Court of Appeals of Illinois, First District, Fourth Division
from the Circuit Court of Cook County. No. 13 CR 21956 (01)
The Honorable Timothy Joseph Joyce, Judge, presiding.
Attorneys for Appellant: James E. Chadd, Patricia Mysza, and
Kathryn L. Oberer, of State Appellate Defender’s
Office, of Chicago, for appellant.
Attorneys for Appellee: Kimberly M. Foxx, State’s
Attorney, of Chicago (Alan J. Spellberg, Clare Wesolik
Connolly, and Miles J. Keleher, Assistant State’s
Attorneys, of counsel), for the People.
JUSTICE GORDON delivered the judgment of the court, with
opinion. Presiding Justice McBride and Justice Burke
concurred in the judgment and opinion.
1 Defendant Omar Gunn, 17 years old, was charged as an adult
and convicted after a bench trial of first degree murder and
sentenced to 40 years with the Illinois Department of
2 In his initial brief in this appeal, defendant claimed (1)
that we should reverse his conviction and remand for a new
trial because his trial counsel rendered ineffective
assistance of counsel or (2) that, alternatively, we should
remand for resentencing because the trial court failed to
consider mandatory mitigating sentencing factors or (3) that
we should reduce his sentence or remand for resentencing
because a 40-year sentence imposed on a 17-year-old, like
defendant, constitutes a de facto life sentence and
violates the eighth amendment of the United States
Constitution (U.S. Const., amend. VIII) and the proportionate
penalties clause of the Illinois Constitution (Ill. Const.
1970, art. I, § 11).
3 However, defendant's initial brief was filed before our
supreme court decided People v. Buffer,
2019 IL 122327. Defendant's 40-year sentence now sits
right on the dividing line recently drawn by the
Buffer court, between what does and does not
constitute a de facto life sentence. See
Buffer, 2019 IL 122327, ¶ 40. The
Buffer court found that, in determining when a
juvenile's sentence is long enough to be considered
de facto life, "we choose to draw a line at 40
years." Buffer, 2019 IL 122327, ¶ 40.
Summing up its finding, the court stated: "We hereby
conclude that a prison sentence of 40 years or less imposed
on a juvenile offender does not constitute a de
facto life sentence in violation of the eighth
amendment." (Emphasis added.) Buffer, 2019 IL
122327, ¶ 41.
4 In response to Buffer, defendant filed a
supplemental brief, arguing (1) that other language in the
Buffer opinion supports a finding that 40 years is
long enough to be considered a de facto life
sentence; (2) that defendant's 40-year prison sentence,
plus his 3-year mandatory release term, constitutes a 43-year
total sentence and, thus, is a de facto
life sentence under Buffer; and (3) that
Buffer was decided solely under the eighth amendment
of the United States constitution and did not address our
state's proportionate penalties clause and that
defendant's sentence violates our state's
proportionate penalties clause in light of recent changes in
juvenile sentencing enacted by our state legislature.
5 For the following reasons we affirm.
7 The evidence at trial established that 18-year-old Jaleel
Pearson (the victim) was shot in a corner store during the
early evening of September 20, 2013, at the corner of 71st
Street and Crandon Avenue in Chicago. The State presented
three event witnesses: (1) a bystander who testified that
defendant followed the victim into the store and that he then
heard gunshots inside the store; (2) the store's cashier,
who observed defendant shoot the victim in the store and
overheard the victim's dying declaration identifying
defendant as the shooter; and (3) the victim's
girlfriend, who observed defendant outside the store after
the murder with a gun handle in his waistband.
8 Since trial counsel's representation is at issue in
this appeal, we set forth below his representation both
before and during trial.
9 I. Pretrial Representation
10 On December 4, 2013, when defendant was arraigned on the
indictment, he was represented by a private attorney. On
March 24, 2014, he moved to withdraw, and defendant's
family informed the court that they and counsel had
"several disagreements about this case." The case
was then continued to permit defendant time to obtain new
11 On April 17, 2014, a new attorney filed his appearance and
represented defendant through May 16, 2016, when the trial
court informed defendant that his current attorney had been
suspended from the practice of law and, thus, could no longer
represent defendant. The trial court informed defendant that
his attorney's associate, who had represented defendant
on several prior court appearances, was "currently
undergoing some medical treatment" but that defendant
could "continue with Mr. Wilk or go with somebody
else." Either way, however, the trial court needed
"to know what [defendant] want[ed] to do." The
trial court offered defendant a continuance so that defendant
could "talk it over with Mr. Wilk when his health [was]
on the mend, [and] figure it out then." Defendant
agreed, and the trial court continued the case for a month to
permit that to happen.
