2013 I LApp (1st) 121316 FI FTH DIVI SI ON DECEMBER 31, 2013

No. 1-12-1316
THE PEOPL E OF THE STATE OF I L L I NOI S, ) Appea l from the

) Circuit Court of Plaintiff-Appellee , ) Cook County
. ) v. ) No. 94 CR 26967 (03) ) MI TCHEL LMORROW , ) Honora ble ) Evely

n B. Clay , Def endant- Appellant. ) J udg e Presiding
. PRES I DI NG JUS TI CE GORDON de livered the judgme nt of the cour t. J ustices McB ride a

nd Taylor conc urre d in the judgme nt.

OP INION ¶ 1 Followinga jury

trial, defe ndant Mitchell Morrow w as convic ted of the August 28, 1994,
arme d robber

y and murde r of Ka zmi erz Kosinski. After c onsideringfac tors in ag g ravation and mitigation, the trial c ourt sentenc ed def endant to 60 year s in the I llinois Depa rtment of Correc tions, to be served c oncurr ently with a 20-year

sentenc e for

arme d robber

y . On direc t appea l, we re verse d defe ndant’s ar med robbe ry

conviction, but we a ffirme d his conviction and sentenc e for

murder. People v . Morrow , No. 1-96-2592 ( 1999) (unpublished orde r pursua nt to Supreme Court Rule 23). De fenda nt nextfiled his first postconviction petition in which he ra ised numerous cla ims of ineffe ctive assistanc e of tria l counsel and tria l court er rors. The trial court g rante d the State’s motion to dism iss, and we a ffirme d the dismissal on appeal. People v

. Morrow , No. 1-00-3878 ( 2003) (unpublished orde r pursua nt to Supreme Court Rule 23).No. 1-12-1316

¶ 2 After

war ds, defe ndant re quested lea ve to file his sec ond postconviction petition in which he cla imed for the f

irst time that his appellate counse l provided ineff ective a ssistance of c ounsel when he failed to a

rgue on dire ct appe al that def endant’ s trial counsel inef fec tively failed to reque st a second- deg ree murder jur y instruction. The trial cour t found that, althoug h defe ndant established ca

use to file a suc cessive pe tition, he did not s how pre judice to support his claim beca use the e vidence at trial did not support a findingof sec ond-degree murder. A s a re sult, the trial court de nied def

endant lea

ve to file a

succe ssive postconviction petition, and defe ndant now appea ls. On this appeal, def endant a rgues that the trial c ourt err ed since he esta blished both cause and pre judice re quired to file a

second postconvic tion petition. For the followingrea sons, we aff irm. ¶ 3 BA CKGROUND ¶ 4 I . Trial ¶ 5 The State’s e vidence at trial re lied primarily on the prior state ment and g rand jury testimony of Ramona Siler, a

n alleg ed eyewitness to the murde r. Siler told detectives tha t she
was a prostitute and that def

endant wa s her boyfriend a nd pimp. I n August 1994, Si ler wa s five months preg nant with defe ndant’s child, and she had pre viously told him t hat he wa s the fathe r. On August 28, 1994, Si ler wa s perf ormingsex acts for Ka zmi erz Kosinski, the victim, in hi s vehicle w ith another prostitute, B irandi Pascha l, when Pascha l rea ched f or Kosinski’s wallet. A fig ht ensued, a

nd Siler called f

or the he lp of defe ndant and Ala nda McComb, Pascha l’s pimp, both of whom wer e sitting in their ve hicle nea rby . McComb ran towa

rds Kosinski’s vehicle a

nd punched him. McComb then instructed Siler a nd Paschal to exit Kosins ki’s vehicle, a nd as the
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two women ra

n awa y , defe ndant appr oache d Kosinski, pulled out a gun, a nd shot him t wice a s he sat in the driver ’s seat. Defe ndant, Siler, Paschal, a nd McComb then returne d to their own vehicle a nd McComb drove a

way with Kosinski’s wallet. At some point, McComb hid t he gun under the hood of his vehicle, a nd the four e qually

split $160 i n cash r ecove red f rom Kosinski’s wallet. ¶ 6 Siler repe ated e ssentially the same a ccount of

events in both her written statement to the police and in he r g rand jury testimony . Howeve r, she r eca nted her story at trial, explaining that she lied bec ause she was a ddicted to her oin and that she wa nted to g o home as soon as possible so that she would not suffe r fr om withdrawa l. Defe ndant testified in his own defe nse and c laimed that he did not shoot Kosinski and that he was not with Siler, Paschal, or McComb on the night of the shooting . Def

endant a lso claimed that Siler was no long er his prostitute in August 1994; that they wer e no long er in a

relationship; and that he w as not the father of Siler’ s child. ¶ 7 At openingarg

ument, defe ndant’s counse l told the jury , “[Defe ndant] was not at the
scene of this crime, did not ask [Si ler] to do any thing to Ka zmi erz Kosinski, did not derive any benef it from this crime, and is absolutely innocent of the se cha

rg es.” ¶ 8 A. Autopsy , Ba llist ics, and Othe r Evidenc e ¶ 9 For ensic investig ator Car l Bra sic testified that, on August 28, 1994, he proce ssed the crime sc ene. T here , Br asic obser ved Ka zmi erz Kosinski’s body in the driver’ s seat of his vehic le, which wa s parke d on L ecla ire Ave nue nea r B lackha wk Park in Chicag o. Both of the vehicle’ s front seats were rec lined, and B rasic r ecove red a condom wra

pper on the floor of the vehicle. Br asic re cover ed thre e .25-c aliber c artridg e ca ses inside the vehic le. One c artridg e ca se wa s
3No. 1-12-1316

