2022 IL App (1st) 200714-U 

 SECOND DIVISION

 December 20, 2022 

No. 1-20-0714 

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 JUDICIAL DISTRICT

______________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the

 ) Circuit Court of

 Respondent-Appellee, ) Cook County.

 ) 

v. ) No. 13 CR 12269 

 ) 

RANDY EDMONDSON, ) Honorable 

 ) Charles P. Burns, 

Petitioner-Appellant. ) Judge Presiding.

______________________________________________________________________________ 

JUSTICE ELLIS delivered the judgment of the court.

Presiding Justice Fitzgerald Smith and Justice Cobbs concurred in the judgment. 

ORDER

¶ 1 Held: Summary dismissal of post-conviction petition affirmed. Direct-appeal counsel 

was not arguably deficient for failing to raise alleged violation of confrontation 

clause. In addition to forfeiting claim, petitioner cannot show arguable prejudice 

from trial counsel’s failure to request defense-of-another instruction. 

¶ 2 Petitioner Randy Edmonson was convicted of the first-degree murder of Jose Escobar and 

the attempted murder of Alberto Rivera. In this appeal, from the summary dismissal of his postconviction petition, he raises two issues of ineffective assistance of counsel. First, he contends 

that direct-appeal counsel was arguably ineffective for failing to raise an alleged violation of the

Confrontation Clause, based on the State’s use of witness Victoria Garza’s prior testimonial 

statements at trial. Second, he contends that trial counsel was arguably ineffective for failing to 

request a jury instruction on defense of another. We affirm.
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¶ 3 BACKGROUND

¶ 4 For a full account of the underlying crimes and trial evidence, see our decision affirming 

petitioner’s convictions on direct appeal. People v. Edmonson, 2018 IL App (1st) 151381. We

reproduce portions of that discussion here to provide the necessary background and context for 

resolving petitioner’s post-conviction claims.

¶ 5 The victims, Jose Escobar and Alberto Rivera, were shot in front of Johnny O’s, a hotdog 

stand at 35th and Morgan Streets, around 5:00 a.m. on September 30, 2012. Escobar was shot 

once in the face, from close range, and died on the scene from his gunshot wound. Rivera 

survived, but his injuries left him paralyzed and reliant on a wheelchair.

¶ 6 Rivera testified about the shooting and the events leading up to it. Rivera and Escobar left 

a party nearby and went to Johnny O’s for a bite to eat. Rivera drank a few beers throughout the 

night and used cocaine at the party. Escobar was drunk. They were both Latin Kings.

¶ 7 The line in front of Johnny O’s was a friendly scene. The customers chatted and mingled 

on the sidewalk while they waited for their food. Rivera, a car salesman, gave out his business 

card and tried to sell someone a car.

¶ 8 Petitioner and his friend, Rafael Diaz, walked up to the line. Rivera did not know either 

of them. Rivera first noticed them after Diaz and Escobar started arguing. Escobar was upset that 

Diaz wore his hat tilted to the right, which Escobar took as a sign of opposition or disrespect to 

the Latin Kings. Rivera tried to calm Escobar down. And so did petitioner, who repeatedly told 

Escobar, “we don’t gang bang.”

¶ 9 Julius Williams, another Johnny O’s customer, testified that he arrived amid a heated and 

escalating dispute. Williams did not know any of the people involved, and he heard only “bits 

and pieces” of their argument. But he did recall Escobar asking petitioner and Diaz if they were 
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“Kings,” and petitioner responding, “We don’t gang bang.”

¶ 10 At some point, Escobar took off his hoodie. Diaz motioned off to the side and said, “if 

you want to go, then let’s go over here.” Diaz stepped away from the line, and Escobar followed. 

Escobar shoved Diaz. The two squared off, with their fists raised, as if they were about to fight. 

But they never did.

¶ 11 Rivera testified that he tried to break them up. At first, petitioner did too. But then 

petitioner, who was standing somewhere behind Escobar, pulled a revolver out of his waistband; 

“swung around in front of” Escobar, put a gun “in his face,” and shot him.

¶ 12 Rivera turned and ran, but he was shot from behind while trying to flee. Rivera fell to the 

ground and was shot two more times. He tried to move, but he could not feel his legs. In all, he 

suffered three gunshot wounds—to his back, shoulder, and left leg.

