2019 IL App (1st) 170542

No. 1-17-0542 

Opinion filed September 26, 2019 

 FOURTH DIVISION

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

THE PEOPLE OF THE STATE OF ) 

ILLINOIS, ) 

 ) 

Plaintiff-Appellee, ) 

 ) 

 v. ) 

 ) 

OMAR GUNN, ) 

 ) 

Defendant-Appellant. ) 

Appeal from the Circuit Court 

of Cook County. 

No. 13 CR 21956 (01) 

The Honorable 

Timothy Joseph Joyce, 

Judge, presiding. 

PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. 

Justices Lampkin and Burke concurred in the judgment and opinion. 

 OPINION

¶ 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 
No. 1-17-0542 

2 

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. 
No. 1-17-0542 

3 

¶ 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, 
No. 1-17-0542 

4 

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 
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5 

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” 
No. 1-17-0542 

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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. 
No. 1-17-0542 

7 

¶ 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 

1

“Bonna” is later identified as defendant. However, we continue to use the name “Bonna” in 

describing the event witnesses’ testimony because that is the name that all the event witnesses used 

and the name that appears in the victim’s dying declaration. To simply call him “defendant” in the 

following recitation of facts would obscure the significance of the name “Bonna,” which ties all their 

testimonies together. Announcing the verdict, the court found: “It’s not a coincidence that everybody 

identifies Bonna. It’s proof beyond a reasonable doubt that [defendant] is guilty of the murder” of the 

victim. 
No. 1-17-0542 

8 

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 
No. 1-17-0542 

9 

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 
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10 

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. 
No. 1-17-0542 

11 

¶ 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 

2

Later on cross-examination, Hatchett testified that they were wearing their jackets over their 

hoodies and their hands were in their jacket pockets not their hoodie pockets.
No. 1-17-0542 

12 

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 inside the door. At that time, the first or outer door 

was open, and Hatchett could not observe Bonna. Although the victim had been a friend most 

of Hatchett’s life, he did not say anything to the police at the scene.
No. 1-17-0542 

13 

¶ 40 Hatchett also testified that he went on his own on October 3, 2013, to speak with the 

police because he wanted justice for his friend. However, on redirect examination, Hatchett 

testified that he was at the police station on October 3 because he was a suspect in an 

unrelated case that he was never charged with. 

¶ 41 The trial resumed on November 29, 2016, with the testimony of Juliet Peyrefitte, who 

testified that she was a college graduate and a “manager in retail.” In September 2013, she 

had been employed for 6 months as a cashier at the corner store at 71st Street and Crandon 

Avenue. The store, which was “fairly small,” had a set of double doors with a small vestibule 

between them. In addition, there was a third door in the back by the cash register. Peyrefitte 

knew the victim because he came into the store every day; she knew him as “Little J.” On 

September 20, 2013, she was working from 9 or 10 a.m. to 9 p.m., and she observed the 

victim on her way to work. Sometime around 5 or 6 p.m., she observed the victim again as he 

entered the store for chips or soda. After his purchase, he exited the store. About 30 or 35 

minutes passed between when the victim exited the store after his purchase and when he 

came running back into the store. 

¶ 42 Peyrefitte testified that, when the victim ran back into the store, she initially thought 

he was “going to rob the store” but, when she asked him “what’s going on,” he replied “they 

are trying to kill me.” When Peyrefitte looked past the victim, she observed defendant about 

a foot or a foot and a half behind the victim. Peyrefitte then observed defendant “lifting up a 

gun and fir[ing] a shot.” Peyrefitte observed the gun in defendant’s hand, and she testified: “I 

can remember the spark from the gun, like flames and smoke. And the first shot went off.

And I saw [the victim] went backwards ***.” Peyrefitte testified: “Then I saw the bullet 

ricochet, well hit the back pegboard we had there. And then after that I yelled at [the victim], 
No. 1-17-0542 

14 

telling him that he’s coming in. And [the victim] turned around to push the door, that’s when 

the second shot went off.” At that point, Peyrefitte ran “around the other side of the 

enclosure.” 

¶ 43 Utilizing photographs, Peyrefitte testified about the store’s interior and identified a 

door marked “Exit” that led to the outside and an interior door that led to a back area for the 

cashier. Peyrefitte was in the center of the cashier area. 

¶ 44 Peyrefitte testified that, after the second shot was fired, the victim “started yelling out 

at me. He started yelling out Bonnershot me. He said call the police, call the ambulance; I’m 

hit, I’m hit. Bonner shot me.” The victim started walking over to her, but then he collapsed.

