2024 IL App (1st) 230180-U

No. 1-23-0180 

Second Division

April 23, 2024 

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. 

JOSE G. MARTINEZ, 

 Defendant-Appellant. 

) Appeal from the

) Circuit Court of

) Cook County.

) 

) 

) No. 13 CR 15605

) 

) 

) Honorable 

) Michael B. McHale, 

) Judge, Presiding.

____________________________________________________________________________

JUSTICE COBBS delivered the judgment of the court.

Presiding Justice Howse and Justice McBride concurred in the judgment.

ORDER

¶ 1 Held: The trial court did not err in summarily dismissing defendant’s initial 

postconviction petition because his appellate counsel was not ineffective for failing 

to raise meritless claims on direct appeal that (1) his due process rights were 

violated by the destruction of oral swabs and (2) trial counsel was ineffective for 

eliciting testimony and making a closing argument that damaged defendant’s alibi 

defense.

¶ 2 Following a jury trial, defendant-appellant Jose G. Martinez was found guilty of first 

degree murder and sentenced to 40 years’ imprisonment. On direct appeal, this court affirmed the 
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trial court’s judgment, holding that the court did not err in refusing to issue an involuntary 

manslaughter instruction. People v. Martinez, 2021 IL App (1st) 190408-U. Defendant now 

appeals from the trial court’s summary dismissal of his initial postconviction petition, arguing that 

the trial court erred in dismissing his initial postconviction petition where he presented a gist of a 

constitutional claim that (1) his due process rights were violated by the destruction of the oral 

swabs; (2) trial counsel was ineffective for damaging defendant’s alibi defense and eliciting 

testimony that bolstered the State’s case; and (3) appellate counsel was ineffective for failing to 

raise these issues on direct appeal. For the reasons that follow, we affirm.

¶ 3 I. BACKGROUND

¶ 4 Defendant was charged by indictment with two counts of first degree murder, with count I 

charging him with intentionally or knowingly strangling and killing Bozena Staggs with his hands 

(720 ILCS 5/9-1(a)(1) (West Supp. 2009)) and count II charging him with strangling and killing 

Staggs knowing that the act created a strong probability of death or great bodily harm (720 ILCS 

5/9-1(a)(2) (West Supp. 2009)). Defendant filed a notice of an alibi defense, alleging that he was 

driving with his then-wife to work at the time of Staggs’s death. 

¶ 5 Prior to trial, on October 19, 2016, defendant filed a motion to compel forensic DNA testing 

on swabs taken from Staggs’s mouth that revealed the presence of “blood like stains.” The swabs 

were collected during the medical examiner’s examination of Staggs’s body and remained in the 

custody of the Chicago Police Department. The police had also collected DNA samples from 

several men who were known to have had sexual relations with Staggs around the time of her 

death. The DNA from the oral swabs were never tested against those men’s DNA profiles. 

Defendant requested this testing to be conducted. According to defendant, the blood found in 
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Staggs’s mouth could have resulted from Staggs biting her assailant’s hands and could be 

connected to someone other than defendant, which would tend to prove his innocence. 

¶ 6 On December 6, 2016, the trial court ordered that the oral swabs be tested. However, on 

January 6, 2017, the State informed the court that the oral swab had been inadvertently destroyed. 

¶ 7 On February 7, 2017, defendant filed a motion to dismiss the indictment based on the 

destruction of the oral swabs, arguing that the State had a duty to preserve the evidence. The motion 

asserted that the State filed an answer to discovery in March 2014, which stated that any property 

inventoried by the Chicago Police Department was available for inspection. The oral swabs were

inventoried by police. The State’s investigation showed that the oral swabs were destroyed in 

September 2014. Defendant also argued that Chicago Police Directives did not authorize the 

destruction of the evidence. 

¶ 8 In its response, the State provided the following information regarding the destruction of 

the evidence:

“On October 12, 2013, Detective Weber picked up from ERPS, 32 inventories that 

were inventoried in this case. The 32 inventories were turned over to the Cook County 

State’s Attorney’s office to be copied for the defense. The oral swabs were not one of the 

inventories requested by the State, nor were they turned over to the State’s Attorney’s 

office. On October 24, 2013, Detective Weber removed the hold for those 32 inventories. 

Detective Weber inadvertently took the hold off of 2 additional inventories. One of those 

inventories was *** the oral, rectal and vaginal swabs. On September 11, 2014, the oral, 

rectal and vaginal swabs were destroyed. The swabs were not categorized as having been 

from a homicide.”
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¶ 9 On April 26, 2017, the court denied defendant’s motion, finding that the destruction of the 

evidence occurred due to an unintentional clerical error and had not been in bad faith.

¶ 10 At trial, Daniel Kobylanski testified that he was Staggs’s brother. According to Kobylanski, 

around Thanksgiving in 2010, Staggs abused crack cocaine and worked as a prostitute. 

¶ 11 David Mathews testified that he walked his dog down an alley near West Homer Street and 

Kedzie Avenue, in Chicago, around 7:30 a.m. on Saturday, November 27, 2010. Mathews saw a 

body in the alley, and approached to see if the person was breathing; she was not, and Mathews 

did not touch her. Her pants were around her ankles, her neck was discolored, and her eyes were 

open. Mathews went home and called 911. An ambulance arrived, which he directed to the alley.

On cross-examination, Mathews testified that he did not recall the temperature that day but stated 

it was cold. 

¶ 12 Chicago police detective John Valkner arrived at the scene around 9 a.m. At that point, 

Staggs had been pronounced dead. Valkner’s inspection of the scene revealed the following. 