¶ 13 Williams testified that petitioner, who was standing off to the side of Escobar, walked up 

to Escobar and put a long-nose revolver to his head. The gun was “[r]eally close. Like, pointblank range.” Williams immediately turned and ran. While he was fleeing, he heard a single 

gunshot, and then about four more gunshots fired in quick succession. Williams escaped safely 

and ran to his apartment nearby.

¶ 14 Neither Rivera nor Williams saw anyone at Johnny O’s with a gun, or any other weapon, 

other than petitioner. Rivera also testified that he was unarmed. 

¶ 15 The witnesses’ accounts of the events leading up to the shooting were corroborated, in all 

essentials, by video footage from a Johnny O’s surveillance camera. Rivera and Williams viewed 

and identified various clips, and the entire video was published to the jury.

¶ 16 Before petitioner and Diaz arrived, Rivera is seen mingling with the other customers for 

several minutes. Escobar is visibly drunk, often swaying and propping himself up against the 
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counter. Soon after petitioner and Diaz join the line, Escobar and Diaz begin to argue. Escobar 

repeatedly gets in Diaz’s face, and both are evidently agitated. Most of the argument is inaudible, 

but at various points Escobar says to Diaz, “respect me ni***.” Rivera makes several efforts to 

calm Escobar down, and petitioner repeats, “we don’t gang bang” numerous times.

¶ 17 After a few minutes, Diaz and Escobar step away from the counter. Escobar takes off his 

hoodie, and Diaz raises his fists in the air, as the two square off to fight. Escobar pushes Diaz, 

but otherwise the details of their confrontation are not evident on the video.

¶ 18 Meanwhile, petitioner and Rivera start walking over toward Diaz and Escobar. Along the 

way, petitioner, who had a phone in his right hand, appears to reach into his waistband with his 

left. A couple of seconds later, Williams turns and starts running. Someone yells “back up,” and 

a single gunshot is audible. Rivera turns and runs, but as five more gunshots are fired in quick 

succession, Rivera falls to the ground. 

¶ 19 Victoria Garza, petitioner’s friend and Diaz’s girlfriend, testified to the events that 

immediately followed the shooting. Garza and Diaz shared an apartment across the street from 

Johnny O’s. In the wee hours, when Garza was drunk and getting ready for bed, Diaz went to 

Johnny O’s. Beyond that, Garza’s recollections were sparse: She heard a loud boom outside.

Soon after that, petitioner came over, agitated and out of breath. Garza, Diaz, and petitioner 

drove toward Indiana on the Dan Ryan Expressway. Petitioner got out somewhere near the 

expressway, but Garza could not recall where. (The Danville Police Department arrested him on 

an unrelated matter, some nine months later and 140 miles from Chicago, and discovered an 

outstanding arrest warrant in this case.)

¶ 20 After claiming not to recall any further details of the evening, the State sought to impeach 

Garza with her grand-jury testimony and handwritten statement. It was the State’s use of these 
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prior statements that, in petitioner’s view, violated the Confrontation Clause. For the sake of 

economy, we reserve our discussion of Garza’s prior statements and the trial court’s rulings on 

their admissibility until we reach our analysis of petitioner’s confrontation claim.

¶ 21 At petitioner’s request, and over the State’s objection, the trial court instructed the jury 

on self-defense, with respect to both charged offenses; and on the mitigated offense of seconddegree murder, based on petitioner’s unreasonable belief that self-defense was necessary. The 

trial court found that there was a basis in the evidence for self-defense and second-degree-murder 

instructions, because there “appear[ed] to be some contact between Mr. Diaz and Mr. Escobar 

immediately prior to the shooting.” Defense counsel did not request an instruction on defense of 

another. 

¶ 22 Petitioner later filed the post-conviction petition at issue here, which the circuit court 

summarily dismissed. For reasons it did not explain, the circuit court “decline[d] to deem 

‘patently erroneous’ appellate counsel’s assessment of the record and decision not to raise” the 

confrontation issue (and others no longer relevant). As for petitioner’s claim that trial counsel 

was ineffective for failing to request a defense-of-another instruction, the circuit court held that 

the claim was forfeited because it could have been, but was not, raised on direct appeal.