Peyrefitte called the police and laid the victim out, trying to stop the bleeding. 

¶ 45 Peyrefitte testified that, after the victim was shot, defendant “casually” walked out of 

the store. Explaining what she meant by casually, she testified: “[H]e didn’t run out like there 

was a problem or something. He just walked out like he just bought something and walked 

out.” After the victim collapsed on the floor, he “repeated the same thing again that Bonner 

shot me, Bonner shot me. And then he started saying mom, I love you. I’m sorry, mom.

Mom, I love you.” 

¶ 46 Defense counsel objected to the victim’s statements as hearsay. However, the State 

observed that the trial court had previously granted the State’s motion to admit the victim’s 

dying declarations. The trial court then noted that counsel had not been involved in the case 

at that time. Ruling on counsel’s objection, the trial court found that “the circumstances just 

here establish a dying declaration and an excited utterance simultaneously,” so the trial court 

overruled counsel’s objection. 
No. 1-17-0542 

15 

¶ 47 Peyrefitte testified that, when defendant ran into the store, he was wearing a white 

shirt, a blue hoodie, and jeans. Although the hoodie was tied “real tight on his face,” 

Peyrefitte was able to observe his whole face. When the police arrived, Peyrefitte was still in 

the store, but she did not speak to the police because: “I was in shock. I didn’t want to say 

anything. I was scared. I couldn’t say anything.” Peyrefitte did not return to work at the store, 

and on October 18, 2013, she went to the store to inform them that she would not be 

returning. While at the store on October 18, 2013, she encountered Detective O’Brien, who 

was outside. She told him she was ready to talk about what happened, and she went with him 

to the police station where she identified defendant as the shooter. 

¶ 48 Peyrefitte informed the police that there was video surveillance in the store and that, 

as far as she knew, it was in working order the entire time that she worked there. Peyrefitte 

testified that she had previously viewed the video, marked as People’s exhibit 23, and that 

the video truly and accurately depicted what happened on September 20, 2013. The video 

was then admitted into evidence without objection, and it was published to the court. 

¶ 49 The video contains three clips. The first clip depicts the victim running into the store, 

chased by another person. However, it is impossible to discern the pursuer’s face from the 

video. The video shows a flash of bright blue when the pursuer appears in the store. The 

second clip depicts Peyrefitte hiding under a counter and then emerging and making a call on 

her cell phone and the victim approaching her and then collapsing. The third clip shows 

Peyrefitte next to the victim after he collapsed. Although the tape does not include audio, 

Peyrefitte testified that, during the time period depicted in these clips, the victim was telling 

her that Bonna shot him and that he loved his mom. 
No. 1-17-0542 

16 

¶ 50 On cross-examination, Peyrefitte testified as follows: Although she was inside a 

secured area during the offense, the door to the secured area was open and was “never 

locked.” When asked if the area had bulletproof glass, she replied: “Supposedly.” Sam, 

another cashier, was also in the store, but he was “doing like juices in the back.” Initially, 

when the victim ran into the store, Peyrefitte thought he was trying to rob the place.

However, when she did not observe anything in his hands, she asked him what was going on, 

and he responded “they are trying to kill me.” After the victim ran into the store, he entered

the secure area behind the bulletproof glass, and that is where he told her they were trying to 

kill him. The shooter was a foot behind him and two feet away from Peyrefitte. 

¶ 51 Peyrefitte testified that the video depicted the shooter pointing a gun and firing. After 

two shots, Peyrefitte ran and hid under the counter. Almost immediately after the victim 

finished his statement that they were trying to kill him, she heard a gunshot. Peyrefitte 

noticed the shooter as he was running and had his gun drawn. She was focused on the shooter 

rather than the gun, but she did observe that he had a gun. Peyrefitte could not describe the 

gun; all she could recall was “the smoke from the gun” and that the gun was in the shooter’s 

right hand. 

¶ 52 Peyrefitte also admitted that she could not observe any of the shooter’s hair and, thus, 

did not know whether he was bald or had a shaved head or braids. Peyrefitte admitted that 

she had never observed the shooter before in the store and that she had no idea if there was 

another person present as well. 

¶ 53 When asked whether there was anything unique about the shooter’s face, Peyrefitte 

testified as follows: 
No. 1-17-0542 

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 “It’s hard to explain to you. It’s so traumatic to me that I have seen his face so 

many times. I mean, there’s no saying—I don’t know how to explain it. It couldn’t 

possibly be somebody else because I have seen his face, it only haunts my dreams as 

well. I have been on medication because of seeing that person’s face and what he 

did.” 