Staggs had bruising and redness around the neck and behind the right ear. She was wearing a green 

shirt underneath a white T-shirt, and her jeans and underwear were pulled down to her knees. She 

wore dirty socks with no shoes. No personal items were found on her person or in the area. She 

had long, natural fingernails and the forensic investigators had placed bags over her hands to 

protect any evidence under her nails. Material was later collected from underneath her fingernails, 

as well as samples of Staggs’s blood and DNA. Valkner observed lividity—a purplish internal 

pooling of blood—on the back of her midsection and buttocks and gravel stuck to her body. 

¶ 13 Dr. Michael Eckhardt, an assistant Cook County medical examiner, testified that he did not 

autopsy Staggs’s body, but he reviewed the case file and photographs. Her body was examined at 

8 a.m. on November 28, 2010, almost a full day after it had been brought to the office. He testified 
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that, when Staggs’s body arrived, rigidity, or rigor mortis, and lividity were fixed, which generally 

take 8 to 12 hours or 6 to 12 hours, respectively. He confirmed that both may appear in as little as 

30 minutes. He further testified that the timing is based on many factors, including temperature. 

On cross-examination, he testified that cold temperatures could slow down the process of rigor 

mortis. He also confirmed that an individual who had just died would not show signs of rigor 

mortis immediately. 

¶ 14 Rufus Burks, Jr., Staggs’s boyfriend at the time of her death, testified that, in November 

2010, Staggs used cocaine and sold sex for money. On November 27, 2010, approximately 3 a.m., 

he arrived home after working the afternoon and night shift at a pizzeria. Staggs was there when 

he arrived but she left within an hour. Staggs then returned and left a second time. Burks was 

awake when Staggs returned and then left a third time around 5 or 6 a.m. He was not aware of 

what she was wearing when she left the last time, and he assumed that she was leaving that night 

to work as a prostitute. Around 10 or 11 a.m., Burks called and texted her but could not reach her. 

He went to work on November 27 and continued his attempts to contact her. While he was at work 

on November 28, detectives arrived and informed him that Staggs had died. On November 30, 

Burks went to the police station, was interviewed, and agreed to submit a DNA sample. During 

his interview, Burks showed the detectives phone numbers of clients Staggs had contacted using 

his cell phone. 

¶ 15 Chicago police detective Ruben Weber testified that he received Staggs’s name from the 

medical examiner’s office. Weber learned from Burks and Staggs’s family what she did for money. 

Staggs’s cell phone had not been located. Weber obtained her phone number, subpoenaed the 

phone company for her call logs, and attempted to contact every person who had contacted Staggs 

around the time of her death. A number of men went to the police station for interviews and 
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provided DNA samples. No evidence connected any of these men to the crime scene or Staggs’s 

death, and Weber ran out of leads in April 2011.

¶ 16 The case went cold until 2013, at which time Weber learned that defendant’s DNA was 

associated with the DNA found under Staggs’s fingernails. Weber met defendant at the police 

station on July 15, 2013, and defendant agreed to submit a DNA sample. 

¶ 17 The State entered several stipulations. First, an evidence technician would testify that he 

collected a buccal swab from defendant and the swab was submitted for DNA analysis. Second, a 

Chicago police officer would testify that he collected Staggs’s clothing, fingernail clippings, 

swabs, and blood card from the medical examiner’s office and transported them to the police 

department’s forensic services division. Third, a forensic scientist would testify that she received 

and preserved one of the buccal swab standards collected by Weber. Fourth, a different forensic 

scientist would testify that she conducted DNA analysis on Staggs’s blood sample, some of the 

buccal swabs collected by Weber, and the material collected from under Staggs’s fingernails, and 

found a partial male DNA profile from that material. The men whose buccal swabs the scientist 

analyzed, including Burks, were excluded as possible donors of the male DNA profile. Lastly, a 

different forensic scientist would testify that, in May 2013, a DNA database detected an association 

between the partial male DNA profile identified from Staggs’s right-hand fingernails and 

defendant, and the scientist requested an additional standard from defendant for confirmatory 

analysis.

¶ 18 Cynara Anderson, a forensic science administrator with the Illinois State Police, testified 

as an expert in forensic DNA analysis. Anderson compared the DNA data generated from the 

material under Staggs’s fingernails with a standard collected from defendant and determined that 

defendant could not be excluded from contributing to a mixture of DNA found under Staggs’s 
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fingernails. Approximately 1 in 448 billion black, 1 in 270 billion white, and 1 in 11 billion 

Hispanic individuals could not be excluded from contributing to the DNA profile identified in the 

sample from the fingernails on Staggs’s right hand. Approximately 1 in 8 black, 1 in 17 white, or 

1 in 3 Hispanic individuals could not be excluded from contributing to the sample from Staggs’s 

left hand. Anderson explained that the profile from the left hand was more common because more 

DNA information was present in the sample from Staggs’s right hand.

¶ 19 Chicago police detective Jacinto Gonzalez testified that he and Weber interviewed 

defendant at the police station on July 15, 2013. The interview, which lasted over an hour, was 

videotaped and that recording was submitted to the court. Gonzalez described portions of the 

interview and corresponding video clips were played for the jury. 

¶ 20 In the recording, Gonzalez advises defendant of his rights under Miranda v. Arizona, 384 

U.S. 436 (1966), and defendant indicates that he understands his rights. The detectives inform 

defendant that his name arose in an investigation from November 27, 2010. Weber asks if 

defendant is familiar with the name of the victim and shows defendant a picture of Staggs. 

