McCoy v. Gomez
| Decision Date | 19 April 2023 |
| Docket Number | 20 C 2708 |
| Parties | Dwayne McCoy (R-51451), McCoy, v. David Gomez, Respondent. |
| Court | U.S. District Court — Northern District of Illinois |
Petitioner Dwayne McCoy (McCoy), a prisoner at the Sheridan Correctional Center, brings this pro se habeas corpus action pursuant to 28 U.S.C. § 2254 challenging his 2005 conviction for first-degree murder from the Circuit Court of Cook County, Illinois. R 1, 12. For the reasons discussed below, the Court denies the petition on the merits and declines to issue a certificate of appealability.
Following a bench trial, McCoy was found guilty of first-degree murder in connection with the fatal shooting of Jovan Day in the early morning hours of March 2, 2000. R. 24-1 at 1 People v. McCoy, No. 1-06-3473 (Ill.App.Ct. Feb. 29 2008); see also R. 24-27 at 32-46. The evidence presented at trial is summarized as follows.
The State's key witnesses were Anthony Phillips and Thurman Wade, two eyewitnesses who were with McCoy and Day (the victim) at the time of the murder. People v. McCoy, 2019 IL App (1st) 182393-U, ¶¶ 5, 17. Phillips testified that they were driving around in McCoy's white-colored car-Phillips sat in the backseat with Wade, while Day sat in the front passenger seat next to McCoy. Id. ¶ 17.
Phillips explained that McCoy and Day drank gin out of plastic cups as McCoy drove. Id. After they finished the bottle, Day vomited on himself, and McCoy pulled over. Id.; R. 24-24 at 64-65. Day took off his jacket and tossed it onto the hood of the car while he removed his shirt. R. 24-24 at 65-66. Phillips explained that the jacket made a “thump” noise when it hit the car like it had something heavy in the pocket. Id. at 65. The noise prompted McCoy to ask Wade if the victim was “cool,” which Phillips interpreted as McCoy being “worried” about what Day was carrying (presumably, concerned about whether he had a gun). Id. at 66. According to Phillips, Wade reassured McCoy that Day was “cool.” Id.
Day returned to the front passenger seat shirtless, tossing his clothing by his feet. Id. at 65-67. McCoy continued driving while asking Day about names tattooed on his body. Id. at 67-68. McCoy commented: “I remember that person, rest in peace person, rest in peace this, rest in peace that.” Id. at 67. According to Wade's testimony, Day gave McCoy a “look like he didn't want to talk about it.” R. 24-25 at 20. McCoy then asked if anyone wanted “to smoke some more weed, marijuana.” R. 24-24 at 68. Day responded yes, and they drove to a house where McCoy got out of the car, entered the house, and returned 15 minutes later saying, “[his] guy didn't have no weed.” Id. at 68-70 (quote on 70).
The foursome continued driving around for another 30 minutes when McCoy announced he was too drunk to continue and asked Day to take over. Id. at 70-72. After they exited the vehicle, Phillips heard a “pow” and looked up to see McCoy pointing a silver automatic handgun at Day. Id. at 72-73. He observed McCoy fire four more shots. Id. at 72. After Day collapsed, McCoy attempted to shoot him again, but the gun “clicked” and did not discharge. Id. at 74-75. Phillips watched as McCoy stomped on Day's head. Id. at 75. McCoy eventually returned to the car, drove to Wade's house, disposed of Day's clothing, and dropped Phillips and Wade off. Id. at 79-81. Phillips did not report the incident to the police out of fear of retaliation, but cooperated with their investigation and identified McCoy as the murderer from a lineup in 2004. Id. at 82-83.
Wade testified consistently with Phillips, explaining that McCoy and Day drank gin in plastic cups in the front seat, while Phillips and Wade rode in the back. McCoy, 2019 IL App (1st) 182393-U, ¶ 17; R. 24-25 at 11-13. As they drank, Wade explained that McCoy and Day were toasting to their new friendship after McCoy reassured Day that he had no problem with him. R. 24-25 at 14-15. According to Wade, Day had thought McCoy had a problem with him because he always had a “mean mug” when he saw him. Id.
Like Phillips, Wade testified that after Day vomited on himself, McCoy pulled over, Day got out, took off his jacket, and tossed it on the hood of the car. McCoy, 2019 IL App (1st) 182393-U, ¶ 17; R. 24-25 at 16-17. The jacket made a noise when it landed, and McCoy asked Wade if Day had a gun. R. 24-25 at 16-17. Wade answered no. Id. at 17. Day returned to the car and rode shirtless for the remainder of the drive. Id. at 18. They stopped again when McCoy asked Day to drive because he was too drunk. Id. at 22-23. Before exiting the vehicle, McCoy turned to Wade and stated: “I am fin' to kill this nigg--.” Id. at 25-26. At the time, Wade did not realize McCoy was talking about Day. Id.
