People v. Reyes

2022 IL App (2d) 210143-U
No. 2-21-0143
Order filed October 3, 2022

NOTICE: This order was filed under Supreme Court Rule 23(b) and is not precedent
except in the limited circumstances allowed under Rule 23(e)(1).
______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court
OF ILLINOIS, ) of Kane County.
)
Plaintiff-Appellee, )
)
v. ) No. 07 CF 1821
)
MICHAEL J. REYES, ) Honorable
) Charles E. Peterson,
Defendant-Appellant. ) Judge, Presiding.
______________________________________________________________________________

JUSTICE SCHOSTOK delivered the judgment of the court.
Justices Hutchinson and Birkett concurred in the judgment.

ORDER

¶1 Held: The second-stage dismissal of the defendant’s postconviction petition is affirmed
on the defendant’s claims related to actual innocence and juror bias. The dismissal
of the defendant’s claim that defense counsel was ineffective in failing to call alibi
witnesses to testify at trial is reversed and remanded for an evidentiary hearing.

¶2 The defendant, Michael Reyes, appeals the order of the circuit court of Kane County

dismissing his postconviction petition under the Post-Conviction Hearing Act (Act) (720 ILCS

5/122-1 et seq. (West 2014)) without an evidentiary hearing. The defendant argues that he made

a substantial showing of actual innocence, ineffective assistance of counsel, and that he was denied
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his right to an impartial jury. We affirm in part, reverse in part, and remand for additional

proceedings.

¶3 I. BACKGROUND

¶4 The facts are set forth in detail in our decision on direct appeal. See People v. Reyes, 2015

IL App (2d) 130832-U. We set forth here only those facts necessary to place into context the

issues raised in the defendant’s post-conviction appeal. All additional facts necessary to resolve

the arguments raised on appeal will be discussed in conjunction with the particular alleged basis

for reversal.

¶5 On March 9, 1993, two brothers, Jesus and Francisco Montoya, were found murdered in a

van parked on a residential street in Aurora. The men were in the back of the van and had bullet

wounds to their heads. However, neither was shot between the eyes, or in his throat or neck. Four

.45 caliber shell cases were found inside the van.

¶6 In 1993, a coworker of the defendant, Dennis Sorbel, gave a statement to the police that

implicated the defendant in the murders. The defendant’s home was searched the next day and the

defendant voluntarily spoke to police. However, the defendant was not charged with the murders

of the Montoya brothers until 2007. A jury trial was held between January 28 and February 1,

2013. The following evidence was presented.

¶7 Jesus’s girlfriend testified that in 1993 the brothers were involved in selling cocaine for

their family, who obtained it from an uncle in Texas.

¶8 Sorbel testified that, in 1993, he and the defendant were both employees at the same

manufacturing plant in Aurora. On March 10, 1993, while eating lunch together at a Pizza Hut

near work, the defendant told Sorbel that he had murdered two brothers as part of a “ripoff”

involving $60,000 worth of drugs. The defendant said he used a .45 caliber gun and that he shot

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one of the brothers in the neck. The defendant took the brothers’ cocaine. The defendant told

Sorbel that his mother and girlfriend would provide an alibi. Sorbel told a friend in Colorado that

one of the victims had been shot in the forehead, between the eyes.

¶9 Former FBI agent Paul Bock testified that he worked on an investigation into drug

trafficking by members of the Latin Kings street gang in Aurora in late 2001. A large number of

gang members were arrested and charged, and many offered to cooperate with the government's

efforts to prosecute other gang members in exchange for cash, relocation, or favorable plea

agreements in their own cases. Among other efforts, the FBI worked with the county sheriff and

county prosecutor to reexamine unsolved murders, including the murders of the Montoya brothers.

¶ 10 The following people were involved with the FBI’s gang-related investigations and

received concessions in exchange for their testimony. Jose Oliva testified that in the spring of

1993, the defendant asked him for a gun and Oliva gave him a .45 caliber handgun. Juan Acevedo

testified that he had been a Latin King in Aurora from 1988 through about 2004. In October 2002,

the defendant told Acevedo that he and Abraham Estremera had murdered the Montoya brothers.

Carlos Olivares testified that the defendant told him that he had used a .45 caliber handgun to kill

the Montoya brothers and that he took nine ounces of cocaine from the brothers. Carlos Escalante

testified that the defendant told him that he had killed the Montoya brothers. The defendant said

that he arranged to buy cocaine from them, met with them inside a van, and shot them. Michael

Rodriguez testified that, while he was in jail in 2007, he shared a cell with the defendant. At some

point during that time, the defendant volunteered that he had killed the Montoya brothers. The

defendant said Estremera was with him. The defendant first shot one brother, who was in the

driver's seat; then he shot the other brother, who was a passenger. The defendant split the nine

ounces of cocaine they took from the brothers with Estremera.

