defendant gave an alias and he denied
ever having visited the intersection where the murder occurred were subject to suppression.
His first claim of ineffectiveness of counsel is expressly grounded on counsel’s failure to
object to the admission of these statements.
¶ 23 The State asserts the defendant forfeited this claim because the argument he makes on
appeal is not the argument he raised in his pro se petition. See People v. Coleman, 2011 IL
App (1st) 091005, ¶ 27 (“The argument urged before us that ‘[defendant’s] trial attorney ***
misinformed [defendant] that, if he were to testify, [defendant’s] prior juvenile adjudications
would be admissible for impeachment’ was not raised in the defendant’s postconviction
petition and cannot now be urged before us.”). If not barred, the State asserts there is no merit
to this claim.
¶ 24 In the exercise of our discretion, we elect to address the substance of the defendant’s
claim rather than determine whether forfeiture applies to the defendant’s first claim. See
People v. Harris, 206 Ill. 2d 1, 15 (2002) (“the doctrines of res judicata and waiver are
relaxed where the facts relating to the claim do not appear on the face of the original
appellate record”). We understand the defendant’s real claim to be that his trial counsel
rendered ineffective assistance when she failed to file a pretrial motion to suppress the
custodial statements based on the defendant’s claim that he invoked his right to counsel upon
his arrest. Before we address the sufficiency of this claim of ineffectiveness of counsel, we
review the purported factual basis underlying this claim.
¶ 25 Essential to the defendant’s constitutional claim is his assertion that trial counsel was at
fault for not discovering that he had invoked his right to counsel soon after he was arrested.
That is not an event that lends itself to discovery by trial counsel. See Delton, 227 Ill. 2d at
256 (“There is nothing in the transcripts that support [defendant’s] claim that he told his
attorney prior to trial that he had filed a complaint against the same two [arresting]
officers.”). Based on our review of the allegations of the defendant’s petition, with the trial
record clearly in mind, the allegations in the petition and the statements from the defendant,
Willia Douglas, and Gaynette Hoskin, in their respective affidavits, amount to no more than
fanciful factual allegations, which our supreme court has stated subject the postconviction
petition to summary dismissal. Hodges, 234 Ill. 2d at 16.
¶ 26 Even taking as true the defendant’s claim that he told his first attorney that he asked for
a lawyer upon his arrest, we find no objective facts that this information rendered trial
counsel’s representation at trial unreasonable. It fell to the defendant to tell his eventual trial
attorney the circumstances of his arrest. Delton, 227 Ill. 2d at 256. If anything, accepting as
true the defendant’s claim that he told his first attorney that he invoked his right to counsel
upon his arrest, it follows that nothing prevented the defendant from telling this to his trial
attorney as well. See Delton, 227 Ill. 2d at 256-57 (excerpts from trial transcript did not
support inference that the defendant told his attorney “about the complaining officers’ pattern