We provide the full quote above because defendant argues it on appeal as an example of 

counsel’s ineffectiveness.

¶ 54 Counsel then clarified what he was trying to ask, and Peyrefitte admitted that she 

could not tell whether the shooter was wearing an earring or any jewelry and that she did not 

observe any scars on his face or his eye color or whether he had any braces or gold or silver 

teeth. The shooter was wearing a “Cubs blue” hoodie and a white shirt underneath, which 

was sticking out from his jeans. When asked if there were other people in the store, Peyrefitte 

testified that she was “oblivious to everybody else in the store.” Although Peyrefitte called 

911, she did not speak to the police when they arrived because the incident “could be gang 

related, retaliation” and she “lived in that neighborhood.” She claimed that a coworker was 

there when the police arrived and that she (Peyrefitte) told the police “[n]othing.” 

¶ 55 When asked if she knew most of the customers, she replied that she “pretty much 

knew all the faces in the area.” However, that was the first time that she observed the shooter. 

¶ 56 Peyrefitte claimed, at first, that it was only “a couple days later” when she spoke to 

the police. However, under cross-examination, she admitted that it was a month. Peyrefitte 

then testified that, for a month, she kept her children home from school, that she did not 

speak to anyone, and that they “basically just stayed inside.” Her children were 21, 17, and 7
No. 1-17-0542 

18 

years old, and she kept them out of school for a month. However, she then testified that she 

did leave to visit doctors, whom she told what happened. 

¶ 57 Peyrefitte testified concerning the lineup on October 18 that the shooter’s “face had 

made such an imprint in [her] life that as soon as [she] saw it again [she] was able to ID it.” 

Peyrefitte agreed that the store video does not depict the shooter’s face because his back was 

to the camera. On the day of the offense, after the police officers arrived, she left the store 

without telling them where she was going. 

¶ 58 Finally, Peyrefitte testified that she was two feet away from the shooter, she had good 

vision, and the store was well lit, but she did not observe any scars on the shooter’s face or 

bumps on his forehead. Peyrefitte agreed with counsel that “there’s nothing unique or 

identifiable of this young man,” except that “for the few moments that [she] had to look at 

this young man” she had “nightmares” about it. Peyrefitte admitted that she “wasn’t looking 

at maybe pimples or bumps on his face,” but rather she identified him based on “just the 

outline, just his features.” She also admitted that there was never an angle on the video that 

revealed the shooter’s face.

¶ 59 C. Police Witnesses and Stipulations 

¶ 60 Officer David Ryan testified that he was a forensic investigator in a mobile crime lab 

and that, on September 20, 2013, at 8:45 p.m., he arrived to process the crime scene in this 

case. He found one fired bullet lodged in a wooden pegboard inside the store but did not 

locate any firearms or fired cartridge cases. Ryan processed the scene for both blood samples 

and latent fingerprints, collecting blood samples from different locations inside and 

immediately outside the store and collecting four latent prints from the store’s doors. On 

cross-examination, Ryan testified that none of the prints or blood “ultimately came back to” 
No. 1-17-0542 

19 

defendant. The prints and blood that Ryan recovered were sent to another crime lab for 

testing and analysis. However, to his knowledge, none of this evidence was linked to 

defendant. 

¶ 61 Detective James O’Brien testified that, on September 20, 2013, after arriving at the 

crime scene, he directed an evidence technician to recover the video footage from the store’s 

video camera. On October 5, 2013, he met with Tyquyne Hatchett, who stated that he 

observed Bonna and Ant chasing the victim into the store. Although Hatchett had attended 

grammar school with Bonna, Ant, and the victim, Hatchett knew only Bonna and Ant’s first 

names, which were Omar and Anthony, respectively. O’Brien then showed Hatchett 

photographs of defendant and Anthony Wells, which Hatchett confirmed were photographs 

of Bonna and Ant. O’Brien then issued an investigative alert for both defendant and Wells. 

Pursuant to this alert, defendant was arrested on October 16, 2013, and Wells was arrested on 

October 17, 2013. 

¶ 62 O’Brien testified that, after speaking with the victim’s family, O’Brien also learned 

that Tyera Cooks was a witness. After police located her, she agreed to come to the police 

station to view a lineup. On October 17, 2013, both Hatchett and Cooks viewed the same

lineup but at separate times. Hatchett identified defendant as the person who Hatchett 

observed chasing the victim into the store with a gun and Wells as the person who was with 

defendant. Cooks identified defendant and Wells as the persons whom she observed crossing 

the street with guns in their waistbands. 