12 At the next court date on June 14, 2016, Thomas Kougias, a
new attorney on the case, entered his appearance.
Defendant's mother explained that Kougias was
"supposed to be representing him from [the suspended
attorney's] office, because we already paid [the
suspended attorney]. So he's supposed to be an associate
of his." However, Kougias clarified:
"Judge, I'm going to [need] leave to file my
appearance today. I spoke with the family. Judge, I also need
to spread of record so the family is not confused. They had
represented to me that they had paid [the suspended attorney]
in full. I know that's not the Court's concern, and
it's really not my concern
But I did explain to them what procedures they need to follow
in order to try and obtain those funds back, whatever they
paid. Whatever he's not earned, he needs to return.
*** Here's the other concern. I don't know
[the suspended attorney's] file that he had on this
matter. I need to try to locate it. I know it's an old
case. It's a 13. I know this case has whiskers. We need
to get it moving. I don't have a problem with that."
(hereinafter, "counsel") then informed the court
that he was going to work with the assistant state's
attorney (ASA) to duplicate the file.
13 On July 13, 2016, counsel informed the court that the
State had duplicated the file, that he had received a portion
of the file from the suspended attorney's office, that he
was asking for August 26, 2016, for a final status
conference, and that a bench trial was "indicated."
14 On August 26, 2016, counsel informed the trial court:
"The only issue I have-and I really don't understand
why it's happening, but it still is-this young man is in
the custody of Cook County yet and they are transferring him
out to Kankakee, and I don't understand why. A couple
dates ago he'd be housed in Kankakee and then be brought
back here and the last time they just kept him out there. It
is a gross inconvenience to try and go out there. I need to
meet with him. And my point is I haven't met with him to
go [over] everything ***."
trial court then continued the case to September 23, 2016,
stating that the court "will presume in the meantime you
will be able to meet with" defendant.
15 On September 23, 2016, counsel informed the trial court
that he had "not gone to see him yet in Kankakee"
and that he was not ready. The trial court then set the
matter for October 27, 2016, for a status conference and
November 21, 2016, for a bench trial.
16 On November 21, 2016, counsel informed the trial court
that he had received information about a new potential alibi
witness who counsel was to interview that day, and the
parties then went off the record. Back on the record, the
trial court stated that the State could begin its case and
that the State was aware that defendant might present an
alibi defense. Before accepting a jury waiver from defendant,
the trial court informed defendant that, if he was found
guilty of the most serious charge, the minimum sentence was
45 years. The trial court recalled that it had presided over
the bench trial of a codefendant but that it had "no
specific or particular recall of the evidence" and that
it "had no idea what decision" it might reach in
defendant's case. The court then accepted defendant's
jury waiver, and his bench trial began.
17 II. Trial
18 A. Opening Statements
19 During the State's opening statement, the ASA conceded
that the court "will not hear a reasonable explanation
or a good explanation as to why the defendant did what he did
that day." Instead, the ASA focused on the evidence
identifying defendant as the shooter, namely, the
victim's dying declaration and the expected testimony of
the three event witnesses. In response, counsel acknowledged
that the State's witnesses placed defendant "on the
scene at different times" but argued that, after hearing
"all the evidence, " the trial court would find
defendant not guilty.
20 B. Event Witnesses
21 Tyera Cooks, age 19 years old, testified that she was a
stay-at-home mother with two children. At the time of the
victim's death, she and the victim had been dating for 2
years. On September 20, 2013, the day of the offense, Cooks
was 16 years old and a junior in high school. At 6 p.m., she
was inside a barber shop at the corner of 71st Street and
Luella Avenue with three friends: Michelle Casey,
"Shadonna, " and "Quiel." Cooks had been
with the victim at 5 p.m. on nearby Crandon Avenue, and she
had plans to meet him again after she finished in the barber
shop. The barber shop had large windows that looked out onto
71st Street, a major thoroughfare. Train tracks for the Metra
commuter rail separated its east and westbound lanes of
traffic at the street level.
22 Cooks testified that a friend of hers observed "there
go 'Lil Ant and Bonna crossing the street." Through the
windows, Cooks observed "Bonna" and "Ant"
waiting by the train tracks, as two trains were approaching,
both heading east. On the northwest corner of 71st Street and
Crandon Avenue was a corner store, which sold soda, chips,
and lottery tickets. The corner store was across the street
from the barber shop. When she first observed Bonna and Ant,
the corner store was behind them.