-6-
 of harassment against him”). It fell to the defendant to inform his trial attorney of the
circumstances of his arrest, which by his own admission he failed to do.
¶ 27 Of course, the record is barren of any factual support for the defendant’s claim that he
invoked his right to counsel upon his arrest. As the circuit court pointed out, the defendant
did not submit an affidavit from attorney Organ to corroborate that he made this claim to his
first attorney. Nor does the defendant offer a reason attorney Organ’s affidavit could not be
obtained given that his representation was never alleged to be substandard. Cf. People v.
Williams, 47 Ill. 2d 1, 4 (1970) (“the only affidavit that petitioner could possibly have
furnished, other than his own sworn statement, would have been that of his attorney[, whom
the defendant accused of malpractice]”). As there is nothing in the record to even suggest that
the defendant invoked his right to counsel following his arrest and so informed his first
attorney but not his trial attorney, we are not engaging in fact finding to suggest that the
ineffectiveness of counsel claim seems fanciful at best.
¶ 28 Nor do the affidavits of Willia Douglas and Gaynette Hoskin add a scintilla of factual
support to the defendant’s claim that he asked for a lawyer upon his arrest. Both Ms. Douglas
and Ms. Hoskin averred in their respective affidavits that they spoke to the driver of the taxi
in which the defendant was a passenger when he was arrested. The telephone call was
received at the defendant’s mother’s home. According to this telephone call, the taxi driver
told each that when the police arrested the defendant, he heard the defendant say he wanted
a lawyer. The circuit court was correct, the assertions of Ms. Douglas and Ms. Hoskin
amounted to nothing more than unreliable hearsay. We find the supposed telephone call from
a taxi driver qualifies as a “fanciful factual allegation.” Hodges, 234 Ill. 2d at 16.
¶ 29 Had such a telephone call been made and received at the defendant’s mother’s home,
there is no doubt that it would have been the topic of conversation between the defendant’s
mother and the defendant at some point during his custody. It is reasonable to conclude that
this expected conversation between the two would then have found its way to defense
counsel. We conclude it is a fanciful factual allegation that at the time the defendant was
arrested, he had the presence of mind to give the taxi driver his mother’s home number so
the driver could call and tell her what he observed and heard the defendant say to the police.
Of course, if the taxi driver was involved to the point that he already had the defendant’s
mother’s phone number as the defendant claims, and went to the defendant’s mother’s house
to collect the fare as the defendant explains, then we would expect an affidavit from the taxi
driver to support this allegation. There is no such affidavit supporting the defendant’s
postconviction petition. As we made clear above, no reasonable inference can be drawn from
the record that the defendant ever invoked his right to counsel upon his arrest. Nor do the
affidavits provide requisite facts, “which can be corroborated,” to warrant consideration of
the defendant’s pro se petition past the first stage. Delton, 227 Ill. 2d at 255.
¶ 30 Although we have uncovered no case that has held that, as a matter of law, the petition
under review asserted nothing more than a “fanciful factual allegation” as described by our
supreme court in Hodges, we conclude the underlying allegation of a telephone call from an
anonymous taxi driver in this case hits that mark. We reject the notion that a challenge to the

-7-
 effectiveness of trial counsel worthy of our consideration can be grounded on a telephone call
that strikes any reasonable person as so far out of the norm that it is fair to characterize the
allegations as “fanciful.”
¶ 31 The defendant’s first claim that he invoked his right to counsel at the time he was
arrested inside a taxi has no factual support in the record or the attached affidavits, which
renders it patently frivolous. Id. The circuit court properly found it subject to summary
dismissal. People v. Collins, 202 Ill. 2d 59, 67 (2002) (the purpose of requiring affidavits,
records, or other evidence to support a postconviction petition is to demonstrate that the
“allegations are capable of objective or independent corroboration”).
¶ 32 Even if the defendant is entitled to the characterization of the telephone call from the taxi
driver relating that the defendant invoked his right to counsel at the time of his arrest as a
“well-pled” fact (contrary to our determination), we find no reasonable likelihood of success
of a motion to suppress based on the defendant’s allegations. Absent such a showing, the
defendant is not entitled to proceed beyond the first stage on his petition claiming
ineffectiveness of counsel. Defense counsel is under no obligation to pursue a motion that
has no chance of success. See People v. Lundy, 334 Ill. App. 3d 819, 830 (2002) (no
ineffectiveness of counsel when no showing is made that had a motion to suppress been
litigated, it had a reasonable probability of success). Nor does the defendant claim a
likelihood of success of such a suppression motion in his brief.
¶ 33 We reject the defendant’s contention that support can be gleaned from the notes from the
jury that it had difficulty reaching a verdict. The notes do not support the defendant’s claims
that the evidence was close and had the evidence of the defendant’s statements been
excluded, reasonable doubt might have been present to change the verdict. To the extent the
jury had a difficult time in reaching its verdict, the difficulty was owed to defense counsel’s
effective representation, not counsel’s alleged omissions. Ultimately, the nature of the
evidence against the defendant, including the testimony of two eyewitnesses, convinced the
jury beyond a reasonable doubt of the defendant’s guilt. On direct review, the evidence left
us with “no concern that the defendant was wrongly convicted.” People v. Douglas, No. 1-
06-1394 (2008) (unpublished order under Supreme Court Rule 23). The evidence was not
close. The defendant’s contention to the contrary is foreclosed. See People v. Tripp, 407 Ill.
App. 3d 813, 821 (2011) (in the absence of different facts or a change of the law, the law of
the case doctrine bars relitigation of an issue).
¶ 34 While we agree with the defendant that admission of his statements portrayed him as a
liar, that is simply a reasonable inference drawn from the testimony at trial. See People v.
Tijerina, 381 Ill. App. 3d 1024, 1037 (2008) (“A prosecutor may suggest a defendant is a liar
if supported by the evidence or a reasonable inference from the evidence.”). The defendant’s
conviction, however, was not based on his being a liar; he was convicted because the jury
found the State’s case proved his guilt beyond a reasonable doubt when it presented two
eyewitnesses that tied the defendant directly with the murder, both of whom knew the
defendant for years. It was the incriminating evidence, rather than his lack of truthfulness at
the time of his arrest, that sealed the defendant’s fate.

