People v. Avdic

• Docket Number: 1-21-0848
• Decision Date: 02 June 2023
• Citation: People v. Avdic, 236 N.E.3d 84 (Ill. App. 2023)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dzevad AVDIC, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

236 N.E.3d 84

2023 IL App (1st) 210848

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Dzevad AVDIC, Defendant-Appellant.

No. 1-21-0848

Appellate Court of Illinois, First District, SIXTH DIVISION.

Filed June 2, 2023

Appeal from the Circuit Court of Cook County.No. 17 CR 4904-01, The Honorable Lauren G. Edidin Judge, presiding.

Damon M. Cheronis and Ryan J. Levitt, of Cheronis, Parente & Levitt LLC, of Chicago, for appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Enrique Abraham, Matthew Connors, and Noah Montague, Assistant

State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE ODEN JOHNSONdelivered the judgment of the court, with opinion.

¶ 1DefendantDzevad Avdic, age 19, was convicted of one count of felony murder for the death of Maxwell Gadau and one count of attempted murder under an accountability theory for the wounding of Jeanette Spitz.The shootings occurred on September 28, 2014, in Skokie, Illinois, in Spitz’s parked car.Defendant was neither the shooter nor present in Spitz’s car when the shootings occurred.Spitz, one of the victims, had hoped to sell marijuana to defendant.However, unbeknownst to her, a group of young men, including defendant, planned to steal the marijuana from her.Gadau, the murder victim, had the misfortune of accompanying Spitz to the planned sale.At trial, defendant and two of the State’s cooperating witnesses testified that they intended to simply grab the marijuana offered for sale and run.Defendant drove the vehicle that transported himself and his associates to and from the scene, and he remained inside his vehicle during the encounter.Defendant testified that the murder victim was a good friend of his from the swim team and that he did not know the shooter was armed.Antonio Hicks, who was identified as the shooter by the event witnesses at the instant trial, was tried separately and acquitted on all counts.For the murder and attempt counts, defendant was sentenced to a total of 56 years with the Illinois Department of Corrections(IDOC), which was the mandatory minimum sentence for the two counts.

¶ 2 On this appeal, defendant claims (1) that the trial court erred in denying his motion to quash his arrest and suppress the resulting evidence, (2) that the trial court’s jury instructions were erroneous, (3) that the trial court erred in its response to a jury question during jury deliberations, (4) that the cumulative effect of these errors deprived defendant of a fair trial, and (5) that the evidence was insufficient to prove him guilty beyond a reasonable doubt.Regarding the sufficiency argument, defendant argued, among other things, that the State failed to prove that defendant agreed to participate in a felony—namely, an armed robbery, as opposed to a simple theft.For the following reasons, we reverse.

¶ 3 BACKGROUND

¶ 4 The evidence at trial established that defendant pretended to be "Tyler" in text messages exchanged with Spitz."Tyler" texted that he wanted to buy "weed" from Spitz.Four men, including defendant, planned to steal the weed from Spitz, and they drove to meet her.Two of them remained in defendant’s car, while the other two exited defendant’s car and entered Spitz’s car.Defendant and Nicholas Smith were the two men who remained in defendant’s car.In Spitz’s car, Spitz and Gadau sat in the front seat, while Hicks, the subsequent shooter, sat in the back seat with Myles Hughes.Hicks shot Gadau, killing him, and shot Spitz, wounding her.Hughes grabbed the marijuana.Hicks and Hughes ran back to defendant’s car, which drove off.The four men later divvied up the marijuana.At trial, four of the six people present at the scene testified— namely: Smith, Hughes, Spitz, and defendant.The only two who did not testify were Hicks, the shooter, and, obviously Gadau, the murder victim.

¶ 5 I. Pretrial Suppression Motion

¶ 6Defendant moved pretrial to quash his arrest, based on a stipulated set of facts.We provide the stipulation below, since the sufficiency of the stipulated facts is an issue on appeal.The parties stipulated as follows:

"It is hereby agreed between the parties that at 19:15 on September 30, 2014, officers drew a weapon on Defendant Avdic outside his home at ***¹S. Honore, Chicago; handcuffed him and took him to be interviewed at the Skokie Police Department.

It is further stipulated that members of the investigation team learned the following information before defendant’s arrest:

On September 28, 2014, Jeanette Spitz and Max Gadau were shot at or around 21:37 in Spitz’ Honda Civic which was parked outside *** N. Kedvale, Skokie.

