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People v. Gunn

Court of Appeals of Illinois, First District, Fourth Division

September 26, 2019

OMAR GUNN, Defendant-Appellant.

          Appeal 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.


          GORDON, JUSTICE.

         ¶ 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 Corrections (IDOC).

         ¶ 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.

         ¶ 6 BACKGROUND

         ¶ 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 counsel.

         ¶ 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."

         Kougias (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 ***."

         The 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[1] 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 next.

         ¶ 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 upset.

         ¶ 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 here?"

         ¶ 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 train tracks.

         ¶ 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 guns."

         ¶ 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."[2] 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 ...

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