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People v. Buffer

Court of Appeals of Illinois, First District

March 29, 2017

DIMITRI BUFFER, Petitioner-Appellant.

         Appeal from the Circuit Court of Cook County, Illinois, Criminal Division. No. 09 CR 10493 The Honorable Thaddeus Wilson, Judge Presiding.

          PRESIDING JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Justice Lavin concurred in the judgment and opinion.



         ¶ 1 The petitioner, Dimitri Buffer, appeals from the circuit court's summary dismissal of his pro se postconviction petition filed pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2004)). On appeal, the petitioner contends that his 50-year adult sentence, imposed for a crime he committed when he was 16 years old, is unconstitutional as applied under the eighth amendment to the United States Constitution (U.S. Const., amend. VIII) and under Illinois's proportionate penalties clause (Ill. Const. 1970, art. I, § 11). For the reasons that follow, we vacate the petitioner's sentence and remand for resentencing.

         ¶ 2 I. BACKGROUND

         ¶ 3 For purposes of brevity we set forth only those facts and procedural history relevant to the resolution of the issues in this appeal. In 2009, the 16-year-old petitioner was charged with multiple counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)) in the shooting of the victim, Jessica Bazan, including that he personally discharged the firearm that caused her death. The petitioner was transferred to be tried as an adult under the mandatory transfer provision of the Juvenile Court Act of 1987 (705 ILCS 405/5-120 (West 2008)).

         ¶ 4 A. Trial

         ¶ 5 The following evidence was adduced at the petitioner's jury trial. Serena Ortiz and her 10-year old son, Jai Cuevez, testified that on the evening of May 16, 2009, they were inside their second-floor apartment at 8311 South Brandon Avenue. At about 10 p.m., Ortiz was speaking on the telephone, while Cuevas was looking out the window and saw Bazan (who was Ortiz's uncle's fiancée) pulling up in front of the building in her red Chevrolet Caprice. Ortiz looked out the window, waved to Bazan, and told her "to hold on" while she finished her conversation in another room. Cuevas continued to look out the window. When Ortiz returned, both she and Cuevas saw a figure in a black hoodie approach Bazan's car, fire two shots inside, and run towards a white "cop" or "bubble" (Ford Crown Victoria) car, which they identified from a photo at trial. Neither Ortiz nor Cuevas could see the offender's face because it was too dark.

         ¶ 6 The forensic pathologist who performed the autopsy on Bazan testified that Bazan was shot twice in her right thigh and died as a result of those wounds.

         ¶ 7 Sammy Trice, age 23, and a former member of the Black P Stones gang, next testified that at about 9:30 p.m., on May 16, 2009, he and Steven Ward drove Ward's white Ford Crown Victoria, previously identified by Ortiz and Cuevas as the vehicle used by the offender to flee the scene of the shooting, to pick up four minors: (1) Trice's 15-year-old cousin, Mark Matthews, who remains a member of the Black P Stones; (2) 14-year-old Devon Brunt; (3) 16-year-old Devaunte Johnson; and (4) the 16-year-old petitioner.

         ¶ 8 Trice averred that he drove the car to an alley on 83rd Street between Coles Avenue and South Shore Drive because he wanted to purchase marijuana. Trice explained that the Black P Stones had a "stash house" where they kept their drugs and "nation guns, " which were available for use to all members. Once there, Trice and the petitioner exited the car, and the petitioner went to the "stash house." Upon his return, Trice proceeded to drive down Brandon Avenue and stopped at a stop sign to "roll a blunt, " when he heard the petitioner say "There go them guys right there." According to Trice, the petitioner then exited the vehicle, walked toward the passenger side of a parked red vehicle and fired shots inside. Trice claimed that he tried to flee in Ward's car, but the petitioner ran after him and jumped inside. Trice "hollered and cursed" at the petitioner to get out, and as he pulled into an alley, the petitioner jumped out and fled. Soon thereafter Trice was pulled over by the police, and all five men were arrested and taken into custody. Once there, Trice identified the petitioner as the shooter from a photo array. He again identified the petitioner as the shooter in open court.

         ¶ 9 On cross-examination, Trice acknowledged that when he was brought to the police station, he thought that he was being arrested for Bazan's murder. Trice admitted that he initially lied to police about what he saw. He explained that the police told him that both he and his cousin, Matthews, would be charged with murder, and he did not want that to happen. Trice acknowledged that he did not identify the petitioner from a photo array until 9:12 a.m. on the following morning, after speaking to his mother and to the detectives, who told him that Matthews's story was "falling apart."

