People v. Elliott

2022 IL App (1st) 192294

216 N.E.3d 1101

466 Ill.Dec. 268

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

v.Antwan ELLIOTT, Defendant-Appellant.

No. 1-19-2294

Appellate Court of Illinois, First District, Fourth Division.

Filed August 25, 2022

Rehearing Denied September 8, 2022

James E. Chadd, Douglas R. Hoff, Brian W. Carroll, and Beverly M. Jones, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Enrique Abraham, Brian K. Hodes, and Susan Wobbekind, Assistant State's Attorneys, of counsel), for the People.

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

¶ 1 Antwan Elliott was convicted of first degree murder for the March 15, 2015, shooting death of 16-year-old Giovanni Matos. The trial court sentenced Elliott to a prison term of 45 years plus a 25-year firearm enhancement, for a total of 70 years. Elliott appeals, arguing that (1) his trial counsel was ineffective for failing to investigate and present testimony from an expert on the unreliability of eyewitness identification and posttrial counsel was ineffective for failing to raise this issue and (2) his 70-year sentence is excessive. Regarding the first claim, he requests that we reverse his conviction and remand for a new trial. Alternatively, he requests that we reduce his sentence to the minimum of 45 years or vacate his sentence and remand for resentencing. Finding neither of Elliott's claims to merit the relief requested, we affirm.

¶ 2 I. BACKGROUND

¶ 3 At trial, the evidence established that Matos was shot on West Patterson Avenue in Chicago shortly before 1 p.m. on March 15, 2015, and he died as a result a few hours later.

¶ 4 Jose Figueroa testified that he was walking eastward with Matos and another friend, Henry Brito, on Patterson Avenue, a residential one-way street for westbound traffic. All three were members of the Simon City Royals (Royals) street gang. As Figueroa was speaking with his girlfriend on his cell phone, he separated and walked ahead of the other two by three house lengths. An oncoming silver Toyota Avalon automobile stopped aside Figueroa. The passenger aimed a handgun at Figueroa and asked, "Yo, what you is?" which Figueroa understood to mean his gang affiliation. Figueroa and the passenger were approximately 10 feet apart, and Figueroa could see the passenger's face. Figueroa ignored the inquiry and continued walking. The Toyota moved toward Matos and Brito. Figueroa warned them to "watch the car." The passenger put the same question regarding gang affiliation to Matos and Brito. In response, Matos began "throwing signs" indicative of the Royals. The passenger exited the Toyota and commenced firing the handgun. Figueroa, Matos, and Brito ran in different directions.

Figueroa returned to the area after the shooting stopped and the Toyota had driven away. Figueroa found Matos lying in the street, bleeding from a gunshot wound.

¶ 5 Figueroa remained at the scene and spoke with a Chicago police detective. He informed the detective that the shooter was "B-Boy," a former member of the Latin Brothers street gang who had "flipped" to the Milwaukee Kings street gang. As a Milwaukee King, he was known by the nicknames "Boosie" and "Capone." The Milwaukee Kings, according to Figueroa, were rivals of the Royals. Figueroa accompanied the detective to a police station later that day. While there, he identified Elliott, whom he knew as B-Boy and Capone, in a photo array as the shooter. Figueroa identified Elliott in court as the same person he identified in the photo array.

¶ 6 On cross-examination, Figueroa compared the distance between him and the Toyota to the distance from the witness stand to a person in the courtroom: he estimated that distance was 15 feet. Regarding the photo array he viewed, Figueroa testified he was shown each photo sequentially, not all six at once. The photo of Elliott was presented first and was labeled "No. 1." Figueroa agreed with counsel that the other individuals depicted in the array had characteristics that differed from Elliott, including one with dreadlock style hair, two with mustaches and beards, and another with a "very high forehead." Figueroa answered that he had not been friends with Elliott before the shooting and did not associate with him. He then admitted that he told an assistant state's attorney (ASA) in an interview eight days after the shooting that he had been friends with Elliott. Figueroa explained that he knew of Elliott from socializing with members of the Latin Brothers. Regarding the shooting, Figueroa testified that the shooter was standing on the sidewalk and exchanged gang banter with Matos and Brito for two minutes before he commenced firing. When asked about the scene, Figueroa testified that there were vehicles parked on the street but there was no moving vehicle behind the Toyota. Figueroa affirmed that he told investigating officers at the scene that the shooter was "B-Boy."