-8-
¶ 35 It is also true that the statement attributed to the defendant that he denied any familiarity
with the crime scene could be seen by the jury as consciousness of his guilt. See People v.
Harris, 225 Ill. 2d 1, 23 (2007) (generally, both flight and use of an alias may be introduced
as consciousness of guilt). The critical issue before us, however, is whether there is an
arguable basis for a motion to suppress, with a reasonable probability of success, based on
the defendant’s 23rd-hour claim that he invoked his right to counsel soon after he was
arrested. We find no support for this claim in either the affidavits or the petition. Also, the
record contains the defendant’s signed Miranda waiver form, which stands to his claim that
he invoked his right to counsel at the time of his arrest. There is no factual support for the
defendant’s claim that though he met with his trial counsel only a few times, it fell to counsel
to ask the right questions to prompt the defendant to state that he invoked his right to counsel
at the time of his arrest. See Delton, 227 Ill. 2d at 256-57 (there existed no factual support
for the defendant’s allegation in the petition that both he and his wife spoke with defense
attorney “and told him about the complaining officers’ pattern of harassment against him”).
The trial judge properly dismissed this claim. It is not arguable that counsel’s performance
was objectively unreasonable based on a claim that counsel failed to “discover” information
that only the defendant could have provided. Delton, 227 Ill. 2d at 258; Hodges, 234 Ill. 2d
at 17.
¶ 36 Nor it is arguable that the defendant suffered prejudice based on his claim that reasonable
doubt might have remained had his custodial statements been suppressed. See People v.
Nunez, 325 Ill. App. 3d 35, 42 (2001) (“a defendant must show that a reasonable probability
exists both that the motion would have been granted and that the outcome of the trial would
have been different had the evidence been suppressed”). Even if the defendant’s custodial
statements were eliminated from our review, the direct evidence incriminating the defendant
does not change. As we stated on direct review, the incriminating evidence left us with “no
concern that the defendant was wrongly convicted.” People v. Douglas, No. 1-06-1394
(2008) (unpublished order under Supreme Court Rule 23). See People v. Mendoza, 402 Ill.
App. 3d 808, 820 (2010) (“There is little likelihood that the jury verdict would have differed
had [expert testimony been admitted] *** to support the defendant’s lack of intent claim.”).

¶ 37 Failure to Call Erin Wells
¶ 38 The defendant next faults trial counsel for not calling Erin Wells as a witness. He claims
this omission raises a gist of an ineffective assistance of counsel claim because “Erin Wells
*** would have undermined the testimony of the State eyewitness, Thomas Brewer, and
corroborated the defense theory that he did not see the shooting.” In its written opinion, the
circuit court noted that even if it found the defendant’s claim to have merit, it was barred
from consideration by res judicata. The defendant replies that the ineffectiveness claim
raised on direct appeal concerned trial counsel’s deficient representation “for not maximizing
Butler and Brewer’s conflicting accounts during closing arguments,” which he claims is
different from the issue he raises now. Perhaps, but we note that on direct appeal we found
trial counsel’s performance not to be deficient. People v. Douglas, No. 1-06-1394 (2008)

