{ "id": 2977702, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY MOLETERNO, Defendant-Appellant", "name_abbreviation": "People v. Moleterno", "decision_date": "1993-09-24", "docket_number": "No. 1\u201492\u20140902", "first_page": "615", "last_page": "626", "citations": [ { "type": "official", "cite": "254 Ill. App. 3d 615" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "325 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 78", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2787703 ], "weight": 3, "pin_cites": [ { "page": "82-83" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0078-01" ] }, { "cite": "283 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "51 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391261 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/51/0514-01" ] }, { "cite": "513 N.E.2d 1099", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "160 Ill. App. 3d 1082", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3648893 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/160/1082-01" ] }, { "cite": "506 N.E.2d 1353", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "154 Ill. App. 3d 308", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3647695 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/154/0308-01" ] }, { "cite": "570 N.E.2d 335", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1987, "opinion_index": 0 }, { "cite": "211 Ill. App. 3d 291", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2528374 ], "weight": 2, "year": 1987, "pin_cites": [ { "page": "323" }, { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/211/0291-01" ] }, { "cite": "554 N.E.2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "196 Ill. App. 3d 1017", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2488247 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/196/1017-01" ] }, { "cite": "596 N.E.2d 114", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "230 Ill. App. 3d 1002", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5211012 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "1007-08" }, { "page": "1007" }, { "page": "1007" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/230/1002-01" ] }, { "cite": "580 N.E.2d 1381", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "220 Ill. App. 3d 732", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5274143 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/220/0732-01" ] }, { "cite": "445 N.E.2d 795", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "112 Ill. App. 3d 486", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5434271 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/112/0486-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "524 N.E.2d 989", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 982", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586310 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0982-01" ] }, { "cite": "592 N.E.2d 464", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "228 Ill. App. 3d 123", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5221873 ], "weight": 2, "pin_cites": [ { "page": "130" }, { "page": "128" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/228/0123-01" ] }, { "cite": "589 N.E.2d 888", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "226 Ill. App. 3d 465", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5238811 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/226/0465-01" ] }, { "cite": "468 N.E.2d 1010", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "127 Ill. App. 3d 390", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3562664 ], "weight": 2, "pin_cites": [ { "page": "397", "parenthetical": "defendant's right to effective counsel was not violated by trial counsel's failure to call barmaid to testify to decedent's intoxication at the time of the shooting when such testimony was \"not 'of such a conclusive character that it would probably change the result on retrial.' [Citation]\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/127/0390-01" ] }, { "cite": "557 N.E.2d 468", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 621", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2467135 ], "weight": 2, "year": 1984, "pin_cites": [ { "page": "628-29", "parenthetical": "\"[c]hoices which are made on the basis of strategic considerations after a thorough investigation of all matters relevant to plausible options have traditionally been considered to be unchallengeable\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0621-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "pin_cites": [ { "page": "687, 694" }, { "page": "693, 698" }, { "page": "2064, 2068" } ], "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1984, "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "year": 1984, "pin_cites": [ { "page": "525" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "572 N.E.2d 931", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "143 Ill. 