23 Cooks testified that she observed Bonna and Ant unzipping
their hooded sweatshirts, or "hoodies, " and
loosening the strings around their hoods. They were there
only a few seconds before the gates descended that block
traffic from oncoming trains. Eventually, Bonna and Ant
crossed the tracks, toward the barber shop. As they headed in
Cooks's direction, they removed their hoodies and placed
them in a backpack that Bonna carried. After Bonna removed
his hoodie, Cooks observed the "hand part of a gun"
in the back of his waistband. The gun was a black,
medium-sized gun. Cooks also observed a gun in Ant's
waistband. Cooks did not recall the color of the hoodies that
Bonna and Ant wore. Both Bonna and Ant wore T-shirts under
their hoodies. Once Bonna and Ant crossed 71st Street, they
walked down Luella Avenue toward 72nd Street.
24 Cooks testified that, in the past, Bonna and Ant hung
around her house and that she had known both of them for four
years prior to the offense. In court, she identified
defendant as Bonna. At the time of the offense, she did not
know Bonna's real name; she knew that "Lil
Ant's" real name was Anthony, but she did not know
his last name. When she observed them on the day of the
offense, they were walking side by side and not running.
While she was in the barber shop, she did not hear any
gunshots. After Bonna and Ant walked around the corner,
"Sam, " who owned the corner store, came to the
front of the barber shop and told her that the victim had
been shot. Defense counsel objected to the question "did
you learn anything from Sam, " but the trial court
overruled the objection, finding that Sam's statement
that the victim had been shot was not admitted for the truth
of the matter asserted but to explain what the witness did
25 Cooks testified that her friend, Michelle Casey, went to
the corner store. Cooks did not go at first because she
"was in shock." When she did go, the paramedics
would not let anyone inside the store. The ambulance
transported the victim to John H. Stroger Jr. Hospital, and
Cooks followed. Cooks did not inform the police officers who
were at the scene or at the hospital about the guns that she
had observed. Cooks explained that she was very emotional and
26 On October 17, 2013, detectives from the Chicago Police
Department contacted her, and she viewed a lineup at a police
station. At that time, she informed the police what she had
observed, and she identified Bonna and Ant from the lineup.
27 Since defendant's first claim on appeal is that his
counsel rendered ineffective assistance in his
cross-examination of witnesses, we provide detail below about
what he elicited on cross-examination.
28 Counsel established that Cooks had last been with the
victim at 3 or 4 p.m., not 5 p.m. as she had testified on
direct examination, and that she had entered the barber shop
at 5 p.m. Cooks admitted that, from 5 to 6 p.m., she did not
hear any gunshots or a vehicle backfiring or anything out of
the ordinary. Cooks testified that her nickname was
"T." When her friend pointed out that Bonna and Ant
were standing by the train tracks, Cooks testified that she
was "wondering what they doing on this side of
town." When asked if there was anything unusual about
them waiting to cross the train tracks, Cooks replied:
"Yeah. They don't never be down there on
Crandon." As a result, Cooks was thinking, "what
they doing down here? What's their purpose to be down
29 Cooks testified that she did not remember the color of
their hoodies but that the hoodies were "most
likely" black. Cooks testified that, as she watched
them, she was looking over her shoulder. She was sitting in a
chair, with her back to Bonna and Ant, and she had to turn
her head over her shoulder in order to see them. Counsel
established that, before Cooks turned her head, she was
facing into the barber shop and could not observe what
transpired behind her. The two men were not running, and they
could have walked east or west without the train tracks
blocking their path. Counsel established that the two men
waited until the crossing gate went up before crossing the
30 Cooks also testified that, when the crossing gate was
down, which was only one or two minutes, the two men were
unzipping and untying their hoodies. That is when the gate
went up, as they were walking and taking off their hoodies at
the same time. Cooks asserted that they were the only two
people waiting at the crossing gate. When asked whether the
gun handle she observed was for a revolver or a semiautomatic
pistol, Cooks conceded "I don't know nothing about
31 Cooks further admitted that she did not observe the gun
handle as the two men waited at the crossing gate, since she
could observe only defendant's front and the gun handle
was in the rear of his waistband. When the two men crossed
the street, they were walking diagonally toward the barber
shop, which was "how the street was made." Cooks
testified: "As he's walking towards me, you know,
the street go[es] diagonal[ly], so his body is on a slant. So
I can see half front and half back." Defendant pulled
his T-shirt out of his pants to cover up the gun. Ant also
had a gun in the rear of his waistband.
