People v. Hayes

2021 IL App (1st) 190881
No. 1-19-0881
Opinion filed December 6, 2021

First Division

______________________________________________________________________________

IN THE
APPELLATE COURT OF ILLINOIS
FIRST DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 12 CR 17957
SYLVESTER HAYES, )
) Honorable
Defendant-Appellant. ) Stanley J. Sacks,
) Judge, presiding.
)

PRESIDING JUSTICE HYMAN delivered the judgment of the court, with opinion.
Justices Pucinski and Walker concurred in the judgment and opinion.

OPINION

¶1 A jury found Sylvester Hayes guilty of first degree murder for the shooting death of

Frederick Giles. The trial court sentenced him to 55 years in prison, and we affirmed his conviction

and sentence on direct appeal. See People v. Hayes, 2017 IL App (1st) 153213-U. Central to

Hayes’s appeal was a challenge to the sufficiency of the evidence based on the alleged deficiencies

in the testimony of six eyewitnesses to Giles’s murder. Id. ¶¶ 37-48. Hayes cited “scientific

studies” related to the phenomenon of weapon focus and the lack of correlation between witness
No. 1-19-0881

certainty and accuracy. Id. ¶¶ 42, 44. We declined to consider these studies largely because “Hayes

did not attempt to call an expert witness at trial regarding the psychology of witness

identifications.” Id. ¶ 44 (citing People v. Lerma, 2016 IL 118496).

¶2 Picking up on the record deficiencies we highlighted, Hayes filed a postconviction petition,

arguing trial counsel’s ineffectiveness for failing to investigate or call an expert witness to opine

on the weaknesses in eyewitness testimony that would not be apparent from cross-examination.

He alleged counsel knew, at minimum, about the science related to weapon focus and did nothing

to investigate further. And counsel’s insufficient investigation prejudiced him because credibility

of the eyewitnesses was essential for the State to overcome Hayes’s alibi defense. The trial court

dismissed the petition in a written order, reasoning that trial counsel conducted “meaningful

adversarial testing” and so could not have performed deficiently. The trial court said nothing about

prejudice.

¶3 We reverse, finding Hayes’s claim of ineffective assistance arguable. Our decision on

direct appeal indicated expert testimony may have bolstered Hayes’s argument that the

eyewitnesses were either distracted by the presence of a weapon or that the jury should not have

been confident in the witnesses’ certitude. And, though all the witness identifications were

sufficient to uphold Hayes’s conviction under an exceedingly deferential standard of review, none

was pristine. Thus, we find it arguable that an expert on eyewitness identifications could have

undermined their credibility to the extent that a reasonable probability exists for a different

outcome.

¶4 We remand for further proceedings consistent with the Post-Conviction Hearing Act (725

ILCS 5/122-1 et seq. (West 2020)).

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¶5 Background

¶6 We extensively recounted the facts in our order on direct appeal, including detailed

testimony about the eyewitnesses’ direct and cross-examinations. Hayes, 2017 IL App (1st)

153213-U, ¶¶ 4-35. We briefly summarize those facts and recount additional detail essential to our

analysis.

¶7 Six eyewitnesses saw an offender shoot Giles. Each described brief periods of observation.

Rivianna Gilmore, who was walking with Giles, saw the offender for less than one minute and

looked directly at him for one or two seconds. Faydra Brookshire, who saw the offender from

inside her apartment at a distance of five feet, got a look at his profile for about five seconds. Kevin

Neely, who saw the offender from his apartment, got a direct look at his face for “less than a

second.” Jasmine Bell, who saw the offender from her fourth story window, viewed the offender

for about 30 seconds as he moved from shooting Giles to getting into a car. Edward Reed, in his

apartment, got a “full frontal” view of the offender’s face for “four or five seconds.” Finally,

Officer Irene Singleton saw the shooting from her car and, though she never saw the offender’s

face from the front, got a view of both sides of the offender’s face for three seconds on each side.

¶8 The descriptions of the offender also varied. Few agreed on the offender’s height. Gilmore

thought the offender was 5 feet, 6 inches or 5 feet, 7 inches; Reed and Singleton thought he was

between 5 feet, 8 inches and 5 feet, 10 inches; Bell believed he was 6 feet; and Neely could only

say he was shorter than 5 feet, 11 inches. Two witnesses could not agree about the presence of

facial hair—Neely said the offender had a little mustache, but Reed said he had no facial hair.