Surveillance video from *** the neighbor to the north [on] *** N. Kedvale, was obtained shortly thereafter.Additional footage was obtained at 01:30 on 9/29/14.The video shows a car pass south on Kedvale, fhen return driving north on Kedvale, parking on the east side of the street just north of the house across from the [neighbor to the north].Two individuals walk south to [Spitz’ parked car].Two other individuals walk out of the Housakos home at *** N. Kedvale.The four individuals get into Ms. Spitz’s car.Two individuals exit the rear of her car and run back north to the waiting car which leaves.The parties stipulate that Attachment A is a video that has been spliced together in chronological order with the 4 different camera angles and truly and accurately depicts these events [during] the night of September 28, 2014.

On September 29, 2014, the following events transpire:

At 01:08 Jeanette’s father signs a consent to search Jeanette’s phone.Jeanette’s mother calls a friend of Jeanette’s who provides the passcode.

At 01:15 Khammo Hermez, a friend who has been with Jeanette and Max at Constantine Housakos’ home tells the police that Jeanette was about to sell drugs to Tyler Schur, a student of Niles North.He provides Tyler’s cell phone number as ***-8918.He further stated that he knew Jeanette had been trying to sell ‘Tyler’ 2 ounces for the past few days.

At 02:21, police begin to photograph the text messages on Jeanette’s phone which show that Jeanette had been texting someone purporting to be Tyler with a Mohawk with a phone number ***-6050.Jeanette was to sell 2 ounces of cannabis for $500 to the person associated with phone number ***-6050.Police also noted that the person associated with ***-6050 called Jeanette at 21:28 and 21:38 on September 28, 2014.See last 5 pages of Attachment Group C.

At 05:06 Constantine Housakos also tells police that he knew Jeanette had been trying to sell 2 ounces of cannabis to Tyler Schur and he was with her the prior day when that deal was attempting to be set up.

At 6:00 p.m. police try to locate Tyler Schur by watching his home.Police stop him in a vehicle at 07:25 just south of Touhy on the Eden’s expressway.²

At 08:15 police attempt to extract Jeanette’s phone.The summary of the 51 text messages between Jeanette and ***-0650 between the dates of September 24, 2014 – September 28, 2014 are shown in the Attachment Group B.

At 8:15 Tyler Schur is interviewed.He claims he arrived home at 18:00 on 9/28 and stayed there all night.He later states he was with Yuji Tsukamoto that evening.That they had ridden bikes to Noodles and then Yuji’s mother came to pick him up.

At 18:15 Tyler Schur provided consent for the cell phone he had on his person which was determined to be ***-4330.*** Later that day, police take Schur’s phone to be extracted.

At 20:45 Presiding Judge Sutker-Dermer signs an order for a pen register for T-Mobile ***-6050.See attachment Group C.

At 21:38, police receive a response from T-Mobile indicating that Gladys Avdic is the subsidiary of ***-6050.Furthermore, the records show that the two calls placed at 21:28 and 21:38 on September 28, 2014[ ]from ***-6050 to Jeanette utilized the cell tower at Church and Crawford, 3 blocks from the crime scene.See attachment Group D.

Also that day, 9/29/14 police utilize CLEAR³ database and learn that ***- 6050 was associated with [defendant] who filed a police report against [another individual] for an armed robbery that occurred on 8/11/14.[Defendant] listed a home address at *** S. Honore, Chicago.

On 9/30/14, the following events transpire:

Police review the extraction from Tyler Schur’s phone and see that Tyler had been texting Samantha [at] ***-4964 to meet him at a park.She called him at 21:39 on 9/28/14.

At 15:55 Presiding Judge Sutker-Dermer signs a warrant for the T-Mobile records of ***-0650, noting the conversation between this number[,] purporting to be from Tyler Schur[,] and Jeanette.

At 16:05 Presiding Judge Sutker-Dermer signs a warrant for the T-Mobile records for the phone number that Tyler Schur had in [his] possession ***-4330 and that his stepmother provided for him to the police.

At 16:45 Presiding Judge Sutker-Dermer signs a warrant for ***-8918, the number Housakos had for Tyler Schur and the number Tyler Schur stated was his.

At 18:49 officers interviewed Samantha who confirms that she was planning to meet Tyler at 21:35⁴ to buy Xanax from him at the swings of Oakton Community College [(OCC)].She called him at 21:39 to say she was running late and he was already at OCC.When she arrived he was waiting for her.He gave her the Xanax, they spoke for 10-15 minutes, he was not acting suspicious, and he did not use his phone.She further described his bike, clothing and provided info about herself, provided her cell phone number as ***-4964.The interview was concluded at 19:25.

At 19:15⁵defendant was placed under arrest."

¶ 7 Based on the above stipulated facts, defendant moved to quash his arrest on the ground that the police lacked probable cause to arrest him at the time that they did.Defendant’s motion sought suppression of his postarrest statements, as well as any evidence obtained as the result.

¶ 8 On June 4, 2018, after listening to arguments by both sides, the trial court denied defendant’s motion, stating:

"I was fortunate to

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