¶ 23 ANALYSIS

¶ 24 I 

¶ 25 We begin with the confrontation clause issue. In her written statement and grand-jury 

testimony, Garza said, among other things, that during the car ride toward Indiana, Diaz asked 

petitioner why he shot Escobar in the head; in response, petitioner sobbed and said that he 

“wasn’t going to County” and that he “wanted to kill himself.” At trial, Garza claimed that she 

did not remember saying these things (though she did not deny saying them, either). For ease of 
No. 1-20-0714 

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reference, we will refer to these specific prior statements, recounting the conversation between 

Diaz and petitioner during the car ride toward Indiana, as the “disputed statements.” 

¶ 26 As petitioner reads the record, the trial court allowed the State to introduce the disputed 

statements as substantive evidence—even though, in petitioner’s view, Garza’s claimed memory 

loss rendered her effectively “unavailable” for cross-examination. Petitioner thus contends that 

the use of the disputed statements violated the Confrontation Clause, and that direct-appeal 

counsel was ineffective for failing to raise this issue.

¶ 27 At the first stage, petitioner must show that direct-appeal counsel was arguably deficient 

in failing to raise this issue, and that he was arguably prejudiced by that failure on direct appeal. 

People v. Petrenko, 237 Ill. 2d 490, 496-97 (2010); see Strickland v. Washington, 466 U.S. 668 

(1984). Our review is de novo. Petrenko, 237 Ill. 2d at 496.

¶ 28 A 

¶ 29 We begin with a threshold problem for petitioner’s claim: the disputed statements were 

not admitted into evidence, for any purpose. Thus, the claim has no basis in the record.

¶ 30 During the State’s direct examination, Garza’s memory of the night in question began to 

falter—or so she claimed, at least. So the State asked if she remembered being interviewed at the 

police station by Assistant State’s Attorney (ASA) Holly Kremin and giving a written statement 

at that time. In due course, the State would also ask Garza similar questions about her grand-jury 

testimony and preparation for that proceeding with ASA Latoya Croswell. 

¶ 31 Apparently aware that Garza would claim not to remember these (and other) details of 

her written statements and grand-jury testimony, defense counsel objected that this entire line of 

questioning was “not impeaching.” The trial court allowed the State to proceed, over objection, 

at least for the purpose of impeaching Garza. The court also noted that the State might be seeking
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to lay a “foundation” for the “substantive” use of her prior inconsistent statements.

¶ 32 Garza went on to acknowledge that she gave a written statement at the police station and 

testified before the grand jury. But she claimed that, by and large, she did not remember what she 

said. And she specifically claimed that she did not remember making the disputed statements. 

¶ 33 Before the State called ASAs Kremin and Croswell to the stand, to prove up the content 

of Garza’s written statement and grand-jury testimony, the trial court ruled that the disputed 

statements were not admissible as substantive evidence under section 115-10.1 of the Code of 

Criminal Procedure. See 725 ILCS 5/115-10.1 (West 2020). In light of that ruling, ASAs Kremin 

and Croswell did not prove up the disputed statements, and the State never perfected its intended 

impeachment of Garza with those statements. Indeed, the ASAs did not testify that Garza ever 

said anything at all about any conversation between Diaz and petitioner in the car. All that they 

proved up (apart from some other unrelated and frankly unimportant matters of impeachment) 

was Garza’s statement that petitioner said “get me out of here” when he arrived at the apartment, 

which the trial court admitted as substantive evidence, and which is not at issue in petitioner’s 

confrontation claim. 

¶ 34 In short, the jury was not offered any proof that Garza ever made the disputed statements. 

What the jury actually heard was the question, put to Garza, whether she recalled making those 

statements; Garza’s testimony that she had no such recollection; and evidence that Garza made a 

different statement on the two prior occasions in question. Simply put, the disputed statements 

were not in evidence. Hence, direct-appeal counsel had no basis for raising this issue. For this 

reason alone, petitioner cannot establish that direct-appeal counsel was arguably ineffective.

¶ 35 B 

¶ 36 We should acknowledge that part of the confusion on this point was of our own making. 
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In our previous opinion on this matter, written by the same author of this Order, we wrote that 

Garza was impeached with her prior inconsistent statements after she claimed that her memory 

had faltered. Edmondson, 2018 IL App (1st) 151381, ¶ 21. As we have just explained, that is not 

accurate. It would have been more accurate to have said there what we say above—that the State 

asked Garza if she made those inconsistent statements, she said she did not recall, and then the 

State sought to impeach Garza with the disputed statements but was not permitted to do so. Thus, 

the statements were never proved and were not in evidence for any purpose.1

¶ 37 C 

¶ 38 In any event, even if petitioner were correct that the mere mention of these statements by 

petitioner put in the form of questions to Garza, without ever being proved up, were enough to 

jump-start a confrontation claim, the claim would fail for another reason—Garza’s claimed 

memory loss did not arguably deny petitioner an opportunity for effective cross-examination. 