2d 210", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5591273 ], "weight": 3, "pin_cites": [ { "page": "219-20" }, { "page": "223" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/143/0210-01" ] }, { "cite": "582 N.E.2d 1265", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "221 Ill. App. 3d 868", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5796095 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-app-3d/221/0868-01" ] }, { "cite": "608 N.E.2d 359", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "240 Ill. App. 3d 805", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5137714 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/240/0805-01" ] }, { "cite": "592 N.E.2d 930", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "148 Ill. 2d 45", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3283042 ], "opinion_index": 0, "case_paths": [ "/ill-2d/148/0045-01" ] }, { "cite": "515 N.E.2d 219", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "161 Ill. App. 3d 573", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3466811 ], "weight": 2, "year": 1992, "pin_cites": [ { "page": "585", "parenthetical": "affirming trial court's dismissal of a post-conviction petition without an evidentiary hearing where defendant did not demonstrate that there was a reasonable likelihood that the outcome of the case would have been different" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/161/0573-01" ] }, { "cite": "583 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "222 Ill. App. 3d 80", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5261890 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/222/0080-01" ] }, { "cite": "507 N.E.2d 830", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "116 Ill. 2d 357", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5543128 ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0357-01" ] }, { "cite": "556 N.E.2d 703", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "199 Ill. App. 3d 15", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468008 ], "weight": 3, "pin_cites": [ { "page": "24" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/199/0015-01" ] } ], "analysis": { "cardinality": 1108, "char_count": 26308, "ocr_confidence": 0.776, "pagerank": { "raw": 9.396267333866619e-08, "percentile": 0.5155406743790855 }, "sha256": "49201890f083b618f00e25ddc9272189dd38ef67642db81b84c1b4e1c2266959", "simhash": "1:333c1c741b45e1d1", "word_count": 4363 }, "last_updated": "2023-07-14T16:17:01.484927+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY MOLETERNO, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE GORDON\ndelivered the opinion of the court:\nDefendant was convicted of first degree murder by a jury and sentenced to 20 years\u2019 imprisonment. This court affirmed his conviction in People v. Moleterno (1990), 199 Ill. App. 3d 15, 556 N.E.2d 703. Defendant subsequently filed a petition for post-conviction relief pursuant to section 122 \u2014 1 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1), which alleged that his trial counsel was ineffective because he failed to present evidence of the decedent\u2019s violent behavior which would have supported defendant\u2019s claim of self-defense, and failed to obtain and introduce the murder weapon at trial for impeachment purposes. In the alternative, defendant contended that the gun, which was unavailable during trial, constituted newly discovered evidence which warranted a new trial. The trial court denied defendant\u2019s petition without an evidentiary hearing and defendant now appeals. For the reasons set forth below, we affirm the circuit court.\nFacts\nDefendant, Jeffrey Moleterno, and the deceased, Timothy Bolger, were involved in two traffic altercations on the night of February 3, 1987, which resulted in defendant shooting and killing Bolger. Those facts relevant to defendant\u2019s post-conviction petition are as follows.\nRussell Marquardt, the State\u2019s chief witness at trial, testified that on the evening of February 3, 1987, he was driving northbound on Central Avenue sometime after 8 p.m. At the intersection of Central and Eastwood Avenues, he saw two cars stopped facing north in traffic. A Cadillac, driven by Bolger, was stopped in the roadway in front of the defendant\u2019s Buick. Marquardt stated that the lighting conditions were good. He saw defendant standing next to his open car door arguing with Bolger, who was standing on the other side of the door pointing his finger at defendant. He did not see any weapon in Bolger\u2019s hand.\nAfter Marquardt passed them and continued north on Central for approximately two blocks, Bolger\u2019s auto overtook him on the right. Bolger\u2019s car was not speeding or weaving in and out of traffic. Approximately two blocks farther north on Central, at the intersection of Central and Higgins, Bolger signaled for a left turn and then entered the appropriate lane. Marquardt followed suit. At this time, there was another car between his car and Bolger\u2019s.