2022 IL App (1st) 192571-U

FIFTH DIVISION

Order filed: April 29, 2022

No. 1-19-2571 

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the 

limited circumstances allowed under Rule 23(e)(1).

______________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee, 

 v. 

MARQUETTE ANDERSON, 

Defendant-Appellant. 

)

) 

) 

) 

) 

) 

) 

) 

) 

Appeal from the

Circuit Court of

Cook County. 

No. 05 CR 28760 

Honorable, 

James Dennis J. Porter, 

Judge, presiding. 

JUSTICE HOFFMAN delivered the judgment of the court.

Presiding Justice Delort and Justice Connors concurred in the judgment. 

ORDER

¶ 1 Held: We affirmed the third-stage denial of the defendant’s postconviction petition where 

trial counsel’s decision not to call several minors as alibi witnesses was a matter of 

trial strategy but reversed the second-stage dismissal of the defendant’s claim that 

trial counsel should have used evidence of a plot to falsely identify him to crossexamine the State’s identification witnesses and remand that claim to the circuit 

court with directions to advance the claim for a third-stage evidentiary hearing. 

¶ 2 The defendant, Marquette Anderson, appeals from orders of the circuit court addressed to

claims that he raised in his postconviction petition under the Post-Conviction Hearing Act (Act) 

(725 ILCS 5/122-1 et seq. (West 2020)), arguing that the circuit court erred: (1) in denying his 
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claim of ineffective assistance of counsel following a third-stage postconviction evidentiary 

hearing predicated on his trial attorney’s failure to interview and call as witnesses three minor 

children in support of his alibi defense; and (2) in dismissing, at the second stage of the 

postconviction proceeding, his claim of ineffective assistance of counsel alleging that his trial 

attorney failed to call or question three witnesses in support of his theory of defense that one of 

the State’s witnesses knowingly orchestrated his false identification as the individual who shot 

both victims. For the reasons that follow, we affirm in part, reverse in part, and remand the matter

to the circuit court for further proceedings. 

¶ 3 The following statement of facts is taken from the common law record and report of 

proceedings of the defendant’s jury trial and postconviction proceedings. 

¶ 4 The defendant was charged in a 14-count indictment with offenses including first degree 

murder, attempt first degree murder, aggravated battery with a firearm, and aggravated discharge 

of a firearm, arising from a November 25, 2005, shooting incident which resulted in the death of 

Michael Davis and Jackie Stiffend’s injury. The matter proceeded to a jury trial in May 2007.

¶ 5 At trial, Mary Davis testified that her nephew, Michael Davis (Michael), was alive on 

November 25, 2005, and left her house in the early evening. When she next saw Michael, he was 

dead at a hospital where he had been taken after being shot. 

¶ 6 Jackie Stiffend testified that he was in a fist fight with an individual he knew as “Ant” on 

November 22, 2005. Stiffend stated that he won the fight, but that as Ant was leaving, he said 

“you can’t beat my bullets.” He later learned that Ant’s real name was Anthony Anderson. 

According to Stiffend, he was alone at the time of the fight, but Anderson was with several of his

cousins. Stiffend testified that he knew Anderson because the mother of Anderson’s child, 
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Makindra Watson1 (Makindra), lived on the same block as him. Stiffend also stated that he had 

seen Anderson with a man he knew as “Tone” who he identified in court as the defendant.

¶ 7 Stiffend further testified that, on November 25, 2005, he was riding in a car in Chicago

with his cousin, Michael, and his friends, Jarmal Clemons, Michael Thomas, and Marquis Betties.

They needed gas and drove to a gas station where they saw Anderson. Stiffend added that, when 

they saw Anderson, they drove off, and Anderson followed them for some distance. 