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¶ 11 Craig Renzelmen testified that he shared a jail cell with the defendant in July 2008.

Renzelman said that the defendant spoke about the Montoya brothers’ shooting “mostly every

day.” The defendant recounted how he and someone named Abraham shot the brothers so they

could steal drugs from them. On cross-examination, Renzelman admitted that he was hoping his

testimony might persuade officials to help him with the charges for which he was incarcerated.

¶ 12 Finally, Gino Montoya testified that he was the victims’ younger brother. On the night in

question his brothers left the house with nine ounces of cocaine and were planning to meet the

defendant and some other individuals. He did not tell the police until September 2012 because his

mother was afraid that he would be a victim of retaliation. Gino conceded that his mother had

arranged for him to talk with police in 1993 and he did not tell the police what he knew at that

time.

¶ 13 Following trial, the jury found the defendant guilty of three counts of first degree murder

(720 ILCS 5/9–1(a)(1), (2) & (3) (West 1992)) as to each brother, for a total of six convictions.

Following the denial of his posttrial motion and the reconsideration of his sentence, the defendant

was sentenced to natural life in prison, to run concurrently to other sentences the defendant was

serving. On direct appeal, this court affirmed the defendant’s conviction and sentence. People v.

Reyes, 2015 IL App (2d) 130832-U.

¶ 14 On November 30, 2015, the defendant filed a postconviction petition. The defendant

alleged that during postconviction investigation, former Aurora police officer, Reynaldo

Rodriguez, provided an affidavit, dated November 25, 2015, which was attached to the petition.

The defendant also attached a March 13, 1993, police report written by Rodriguez. The defendant

argued that the affidavit and report established his actual innocence.

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¶ 15 Rodriguez’s 2015 affidavit stated that, in March 1993, he was employed as a patrol officer.

At about 2:30 a.m. on March 9, 1993, Rodriguez was assisting with a traffic stop when he drove

to the intersection of Spencer Street and Downer Place, in Aurora. As he turned onto Spencer

Street, he saw two men near a white and gold van. He could identify and describe the men because

he put his spotlight on them. One of the men, who he “got a good look at,” walked from the

passenger side to the front of the van. The man was about 5’8” tall and weighed approximately

150 pounds. He had black hair and was wearing a black cap, a black and white or black and silver

hooded jacket, black pants, and tennis shoes. Another man, who Rodriguez “did not get as good

of a look at,” walked from the passenger side to the rear of the van. That man was about 5’9” tall

and weighed approximately 180 pounds. As Rodriguez was driving, he saw the men run across

the street. He drove around the block and when he came back the men were gone and the van was

still parked on Spencer street. Rodriguez then left the area. He wrote two police reports about

what he saw that night near the van. Years later, Rodriguez was shown a photo array of suspects

involved in the Montoya murders. The defendant’s picture was in that photo array. Rodriguez did

not see either of the two men he saw on the night of the murders in the photo array. When the

defendant was preparing to go to trial, the defendant’s lawyers tried to speak with Rodriguez about

what he saw the night of the murders, but due to symptoms of unmedicated post-traumatic stress

disorder, Rodriguez was unable to speak about his observations. However, at the time of his

affidavit, Rodriguez attested he was taking medication and would be able to testify about his

observations near the van on the night of the murders.

¶ 16 In his March 1993 police report, Rodriguez stated that on March 9, 1993, at about 3:00 to

3:45 a.m., he observed a brown and white van on Spencer Street near Downer Place. The police

report described how Rodriguez observed two men near the van. The description was the same as

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set forth in his 2015 affidavit. He stated that he did not see anyone sitting in the front seats of the

van so he left the area. Rodriguez’s report indicated that he was in the area because he was

assisting another officer with a traffic stop nearby. At about 2:30 to 3 a.m., while he was assisting,

he heard a radio call of shots fired in the area where he later observed the two men near the van.

A squad was dispatched to where the shots were heard and an officer replied that it was just a

vehicle back firing.

¶ 17 Based on Rodriguez’s affidavit and police report, the defendant raised a claim of actual

innocence, arguing that since Rodriguez did not identify the defendant as one of the men he saw

near the van on the night of the murders, the defendant was innocent. The defendant acknowledged

that for a claim of actual innocence he needed to present evidence that was new, material,

noncumulative, and which would probably change the result on retrial. The defendant argued that

the evidence was new because Rodriguez’s mental condition prevented him from relaying the

information to defense counsel and the jury at the time of trial. It was material and noncumulative

because no one else saw the offenders on the night of the murders. Finally, it would likely change

the result on retrial because there was no direct evidence of the defendant’s guilt and the State’s

case at trial was largely based on testimony from informants who received concessions in exchange

for their cooperation with the State.