rec overe d on the floor of

the front pa sseng er se at, another was on the f

loor of the r ear

passeng er seat, a nd a third wa s found on the drive r’s seat after Kosinski’s body

was re moved. No we apons
wer e re cover ed in the vehic le or on Kosinski’s per son. Kosinski appear ed to have a gunshot wound on his left che st and rig ht wrist, but his face did not appe ar to be injured. B rasic r ecove red
sever al palm prints on the outside of Kosinski’s vehicle
. ¶ 10 Dr. Mitra K alelkar testified that she pe rfor

med the autopsy

on Kosinski’s body . Prior to the autopsy , Kalelka

r obser ved a use d condom inside Kosinski’s clothing, a nd a bullet on the ca

rt on which Kosinski’s body was lay ing. K osinski did not have a ny bruises or injuries to his fac e, but he had thre e appa

rent gunshot wounds to his body . Kosinski was shot once in the lef t chest wall, and the bullet tra

veled to the r ight a

nd down to his spinal cord, whe re the bullet was
rec overe d. Due to the path of the bullet, Kale lkar opined that the gun was positioned to the left and slig htly

above the victim. Kosinski also sus tained a gunshot wound to his right wrist, and the bullet entere d his inside palm and exit ed through the wrist. Kale lkar obser ved evide nce that both gunshots were contac t wounds, meaningthat the bar rel of the gun was touchingKosinski’s skin when it was f

ired. Kosinski had a

third gunshot gr aze wound on his rig ht hip, but there wa s no evidenc e that the shot wa s fired f rom close r ang e. A toxicology test reve aled that Kosinski’s blood alcohol level wa s twice the le g al limit at the tim e of his death. Kalelkar opined that Kosinski died as a re sult of multi ple gunshot wounds, and that the manne r of his death was a homicide. ¶ 11 Police office r Richar d Chenow, a ba llist ics expert, testified that he e x amined the thre e
car tridg e ca ses re cover ed fr om the vehicle, but he could not deter mine whether

they wer e fire d
4No. 1-12-1316

from the same gun. Also, he examined two bullets rec overe d from the c rime sce ne, but they wer e mutilated and unsuitable for compar ison. ¶ 12 The pa

rties stipulated that Victoria Psicha linos would testify that she is an expert fing erpr int ex aminer, a

nd that she examined the palm prints rec overe d from the outside of Kosinski’s vehicle. Psichalinos compar ed those prints to individual palm prints taken from defe ndant, Siler, McComb, Paschal, and K osinski, and she opined that they did not match the prints rec overe d from the ve hicle. ¶ 13 The pa

rties also stipulated that a pe destrian r ecove red K osinski’s wallet and plac ed it in a mailbox on August 28, 1994. Psi chalinos examined three fing erpr ints recove red f rom inside the wallet and opine d that they did not match the individual fing erpr int samples provided by defe ndant, Siler, McComb, Paschal, or K osinski. ¶ 14 B. Interviewof Ramona Siler ¶ 15 Detec tive Wil liam J ohnston testified that he investig ated Kosinski’s murde r, and that he initially thought it was r elated to pr ostitut ion since the victim was f ound near Bla ckhawk Park, a place known for pr ostitut ion, and a use d condom was r ecove red inside Kosinski’s clothing . On September 5, 1994, Johnston l ear ned that a pr ostitut e name d Ramona “Tr acy” Siler, who usually worke d near

by at the interse ction of Dicke ns and Cicer o Avenue s, had not bee n observe d for
sever al day s following the murder. Police of fice rs later

observe d Siler at 8:30 p.m. that evening and ar rested he r on a bond f

orfe iture wa

rra nt. ¶ 16 Followingher a

rre st, Si ler wa s place d in an interviewroom at the 25th District police station and Dete ctive Johnst on and his partne r, De tective Stephen G awr y s, questioned her
5No. 1-12-1316

conce rningKosinski’s murder. Siler initially told J ohnston that she did not know any thing a bout Kosinski’s death, and that she nee ded to be r elea sed fr om custody so that she could attend to he r children, who wer e alone in a hotel room. Johns ton did not release Siler and instead se nt two police off icer s to chec k on the childre n. The off icer s later tele phoned Johnst on from the hotel a nd told him t hat Siler’s pimp, defe ndant, was a lone in the hotel room, and that defe ndant stated that Siler’s children did not live ther e. Johnst on instructed the of fice rs to ask def

endant to ac company them to the police station for a n interview, a

nd defe ndant ar

rived at the Are a 5 police station later that evening . J ohnston identified defe ndant in court. ¶ 17 J ohnston resumed the inter view with Siler, and she r ece ived her Miranda war nings. This time, Sil er a dmitted that she did have infor mation conce rningthe murder near Bla ckhawk Park. On the nig ht of the shooting, Siler w as working“her corne r,” which was the intersec tion of Dickens a nd Cicero Ave nues, with another prostitute named B irandi “B rittany” Pascha l. Def endant, Siler’s pimp, and A landa “ J R” McComb, Paschal’s pimp, wer e also pre sent that evening
. ¶ 18 Siler told J ohnston that, at 2 a.m., a prior customer pulled up to Siler and motioned for her to a pproac h his vehicle. The customer told Siler that he wa nted to hire two prostitutes that evening , and he pointed to Pasc hal. Siler and Pascha l both entere d the customer’ s vehicle, a nd he drove to a location nea

r B lackha wk Park. De fenda

nt and McComb followed be hind them in their own vehicle and par

ked ahe ad of the customer. ¶ 19 After

the customer pa

rked his vehic le, Siler and Pascha l perfor med sex acts on him. Si ler eventua lly