\nBolger turned left and headed west on Higgins, the intervening car proceeded through the intersection, and Marquardt then began his left turn onto Higgins. As Marquardt was in the midst of his turn, defendant\u2019s car sped around him on the right, tires screeching. Mar-quardt was forced to slow down to avoid colliding with defendant\u2019s auto. Defendant followed Bolger, flashing his high beams on and off. About 200 yards west of the Central Avenue intersection, Bolger stopped his car in traffic. Defendant pulled within five or six feet of Bolger\u2019s car and Marquardt then stopped his car behind defendant\u2019s.\nMarquardt stated that the lighting conditions at the scene were good. Defendant got out of his car and began pointing at Bolger with his left hand while holding a chrome-plated gun behind his back with his other hand. Defendant moved toward Bolger\u2019s auto while yelling at him. Bolger got out of his car holding a drinking glass, from which he took a sip, and proceeded to the rear of his car. Defendant continued to move toward Bolger, and when they were six feet apart, defendant, who had never revealed the gun to Bolger prior to this point, pivoted, pointed the gun at Bolger\u2019s chest and fired. Defendant then ran back to his car, turned his headlights off and fled. Marquardt subsequently identified defendant in a lineup.\nOn cross-examination, Marquardt admitted that: (1) he had assumed defendant and Bolger were arguing when he first saw them; (2) he did not know the length, cause or subject of the first altercation; and (3) he did not hear everything that was said during the second altercation.\nIn addition to Marquardt, the State called two police officers. Officer Edmond Harder testified that when he arrived at the scene he saw a plastic drinking cup and straw about three feet from Bolger\u2019s body, which was lying near the rear of his Cadillac. Officer Robert Smitka testified that he recovered a NATO military knife that \u201cwasn\u2019t really operational\u201d from the left sleeve pocket of the jacket Bolger was wearing.\nDefendant testified on his own behalf that on the night in question he was driving north on Central Avenue when he noticed Bolger\u2019s car swerving in and out of traffic. Bolger\u2019s car came to a stop between the two northbound lanes on Central Avenue and defendant then flashed his headlights at Bolger to indicate to Bolger that he could get in front of him. Defendant testified that Bolger proceeded to pull his car into defendant\u2019s lane, stopped and exited his car, and began to ask in a profane manner why defendant was flashing his lights. Defendant was trying to explain that he was signaling that it was safe for Bolger to enter his lane when Bolger slapped him, knocking his eyeglasses off. Bolger then brandished a knife and warned defendant that if he ever flashed his lights at him again, he would kill him.\nThey proceeded north on Central Avenue in their respective cars and were side-by-side at the intersection of Central and Higgins. Defendant explained that he was concerned that they were approaching a point where Central Avenue narrowed from two lanes into one and that he would have to yield to Bolger. Attempting to avoid further trouble, defendant ran the red light at Higgins and turned left in front of Bolger\u2019s car from the right lane. Bolger also turned left, almost simultaneously with defendant, passed defendant on Higgins and then cut him off.\nBolger got out of his car and came towards defendant, holding something that \u201cglinted\u201d in his hand. Defendant got out of his car and said that he did not want any trouble and Bolger responded profanely that he was going to kill defendant. Defendant then stepped back and shot Bolger with a gun that he had in his back pocket; Bolger turned and stepped back towards his car. Fearing that Bolger was retrieving something from his trunk, defendant ran to his auto and drove home.\nDefendant was subsequently convicted by a jury of first degree murder and sentenced to 20 years\u2019 imprisonment. After his conviction was affirmed on appeal (People v. Moleterno (1990), 199 Ill. App. 3d 15, 556 N.E.2d 703), he filed this petition for post-conviction relief which alleged that his trial counsel was ineffective in that he failed to introduce evidence of Bolger\u2019s violent nature and failed to obtain and use the murder weapon during trial to impeach Marquardt\u2019s testimony. In the alternative, defendant argued that the gun constituted newly discovered evidence which warranted a new trial.\nAttached to his petition were several affidavits. The first was from Donna DuMelle, who worked as a part-time bartender from 1983 through 1986 in a bar frequented by Bolger. In her affidavit, she stated that Bolger was a regular customer at the bar until he was banned from the premises in 1986. Bolger was a pleasant person when sober, but became violent and abusive after he had a couple of drinks. She stated that Bolger was an alcoholic and was the only person with whom she had problems during the four years that she worked there.