Defendant denies recognizing the victim by name or photo. Weber informs defendant that Staggs 

is a prostitute. Defendant denies having sexual intercourse with her but discusses an encounter 

with a different prostitute. He also informs the detectives of his anger issues, stating that he gets 

mad quickly. Defendant again denies ever seeing Staggs and states he does not know why he would 

be associated with Staggs in November 2010. After Weber shows defendant additional photos of 

Staggs, defendant once again denies recognizing her. 

¶ 21 However, after first stating he “might” have seen her before, defendant then states that at 

least two years earlier, he once saw Staggs near Armitage Avenue and Sacramento Avenue or 

Humboldt Boulevard, and at that time, she asked him for a cigarette. Weber informs defendant that 
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Staggs was found dead on November 27, 2010, near that same area, and later states that they had 

evidence that defendant was with Staggs on that date. He continues to deny anything other than 

giving her a cigarette.

¶ 22 Eventually, defendant admits that he had sexual intercourse with Staggs on three occasions,

the last occurring in August 2010. Each time, he picked her up from Armitage and Sacramento. 

He claims that they never exchanged names or phone numbers. On that last occasion, Staggs 

instructed defendant to pull into an alley, and after they had sex in the backseat, defendant paid 

her $20. According to defendant, Staggs argued with defendant because she wanted more money 

and she scratched defendant, who either pushed her with his car door or punched her. Defendant 

then entered his car and, as he was driving away, he observed Staggs getting up off the ground. At 

this point, Weber asks if defendant choked her, which defendant denies. 

¶ 23 Defendant then admits that Staggs had not gotten up when he left but he thought she was 

alive. He states that Staggs scratched his back, head, and face. Gonzalez offers that defendant held 

Staggs down, and defendant confirms that he grabbed her and demonstrates a choking motion with 

his hands. Gonzalez performs the same gesture, which defendant repeats while stating that he 

grabbed Staggs and she stopped moving. Defendant states that he did not use all of his strength 

and makes the choking motion again. Gonzalez asks if it was “a rage thing” and whether defendant 

“snapped,” and defendant agrees. Defendant then states that he thinks the incident actually took 

place on November 27, 2010, because November 26 is his daughter’s birthday and he was always 

with his family on that day, and the incident took place sometime around midnight. Defendant 

confirms that he provided the detectives with the absolute truth. 

¶ 24 Next, on the recording, everyone in the room stands, and defendant states he does not 

remember whether he punched Staggs or hit her with the car door but she hit a garage door and 
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then fell. Defendant states, “that’s when I,” and kneels, makes a choking motion, and says he did 

that until Staggs stopped moving. Defendant states he did not know he killed Staggs and thought 

she fainted or entered a coma. When asked if she felt “lifeless,” defendant agrees, stating that she 

moved slightly and he jumped on her and grabbed her; defendant again makes a choking motion 

and states that Staggs stopped moving. Defendant repeats that he did not think he used all his 

strength. The next morning, defendant told his wife that the scratches on his body were from boxes 

falling on him at work.

¶ 25 Gonzalez further testified that the location at which defendant stated he picked up Staggs 

was approximately five blocks from where her body was found. He confirmed that no one told 

defendant that Staggs died by strangulation, that a person’s DNA had been found under her 

fingernails, or that her body was found in an alley. After the interview, defendant consented to 

give a buccal swab DNA sample.

¶ 26 On cross-examination, Gonzalez agreed that the first time anyone mentioned choking was 

when Weber asked defendant if he had choked Staggs, and he agreed that he motioned in front of 

his body before defendant made a choking motion. Gonzalez further confirmed that their statement 

to defendant that they had proof that defendant was with Staggs on November 27, 2010, was a lie 

because the DNA evidence did not actually establish that he was with her on that date.

¶ 27 The defense called Nathan Tomlinson, who testified that he lived on the 3100 block of 

Homer and he let his dog into his fenced backyard between 5 and 5:15 a.m. on November 27, 

2010. Tomlinson did not hear anything or see anybody in the alley at that time. Tomlinson saw 

Staggs’s body when the detectives arrived later in the morning. According to Tomlinson, there 

was a streetlight approximately 20 feet from Staggs’s body.
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¶ 28 Alexander Caraballo, an ambulance commander with the Chicago Fire Department, 

testified that around 7:32 a.m. on November 27, 2010, he and a partner were dispatched to the 

3100 block of Homer for a report of an unresponsive person. Caraballo arrived at the alley and 

noticed a woman on her back, with her pants around her ankles. Caraballo checked for signs of 

rigor mortis and lividity. Caraballo testified that, based on his experience and training, rigor mortis 

generally sets in after a couple of hours after death and lividity begins to set in about twenty 

minutes after death. However, he also explained that the timing of rigor mortis was not specified 

in his training and that every individual might differ. Caraballo found both present in the victim 

and reported the situation to a hospital, after which she was pronounced dead, and he had no more 

contact with the body.

¶ 29 On cross-examination, Caraballo confirmed that he did not have the same training or 

experience as a medical examiner as to rigor mortis. He also agreed that lividity can begin instantly 

after death “once the blood stops pumping through the body.” He further agreed that there “could” 

be other factors causing stiffness in muscles and that freezing temperatures could cause muscles 

to stiffen.

¶ 30 Susana Sanchez testified that she was married to defendant for nearly 10 years, but they 

were divorced at the time of trial. Their oldest daughter, whose birthday was November 26, had 

died, and every year on that date the family would visit her grave, unless they had to work, in 

which case they would go later or on another day.