Otherwise put, it did not render Garza “unavailable” for cross-examination. 

¶ 39 An out-of-court testimonial statement may be admitted as substantive evidence only if the 

declarant is available for cross-examination at trial or, if not, the defense had a prior opportunity 

to cross-examine the declarant about the statement. Crawford v. Washington, 541 U.S. 36, 68 

1 We should further note that this misstatement did not contribute in any meaningful way to the 

outcome of that direct appeal. We did reference petitioner’s statement to Garza that “he feared 

going to ‘county’ ” (id. ¶ 58) in the context of a broader and lengthy discussion about whether it 

was ineffective for trial counsel to fail to argue theories of self-defense and second-degree 

murder to the jury in closing argument. The fact that petitioner made that statement to Garza, but 

never mentioned being in fear of his life, was one of multiple reasons why defense counsel could 

have reasonably decided not to argue those theories to the jury, even though the jury was given 

instructions on those theories. It was by no means the only reason and not nearly the most 

decisive one. See id. ¶ 30-59. While we regret the misstatement of the record, it played no 

meaningful role whatsoever in the outcome of the direct appeal. 
No. 1-20-0714 

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(2004). It is true, as petitioner says, that a witness who takes the stand may still be “unavailable” 

for cross-examination; at some point, the witness’s inability or refusal to answer questions may 

deny the defense its constitutionally guaranteed “opportunity for effective cross-examination.” 

See United States v. Owens, 484 U.S. 554, 559 (1988). 

¶ 40 But a witness who takes the stand at trial is “unavailable” only when she is completely, or 

almost completely, unable or unwilling to answer questions, as two of petitioner’s own principal 

citations illustrate. In In re Rolandis G., 232 Ill. 2d 13, 18 (2008), the witness-victim “answered a 

few preliminary questions about himself” and identified the defendant as someone he knew from 

the neighborhood, but “when asked about the events” in question, he “resolutely refused to 

respond” and “could not bring himself to answer questions about the allegations.” Similarly, in

In re Brandon P., 2014 IL 116653, ¶¶ 14-16, 47, the witness-victim “could barely answer the 

trial court’s preliminary questions [at the bench trial], and then completely froze when the State 

attempted to begin its direct examination of her.” In short, neither witness could answer any 

substantive questions at all, either about the underlying offenses or their prior testimonial 

statements that were admitted into evidence.

¶ 41 The logical corollary of this point is that a witness does not need to be able to answer 

every question posed to the defense’s satisfaction in order to be deemed “available” for crossexamination. “The Confrontation Clause guarantees only an opportunity for effective crossexamination, not cross-examination that is effective in whatever way, and to whatever extent, the 

defense might wish.” (Citations omitted.) Owens, 484 U.S. at 559. 

¶ 42 And in particular, “a gap in the witness’s recollection concerning the content of a prior 

statement does not necessarily preclude an opportunity for effective cross-examination.” People 

v. Flores, 128 Ill. 2d 66, 88 (1989). In Flores, our supreme court held that the confrontation 
No. 1-20-0714 

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clause permitted the State to introduce a witness’s grand-jury testimony as substantive evidence 

after he claimed at trial that he could not remember its content. Id. at 87-90. Similarly, in People 

v. Martin, 408 Ill. App. 3d 891, 895-97 (2011), we held that the confrontation clause permitted 

the State to introduce a written statement that the witness claimed not to remember at trial. The 

same conclusions would apply to Garza’s written statement and grand-jury testimony, had they 

been admitted into evidence. 

¶ 43 To the extent that People v. Yarbrough, 166 Ill. App. 3d 825, 831 (1988), cited here by 

petitioner, stands for the general proposition that effective cross-examination is impossible when 

a witness claims not to remember an out-of-court statement, we would note, as we have before, 

that Yarbrough preceded both Flores and Owens. See People v. Hampton, 387 Ill. App. 3d 206, 

213 (2008); People v. Tracewski, 399 Ill. App. 3d 1160, 1168 (2010) (Steigmann, J., specially 

concurring). So at the very least, Yarbrough should no longer be cited as good law.

