People v. Gavin

• Decision Date: 22 March 2021
• Docket Number: 1-18-2085
• Citation: 2021 IL App (1st) 182085,185 N.E.3d 353,452 Ill.Dec. 277
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony GAVIN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2021 IL App (1st) 182085

185 N.E.3d 353

452 Ill.Dec. 277

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

v.Anthony GAVIN, Defendant-Appellant.

No. 1-18-2085

Appellate Court of Illinois, First District, First Division.

Opinion filed March 22, 2021

Rehearing denied May 3, 2021

James E. Chadd, Douglas R. Hoff, and Christopher R. Bendik, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Veronica Calderon Malavia, and Karin V. Sullivan, Assistant State's Attorneys, of counsel), for the People.

JUSTICE HYMAN delivered the judgment of the court, with opinion.

¶ 1 After a bench trial, the court found Anthony Gavin guilty of first degree murder for the shooting death of Eugene Winters. The court allowed Gavin to represent himself for proceedings on his motion for a new trial, which the trial court denied. Counsel represented Gavin during his first sentencing hearing, and the court sentenced him to 50 years in prison. This court reversed the trial court's judgment and remanded for new posttrial proceedings, finding the trial court gave insufficient admonishments before allowing Gavin to proceed pro se. People v. Gavin , 2015 IL App (1st) 130701-U, ¶ 52, 2015 WL 5725095.

¶ 2 On remand, Gavin filed a pro se motion for a new trial (which later-appointed counsel adopted). In part, Gavin argued that trial counsel was ineffective for (i) failing to cross-examine and (ii) then failing to call in her case-in-chief a witness who would explain that he could not identify the shooter and an officer who would corroborate that testimony. After hearing from both witnesses and Gavin's trial counsel, the court denied his motion for a new trial. Gavin was sentenced to 33 years in prison.

¶ 3 Gavin now repeats his arguments about trial counsel's ineffectiveness. He also argues his 33-year sentence, when considered with consecutive sentences in unrelated cases, is an unconstitutional de facto life sentence because he was 17 at the time of the offense. Alternatively, he argues his sentence is excessive. We disagree with each of his contentions and affirm the trial court's judgment.

¶ 4 BACKGROUND

¶ 5 We set out the basic narrative of Gavin's offense in our order in his first appeal. See id. ¶¶ 4-23. We repeat in detail only the testimony relevant to our analysis.

¶ 6 Melvin Holmes testified that he lived in the 1600 block of South Third Avenue in Maywood. On September 20, 2006, around noon, he was outside having a cigarette. As soon as Holmes closed the door to go back inside, he heard gunshots. He "peeked out the front porch window" and saw somebody shooting Winters. Holmes identified the shooter as a black male. The shooter then got into the back seat of blue Mercury, and the car drove away.

¶ 7 Holmes went outside to talk to Winters and let him know the police were on the way. As Holmes talked to Winters, the blue Mercury drove back up the block. The same man who Holmes identified as the shooter got out of the car and came towards Holmes and Winters. Holmes "started slowly backing away" up the steps of his house. Winters had taken out a phone, and Holmes watched as the shooter said, "who the f***you talking to?" and shot Winters in the face. Holmes had backed all the way into his house and did not see where the shooter then went.

¶ 8 The next day, Holmes went to the police station to look at a photo lineup. After being advised about lineup procedures, Holmes identified the driver out a series of five polaroid photographs. The State did not ask him any questions about identifying Gavin, either in a lineup or in court. Maywood police officer Jeremy Pezdek later confirmed that Holmes identified the driver.

¶ 9 On cross-examination, Gavin's counsel focused primarily on his ability to see the driver, the shooter, and the weapon. She did not ask him any questions about his participation in the photo lineup or ask him whether he identified Gavin as the shooter. Counsel for Gavin's co-defendant, Harvey Bowen, elicited affirmative testimony from Holmes on cross-examination that Bowen was not the shooter.

¶ 10 At the scene during the shooting were two other witnesses, Cortez Henderson and Denzel Edwards. They each gave statements to police or prosecutors. In Edwards's statement, he said that he rode to the scene with Gavin and Bowen. After getting out of the car, Bowen started arguing with Winters. Edwards got out of the car then, and Winters told him to walk away. As Winters did so, Edwards heard one gunshot. He turned and saw Gavin and Bowen standing over Winters. Gavin and Bowen had guns in their hands, a 9-millimeter and a .32- or .22-caliber, respectively. Edwards started running and heard four or five more shots. He saw Bowen's car drive away, come back up the block, and then heard two or three more gunshots. According to Edwards's statement, all the shots sounded like they came from the same gun.