¶ 31 Sanchez testified that she worked on November 27, 2010, and defendant always drove her

because she did not have a driver’s license and she is afraid of driving. Sanchez’s place of 

employment had offices in East Dundee, Elgin, Arlington Heights, and Elk Grove Village, but 

Sanchez mostly worked in East Dundee. She and defendant would wake around 5:30 a.m., and the 
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drive from their home on the 2700 block of West Melrose Street, in Chicago, took 11⁄2 to 21⁄2 hours, 

depending on traffic. Defendant was always home when Sanchez awoke. Sanchez recalled seeing 

scratches on defendant once but did not remember when. 

¶ 32 On cross-examination, Sanchez testified that she and defendant stopped at McDonald’s for 

breakfast every day on the drive to her work. She worked on November 26, 2010. She did not 

recall if they went to the cemetery that day. Sanchez did not recall whether defendant was present 

when she awoke on November 27 but stated that he was always there when she awoke. Sanchez 

spoke with an investigator on March 1, 2018, but denied stating that she did not remember whether 

defendant was in bed when she awoke on November 27, 2010. She confirmed that her recollection 

is based on their routine but she did not have any specific recollection as to what occurred on 

November 27, 2010. She also testified that she does not recall whether defendant had a license at 

that time. 

¶ 33 She further testified that the scratches she once saw on defendant were on his upper arm. 

The State and the court noted that Sanchez pointed to the back of her left shoulder. The scratches 

resembled paper cuts or box cuts. Sanchez asked where he got them and defendant stated that 

boxes fell on him at work. Sanchez denied telling the investigator that they resembled fingernail 

scratches. 

¶ 34 On redirect examination, Sanchez identified her work schedule and stated that it showed 

no record of her working November 26, 2010. On November 27, 2010, she punched in at 7:40 a.m. 

and punched out at 12:49 p.m. 

¶ 35 Defense counsel entered a stipulation that a records custodian for Sanchez’s employer 

would testify that Sanchez worked at the employer’s facility in Elgin, Illinois. On November 27, 
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2010, Sanchez punched in at 7:40 a.m., punched out at 12:49 p.m., and did not clock in again until 

November 30.

¶ 36 Kevin Foster, an employee with the Illinois Tollway, testified that, when a person drives 

through a toll plaza with an I-PASS transponder, the transponder logs the transaction in a database. 

Foster identified an account history report in defendant’s name which showed transactions on 

November 27, 2010. The report showed that an I-PASS registered to the account went west on 

Interstate 90 through the Devon Avenue toll plaza at 6:52 a.m., west on Interstate 90 through the 

Route 25 toll plaza at 7:20 a.m., east on Interstate 90 through the Route 25 toll plaza at 7:44 a.m., 

and east on Interstate 90 through the River Road toll plaza at 8:06 a.m. The tollway photographs 

each vehicle and license plate when it passes through a toll plaza, but the images are discarded 

unless the driver does not pay the toll.

¶ 37 Defendant testified that in 2010, he had worked at UPS for approximately four years. He 

drove Sanchez to work every day, five or six days a week, and the drive would take 1 to 11⁄2 hours. 

He later worked from 6 p.m. until 11 p.m. After work, he drove straight home.

¶ 38 He testified that he did not work on November 26, 2010, and he went with his family to 

the cemetery to visit his daughter’s grave. That night, he lied to his wife, claiming that he had to 

go to work, but instead, he drove around until he saw Staggs near Armitage and Sacramento. 

According to defendant, she was wearing nice clothes, specifying that she was wearing a skirt and 

was not wearing socks. They came to an agreement regarding an exchange of sex for $20. He 

testified that he had done this with Staggs on two other occasions where he paid her $25 in 

exchange for sex. Staggs entered his car and directed defendant to an alley near a factory. It was 

around midnight at this point. They both moved to the backseat of his car and had sexual 

intercourse. He gave her $20 and they both exited the backseat of the car. She asked for more 
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money and she attempted to take his wallet. At one point, Staggs scratched defendant with her 

nails, and the State and court noted that he indicated below his right ear. When he opened the front 

door of the car, he accidentally hit her and she hit a garage door and fell to the ground. Defendant 

testified that he also may have hit her with his arm but he denied punching her. He entered his car, 

and in his mirror, defendant saw Staggs getting up as he drove away. Defendant went home. On 

the morning of November 27, defendant awoke around 5 a.m. and took Sanchez to work. On the 

way, they stopped at McDonald’s for breakfast. On the highway, he used his tollway pass. After 

dropping her off, he drove home and he went to work that night.

¶ 39 In July 2013, defendant was interviewed by detectives at the police station. He admitted 

that he was with Staggs on November 27, 2010, but did not know he was accused of killing her 

and denied believing that he had killed Staggs. Towards the end of the interview, Gonzalez 

discussed choking and demonstrated a choking motion which defendant repeated in the interview 

and in court. Defendant testified that he demonstrated the choking motion in the interview because 

he had woken at 4 a.m. that morning, was tired, stressed, wanted to leave, and needed his diabetes 

medicine, which he received at a hospital after the interview. Defendant denied actually choking 

Staggs. 

¶ 40 On cross-examination, defendant testified that, if traffic was light, it took 30 or 35 minutes 

to travel from their home to the first toll plaza. Defendant confirmed that, on the night in question, 

Staggs gave him “attitude” but denied being angry. Defendant denied choking Staggs but admitted 

that he told the detectives he got on top of her after she fell and put his hands around her throat. 