¶ 18 Although not referenced in his postconviction petition, the record also contains a

September 13, 2000, report that was written by Rodriguez after he viewed the photo arrays.

Rodriguez indicated that he chose two photos from the arrays. He stated that one of the photos,

showing a person with a mustache and goatee, was “similar” to one of the people he observed and

that the other photo was of a person with the same approximate age and build of the person he saw

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walking away from the front of the van. He further stated that he was not 100% sure either of the

people he identified in the photos were the men he observed walking away from the van.

¶ 19 As an alternative to his claim for actual innocence, the defendant argued that defense

counsel was ineffective in failing to call Rodriguez to testify at trial because Rodriguez would have

presented exculpatory testimony to the jury.

¶ 20 On December 17, 2018, the defendant filed a supplemental petition. The defendant argued

that defense counsel was ineffective in failing to interview and present alibi witnesses at the

defendant’s trial. The defendant also argued that he was deprived of his right to trial by an

impartial jury where it appeared that one of the jurors knew the victims’ family.

¶ 21 The defendant attached affidavits from the defendant’s mother, Teresa Martinez, and two

sisters, Danielle Reyes and Raquel Martinez. In those affidavits, Teresa and Danielle stated that,

at the time of the Montoya murders, they lived in the same house with the defendant. On the night

of the murders, the defendant was at home all day and evening and never left the house. They

stated that they repeatedly tried to give this information to defense counsel but defense counsel

never had time to speak with them. They stated that they were at the trial every day and could

have provided alibi testimony on behalf of the defendant.

¶ 22 The affidavits of Danielle and Raquel indicated that, on the first day of trial, they saw one

of the jurors wave to Noelia Morales when she entered the courtroom. Morales was the mother of

one of the victim’s children, and she was on the witness list. The affiants indicated that the juror

was excited to see Morales and waved. In response, Morales nodded and smiled. Raquel stated

that the juror was a white woman with long, highlighted, blond hair. Raquel indicated that she

informed defense counsel of the exchange. Defense counsel acknowledged the information but

they never spoke about it again. Danielle also attested that the same juror gestured to the victims’

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family in the courthouse hallway and that the family acknowledged the juror. Finally, Danielle

attested that, on the day that the defendant was found guilty, she saw the same juror hug Morales

in the courthouse parking lot.

¶ 23 On September 16, 2019, the State filed a motion to dismiss the defendant’s postconviction

petition. The State argued that defense counsel was not ineffective in failing to call Teresa and

Danielle as alibi witnesses because the decision of what witnesses to call is a matter of trial

strategy. The State also argued that the defendant had not made a substantial showing that he was

denied the right to an impartial jury. The State noted that, during voir dire, all the jurors stated

that they could be fair and impartial and would render a verdict solely based on the evidence

presented.

¶ 24 The State also argued that the defendant failed to establish a claim of actual innocence.

The State asserted that Rodriguez’s affidavit did not present any newly discovered evidence

because Rodriguez’s reports were in the possession of the defendant prior to trial. Further,

Rodriguez was listed as a possible witness and under subpoena to appear at trial. The State noted

that, at the start of trial, defense counsel filed a motion in limine to bar evidence that Rodriguez

was discharged from the police department because of a record of untruthfulness. The State

asserted that defense counsel made a strategic decision not to call Rodriguez to testify after the

trial court denied the motion in limine. The State also argued that Rodriguez’s affidavit was not

of such a conclusive character that it would have changed the result on retrial.

¶ 25 On February 17, 2021, following a hearing, the trial court entered a written ruling. The

trial court found that it was sound trial strategy not to call Teresa and Danielle as alibi witnesses

since they were family members and the affidavits did not specifically indicate that they laid eyes

on the defendant in the house on the night of the murders. The trial court also found that

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Rodriguez’s affidavit did not support a claim of actual innocence because it was not newly

discovered, material, noncumulative, and would not be conclusive on retrial. The trial court noted

that Rodriguez was subpoenaed to appear at trial and found that defense counsel made a strategic

decision not to call him to testify because his employment records indicated that he was terminated

from the police department for being untruthful. Finally, the trial court noted that, during voir

dire, the jurors were asked whether they could be fair and impartial and whether they knew the

victim, defendant, or any of the witnesses. The trial court found that there was no evidence that

the jurors lied or showed prejudice against the defendant. Based on the foregoing, the trial court

determined that the defendant failed to make a substantial showing of a constitutional violation

and thus granted the State’s motion to dismiss the defendant’s petition. This timely appeal

followed.