¶ 44 The fact that a witness has a poor memory, and is to this extent unreliable, is “often the 

very result sought to be produced by cross-examination, and can be effective in destroying the 

force of the prior statement.” Flores, 128 Ill. 2d at 90 (quoting Owens, 484 U.S. at 562). The 

record here exemplifies this point. Defense counsel cross-examined Garza before the trial court 

ruled on the admissibility of the disputed statements and other aspects of her written statement 

and grand-jury testimony. Counsel thus had ample motivation to explore the circumstances of 

those statements and challenge their credibility and reliability. And to this end, counsel’s crossexamination of Garza was in many ways effective.

¶ 45 For one, Garza testified on cross-examination that she was “pretty drunk” by the time the 

events unfolded at Johnny O’s, at 4:00 in the morning, since she drank “10 to 15 drinks, shots” 

and smoked cannabis earlier that night. With this testimony, counsel sought to cast doubt on 
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Garza’s ability to remember the events of that evening and, in turn, on the reliability of any

statements she later made about them.

¶ 46 Defense counsel also elicited testimony from Garza that, if believed by the jury, would 

have significantly diminished whatever force her grand-jury testimony otherwise would have 

had. See id. As Garza explained, she had to review her written statement about four times with 

ASA Croswell before testifying to the grand jury because, even by then, she “didn’t remember” 

anything she had previously said about the night of the shootings. In fact, Garza only knew what 

to say to the grand jury because she was “reading it off the paper.” Defense counsel thus made 

the case that her grand-jury testimony had no independent evidentiary value.

¶ 47 Beyond that, defense counsel brought out that Diaz was Garza’s boyfriend at the time, the 

father of her child, and her principal means of financial support. A few days after the shootings, 

Garza dropped Diaz off at the police station. Later that day, she gave her own written statement 

to ASA Kremin at the station. Defense counsel’s theory, as articulated during a sidebar, was that 

Garza had a clear motive to implicate petitioner in her written statement: to protect Diaz, “her 

man.” Many of the elements of this theory were successfully elicited in cross-examination and

later highlighted in closing argument. Some other elements—that Garza supposedly knew Diaz 

was being charged in connection with the shootings, and that Diaz was on bond at the time, on a 

pending federal charge—were never brought out. But that was because the trial court did not 

permit counsel to cross-examine Garza on these topics. It was not the result of Garza’s claimed 

memory loss. 

¶ 48 All in all, Garza’s claimed memory loss did not deprive the defense of an opportunity for 

meaningful cross-examination. Direct-appeal counsel was not arguably deficient for failing to 

raise this alleged violation of the confrontation clause. 
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¶ 49 II

¶ 50 The jury was instructed on self-defense (with respect to the murder of Escobar and the 

attempted murder of Rivera) and imperfect self-defense (with respect to the murder charge). But 

the jury was not instructed on perfect or imperfect defense of another—in particular, defense of 

Diaz—with respect to either charge. See 720 ILCS 5/7-1(a); Illinois Pattern Jury Instructions 

(IPI), Criminal No. 24-25.06 (4th ed.). Thus, the jury had no option to acquit petitioner, or to 

mitigate the first-degree murder charge, on the ground that he was responding (reasonably or 

unreasonably) to a perceived threat that Escobar posed to Diaz, as opposed to petitioner himself. 

Petitioner alleges that trial counsel was ineffective for failing to request these defense-of-another 

instructions. 

¶ 51 For two independent reasons, the trial court correctly dismissed this claim. The first is 

that this argument is forfeited, as petitioner’s claim is based entirely on the trial record, and thus 

he could have raised it on direct appeal but did not. 

¶ 52 In Illinois, many Strickland claims made against trial counsel involve matters that require 

the development of a factual record beyond the record on appeal—for example, something trial 

counsel said privately to the defendant, or trial counsel’s failure to pursue certain evidence or 

witnesses. When raised on direct appeal, we thus decline to consider those claims for that very 

reason and urge defendants to file a postconviction petition, where they can develop the 

appropriate record. See People v. Veach, 2017 IL 120649, ¶ 46. But if the Strickland claim is 

based entirely on the trial record, the appellate court is in perfect position to review it, and thus it 

must be raised on direct appeal or be forfeited. Id. ¶ 47. 