Defendant stated that he “followed” Gonzalez in making the choking gesture after Gonzalez did it 

first. While defendant kneeled and demonstrated the choking motion, the detective stated he would 

not get on the ground. Defendant denied kneeling in the alley and stated he was tired and went 
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along with what the detectives said. Defendant admitted that he told the detectives that Staggs 

fainted and that he put his hands around Staggs’s throat until she entered a coma and did not move, 

and that the detectives had not told him to say those things. However, he testified that those 

statements were not true.

¶ 41 Defendant agreed that, during the interview, the detectives asked if he wanted food and 

repeatedly asked if he was okay or needed anything, and that he responded each time that he did 

not need anything and he was fine. Defendant stated that the time stamp on the video was incorrect 

and that the interview did not end until after 6 p.m., when he was scheduled to take his diabetes 

medication and that he received his medication at a hospital around 7:30 or 8 p.m. Defendant 

confirmed that he told the detectives his diabetes was not “that bad” as long as he was careful of 

what he ate, and he was tired but not hungry or thirsty during the interview.

¶ 42 In rebuttal, the State called Joseph Thomas, an investigator with the State’s Attorney’s 

Office, who testified that he interviewed Sanchez on March 1, 2018. During the interview, he 

asked Sanchez if she remembered whether defendant was home when she awoke on November 

27, 2010, and Sanchez responded that she was “pretty sure” he was but could not be certain because 

so much time had passed. He also asked Sanchez if defendant had ever come home with scratches 

on his body, and she responded that one night he had scratches on his back and defendant told her 

that they were from boxes falling on him at work. When asked if she thought the scratches appeared 

to be caused by boxes, she answered that they did not and rather, they resembled paper cuts.

¶ 43 Thomas also drove from the 3100 block of Homer to defendant’s and Sanchez’s address 

on the 2700 block of Melrose, which was 2.2 miles away and took seven minutes. Thomas then 

drove from the home to the Devon toll plaza, which was 11.4 miles away and took approximately 

14 minutes. Thomas completed the drives on a Saturday around 6:30 a.m. Thomas then returned 
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to the 3100 block of Homer and repeated the drives around 7:30 a.m. The drives took the same 

amount of time. 

¶ 44 Following closing arguments, the jury found defendant guilty of first degree murder. 

Defendant filed a motion for a new trial, which the trial court denied. Following a sentencing 

hearing, the court sentenced defendant to 40 years’ imprisonment. Defendant filed a motion to 

reconsider his sentence, which was denied. 

¶ 45 On direct appeal, defendant argued that the trial court erred in declining to instruct the jury 

on involuntary manslaughter. This court affirmed, holding that the trial court did not abuse its 

discretion in refusing to issue the requested instruction. People v. Martinez, 2021 IL App (1st) 

190408-U. 

¶ 46 On November 1, 2022, defendant filed an initial postconviction petition, arguing that the 

trial court should vacate his conviction and grant him a new trial because (1) his due process right 

to a fair trial was denied when the State destroyed the DNA evidence found on the victim, (2) he 

was denied his constitutional right to effective assistance of trial where counsel introduced 

evidence that undermined his alibi defense, and (3) he was denied his constitutional right to 

effective assistance of appellate counsel for failing to raise the prior two issues on direct appeal. 

¶ 47 On January 6, 2023, the trial court dismissed the petition, stating that the claims failed 

because they were not brought on direct appeal and the claims also failed on the merits. 

¶ 48 This appeal followed.

¶ 49 II. ANALYSIS

¶ 50 On appeal, defendant argues that the trial court erred in dismissing his initial postconviction

petition where he presented a gist of a constitutional claim that (1) his due process rights were 

violated by the destruction of the oral swabs; (2) trial counsel was ineffective for damaging 
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defendant’s alibi defense and eliciting testimony that bolstered the State’s case; and (3) appellate 

counsel was ineffective for failing to raise these issues on direct appeal. He requests that this court 

reverse the trial court’s dismissal and remand his petition for second stage proceedings. 

¶ 51 A. The Postconviction Act

¶ 52 The Act provides a method for a criminal defendant to collaterally attack a conviction by 

asserting that it resulted from a substantial denial of his constitutional rights. 725 ILCS 5/122-1 

(West 2022); People v. Hodges, 234 Ill. 2d 1, 9 (2009). “The purpose of [a postconviction] 

proceeding is to allow inquiry into constitutional issues relating to the conviction or sentence that 

were not, and could not have been, determined on direct appeal.” People v. Barrow, 195 Ill. 2d 

506, 519 (2001). Thus, res judicata bars consideration of issues that were raised and decided on 

direct appeal, and issues that could have been presented on direct appeal, but were not, are 

considered forfeited. People v. English, 2013 IL 112890, ¶ 22. 

¶ 53 A postconviction proceeding in a noncapital case has three stages. Hodges, 234 Ill. 2d at 

10. At the first stage, as in this case, a petition need only state the “gist” of a constitutional claim 

(id. at 9 (citing People v. Porter, 122 Ill. 2d 64, 73 (1988)), and a trial court may summarily dismiss 

a petition within 90 days if it “determines the petition is frivolous or is patently without merit” 

(725 ILCS 5/122-2.1(a)(2)). A petition is frivolous or patently without merit when it “has no 

arguable basis in either fact or law,” such as where it is “based on an indisputably meritless legal 

theory or a fanciful factual allegation.” Hodges, 234 Ill. 2d at 11-12, 16. 