¶ 26 II. ANALYSIS

¶ 27 The defendant’s first contention on appeal is that the trial court erred in dismissing his

postconviction petition because he made a substantial showing of actual innocence. Specifically,

the defendant argues that Rodriguez’s affidavit established that Rodriguez saw the offenders near

the van where the murders occurred and that the defendant was not one of the people he saw.

¶ 28 The Act allows criminal petitioners to collaterally attack a prior conviction and sentence

where there was a substantial violation of his or her constitutional rights. People v. Gosier, 205

Ill. 2d 198, 203 (2001). In order for a petitioner to successfully challenge a conviction or sentence

pursuant to the statute, he or she must demonstrate that there was a substantial deprivation of

federal or state constitutional rights. People v. Morgan, 187 Ill. 2d 500, 528 (1999).

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¶ 29 The Act sets forth three stages of review. At the first stage, the trial court may summarily

dismiss a postconviction petition as frivolous and patently without merit. 725 ILCS 5/122-

2.1(a)(2) (West 2018). If the petition is not dismissed, it advances to the second stage.

¶ 30 At the second stage, the defendant is appointed counsel, who must consult with the

defendant, examine the record, and amend the petition as necessary to ensure that the defendant’s

contentions are adequately presented. People v. Gerow, 388 Ill. App. 3d 524, 526 (2009). The

State may then move to dismiss the petition. Id. In considering such a motion to dismiss, the trial

court must take as true “ ‘all well-pleaded facts that are not positively rebutted by the trial record.’ ”

Id. (quoting People v. Pendleton, 223 Ill. 2d 458, 473 (2006)). Applying this lens, the trial court

must determine whether the petition and the accompanying documentation make a “ ‘substantial

showing of a constitutional violation.’ ” People v. Domagala, 2013 IL 113688, ¶ 33 (quoting

People v. Edwards, 197 Ill. 2d 239, 246 (2001)). A substantial showing of a constitutional

violation “is a measure of the legal sufficiency of the petition’s well-pled allegations of a

constitutional violation, which if proven at an evidentiary hearing, would entitle petitioner to

relief.” (Emphasis in original.) Id. ¶ 35.

¶ 31 If the motion to dismiss is denied, the State must answer the petition and the proceeding

moves to the third stage for an evidentiary hearing at which the trial court acts as the fact finder

and determines whether the evidence introduced demonstrates that the defendant is entitled to

relief. 725 ILCS 5/122-5 (West 2018). The defendant argues that he met the substantial-showing

standard and his petition should have advanced to the third stage. We review the dismissal of a

postconviction petition de novo. People v. Coleman, 183 Ill. 2d 366, 385 (1998).

¶ 32 The conviction of an innocent person violates the due process clause of the Illinois

Constitution (Ill. Const.1970, art. I, § 2). People v. Morgan, 212 Ill. 2d 148, 154 (2004).

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Therefore, a person may assert in a postconviction proceeding a freestanding claim of actual

innocence based on newly discovered evidence. Id. To succeed on a claim of actual innocence,

the petitioner must present new, material, noncumulative evidence that is so conclusive it would

probably change the result on retrial. People v. Coleman, 2013 IL 113307, ¶ 96. New evidence

means the evidence was discovered after trial and could not have been discovered earlier through

the exercise of due diligence. Id. Material evidence is evidence that is relevant and probative of

the defendant’s innocence. Id. Noncumulative means the evidence adds to information that the

jury heard during trial. Id. “And conclusive means the evidence, when considered along with the

trial evidence, would probably lead to a different result.” Id.

¶ 33 The last of these elements—i.e., that the evidence is of such conclusive character that it

would probably change the result on retrial—is the most important element of an actual-innocence

claim. People v. Washington, 171 Ill. 2d 475, 489 (1996). “[T]he hallmark of actual innocence

means total vindication, or exoneration.” (Internal quotation marks omitted.) People v. Collier,

387 Ill. App. 3d 630, 636 (2008). In determining whether the evidence is so conclusive as to

probably change the result on retrial, the court must engage in a balancing test of the evidence

before it. Coleman, 2013 IL 113307, ¶ 97.

¶ 34 In the present case, the defendant failed to make a substantial showing of a claim of actual

innocence. First, the information provided by Rodriguez in his affidavit was not new. It was

substantially the same information contained in his March 1993 police report. The record shows

that in a July 25, 2012, motion for additional discovery, the defendant acknowledged receipt of

Rodriguez’s March 1993 police report and a later report, dated September 13, 2000, in which

Rodriguez described viewing photo lineups. Further, at a September 25, 2012, hearing on a motion

to dismiss the defendant’s indictment, defense counsel acknowledged the existence of Rodriguez’s

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March 1993 and September 2000 reports. The record also shows that Rodriguez was under

subpoena and was included on a witness list that was filed prior to trial.