\nDuMelle attested to the fact that Bolger had to be removed from the bar by the doormen on more than one occasion due to his behavior and would often put up a fight. DuMelle feared retaliation by Bolger whenever he was kicked out of the bar on the basis of his abusive behavior towards her. On one occasion, Bolger threw a drink in her face and attempted to jump over the bar and attack her because she refused to serve him after closing. A second time, Bolger threw a heavy glass ashtray at her head when she refused to serve him. She stated that when she read a newspaper account of the shooting involving Bolger which described him as having a bright future, she and several others wrote a letter to the editor of the newspaper which published the story, expressing their objections to the story. They signed the letter, \u201cAll those who knew and feared Tim Bolger.\u201d\nDuMelle said that she was contacted by a person representing defendant in late 1987 at which time she related all the aforementioned information. The attorney told her that he might want to use her at trial. She was never again contacted or subpoenaed to testify.\nDefendant also attached an affidavit of a friend, Albert Perry. In his affidavit, Perry stated that on the evening of February 3, 1987, defendant\u2019s wife came to his house in Chicago, told him that defendant had just shot someone, and gave him a small black .25-caliber Beretta handgun. Perry put the gun in the back of his furnace where it remained until 1990. Perry stated that at that time defendant called him from prison and asked him about the gun. Following defendant\u2019s instructions, he returned the gun to defendant\u2019s wife.\nThe affidavit of John Leonard, a Chicago police officer, was also attached to defendant\u2019s petition. In his affidavit, Leonard stated that he had witnessed a conversation between defendant, defendant\u2019s wife and Albert Perry on the day after the shooting at which time defendant asked Perry if he still had the gun and Perry responded that he had \u201cgotten rid of it\u201d and would not say where it was. As a result of his refusal, Leonard swore out a complaint against Perry for obstruction of justice.\nThe circuit court dismissed defendant\u2019s petition without an evi-dentiary hearing, finding that there was no reasonable probability that the use of this evidence at trial would have changed the outcome.\nOpinion\nDefendant\u2019s first contention on appeal is that the trial court erred in dismissing his post-conviction petition which alleged ineffective assistance of counsel without an evidentiary hearing. In a post-conviction proceeding, the burden is on the defendant to establish a substantial deprivation of rights under either the United States or Illinois Constitution. (People v. Silagy (1987), 116 Ill. 2d 357, 507 N.E.2d 830.) The trial court\u2019s decision to grant or deny a request for post-conviction relief will not be overturned unless manifestly erroneous. (People v. Fernandez (1991), 222 Ill. App. 3d 80, 583 N.E.2d 627.) The petitioner is not entitled to an evidentiary hearing on his petition as a matter of right in that summary disposition of a nonmeritorious petition is permitted under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 \u2014 1 et seq.). (People v. Jackson (1987), 161 Ill. App. 3d 573, 515 N.E.2d 219; see also People v. Griffin (1992), 148 Ill. 2d 45, 592 N.E.2d 930.) To merit an evidentiary hearing, the defendant\u2019s petition must make a substantial showing that defendant\u2019s constitutional rights have been violated which must be supported by affidavits or other evidence which allege specific facts. (People v. Janis (1992), 240 Ill. App. 3d 805, 608 N.E.2d 359.) If these facts, taken as true (People v. Mendez (1991), 221 Ill. App. 3d 868, 582 N.E.2d 1265), do not indicate that defendant\u2019s rights have been violated, an evidentiary hearing is unnecessary. See People v. Spreitzer (1991), 143 Ill. 2d 210, 572 N.E.2d 931.\nSpecifically, defendant argues that his trial counsel was ineffective in that he did not call Donna DuMelle as a witness to demonstrate Bolger\u2019s violent behavior and by not obtaining and using the murder weapon at trial to impeach Marquardt as to the color of the gun.\nA claim for ineffective assistance of counsel will be sustained if (1) \u201ccounsel\u2019s representation fell below an objective standard of reasonableness and that counsel\u2019s shortcomings were so serious as to \u2018deprive the defendant of a fair trial, ***\u2019 [and] \u2018that there was a reasonable probability that, but for counsel\u2019s unprofessional errors, the result of the proceeding would have been different.