Gilmore thought the offender had a “square head,” but Singleton found distinctive the “round

shape” of the offender’s head.

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¶9 They agreed on a few points. Everyone who described the offender’s age thought he was

young, with Singleton guessing between 26 and 29 years. Everyone who described the offender’s

skin tone—Gilmore, Neely, and Reed—said he had a dark complexion. And everyone who

described the offender’s clothes—Gilmore, Brookshire, Neely, and Singleton—said he had on all

dark or all black clothes.

¶ 10 Four of the witnesses testified about seeing a gun. Brookshire and Singleton commented

that the offender was holding a gun. Gilmore described a black gun that one would need two hands

to hold. Neely described a gun with a “clip that was hanging out of it,” and Reed described a “semi-

automatic” gun with an extended clip.

¶ 11 All the witnesses identified Hayes in some format after the offense. Twenty-three days

after the shooting, Gilmore went to the police station and identified Hayes’s picture in a photo

lineup of 55 photographs. A day after Gilmore’s identification, Brookshire, Neely, Bell, Reed, and

Singleton went separately to the police station and viewed a live lineup. They all identified Hayes

as the offender with the gun.

¶ 12 No physical evidence connected Hayes to the shooting. Hayes testified that he was with

his friend, Marcus Gilbert, and his friend’s mother, Nicole Smallwood, at the time of the shooting.

The three testified they were at a party between 3 and 4 p.m. until 11 p.m. or midnight. The

shooting took place at about 7 p.m. Both Smallwood and Gilbert testified that Hayes remained

with them at the party and never left.

¶ 13 Based on this evidence, we affirmed Hayes’s conviction on direct appeal, finding the

discrepancies in identification were for the jury to resolve. Id. ¶ 47. We rejected Hayes’s claim

about weapon focus and that scientific studies show a weak correlation between certainty and

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accuracy. Id. ¶ 42 (weapon focus); id. ¶ 44 (witness certainty). Because Hayes had failed to call

an expert, we declined to consider the studies even though they “may call into question the

reliability of eyewitness identifications.” Id. ¶ 44.

¶ 14 Hayes then filed a postconviction petition arguing his trial counsel was ineffective for

failing to call an expert in eyewitness identifications. He alleged that the State’s case at trial was

based on witnesses who all had “fleeting opportunity[ies]” to see the offender during a “chaotic

and violent” encounter. Hayes also cited cases referring to the “scientific consensus” on weapons

focus along with two scientific studies. Hayes alleged “this knowledge was available” to trial

counsel and that counsel was ineffective for failing to “seek expert testimony.” The trial court

summarily dismissed Hayes’s petition. The court primarily relied on counsel’s trial strategy,

finding that counsel “vigorously cross examined the State’s eyewitnesses regarding their

identifications,” rendering Hayes’s claim affirmatively rebutted by the record.

¶ 15 Jurisdiction

¶ 16 Before we discuss the merits of Hayes’s argument, we must first assure ourselves that we

have appellate jurisdiction. People v. Smith, 228 Ill. 2d 95, 104 (2008). Two irregularities warrant

our attention. First, in the notice of appeal, the judgment being appealed and the date of the

judgment do not match. Second, the clerk file-stamped the notice of appeal more than 30 days after

the trial court entered judgment. We find neither defect precludes exercise of jurisdiction.

¶ 17 The notice of appeal, which Hayes drafted, describes the judgment he is appealing as “post-

conviction petition denial.” The trial court entered its order dismissing Hayes’s petition on March

8, 2019, but Hayes’s petition lists the date of the trial court’s judgment as March 15, 2019. We

construe notices of appeal liberally, and if the defect is one of form, not substance, failure to strictly

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comply with the requirements for a notice of appeal is not fatal to jurisdiction. Id. at 104-05. Here,

we can easily discover the source of the error and confirm that Hayes’s error is one of form. The

circuit clerk sent notice of the trial court’s judgment to Hayes, and the notice is dated March 15,

2019. It appears Hayes interpreted the date of the notice as the date of the trial court’s judgment.

But the notice references the March 8, 2019, order and incorporates it by reference. We see no way

the State could have been prejudiced where the only judgment referenced by the clerk’s notice is

the March 8 judgment dismissing Hayes’s postconviction petition. See id. (unfairness to prevailing

party is overarching concern).