¶ 8 According to Stiffend, he and his companions had driven several blocks when they saw a 

parked car occupied by a man known as “Tuchie.” Tuchie began to follow them in his car. Stiffend 

testified that he and his companions drove until they encountered a car blocking the street at the 

intersection of Carroll Avenue and Sacramento Boulevard. He stated that he saw the defendant get 

out of that car. According to Stiffend, Michael was driving the vehicle in which he was riding, 

and when he saw the defendant, he told Michael to “put it in reverse” but the car was stuck in 

neutral. Stiffend stated that he saw the defendant approach the driver’s side of the car with a gun

and began shooting. The defendant then went around the back of the car, stood near the passenger 

side, and attempted to fire more shots. Stiffend testified that he heard the gun click “like it was out 

of bullets or jammed.” The defendant then got back into the car that was blocking the street, and

the car drove away. 

¶ 9 Stiffend testified that he was able to put the car in which he was riding in drive and take

hold of the steering wheel. The car struck a pole and crashed into a wall. When Stiffend got out of 

the car, he noticed that his finger was broken and that he had been shot in the leg. According to 

Stiffend, Michael had been shot and was taken by ambulance to a hospital; he was taken by 

1

 Makindra’s name also appears as Mikendra in the report of proceedings.
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ambulance to a different hospital. While at the hospital, he was shown a series of photos by police 

detectives, and he identified the defendant as the shooter. Stiffend stated that he also identified the 

defendant in a lineup after he was released from the hospital,

¶ 10 On cross-examination, Stiffend was asked whether he knew that the defendant, Anderson, 

and Tuchie were cousins before the police told him so. Stiffend denied knowing that the individuals 

were cousins. Stiffend also denied seeing Anderson, the defendant or Tuchie at Makindra’s house. 

He denied hanging around Makindra, trying to “go with” her, or bothering her. Stiffend denied 

that his fight with Anderson was over Makindra. 

¶ 11 Stiffend also denied that he was with Clemons and Betties when the police picked him up 

and took him to a police station to view a lineup. Stiffend admitted that he, Clemons, and Betties 

were alone in a room at the police station for 30 minutes before the lineup but denied that they 

spoke to each other during that time; answering “yes” when asked if they remained absolutely 

silent for 30 minutes.

¶ 12 On redirect examination, Stiffend testified that, once before the shooting, he had seen the 

defendant on the block where he lived. 

¶ 13 Clemons testified that, on November 25, 2005, he was riding in a car with Stiffend, 

Michael, Thomas and Betties when they approached the intersection of Carroll and Sacramento. 

Clemons stated that a man, whom he identified in court as the defendant, came “out of the blue” 

and began shooting at the car in which he and his companions were riding. On November 26, 

2005, Clemons identified the defendant as the shooter in a lineup. 

¶ 14 On cross-examination, Clemons admitted being in a room at the police station with Betties, 

Thomas, and Stiffend before viewing the lineup. He denied discussing whom they would identify 
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in the lineup. On redirect examination, Clemons testified that he identified the defendant in the 

lineup as the shooter because he recognized his face and not because Stiffend, Thomas or Betties 

told him to do so. 

¶ 15 Betties testified that, on November 25, 2005, he was riding in a car with Stiffend, Clemons, 

Michael, and Thomas. Betties’s description of the events of the shooting was consistent with the 

testimony of Clemons and Stiffend. However, Betties denied seeing the shooter in the courtroom. 

Betties admitted that he had previously given a statement to a police detective in which he named 

the defendant as the shooter and identified his photograph. Betties also admitted that he testified 

before a grand jury and named the defendant as the shooter.

¶ 16 The State presented forensic evidence indicating that the shell casings recovered at the 

scene were all fired from the same handgun, but that there was no forensic evidence tying those 

shell casings to the defendant.

¶ 17 The State rested. 

¶ 18 Tamika Rainey appeared as a witness on behalf of the defendant. She testified that, in 

November 2005, she and the defendant were engaged and living in a house on Hamilton Avenue 

in Chicago with her four children. According to Rainey, the defendant got out of bed at 10 a.m. on 

November 25, 2005, and left the house at approximately 10:15 a.m. He returned at 11 a.m. and 

never left the house again that day.