¶ 35 The defendant argues that the evidence is newly discovered because its presentation was

impeded by an outside factor—Rodriguez’s mental condition, which prevented him from relaying

this evidence to defense counsel and a jury. In support of this contention, the defendant cites

People v Ortiz, 235 Ill. 2d 319 (2009). In Ortiz, the defendant was convicted of murdering

someone in a park. Id. at 322. Ten years after the offense, an eyewitness to the murder provided

an affidavit stating that the defendant was not involved in the shooting of the victim. Id. at 334.

In finding that the affidavit constituted newly discovered evidence, our supreme court noted the

affiant alleged he was in an area of the park “where he would not have been seen by [the] defendant

***.” Id. The Ortiz court further noted the affiant “essentially made himself unavailable as a

witness” by fleeing to Wisconsin shortly after the murder. Id. Based on these two factors—the

witness being (1) unknown to the defendant and (2) unavailable due to his flight to another

jurisdiction—our supreme court concluded the affidavit constituted newly discovered evidence.

Id.

¶ 36 The defendant’s reliance on Ortiz is unpersuasive. Unlike in Ortiz, where the defendant

had no way of knowing that the affiant witnessed the murder and the affiant fled to another

jurisdiction, the defendant in the present case was aware of Rodriguez’s police reports and his

observations of the two men near the van on the night of the murders. Further, Rodriguez was on

the witness list and subpoenaed for trial. Rodriguez’s affidavit does not state that he would have

refused to testify if called at trial. Moreover, even assuming that Rodriguez’s had a mental

condition that would have prevented him from testifying at trial, this does not mean his affidavit

is newly discovered evidence. People v. Jones, 399 Ill. App. 3d 341, 364 (2010) (“evidence is not

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newly discovered when it presents facts already known to a defendant at or prior to trial, though

the source of those facts may have been unknown, unavailable or uncooperative.”).

¶ 37 In addition to Rodriguez’s affidavit not constituting newly discovered evidence, the content

of the affidavit is not so conclusive that it would probably change the result on retrial. While

Rodriguez stated in his affidavit that he had a good look at one of the men near the van, he also

stated that he did not get a good look at the second man. The second man was described only as

being 5’ 9” and about 180 pounds. A June 20, 2007, police report contained in the record, and

marked as Defendant’s Exhibit 3, stated that the defendant was 5’9” and 170 pounds. It is possible,

therefore, that the defendant was one of the men Rodriguez saw near the van on the evening of the

murders. We acknowledge that, in his affidavit, Rodriguez stated that the defendant’s picture was

included in one of the photo arrays he viewed years later and that he did not identify the defendant

as one of the men he saw. However, in his September 2000 report, Rodriguez stated that he was

not sure whether either of the two men he chose from the photo arrays were the men he saw near

the van on the night of the murders. Accordingly, Rodriguez’s affidavit and reports are not

conclusive of the defendant’s guilt or innocence.

¶ 38 The defendant’s next contention on appeal is that defense counsel was ineffective in failing

to call Rodriguez to testify at trial as he could have provided exculpatory evidence. The defendant

argues that he was prejudiced because there was no direct evidence of his guilt and the case against

him was based almost entirely on the testimony of informants who received benefits in exchange

for their testimony.

¶ 39 Under Strickland v. Washington, 466 U.S. 668 (1984), a defendant arguing ineffective

assistance of counsel must show not only that his or her counsel’s performance was deficient but

also that the defendant suffered prejudice as a result. People v. Houston, 226 Ill. 2d 135, 143

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(2007). Specifically, under the two-prong Strickland test, “a defendant must show that (1) his

counsel’s performance *** fell below an objective standard of reasonableness, and (2) *** but for

counsel’s deficient performance, there is a reasonable probability that the result of the proceeding

would have been different.” Id. at 144. Because a defendant must satisfy both prongs of the

Strickland test, the failure to establish either is fatal to the claim. Strickland, 466 U.S. at 687.

¶ 40 To satisfy the deficient performance prong of Strickland, a defendant must show that his

counsel’s performance was so inadequate “that counsel was not functioning as the ‘counsel’

guaranteed by the sixth amendment” and, also, must overcome the strong presumption that any

challenged action or inaction may have been the product of sound trial strategy. People v. Evans,

186 Ill. 2d 83, 93 (1999). Decisions concerning which witnesses to call at trial and what evidence

to present on a defendant’s behalf are considered matters of trial strategy and are generally immune

from claims of ineffective assistance of counsel. People v. Wilborn, 2011 IL App (1st) 092802,

¶ 79. If a defendant can establish that counsel’s performance was deficient, the second prong

requires the defendant to show that he was prejudiced as a result. People v. Dupree, 2018 IL

122307, ¶ 44. “That is, a defendant must show that counsel’s deficiency was so serious that it

deprived him of a fair trial.” Id.

