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People v. Thurman

March 13, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, RESPONDENT-APPELLEE,
v.
DAVID THURMAN, PETITIONER-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Francis X. Golniewicz, Jr. Judge Presiding.

The opinion of the court was delivered by: Justice Hartman

UNPUBLISHED

Petitioner David Thurman appeals from an order of the circuit court granting the State's motion to dismiss his post-conviction petition. On appeal, petitioner contends that he was denied a fair trial when one of the State's witnesses received leniency in exchange for his cooperation and the State failed to correct the witness' testimony to the contrary.

Following a bench trial, petitioner was found guilty of three counts of first-degree murder, armed robbery, armed violence and two counts of aggravated assault arising from the 1990 killing of Gonzalo Vega (the victim). The circuit court sentenced petitioner to natural life in prison for first-degree murder, 30 years in prison for the armed robbery and the armed violence convictions and three years for the aggravated assault convictions, to be served concurrently. Petitioner's convictions and sentences were affirmed on direct appeal. People v. Thurman, Nos. 1-92-1960 & 1-92-3312 cons. (1994) (unpublished order under Supreme Court Rule 23).

At trial, Pascual Alvarez, the victim's cousin, testified on behalf of the State on August 27, 1992. According to Alvarez, he and the victim were drinking with eight or nine other men at a friend's house on the evening of July 26, 1990. The victim, Alvarez, Mike Aguilar, Mark Hernandez and Steven Lavin subsequently drove to a liquor store. Alvarez went into the liquor store while the victim crossed the street and went to cash a check at a currency exchange. When Alvarez left the liquor store he saw the victim crossing Lake Street. Alvarez heard a gunshot after he got back into the car and saw the victim on the ground in front of a daycare center. Petitioner was crouching down next to the victim and had a gun in his hand pointed towards the victim's chest. Alvarez got out of the car and shouted at petitioner, "[d]on't shoot him *** [y]ou already shot him." Alvarez crouched down in front of the car and when he looked up petitioner was going through the victim's pockets. Petitioner pointed the gun at Alvarez and subsequently fired a shot in his direction. Alvarez went into the liquor store to ask for help and when he came out petitioner was running northbound.

On cross-examination, Alvarez testified that he was still in the custody of the sheriff because of an error with his paperwork. Alvarez denied that he was promised anything by the State in exchange for his testimony against petitioner.

Michael Aguilar testified that on the evening of July 26, 1990, he, the victim, Alvarez and another man drove to a liquor store. The victim went to a nearby currency exchange to cash a check while Alvarez went into the liquor store to buy some beer. Immediately after Alvarez returned to the car, he shouted, "Gonzalo is in trouble, Gonzalo got shot." Alvarez began to run across the street and Aguilar followed him. Alvarez crouched down to the ground after a man with a gun shot at him. Aguilar did not get a good look at the shooter and could not positively identify him.

Armando Alanis testified that he and the victim were friends. On the evening of July 26, 1990, Alanis was in his car at a stoplight when he observed petitioner and the victim in front of a daycare center and heard the two men arguing. Alanis heard a gunshot while he was driving through the intersection. He immediately pulled his car over and grabbed a stick that he kept in his car. Alanis then saw petitioner shoot at the victim and go through his pockets. He also saw petitioner shoot at Alvarez. He chased petitioner through a nearby alley and stopped after petitioner fired two shots at him.

Chicago Police Detective Richard Curley testified that on August 22, 1990, he interviewed petitioner regarding a matter unrelated to this case. Petitioner subsequently directed Detective Curley and his partner to a McDonald's parking lot in Maywood. Detective Curley searched the area adjoining the parking lot and recovered a loaded .38 caliber revolver. Petitioner identified the revolver and told Detective Curley that he had thrown the gun there.

Donald Smith, a forensic scientist and firearms expert, subsequently compared a fired bullet recovered from the crime scene in this case on July 26, 1990, with the gun recovered by Detective Curley from the parking lot in Maywood. According to Smith, the bullet from the crime scene could have been fired only from the revolver recovered by Detective Curley.

Petitioner filed a pro se petition for post-conviction relief on June 2, 1995, raising numerous contentions. The circuit court appointed post-conviction counsel who filed a supplemental petition on March 24, 2000, alleging, in pertinent part, that petitioner was denied effective assistance of trial and appellate counsel, and that petitioner was denied a fair trial because the State failed to notify the court and the defense that Alvarez received leniency in exchange for his testimony at trial. Attached to the petition were the partial transcripts of two hearings from August 1992 involving charges of criminal misdemeanor damage to property that were brought against Alvarez, an August 28, 1992 sentencing order, and a sheet which contained Alvarez's criminal history. The State successfully moved to dismiss the supplemental petition.

On appeal, petitioner contends that the circuit court erred in granting the State's motion because he was denied a fair trial when Alvarez gave false testimony regarding the leniency he received in exchange for his cooperation with the State, and the State failed to correct Alvarez's testimony.

The circuit court's decision to deny a post-conviction evidentiary hearing is reviewed de novo. People v. Coleman, 183 Ill. 2d 366, 701 N.E.2d 1063 (1998) (Coleman).

A petitioner does not have an automatic right to an evidentiary hearing. Coleman, 183 Ill. 2d at 381. An evidentiary hearing is warranted only when the allegations of the post-conviction petition, supported when necessary by the record or accompanying affidavits, makes a substantial showing that the petitioner's constitutional rights have been violated. People v. Barrow, 195 Ill. 2d 506, 749 N.E.2d 892 (2001) (Barrow). For the purpose of determining whether to grant an evidentiary hearing, all well-pleaded facts ...


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