         ¶ 10 Matthews, age 15, testified consistently with Trice. In addition, he provided testimony regarding the motive for the shooting. Specifically, Matthews testified that two days prior to the shooting, he was near a store on 83rd Street and Cottage Grove Avenue when he was approached by a group of rival Latin King gang members, who asked him if he was a Black P Stone. Matthews stated that when he answered in the affirmative, they "jumped him, " striking him several times and causing multiple abrasions on his face. Matthews's aunt filed a police report in regard to this incident.

         ¶ 11 Matthews averred that at about 9 p.m. on the day of the shooting, he was playing basketball with Brunt, Johnson, and the petitioner when a red car pulled up and several individuals inside, whom Matthews identified as members of the Latin Kings, "threw their gang signs" at them. Soon thereafter, Trice appeared in a white car with Ward and drove them all to a house where the Black P Stones kept their drugs and weapons. Contrary to Trice's testimony, Matthews averred that the petitioner alone exited the car, went to the stash house, and returned several minutes later. Matthews testified that later when Trice stopped the car at a stop sign on Brandon Avenue, the petitioner exited the car and fired gunshots toward a red car that was parked on the street and that looked like the car belonging to the Latin Kings who had flashed their gang insignia at them earlier that day.

         ¶ 12 On cross-examination, Matthews admitted that he initially lied to the police about who had committed the crime and implicated James Jones (James), who is a member of a rival gang, the Apache Stones. He eventually identified the petitioner as the shooter and picked him out of a photo array. Matthews explained that he did not identify the petitioner as the shooter until the detectives returned and told him that his cousin, Trice, and Ward had not implicated James but had instead identified the petitioner as the shooter.

         ¶ 13 The owner of the white Ford Crown Victoria, Ward, next testified that he uses this vehicle to "taxi" locals around the neighborhood because regular taxi cab companies do not venture to that area of Chicago. He explained that on May 16, 2009, he loaned his car to Trice and together they picked up and drove three of Trice's friends, whom Ward did not know. Ward testified consistently with Trice and Matthews about what transpired that evening, including his witnessing of the shooting. Ward, however, did not identify the petitioner as the shooter (either when he was arrested by the police or at trial).

         ¶ 14 Several police officers testified to their efforts in arresting the suspects after receiving a flash message describing the getaway vehicle. The officers arrested all five individuals inside the vehicle (Trice, Brunt, Johnson, Matthews, and Ward), and performed gunshot residue tests on them. All of those tests were negative for gunshot residue.

         ¶ 15 Aisha Jones (Jones), age 17, and the petitioner's brother's girlfriend as well as the sister of James Jones, next testified that the petitioner is "like a little brother to her." She testified that in 2009, both the petitioner and his brother were members of the Black P Stones gang.

         ¶ 16 Jones testified that at about 10 p.m. on the night of the shooting, she was with the petitioner's brother when he received a telephone call and eventually proceeded to the corner of 81st Street and Coles Avenue, where they picked up the petitioner. Jones testified that the petitioner, who was wearing a navy blue hoodie, entered the car and said, "I just shot a [Latin] King in his face." Jones testified that everyone in the car asked the petitioner "if he be for real" because the petitioner often joked around and was a playful person. The petitioner "swore to God" and "on Jeff [Fort, the head of the Black P Stones gang]" that he was telling the truth.

         ¶ 17 Jones testified that on the following morning, she also heard the petitioner telling his brother that "he shot a King in the face." According to Jones, when the petitioner's brother mentioned a woman, the petitioner told him that he "shot a King" and "didn't shoot no lady."

         ¶ 18 On cross-examination, Jones explained that she was not concerned about what she had heard from the petitioner because he "always play like this." Jones also admitted that she did not go to the police station to make a statement about what she had heard, until later that day when she found out that her brother, James, had been arrested in connection with the shooting.

         ¶ 19 Chicago police detective Michele Moore-Grose also testified that in investigating the instant case, she interviewed the responding officers and several witnesses, including Ortiz and Cuevas. The detective afterward interrogated all five suspects (Trice, Ward, Matthews, Johnson, and Brunt) that were arrested in the white Ford Crown Victoria near the scene of the shooting. She acknowledged that after speaking to Matthews, her investigation first focused on James, whom she arrested on May 17, 2009. She explained, however, that after further interrogation of the witnesses and after speaking to Aisha Jones, her investigation changed course and focused on the petitioner.

         ¶ 20 The defense offered no evidence at trial. After hearing closing arguments, the jury found the petitioner guilty of four counts of first degree murder. The jury also specially found that the petitioner had personally discharged the firearm that proximately caused Bazan's death.