¶ 63 O’Brien testified that, on October 18, he met with another witness, Juliet Peyrefitte, at 

the store and she returned with him to the police station to view another lineup, where she 

identified defendant as the shooter. 
No. 1-17-0542 

20 

¶ 64 On cross-examination, O’Brien testified that he first met with Peyrefitte, the cashier, 

on September 20, 2013, immediately after the offense. However, he needed to review his 

report to refresh his recollection of the interview. After reviewing the report, he testified that 

she described the shooter only as “a male black in his teens” wearing “a blue hoodie.” 

O’Brien agreed that Peyrefitte did not describe “any unique characteristics or markings, scars 

or tattoos.” He did not recall her stating that the hoodie was tied tightly around the shooter’s 

face. Peyrefitte stated specifically that the shooter “shoved the door open with his left hand.” 

On the night of the shooting, Peyrefitte did not provide the name “Bonna” for the shooter; 

rather that name was first provided to the police in an anonymous 911 call. 

¶ 65 O’Brien testified further that, on October 18, 2013, he went to the store looking for 

Peyrefitte. When O’Brien was asked why Peyrefitte had not come forward for a month, 

O’Brien responded that she was “scared to death” and “had a panic attack [w]hen we were 

talking to her.” O’Brien also admitted that the first contact that he had with Hatchett, another 

witness, was not until October 15, 2013. 

¶ 66 When counsel asked O’Brien if he recalled whether defendant had any marks, scars, 

or tattoos when O’Brien processed his arrest, O’Brien replied that he had not prepared the 

arrest report. When counsel directed his attention to a scar on the bridge of defendant’s nose, 

O’Brien responded that he “could have gotten that scar since then.” O’Brien could not 

“specifically recall” whether defendant “had it then.” O’Brien also admitted that he could not 

discern from the video if defendant was the shooter. 

¶ 67 In response to a question from the trial court, the State stipulated that, when Peyrefitte

spoke to the police on the day of the offense, she did not inform them that the victim had told 

her that Bonna had shot him. The parties also stipulated that, if called to testify, (1) Eric 
No. 1-17-0542 

21 

Eason, an assistant medical examiner, would testify that the victim died of multiple gunshot 

wounds; (2) Diana Pratt, a ballistics examiner with the Illinois State Police, would testify that 

the bullet that Officer Ryan recovered from the wall of the store and the bullet that the 

medical examiner recovered from the victim’s body were fired from the same firearm; and 

(3) Michael Cox, a fingerprint examiner with the Illinois State Police, would testify that he 

examined four latent prints lifted from the crime scene, that one was not suitable for 

comparison, that he received fingerprint cards for defendant, codefendant Anthony Wells, 

and cashier Juliet Peyrefitte, that two of the three suitable prints were made by Peyrefitte, and 

that a comparison of the cards with the remaining print did not lead to an identification. 

¶ 68 D. Closing Arguments and Verdict 

¶ 69 The State then rested, and the defense moved for a directed finding, which was 

denied. The defense then rested, and the parties proceeded to closing argument. During the 

State’s closing argument, the State emphasized the testimony of the three event witnesses, as 

well as the victim’s dying declaration identifying defendant as the shooter. During the 

defense’s closing, counsel argued that Cooks and Hatchett had no credibility by emphasizing 

the sticking points in their testimony—that Cooks conveniently looked out the window at just 

the moment that defendant was crossing the street and glimpsed the butt of a gun in his 

waistband but said nothing to the police on the scene, although she was the victim’s 

girlfriend, and that Hatchett observed two people chasing his friend and then immediately 

heard gunshots, but also provided no information to the police on the scene. Counsel noted 

that defendant and his friend were not running when Cooks observed them but were actually 

waiting for the train gates to lift, although they could have easily moved in another direction. 

As for Peyrefitte, the cashier, counsel argued that “she picked out the wrong guy,” in light of 
No. 1-17-0542 

22 

the fact that she had never observed the shooter before that day, that the hoodie was drawn 

tightly around the shooter’s face, that she could not identify a single distinguishing 

characteristic about him, and that she had only a few seconds to view him. In addition, the 

other two event witnesses testified about two offenders; however, Peyrefitte mentioned only 

one, creating an inconsistency between her testimony and their testimony. Counsel argued 

that, if Peyrefitte was in an “altered state where she’s so scared” and “an emotional wreck” 

then her identification should not be believed. Counsel also observed that neither the lifted 

fingerprints nor the video identified defendant as the shooter. 