¶ 19 On cross-examination, Rainey testified that there was nothing “physically wrong” that 

prevented the defendant from leaving the house. However, she later clarified that she thought 

physically wrong meant a broken bone and stated that the defendant was sick that day from food 

he had eaten the day before at Thanksgiving dinner.
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¶ 20 The parties presented closing arguments, and the trial court instructed the jury. Following 

their deliberations, the jury found the defendant guilty of the first degree murder of Michael, and

the aggravated battery with a firearm of Stiffend. Following a sentencing hearing, the circuit court 

sentenced the defendant to consecutive terms of 75 years’ imprisonment and 10 years’ 

imprisonment, respectively. 

¶ 21 On direct appeal, the defendant argued that the trial court improperly admitted evidence of 

prior contact with the police and that his sentence was excessive. This court affirmed the 

defendant’s conviction and sentence but corrected the fines and fees order. See People v. Anderson, 

No. 1-07-2237 (2009) (unpublished order under Supreme Court Rule 23).

¶ 22 On April 23, 2010, the defendant, acting pro se, filed a postconviction petition under the 

Act. After the circuit court appointed counsel to assist the defendant, he filed several pro se 

supplements to his petition and his appointed counsel also filed a supplemental petition. The 

defendant raised two claims that are relevant to this appeal.

¶ 23 First, the defendant argued that trial counsel was ineffective because he failed to investigate 

and call Rainey’s minor children as alibi witnesses, asserting that they would have corroborated 

Rainey’s testimony that he was home at the time of the shooting. The defendant supported the 

claim with affidavits from the children.

¶ 24 Second, the defendant argued that trial counsel was ineffective for failing to impeach 

Stiffend with evidence of a false identification. The defendant supported this claim with two

written statements allegedly given to trial counsel before trial. In the first statement, Betties wrote

that Stiffend showed him a picture of the defendant before the lineup and told him to identify the 

defendant as the shooter. Betties also wrote that he lied to the grand jury when identified the 
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defendant as the shooter because he was afraid. In the second statement, Thomas wrote that 

Stiffend showed him a “mug shot” of the defendant and told him to identify the defendant as the 

shooter. Thomas wrote that, despite not seeing the shooter at the scene of the crime, he picked the 

defendant out of the lineup because Stiffend told him to do so. Thomas also wrote that he lied to 

the grand jury when he identified the defendant because he was afraid he would get into trouble if 

he changed his story.

¶ 25 In addition, the defendant supported his postconviction petition with a transcript of the 

testimony given by Denise Watson during a witness intimidation trial of Anderson which was held 

after the defendant’s trial. According to the petition, the defendant’s trial counsel also represented 

Anderson during the intimidation trial which arose out of an allegation that Anderson had 

attempted to intimidate Stiffend. Denise testified that, while she was on the porch of her mother’s 

house, she overheard Stiffend talking on a cell phone as he walked past the house, bragging that 

he had “Gotten [the defendant] caught up with a case.”

¶ 26 Finally, the defendant alleged in a supplemental petition that he had informed trial counsel 

that Makindra told him that she overheard a conversation between Stiffend and her boyfriend in 

which Stiffend stated that “no one know who shot [Michael]” and “he was putting a case on [the 

defendant] because he did not like him.” The record also contains an affidavit from Makindra, 

making the same allegations regarding Stiffend’s statements.

¶ 27 The State moved to dismiss the defendant’s postconviction petition at the second stage of 

the proceedings. Thereafter, the defendant’s postconviction counsel filed an amended petition 

adding another claim of ineffective assistance. The State filed an amended motion to dismiss, 
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arguing, inter alia, that the decision not to present Rainey’s children as witnesses and the failure 

to impeach Stiffend were trial strategy.

¶ 28 On April 11, 2019, the circuit court entered a written order granting in part and denying 

in part the State’s second-stage motion to dismiss. As relevant here, the circuit court denied the 

State’s motion with regard to the issue of the children’s testimony and granted the State’s motion 

with regard to the impeachment of Stiffend. The circuit court set the matter for a third-stage 

evidentiary hearing on, inter alia, the claim that trial counsel was ineffective for failing to call 

Rainey’s children as witnesses. That hearing was held on November 18, 2019. 