-9-
 (unpublished order under Supreme Court Rule 23).
¶ 39 Nevertheless, we elect to address the defendant’s claim on its merits. See Harris, 206 Ill.
2d at 15 (“the doctrines of res judicata and waiver are relaxed where the facts relating to the
claim do not appear on the face of the original appellate record”).
¶ 40 The defendant cites numerous cases to support his claim that Ms. Wells “would have
impeached the testimony of Thomas Brewer,” and therefore cannot be dismissed as
“indisputably meritless.” The issue before us is not whether Ms. Wells would have
impeached Brewer’s testimony; the issue before us is whether the defendant has presented
us with a constitutional claim of “arguable merit” that his right to effective assistance of
counsel was violated. We find each of the cases cited by the defendant to be inapposite to the
controlling issue before us.
¶ 41 In People v. Williams, 329 Ill. App. 3d 846, 853-56 (2002), two eyewitnesses gave
testimony that conflicted with their earlier statements to police. Defense counsel cross-
examined the witnesses, but they did not admit that their statements to the police were
inconsistent with their trial testimony. Id. at 854-55. Rather than calling the officers at trial
to prove up the impeachment, defense counsel agreed to a stipulation that the witnesses
spoke to police, but the stipulation mentioned nothing about the inconsistencies. Id. at 856.
The reviewing court found the cross-examination and the stipulation were inadequate
substitutes for the live testimony of the police officers. Id. at 856-57. Williams differs from
the facts before us. In Williams, the witnesses refused to admit they made inconsistent
statements and counsel failed to prove that they did through the testimony of officers. In this
case, Brewer admitted he initially said he did not see the defendant shoot the victim. The
officer called in the defendant’s case-in-chief testified that Brewer gave conflicting
statements. In Williams, the officers would have provided information not otherwise before
the jury, while Erin Wells would have reiterated some of what Brewer admitted on cross-
examination, which the testimony of the sole defense witness repeated, rendering Wells’
impeachment testimony cumulative at best. Further, the impeachment evidence in Williams
challenged the credibility of both eyewitnesses. In this case, the testimony of one eyewitness,
Butler, remained unchallenged, and his credible account of the shooting alone was sufficient
to support the jury’s verdict. See People v. Robertson, 198 Ill. App. 3d 98, 106-07 (1990)
(testimony of one credible eyewitness sufficient to support a conviction).
¶ 42 Nor does the quote from People v. Salgado, 263 Ill. App. 3d 238, 246-47 (1994), provide
any support: “ ‘[T]he complete failure to impeach the sole eyewitness when significant
impeachment is available is not trial strategy and, thus, may support an ineffective assistance
claim.’ ” (Emphasis added.) Brewer was not the sole eyewitness and defense counsel did not
completely fail to impeach him.
¶ 43 Finally, the defendant cites three cases for the proposition that “[r]eviewing courts find
ineffective assistance of counsel where trial counsel fails to impeach a witness based on their
[sic] prior inconsistent statements.” However, in all three cases, counsel made several errors
only one of which was failing to impeach a witness. It was the cumulative effect of the errors
that led the reviewing court to find counsel ineffective in each case. See People v. Vera, 277