¶ 7 On redirect, Figueroa testified that his brother had been a member of the Latin Brothers and he observed Elliott when socializing with members of that gang.

¶ 8 Tiffany Jureczak testified that on March 15, 2015, she had been driving westbound on West Patterson Avenue with her 7-year-old son seated in the rear. A vehicle stopped in front of her and pulled to the side but still prevented her from passing on the narrow street with vehicles parked on both sides. Jureczak observed a person standing next to the stopped vehicle yelling at three "kids" on the sidewalk. Anticipating that a fight would ensue, she turned to her son and told him to look away. Jureczak looked forward again and observed that the person who had exited the vehicle was now firing a handgun. The "boys" on the sidewalk scattered. One ran into the street and fell upon being shot. Jureczak checked on her son once more. She turned back and viewed the shooter standing in the street with a firearm in his hand, looking in her direction. He was wearing a baseball cap, but Jureczak was able to see his face as they made eye contact for a few seconds. Jureczak then held her body over her son. When she next viewed the scene, the shooter and stopped vehicle were gone. Seven days after the shooting, Jureczak viewed a lineup and identified Elliott as the shooter. She also identified Elliott in a photograph during her grand jury testimony on April 3, 2015.

Jureczak identified Elliott again in court as the person she made eye contact with on March 15, 2015. At trial, she identified a photograph of the earlier lineup with Elliott positioned second from the right. Jureczak identified a photograph of the scene on West Patterson Avenue as well, pointing out the location where she had stopped her vehicle.

¶ 9 On cross-examination, Jureczak explained that she had stopped about two car lengths behind the stopped vehicle. She clarified that she did not observe the gunshots until she looked forward after telling her son to look away. Jureczak testified that she had exited her vehicle intending to ask the driver of the stopped vehicle to allow her to pass but returned inside before the shooting began.

¶ 10 Lucia Ferraro testified that she lived with her husband and their two sons on the 5800 block of West Patterson Avenue in 2015. Shortly before 1 p.m. on March 15, the family was preparing to travel to her mother's house. After securing her sons in the back seat and entering their vehicle, Ferraro observed three "kids" walking in her direction on the sidewalk. One was talking on a cell phone and walking a short distance ahead of the other two. Her husband then entered the driver's seat and exclaimed, "Get down! Someone's got a gun!" Ferraro looked forward and observed an African American male standing in the parkway, firing a handgun. One of the kids from the sidewalk ran in front of their vehicle and was struck by a bullet. Ferraro ducked below the dashboard and heard three or four shots and "thump" sounds on their vehicle. Once the shooting stopped, Ferraro looked up and observed the shooter enter a vehicle, which then sped away. According to her, he was wearing black jeans and a dark colored hooded sweatshirt with the hood pulled over his head. Frightened by the shooting, the family exited their vehicle and sought refuge inside their home. Ferraro returned to the street and found the young man who had been shot lying in the street, just feet from their vehicle. She called 911. Ferraro saw the shooter's front side, but she was unsure whether she saw his face. She explained that her attention had been focused on the silver colored handgun in his hands.

¶ 11 On cross-examination, Ferraro testified that she did not know whether there were any other vehicles, apart from parked cars, on the street since, prior to the shooting, she had been focused on getting her children into their vehicle and, after the shooting, she was focused on getting them to safety. She was also unsure whether the shooter was wearing a hat. Ferraro did not observe whether the kids walking on the sidewalk had spoken with the shooter.

¶ 12 Detective John Salemme testified that he responded to the scene on Patterson Avenue. There, he found Jose Figueroa seated inside of a squad car with Henry Brito outside. After separating the two, Figueroa told Detective Salemme the shooter was known by the nicknames "B-Boy" and "Capone" and was a former Latin Brother who was now a Milwaukee King. Using that information, Detective Salemme generated a photo array that included Elliott. Another detective, Mark Dimeo, administered the array with Figueroa at a police station.

¶ 13 On cross-examination, Detective Salemme explained that a computer program supplies other photos for an array using demographic information. Detective Salemme testified that Figueroa did not tell him that the shooter previously showed him a handgun while asking "what you is?" from the passenger seat. Nor did Figueroa relate that the shooter had a...