¶ 29 Dajanee Tate testified that the defendant is her stepfather. On November 25, 2005, she was 

10 years old and lived with her mother and the defendant. She stated that it was the day after 

Thanksgiving, and the defendant was home all day because he was sick and vomiting. 

¶ 30 Nwaja Tate testified that the defendant is her stepfather. She stated that, on November 25, 

2005, she was eight years old and living with her mother and the defendant. The defendant was 

sick that day and throwing up “a lot.” She added that the defendant never left the house that day.

¶ 31 Darshun Tate testified that the defendant is his stepfather. He stated that, on November 25, 

2005, he was 12 years old. According to Darshun,, he and the defendant were “hanging out” that 

day and playing video games. He also testified that the defendant never left the house.

¶ 32 The defendant testified that Robert Smith represented him at trial. He stated that he and 

Smith discussed alibi witnesses including Rainey and her four children. According to the 

defendant, Smith “kind of brushed it off.” 

¶ 33 Smith testified that he had been a criminal defense attorney for 40 years and had tried over 

100 murder cases. He admitted that he discussed an alibi defense with the defendant but did not 
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interview Rainey’s minor children. He testified that he would not call the children as witnesses 

because:

“[N]umber one, the information was cumulative, that essentially the children, whether it 

was three children or I’m not sure of the number, that they would corroborate the mother’s 

testimony in that Marquette was at home at whatever the time in question, it was essentially 

corroborational so it would have been the same testimony two or three or four times and 

all the secondary witnesses were minor children and I’ve made that mistake before and it’s 

my experience that if it’s not necessary, you don’t put on minor children for a number of 

reasons which I could go into if you want.” 

Smith continued, stating that the more an alibi is exposed to cross examination the “softer” the 

alibi becomes. He also stated that children are subject to cross-examination questions like “did you 

and mommy discuss this?” Smith added that it was a risk reward analysis based on whether each 

witness brought new information or “just baggage.”

¶ 34 On cross-examination, Smith testified that he did not call Makindra to testify about Stiffend 

bragging about getting the defendant “caught up with a case” because he talked to her four times 

and she “never told it the same way twice.” Smith also testified that he did not believe that her

testimony would have “evidentiary value” because it was ambiguous.

¶ 35 Following closing argument by the parties, the court held, in relevant part, that Smith’s

decision not to call Rainey’s minor children as witnesses was a matter of trial strategy and, based 

on that finding, denied the defendant’s petition for postconviction petition relief. This appeal 

followed. 
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¶ 36 As a preliminary matter, we note that the circuit court entered a second stage dismissal of 

some, but not all, of the claims in defendant’s postconviction petition as supplemented, allowing 

some claims to proceed to a third-stage evidentiary hearing. We find nothing improper about 

entering a partial dismissal at the second stage of a postconviction proceeding. People v. Lara, 317 

Ill. App. 3d 905, 908 (2000).

¶ 37 For his first assignment of error, the defendant contends that the circuit court erred when, 

following the third-stage evidentiary hearing, it held that Smith’s the decision not to call Rainey’s 

children as witnesses was a matter of trial strategy and for that reason denied his postconviction 

petition.

¶ 38 The Act provides a procedure whereby a person in the penitentiary may assert that his 

conviction was the result of a violation of the federal or state constitution. 725 ILCS 5/122-1 et 

seq. (West 2020); see also People v, Ruddock, 2022 IL App (1st) 173023, ¶ 44. Proceedings under 

the Act are a collateral attack on a final judgment; they are not a substitute for a direct appeal. 

People v. Edwards, 2012 IL 111711, ¶ 21. Proceedings under the Act have three stages. Ruddock, 

2022 IL App (1st) 173023, ¶ 44. If a postconviction petition survives summary dismissal at stage 

one and is not dismissed on the State’s motion at stage two, the circuit court conducts a stage-three

evidentiary hearing. Id. At an evidentiary hearing, the defendant must establish by a preponderance 

of the evidence that he suffered a substantial deprivation of his constitutional rights. People v. 