         ¶ 21 B. Sentencing

         ¶ 22 At the sentencing hearing, the court first heard the victim impact statement written by the victim's mother. Subsequently, in aggravation, the State called several police officers to testify to incidents in which the petitioner had been arrested when he was just 14 and 15 years old. Specifically, the officers testified to having previously arrested the petitioner for (1) a burglary in progress, wherein the petitioner was found in the "back seat of a vehicle" where the ignition was peeled and the vehicle was reported stolen; (2) attempted robbery, where the 15-year-old petitioner tried to take money from an 18-year old victim's pocket and hit the victim; (3) resisting arrest, when the petitioner, together with several other members of the Black P Stones gang, "interfered in the placing into custody of another narcotics related arrestee"; (4) robbery, wherein the victim identified several individuals who had battered him and taken his wallet, including the petitioner; and (5) "flashing gang signs."

         ¶ 23 In contrast to the officers' testimony, the petitioner's presentencing investigation report (PSI), which was introduced at the sentencing hearing, reflected only a single finding of delinquency for theft.

         ¶ 24 In mitigation, defense counsel argued that the petitioner was remorseful, that he was 16 years old at the time of the shooting, that his parents have been present in court and in his "entire life, " that he has no history of mental illness, and that he struggled with school but had completed two years of high school with special assistance classes. In addition, defense counsel explained that the defendant's previous arrests can be explained by the fact that he "exists in a world where there is violence" and "senseless deaths." Counsel also emphasized that the petitioner was not alone and that he was very susceptible to the influence of others. In allocution, the petitioner apologized for what had happened to the victim's family and expressed that he was "really sorry."

         ¶ 25 The State argued that the petitioner's arrests as a minor showed "the making of a gang member" and contended that the petitioner "had choices at the age of 14 and yet continued again and again to commit crimes." The State claimed that the petitioner "chose to be a Black P Stone" and that he "chose to have that life." The State further argued for an extended sentence in order "to deter others from committing the same crime" and "to send a message" to the community and to gang members. As the State explained, "these sentences are necessary to deter others from that conduct."

         ¶ 26 After hearing arguments by both parties, the circuit court sentenced the petitioner to 50 years' imprisonment with 3 years of mandatory supervised release. In doing so, the court stated that it had "considered all of the relevant statutory requirements, including, but not limited to" (1) the evidence at trial, (2) the gravity of the offense, (3) the PSI, (4) the financial impact of incarceration to a limited extent given the petitioner's age, his not having children or dependents, (5) evidence in aggravation and mitigation, (6) potential substance abuse issues, (7) treatment, (8) potential for rehabilitation, (9) the possibility of alternative sentencing, (10) the petitioner's statement in allocution, (11) the victim impact statement, and (12) "all hearsay considered at the hearing deemed relevant and reliable."

         ¶ 27 C. Direct Appeal

         ¶ 28 The petitioner filed a direct appeal with this court on June 27, 2011, arguing that (1) the trial court had improperly admitted Trice's prior consistent statements from his grand jury testimony to bolster his and Matthews's testimony at trial and (2) the State committed error in its rebuttal remarks when it improperly bolstered Jones's testimony. See People v. Buffer, 2012 IL App (1st) 102411-U, ¶¶ 48, 70.

         ¶ 29 During the pendency of this appeal, on June 25, 2012, the United States Supreme Court decided Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455 (2012), holding that because juvenile offenders are less culpable than adults who commit the same crime and are far more capable of rehabilitation, a mandatory sentence of life without the possibility of parole violates the eighth amendment.

         ¶ 30 On July 24, 2012, the petitioner filed a motion seeking leave to file a supplemental brief addressing the impact of Miller on his 50-year sentence. The State objected, and we denied leave on August 7, 2012. On August 9, 2012, the petitioner filed a motion to reconsider, and the State responded, renewing its objection.

         ¶ 31 On August 16, 2012, we affirmed the petitioner's conviction. See Buffer, 2012 IL App (1st) 102411-U, ¶¶ 61, 74. In doing so, we agreed with the petitioner that Trice's grand jury testimony was inadmissible and constituted an abuse of the trial court's discretion. In addition, we stated that we were "inclined to agree" that the scope of the State's rebuttal "exceeded the bounds of proper comment" since it was "not based upon any facts or reasonable inferences in the record." Buffer, 2012 IL App (1st) 102411-U, ¶ 74. Nonetheless, we found that in light of the overwhelming evidence of the petitioner's guilt, these errors did not rise to the level of plain error so as to permit our review. See Buffer, 2012 IL App (1st) 102411-U, ¶ 75.

         ¶ 32 On August 17, 2012, a day after we issued our Rule 23 order, we also denied as moot the petitioner's motion to reconsider our denial of his request to supplement his brief to address his sentence in the context of Miller, 567 U.S. 460, 132 S.Ct. 2455.

         ¶ 33 The petitioner subsequently sought leave to appeal to our supreme court, but his petition was denied. See People v. ...

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