¶ 54 Section 122-2 requires that a postconviction petition must “clearly set forth the respects in 

which petitioner’s constitutional rights were violated.” 725 ILCS 5/122-2. At this early stage of 

the proceedings, the trial court need only determine whether the petition’s allegations sufficiently 

demonstrate a constitutional infirmity that would necessitate relief under the Act. People v. 
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Coleman, 183 Ill. 2d 366, 380 (1998). The court is not permitted to engage in any fact-finding or 

credibility determinations. Id. at 385. We must accept all well-pleaded factual allegations of a 

postconviction petition and its supporting evidence as true unless they are positively rebutted by 

the record. Id. at 382. We review de novo the summary dismissal of a defendant’s postconviction 

petition. People v. Allen, 2015 IL 113135, ¶ 19. The trial court’s judgment is reviewed, not the 

reasons cited, and that judgment may be affirmed on any basis supported by the record. People v. 

Lee, 344 Ill. App. 3d 851, 853 (2003). 

¶ 55 B. Ineffective Assistance of Appellate Counsel

¶ 56 Preliminarily, we note that defendant’s claims of a due process violation and ineffective 

assistance of trial counsel could have been raised on direct appeal and they were not, which 

implicates the doctrine of forfeiture. See English, 2013 IL 112890, ¶ 22. However, the doctrine of 

forfeiture may be relaxed where fundamental fairness so requires, where the forfeiture stems from 

the ineffective assistance of appellate counsel, or where the facts relating to the issue do not appear 

on the face of the original appellate record. Id. Because defendant has sufficiently alleged that his 

appellate counsel was ineffective for failing to raise these claims on direct appeal, these claims are 

not forfeited. 

¶ 57 Claims of ineffective assistance are governed by the familiar two-prong test set forth in 

Strickland v. Washington, 466 U.S. 668 (1984). People v. Velasco, 2018 IL App (1st) 161683, ¶ 

138. Under this test, a defendant must first show that his counsel’s performance fell below an 

objective standard of reasonableness. Id. Second, the defendant must establish prejudice by 

showing that there is a reasonable probability that the result of the proceeding would have been 

different but for his counsel’s deficient performance. Id.
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¶ 58 “The Strickland standard applies equally to claims of ineffective appellate counsel, and a 

defendant raising such a claim must show both that appellate counsel’s performance was deficient 

and that, but for counsel’s errors, there is a reasonable probability that the appeal would have been 

successful.” People v. Petrenko, 237 Ill. 2d 490, 497 (2010). Appellate counsel does not have an 

obligation to brief and argue every conceivable claim on appeal, and a defendant cannot establish 

prejudice based on appellate counsel’s failure to raise a meritless issue. People v. Pingelton, 2022 

IL 127680, ¶ 64. As such, if the underlying claim would not have been successful on direct appeal, 

then “ ‘there is no arguable legal basis’ for defendant’s claim of ineffective assistance of appellate 

counsel, and dismissal is ‘proper.’ ” People v. Randall, 2021 IL App (1st) 191194, ¶ 66 (quoting 

Petrenko, 237 Ill. 2d at 501-02). We therefore address each underlying claim in turn.

¶ 59 1. Due Process Violation 

¶ 60 Defendant contends that his due process rights were violated when the oral swabs of the 

victim’s mouth were destroyed prior to trial. He claims that he was denied the opportunity to have 

the blood-like stainsfrom the oral swabs tested to determine whether there was DNA present which

belonged to someone other than himself or Staggs. In response, the State asserts that this claim 

lacks an arguable basis in fact and law because the swabs were not destroyed in bad faith and they 

were not “potentially useful” to his case.

¶ 61 Due process requires that prosecutors turn over all potentially exculpatory evidence to the

defense. Brady v. Maryland, 373 U.S. 83, 87 (1963). “The destruction or loss of evidence by the 

State violates due process only under certain circumstances.” People v. Sandridge, 2020 IL App 

(1st) 173158, ¶ 22. Courts have distinguished due process claims between instances where the lost 

or destroyed evidence is materially exculpatory and where it is only potentially useful. Illinois v. 

Fisher, 540 U.S. 544, 567 (2004); People v. Sutherland, 223 Ill. 2d 187, 235 (2006). Where the 
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missing evidence is materially exculpatory, a due process violation has occurred and whether the 

evidence was lost in bad faith is irrelevant. Sutherland, 223 Ill. 2d at 235. However, in Arizona v. 

Youngblood, 488 U.S. 51, 58 (1988), the United States Supreme Court refused to find that the due 

process clause imposes a duty to preserve all evidence regardless of its evidentiary significance. 

Rather, where the missing evidence is merely potentially useful, the State’s failure to preserve the 

evidence is only considered a due process violation where the defendant can affirmatively establish 

bad faith on the part of the State. Id. at 57-58; People v. Stolberg, 2014 IL App (2d) 130963, ¶ 28.

¶ 62 In the case before us, where the destroyed evidence, i.e. the oral swabs, was never tested, 

the evidence cannot be classified as materially exculpatory, particularly where it was never even 

confirmed that there was blood on the swabs. The parties instead dispute whether the evidence is 

potentially useful and whether there was bad faith on the part of the State. Because we conclude 

that defendant cannot show bad faith, we need not address the potentially useful element.

¶ 63 “Bad faith ‘implies a furtive design, dishonesty or ill will.’ ” People v. Nunn, 2014 IL App 

(3d) 120614, ¶ 17 (quoting People v. Danielly, 274 Ill. App. 3d 358, 364 (1995)). In assessing the 

State’s duty to preserve evidence, the court should consider “whether the State acted in good faith 

and per its normal practice and whether the evidence was significant in [the] defendant’s defense 

and was such that comparable evidence could not be obtained by other reasonable and available 

means.” Id.; see also Danielly, 274 Ill. App. 3d at 364 (the defendant failed to affirmatively 

demonstrate bad faith where there was no evidence that the police acted with a sinister motive or 

ill will). Further, “[m]ere negligence or sloppiness is not bad faith.” People v. Gentry, 351 Ill. App. 