stopped and told the customer that his “time was up,” but he rea ched into the ve hicle’s
6No. 1-12-1316

visor and hande d Siler $10, and she r esumed. Shortly there afte r, Pascha l rea ched into the customer’ s pants for his wa llet, and an a rgument ensued. The customer be came phy sical with Paschal a nd called he r a “ black bitch,” so Sil er shouted f or def endant a nd McComb to come help. Def endant a nd McComb ran to the c ustomer’s vehic le, and Mc Comb punched him. Defe ndant then pulled out a small, semiautomatic handgun and shot the customer twice. Siler obser

ved the
muzz le of the gun flash, and she hear d both shots. ¶ 20 After

the shooting, Siler a

nd Paschal re turned to McComb and de fenda nt’s vehicle, a

nd they drove a way with the victim’s wallet. McComb handed the customer’ s wallet to Paschal, 1 who then re moved $160 in cash a nd divided it equally

among st the g roup bef

ore throw ing the wallet out the vehic le’s window. While they wer e in the vehic le, Siler observe d the victim’s blood on defe ndant’s shoes. At some point, they stopped and McComb hid the gun underne ath the hood of the ve hicle, and the y continued to drive a

way . ¶ 21 Siler told J ohnston that, at the time of the shooting , she had be en using$40 of her oin per day , and that def

endant use d $200 of her oin daily . Up until this point in the interview, Johns ton had not shown Siler any

photogr aphs of the c rime sce ne or pote ntial suspects. ¶ 22 Siler remaine d in police custody overnight following he r interview . The ne x t day , Assistant St ate’ s Attorney Myles Hahn a

rrived at the Are a 5 police sta tion and spoke with Siler. After war ds, Sil er pr ovided a wr itten statement in the prese nce of J ohnston and Hahn. Siler

J ohnston did not t estify

whether Siler identified who drove the vehicle or whe re the y 1 drove. 7No. 1-12-1316

rema ined in police custody a sec ond night, a

nd J ohnston arra

ng ed to have her te stify

befor e the g rand jury

the next day
. ¶ 23 C. Ramona Siler’s Prior Statement ¶ 24 The pa

rties stipulated that Assistant State’s Attorney (ASA) Myles Hahn w ould testify that he intervie wed Siler on Septembe r 6, 1994, and that he summarized what she told him in a written statement. Siler’s pr ior statement wa s offe red into evide nce a nd published to the jury

at trial. In the statement, Siler stated that she rec eived he r Miranda war nings a nd that she understood them. She then de scribed the shooting that took plac e on August 28, 1994, and her
acc ount was substantially simil ar to what she told Detec tive J ohnston. Si ler stated that she worke d as a pr ostitut e at the time, a nd that defe ndant was he r protec tor and pimp, as we ll as her boy friend of

two y ear s. At 2 a.m., she wa s standing a t the corne r of Dic kens and Cice ro Ave nues with another pr ostitut e name d Br ittany , when a man drove up and propositioned them for sex. Siler did not know the man’s name at the time, but she identified him as the vic tim, Kazmi erz Kosinski, in a Polaroid photogra ph, which she sig ned. Siler and B rittany acc epted Kosinski’s offe r and the y

enter ed his vehicle . Kosinski then drove to L ecla ire Stree t near Palmer Street, a

nd defe ndant and “ J R,” a man tha t Brittany stay ed with, followed. ¶ 25 Siler stated that she a nd Br ittany

perf ormed sexual acts for

Kosinski for five minutes, at the conc lusion of which Kosinski neg otiated Siler for e x tra time in exchang e for more money . At the same time, B rittany

rea ched into Kosinski’s pocke t, and he r esponded, “ Stop that, black bitch,” and hit B rittany

on the side of he r hea d. Siler then y elled to def endant a nd J R for help, both of whom wer e sitting in their ve hicle par ked thre e par

king spa ces a

way . J R, the driver,
8No. 1-12-1316

exit ed his vehicle and ra

n towards Kosinski and punc hed him as he sat in his vehicle. Def endant then appr oache d Kosinski, pulled out a gun, a nd shot him t wice. D efe ndant, J R, Si ler, a nd Br ittany returne d to J R’s vehicle, a nd J R drove aw ay . As they drove a way , defe ndant told Br ittany to splitup the money

that she re cover ed fr om Kosinski’s wallet among st the four of them. Def

endant then a sked Siler if he ha d any blood on him, but S iler’s stateme nt does not include her

response . ¶ 26 Siler’s statement conc luded with an ac knowledg ement that she w as treated well by ASA Hahn a nd the police, a

nd that she wa s not threatene d in any way . Siler also stated that she wa s not offer ed any

promises in exchang e for g iving he r statement, a

nd that she wa s not under the influence of any

drug s or alcohol at the time. No corr ections we re ma de to the stateme nt, and Siler, Hahn, a

nd J ohnston signed e ach pa g e. ¶ 27 D. Ramona Siler’s Gr and Jury Testimony ¶ 28 ASA Ray

Regner te stified that he spoke w ith Si ler c oncer ning K osinski’s murder, and she ag ree d to testify

befor e the grand jury

on September 7, 2004. Regner te stified that Siler was coher ent when he spoke with her, a nd that he did not offe r her any promises in exchang e for her testimony . Specifica lly , Reg ner did not promise Siler that she c ould go home afte r she testified. ¶ 29 Siler’s g rand jury

testimony

was a lso offer ed into evidenc e and published to the jury at trial. Siler testified that def endant ha s been he r boyfriend f or four y ear s, and that they

have lived toge ther for

the past two y ear s. Sil er ma de a livingas a pr ostitut e, and de fenda nt was her “prote ctor,” meaningthat if she eve r fought with a man she wa s “dating ,” then de fenda nt would