¶ 53 Here, petitioner presents no new evidence, outside the trial record, that he could not have 

presented on direct appeal. Certainly, as to the first prong of a Strickland claim—deficient 
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representation—the trial record would have been more than enough for our review on direct 

appeal. The trial court had already allowed petitioner to submit defense theories of self-defense 

and unreasonable self-defense/second-degree murder. It would have cost petitioner nothing to 

also add the theory that, beyond defending himself, he was alternatively trying to protect Diaz

from attack. It would have been a simple matter of requesting that the justification instruction 

include a reference to Diaz alongside the reference to petitioner. See IPI (Criminal) 4th No. 24-

25.06 (“A person is justified in the use of force when and to the extent that he reasonably 

believes that such conduct is necessary to defend [(himself) (another)] against the imminent use 

of unlawful force.”) (Italics in original.) 

¶ 54 And the trial court almost surely would have allowed that instruction; it allowed the selfdefense and unreasonable self-defense instructions because there “appear[ed] to be some contact 

between Mr. Diaz and Mr. Escobar immediately prior to the shooting.” If that was the 

evidentiary basis for submitting the issue of justification (and mitigation) to the jury, then a 

defense-of-another instruction actually made more sense than a self-defense instruction.

¶ 55 And though the State here argues that counsel’s decision not to seek that instruction was 

unreviewable trial strategy, an argument that is typically inappropriate for the first stage (see 

People v. Tate, 2012 IL 12214, ¶¶ 18-22), this is the rare case where the record is sufficient to 

resolve that question—but in petitioner’s favor. Again, there is no possible strategic reason why 

trial counsel should not have requested the defense-of-another instructions. They went part-andparcel with his instructions on self-defense and would have given the jury additional bases for 

acquittal.

¶ 56 And as to prejudice, the second prong of a Strickland claim, the record on appeal likewise 

would have been all we would have needed on direct appeal. It would be a simple matter of 
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reviewing the strength of the overall evidence against petitioner and the viability of a defense-ofanother theory in light of that evidence to determine whether the absence of those jury 

instructions likely would have led to a different outcome.

¶ 57 All of this is merely to say that the record on appeal alone was sufficient to consider this 

Strickland claim against trial counsel. And thus petitioner was required to raise it on direct 

appeal on pain of forfeiture. To pursue that claim in a postconviction petition, petitioner would 

have been required to attack the effectiveness of direct-appeal counsel for failing to raise it. See, 

e.g., Petrenko, 237 Ill. 2d at 499; People v. Patterson, 192 Ill. 2d 93, 120 (2000); People v. 

Williams, 209 Ill. 2d 227, 233 (2004). He makes no such allegation. When a post-conviction 

claim of ineffective assistance of trial counsel is “based on the record” and “not raised on direct 

appeal,” and the petitioner “does not allege ineffective assistance of appellate counsel,” he 

forfeits review of the issue, and the claim may be summarily dismissed on this basis. See, e.g.,

People v. Youngblood, 389 Ill. App. 3d 209, 214 (2009). We are bound to reach that conclusion 

here.

¶ 58 Lest petitioner feel as if a valid Strickland claim was lost via forfeiture, we should be 

clear that the claim was not, in fact, valid. While petitioner may have been able to establish 

deficient performance for trial counsel’s failure to request defense-of-another instructions, we 

have no hesitation in finding that petitioner could not have established the second Strickland

prong, prejudice. He could not show or even arguably show that the verdict would have been 

different had the defense-of-another instructions been given.

¶ 59 It is one thing for a trial court to err on the side of submitting a factual question to the 

jury, by granting an instruction that is just barely warranted, if at all, by the evidence. But it is 

quite another for an appellant to establish Strickland prejudice, or even an arguable claim of 
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Strickland prejudice. And defense-of-another was an extremely weak defense to any charge, 

even if (as the trial court’s ruling would seem to reflect) it made somewhat more sense than a 

theory of self-defense.