¶ 11 At trial, Edwards repeatedly testified that he did not recall providing his statement's details to Assistant State's Attorney Maureen O'Brien. In Gavin's first appeal, we noted that Edwards's inability to remember what he told O'Brien did not "directly contradict[ ]" most of his written statement. Id. ¶ 34. O'Brien also testified that Edwards gave the statement as it was written.

¶ 12 Henderson's statement does not appear to be in the record. Pezdek testified that he spoke to Henderson at the Maywood Police Department the afternoon of the shooting. According to Pezdek, Henderson told him he was in the 1400 block of South Third Avenue on September 20, 2006, when he heard five or six gunshots. He walked to the intersection of Third Avenue and Van Buren Street, where he saw Winters on the ground. Henderson saw Bowen drive past Winters and saw Gavin run up to Winters and shoot him several times. Gavin then got back into Bowen's car, which drove off. In Gavin's first appeal, we considered Henderson's identification to be substantive evidence. Id. During his testimony, however, Henderson repeatedly said he did not recall giving a statement to Pezdek.

¶ 13 Five of the six bullets in Winters's body were from a .32-caliber firearm. Samples from the left and right rear seats in Bowen's car came into contact with an item that had released gunshot residue or were in the environment of a fired gun. Officers eventually recovered a 9-millimeter handgun and found a fingerprint on it but could not make an identification. Overall, no physical evidence directly linked Gavin or Bowen to the shooting.

¶ 14 The trial court found Gavin guilty of first degree murder. The court denied Gavin's motion for a new trial after allowing him to litigate it himself and sentenced him to 50 years in prison. On direct appeal, this court reversed, finding the court gave Gavin insufficient admonishments before allowing him to represent himself. Id. ¶ 52. We remanded for new posttrial proceedings. Id.

¶ 15 New Posttrial Proceedings

¶ 16 At the hearing for a new trial, Holmes testified that someone got shot in front of his parents’ house about noon on September 20, 2006. Holmes looked out the window and saw a black man outside. The man got in a car and "took off." Holmes could not see the driver. After the car drove away, Holmes went outside and talked to the victim when the car came back. Someone got out of the car and started walking toward Holmes and the victim. Holmes got only "a glimpse" of the driver.

¶ 17 As to the shooter, Holmes denied identifying him to the Maywood police, denied seeing him at the 2011 trial, and denied seeing him in court the day of the motion hearing. Holmes could not remember being interviewed by defense counsel or defense investigators before his 2011 testimony. When asked whether defense counsel had inquired as to the presence of the shooter in court, Holmes responded: "No, not that I remember." Holmes also said defense counsel did not ask him whether Gavin was the shooter. When counsel pointed Gavin out at the motion hearing, Holmes said he was not the shooter. Holmes explained he described the shooter to police in 2006 as a "tall, slanky [sic] type of guy with dark skin," though he admitted he did not see the shooter "clearly" because "everything happened so fast."

¶ 18 Pezdek also testified at the motion hearing. Pezdek said Holmes did not identify Gavin as the shooter in showup identification conducted on September 21, 2006. Pezdek could not recall whether Gavin's counsel asked him about Holmes's non-identification at trial or interviewed him before trial. After reviewing the trial transcripts to refresh his recollection, Pezdek agreed that Gavin's counsel did not cross-examine him about Holmes at all. He also agreed that Gavin's counsel did not ask him about Holmes when he testified in the defense case-in-chief.

¶ 19 Denise Streff, Gavin's trial counsel, was the final witness. Streff identified an investigation request form asking her investigator to find and interview Holmes. Notes from Streff's file, dated July 21, 2010, and May 4, 2011, did not show one way or the other if she or the investigator interviewed Holmes. Streff recalled interviewing Holmes, however, and, in response to questions from the court, she said she might not have taken notes because Holmes "was saying what he said to the police," consistent with the police reports. Holmes had identified the shooter as an "African-American man." As to Pezdek, Streff explained she "probably" did not interview him.

¶ 20 Motion counsel also asked Streff about her cross-examination of Holmes and Pezdek. Streff agreed that she did not ask Holmes whether he saw Gavin at the scene. When asked to explain why she did not question Holmes in this way, Streff said, "There's always a chance that [Holmes] said, oh, do you know what, that is the guy I saw do it. So that would be, I think not good trial practice on my part to do that." She also agreed she never asked Pezdek whether Holmes identified Gavin as the shooter.

¶ 21 After...