¶ 18 Similarly, the filing date of the notice of appeal does not defeat jurisdiction. A pro se

incarcerated litigant timely files their notice of appeal if the notice is placed in the institutional

mail within 30 days of the judgment appealed. See People v. Shines, 2015 IL App (1st) 121070,

¶ 31. To rely on the “mailbox rule,” the litigant must include an affidavit complying with section

1-109 of the Code of Civil Procedure (735 ILCS 5/1-109 (West 2020)) and stating the time and

place of deposit in the mail and the complete address for delivery. Cf. Shines, 2015 IL App (1st)

121070, ¶ 33; see also Ill. S. Ct. R. 12(b)(6) (eff. July 1, 2017). Hayes’s notice of appeal includes

a certificate of service swearing under penalty of perjury that he placed his notice in the

institutional mail at Stateville Correctional Center on April 3, 2019. The certificate of service is

notarized and includes the address of the Cook County circuit clerk’s office.

¶ 19 Were we to have any doubt that Hayes timely mailed his notice of appeal, the envelope

dispels it. The envelope attached to the notice of appeal shows postal service processing on April

5, 2019. See People v. Maiden, 2013 IL App (2d) 120016, ¶¶ 11-13 (discussing split in authority

on whether postmark is competent evidence of proof of mailing).

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¶ 20 We have jurisdiction over Hayes’s appeal where he timely placed his notice of appeal in

the institutional mail and any defects on the notice were of form, not substance.

¶ 21 Analysis

¶ 22 Hayes argues the trial court erred in dismissing his postconviction petition at the first stage

because he made an arguable claim that trial counsel was ineffective for failing to investigate and

call an expert in eyewitness identifications. He claims expert evidence (i) would have been

“critical” to undermining the six eyewitnesses, (ii) would have called into question the

identification procedures used by police, and (iii) would have bolstered his alibi defense. The State

responds that refraining from calling an expert was a valid trial strategy given counsel’s

“question[ing] every identification witness, and thoroughly argu[ing] misidentification.”

Alternatively, the State contends that expert testimony would not have impacted the outcome

because the eyewitnesses “were consistent, credible, and corroborated each other.” We agree with

Hayes. The State’s arguments about trial strategy are better suited for later stages of postconviction

proceedings, and its prejudice analysis ignores both the low pleading bar for first stage

postconviction petitions and the imperfections in the eyewitness identifications.

¶ 23 The Post-Conviction Hearing Act provides defendants with a vehicle to allege violations

of their constitutional rights that were not, and could not have been, raised on direct review. People

v. Allen, 2015 IL 113135, ¶ 20. Proceedings under the Act occur in three stages. Id. ¶ 21. At the

first stage, the trial court considers the petition without input from the parties and may only dismiss

where it is “frivolous or patently without merit.” Id. ¶ 25. A frivolous petition relies on “ ‘an

indisputably meritless legal theory or a fanciful factual allegation.’ ” Id. (quoting People v.

Hodges, 234 Ill. 2d 1, 16 (2009)). Our supreme court has defined meritless legal theories as those

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“completely contradicted by the record” and fanciful factual allegations as based on “fantastic or

delusional” scenarios. (Internal quotation marks omitted.) Id. First-stage pleading standards are

“forgiving.” Id. ¶ 43. The Act intends that most petitions be tested through the later adversarial

stages. See id. ¶ 25 (there are “limited number of reasons for summary dismissal”); see also

Hodges, 234 Ill. 2d at 9 (at first stage “threshold for survival is low”).

¶ 24 When we review petitions dismissed at the first stage, we take the petitioner’s allegations

as true and construe them liberally. People v. Edwards, 197 Ill. 2d 239, 244 (2001). The petition

need only allege a “limited amount of detail” (id.), “capable of independent corroboration.”

(Internal quotation marks omitted.) Allen, 2015 IL 113135, ¶ 24. We review first-stage dismissal

de novo. Id. ¶ 19.

¶ 25 The familiar two prong analysis from Strickland v. Washington, 466 U.S. 668 (1984),

governs Hayes’s claim. See People v. Utley, 2019 IL App (1st) 152112, ¶ 36. To demonstrate

ineffective assistance, defendants must show (i) their counsel’s performance was deficient and

(ii) any deficient performance prejudiced them. Id. We find Hayes’s pleadings at least arguably

satisfied both prongs of the Strickland test.

¶ 26 Arguable Deficiency

¶ 27 Trial counsel performs deficiently when “actions or inactions constituted error(s) so serious

as to fall below an objective standard of reasonableness under prevailing professional norms.”

