People v. Smith

                                  No. 2-23-0539
                          Opinion filed December 3, 2024
______________________________________________________________________________

                                             IN THE

                              APPELLATE COURT OF ILLINOIS

                              SECOND DISTRICT
______________________________________________________________________________

THE PEOPLE OF THE STATE OF             ) Appeal from the Circuit Court
ILLINOIS,                              ) of McHenry County.
                                       )
      Plaintiff-Appellee,              )
                                       )
v.                                     ) No. 11-CF-520
                                       )
TIMOTHY S. SMITH,                      ) Honorable
                                       ) James S. Cowlin,
      Defendant-Appellant.             ) Judge, Presiding.
______________________________________________________________________________

       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
       Presiding Justice Kennedy and Justice Mullen concurred in the judgment and opinion.

                                            OPINION

¶1     The defendant, Timothy S. Smith, was convicted of first degree murder (720 ILCS 5/9-

1(a)(2) (West 2012)) by a McHenry County jury in 2013 for the shooting death of Kurt Milliman.

We reversed on appeal, holding that the trial court erred in not giving the jury instructions on

involuntary manslaughter. People v. Smith, 

 (Smith I). On remand, the

defendant waived his right to a jury trial and proceeded to a bench trial. The trial court found him

guilty of first degree murder and sentenced him to 50 years in prison, which included a 25-year

firearm enhancement. We affirmed the defendant’s conviction on direct appeal. People v. Smith,

 (Smith II). The defendant brought a postconviction petition alleging

inadequate assistance of trial and appellate counsel and due process violations under Brady v.

Maryland, 

 (1963), and Napue v. Illinois, 

 (1959); he also asserted actual


innocence, based on newly discovered evidence. The trial court dismissed the petition at the second

stage of postconviction proceedings, and the defendant appealed. We affirm.

¶2                                        I. BACKGROUND

¶3     As the facts are well known to the parties and set forth in detail in the defendant’s direct

appeals, we set forth only those facts relevant to this appeal. See Smith I, 

-

U; Smith II, 

. The defendant shot Milliman on the evening of May 28,

2011. That night, Milliman came to the defendant’s house to have sex with the defendant’s wife,

Kimberly Smith, 1 for money. The defendant, pretending to be Smith, communicated with

Milliman via online instant messenger to schedule the encounter after Milliman responded to a

Craigslist posting. When Milliman arrived at the defendant’s house, he and Smith proceeded to a

bedroom in the house to have sex. Shortly thereafter, Smith ended the encounter and left the

bedroom.

¶4     According to the defendant, he was waiting out of sight in a different room. Shortly after

Milliman arrived, he observed Smith and Milliman return to the front of the house. He moved to

a room closer to the front to make sure Smith was safe. Smith and Milliman began to argue, and

the defendant heard Smith say, “get your f*** hand off me” and then “baby, please help.” The

defendant, who was carrying a gun to protect his wife during the encounter, came around the corner

and said, “[g]et your hands off my wife, get out of my house.” The defendant could not see Smith

because she was blocked by Milliman, who had her pinned up against the door. The defendant

grabbed Milliman’s shoulder with his free hand—his left hand—and also tried to grab Milliman’s

shirt with his right hand, which was holding the gun. The defendant said that Milliman pushed




       1
           For clarity, all later uses of “Smith” are in reference to Kimberly Smith.


                                                  -2-


back into him and his arm hit the wall, which caused the gun to discharge. The defendant testified

that the discharge was accidental and he did not plan to kill Milliman.

¶5         The defendant further testified that he was scared after the gun discharged and he called

911. He told the dispatcher that someone broke into his house. He did not tell the dispatcher that

someone was shot. After the 911 call, he ripped his computer out of the wall and threw it in the

back room of the house, where it ended up under an unused washing machine that the defendant

pushed over. The defendant then went outside, got in his truck and drove down the road, turned

around and came back, and then parked his truck in front of the house. He told Smith to call him

while he was driving to help make it look like somebody broke into the house. When the police

arrived, he told them that he shot a man who was inside the house and directed them to the location

of the gun. After the police investigated the crime scene, the defendant was brought to the police

station.

¶6         In a video recorded interview with the police, which was entered into evidence and viewed

by the trial court, the defendant said that he was on his way home when Smith called to tell him

that there was someone in the house. He arrived home and entered the house with a gun that he

kept in his vehicle. He saw a man pushing Smith against the door and told the man that he had a

gun and that he would shoot if the man did not leave the house. After the man did not leave, he

tried to grab the man’s shirt, which ripped. He then put the gun against the man’s back, his finger

hit the trigger, and the gun went off. The defendant claimed the gun had a “really hairy, hairy

trigger,” meaning that it went off easily. The defendant admitted to shooting the man but felt that

what he did was justified to protect his wife.