¶ 41 In the present case, the defendant has failed to make a substantial showing that defense

counsel was ineffective in failing to call Rodriguez to testify at trial. The record indicates that

Rodriguez was on the witness list and subpoenaed for trial. Prior to trial, defense counsel filed a

motion to bar any evidence related to Rodriguez’s personnel file or the reasons why he was

terminated from the police department. The trial court denied the motion, finding that, because

one of the reasons for Rodriguez’s termination had to do with truthfulness, it was open for cross-

examination. As such, if Rodriguez had been called to testify, he could have been impeached with

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evidence that he was terminated from the police department based on being untruthful.

Accordingly, the defendant has failed to overcome the strong presumption that defense counsel

strategically decided not to call Rodriguez to testify at trial because of the reason for his

termination from the police department. In addition, the defendant has failed to make a substantial

showing that he was prejudiced by the failure to call Rodriguez to testify. As explained above,

Rodriguez’s affidavit and police reports are not conclusive as to the defendant’s guilt or innocence.

As the defendant fails to meet both prongs of Strickland, the trial court properly dismissed his

claim of ineffective assistance of counsel without an evidentiary hearing.

¶ 42 The defendant’s third contention on appeal is that he made a substantial showing that

defense counsel was ineffective in failing to present alibi witnesses. Teresa and Danielle both

provided affidavits stating that, at the time of the offense, they lived with the defendant and that,

on the day of the murders, he was at home all day and night. They also stated that they attempted

to speak with defense counsel about the alibi, but defense counsel ignored their requests.

¶ 43 As noted above, decisions concerning which witnesses to call at trial and what evidence to

present are matters of trial strategy that are generally immune from claims of ineffective assistance

of counsel. Wilborn, 2011 IL App (1st) 092802, ¶ 79. Nonetheless, defense counsel has a

professional duty to conduct reasonable investigations or to make a reasonable decision that makes

particular investigations unnecessary. Domagala, 2013 IL 113688, ¶ 38. The failure to interview

witnesses may be indicative of deficient representation when the witnesses are known to trial

counsel and their testimony may be exonerating or support an otherwise uncorroborated defense.

Coleman, 183 Ill. 2d at 398; People v. Tate, 305 Ill. App. 3d 607, 612 (1999).

¶ 44 The defendant relies on Tate in arguing that he is entitled to an evidentiary hearing on his

claim. In Tate, following a jury trial, the defendant was convicted of murder. Id. at 608. The

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defendant filed a postconviction petition alleging counsel was ineffective in failing to call certain

alibi witnesses whose affidavits indicated that the defendant could not have been present at the

scene of the crime. Id. at 610. The trial court granted the State’s motion to dismiss. Id. On appeal,

the reviewing court reversed and remanded for an evidentiary hearing. The reviewing court noted

that the defense strategy at trial was to draw attention to the weaknesses in the State’s evidence

that identified the defendant as the offender. Id. at 612. The reviewing court concluded that since

the affidavits supported the defense theory that the defendant was misidentified, there was no

apparent strategic reason not to call the alibi witnesses to testify. Id. The reviewing court

acknowledged that defense counsel may have determined that the witnesses would not be credible

or would not be persuasive due to their close relationship with the defendant, but that it could not

say as a matter of law that that was defense counsel’s reasoning. Id.

¶ 45 We find the defendant’s reliance on Tate to be persuasive. In the present case, the

defendant has also made a substantial showing that defense counsel was ineffective in failing to

present the alibi witnesses. The defense theory at trial was that the defendant was innocent and

the State’s witnesses were not credible as the majority of them were cooperating with the State to

secure benefits for themselves, such as monetary payments and reduced sentences for their own

crimes. As in Tate, the affidavits of Teresa and Danielle, taken as true at this stage in the

proceedings (Gerow, 388 Ill. App. 3d at 526), would have supported the defense as an alibi would

have further tested the credibility of the State’s witnesses. The record simply does not reflect that

defense counsel made a strategic decision not to call the alibi witnesses, as there was no apparent

reason not to do so. Further, in the absence of any physical evidence linking defendant to the

crime scene and if the alibi witnesses were deemed credible, we cannot say that there is no

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reasonable probability that the result of the trial would have been different. Accordingly, the

defendant is entitled to an evidentiary hearing on this claim. Tate, 305 Ill. App. 3d at 612.