¶ 70 Prior to announcing its verdict, the trial court observed that the attorneys, who had 

appeared before the judge on other matters, had conducted themselves “in an exemplary 

manner,” that they all did “an excellent job,” that they made clear that they were “wellversed in the factual and legal underpinnings” of the case, and that their representation was 

“consistent with the high degree of professionalism I have come to expect from all these 

attorneys.” 

¶ 71 The trial court reviewed the testimony of the three event witnesses and then stated 

that “the question then becomes is *** their failure to describe what it was they saw at the 

time that they had an opportunity to first speak to the police” enough to “raise[ ] a doubt 

concerning [defendant’s] guilt for the charge of first degree murder.” 

¶ 72 The trial court observed that Cooks and Hatchett had known defendant for years, 

making the lineups not as crucial. However, Peyrefitte’s selection of defendant at a lineup 

was significant. 

¶ 73 With respect to the argument that the witnesses’ initial failure to speak out created a 

reasonable doubt, the trial court found: “The problem with that argument, excellently put 
No. 1-17-0542 

23 

forth by [counsel], is that I believe their testimony. I believe their testimony without 

qualification. I believe that they were genuinely scared on September 20 when they observed 

the events that they did; that they were scared when they spoke to the police; that, frankly, 

they were scared when they came into this courtroom. But despite their fears, in particular 

Ms. Peyrefitte, *** she evinces no hesitation back in October or today of identifying 

[defendant] as the person who shot and killed [the victim].” 

¶ 74 The court also observed that, in October 2013, when Peyrefitte mentioned Bonna as 

the person identified by the victim as the shooter, Peyrefitte had no connection either to 

Cooks or Hatchett and had “no idea who" Bonna was. By mentioning Bonna to Detective 

O’Brien, “she is, in fact, confirming everything he knows about the identity” of the shooter, 

and “at the time she says that to him *** she had no opportunity to have been fed that.” The 

court found that this was “additional evidence that confirms her testimony.” 

¶ 75 In sum, the court found: “It’s not a coincidence that everybody identifies Bonna. It’s 

proof beyond a reasonable doubt that [defendant] is guilty of the murder” of the victim. 

¶ 76 III. Sentencing 

¶ 77 On February 7, 2017, the trial court denied defendant’s posttrial motion for a new 

trial and proceeded to sentencing. At the sentencing hearing, the State called three police 

witnesses to testify to previous instances of criminal misconduct by defendant. First, Officer 

John Fazy testified that, on August 17, 2010, he responded to a complaint of robbery. The 

complainant was Andre Kirkwood, who identified defendant in a show-up identification as 

one of the robbers. Kirkwood informed the officer that “he had been beaten, he was hit by 

bicycles, and had his property taken from his person by a group” of five offenders that 

included defendant. 
No. 1-17-0542 

24 

¶ 78 Second, Officer Paul Carridre testified that on May 8, 2012, at 2:15 p.m., he 

responded to a report of shots fired. When he arrived at the location, he observed a group of 

approximately five males that included defendant. Defendant separated from the group, 

walked down a gangway between two houses, and then returned and continued walking with 

the group. Officer Carridre investigated the area that defendant had walked to and recovered 

a loaded .380 handgun, which was hidden in a black sock under some hosta plants between 

the houses. The gun contained eight live rounds. When the officer confronted defendant with 

this discovery, defendant admitted that he had placed the gun there and stated: “I stole it from 

my brother. I have it because the MCs have been shooting at us.” Officer Carridre explained 

that the abbreviation “MCs” stood for “Mickey Cobras street gang.” 

¶ 79 Third, Officer Robert Douglas testified that, on July 20, 2011, at 3:30 p.m., he 

interviewed Deon Usher, who stated that defendant “and a few other guys” were “threatening 

him and his family because they were testifying against one of his friends.” The interview 

occurred at Usher’s residence, and Usher identified defendant, who was walking down the 

block in a group of approximately five individuals. After the three officers testified, members 

of the victim’s family read their victim impact statements to the court. 

¶ 80 The State then observed that the firearm enhancement for personally discharging a 

firearm was discretionary and that, without it, the sentencing range was 20 to 60 years.