¶7         After a break in the interview, the defendant told the police that the break-in story was a

lie. He then told the police that he had been home all night and that Milliman was at the house

because of the Craigslist ad. The defendant told the police that he observed Milliman “all over”

                                                  -3-


Smith and warned Milliman that he had a gun. He stated that he had the gun on Milliman’s back

as he tried to pull Milliman off Smith. He acknowledged, however, that when he “pulled the

trigger,” Milliman was not striking Smith and did not have his hands around her neck. The

defendant said that he and Smith were freaking out after the shooting and decided to stage the

break-in. He again told the police that he believed his actions were justified because Smith’s life

was in jeopardy. He later also stated that he “didn’t mean to shoot” but that he was “defending his

wife.” The defendant testified that he concocted the break-in story because of “everything that we

were doing that was wrong, the indiscretions, the promiscuity.”

¶8     Smith testified that, after she ended the sexual encounter, Milliman followed her to the

front door and said he needed to use the bathroom. After using the bathroom, he came out and tried

to hand her money because he “wanted to finish.” She returned the money and asked him to leave.

Smith said Milliman grabbed her left arm and tried to pull her back inside the house. He also

slapped her face, but the slap “wasn’t very hard at all.” Smith asked Milliman to “get his hands off

[her],” then the defendant came around the corner and told Milliman to get off Smith. Smith said

that the gun went off immediately after the defendant told Milliman to get his hands off her. After

the shooting, Smith said that the defendant asked her to get Milliman’s phone from Milliman’s

car. After she gave Milliman’s phone to the defendant, she stayed outside the house. She said that

she heard the defendant smashing things inside the house. Smith eventually called 911 and told

the dispatcher that the defendant shot a man who was sitting in her house when she came home.

She admitted that what she said in the 911 call was a lie and that the defendant told her to lead the

police to believe it was a break-in.

¶9     Also testifying at trial were two experts for the State, Julie Steele and Dr. Mark Witeck.

Steele was a forensic scientist with the Illinois State Police. The court found her to be an expert in

firearms identification. She was asked to examine the gun used by the defendant, for “trigger

                                                -4-


pull”—the force required to release the sear of a firearm. Steele testified that her examination

showed no evidence of a light trigger or a “hair trigger.” She testified that it would take 4 pounds

of pressure to discharge the weapon if the hammer was cocked and 12 pounds of pressure to

discharge if it was not cocked.

¶ 10   Dr. Witeck was the forensic examiner who conducted the autopsy of Milliman. Dr. Witeck

testified regarding his education as follows: “I went to undergrad out in California at Orange Coast

College and University of California at Irvine. I went through medical school, finishing at the

University Central del Este, or UCE, School of Medicine in the Dominican Republic.” Dr. Witeck

testified that after medical school he did a year of general internship at St. Luke’s Hospital in

Milwaukee, Wisconsin, followed by two years of anatomic pathology at the same hospital, and

then two years of training in forensic pathology with the chief medical examiners for Wayne

County, Michigan, and the State of Maryland. He testified that he was licensed to practice medicine

in Wisconsin and Illinois and was board certified by the American College of Forensic Examiners

and the American College of Forensic Medicine. Dr. Witeck stated that he had performed over

7000 autopsies and had testified at trial “many hundreds of times.” Without objection, the court

found Dr. Witeck to be an expert in forensic pathology.

¶ 11   Regarding Milliman’s autopsy, Dr. Witeck testified that Milliman was 6 feet, 6 inches, tall

and weighed 378 pounds. Dr. Witeck believed Milliman’s cause of death was “a gunshot wound

to the back.” On cross-examination, Dr. Witeck testified that there was no evidence of “close-

range firing,” meaning that the gun was not fired within two feet of the victim. Dr. Witeck

explained that he believed this because there was no evidence of stippling—tiny pinpoint abrasions

or burns on the skin—nor was there any soot or gun powder on the skin. However, Dr. Witeck

admitted that he examined only Milliman’s skin and not the clothes Milliman was wearing.



                                               -5-


¶ 12   The trial court found the defendant guilty of first degree murder. It observed that the

defendant told three different stories—first that there was a break-in, then that it was self-defense,

and, finally, that it was an accident. The trial court found that the defendant’s testimony at trial

was “simply not credible” and was contradicted by his own statements to the police, the testimony

of the two expert witnesses, and the testimony of the other witnesses. It also found that the

defendant was familiar with guns and, therefore, “most certainly knew that when you put a loaded

gun into somebody’s back and pull the trigger, that it was likely to cause death or great bodily

harm.” It also found that the defendant did not act in self-defense. The trial court noted that the

defendant demonstrated to the police that Milliman had pinned Smith in the doorway by standing

in front of her but found that there was no credible evidence that Milliman was physically hurting

Smith. Thus, the trial court determined that the defendant’s second-degree murder and involuntary

manslaughter theories failed.

¶ 13   On October 25, 2022, the defendant filed his postconviction petition. In his petition, he

alleged that his trial counsel was ineffective for seven reasons: (1) eliciting harmful testimony from

Dr. Witeck on cross-examination regarding the lack of evidence of a close-range firing of the gun,

(2) allowing the prosecution to misstate testimony during closing arguments and misstating the

testimony himself, (3) failing to call one or more expert witnesses to rebut the State’s two experts,

(4) failing to object to the trial court not allowing the defendant to demonstrate his positioning at

the time of the shooting, (5) convincing the defendant to waive his right to a jury trial based on a

statement from the trial judge, (6) not fully investigating the credentials of Dr. Witeck, and

(7) cumulative error. He also argued that his appellate counsel was ineffective for failing to raise

those claims of ineffective assistance on direct appeal.