¶ 46 In so ruling, we note that the State argues that the affidavits are unhelpful because the

affiants did not specifically state that they saw the defendant in the home on the night of the

murders. We find this argument unpersuasive because the natural inference from the affidavits is

that Teresa and Danielle had a basis to believe that the defendant was at home that evening. The

basis for their belief, such as whether they saw him or heard him at home on the night in question,

is a matter that can be assessed at an evidentiary hearing. The State also asserts that defense

counsel indicated an intent to assert the defense of alibi and that the failure to do so must have

therefore been a strategic decision. The State cites to “Respondent’s Exhibit 6” as showing defense

counsel’s alleged intent to assert an alibi defense. However, that exhibit could not be found in the

record.

¶ 47 We also note that the State relies on People v. Williams, 2017 IL App (1st) 152021, in

arguing that the dismissal of this claim should be affirmed. In Williams, the defendant was

convicted of murder based mostly on the testimony of witnesses who received concessions in

exchange for their testimony. Id. ¶¶ 6-8. In a postconviction petition, the defendant alleged that

trial counsel was ineffective in failing to interview and call alibi witnesses. Id. ¶ 9. The trial court

granted the State’s motion to dismiss the petition. Id. On appeal, the reviewing court reversed the

second-stage dismissal of the claim and remanded for an evidentiary hearing. Id. ¶ 10 (citing

People v. Williams, 2013 IL App (1st) 110304-U, ¶¶ 17, 20). At the evidentiary hearing, the alibi

witnesses provided testimony regarding the alleged alibi. Id. ¶¶ 11-13. Following the testimony,

the trial court granted the State’s motion for a directed finding. The trial court found that the alibi

witnesses were not credible, that trial counsel made a strategic decision not to present the alibi

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testimony, and that there was no reasonable probability that the alibi testimony would have

changed the result at trial. Id. ¶ 15. On appeal, the defendant argued that the trial court erred in

denying him postconviction relief. Id. ¶ 35. The reviewing court affirmed the trial court’s

determination, holding that the trial court’s determination was not against the manifest weight of

the evidence. Id. ¶¶ 39-42.

¶ 48 We find the State’s reliance on Williams misplaced as it actually supports our determination

in the present case. In this case, as in Williams, the evidence against the defendant was largely

based on testimony of witnesses who received concessions in exchange for their testimony.

Though the Williams court affirmed the dismissal of the defendant’s postconviction claim, it was

only after an evidentiary hearing was held where the trial court could assess the credibility of the

alibi testimony, whether trial counsel made a strategic decision not to call the alibi witnesses, and

whether the lack of alibi testimony was prejudicial to the defendant. In this case, as in Williams,

the defendant is entitled to an evidentiary hearing.

¶ 49 The defendant’s final contention on appeal is that he made a substantial showing that he

was denied his right to an impartial trial where it appeared that one juror knew the victim’s family

or at least one member of the victim’s family. In relation to that argument, the defendant also

argues that the trial court erred in denying his request for postconviction discovery concerning the

identity of the jurors.

¶ 50 The federal and Illinois constitutions guarantee the right to a fair trial by an impartial jury.

U.S. Const., amends. VI, XIV; Ill. Const. 1970, art. 1, §§ 8, 13. Trial before a biased jury would

deprive a defendant of a substantial right and constitute an error requiring reversal. People v.

Runge, 234 Ill. 2d 68, 102 (2009). A jury is biased when “it reasonably appears that at least some

of the jurors have been influenced or prejudiced so that they cannot be fair and impartial.” People

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v. Thomas, 296 Ill. App. 3d 489, 500 (1998). The challenging party bears the burden of showing

that a juror has a “disqualifying state of mind,” and mere suspicion of partiality is not sufficient.

Id.

¶ 51 In the present case, the defendant has failed to make a substantial showing that he was

denied his right to a fair and impartial jury. The allegation in his postconviction petition is that

one of the jurors was an acquaintance of the victim’s family. The affidavits in support of this

assertion indicate that, on the first day testimony was taken at trial, one of the jurors waved at

Morales, that the same juror gestured to the victims’ family in the courthouse hallway, and that the

juror hugged Morales in the parking lot after the conclusion of trial. To make a substantial showing

of a constitutional violation, there must be allegations that, if proven at an evidentiary hearing,

would entitle the petitioner to relief. Domagala, 2013 IL 113688, ¶ 35. Here, even if these

allegations were proven to be true, they do not establish that the juror at issue was not impartial.

During voir dire, the names of all the witnesses were read, including the name of Morales, and

none of the jurors indicated that they knew her. In addition, all the jurors acknowledged that the

defendant was innocent until proven guilty, that they would decide the case solely based on the

facts heard in the courtroom, and that they could be fair and impartial to both sides. The fact that

a juror may have recognized Morales upon seeing her does not establish juror bias. See, e.g.,

People v. Porter, 111 Ill. 2d 386, 404 (1986) (fact that juror and victim’s mother attended the same

church was insufficient to show juror bias); People v. Strawbridge, 404 Ill. App. 3d 460, 467

(2010) (fact that juror had recognized the victim when the victim testified was not sufficient to

establish that juror could not be impartial).