9No. 1-12-1316

“jump in” and he lp her. On the eveningof September 6, 1994, Siler was at the inter section of

2 Dickens a nd Cicero Ave nues with another woman that Siler knewonly as “B rittany .” De fenda

nt was ther e that eve ning to pr otect Siler, and JR was there to prote ct B rittany . At 2 a.m., Siler observe d a blue ve hicle that she ha d observe d three times before , so she flag g ed it down. She
rec og nized the driver a s Kazmierz Kosinski, t he victim. Kosinski pulled over and Siler of fer ed him sex in exchang e for

money . Kosinski told her that he wa nted the ser

vices of two w omen that evening , and B rittany

ag ree d to the offe r. Siler and B rittany enter ed Kosinski’s vehicle and he drove the m to a location nea r B lackha wk Park. Siler obser

ved that def

endant ha d followed them and wa s parke d in front of Kosinski’s vehic le. ¶ 30 Siler testified that she and B rittany beg an to per form sex on Kosinski, and that Si ler stopped afte r six minutes and told him t hat he ne eded to pa y her more money

if he wa nted her to continue. Kosinski ag ree d and paid Siler, a nd he plac ed his wallet on the side of his seat. B rittany then re ache d for his wa llet, but Kosinski caug ht her. He g rabbe d Br ittany ’s hair, hit her head, a nd called he r a “ black bitch.” At that point, Si ler, B rittany , and Kosinski started f ighting , but defe ndant was too strongfor the two w omen, so Siler exit ed the ve hicle and c alled for defe ndant to help by y elling his name and ur g ing him to “c ome on.” JR ran to the vehicle, pulled K osinski halfwa y out of the vehic le, and punc hed him. J R then told S iler and B rittany to exi t Kosinski’s
ASA Reg ner te stified that he mistakenly asked Siler a

bout the events of Septe mber 6, 2 1994, instead of August 28, 1994, the actua l date of the murder. H oweve r, Reg ner te stified that when he spoke with Siler prior to her g rand jury

testimony , they

discussed the e vents that occur red on the night of

the murder , not September 6, 1994. Also, Siler wa s taken into custody at the Are a 5 police station on September 5, 1994, and r elea sed on September 7, 1994, afte r she testified bef

ore the g rand jury
. 10No. 1-12-1316

vehicle. Siler te stified that she assumed JR was searc hing f or Kosinski’s money

since she thought she hea rd JRsay , “Give me the money ,” thoug h she wa s not sure. ¶ 31 Siler testified that she and B rittany then ra n to J R’s vehicle a

nd passed de fenda

nt on their way . Def endant ha d a gun in his hand and Siler urg ed him to “come on” and “g et in the ca r.” Siler had obser

ved the gun befor e and kne w that def endant wa s armed that evening ; however , Siler did not observe a

wea pon in Kosinski’s possession. Defenda nt continued runningto Kosinski’s vehicle, f

ace d him, and shot him once. Siler and B rittany then enter ed JR ’s vehicle and Siler bac ked it up to pick up defe ndant and JR. As she was bac king up, she hear d a sec ond gunshot. Si ler e x ited the vehicle to find out what happe ned, and she observe d defe ndant and JR runningback towa

rds their ve hicle. Siler re -ente red the vehicle a nd sat in the bac k seat with defe ndant, and JR drove awa y . J R stopped the vehicle ne arby on Palmer Street a

nd hid the g un under the hood, and then c ontinued to drive aw ay . Def endant a sked Siler if she obse rved a ny blood on him, and she responde d that he had a littl e bit on his shirt. J R handed Kosinski’s wa llet to Brittany

and, on his instructions, she remove d the money and thre w the wa llet out the window. Br ittany handed the money

to J R, and he ha

nded $40 to def

endant, who later used the money to buy drug s. J R drove to North Ave nue and Siler f inished workingthat eveningat that location. ¶ 32 Siler testified that she provide d this information in a prior written state ment to ASA Hahn and De tective Johnston on S eptember 6, 1994. Siler identified the stateme nt and ac knowledg ed that she sig ned ea ch pag e. The statement conta ined a true and ac curate ac count of what happene d the nig ht of the murder , and no thre ats or promises we re ma de to Siler in exchang e for her statement. Siler was r ead he r Miranda rig hts and she wa s treate d well by the ASA and the police
. 11No. 1-12-1316

Siler also testified that she wa s not made any threats or promises in exchang e for her grand jury testimony , and that her

testimony

was true and ac curate. ¶ 33 E. Ramona Siler’s Te stimony at Trial ¶ 34 At trial, Ramona Siler testified that she is a 25-y ear -old hig h school dropout with seven children. In August 1994, Si ler wor ked as a prostitute and def

endant wa s her pimp. Def endant
was a lso her boy friend of near ly four year s at that time, and they had lived tog ether

in a hotel for two y ear s. That month, Sil er w as pre g nant with her sixth child, of whom defenda nt was the fathe r. Siler told defe ndant that he wa s the fathe r of the c hild, the first and only child that they had tog ether . Siler testified that she and de fenda nt used heroin e very

day , and that she w ould ty pically spend over

$50 to support her ha

bit. Si ler identified de fenda nt in court. ¶ 35 Siler testified that she has be en ar rested f or prostitution at least 30 times, and that she has used eight false names. Siler ty pically perf ormed sexual acts for

customers in their ve hicles, while def endant would “ protec t” her , meaningthat he would follow Siler and pa rk nea rby and help her if she eve r fought with a customer. I n August 1994, Si ler wor ked at the inter section of Dickens a nd Cicero Ave nues with another prostitute, Bira

ndi “B rittany” Pascha l, whom she identified in court. Pasc hal’s boy friend, A landa “ J R” McComb, was also Pascha l’s pimp, and would also protec t Brittany when she was wor

king. ¶ 36 Siler first testified that she wa s workingas a pr ostitut e at the inter section of Dic kens and Cicero Ave nues duringthe ea rly morninghours of August 28, 1994, but then stated that she did not remembe r the e x act dates when she was wor king. Siler the n denied knowingwho Kazmierz