Discussing factors in aggravation, the State noted that in 2012, the year before this offense, 

defendant had been adjudicated delinquent for unlawful use of a weapon and placed on 18 

months of juvenile probation. Officer Carridre had just testified about the facts underlying 

the adjudication. It was while on probation for possessing a loaded firearm that defendant 

shot and killed the victim in the present offense. The State remarked that, while the trial court 
No. 1-17-0542 

25 

must be thinking of recent case law concerning juvenile sentences, this defendant, although 

17 years old, was not convicted under a theory of accountability but rather was the one who 

“personally took” the victim’s life. The prosecutor then stated that the State was “not taking a 

position with respect to any particular sentence.” 

¶ 81 In mitigation, counsel argued that defendant had strong family support, that he was on 

the honor roll while in school, and that he worked various jobs including as a window 

washer, in construction, and in the school kitchen. Counsel asked for imposition of the 

minimum sentence. Defendant then addressed the court to say that he was “truly innocent” 

but sorry for the victim’s family.

¶ 82 The trial court then stated that it was “familiar with the factors in aggravation and 

mitigation in the Unified Code of Corrections under Sections 5-5-3.1 and 3.2.” The court 

observed that, if it applied the firearm enhancement of 25 years to natural life, then the 

minimum sentence would be 45 years, and the maximum would be 85 years or natural life.

The court noted that this enhancement was now discretionary due to recent legislative 

changes in response to cases finding “that a mandatory minimum sentence of natural life or 

what can be called de facto life *** is contrary to the constitution of the United States and the 

[S]tate of Illinois.” 

¶ 83 The trial court stated that this case was “confounding,” where defendant had 

“excellent family support, loving mother and a father, was in school in the twelfth grade on 

the honor roll at the time of the offense, no seeming drug abuse, had a monthly income, 

notwithstanding that I’m sure he was supported by his employed parents, did not 

irresponsibly father any children during his teens, resided in the same home for a long time.” 
No. 1-17-0542 

26 

¶ 84 However, the trial court found that, “despite all of these advantages, [defendant] went 

out and committed an offense that can only be described as horribly brazen. *** [H]e armed 

himself not only with a confederate, but also with a gun, put on hoodies on what was 

probably a nice day *** [and] [a]bsolutely assuredly sought out this particular person to 

shoot and kill.” Relating the details of the offense, the trial court repeatedly stated how 

“brazen” it was. For example, the court found that “[t]he brazen nature of this crime is further 

shown by how” defendant and codefendant “calmly” walked back across the street. The trial 

court found that these circumstances “militate in favor of a substantial sentence appreciably 

above the minimum of 20 years.” 

¶ 85 After discussing the offense, the trial court observed: “At the same time, there are 

other circumstances—he’s a 17-year-old young man at the time of this offense. Some people 

would call him a boy.” But he was “also an experienced criminal by that time.” 

¶ 86 In consideration of all the factors in aggravation and mitigation, the trial court 

exercised its discretion not to impose the firearm enhancement and sentenced defendant to 40 

years with IDOC, plus 3 years of mandatory supervised release. Counsel then filed a motion 

to reconsider sentence, which the trial court denied. A timely notice of appeal was filed on 

February 7, 2017, and this appeal followed. 

¶ 87 ANALYSIS

¶ 88 Defendant claims, first, that his trial counsel’s ineffectiveness entitles him to a new 

trial and, second, that the 40-year sentence he received as a minor is unconstitutional. 
No. 1-17-0542 

27 

¶ 89 I. Trial Counsel’s Alleged Ineffectiveness

¶ 90 A. Standard of Review 

¶ 91 Both the United States and Illinois Constitutions guarantee criminal defendants the 

right to the effective assistance of counsel. People v. Hale, 2013 IL 113140, ¶ 15. In general, 

the standard of review for determining whether an individual’s sixth amendment right to 

effective assistance has been violated is de novo. Hale, 2013 IL 113140, ¶ 15. A de novo

review means that a reviewing court performs the same analysis that a trial court would 

perform. People v. Stephens, 2017 IL App (1st) 151631, ¶ 48. 

¶ 92 B. Strickland Test

¶ 93 In determining whether a defendant was denied effective assistance of counsel, we 

apply the familiar two-prong test established in Strickland v. Washington, 466 U.S. 668, 687 

(1984), and adopted by the Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504 

(1984). People v. Cherry, 2016 IL 118728, ¶ 24. To prevail on a claim of ineffective 

assistance, a defendant must show both (1) that counsel’s performance was deficient and

(2) that this deficient performance prejudiced defendant. People v. Domagala, 2013 IL 

113688, ¶ 36 (citing Strickland, 466 U.S. at 687). 