Coleman, 2013 IL 113307, ¶ 92 (citing People v. Stovall, 47 Ill. 2d 42, 47 (1970)).

¶ 39 When, as in this case, a defendant alleges ineffective assistance of counsel, we apply the 

two-prong test articulated by the Supreme Court in Strickland v. Washington, 466 U.S. 668 (1984). 

People v. Velasco, 2018 IL App (1st) 161683, ¶ 138. A defendant must establish that (1) trial 
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counsel’s representation fell below an objective standard of reasonableness and (2) there is a 

reasonable probability that, but for counsel’s errors, the result of the trial would have been 

different. People v. Enis, 194 Ill. 2d 361, 376 (2000) (citing Strickland, 466 U.S. at 694); see also 

People v. Domagala, 2013 IL 113688, ¶ 36. “A reasonable probability is a probability sufficient 

to undermine confidence in the outcome, namely, that counsel’s deficient performance rendered 

the result of the trial unreliable or the proceeding fundamentally unfair.” Enis ̧ 194 Ill. 2d at 376. 

A defendant must also overcome the strong presumption that any challenged action or inaction 

may have been the product of trial strategy. People v. Dupree, 2018 IL 122307, ¶ 44. The failure 

to satisfy either prong of the Strickland test is fatal to a defendant’s claim. Enis ̧ 194 Ill. 2d at 377. 

¶ 40 Decisions regarding what evidence to present and which witnesses to call to present that 

evidence are matters of trial strategy. People v. Williams, 2017 IL App (1st) 152021, ¶ 38. Counsel 

has a duty to make reasonable investigations or to make a reasonable decision that an investigation 

into a particular source of evidence is unnecessary. Id. (citing People v. Pecoraro, 175 Ill. 2d 294, 

324-25 (1997)). If an attorney has made a thorough investigation of the law and facts, then his or 

her strategic choices are “virtually unchallengeable.” People v. Towns ̧ 182 Ill. 2d 491, 514 (1998). 

¶ 41 Claims of ineffective assistance of counsel generally involve mixed questions of law and 

fact. Velasco, 2018 IL App (1st) 161683, ¶ 137. Accordingly, we will disturb the circuit court’s 

factual findings only if they are against the manifest weight of the evidence but will review de 

novo the ultimate determination of whether the defendant was denied the effective assistance of 

counsel. Id.

¶ 42 At the third-stage evidentiary hearing in this case, Smith admitted that he did not 

investigate further into the potential testimony of Rainey’s children because he did not intend to 
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call the minor children to testify. He reasoned that their alibi testimony would be cumulative of 

their mother’s testimony, their stories may vary, and they could be perceived as having been 

coached. Smith also testified that he believed the strength of alibi testimony can be diluted when 

presented by multiple witnesses because it is subject to repeated cross-examination. Smith’s 

testimony clearly established that his decision not to further investigate the testimony of the minor

children or call them as witness was the product of a trial strategy. In Strickand, the Supreme 

Court held that once it established that the decisions of trial counsel were the product of trial 

strategy they are entitled to deference, and questions of trial strategy are virtually unchallengeable. 

See Strickland, 466 U.S. at 690-91 (“strategic choices made after thorough investigation of law 

and facts relevant to plausible options are virtually unchallengeable; and strategic choices made 

after less than complete investigation are reasonable precisely to the extent that reasonable 

professional judgments support the limitations on investigation.”) The credibility of Smith’s 

testimony was a matter for the trial court to determine. It is obvious from the record that the trial

court credited Smith’s testimony relating to his reasons for not calling Rainey’s children when it 

found that Smith’s decision was one of trial strategy. We are unable to find that Smith’s strategy 

on this issue was irrational. We conclude, therefore, that the defendant failed to establish that he 

suffered a substantial deprivation of his constitutional right to effective assistance of counsel and 

affirm the trial court’s third-stage denial of the defendant’s postconviction claim arguing that his 

trial counsel was ineffective for failing to call Rainey’s minor children as alibi witnesses.