12No. 1-12-1316

Kosinski was, and testified that she was not with Kosinski, defe ndant, Pascha l, and McComb on the nig ht of Kosinski’s death. ¶ 37 Siler admitted that she provided a prior wr itten statement to ASA Hahn a nd Detec tive J ohnston, and that she testified be fore the g rand jury . The State a sked Siler about a numbe r of specific statements she made in her prior written statement a

nd g rand jury

testimony , and Siler admitted to providing the statements. Siler ac knowledg ed that she w as trea ted well by

both ASAs and the police , and that she w as neve r made any promises or thre ats in exchang e for her written statement and grand jury

testimony
. ¶ 38 On cr oss-examination, S iler testified that, at the time of the shooting, she had five children f rom three differ ent fathers, and tha t her he roin addiction wa s so strong that her fir st priority was to bec ome hig h befor e takingcar e of he r childre n. Siler admitted that she used heroin e ven thoug h she knewthat it could harm her unborn child. Siler was six mont hs pregnant with defe ndant’s child in August 1994, and defe ndant re peate dly told her that he w as not the fathe r. De fenda

nt has two other pr ostitut es, Gina a nd Rhonda. L ike Siler, Rhonda has a child with defe ndant as we ll as a tattoo of def endant’ s nickname on he r hand. ¶ 39 Siler also testified that she lied to the police beca use she wa s a her oin addict and she did not want to suffe r fr om withdrawa l in jail. W hen Siler wa s arr ested, she lied to the police that she had five children a lone in her hote l room beca use she thoug ht that they

would rele ase he r fr om custody . Detec tive J ohnston then interviewe d Siler conce rningKosinski’s death, and Siler w as not relea sed fr om custody even though she told him that she did not know any thing a bout the murder. Siler the n made up a story based on the photogr aphs that Johns ton showed her , and she

13No. 1-12-1316

implicated def

endant a nd McComb, the only

two pimps she knew, in the shooting . Siler was still in custody

when she testified bef

ore the g rand jury , and she w as g oing thr oug h heroin withdra wal at the time. She admitted that she lied unde r oath be cause she thoug ht she would be a ble to g o home and a

void a murder

char g e if she te stified. Siler was in fa ct re lease d without charg es af ter she testified be fore the g rand jury
. ¶ 40 F. De fenda nt’s Testimony

at Trial ¶ 41 Def

endant testified in his own de fense and denie d shooting Kosinski. Def endant a dmitted that he wa s Sil er’ s pimp and that she fre quently worke d at the interse ction of Dicke ns and Cicer o Avenue s. Defe ndant would sometimes follow Siler to protect he r fr om other pimps, but he denied be ing pr esent the nig ht Kosinski was murdere d. Def endant e x plained that he w as previously

in a re lationship with S iler, but that he told her in August 1994 that he could not support her onc e she be came pregnant since he r stomach wa s showing a nd she did not make enoug h money . Def

endant de nied that he wa s the fathe r of Siler’s c hild and noted that the child’s skin color and ha ir texture w as diffe rent fr om his own. Howeve r, Siler still t old him that he was the father. ¶ 42 On cr oss-examination, defenda nt admitted that he was pr eviously Siler’s pimp and boy friend, a

nd that McComb was Pascha l’s pimp. However , defe ndant denied w orkingwith McComb, and he testified that he did not car ry a gun. Def

endant f urther de nied that he wa s Siler’s pimp and boy friend in Aug ust 1994, and he stated that she no long er lived w ith him at that time. Defe ndant admitted that he wa s addicted to he roin in August 1994. Defe ndant testified that he had lied to the police and provide d false na mes on sever al occ asions. On September 5,
14No. 1-12-1316

1994, two police off

icer s arrived at def

endant’ s hotel room looking f or Siler’s childre n, and defe ndant voluntarily

returne d to the Are a 5 police station with them. At the police station, defe ndant spoke with De tectives Johnst on and Ga wry s conce rningthe shooting, but de fenda nt denied tellingthem that he had spe nt ever y night with Siler except the nig ht of the shooting. ¶ 43 In rebuttal, the State c alled De tective Stephen G awr y s, who testified that whe n he aske d defe ndant wher e he w as on the night of the shooting, de fenda nt stated that he wa s with Si ler
ever y other nig ht except that one. ¶ 44 G. Closing, Conviction, and Sentenc e ¶ 45 At closingargument, the def ense a rgued that Siler wa s not credible, a nd that defe ndant was not pre sent when K osinski was shot and killed. The jury convicted de fenda

nt of murder

and
arme d robber

y . Codefenda

nt Bira ndi Paschal wa s also found guilty of murder

and ar med robbe ry by a sepa rate jury , but codef

endant Ala

nda McComb was a cquitted followinga benc h trial. After consideringfac tors in ag g ravation and mitigation, the trial c ourt sentenc ed def endant to 60 year s in the I llinois Depa

rtment of Corre ctions for murde r, to be ser ved conc urre ntly

with a 20-year sentenc e for

arme d robber

y . ¶ 46 I I . Postt rial Proce eding s ¶ 47 On direc t appea l, defe ndant claimed that his convictions should be rever sed bec ause: (1) the evidenc e wa s insufficient to convict him; (2) c erta in evidence was improper ly admitted; (3) the trial cour

t erre d in instructing the jur y ; and (4) his c ounsel provided inef fec tive assistance by not objectingto the inadmissible evidence . On Marc h 1, 1999, we r ever sed def endant’ s armed robber y conviction, but reje cted de fenda nt’s other c laims. People v . Morrow , No. 1-96-2592
15No. 1-12-1316