¶ 94 To establish the first prong, a defendant must show “that counsel’s performance was 

objectively unreasonable under prevailing professional norms.” Domagala, 2013 IL 113688, 

¶ 36. In order to establish deficient performance, the defendant must overcome the strong 

presumption that the challenged action may have been the product of sound trial strategy. 

People v. Manning, 241 Ill. 2d 319, 327 (2011). Matters of trial strategy are generally 

immune from claims of ineffective assistance of counsel. Manning, 241 Ill. 2d at 327. 
No. 1-17-0542 

28 

¶ 95 To determine whether counsel’s performance was deficient, a reviewing court 

considers the entire record. People v. Burnett, 2019 IL App (1st) 163018, ¶ 9. Our 

“determination must be made on the basis of the entire record, not isolated instances.” People 

v. Hommerson, 399 Ill. App. 3d 405, 415 (2010); see also People v. Flores, 128 Ill. 2d 66, 

107 (1989) (“counsel’s performance must be evaluated [based on] the entire record, and not 

upon isolated instances of alleged incompetence called into question by the defendant”). In 

addition, “effective assistance of counsel refers to competent, not perfect, representation.” 

People v. Palmer, 162 Ill. 2d 465, 476 (1994); People v. Stewart, 104 Ill. 2d 463, 491-92 

(1984). Since a defendant is “entitled to reasonable, not perfect, representation,” “mistakes in 

strategy or in judgment do not, of themselves, render the representation incompetent.” People 

v. Fuller, 205 Ill. 2d 308, 331 (2002). A defendant must overcome “the strong presumption 

that counsel’s performance fell within a wide range of reasonable professional assistance.” 

Palmer, 162 Ill. 2d at 476. 

¶ 96 To establish the second prong, that deficient performance prejudiced the defendant, 

the defendant must show that there is a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different. Domagala, 

2013 IL 113688, ¶ 36 (citing Strickland, 466 U.S. at 694). “[A] reasonable probability that 

the result would have been different is a probability sufficient to undermine confidence in the 

outcome—or put another way, that counsel’s deficient performance rendered the result of the 

trial unreliable or fundamentally unfair.” People v. Evans, 209 Ill. 2d 194, 220 (2004); 

People v. Colon, 225 Ill. 2d 125, 135 (2007). When the evidence at trial is “overwhelming,” a 

reviewing court will not be “persuaded that it is reasonably probable that a jury would have 

acquitted [the] defendant even in the absence” of counsel’s alleged errors. People v.
No. 1-17-0542 

29 

Patterson, 2014 IL 115102, ¶ 87. If the evidence of defendant’s guilt is overwhelming, “[t]he 

reasonably probable impact of counsel’s alleged error is not sufficient to undermine our 

confidence in the outcome of the trial” and, thus, not sufficient to establish the prejudice 

prong of the Strickland test. Patterson, 2014 IL 115102, ¶ 87. 

¶ 97 Since a defendant must satisfy both prongs of the Strickland test, the failure to 

establish either prong bars the claim. Cherry, 2016 IL 118728, ¶ 24; People v. Flores, 153 Ill. 

2d 264, 283 (1992). 

¶ 98 C. Reasonable Performance

¶ 99 Our review of the entire record establishes that counsel’s assistance was far from 

deficient. Although we review counsel’s assistance de novo, we observe that the trial court 

made the same finding when it spontaneously observed at the end of trial that all the

attorneys did “an excellent job,” that they were “well-versed in the factual and legal 

underpinnings” of the case, and that their representation was “consistent with the high degree 

of professionalism” that the trial court had “come to expect from all these attorneys.” 

¶ 100 Our review begins with the pretrial proceedings, where the record shows that counsel 

obtained a duplicated file from the State and a portion of the file from prior counsel, that he 

did not want to proceed with trial until he had an opportunity to meet personally with 

defendant and review all the reports in this case, and that he was actively investigating a 

potential alibi witness. 

¶ 101 During trial, counsel extensively cross-examined all of the State’s witnesses. During 

the cross of Tyera Cooks, the victim’s girlfriend, counsel established, first, that the times that 

Cooks had testified to on direct examination were not accurate, thereby impugning her 

overall memory. On direct examination, Cooks testified that she had been with the victim at 
No. 1-17-0542 

30 

5 p.m., whereas on cross-examination she testified that she had been with the victim at 3 or 4 

p.m. 