\u2019 \u201d (People v. Albanese (1984), 104 Ill. 2d 504, 525, 473 N.E.2d 1246, quoting Strickland v. Washington (1984), 466 U.S. 668, 687, 694, 80 L. Ed. 2d 674, 693, 698, 104 S. Ct. 2052, 2064, 2068.) There is a strong presumption that counsel was competent and his performance will be examined as of the time of trial, not in hindsight. (People v. Whittaker (1990), 199 Ill. App. 3d 621, 557 N.E.2d 468.) Counsel\u2019s competence will not be appraised on matters involving the exercise of judgment, discretion or trial tactics. People v. Lovitz (1984), 127 Ill. App. 3d 390, 468 N.E.2d 1010.\nTrial counsel\u2019s failure to call DuMelle does not indicate that his performance was so deficient as to affect the outcome. Initially, we note that DuMelle\u2019s affidavit only sets forth two specific instances to support her opinion. Even assuming that those instances were detailed enough to be relevant and reliable, the defendant would only gain a minimal advantage from the introduction of this evidence. This evidence could not be used to show that defendant had a reasonable fear of Bolger because defendant was admittedly unaware of these instances at the time of the shooting.\nThe only potential use for this evidence is to show Bolger\u2019s propensity to become violent when he drank, thus supporting defendant\u2019s contention that Bolger was the aggressor in their encounter. The conclusion that Bolger was the aggressor, however, is directly rebutted by substantial evidence which was offered at trial, particularly the eyewitness testimony of Marquardt and the physical evidence found at the scene. In this respect, we note that Marquardt\u2019s testimony was unequivocal that after the first altercation between Bolger and defendant, it was defendant who pursued Bolger. It was defendant who first got out of his car and started to scream at Bolger. It was defendant who exited his car with a weapon concealed behind his back at the ready.\nMoreover, Marquardt\u2019s testimony was corroborated by the physical evidence found at the scene: a drinking cup was found next to Bolger\u2019s body and the only weapon found at the scene was a nonoperational knife that was found unopened in Bolger\u2019s jacket pocket. See People v. Spreitzer, 143 Ill. 2d at 219-20 (commenting on inconsistency between the testimony of witness who trial counsel failed to call and that of other witnesses offered at motion to quash in determining post-conviction petition alleging ineffective assistance of counsel was properly dismissed without an evidentiary hearing; the testimony of witness did not \u201cprovide the probability of doubt that could lead to a retrial\u201d); Lovitz, 127 Ill. App. 3d at 397 (defendant\u2019s right to effective counsel was not violated by trial counsel\u2019s failure to call barmaid to testify to decedent\u2019s intoxication at the time of the shooting when such testimony was \u201cnot \u2018of such a conclusive character that it would probably change the result on retrial.\u2019 [Citation]\u201d).\nIn order for DuMelle\u2019s testimony to create a reasonable probability of a different outcome, it would have to call into question the aforementioned testimony of a disinterested eyewitness whose testimony was corroborated by the other evidence offered at trial, including, in many respects, the defendant\u2019s own testimony. We do not think that the failure to bring out these two instances prejudiced defendant in light of the substantial evidence offered at trial, which we found to be \u201cclear and convincing\u201d in affirming defendant\u2019s conviction on direct appeal. (See People v. Moleterno (1990), 199 Ill. App. 3d 15, 24, 556 N.E.2d 703.) As such, there is no reasonable probability that the outcome of defendant\u2019s trial would have been different had defendant\u2019s trial counsel sought the admission of this evidence. See People v. Dean (1992), 226 Ill. App. 3d 465, 589 N.E.2d 888; Spreitzer, 143 Ill. 2d at 223.\nIn addition to the fact that there was no reasonable probability that the omission of the evidence affected the outcome, we would also note that trial counsel\u2019s decision not to call this witness may well have been a matter of trial strategy. The decision as to whether \u201cto call a witness is a tactical and strategical decision in which defense counsel is given wide latitude in making decisions.