(1999) ( unpublished order pursuant to Supreme Court Rule 23). D efe ndant was de nied leave to appea l on J une 2, 1999. People v . Morrow , 184 I ll. 2d 567 (1999). ¶ 48 Whil e def

endant’ s petition for leave to appea l to the I llinois Supreme Court wa s still pending , defe ndant’s counse l filed his first postconviction petition on April 23, 1999. I n his petition, defenda

nt claimed: (1) tha

t his trial counsel provided inef fec tive assistance by

failingto interview Siler be fore trial, investiga te alibi witnesses, and obje ct to improper e vidence and arguments; (2) that he w as for ced to be tried by a jury and to testify

in his own defense ; and (3) that his sentence was e x cessive a nd improperly

enter ed without a pre sentenc e investig ation. The trial court late r g rante d the State’s motion to dism iss the petition, and we af firmed the dismissal on appea l. People v . Morrow , No. 1-00-3878 ( 2003) (unpublished orde r pursua nt to Supreme Court Rule 23). ¶ 49 On Fe bruar

y 11, 2010, defe ndant filed a pro se habeas c orpus petition, which was late r dismiss ed by

the trial cour

t, and we a ffirme d the dismissal on appeal. People v . Morrow , No. 1- 10-1243 (2012) (unpublished orde r pursua nt to Supreme Court Rule 23). In Fe bruar y 2011, defe ndant filed a

petition for re lief fr om judgment pur suant to section 2-1401 of the Code of Civil Procedur e. 735 I L CS 5/ 2-1401 (West 2006). The trial court late r dismissed the 2-1401 petition, and defe ndant appe aled; howe ver, the appellate rec ord in this case doe s not revea l the outcome of de fenda

nt’s prior appe al. ¶ 50 Whil e def

endant’ s appea l of the dismissal of his pro se habeas petition was still pending, defe ndant filed a

motion for leave to file a succ essive pro se postconviction petition on Dec ember

5, 2011. In his successive pe tition, defendant a rgued that his appe llate counse l was
16No. 1-12-1316

ineffe ctive for

not arguing on dir ect a

ppeal that de fenda

nt’s trial counsel wa s ineffe ctive for failingto reque st second-de g ree murder instruc tions. Defenda nt expl ained that he filed his orig inal postconviction petition on April 23, 1999, while his petiti on for lea ve to appe al to the I llinois Supreme Court wa s still pending , in order to c omply with the statute of limitations under the Post-Conviction HearingAct (A ct) (725 I L CS 5/ 122-1(c ) (West 2006)), which re quired petitions to be filed within the sooner of thre e year s from convic tion or six months after dire ct appea l. As a re sult, defenda nt arg ued that he ha d cause to file a succ essive postconviction petition since he ha d to file his first petition to comply with the Act and he did not discover his appellate counsel’s ine ffe ctiveness until his petition for leave to appea l was denie d later on June 2, 1999. The trial c ourt denied de fenda nt leave to f

ile a succ essive petition, findingthat, althoug h defe ndant established c ause to file his succ essive petition, he did not show prejudice since the evidenc e did not support a findingof sec ond-degree murder. ¶ 51 Def

endant now a

ppeals the de nial of his leave to file a succ essive pro se postconviction petition. ¶ 52 ANALYSI S ¶ 53 On appe al, def

endant a rgues that the trial c ourt improperly denied him leave to file a
succe ssive pro se postconviction petition since he esta blished both cause a

nd prejudice
. Specifica lly , defe ndant ar gues that he de monstrated pre judice in his claim that his trial counsel was inef fec tive for f

ailing to r equest a

second- deg ree murder instruc tion, and that his appellate counsel inef

fec tively failed to ra ise this claim on direct a ppeal. In response , the State ar gues that defe ndant did not establish prejudice since the e vidence did not support a findingof sec ond17No. 1-12-1316

deg ree murder. H oweve r, we find that counsel’ s decision not to reque st a second- deg ree murder instruction was appr opriate a s a matter of trial strategy , and we aff

irm defe ndant’s convic tion and sentenc e as a

result. ¶ 54 The Post-Conviction Hear ing A ct provides that “ only one petition may

be filed by

a petitioner under

this Article without leave of the cour t.” 725 I L CS 5/ 122-1(f

) (West 2006). A petitioner may

be grante d leave to file another postconviction petition “only if a pe titioner demonstrates c ause f

or his or her

failure to bringthe claim in his or her initial post conviction proce eding s and pre

judice re sults from that failure.” 725 I L CS 5/ 122-1(f ) (West 2006). “T o establish ‘ca

use,’ the de fenda

nt must show som e objec tive fac tor external to the def ense impede d his ability to raise the c laim in the initi al postconviction proce eding .” People v . Coleman , 2013 I L113307, ¶ 82 (c iting People v . Pitsonbarger , 205 I ll. 2d 444, 460 (2002)). “ To establish ‘pre judice,’ the defe ndant must show the claimed c onstitut ional err or so infec ted his trial that the resultingconviction violated due pr ocess.” Coleman , 2013 I L113307, ¶ 82 (c iting Pitsonbarger , 205 I ll. 2d at 464). Our r eview of the trial cour

t’s dismiss al of de fenda

nt’s postconviction petition is de novo
. People v . Edwards , 197 I ll. 2d 239, 247 (2001). De nov o consideration means we pe rfor m the same a

naly sis that a trial judg e would per form. Khan v. BDO Se idman, LLP , 408 I ll. App. 3d 564, 578 (2011). ¶ 55 As an initial matter, we addre ss defe ndant’s ar gument that our re view is subject to a more lenient consider ation of ca use and pr ejudice a s set forth in People v . LaPointe , 365 I ll. App. 3d 914, 924 (2006). In that case , the Second District he ld that a sec tion 122-1(f) motion “ne ed state only the g ist of a meritorious cla im of cause and pre judice.” LaPointe , 365 I ll. App. 3d at 924.
18No. 1-12-1316