¶ 14   Additionally, the defendant alleged that he was denied due process under Brady and Napue

because Dr. Witeck gave false or misleading testimony regarding his schooling and qualifications.

                                                -6-


The defendant alleges that Dr. Witeck misled the trial court into believing that he had an

undergraduate degree. He also alleges that Dr. Witeck lied about where he actually received his

medical degree from, “School of Medicine—CETEC University Santo Domingo, Dominican

Republic” (as listed on his CV), because the school was shut down based on degree-mill

allegations.

¶ 15   Lastly, the defendant asserted that he was actually innocent of first degree murder, based

on three new expert reports from Dr. Shiping Bao, Christopher Robinson, and Dr. Jack Hietpas.

Dr. Bao, a licensed physician and forensic pathologist, reviewed Dr. Witeck’s report and trial

testimony, the laboratory report, and photographs of the entrance wound on Milliman’s body. He

concluded that “[t]he range of shooting cannot be decided by soot or stippling alone” and that, in

his opinion, the entrance wound was consistent with a contact gunshot wound. Robinson, a forensic

consultant and former director of the Atlanta Police Department’s crime lab, reviewed the same

information as Dr. Bao. He also concluded that the entrance wound was consistent with a contact

gunshot wound. Robinson additionally opined that the gun may have been unintentionally

discharged by striking an elbow on a wall or because of sympathetic contraction, where, when in

a stressful situation, the body causes an individual to unknowingly squeeze whatever is in his or

her hands. Robinson attached to his report several medical journal articles regarding sympathetic

discharge. Dr. Heitpas, a senior research microscopist at Microtrace, LLC, also reviewed the same

evidence. He concluded that the muzzle-to-target distance cannot be determined from the lack of

gunshot residue alone. He believed that photographs of Milliman’s clothes showed apparent

unburnt or partially burnt propellant and potential soot, but that proper laboratory testing of the

clothes was required.

¶ 16   At the second stage of postconviction proceedings, the State moved to dismiss the petition.

The trial court granted the motion and dismissed all claims of the petition. The trial court found

                                               -7-


that claims (1), (2), (3), (4), (6), and (7) of ineffective assistance failed because they all fell within

the exercise of judgment, discretion, trial tactics, or strategy of trial counsel. Further, the trial court

found that claim (5), regarding the waiver of a jury trial, did not amount to ineffective assistance

because the record reflected a knowing, voluntary, and uncoerced waiver made without any

promises or concessions, other than testimony being taken out of order during the bench trial. The

trial court additionally found that there was no cumulative error because Illinois does not recognize

the concept of cumulative error. The trial court further found that no Brady or Napue violation

occurred, because the record did not support the argument that the State presented perjured or false

testimony from Dr. Witeck and because the defendant failed to show that the result of the trial

would have been different. Finally, the trial court found that the defendant’s actual innocence claim

failed because the “newly discovered” evidence was not new and the failure to proffer it at trial

was the result of his trial counsel’s trial strategy. The defendant then filed a timely notice of appeal.

¶ 17                                         II. ANALYSIS

¶ 18    The Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2022)) provides a

means by which a defendant may challenge his conviction or sentence for violations of federal or

state constitutional rights. People v. Whitfield, 

 (2005). The Act sets forth three

stages of review. At the first stage, the trial court may summarily dismiss a postconviction petition

as frivolous and patently without merit. 725 ILCS 5/122-2.1(a)(2) (West 2022). If the petition is

not dismissed, it advances to the second stage.

¶ 19    At the second stage of postconviction proceedings, the State may move to dismiss a petition

or an amended petition pending before the court. 

 § 122-5. If that motion is denied, or if no

motion to dismiss is filed, the State must answer the petition. Id. At this stage, the trial court must

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

showing of a constitutional violation.’ ” People v. Domagala, 

 (quoting

                                                   -8-


People v. Edwards, 

 (2001)). If the petition satisfies this standard, the defendant

is entitled to a third-stage evidentiary hearing at which the trial court acts as the fact finder and

determines whether the evidence introduced demonstrates that the defendant is entitled to relief.

Id. ¶ 34. We review de novo the dismissal of a postconviction petition at the second stage. People

v. Pendleton, 

 (2006).

¶ 20    In his postconviction petition and on appeal, the defendant argues (1) that he was denied

due process under Brady and Napue, (2) that his trial and appellate counsel were ineffective, and,

(3) based on newly discovered evidence, that he is actually innocent of first degree murder. We

address each in turn.

¶ 21                                   A. Due Process Violations

¶ 22    The defendant alleges that Dr. Witek’s testimony regarding his schooling amounts to a due

process violation under Brady and Napue. The defendant argues that Dr. Witeck committed perjury

by not specifying that he did not have an undergraduate degree, misstating from where he received

his medical degree, and not stating that his medical school was shut down because of allegations

that it was a degree mill, i.e., it was selling illegitimate medical degrees.