¶ 43 Next, we address the defendant’s argument that the trial court erred when it entered a 

second-stage dismissal of the claim that trial counsel was ineffective for failing to use Betties 

statement that Stiffend told him to identify him as the shooter to impeach Stiffend’s identification 
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testimony and to impeach Betties’s own grand jury identification testimony; and failing to call 

Betties and Thomas to testify that Stiffend told them whom to identify him as the shooter; and 

failing to call Makindra to testify to the conversation she overheard where Stiffend said no one 

knew who killed Michael. In support of the dismissal of the claim, the State argues that the choices 

of what evidence to present and how to cross-examine a witness are generally matters of trial 

strategy. 

¶ 44 To survive a motion to dismiss at the second stage of postconviction proceedings, a petition 

must make a “substantial showing” that the defendant’s rights have been violated. Dupree, 2018 

IL 122307, ¶ 29. At the second stage, all well pleaded facts that are not positively rebutted by the 

record are taken as true. People v. Willingham, 2020 IL App (1st) 162250, ¶ 21 (citing People v. 

Pendleton, 223 Ill. 2d 458, 473 (2006)). To establish ineffective assistance of counsel, a defendant 

must overcome the strong presumption that the challenged action was the product of trial strategy. 

Dupree, 2018 IL 122307, ¶ 44. Decisions about which witnesses to call and which evidence to 

present are generally matters of trial strategy which will not support a claim of ineffective 

assistance of counsel unless trial counsel utterly fails to subject the State’s case to adversarial 

testing. See People v. Perry, 224 Ill. 2d 312, 355-56 (2007). We review the second-stage dismissal 

of a postconviction petition de novo. Willingham ̧ 2020 IL App (1st) 162250, ¶ 21.

¶ 45 Initially, the State argues that the defendant has forfeited portions of his argument because 

they constitute “new” claims on appeal. See People v. Brown ̧ 2021 IL App (1st) 180991, ¶ 52. 

The State contends that, in his supplemental petition, the defendant argued only that his trial 

counsel failed to cross-examine Stiffend with evidence that Betties and Thomas had given 

statements indicating that he had told them to identify the defendant as the shooter, not that trial 
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counsel should have called Betties and Thomas as witnesses. However, we note that the 

supplemental petition prepared with the assistance of counsel used the term “impeach” not the 

narrower term “cross-examine.” We are bound to take the allegations of a postconviction petition 

as true and construe them liberally. See People v. Allen, 2015 IL 113135, ¶ 25. Therefore, we will 

consider the defendant’s arguments.

¶ 46 In this case, the defense theory was, inter alia, that the identification witnesses had 

conspired to “put a case on” the defendant. Defense counsel supported this theory of the case by 

cross-examining the identification witnesses on the issue of whether they had time to discuss the 

identification of the defendant prior to the lineup and whether Stiffend had instructed them as to 

whom to identify as the shooter. The defendant argued in his postconviction petition that trial 

counsel should have used additional available evidence to impeach his identification as the shooter. 

Specifically, the defendant argues that Betties grand jury identification should have been 

impeached with his written statement that Stiffend told him who to identify. The defendant argued 

that trial counsel should have called Thomas as witnesses and used his testimony to attack 

Stiffend’s credibility and provide evidence of a coordinated fabrication. Finally, the defendant 

argued that trial counsel should have called Makindra to testify that she overheard Stiffend saying 

that “no one” knew who killed Davis and that he was “putting a case” on the defendant.

¶ 47 First, we address the defendant’s argument that trial counsel should have used Betties’ 

statement to impeach Betties’ identification of the defendant as the shooter at the grand jury. 