(Internal quotation marks omitted.) People v. Wilborn, 2011 IL App (1st) 092802, ¶ 76. Though

not controlling, our supreme court has acknowledged the American Bar Association Standards for

Criminal Justice as instructive to understanding the contours of trial counsel’s obligations. People

v. Palmer, 162 Ill. 2d 465, 477-78 (1994). Relevant here, the ABA urges defense counsel to

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investigate and consider “potential avenues of impeachment of prosecution witnesses” and

“determine whether the client’s interests would be served by engaging *** forensic *** or other

experts, or other professional witnesses.” ABA Standards for Criminal Justice § 4-4.1(c), (d) (4th

ed. 2015). We have similarly recognized that counsel may be ineffective for failing to “present

available evidence to support a defense.” People v. York, 312 Ill. App. 3d 434, 437 (2000).

¶ 28 Of course, as the State argues, decisions determining which witnesses to call and which

evidence to present ultimately belong with counsel, and we typically consider them matters of trial

strategy. Id. But Hayes’s burden to address a claim of trial strategy does not attach until the second

stage of postconviction proceedings. People v. Tate, 2012 IL 112214, ¶ 22 (“State’s strategy

argument [about counsel’s failure to call certain witnesses] is inappropriate for the first stage.”).

The State acknowledges Tate but argues our decision in People v. Viramontes, 2017 IL App (1st)

160984, limited Tate to its facts.

¶ 29 Even accepting the State’s gloss on Viramontes as limiting, we would distinguish it on two

grounds: (i) trial counsel had already elicited the expert testimony the defendant proposed to

introduce through cross-examination of the State’s expert at trial, and (ii) Hayes’s pleadings, taken

as true and liberally construed, show counsel failed to conduct a meaningful investigation into an

eyewitness identification expert at all.

¶ 30 The State, in Viramontes, presented expert testimony that the victim’s head injuries could

only have been caused by “severe force” and that the victim’s drug use did not contribute to her

death. Viramontes, 2016 IL App (1st) 160984, ¶ 22. The expert who performed the victim’s

autopsy similarly concluded that the force applied to the victim “had to be significant” and “a drug

overdose did not contribute to or cause” the bleeding in the victim’s brain that led to death. Id.

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¶ 24. In an affidavit to his postconviction petition, the defendant’s proposed expert witness averred

that “the testimony that it would take a ‘relatively significant force’ to inflict the [victim’s] injuries

*** was ‘not necessarily true.’ ” Id. ¶ 29. According to the defendant’s expert, the victim’s internal

brain bleeding could have been caused by “mild” injury, and cocaine use could have contributed

to the injury as well as the victim’s cancer diagnosis. Id. ¶¶ 29-30.

¶ 31 Our analysis of trial counsel’s deficiency focused on trial counsel’s cross-examination of

the State’s experts. Id. ¶ 52. Counsel elicited testimony, for example, that cocaine can cause the

kind of brain bleeding the victim suffered and her injuries, including some bruising, could have

been caused by her cancer. Id. Defendant’s counsel, then, pointed to evidence supporting the

argument that the victim “had not been severely beaten and that cocaine significantly contributed

to her death.” Id.

¶ 32 As we pointed out in Hayes’s direct appeal, no expert in eyewitness identification testified

to support the witnesses’ focus on the shooter’s weapon or that the jury should not be so confident

in the witnesses’ certainty. See Hayes, 2017 IL App (1st) 153213-U, ¶¶ 42, 44. Unlike the cross-

examination in Viramontes, which allowed defendant’s counsel to present an alternative argument

supported by evidence, nothing in the trial record here would have given trial counsel the ability

to argue weapon focus or the fallibility of eyewitness certainty.

¶ 33 Hayes’s allegations also distinguish his claim from the defendant’s claim in Viramontes.

After reciting several studies and cases describing the fallibility of eyewitness testimony, Hayes

alleged “this knowledge was available to counsels, trial and appellate” but “counsel [did not] seek

expert testimony.” We focus mainly on Hayes’s allegation that trial counsel did not even “seek”

an expert on eyewitness identifications. In Viramontes, there was nothing to “seek.” Counsel knew

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the State would call its own expert and ably cross-examined that expert to elicit the same

information counsel could have elicited through a defense expert. Viramontes, 2016 IL App (1st)

160984, ¶ 52. Hayes’s counsel had no comparable opportunity for meaningful adversarial testing

because neither party put forward experts.