32 Further, Cooks admitted that, when she first observed the
guns, she did not exclaim to her friends "looks like
he's got a gun." When she walked over to the store
after the victim had been shot, she spoke with the
paramedics, asking them where the victim was being taken. On
October 17, 2013, the police came to speak to Michelle Casey,
Cooks's friend, who was on house arrest at the time.
Cooks happened to be present, and that was when Cooks first
informed the police what she had observed. Cooks testified
that she was 5 feet, 6 inches, that defendant was shorter or
5 feet, 5 inches, and that Ant was taller or 5 feet, 9
inches. Cooks emphasized that she did not know anything about
guns, stating "I don't own a gun. I don't play
with guns, " and that she never observed either Bonna or
Ant touch their guns or draw them out.
33 Tyquyne Hatchett, age 21 years old, testified that he had
been lifelong friends with the victim and that he had known
"Bonna" and "Ant" from school for a
couple of years before the offense. On September 20, 2013, at
6 p.m., Hatchett had run into the victim at the corner of
71st Street and Crandon Avenue, and they were chatting. When
the victim entered the corner store there, Hatchett waited
for him. While waiting, Hatchett crossed the street because
he had observed "the loose square guy, " who sells
single cigarettes. While standing with the loose square guy,
Hatchett observed two men in hoodies walking along Crandon
Avenue toward 71st Street, on the opposite side of the street
from Hatchett. The two men were wearing both hoodies and
jackets, with the hoods on their heads.
34 Hatchett testified that, although across the street, the
two men were walking toward him and, as they approached, he
was able to observe their faces. When he observed their
faces, Hatchett was "about 15 footsteps" away from
them. Hatchett recognized them as "Bonna, " who
Hatchett identified in court as defendant, and "Lil
Ant." As Bonna and Ant approached, the victim was in
front of the store, with his head down, counting his money.
When the victim looked up toward Bonna and Ant, the victim
ran into the store. Bonna clutched his waist through his
hoodie's pockets and ran into the store behind the
victim. Hatchett agreed with the ASA that "Bonna had
both of his hands in his hoodie pockets." Ant also clutched
his waist, but he did not run all the way into the store. The
store had an outside and an inside door, and a small
vestibule between the two doors. Bonna was at the second
door, and Ant was behind Bonna.
35 Hatchett testified that, after observing Bonna and Ant
chase the victim, Hatchett started running and, shortly
after, he heard three gunshots coming from inside the store.
Hatchett explained that he ran because he thought there was
going to be a shooting. Hatchett ran across the train tracks
on 71st Street into a building that also houses the barber
shop. Hatchett ran to that building because he knew people
who lived there. However, he stayed there only "for a
minute" until he "heard the sirens and ambulance,
" and then he "came out to see what was going
on." After observing an ambulance and police, Hatchett
learned that the victim had been shot. However, Hatchett did
not approach the police to tell them what he had observed
because he was "talking to people, trying to see [if]
*** they [were] all right."
36 Hatchett testified that, on October 3, 2013, he was at a
police station on an unrelated matter, when he told police
what he had observed. Hatchett waited until October 3,
because he was scared and he "didn't really want to
talk to the police." Hatchett spoke to police again on
October 15, 2013, and he viewed a lineup on October 17, 2013,
from which he identified Bonna and Ant as the two men who had
chased the victim.
37 Again, we provide in detail the information elicited on
cross-examination, as that is the subject of one of
defendant's claims on appeal.
38 During cross-examination, Hatchett agreed that the day of
the offense was "a sunny, nice day." Hatchett
testified that Bonna and Ant were wearing two separate
garments: a jacket, with a hoodie underneath. Bonna was
wearing a blue jacket, while Ant's jacket "could
have been black." Both of them were wearing black
hoodies with the hoods up and tied. Hatchett agreed that was
unusual because it was warm. Hatchett himself was not wearing
a jacket or a hoodie.
39 Hatchett testified that he did not observe any bulges
protruding from their bodies and that their hands were in
their jacket pockets. Hatchett also admitted that, since he
was across the street, his view of the two men was a
"slight angle view." When the victim entered the
store the first time, the two men were not on the street.
Hatchett purchased cigarettes, and the victim was in the
store for a minute or two. After the victim exited the store,
Hatchett was looking at the victim as two men walked up. When
the victim looked up at them, they clutched their waistbands,
and the victim ran into the store, and they ran after him.
The two men did not call out or say anything to the victim.
Hatchett observed Bonna by the inner door and Ant by the
outer door, but Hatchett never observed any weapons. Hatchett
started running away and heard gunshots from ...