Although de fenda

nt points t o J ustice B urke’ s dissent in People v . Evans , 2013 I L113471, ¶¶ 23- 24, in support of his argument that there is a “split of authority in the appellate court” conce rning the applica

ble standar d for a

succe ssive pro se postconviction petition, defenda nt has not cited another decision that has a cce pted LaPointe ’s “g ist” standard. Mor eover , J ustice B urke note d in Evans that LaPointe has bee n reje cted in People v . Edwards , 2012 I LApp (1st) 091651, ¶¶ 21- 22. Also, our supreme court re cently reje cted the a

rgument that succe ssive petitions should be considere d under the same fir st-stag e “g ist” standard a s an initial postconviction petition. People v. Edwards , 2012 I L111711, ¶ 25. As such, w e dec line to follow the more lenie nt standard se t forth in LaPointe
. ¶ 56 Next, we consider de fenda nt’s claim that he e stablished prejudice sufficie nt to file a
succe ssive petition because his trial counsel wa s ineffe ctive for not reque sting a

second- deg ree murder instruc tion at trial, and that his appellate counsel wa s ineffe ctive for failingto raise this claim on direc t appea l. “ ‘The six th and fourte enth amendme nt of the United States Constituti on guara ntee the f undamental r ight of

a def endant in a c riminal case to be ef fec tively assisted by counsel.’ ” People v . Y

oung , 347 I ll. App. 3d 909, 927 (2004) (quoting People v . Spann , 332 I ll. App. 3d 425, 429 (2002) ( citing U .S. Const ., amends. VI , XIV)). Aclaim of inef fec tive assistance of counse l is judged a ccor ding to the two- prong , perf ormanc e-pr ejudice te st established in Strickland v. W ashington , 466 U.S. 668 (1984). People v . Albanese , 104 I ll. 2d 504, 525 (1984); People v . Boyd, 363 I ll. App. 3d 1027, 1034 (2006). “T o obtain relief under Strickland , a def

endant must prove [1] that defense c ounsel’s per formanc e fe ll below an objective standa

rd of r easona

bleness and [2] that thi s substandard pe rfor mance cause d prejudice
19No. 1-12-1316

by cre atinga re asonable probability that, but for counse l’s err ors, the trial re sult would have bee n differ ent.” Boyd, 363 I ll. App. 3d at 1034 (citing Strickland , 466 U.S. at 687-88. A de fenda nt must satisfy

both prong s of the Strickland test to prevail on a c laim of ineff ective a ssistance of counsel. People v . Flores , 153 I ll. 2d 264, 283 (1992). ¶ 57 A per son commits the offense of sec ond-degree murder w hen he or she commits the offe nse of f

irst-degree murder, a

nd he or she unrea sonably believes a

t the time of the killing that the circ umstances a

re suc h that, if they

exis ted, they

would justify

or exonerate the killing. 720 I L CS 5/ 9-2(a )(2) (West 2010). The statute “ takes into ac count that human being s, in a heated atmosphere , might re ach c onclusions which see m to them under the c ircumstance s rea sonable, but which in the cold lig ht of rational a naly sis are obviously

unrea sonable. It is the ge nius of our law that while not condoningunrea sonable be havior, it neve rtheless re cog nizes and takes into
acc ount that human being s may rea ch unre asonable beliefs, g iven the cir cumstance s of the moment and the conditions under which belief s are formulated a

nd drawn.” People v . Vaughn , 26 I ll. App. 3d 247, 255 (1975). Where there is even slig ht evidence in the rec ord that, if believe d by the jury , would reduc e the c rime to a lesse r-include d offe nse, an instruc tion definingthe lesser offe nse should be g iven. People v . Upton , 230 I ll. App. 3d 365, 374 (1992) (c iting People v

. Perry , 19 I ll. App. 3d 254, 257-58 (1974); People v . Steve nson , 196 I ll. App. 3d 225, 230 (1990); People v . W

illis , 170 I ll. App. 3d 638, 641 (1988)). ¶ 58 Def

endant a rgues that his counsel wa s ineffe ctive since the evidenc e at tria l was suffic ient for a findingof sec ond-degree murder. Siler te stified at trial that, at the time of the shooting, defe ndant was he r pimp and “pr otector;” defe ndant was he r boy friend of four year s and she lived
20No. 1-12-1316

with him for two y ear s; she was five months preg nant with defe ndant’s child; and she “loved” defe ndant and his nickname was tattooed on her wrist. On August 28, 1994, Kosinski fought with Siler and she c alled to def endant f or help, a nd in response de fenda

nt ran to her

defe nse and shot Kosinski to protect the life of his girlf riend a nd unborn child. De fenda nt argues that, since defe ndant unre asonably