Although Betties did not identify the defendant at trial, he did admit to previously naming him as 

the shooter during the grand jury proceedings. The defendant argues that allowing this testimony 

to stand unchallenged was professionally unreasonable. We agree . Cross-examining Betties 
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based on his prior statement that Stiffend told him to identify the defendant would have challenged 

the evidence that Betties accurately named the defendant as the shooter when testifying before the 

grand jury. Although we recognize that it is possible that trial counsel had a legitimate reason for 

refraining from this line of cross-examination, we are limited at this stage of the proceedings to an 

examination of the defendant’s petition and the record of the proceedings below. Willingham, 2020 

IL App (1st) 162250, ¶ 21. We find that there is nothing in the record supporting trial counsel’s 

decision to forego cross-examining Betties with his prior statement.

¶ 48 The defendant also argues that trial counsel should have called Thomas as a witness and 

used the statements of Betties and Thomas to attack Stiffend’s identification testimony. Construed 

liberally, we presume that the defendant is arguing that Stiffend should have been impeached with 

prior inconsistent statements made to Betties and Thomas and that their testimony could be used 

to perfect that impeachment. Assuming, as we must, that Betties and Thomas would have testified 

consistently with their statements which the defendant alleged that he provided to his trial counsel, 

we find nothing in the record which suggests a strategic reason not to attempt impeach Stiffend’s 

identification of the defendant with evidence of his prior inconsistent statements.

¶ 49 With regard to the failure to call Makindra as a witness to impeach Stiffend, the allegations 

in the defendant’s postconviction petition are adequate to make a substantial showing that 

counsel’s performance fell below reasonable professional standards. The petition alleged that the 

defendant told trial counsel that Makindra was available as a witness and relayed the substance of 

her testimony to him. Assuming, as we must, that Makindra would have testified that she heard 

Stiffend say that “no one” knew who shot Michael and that Stiffend was “putting a case on” the 

defendant, this evidence could have similarly been used to perfect impeachment of Stiffend’s 
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identification of the defendant as the shooter. We find nothing in the record supporting the 

conclusion that the failure to call Makindra as a witness was a matter of sound trial strategy.

¶ 50 The State argues that the statements by Betties and Thomas were not exculpatory; rather, 

their statements actually bolster Stiffend’s identification of the defendant. We find no merit in the 

argument. The statements, which indicated that Stiffend told Betties and Thomas who to identify, 

must, at this stage, be read in conjunction with Makindra’s allegation that Stiffend said “no one” 

knew who shot Michael and he was “putting a case” on the defendant. The clear implication of 

“putting a case on” the defendant is that Stiffend was falsely identifying the defendant as the 

shooter when “no one” could identify the actual offender. The State argues that, when Stiffend 

said that “no one” knew who killed Michael, he actually meant no one but himself. We find nothing 

in the record to support this interpretation, especially in light of Stiffend’s alleged statement that 

he was “putting a case on” the defendant, implying that he was falsely implicating the defendant. 

We find nothing in the record which supports a second-stage finding that the failure to attack the 

identification of the defendant as the shooter with the testimony of Betties and Thomas consistent 

with their statements and the testimony of Makindra was the product of sound trial strategy. 

¶ 51 We cannot conclude that the record affirmatively rebuts a finding that the defendant was 

prejudiced by the failure to use Betties’ statement as impeachment or to call Thomas and Makindra 

as witnesses. No physical evidence tied the defendant to the crime. We believe that there was a 

reasonable possibility that the outcome of the trial would have been different if the State’s 

identification witnesses were impeached. 

¶ 52 Based upon the foregoing analysis, we conclude that circuit court erred when, at the second 

stage of postconviction proceedings, it dismissed the defendant’s claim of ineffective assistance 
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of trial counsel by failing to attack Betties’s grand jury identification of the defendant as the shooter 

with his written statement and failing to call Thomas and Makindra as witnesses to attack 

Stiffend’s identification of the defendant as the shooter. Therefore, we reverse the judgment of 

the circuit court dismissing this claim at the second stage of proceedings and remand this matter 

to the circuit court with directions to conduct a third stage evidentiary hearing on this claim of 

ineffective assistance of counsel. 

¶ 53 Affirmed in part, reversed in part, and remanded with directions.