¶ 34 The specificity in Hayes’s allegations also distinguish his ineffectiveness claim from that

raised on direct appeal in People v. Macklin, 2019 IL App (1st) 161165, on which the State also

relies. There, the court rejected reliance on Lerma because it had not been decided at the time of

the defendant’s trial, meaning counsel could not have been incompetent for “failing to correctly

predict that the law will change.” Id. ¶ 38. Hayes’s jury trial also took place before Lerma. Hayes

alleges, however, that counsel knew about the law and science surrounding expert identification

testimony, so the court’s concern in Macklin is not present. Because Macklin was bound by the

record and not the allegations in a postconviction petition, we doubt the majority’s analysis will

ever be much help when considering petitions challenging the failure to present eyewitness

experts. Had we any doubt, the State concedes in its brief that “ample authority” existed supporting

an argument for the admission of expert testimony about misidentification at the time of Hayes’s

trial.

¶ 35 We agree with the State that trial counsel need not introduce (or attempt to introduce)

expert testimony about eyewitness identification in every case involving eyewitnesses. See Lerma,

2016 IL 118496, ¶ 25 (finding abuse of discretion in excluding eyewitness expert “given the

specific facts presented”). Nothing here should be read to limit a trial court’s discretion to consider

the relevance of expert testimony given the facts in front of it. For example, expert testimony may

not be as valuable where the witness knows the suspect. See id ¶¶ 26-31. But we find it arguable

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that “this is the type of case for which expert eyewitness testimony is both relevant and

appropriate.” Id. ¶ 26. Like Lerma, we have no physical evidence linking Hayes to the offense,

and he made no admissions. Id. Also like Lerma, several factors could have contributed to the

unreliability of eyewitness testimony, including “the stress of the event itself, the use and presence

of a weapon *** [and] nighttime viewing.” Id.

¶ 36 To the extent Hayes needs additional information to establish the relevance of expert

eyewitness testimony more concretely, that raises a question for later postconviction review. The

State correctly states that the decision in Lerma contemplates the exercise of the trial court’s

discretion in admitting testimony from an expert in eyewitness identification. But in the

postconviction context, we cannot see how, on first-stage review, a trial court could say for sure

how the court’s discretion ought to have been exercised without further factual development as to

the expert’s proposed testimony. For our purposes, it is enough that the record does not

“completely contradict” Hayes’s claim that an expert’s testimony would have been relevant and

admissible. See Hodges, 234 Ill. 2d at 16 (defining first-stage standard).

¶ 37 Accepting his allegations as true, we agree with Hayes—counsel should have investigated

and sought admission of an expert witness on eyewitness identification given the facts. At this

early stage, we cannot characterize Hayes’s claims as either “indisputably meritless” or based on

“fanciful factual allegations.” The petition warrants second-stage proceedings under the Act.

¶ 38 Arguable Prejudice

¶ 39 We also agree that Hayes has sufficiently alleged prejudice from counsel’s at least arguably

deficient performance. To show prejudice, a defendant must demonstrate a reasonable probability

that the result of the trial would have been different had counsel performed adequately, meaning

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“a probability sufficient to undermine confidence in the outcome.” (Internal quotation marks

omitted.) People v. Gonzalez, 385 Ill. App. 3d 15, 21 (2008). This imposes a low burden. See

People v. Lucious, 2016 IL App (1st) 141127, ¶ 45 (“prejudice may be found even when the chance

that minimally competent counsel would have won an acquittal is significantly less than 50 percent

as long as a verdict of not guilty would be reasonable” (internal quotation marks omitted)). In the

context of first-stage postconviction proceedings, it need only be arguable that, had counsel

performed adequately, a significantly less than 50% chance exists of a different outcome. Hodges,

234 Ill. 2d at 16 (first-stage standard); Lucious, 2016 IL App (1st) 141127, ¶ 45 (probability of

prejudice).

¶ 40 We substantially, even if inadvertently, previewed our prejudice analysis in our order from

Hayes’s direct appeal. Hayes, 2017 IL App (1st) 153213-U. We acknowledged that science may

“call into question the reliability of eyewitness identifications” but relied on the five factors from

Neil v. Biggers, 409 U.S. 188 (1972), because “Hayes did not attempt to call an expert witness to

testify regarding the psychology of eyewitness identifications.” Hayes, 2017 IL App (1st) 153213-

U, ¶ 44. Hayes, now supported by his citations of cases and secondary authority, draws our

attention specifically to weapon focus and the weak correlation between witness certainty and

accuracy.