¶ 23    Under Brady, it is a violation of the right to due process for the State to fail to “disclose

evidence that is favorable to the accused and ‘material either to guilt or to punishment.’ ” People

v. Harris, 

 (2002) (quoting Brady, 

). To establish a claim under

Brady, the defendant must allege that “(1) the undisclosed evidence is favorable to the accused

because it is either exculpatory or impeaching; (2) the evidence was suppressed by the State either

willfully or inadvertently; and (3) the accused was prejudiced because the evidence is material to

guilt or punishment.” People v. Beaman, 

 (2008). Additionally, it is a due

process violation for the State to knowingly use false testimony or allow false testimony to go

uncorrected, even if the false testimony goes solely to credibility. Napue, 

; People

                                                 -9-


v. Jimerson, 

 (1995). A conviction obtained by the knowing use of perjured

testimony must be set aside if there is any reasonable likelihood that the false testimony could have

affected the verdict. People v. Olinger, 

 (1997).

¶ 24   The standards concerning the qualification and admissibility of expert opinions help guide

our analysis. Our supreme court has stated:

       “A person will be allowed to testify as an expert if his experience and qualifications afford

       him knowledge that is not common to laypersons, and where his testimony will aid the trier

       of fact in reaching its conclusions. [Citation.] ‘There is no predetermined formula for how

       an expert acquires specialized knowledge or experience and the expert can gain such

       through practical experience, scientific study, education, training or research.’ [Citation.]

       Thus, ‘[f]ormal academic training or specific degrees are not required to qualify a person

       as an expert; practical experience in a field may serve just as well to qualify him.’

       [Citation.] An expert need only have knowledge and experience beyond that of an average

       citizen. [Citation.] Expert testimony, then, is admissible ‘if the proffered expert is qualified

       by knowledge, skill, experience, training, or education, and the testimony will assist the

       trier of fact in understanding the evidence.’ [Citation.]” Thompson v. Gordon, 

 (2006).

Additionally,

       “ ‘[t]he trial court’s gatekeeping function is to determine whether an individual is qualified

       to be an expert, not merely by determining whether that individual took an exam and can

       display a piece of paper showing a passing mark, but by reviewing the individual’s

       credentials, experience, and knowledge of the subject matter.’ ” 

 at 422 (quoting

       Thompson v. Gordon, 

 (2005)).



                                                - 10 -


¶ 25    At issue in Thompson was whether an engineer must be licensed in Illinois to testify as an

expert in a civil trial. Id. at 416. Based on the foregoing standards, our supreme court determined

that one does not. Id. at 429. It reasoned that an expert’s licensure is only one of the relevant factors

to consider in determining whether an individual is an expert in a particular area. Id.

¶ 26    Here, we cannot say that the defendant’s allegations regarding Dr. Witeck’s testimony

amount to a due process violation under Brady and Napue. The record shows that the defendant’s

trial counsel received Dr. Witeck’s curriculum vitae (CV) prior to trial; thus, no information was

withheld from the defendant in violation of Brady. Dr. Witeck’s testimony was also not false. Dr.

Witeck never testified that he had a four-year undergraduate degree, and his testimony does not so

imply. His CV also does not list an undergraduate degree. Dr. Witeck testified consistently with

his CV that he received his medical degree in the Dominican Republic. At worst, Dr. Witeck

misstated the institution in the Dominican Republic from which he received his degree, but that

does not, without more, amount to a due process violation under Brady and Napue.

¶ 27    Additionally, based on the standards and logic in Thompson, we do not believe that the

defendant’s arguments pertaining to the quality of Dr. Witeck’s undergraduate and medical

schooling substantially undermine his testimony, impeach his credibility, or establish a

constitutional violation. Schooling is, of course, a factor to be considered when determining the

admissibility and weight of an expert’s testimony. But the perceived quality of that education is

not reason to wholly discount that expert’s opinion where, as here, the expert has acquired

substantial experience in the subject matter following his medical school education, is licensed by

the State, and is board certified in two relevant practice areas.

¶ 28    Dr. Witeck testified to this extensive postgraduate experience. He completed one year of

general internship and two years of anatomic pathology at St. Luke’s Hospital in Milwaukee; he

spent two years training with the chief medical examiners in Wayne County, Michigan, and the

                                                 - 11 -


State of Maryland; he was licensed in Wisconsin and Illinois; and he was board certified by the

American College of Forensic Examiners and the American College of Forensic Medicine. Dr.

Witeck also testified that he had performed over 7000 autopsies and had testified at trial “[m]any

hundreds of times.” Thus, with this substantial relevant experience, any perceived deficiencies in

Dr. Witeck’s schooling do not impeach his credibility or undermine his testimony.

¶ 29   The defendant compares this case to People v. Cornille, 

 (1983). There, the

defendant was convicted of arson after he allegedly damaged his home with the intent to defraud

his insurance carrier. 

. At trial, experts for the State and the defense were divided as to

how the fire started. 

. The State argued that the defendant started the fire with gasoline,

while the defendant argued that it was caused by faulty wiring. 