\u201d (People v. Davis (1992), 228 Ill. App. 3d 123, 130, 592 N.E.2d 464.) DuMelle stated that she had been contacted by defendant\u2019s trial counsel prior to trial and had related all of the information contained in her affidavit to him. This shows that trial counsel knew of DuMelle\u2019s testimony prior to trial and that his failure to call her was not a mere oversight, but was the result of a conscious decision. (See Whittaker, 199 Ill. App. 3d at 628-29 (\u201c[c]hoices which are made on the basis of strategic considerations after a thorough investigation of all matters relevant to plausible options have traditionally been considered to be unchallengeable\u201d); see also People v. Consago (1988), 170 Ill. App. 3d 982, 524 N.E.2d 989 (defendant failed to overcome strong presumption of effective assistance of counsel; counsel\u2019s decision not to call eyewitness was matter of strategy when counsel knew of witness\u2019 testimony prior to trial and had him listed as a potential witness).) Under these circumstances, the trial court did not err in dismissing defendant\u2019s petition without an evidentiary hearing. See Jackson, 161 Ill. App. 3d at 585 (affirming trial court\u2019s dismissal of a post-conviction petition without an evidentiary hearing where defendant did not demonstrate that there was a reasonable likelihood that the outcome of the case would have been different).\nWe also conclude that an evidentiary hearing was not necessary to determine whether defendant\u2019s trial counsel was ineffective in not obtaining and using the murder weapon to impeach Marquardt. We note at the outset that defendant gave the gun to a friend to dispose of, thereby limiting his own counsel\u2019s potential use of the weapon. Moreover, even if the gun had been readily accessible to trial counsel, it could very well have been a decision of trial strategy not to focus the jury\u2019s attention on the very gun defendant used to kill the victim, particularly when the victim was not carrying a gun at the time he was shot. (See People v. Davis (1992), 228 Ill. App. 3d 123, 128, 592 N.E.2d 464 (trial counsel\u2019s decision not to use photo and exhibit \u201cis clearly a strategic or tactical decision that will not be disturbed on review\u201d).) We recognize that a strategy to minimize defendant\u2019s possession and use of a gun would be consistent with the defense\u2019s portrayal of the defendant as a man who was afraid of the much younger and larger Bolger.\nAdditionally, there is no potential prejudice to defendant\u2019s case resulting from the failure to use this gun to impeach Marquardt. First, the color of the gun was not a material issue at trial. In his own testimony, defendant admitted shooting Bolger at the time and place where the incident occurred; there was never any debate over whether defendant actually shot Bolger or which gun he used. In this sense, that a black gun was used instead of a chrome-plated gun is of minor relevance. See People v. Flores (1989), 128 Ill. 2d 66, 538 N.E.2d 481 (trial counsel\u2019s failure to call two witnesses was not ineffective where their testimony possessed only minor impeachment value).\nMarquardt\u2019s testimony was corroborated by the defendant\u2019s testimony concerning the earlier encounter, the position of the vehicles at the time of the shooting, the position of Bolger\u2019s body, the presence of the drinking cup and straw close to the body, that Bolger\u2019s knife was found unopened in his jacket pocket and that the defendant drew the gun from behind his back. In light of this substantial corroboration of Marquardt\u2019s testimony by the physical evidence and other testimony offered at trial, we cannot say that the trial court erred in denying defendant\u2019s petition without an evidentiary hearing where the use of the gun could only impeach Marquardt on a minor point. Flores, 128 Ill. 2d 66, 538 N.E.2d 481; People v. Martin (1983), 112 Ill. App. 3d 486, 445 N.E.2d 795 (failure to use available impeachment evidence to impeach a witness\u2019 description does not constitute incompetence).\nDefendant\u2019s next contention on appeal is that the gun constitutes the type of newly discovered evidence which had a reasonable probability of changing the outcome of his trial. A trial court\u2019s denial of defendant\u2019s request for a new trial based on newly discovered evidence is within the circuit court\u2019s discretion and will not be reversed absent a manifest abuse of that discretion. (People v. Blount (1991), 220 Ill. App. 3d 732, 580 N.E.2d 1381.) To warrant a new trial, \u201cthe evidence must be of such a conclusive character that it would probably change the result at the new trial; the evidence must be material and not merely cumulative; the evidence must have been discovered after the trial and must be of such a character that it could not have been discovered before trial in the exercise of due diligence.\u201d (People v. Washington (1992), 230 Ill. App. 3d 1002, 1007-08, 596 N.E.2d 114; People v. Geneva (1990), 196 Ill. App. 3d 1017, 554 N.E.2d 556.) Motions for a new trial based on newly discovered evidence are not looked upon favorably by courts and are given close scrutiny \u201cin order to prevent fraud which parties may be tempted to use as a last resort to avoid an adverse verdict.\u201d Washington, 230 Ill. App. 3d at 1007; Clay, 211 Ill. App. 3d at 304.