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People v. Spivey

Court of Appeals of Illinois, Second District

January 25, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
KAVIN SPIVEY, Defendant-Appellant.

         Appeal from the Circuit Court of Lake County. No. 07-CF-4850 Honorable Theodore S. Potkonjak, Judge, Presiding.

          JUSTICE McLAREN delivered the judgment of the court, with opinion. Justices Zenoff and Schostok concurred in the judgment and opinion.

          OPINION

          McLAREN JUSTICE

         ¶ 1 Defendant, Kavin Spivey, appeals from an order of the circuit court of Lake County granting the State's motion to dismiss his petition under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2014)) seeking relief from his convictions of attempted first-degree murder (720 ILCS 5/8-4(a), 9-1(a)(1) (West 2006)), armed violence (720 ILCS 5/12-11.1(a), 33A-2(a) (West 2006)), armed robbery (720 ILCS 5/18-2(a)(2) (West 2006)), and being an armed habitual criminal (720 ILCS 5/24-1.7(a)(2) (West 2006)). We affirm.

         ¶ 2 Defendant's convictions were based on the following evidence, which was presented at a bench trial. Kristie Kim testified that on the morning of November 30, 2007, she visited a gas station located near the Gurnee Mills shopping center. After she made a purchase at the gas station's convenience store and returned to her vehicle, a black male approached and demanded that she give him all her money. When Kim asked the man if he was serious, he lifted his shirt, revealing a handgun in the waistband of his pants. He then pulled Kim out of the car, took her wallet, and ran away toward a Toys "R" Us store. As the man fled, Kim observed that a second black male, who was standing behind her car, ran in the same direction as the man who took her wallet. Kim told police that the man who took her wallet wore a faded, worn, gray hoodie. The other man wore a hoodie, but Kim did not remember what color it was. When shown a photo lineup, Kim identified someone other than defendant as the man who took her wallet.

         ¶ 3 David Bryant, who was working at the gas station, testified that a woman purchased cigarettes at the convenience store. After she left the store, Bryant observed two black males approach her. He then observed the men running away. The woman told Bryant that she had been robbed. Bryant chased the two men. One of the men stopped about 20 feet from Bryant, pulled out a gun, and fired a shot. The two men then ran to a van and drove away. According to Bryant, the man with the gun was wearing a tan flannel coat or jacket. Several witnesses testified that they observed two men running and/or that they heard gunshots at the scene of the incident. One witness testified that the men drove away in a black and gold Ford pickup truck. Gurnee police officers learned that a vehicle fitting that description had driven through a toll plaza on Interstate 94 without paying the toll. The police obtained photographs of the truck's license plate, which was issued by the State of Wisconsin. The truck was registered to Katrina Fleming.

         ¶ 4 Katrina's husband, Travis Fleming (Fleming), was charged along with defendant and 16-year-old Lamar Hicks. Fleming and Hicks both entered into plea agreements whereby they agreed to testify against defendant and to plead guilty to reduced charges. Fleming (who was defendant's uncle) resided in St. Anne, Illinois (which is near Kankakee), with defendant and other relatives. Hicks, who was a family friend, also resided with them. Fleming testified that, on the morning of November 30, 2007, he traveled with defendant and Hicks from St. Anne to Milwaukee, Wisconsin, where Fleming had a court date. They traveled in a black and gold Ford F-150 pickup truck with Wisconsin license plates. Defendant asked to stop at the Gurnee Mills Toys "R" Us store. They parked near the store and defendant and Hicks both got out of the truck. Fleming waited in the truck. Several minutes later, Fleming saw defendant and Hicks running. They got into the truck and defendant told Fleming to "just drive." Fleming drove to I-94 and proceeded toward Milwaukee. At one point Fleming drove through a toll plaza without paying. Fleming saw defendant looking through a black wallet. Defendant pulled a credit card out of the wallet. Defendant later used the credit card to buy gas for the truck. Fleming testified that, as they drove, defendant threw both the wallet and a gun out the window.

         ¶ 5 They proceeded to Milwaukee, where Fleming attended his court date. They next drove to Katrina's workplace and to the home of Katrina's sister, Tyshea Saffold. Saffold gave them a printout of directions to defendant's mother's house in Round Lake, Illinois. Defendant, Fleming, and Hicks then traveled to Round Lake and returned home to St. Anne.

         ¶ 6 Hicks testified that he fell asleep in Fleming's truck after they left for Milwaukee. Defendant woke Hicks. Fleming's truck was parked in the parking lot of a Toys "R" Us store. Defendant asked Hicks to come with him and they walked toward a gas station. Hicks saw defendant approach a woman seated in a parked car. Defendant grabbed the woman's wallet. Defendant and Hicks then ran. While running, Hicks heard two gunshots. He turned and saw defendant holding a gun. Hicks's account of what transpired after the shooting was consistent with Fleming's account.

         ¶ 7 Fleming's sister, Rena Fleming, testified that she was defendant's mother. On November 30, 2007, at about 4 p.m., defendant and Fleming visited her at her home in Round Lake. Defendant and Fleming were accompanied by a boy whom they referred to as "Scoobie."

         ¶ 8 The police obtained a warrant to search the truck registered to Katrina Fleming. They executed the warrant on December 12, 2007. The truck was parked outside a house in St. Anne. A resident gave the police consent to search inside the house. Defendant, Fleming, and Hicks were discovered hiding together near the back of the house. In the truck, police found a set of printed directions from a Milwaukee address to Rena Fleming's home and a box containing several rounds of live ammunition.

         ¶ 9 In support of the charge that defendant was an armed habitual criminal, the State introduced evidence of defendant's criminal history. The trial court found defendant guilty of, inter alia, attempted first-degree murder, armed violence, armed robbery, and being an armed habitual criminal. [1] Through counsel, defendant filed a posttrial motion. In addition, defendant filed a pro se motion for a new trial, in which he claimed, inter alia, that he did not receive the effective assistance of counsel. The trial court denied the motions and continued the case for sentencing, which took place on March 9, 2009.

         ¶ 10 Defendant filed a pro se postconviction petition on October 3, 2011. As pertinent here, defendant claimed that he did not receive the effective assistance of counsel at trial. He alleged as follows:

"Trial Counsel failed to investigate a call from Travis Fleming after his release from jail. Fleming called counsel to recant his testimony he advised him to contact his own counsel before doing so. Trial counsel did not follow up on this phone call ...

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