 The State’s key expert witness

testified that he obtained two samples from the burned area of the home that he tested with special

gas chromatography equipment that he invented. 

. He determined that the samples had

traces of gasoline. 

 Based on this testing, all the State’s experts concluded that the fire was

probably caused by gasoline. 

 In his defense, the defendant presented substantial testimony in

support of his theory of an electrical fire, including previous instances of faulty wiring. 

 An

expert from the Illinois Bureau of Scientific Services testified that he tested samples for the

presence of accelerants using a gas chromatography technique and determined that there was no

presence of accelerants. 

¶ 30   Two years after the defendant’s trial and conviction, the State’s key expert gave an

interview to a reporter where the expert admitted that he lied about his academic and professional

credentials. 

. As a result, authorities investigated the expert and charged him with perjury

for his false testimony in at least three criminal cases. 

 The defendant filed a petition for

postconviction relief, arguing that he was denied due process because he was convicted based on

the expert’s false testimony. 

. Our supreme court determined that the State’s use of

                                                - 12 -


this expert’s false testimony violated the defendant’s right to due process. Id. at 514-15. It noted

that the evidence was closely balanced and it was this expert who provided the crucial testimony

that supported the defendant’s conviction. Id.

¶ 31     Here, the allegations and evidence do not rise to the level of those in Cornille. As discussed,

Dr. Witeck’s testimony regarding his credentials was not false, unlike the expert’s testimony in

Cornille. Further, there is no allegation or evidence that Dr. Witeck’s credentials are falsified. Dr.

Witeck’s testimony also was not the sole deciding factor in the defendant’s conviction, as the

evidence was not closely balanced. The defendant was deemed not credible in large part because

of his shifting explanations and suspect actions following the shooting. Additionally, the

defendant’s trial counsel had adequate opportunity to cross-examine Dr. Witeck, where he

elucidated the potential problems with Dr. Witeck’s examination process and conclusions. For all

these reasons, the defendant has failed to show that he was denied due process under Brady and

Napue.

¶ 32                              B. Ineffective Assistance of Counsel

¶ 33     At the outset, we note that the defendant’s ineffective assistance of trial counsel claims

would ordinarily be forfeited because they were not raised on direct appeal. See People v. Addison,

. However, our supreme court has made clear that, “[w]hen a petitioner is

asserting claims that could have been raised on direct appeal, he can avoid the procedural bar of

forfeiture by casting his claims as ineffective assistance of appellate counsel for failing to raise the

issues on direct appeal.” 

 (citing People v. Turner, 

 (1999)). A defendant

who alleges that appellate counsel rendered ineffective assistance must show that appellate

counsel’s failure to raise an issue was objectively unreasonable and prejudiced the defendant.

People v. Simms, 

 (2000). The prejudice inquiry requires that the reviewing

court examine the merits of the underlying issue because a defendant cannot suffer prejudice from

                                                 - 13 -


appellate counsel’s failure to raise a nonmeritorious claim on appeal. 

 Thus, we begin by

determining whether trial counsel’s performance was deficient.

¶ 34    Under Strickland v. Washington, 

 (1984), a defendant arguing ineffective

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

also that the defendant suffered prejudice as a result. People v. Houston, 

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

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

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

would have been different.” 

. Because a defendant must satisfy both prongs of the

Strickland test, the failure to establish either is fatal to the claim. See Strickland, 

.

¶ 35    There is a strong presumption that counsel’s actions or inactions—such as the decision not

to present certain arguments or not to call witnesses—constitute sound strategy. People v. Perry,

 (2007). To prove otherwise, a party must show that counsel’s decision was

so irrational and unreasonable that no reasonably effective attorney, facing like circumstances,

would pursue such a strategy. People v. Jones, 

.

¶ 36    On appeal, the defendant raises six claims of ineffective assistance of trial counsel:

(1) eliciting damaging testimony from Dr. Witeck, (2) failing to call expert witnesses, (3) failing

to object to the trial court denying the defendant’s demonstration of his positioning during the

shooting, (4) convincing the defendant to take a bench trial, (5) failing to investigate Dr. Witeck’s

schooling, and (6) cumulative error. We begin with the three arguments related to the expert

witnesses.

¶ 37    The defendant alleges that his trial counsel was deficient because Dr. Witeck testified for

the first time during cross-examination that there was no evidence of a close-range firing, which

the defendant claims undermined his theories of the case. Similarly, the defendant argues that his

                                                 - 14 -


trial counsel did not fully investigate Dr. Witeck, which would have revealed the alleged issues

with Dr. Witeck’s schooling. The defendant also claims that his trial counsel was deficient for not

calling any expert witnesses to rebut the opinions of Dr. Witeck and Steele. The defendant argues

that, had his counsel investigated Dr. Witeck and called rebuttal experts, he could have disproven

the experts’ testimony, undermined their credibility, and bolstered his own credibility.