3d 872, 878 (2004).

¶ 64 In the instant case, the DNA evidence, consisting of the oral swabs of the victim’s mouth 

which allegedly would show the presence of “blood like stains,” was placed in the custody of the 
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Chicago Police Department. In March 2014, the State, in its answer to discovery, averred that it 

may or may not use certain evidence at trial, including the oral swabs at issue here, and stated that 

such evidence would be available to the defense for inspection. However, after the trial court 

granted defendant’s motion to test the oral swabs, the State informed the court that the evidence 

had been inadvertently destroyed. According to defendant, the destruction of the evidence violated 

Illinois statute as well as Chicago Police Directives. See 725 ILCS 5/116-4(a) (requiring the law 

enforcement agency to preserve any evidence that is reasonably likely to contain forensic 

evidence); Chicago Police Directives, General Order 07-01 (eff. April 14, 2015)

https://directives.chicagopolice.org/#directive/public/6399 (stating that holds may be released 

“when the property is no longer needed as evidence”).

¶ 65 We do not disagree with defendant that the destruction of the evidence was contrary to

state statute and police directives. However, that does not establish that the State acted in bad faith. 

Rather, the State explained to the court that the evidence was incorrectly labeled and thus it was 

erroneously included in the release of a hold and subsequently a routine purge. With this backdrop, 

we cannot say that the loss of the oral swabs amounts to ill will on the part of the police; rather, 

we would consider it negligence at best. See Youngblood, 488 U.S. at 337-38 (finding that the 

police’s failure to preserve the evidence could be described as negligence but there was no 

suggestion of bad faith); see also People v. Melendez, 2021 IL App (1st) 170892-U (finding no 

bad faith where there was no proof of “intentional destruction of evidence with the knowledge that 

the evidence was relevant to the defendant’s murder case”). 

¶ 66 We also disagree with defendant that the decision in People v. Sandridge, 2020 IL App 

(1st) 173158, is instructive here. In Sandridge, the defendant claimed that a detective’s failure to 

preserve his field notes after receiving a subpoena for those notes was a due process violation. Id.
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¶ 21. The defendant admitted that the notes were only potentially useful but argued that the 

detective acted in bad faith. Id. ¶ 23. This court found on appeal that the experienced detective did 

act in bad faith when he deliberately destroyed his notes after receiving the subpoena for them, 

specifically noting that his testimony that “he believed them to be his personal notes was 

disingenuous at best and blatantly untrue at worst.” Id. ¶ 25. We fail to see the parallels between 

the facts in Sandridge and those in this case. Here, contrary to the circumstances in Sandridge, the 

record does not indicate that the oral swabs were deliberately destroyed with knowledge of the 

pending criminal proceedings in this case. Again, as the State noted before the trial court, the oral 

swabs were not correctly labeled and were inadvertently released from a hold and destroyed as 

part of a routine purging procedure.

¶ 67 We also find defendant’s reliance on People v. Walker, 257 Ill. App. 3d 332 (1993), to be 

misplaced. There, the State appealed from the trial court’s declaration of a mistrial and dismissal 

of the indictment based on a due process violation. Id. at 335. The State argued that there was no 

showing of bad faith on the part of the police. Id. The record showed that the police destroyed 

material evidence six weeks after the defendant’s arrest and eight months prior to trial. Id. at 335.

The appellate court affirmed the trial court’s judgment, finding that the police acted in bad faith 

based on the quick destruction of the evidence, which was in violation of normal police procedure 

regarding evidence. Id. at 335-36. Additionally, the court noted that the evidence was central to 

the defendant’s misidentification defense, and the State used testimony regarding the lost evidence 

in order to convict the defendant. Id. Here, the oral swabs were mistakenly destroyed several years 

after the murder and almost a year after defendant was arrested for the murder. The lack of 

temporal proximity minimizes any potential inference of bad faith. Moreover, unlike in Walker, 
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the oral swabs were not used against defendant at any point during the trial. Thus, we find both of 

the cases which defendant cites for support inapposite.

¶ 68 Because defendant cannot establish the bad faith element, his underlying claim of a due 

process violation would not have been successful even if appellate counsel had raised it on direct 

appeal. See Sutherland, 223 Ill. 2d at 236-37 (unless a defendant can show bad faith, the failure to 

preserve potentially useful evidence is not a denial of due process). Therefore, appellate counsel 

was not arguably ineffective for failing to raise that claim. 

¶ 69 2. Ineffective Assistance of Trial Counsel

¶ 70 Defendant’s next underlying claim is that trial counsel was constitutionally ineffective for 

eliciting testimony that bolstered the State’s case and was damaging to defendant’s alibi defense

during closing argument.

¶ 71 As we have stated, the Sixth Amendment right to counsel is the right to the effective 

assistance of counsel. Strickland v. Washington, 466 U.S. 668, 687 (1984). In determining whether 

a defendant was denied his right to effective assistance of counsel, we employ the well-known 

two-prong test set forth in Strickland and adopted by Illinois courts in People v. Albanese, 104 Ill. 

2d 504, 525-27 (1984). To satisfy the test, a defendant must establish that his counsel’s 

performance fell below an objective standard of reasonableness and that he was prejudiced by 

counsel’s deficient performance. People v. Hall, 217 Ill. 2d 324, 335 (2005). “Because a defendant 

must satisfy both prongs of the Strickland test to prevail, the failure to establish either precludes a 

finding of ineffective assistance of counsel.” People v. Cherry, 2016 IL 118728, ¶ 24.