¶ 60 Take the attempted murder of Rivera. For petitioner to prevail on a justification defense, 

whether defense of another or self-defense, petitioner’s belief that defensive force was necessary 

had to be not just sincere but reasonable under the circumstances. See People v. Taylor, 2016 IL 

App (1st) 141251, ¶ 11; People v. Jeffries, 164 Ill. 2d 104, 127-28 (1995); 720 ILCS 5/7-1(a) 

(West 2020). But as we explained on direct appeal, “[i]t is beyond dispute that Rivera never 

posed any threat to [petitioner] (or anyone else).” (Emphasis added.) Edmonson, 2018 IL App 

(1st) 151381, ¶ 54. Before the shooting, Rivera mingled jovially with the other customers. When 

Escobar and Diaz started having words, Rivera tried to calm his friend down. He never 

threatened anyone, not even verbally. Yet when Rivera fled, after petitioner shot Escobar, 

petitioner turned his gun on Rivera and shot an unarmed man in the back. After Rivera fell to the 

ground, unable to move, petitioner kept shooting him. This was indisputably not a reasonable or 

justified use of deadly force. Id. ¶¶ 54-55. And that point stands, no matter who petitioner might 

try to claim he was “defending.”

¶ 61 The same is true with respect to the first-degree murder of Escobar. To acquit petitioner 

on a defense-of-another theory, the jury would have to find that it was objectively reasonable to 

use deadly force in defense of Diaz at that moment—when a drunken, wobbly Escobar, who 

could barely hold himself up at times, who had no visible weapon and was plainly not reaching 

for one (as his hands were in the air), appeared to be squaring off for nothing worse than a fistfight with Diaz. These circumstances do not provide an objectively reasonable justification for 

shooting Escobar in the face. Not even arguably.
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¶ 62 Granted, a claim that petitioner was defending Diaz from Escobar gets slightly more 

traction than a claim that he was defending himself from Escobar. As petitioner notes, selectively 

excerpting our decision on direct appeal, Escobar’s “belligerence was directed at Diaz,” as was 

“any physical threat that Escobar may have posed.” Id. ¶ 50.

¶ 63 But then again, Escobar’s drunken “belligerence” was “almost purely verbal,” and any 

“physical threat” he may have posed to Diaz “was minimal to boot.” Id. In particular, “Escobar 

shoved Diaz once, and then squared off against Diaz for a fistfight. But it never even came to 

blows between Escobar and Diaz,” since petitioner walked over at that point and shot Escobar. 

Id. So while we did make the point that self-defense was an even weaker theory than defense-ofanother—in the course of explaining why counsel could have reasonably taken a pass on arguing 

self-defense to the jury—we never meant to suggest that a defense-of-another claim had some 

meaningful prospect of victory. The facts show that petitioner’s use of deadly force against 

Escobar was not even arguably justified, on either theory of justification.

¶ 64 That leaves second-degree murder. A defense-of-another instruction would have allowed 

the jury to find this mitigated offense based on a sincere, albeit unreasonable, belief that Escobar 

posed an imminent threat to Diaz’s life. See 720 ILCS 5/9-2(a)(2) (West 2020); Jeffries, 164 Ill. 

2d at 113. As we previously explained, there was little, if any, evidence that petitioner sincerely 

perceived Escobar as an imminent threat to his own life. And there is not much more to be said 

for a claim that he perceived Escobar as an imminent threat to Diaz’s life.

¶ 65 For one, the objective circumstances do not support an inference that petitioner genuinely 

feared for Diaz’s life. There was no evidence that petitioner harbored the belief, reasonable or 

otherwise, that Diaz’s life was at risk—no utterance, gesture, or expression from petitioner on 

that video. And it bears emphasis that the defense bore the burden on this question at trial. 720 
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ILCS 5/9-2(c) (West 2020).

¶ 66 Ultimately, petitioner’s supposed belief that Diaz’s life was in imminent danger would 

have to be inferred from a drunken, unarmed Escobar’s apparent readiness for a fistfight with 

Diaz. True, Escobar was also an agitated gang member who felt disrespected by Diaz’s crooked 

hat. Of course, it is conceivable that petitioner thus grew fearful of deadly violence toward Diaz. 

See Edmonson, 2018 IL App (1st) 151381, ¶ 57. But beyond that, there was really nothing to 

suggest that petitioner genuinely feared for Diaz’s, or anyone else’s, life. And the jury would still 

have to accept that petitioner, believing Escobar to be a mortal threat, deliberately walked over to 

him and put himself directly in the line of danger. See id. ¶ 58. 

¶ 67 So while the evidence may been minimally sufficient to warrant a jury instruction, by no 

means do we find any merit to any claim of defense of another in any form. Petitioner was not 

arguably prejudiced by trial counsel’s failure to request instructions on defense of another. 

¶ 68 CONCLUSION

¶ 69 For these reasons, we affirm the judgment of the circuit court.

¶ 70 Affirmed.