¶ 38   The defendant fails to show any prejudice from these actions, and thus, these claims fail

the second prong of Strickland. For the reasons previously discussed, there was no prejudice from

his trial counsel’s failure to raise any issues with Dr. Witeck’s schooling. The defendant’s trial

counsel also repeatedly attacked Dr. Witeck’s credibility during cross-examination by challenging

the process and conclusions of Dr. Witeck’s autopsy report. For example, the cross-examination

reveals that Dr. Witeck tested only Milliman’s skin for soot and gunshot residue, and not

Milliman’s clothes, where soot or gunshot residue may have been located. It also revealed that

Milliman had surgery before he died and Dr. Witeck performed the autopsy, so Milliman’s skin

would have been cleaned prior to Dr. Witeck’s examination. Further, the defendant’s credibility

did not fully hinge upon the credibility of Dr. Witeck. Both the trial court and this court on direct

appeal noted that the defendant’s ever-changing stories undermined his credibility. See Smith II,

, ¶ 69. Moreover, the trial court found that, even with Dr. Witeck’s

testimony regarding the shooting distance, the defendant “most certainly knew that when you put

a loaded gun into somebody’s back and pull the trigger, that it was likely to cause death or great

bodily harm.” (Emphasis added.)

¶ 39   The defendant also fails to show prejudice from trial counsel’s failure to rebut Steele’s

testimony regarding the trigger pull. Indeed, the defendant does not now offer the opinion of an

expert that challenges Steele’s testimony that the gun required either 4 or 12 pounds of force to

discharge or supports his claim of a “hairy” trigger. While the defendant offers an expert’s report

                                               - 15 -


regarding the instances under which a firearm might be accidentally discharged, this does not

negate the finding that the defendant’s actions after the shooting were not consistent with someone

who accidentally killed a person. See id. ¶ 55 (“That defendant deliberately pulled the trigger on

the gun is also supported by his actions following the shooting.”). Thus, the defendant has failed

to show that he was prejudiced by his trial counsel’s actions related to the expert witnesses.

¶ 40   The defendant next claims that trial counsel was deficient by failing to object when the trial

court prevented the defendant from demonstrating his positioning during the shooting. The

defendant maintains that it was imperative that he demonstrate off the witness stand to allow the

trial court to adequately see his perspective of the incident and correct his errors when speaking

with police.

¶ 41   While on the witness stand, the defendant explained and demonstrated his version of the

shooting:

               “[DEFENSE ATTORNEY]: What did you do next?

               A. I screamed, I yelled to get out of my house. And I ran up to grab him by his shirt.

       All I intended to do was to grab him by his shirt.

               Q. You’re holding a gun.

               A. I wasn’t thinking.

               Q. Explain how you’re holding him—grab him holding a gun.

               A. I ran up to grab him. I didn’t even think. I just ran up to grab him.

               Q. That gun’s fairly small.

               A. Yes.

               Q. How big are your hands. Hold them up. Large hands.

               A. Yes.

               Q. Were you able to hold that gun with a couple fingers and still try to grab things?

                                               - 16 -


             A. Yes.

             Q. Explain for the judge how you try to grab him.

             A. Can I show you.

             Q. Explain it first and then we’ll talk about—

             A. So I ran up to grab him and I put a hand on his shoulder, the free hand, and I had

      the gun and I used kind of like—I just—it wasn’t even more of a grab, it was just as soon

      as I tried to pull him with this hand.

             Q. And what happened?

             A. He pushed back and when he pushed back that’s when my arm hit the wall.

      There was this much room.

             Q. So you’re saying that you go to grab him and now his weight sort of comes back

      and you’re in this hallway?

             A. Yes.

             Q. All right. And which direction do you go?

             A. Kind of back and against the wall, like when I grabbed him with my left hand is

      when he jumped—either he pushed or jumped back.

             Q. You know, you’re demonstrating like that and you’ve got a left hand kind of up

      on a shoulder or what would be a shoulder.

             A. Yeah.

             Q. And a right-hand sort of to the side.

             A. Yes.

             Q. Is that accurate how you tried to grab him?

             A. Yes.

             Q. And as you’re kind of pushed back into the wall, what happens?

                                               - 17 -


               A. The gun just accidently went off.

               Q. Were you trying to kill him?

               A. No.

               Q. How many times did the gun go off?

               A. Once.

               MR. HAIDUK [(DEFENSE ATTORNEY)]: Judge, I would ask if the Court would

       allow [the defendant] to step down and demonstrate this.

               THE COURT: He doesn’t need to. I got it, Mr. Haiduk.

               MR. HAIDUK: Thank you, Judge.”

Previously, during his recorded police interview, the defendant demonstrated to the police his

positioning, which aligns with this testimony, except that the defendant testified that he held the

gun with his left hand.

¶ 42   The admissibility of courtroom demonstrations is discretionary. People v. Harp, 

 (1990). The purpose is to aid the fact finder in understanding the testimony. 

On direct appeal, decisions regarding admissibility of demonstrations will not be reversed unless

the trial court abused its discretion to the prejudice of the defendant. 

¶ 43   Here, the defendant adequately explained his actions to the trial court, with demonstrations

both on the witness stand and in his recorded police interview. The trial court understood the

defendant’s testimony and made the determination that it did not need any further demonstration.