¶ 72 Defendant specifically asserts that trial counsel erred in two ways. First, counsel introduced 

medical testimony that allowed for the inference that the victim could have been killed before the 

time covered by his alibi, and second, during closing arguments, counsel abandoned defendant’s 
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alibi defense and argued that the murder occurred earlier in the morning, which implicated 

defendant in the murder. 

¶ 73 In response, the State contends that defendant was not prejudiced by trial counsel eliciting 

testimony on rigor mortis and arguing that the victim was killed in the “early morning hours.” In 

particular, the State points out that defendant’s characterization of trial counsel’s argument is 

rebutted by the record where counsel actually argued that the victim was killed in the early hours 

in her own home by her boyfriend. Thus, according to the State, defendant’s claim has no arguable 

basis in fact. Additionally, the State contends that the rigor mortis evidence counsel elicited was 

cumulative of the same evidence regarding rigor mortis that the State presented. 

¶ 74 Because we find that the prejudice prong is dispositive of defendant’s claim, we need not 

discuss whether counsel’s performance was reasonable. See People v. Graham, 206 Ill. 2d 465, 

476 (2003) (stating that we do not need to consider the first prong when the second prong cannot 

be satisfied). To demonstrate prejudice, a defendant must show that there is a reasonable 

probability that, but for counsel’s errors, the result of the proceeding would have been different. 

Strickland, 466 U.S. at 695. A reasonable probability “is a probability sufficient to undermine 

confidence in the outcome.” Id. at 694. 

¶ 75 Based on a review of the record, we must conclude that defendant cannot establish 

prejudice due to the nature and quantity of evidence supporting the jury’s guilty verdict. At trial, 

the State presented the videorecording of defendant’s interview with the detectives, which showed 

defendant confessing to having sex with the victim on the day of her death, being scratched by the 

victim, and choking her until she lost consciousness. This confession was corroborated by the other 

evidence presented. To wit, defendant’s DNA was found under the victim’s fingernails, the 
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victim’s death was caused by strangulation, and defendant’s ex-wife testified that she had observed 

scratch marks on him at one time.

¶ 76 Further, the evidence presented in support of defendant’s alibi was weak in comparison. 

For instance, the defense suggested that defendant’s confession was coerced or involuntary in 

some way. Defendant testified that he was very tired during the interview and he was late in 

receiving his diabetes medication. However, this was belied by the videorecording of the 

interview, during which defendant was offered food and water and the detectives asked him if he 

was doing okay multiple times. They also specifically asked about his diabetes medication and his 

response did not convey any sense of urgency. At no point did defendant state to the detectives 

that he was tired nor did his demeanor affirmatively suggest that he was too tired to be interviewed.

¶ 77 Defendant also asserted that he could not have murdered the victim because he was at home 

when his wife woke up that morning and he drove her to work. However, his ex-wife testified that 

she could not specifically recall that morning. Additionally, the State’s investigator’s testimony 

established that defendant had sufficient time to drive home from the location where the victim 

was found in time to drive his wife to work and make it to the toll plazas at the times reported on 

his I-PASS account.

¶ 78 Lastly, we agree with the State that defense counsel’s alleged deficient performance was 

not prejudicial because the testimony elicited was cumulative of that presented by the State. On 

direct examination, Dr. Eckhardt testified that rigor mortis could take between 6 and 12 hours to 

settle in but the process could start within 30 minutes of death. He further testified that the timing 

could be affected by the temperature or whether someone was in physical stress at the time of 

death. On cross-examination, Dr. Eckhardt reiterated the same information regarding rigor mortis. 

Later, defense counsel called the ambulance commander, Caraballo, as a witness, and he testified 
No. 1-23-0180 

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that rigor mortis generally sets in after a couple of hours after death but every individual might 

differ. On cross-examination, he confirmed that he did not have the same training as a medical 

examiner but he agreed that freezing temperatures could cause muscles to stiffen. In sum, the State 

had already elicited testimony from Dr. Eckhardt that temperature could slow down the process of 

rigor mortis. None of defense counsel’s examination of Dr. Eckhardt or Caraballo added any new

information regarding the timing of the victim’s murder. Thus, we cannot say that the absence of 

counsel’s cumulative examination would have changed the outcome of the trial. See Enis, 194 Ill.

2d 361, 411-13 (2000) (rejecting the defendant’s claim that his attorney was ineffective for failing 

to provide certain evidence where that evidence was cumulative of information that had already 

been presented to the court); People v. Smith, 195 Ill. 2d 179, 190-91 (2000) (finding that the 

defendant could not satisfy the prejudice prong because defense counsel was not ineffective when 

he failed to call a witness to provide cumulative testimony). 

¶ 79 For these reasons, defendant cannot show that trial counsel’s performance was prejudicial 

to him. Accordingly, because trial counsel was not ineffective, neither was appellate counsel. 

¶ 80 Because we have concluded that defendant’s underlying issues lack merit, defendant 

cannot show that he was arguably prejudiced by appellate counsel’s failure to raise these claims 

on appeal. People v. Easley, 192 Ill. 2d 307, 329 (2000). Accordingly, the trial court properly 

dismissed defendant’s initial postconviction petition where it did not state the gist of a 

constitutional claim.

¶ 81 III. CONCLUSION

¶ 82 For the reasons stated, we affirm the judgment of the circuit court.

¶ 83 Affirmed.