-10-
 Ill. App. 3d 130, 139-41 (1995); People v. Skinner, 220 Ill. App. 3d 479, 486-87 (1991);
People v. Garza, 180 Ill. App. 3d 263, 267-70 (1989).
¶ 44 The defendant fails to provide us with a single case analogous to the instant case. Here
we have two eyewitnesses presented by the State. Each of the eyewitnesses was well
acquainted with the defendant so identification was not at issue. Each of the witnesses
directly implicated the defendant as the shooter. We understand the defendant to claim that
because the testimony of one of the eyewitnesses would have been challenged by the
testimony of Ms. Wells had she been called, it means he has presented a claim of arguable
merit of ineffective assistance of counsel. We do not agree. Nor did the defendant cite a
single case in which failure to impeach one eyewitness with prior inconsistent statements
supports an arguable claim of ineffective assistance of counsel when another eyewitness’s
testimony directly points to the defendant’s guilt.
¶ 45 Under Hodges, when a postconviction defendant asserts a claim of ineffective assistance
of counsel, a court of review asks whether “(i) it is arguable that counsel’s performance fell
below an objective standard of reasonableness and (ii) it is arguable that the defendant was
prejudiced.” Hodges, 234 Ill. 2d at 17. While it is likely neither prong can be met here, that
the defendant cannot prove prejudice is sufficient to reject his claim of ineffective assistance
of counsel. Id.
¶ 46 Thomas Brewer testified that he saw the defendant shoot the victim, and he did not come
forward at first because his children lived with the defendant’s mother and he feared for their
safety. Defense counsel cross-examined Thomas Brewer. She confronted him with the fact
that he told the defendant’s mother he did not see the defendant kill the victim. She also
pointed out that he allowed his children to stay with the defendant’s mother even after
Brewer gave his statement to the police incriminating the defendant. Thomas Brewer was
clearly impeached. We are presented with no case law authority that dictates full and
complete impeachment to vindicate the defendant’s right to effective assistance of counsel.
See People v. Chears, 389 Ill. App. 3d 1016, 1030 (2009) (postconviction claim of
ineffective assistance of counsel “that further impeachment of [the State’s key witness] based
on his additional criminal history would have affected [the] sentencing determination”
rejected). The defendant “is entitled to a fair trial, not a perfect one.” People v. Griffin, 178
Ill. 2d 65, 90-91 (1997). The defendant fails to explain how he was prejudiced by counsel’s
failure to do more to impeach Brewer, an argument not too different from the one we rejected
on direct appeal. People v. Douglas, 1-06-1394 (2008) (unpublished order under Supreme
Court Rule 23).
¶ 47 Nor are we persuaded that additional impeachment would have “corroborated the defense
theory,” as the defendant claims in his main brief. If, as the defendant asserts in his brief, his
“defense theory [was that Brewer] did not see the shooting,” we conclude that additional
impeachment would not have “corroborated” this theory at all. Additional impeachment
would not have provided any evidence of this theory. Impeachment is not evidence. People
v. Smith, 177 Ill. 2d 53, 83 (1997) (prior inconsistent statements are not substantive
evidence). It simply challenges the credibility of the witness. Ultimately, it falls to the trier

-11-
 of fact to determine whether that challenge was successful, something we cannot determine
on review. And, a court of review will not upset a verdict by a jury on the possibility, not
probability, that with a little bit more impeachment, the witness would have been found
totally incredible. In any event, the jury may well have given little weight to Thomas
Brewer’s testimony in favor of relying on the testimony of David Butler, whose testimony
the defendant completely ignores in his brief.
¶ 48 This is an appeal from the summary dismissal of the defendant’s postconviction petition.
It is not a second direct appeal. This inadequate impeachment claim does not rise to the level
of a constitutional violation of the defendant’s right to effective assistance of counsel. We
decline to analyze this claim as if it were a direct appeal, considering the circumstances of
this case of another eyewitness testifying to the deliberate murder by the defendant. See
People v. Coleman, 206 Ill. 2d 261, 277 (2002) (a postconviction proceeding is a collateral
attack on the conviction, not an appeal of the underlying judgment).
¶ 49 The defendant has failed to demonstrate that he was arguably prejudiced by counsel’s
failure to call an additional witness that would have provided further impeachment of one
of two eyewitnesses presented by the State. See Hodges, 234 Ill. 2d at 17; Chears, 389 Ill.
App. 3d at 1030.

¶ 50 CONCLUSION
¶ 51 The defendant’s postconviction petition alleging ineffective assistance of counsel was
properly dismissed at the first stage because the petition failed to assert a factual basis for the
defendant’s claim that his trial counsel should have discovered that the defendant invoked
his right to counsel at the time of his arrest when the defendant failed to so inform his trial
attorney. The affidavits of third persons fail to provide any factual support for this claim
when their averments relied on a telephone call from an anonymous taxi driver. Nor was trial
counsel arguably ineffective for failing to call a witness that could have provided additional
impeachment of one of two eyewitnesses on matters that, even if believed, would not have
undermined the State’s substantial evidence against the defendant. We affirm the judgment
of the circuit court of Cook County.

¶ 52 Affirmed.

-12-