Thus, it was not abuse of discretion for the trial court to deny the demonstration, and therefore,

trial counsel was not deficient for failing to object. See People v. Edwards, 

(2001) (“Counsel cannot be considered ineffective for failing to make or pursue what would have

been a meritless objection.”).



                                                - 18 -


¶ 44    The defendant’s reliance on People v. White, 

, is unpersuasive.

In White, after a bench trial, the defendant was convicted of delivery of a controlled substance. Id.

¶ 1. During an undercover operation, a police officer purchased a white powdery substance from

a person wearing a white tank top in an alleyway. Id. ¶ 2. The officer later identified that person

as the defendant, from a photo array. Id. ¶ 5. The defendant argued that the police officers involved

misidentified him because the they did not note in their reports that the offender had any tattoos,

but the defendant had several visible tattoos on both his arms. Id. ¶¶ 7-8. At trial, the defendant’s

attorney asked to show the trial court the defendant’s tattoos as they would have been seen from

the perspective of the officer participating in the purchase. Id. ¶ 8. The trial court did not allow the

demonstration but noted for the record that, from the trial court’s view of the defendant on the

witness stand, the defendant had a tattoo on his right forearm that was visible with his hand facing

up, but not visible with his hand facing down. Id. ¶¶ 8-9. The defendant’s trial attorney repeatedly

objected, noting that the trial court did not view the tattoo from the same vantage point as the

officer. Id. ¶¶ 9-10.

¶ 45    The defendant appealed his conviction, arguing that the trial court erred by not allowing

him to properly demonstrate his tattoos. Id. ¶ 25. The appellate court agreed and vacated the

defendant’s conviction. Id. ¶ 44. The reviewing court noted that the defendant’s

        “theory at trial was that he was misidentified. His best evidence was that neither police

        officer had described the drug dealer as having tattoos when they observed him during the

        drug transaction, when in fact defendant had tattoos on both arms. In more than one way,

        the trial court prevented defendant from presenting this defense.” Id. ¶ 26.

Additionally, “[e]vidence that defendant’s tattoos would have been visible to [the police] at the

time of the drug transaction was unquestionably probative and relevant to the credibility of the

officers’ identifications of defendant as the drug dealer in question.” Id. ¶ 27. “[T]he trial court

                                                 - 19 -


decided that its own view of defendant’s right forearm, when turned palm down, from its vantage

point on the bench ‘about two feet above’ defendant, was all the court needed to know—that when

defendant’s palm was turned down, the tattoo on the right forearm was not visible.” Id. ¶ 28. Thus,

the trial court “erred in substituting its own view of defendant’s right arm, under not substantially

similar conditions, in lieu of this relevant testimony.” (Emphasis in original.) Id.

¶ 46     Here, however, the defendant’s testimony, demonstrations on the witness stand, and video

recorded demonstration to police made clear to the trial court his version of the events. The

defendant’s testimony did not rely on a particular vantage point, and the trial court did not

substitute its own view for that of another. No further demonstrative evidence could have made

the defendant’s testimony clearer for the trial court or the record. Thus, the defendant’s trial

counsel was not ineffective for failing to object.

¶ 47     Next, the defendant alleges that his trial counsel was ineffective by convincing the

defendant to waive his right to a jury trial and proceed with a bench trial. The defendant says that,

on the morning of his trial, his trial counsel talked to him about the possibility of a bench trial.

After some discussion, the defendant informed his trial counsel that he still wanted a jury trial. The

defendant alleges that his trial counsel then told him, “during a[n] [Illinois Supreme Court Rule

402 (eff. July 1, 2012)] conference, [the trial court] said to [counsel], ‘I don’t think he meant to

shoot this guy,’ ” an apparent reference to the defendant’s argument that the shooting was

accidental. Based on this statement, the defendant agreed to a bench trial. The defendant claims

that, but for this “promise” from his trial counsel, he would never have waived his right to a jury

trial.

¶ 48     In support of his argument, the defendant relies on People v. Smith, 

(2001). In Smith, after a bench trial, the defendant was convicted of first degree murder. 

.

In the defendant’s postconviction petition, he alleged that his trial counsel induced him to waive

                                                - 20 -


his right to a jury trial because “the judge owed trial counsel a favor and the judge would have

information not available to a jury.” Id. at 847. The appellate court reversed the dismissal of the

postconviction petition at the first stage, based on the insinuation of unethical judicial conduct. Id.

at 855-56.

¶ 49    Here, the defendant’s reliance on Smith is inapposite. There is no indication of any promise

by his trial counsel, suggestion that the trial court would definitively find the defendant not guilty

or guilty of lesser charges, or insinuation of unethical judicial conduct. There is no other allegation

or evidence that the defendant’s trial counsel otherwise coerced him into waiving his right to a

jury trial.

¶ 50    Instead, this case is more like People v. Hobson, 

 (2008). In Hobson,

the defendant filed a postconviction petition alleging that his trial counsel coerced him into

waiving his right to a jury trial by stating that the trial judge “ ‘would find [the defendant] not

guilty if [he] took a bench trial, that [his trial counsel] knew the judge and the judge was alright.’ ”

. The appellate court affirmed the dismissal of the postconviction petition, holding that

the defendant’s trial counsel did not cross the “suggestion” line and “merely indicated to defendant

that his chances of acquittal were better with a bench than a jury trial.” 