As McCoy and Day walked around the front of the car to trade places, Wade observed McCoy shoot Day with a chrome, .380 automatic handgun. Id. at 26-27. Wade explained McCoy fired two shots in rapid succession at Day's chest, causing him to fall to the ground, followed by three more shots. Id. at 27-28; McCoy, 2019 IL App (1st) 182393-U, ¶ 17. After the gun started to “click,” Wade observed McCoy stomp on Day's head. McCoy, 2019 IL App (1st) 182393-U, ¶ 17; R. 24-25 at 28-29. Once McCoy returned to the car, he drove to Wade's house, threw Day's jacket into a dumpster behind the house, and then dropped Phillips and Wade off in front. R. 2425 at 31-32. Like Phillips, Wade later identified McCoy as the shooter from a lineup. Id. at 39-40.
The State's other evidence corroborated Phillips' and Wade's testimonies. McCoy, 2019 IL App (1st) 182393-U, ¶ 18. The police found Day shirtless with a plastic cup in his hand. Id. A second plastic cup was found at the crime scene with McCoy's fingerprints on it. Id. The medical examiner testified Day was shot five times, and the abrasions around his eye area were consistent with someone stomping on his head. McCoy, 2019 IL App (1st) 182393-U, ¶ 18; R. 24-26 at 102-03. Four .38 caliber cartridge cases, all fired from the same gun, were found at the crime scene. McCoy, 2019 IL App (1st) 182393-U, ¶ 18; R. 24-25 at 165-66. Three bullets were recovered from Day's body, and a fired bullet and a fragmented bullet were recovered from the crime scene. McCoy, 2019 IL App (1st) 182393-U, ¶ 18; R. 24-25 at 97-98. The bullets were all fired from the same gun.[2] McCoy, 2019 IL App (1st) 182393-U, ¶ 18; R. 24-26 at 2-5.
On the Friday before the start of McCoy's trial, defense counsel went to the jail alone to take a statement from Wade[3] after receiving information that the witness had information contrary to what he had given the State. R. 24-1 at 2; R 24-29 at 149-54. The statement Wade provided said that he had been smoking embalming fluid on the day the victim was murdered. R. 24-29 at 151. Wade stated that in the past, embalming fluid made him hallucinate and forget things. Id. He believed it had similar effects on him on the night of the shooting and “gave [him] the image” that McCoy was the shooter. Id. He claimed, however, that McCoy could not have been the shooter because he was not in the vicinity. Id. Wade reduced his statement to writing and signed it. Id. at 151, 153.
On the morning of trial, defense counsel discussed Wade's statement with McCoy. R. 24-27 at 78. Counsel had a separate conversation with the prosecutor at which time he learned Wade had also written a letter to the State's Attorney's office regarding threats and harassment he was receiving from fellow inmates at his facility for testifying at McCoy's trial. Id. at 78-79; R. 24-29 at 39-41. Both attorneys presented the issue regarding Wade's statement and potential testimony to the trial court judge in chambers prior to the start of trial. R. 24-27 at 79. They discussed how to remedy the situation should Wade deviate from his statement, and orally agreed they could stipulate to counsel's testimony if needed. Id. at 79-80.
During defense counsel's cross-examination of Wade, the attorney tried to impeach his testimony regarding the identity of the shooter with his written statement. R. 24-1 at 3; R. 24-25 at 43. Wade admitted that he had written and signed the statement, but claimed he did so because defense counsel advised that he may avoid being called to testify if he gave a statement that asserted a different version of events. R. 24-25 at 45-62. He further claimed defense counsel told him what to write in the statement. Id.
Following Wade's testimony, defense counsel explained to McCoy that the witness had deviated from his statement and presented to McCoy two options to move forward: 1) request counsel withdraw so he can testify as a witness, or 2) consent to counsel's continued representation and offer a stipulation as to his testimony. R. 24-27 at 80-85.
Counsel further explained that the decision was McCoy's choice alone. Id. at 83. McCoy agreed to proceed by way of stipulation. Id. at 80-85. He signed the stipulation, acknowledging:
Dwayne McCoy understands that this stipulation is being entered into so that his Attorney, Lawrence Vance, would not have to withdraw from the case in order to testify to present the evidence contained in this stipulation.
In addition to McCoy signing the stipulation, the trial court addressed McCoy directly about this decision and asked him if he understood the reasoning and significance behind the stipulation. R. 24-25 at 121-22); R. 24-26 at 39-42. McCoy confirmed his understanding that the stipulation was being offered so that his counsel would not have to withdraw advised that he wanted to proceed by stipulation so that his attorney could continue to...
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