¶ 52 In arguing that he is entitled to an evidentiary hearing, the defendant relies on People v.

Hobley, 182 Ill. 2d 404 (1998). In Hobley, the defendant was convicted of murder and arson and

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sentenced to death. Id. at 410. The defendant filed a postconviction petition alleging, in part, that

he was deprived of his right to a fair and impartial jury. Id. at 457. The trial court granted the

State’s motion to dismiss his postconviction petition. Id. at 427. Our supreme court reversed and

held that the allegations in the petition warranted an evidentiary hearing. Id. at 459. The

allegations, supported by affidavit, were that when several jurors were dining in a hotel restaurant

where they were sequestered, several men made comments to the effect that “you know he’s

guilty,” and “give him the death penalty.” One man yelled out “Hang the motherf***er.” The

affidavits indicated that the comments made some jurors upset, scared, and shaken. Id. In making

its determination, our supreme court noted that communications between jurors and third parties

are presumptively prejudicial. Id. at 462.

¶ 53 The defendant’s reliance on Hobley is unpersuasive. An evidentiary hearing was warranted

in Hobley where there were allegations of presumptively prejudicial jury communications and the

supporting affidavits indicated that the communications had affected the jury. In this case, unlike

in Hobley, there was no allegation of direct communication between the juror and any third party.

There only allegations of friendly gestures and a hug following a murder trial. These allegations

are not sufficient to establish that there was any type of relationship that would support a

conclusion of juror bias. See People v. Williams, 209 Ill. 2d 227, 241-42 (2004) (mere assertion

of improper juror conversation did not warrant evidentiary hearing when there were no allegations

establishing that the improper conversation was prejudicial).

¶ 54 In a related argument, the defendant contends that the trial court erred in denying his motion

for postconviction discovery. Neither criminal nor civil discovery rules apply to proceedings

under the Act. People v. Fair, 193 Ill. 2d 256, 264 (2000). Nonetheless, a trial court has inherent

discretionary authority to order discovery in postconviction proceedings. People v. Johnson, 205

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Ill. 2d 381, 408 (2002). Trial courts should exercise this authority with caution and should only

allow discovery if the moving party demonstrates “good cause” for a discovery request. Fair, 193

Ill. 2d at 264-65. In determining whether a petition has made such a showing, the trial court should

consider, among other relevant circumstances, the issues presented in the petition, the scope of the

discovery requested, the length of time between the conviction and the post-conviction proceeding,

the burden that would be imposed on the State and on any witnesses, and the availability of the

evidence through other sources. Johnson, 205 Ill. 2d at 408. “A trial court does not abuse its

discretion in denying a discovery request which ranges beyond the limited scope of a post-

conviction proceeding and amounts to a ‘fishing expedition.’” Id. We review a trial court’s denial

of a postconviction request for discovery for an abuse of discretion. Fair, 193 Ill. 2d at 265.

¶ 55 In the present case, we cannot say that the trial court abused its discretion in denying the

defendant’s request for postconviction discovery. The trial court considered relevant factors. The

trial court considered that, because all the jurors denied knowing Morales during voir dire, the

assertion of any relationship between Morales and a juror was rebutted by the record and any

discovery would be repetitive. The trial court also considered that the jurors were only referred to

by number during trial as this was a gang-related murder case and the jurors had a reasonable

expectation of anonymity. Discovery could cause jurors to feel afraid or uncomfortable. The trial

court also found that Danielle’s assertion that she saw a juror wave to Morales in the courtroom,

on the first day of trial where testimony was heard, was rebutted by the fact that Danielle and

Morales were both on the potential witness list and would not have been in the courtroom at the

same time. In light of the foregoing, we cannot say the trial court abused its discretion in denying

the motion.

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¶ 56 The defendant argues that he satisfied the good cause standard because the wave, gestures

and embrace between the juror and Morales establish a possible relationship between the juror and

the victims’ family. However, it also can be viewed as establishing nothing more than friendly or

caring gestures from one woman to another. During voir dire, all the jurors indicated that they

would be fair and impartial and that they would decide the case based on the facts presented. The

alleged gestures at issue do not establish that the juror was not impartial. Williams, 209 Ill. 2d at

241-42.

¶ 57 III. CONCLUSION

¶ 58 For the reasons stated, we affirm the dismissal of the defendant’s postconviction claims

related to actual innocence and juror bias. We reverse the dismissal of the defendant’s claim that

defense counsel was ineffective in failing to call alibi witnesses at trial and we remand for an

evidentiary hearing on that claim.

¶ 59 Affirmed in part and reversed in part; cause remanded.

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