believed that he was justified in killing Kosinski, the evide nce suppor ts a conviction of sec ond-degree murder, a nd his trial counsel wa s ineffe ctive in fa iling to re quest an instruction. ¶ 59 Howeve r, eve n if we de termine that ther e wa s sufficient e vidence to support a sec onddeg ree murder instruc tion, defense counsel may have c oncluded that a

self-de fense theory

would have be en incompatible with the theor y prese nted, since it would re quire de fenda nt to admit to the shootings. “ [T] he dec ision of whether to submitan instruction on a lesse r included of fense is ty pically considere d to be one of

trial strategy

that has no bea

ringon the compete ncy

of counse l beca use counse l could have r easona bly believed that the instruction would have c onverte d a likely acquittal into a likely

conviction of the le sser c rime.” People v . W hite , 2011 I LApp (1st) 092852, ¶ 70 (quoting People v . Cathey , 406 I ll. App. 3d 503, 512 (2010), rev’d on other grounds , 2012 I L111746). He re, de fense counsel made the strateg ic dec ision to argue that the State failed to prove its case, a nd althoug h defe ndant’s trial c ounsel argument was ultimately
unsucce ssful, that “does not mea n counsel pe rfor

med unre asonably

and re ndere d ineffe ctive assistance .” People v . W

alton , 378 I ll. App. 3d 580, 589 (2007). ¶ 60 This case would be diffe rent if the de fense counsel ha d conce ded in his or her opening that defe ndant had c ommitt ed the murde r. “ ‘ Where de fense counsel a rgues a the ory

of def ense
21No. 1-12-1316

but then fails to offe r an instruc tion on that theory of def ense, the failure cannot be called tr ial strategy and is evidenc e of ine ffe ctive assistanc e of c ounsel.’ ” W hite , 2011 I LApp (1st) 092852, ¶ 65 (quoting People v . Serrano , 286 I ll. App. 3d 485, 492 (1997)). When de fense counsel
conce des that def

endant is the murde rer , then the only issues left for the jury

to resolve at trial are issues relatingto affir

mative def

enses a nd second- deg ree murder. I f counse l then fails to follow throug h and fa ils to request the appr opriate instruc tions, then this m ay be conside red ineffe ctiveness of

counsel. People v . Lewis , 240 I ll. App. 3d 463, 469-70 (1992) ( findingthat wher e trial c ounsel told the jury in closing, “ ‘You g ot an ea sy job on Nimrod. I f it was justified, y ou turn him loose, if it wasn’t, you convict him,’ ” tria l counsel wa s ineffe ctive for failingto submit an instruction on just ification or voluntar y manslaug hter). ¶ 61 Howeve r, that is not the case here . In the ca se at ba r, the de fense counsel c ontested the fac t that defe ndant was the murdere r, fr om the openingrema rks throug h cross-e x amination, and rig ht throug h to the closing . Def endant testified in his own de fense that he did not shoot Kosinski and that he w as not eve n prese nt duringthe commission of the offe nse. At that point, the dec ision whether to reque st a second- deg ree instruction, and thus g ive the jury a compr omise point short of a f ull acquittal, beca

me a pa rt of the tria l strateg y . ¶ 62 Although de fenda nt argues now that he unrea sonably believed he was justified in killing Kosinski to protect his gir lfriend a nd unborn child, at trial de fenda nt testified that, in August 1994, he no long er lived w ith Si ler a nd she wa s no longe r his g irlfriend, a nd he denie d that he was the f ather of Siler’s child. Since de fenda nt himself denied that he w as in a re lationship with Siler at the time of the shooting , defe ndant’s testimony does not support his theory for se cond22No. 1-12-1316

deg ree murder a

nd instead supports the conc lusion that the decision not to request a se conddeg ree murder instruc tion was a matter of trial strate g y . ¶ 63 We observe that the sentenc ing r ang e for first-degree murder is 20 to 60 year s (730 I L CS 5/5-4.5-20(a ) (West 2012)), while the sentenc ing r ang e for second- deg ree murder is 4 to 20 (730 I L CS 5/ 5-4.5-30( a) ( West 2012)). Althoug h one’s e x posure unde r first-de gree murder is greater, it is poss ible to rec eive the sa me sentenc e whe ther one is convicted of f irst- or sec ond-degree murder. T he ultimate sentenc e is left to the trial c ourt’s discre tion, which counsel may addre ss at sentenc ing by

showingmitigatingfac tors. People v . Haley , 2011 I LApp (1st) 093585, ¶ 63. T his overla p in possible sentence s is part of the r eason why the dec ision whether to ask f or a se conddeg ree murder instruc tion is usually considere d part of the defe nse’s trial strategy . ¶ 64 We conclude that defe ndant’s trial c ounsel did not render ineffe ctive assistanc e bec ause the “r ecor d here establishes that def ense c ounsel thoroug hly

investigated and pr epar ed defe ndant’s ca se and r easona bly chose to a

rgue def endant’ s complete innoce nce in the shooting , rathe r than a

justification for it.” People v . Jones , 234 I ll. App. 3d 1082, 1098 (1992). In turn, defe ndant’s appe llate counse l was not ineff ective in f ailing to r aise the issue on dire ct appe al since ther e wa s no merit to defe ndant’s cla im. As a result, the trial c ourt did not err in de nying defe ndant leave to file a succ essive postconviction petition since def endant did not establish prejudice , and we aff

irm defe ndant’s convic tion and sentenc e. Since we find that defe ndant did not show prejudice , we ne ed not consider whether he had c ause to file his succ essive petition.

23No. 1-12-1316

¶ 65 CONCLUSI ON ¶ 66 For

the fore g oing r easons, we aff irm defe ndant’s convic tion and sentenc e. ¶ 67 Affir

med.

24