¶ 41 Hayes’s petition cites the seminal case, State v. Henderson, 27 A.3d 872 (N.J. 2011), in

support of his claim of prejudice. The court analyzed several studies and found that weapon focus

“can impair a witness’ ability to make a reliable identification.” Id. at 905. The court noted that

“weapon-absent” conditions led to “significantly more accurate descriptions of the perpetrator”

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and weapon focus can be exaggerated by an offense of short duration where the witness does not

have a chance to acclimate to the presence of weapon.

¶ 42 When the shooting happened, Brookshire observed the offender for five seconds but also

noticed a gun, meaning at least part of that five seconds was dedicated to perceiving the gun.

Similarly, Singleton also noticed a gun after getting a direct look at the offender for about six

seconds. Two other witnesses looked at the gun long enough to learn details about it. Neely, who

observed the offender for less than a second, described the gun as having “a clip that was hanging

out of it.” Reed, who only saw the offender’s face for four or five seconds, could tell the gun was

“semi-automatic.” This testimony at least arguably fits within Henderson’s description of weapon

focus: “when the interaction is brief, the presence of a visible weapon can affect the reliability of

an identification and the accuracy of a witness’s description of the perpetrator.” Id.

¶ 43 The State resists this conclusion, arguing that weapon focus does not apply because these

witnesses were never “confronted by a gun” or “in physical danger.” The State cites no authority,

legal or scientific, supporting this limit on the scope of weapon focus. But we have found cases,

contrary to the State’s claim “no such authority exists,” explaining that a witness does not have to

be directly threatened with a weapon for weapon focus to damage their reliability. See State v.

Martinez, 2021-NMSC-002, ¶ 51, 478 P.3d 880 (corollary to weapon focus is “witness distraction

resulting from the presence of any unusual or out-of-place object, whether dangerous or not”

(emphasis added)); Young v. State, 374 P.3d 395, 422-23 (Alaska 2016) (citing studies showing

that object need only be “incongruous—such as a stalk of celery” for witness to suffer same effect

as weapon focus). In short, the State cannot defeat Hayes’s claim of weapon focus, especially at

this early stage of proceedings, just because some witnesses were not directly in harm’s way.

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¶ 44 As we mentioned on direct appeal, none of the witnesses expressed uncertainty about their

identifications. Hayes, 2017 IL App (1st) 153213-U, ¶¶ 44, 46. But Henderson, on which Hayes

relied in his petition, calls that aspect of witness testimony into question too. Witness confidence

and accuracy may not be related. Henderson, 27 A.3d at 889. By the time witnesses testify, they

may be mistaken, all the while “exud[ing] supreme confidence.” Id. As a result, “there is almost

nothing more convincing [to a jury] than a live human being who takes the stand, points a finger

at the defendant, and says ‘That’s the one!’ ” (Emphasis omitted.) Id. (quoting Watkins v. Sowders,

449 U.S. 341, 352 (1981) (Brennan, J. dissenting)). Essentially, use of an expert presents the only

way to inform a jury of this weak correlation: “[j]urors *** tend to be unaware of the generally

weak relationship between confidence and accuracy, and are also unaware of how susceptible

witness certainty is to manipulation by suggestive procedures or confirming feedback.” State v.

Lawson, 291 P.3d 673, 705 (Or. 2012).

¶ 45 We turn then to the State’s primary objection to further postconviction proceedings—its

claim that the remaining eyewitness testimony adequately eliminates prejudice from the lack of

expert testimony. We disagree. Even though the testimony was sufficient to affirm Hayes’s

conviction, it suffered substantial weaknesses and competed with three alibi witnesses.

¶ 46 Because Hayes asserted an alibi defense and had witnesses of his own, we find helpful the

analogy our supreme court made between Strickland’s prejudice prong and the first prong of plain

error. See People v. White, 2011 IL 109689, ¶ 133. Both analyses are “evidence-dependent and

result-oriented.” Id. ¶ 134. We typically find an error prejudicial in the plain error context where

the jury heard conflicting narratives neither fanciful nor corroborated by physical evidence. People

v. Sebby, 2017 IL 119445, ¶¶ 61-63.