\nAs previously discussed with respect to defendant\u2019s claim that he received ineffective assistance of counsel, the omission of this evidence was not outcome determinative. The introduction of the gun is collateral and not material to the issue of whether defendant acted in self-defense. At best, the gun would merely impeach Marquardt\u2019s testimony on a minor point, and it is well established that \u201c[njewly discovered evidence, the effect of which is to discredit, contradict and impeach a witness does not afford a basis for the granting of a new trial.\u201d People v. Clay (1990), 211 Ill. App. 3d 291, 323, 570 N.E.2d 335; see also People v. Harris (1987), 154 Ill. App. 3d 308, 506 N.E.2d 1353 (witness testimony that victim possessed and was firing gun at defendant was not the type of newly discovered evidence which provides a basis for a new trial where such testimony only affects the credibility of the State\u2019s witnesses and otherwise lacks probative force).\nMoreover, in addition to the fact that this evidence was not sufficiently consequential, we would disagree with defendant\u2019s characterization of this evidence as newly discovered. Regardless of Perry\u2019s statement, the simple fact remains that defendant gave the gun to Perry through his wife with instructions to dispose of it. Two factors are demonstrated by defendant\u2019s actions in this respect. First, defendant played an integral role in the unavailability of the weapon; second, defendant knew of the existence of the gun and in whose possession it was well in advance of trial. (See People v. Chew (1987), 160 Ill. App. 3d 1082, 513 N.E.2d 1099 (defendant appeared to know of \u201cnewly discovered evidence\u201d prior to trial); see also People v. Bracey (1972), 51 Ill. 2d 514, 283 N.E.2d 685.) In light of these two factors, the gun cannot be considered \u201cnewly discovered evidence\u201d warranting a new trial.\nThe case of People v. Jones (1975), 26 Ill. App. 3d 78, 325 N.E.2d 56, is analogous. There, defendant admitted shooting the victim, but claimed he acted in self-defense. The prosecutor emphasized in closing argument that the victim had no gun as defendant had claimed. After the jury returned a guilty verdict, defendant filed a motion for a new trial based on newly discovered evidence in the form of the testimony of a witness who attested to the presence of the gun. This witness told defendant what happened to the gun prior to trial and this information was relayed to defendant\u2019s attorney, who interviewed the witness. The witness, who was incarcerated, refused to cooperate with defendant\u2019s attorney. In denying defendant\u2019s motion, the court noted:\n\u201cBoth defendant and his lawyer knew that [the witness] had made a statement favorable to them and that he was available for subpoena. *** The only change in the situation from time of trial to time of motion was that the witness became more cooperative. His version of the occurrence did not change. This evidence was not newly discovered.\u201d Jones, 26 Ill. App. 3d at 82-83.\nLike the witness in Jones, Perry here was initially uncooperative. Like the information involved in Jones, the information at issue here, the color of the gun, was also within the knowledge of defendant. He could have testified to this fact when he took the stand. His wife could have testified to the color of the gun as she was the intermediary between her husband and Perry. Perry could have been subpoenaed and asked the color and whereabouts of the gun. In sum, the color of the gun cannot be considered \u201cnewly discovered.\u201d See Jones, 26 Ill. App. 3d 78, 325 N.E.2d 56; see also Bracey, 51 Ill. 2d 514, 283 N.E.2d 685; Chew, 160 Ill. App. 3d 1082, 513 N.E.2d 1099.\nIn making our decision, we are mindful that allowing a new trial based on evidence of which the defendant was aware and which he caused to be hidden would be contrary to the very concerns underlying the requirement that courts give such requests close scrutiny. (See Washington, 230 Ill. App. 3d at 1007; Clay, 211 Ill. App. 3d at 304.) It would be incongruous, to say the least, to allow defendant to bury a piece of evidence within his control, take his chances at trial, and then if convicted, unearth the very same evidence and ask for a second chance.\nFor the foregoing reasons, the judgment of the trial court is affirmed.\nAffirmed.\nMURRAY and COUSINS, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE GORDON" } ], "attorneys": [ "Genson, Steinback, Gillespie & Martin, of Chicago (Edward Genson and Leonard Goodman, of counsel), for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Robert Scott, and Sharon D. Opryszek, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JEFFREY MOLETERNO, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201492\u20140902\nOpinion filed September 24, 1993.\nGenson, Steinback, Gillespie & Martin, of Chicago (Edward Genson and Leonard Goodman, of counsel), for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb, Robert Scott, and Sharon D. Opryszek, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0615-01", "first_page_order": 633, "last_page_order": 644 }