.

¶ 51    Here, too, the statement by the defendant’s trial counsel did not cross the “suggestion” line

and merely indicated his strategic belief that a bench trial gave the defendant a better chance at

acquittal or conviction of lesser charges. There was no promise by the defendant’s trial counsel

that he would be acquitted or found guilty of lesser charges. Thus, trial counsel’s conduct was not

deficient.

¶ 52    Finally, the defendant argues that even if none of the above actions by his trial counsel was

deficient on its own, the cumulative effect of those actions amounts to ineffective assistance.

Before discussing the merits of this argument, we note an issue with the trial court’s ruling on this

                                                 - 21 -


argument. The State argued, and the trial court found, that our supreme court “does not recognize

the concept of cumulative error,” citing People v. Albanese, 

 (1984). However,

the discussion of cumulative error in Albanese is not related to ineffective assistance of counsel

claims. The discussion, which was directed at “the allegations of error previously examined,”

directly precedes the discussion of ineffective assistance of counsel claims and is related to

violations of the sixth amendment right to an impartial jury under Witherspoon v. Illinois, 

 (1968). Albanese, 

. In that discussion, our supreme court did not refuse to

recognize the concept of cumulative error but found that there was no cumulative error under the

facts of the case. 

 Indeed, appellate courts have recognized claims for ineffective assistance of

counsel based on cumulative error. See, e.g., People v. Vera, 

 (1995)

(“Although any one error of counsel, by itself, may not have satisfied the two-prong test

established in Strickland, ‘cumulatively, counsel’s failures render the result of the proceedings

“unreliable under the standard enunciated in Strickland.” ’ [People v. Garza, 

 (1989) (quoting People v. Solomon, 

 (1987)).]”).

¶ 53   Nevertheless, the defendant’s claims here fail to show, individually or cumulatively, that

he suffered prejudice from his trial counsel’s alleged deficiencies. Thus, the defendant’s claim of

ineffective assistance of trial counsel based on cumulative error fails. By extension, his claims of

ineffective assistance of appellate counsel also fail.

¶ 54                                     C. Actual Innocence

¶ 55   Finally, the defendant argues that he is actually innocent of first degree murder, based on

“newly discovered” evidence. The “newly discovered” evidence is the reports of Dr. Bao,

Robinson, and Dr. Hietpas, which the defendant maintains rebut the opinions of Dr. Witeck and

Steele. The State argues that these opinions are not “newly discovered” and cannot support a claim

of actual innocence. We agree.

                                                - 22 -


¶ 56    Establishing a claim of actual innocence “is extraordinarily difficult.” People v. Coleman,

. To succeed on an actual innocence claim, “the supporting evidence must be

(1) newly discovered, (2) material and not cumulative, and (3) of such conclusive character that it

would probably change the result on retrial.” People v. Robinson, 

. “Newly

discovered evidence is evidence that was discovered after trial and that the [defendant] could not

have discovered earlier through the exercise of due diligence.” 

 “Evidence is material if it is

relevant and probative of the [defendant’s] innocence.” 

 “Noncumulative evidence adds to the

information that the fact finder heard at trial.” 

 “[T]he conclusive character element refers to

evidence that, when considered along with the trial evidence, would probably lead to a different

result.” 

¶ 57    Here, the defendant’s actual innocence argument fails at least two of the elements needed

to establish an actual innocence claim. First, the affidavits from Dr. Bao, Robinson, and Dr.

Hietpas are not newly discovered. They are based on evidence and information that was available

at the time of trial. See id. ¶ 53 (finding affidavit of the defendant was not “newly discovered”

evidence because it was based on information available before trial). The defendant’s trial counsel

made the strategic decision not to call any expert witnesses. See People v. Hamilton, 

 (2005) (noting that the decision not to call an expert witness is a matter of trial

strategy). Second, the defendant fails to show that consideration of this evidence, along with the

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

. As

discussed, the evidence of the defendant’s guilt was overwhelming and was primarily based on his

lack of credibility. See Smith II, 

, ¶ 55. Thus, the defendant failed to

state an actual innocence claim.

¶ 58                                   III. CONCLUSION

¶ 59    For the reasons stated, the judgment of the circuit court of McHenry County is affirmed.

                                              - 23 -


¶ 60   Affirmed.




                          - 24 -


                          People v. Smith, 

 Decision Under Review:        Appeal from the Circuit Court of McHenry County, No. 11-
                               CF-520; the Hon. James S. Cowlin, Judge, presiding.


 Attorneys                     Richard Dvorak, of Dvorak Law Offices, LLC, of Clarendon
 for                           Hills, for appellant.
 Appellant:


 Attorneys                     Patrick D. Kenneally, State’s Attorney, of Woodstock (Patrick
 for                           Delfino, Edward R. Psenicka, and Ivan O. Taylor Jr., of State’s
 Appellee:                     Attorneys Appellate Prosecutor’s Office, of counsel), for the
                               People.




                                            - 25 -