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¶ 47 The State repeats a refrain that the eyewitnesses corroborated each other. For the reasons

we set out in our summary of the trial testimony (supra ¶¶ 6-10), the State overplays its hand. Most

witnesses viewed the offender for seconds, at night, from variable distances, and at variable angles.

The only physical characteristic the witnesses described consistently happened to be general—the

offender’s complexion. And, for the reasons already outlined, an expert could explain significant

weapon focus and overconfident identifications. The court’s admonishment in Sebby is apt: we are

not concerned with whether the evidence is sufficient but with whether the sufficient evidence

insulates the jury’s verdict from counsel’s error. Cf. Sebby, 2017 IL 119445, ¶ 60. To that end, the

State ignores Hayes’s trial testimony, corroborated by two other witnesses, that he was with them

elsewhere and not at the scene of the shooting at the time it took place. Nothing is fanciful about

Hayes’s presence at a party for several hours on the night of the shooting. See id. ¶ 61.

¶ 48 At oral argument, the State repeatedly referred to Hayes’s burden as “demonstrate[ing]”

that counsel’s performance prejudiced him. In doing so, the State places too high a burden on

Hayes. As mentioned, allegations and not proof (or “demonstrations”) govern first-stage

proceedings. Allen, 2015 IL 113135, ¶ 25 (court to take allegations in petition as true). Only at

later stages does a petitioner demonstrate or make a “substantial showing of” a constitutional

violation. People v. Coleman, 206 Ill. 2d 261, 277 (2002).

¶ 49 The State, again at oral argument, emphasized the possibility that a counter-expert could

have been called to rebut Hayes’s counsel’s expert. Perhaps. See People v. Jaimes, 2021 IL App

(2d) 190241-U, ¶ 33. But considerations of both trial strategy (id.) and credibility are left to the

later stages.

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¶ 50 Taking the competing narratives, together with the weaknesses in the eyewitness testimony

and adding the value an identification expert, at least arguably, could have added to Hayes’s

defense, we find it at least arguable that Hayes was prejudiced by counsel’s at least arguably

deficient performance. Ultimately, it would be unfair to suggest on direct appeal that one of the

deficiencies in Hayes’s challenge to the sufficiency of the evidence against him was the lack of

expert testimony and then, on postconviction review, hold that he was not at least arguably

prejudiced by counsel’s failure to call the type of expert we identified. Accordingly, Hayes has

satisfied the low pleading bar justifying further proceedings.

¶ 51 On Remand

¶ 52 We exercise our authority under Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994)

to assign Hayes’s case to a different judge on remand. See People v. DiCorpo, 2020 IL App (1st)

172082, ¶ 55 (authority under Rule 366(a)(5) includes authority to reassign to different judge on

remand). No party has alleged judicial bias (see, e.g., Eychaner v. Gross, 202 Ill. 2d 228, 279-80

(2002)), and we do not find any. But the judge ruling on Hayes’s petition at the first stage appears

to have prejudged issues that should only arise at the second stage. In dismissing Hayes’s claim

that trial counsel was ineffective, the court relied almost exclusively on its deference to counsel’s

possible strategic reasons for not calling an expert in eyewitness identifications. As we have

stressed in rejecting the State’s similar argument, evaluating counsel’s strategy decisions requires

fact-finding at later stages of postconviction proceedings. Tate, 2012 IL 112214, ¶ 22; see People

v. Serrano, 2016 IL App (1st) 133493,¶ 45 (court’s misapplication of proper standard valid basis

for reassigning case on remand).

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¶ 53 In short, the trial court did not take Hayes’s allegations as true—that trial counsel knew of

the legal and scientific support for an eyewitness expert and did nothing. Thus, out of an abundance

of caution and to avoid even the appearance of prejudgment, we order the case reassigned to a

different judge for further proceedings consistent with the Act.

¶ 54 Reversed and remanded with directions.

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No. 1-19-0881

No. 1-19-0881

Cite as: People v. Hayes, 2021 IL App (1st) 190881

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 12-CR-
17957; the Hon. Stanley J. Sacks, Judge, presiding.

Attorneys James E. Chadd, Douglas R. Hoff, and Christopher Kopacz, of
for State Appellate Defender’s Office, of Chicago, for appellant.
Appellant:

Attorneys Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J.
for Spellberg, Matthew Connors, and Christine Cook, Assistant
Appellee: State’s Attorneys, of counsel), for the People.

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