¶ 102 On cross-examination, Cooks admitted that she did not hear any gunshots or anything 

out of the ordinary between 5 and 6 p.m. Cooks testified that defendant’s hoodie was “most 

likely” black, when the video established that the shooter wore blue. Cooks admitted that she 

was sitting in a chair with her back to the window and, thus, had to twist her head around and 

look over her shoulder to observe defendant and Ant. Thus, counsel established that her 

vantage point was literally twisted and askew. Counsel established through his crossexamination of Cooks that the two men were not running, as one would expect immediately 

after a murder, but were actually standing and waiting for the crossing gate to rise and, then 

they walked, not ran. Cooks admitted that the two men could have walked east or west 

without waiting for the gate to rise or the trains to go by. Thus, if they were actually 

murderers trying to make their escape immediately after a crime, there were other directions 

in which they could have gone. 

¶ 103 Defense counsel was also able to obtain repeated assertions from Cooks that she 

knew nothing about guns. Cooks admitted that she could not observe the gun handle as the 

two men stood waiting at the crossing gate because the gun was in the back of his waistband. 

Cooks conceded that she was able to glimpse the gun handle only on a diagonal view, as the 

two men were walking on a diagonal line toward her and only in the seconds before 

defendant allegedly pulled his T-shirt out of his pants to cover the gun. Thus, counsel 

established that Cooks had a brief, diagonal view as she peered, half-twisted, over her 

shoulder. Cooks admitted that, with respect to defendant, she could observe only “half” of his 

“front” and “half” of his “back.” 
No. 1-17-0542 

31 

¶ 104 Cooks further admitted that, when she first observed the guns, she did not exclaim to 

her friends about the guns. Thus, counsel established that Cooks made no immediate outcry.

In addition, although the police were on the scene and Cooks spoke to paramedics, she never 

revealed what she had observed. Coincidentally, she happened to be present on October 17, 

2013, when police visited the house of her friend, and that was when she first informed 

police about what she had observed. Counsel established that Cooks never tried to contact the 

police to provide any information about her diagonal, over-the-shoulder, gun-handle 

observations. 

¶ 105 Counsel’s cross-examination of Cooks also suggested a motive for her to lie, namely, 

her resentment that defendant and codefendant were in her neighborhood, which is a place 

she clearly thought they had no right to be. Cooks testified repeatedly that she “wonder[ed] 

what they doing [sic] on [her] side of town.” 

¶ 106 During the cross-examination of Hatchett, counsel emphasized that Hatchett’s 

testimony contradicted Cooks’s testimony about what Bonna and Ant were wearing. Hatchett 

testified that the two men were wearing both jackets and hoodies, with the jackets over their 

hoodies and their hands in their jacket pockets. By contrast, Cooks had testified that the two 

men were wearing just hoodies, which they were able to quickly remove while walking. 

Cooks’s testimony made no mention of jackets, and if Bonna and Ant were wearing both 

hoodies and jackets, as Hatchett testified on cross, they would not have been able to disrobe 

as quickly as Cooks had alleged.

¶ 107 Counsel elicited from Hatchett that both Bonna and Ant were wearing black hoodies.

In contrast, Peyrefitte testified that, when defendant ran into the store, he was wearing a 
No. 1-17-0542 

32 

white shirt, a blue hoodie, and jeans. Thus, Hatchett’s testimony contradicted Peyrefitte’s 

concerning the color of defendant’s hoodie. 

¶ 108 Counsel’s cross-examination established that not one eyewitness agreed with the 

other about exactly what defendant was wearing. Hatchett testified that Bonna and Ant were 

wearing both jackets and hoodies when they ran into the store, but both Peyrefitte and

Cooks’s testimony contradicted this claim. Hackett testified that defendant’s hoodie was 

black, and Cooks similarly testified that it was “most likely black,” but Peyrefitte testified it 

was “Cubs blue,” which is the bright blue of a local baseball team. 

¶ 109 One could argue that the blue jacket recalled by Hatchett was the blue hoodie recalled 

by Peyrefitte, except for the fact that Peyrefitte testified that the hood of the hoodie, or the 

essence of a hoodie—i.e., what makes it a hoodie—was tied tightly around defendant’s face, 

and it was blue, while Hackett testified that the same part of the hoodie, namely, the hood, 

that he observed emerging from the jacket was black. A black hood cannot be reconciled 

with a bright, Cubs-blue hood. Thus, counsel did an effective job of drawing out these facts 

on Hatchett’s cross-examination. 

¶ 110 Counsel was also able to establish that Hatchett’s view of the two men, like Cooks’s 

view, was at an angle and across the street. Unlike Cooks, Hatchett never observed any 

weapons or even bulges protruding from their bodies. Although the victim had been a friend 

of Hatchett’s for most of Hatchett’s life, Hatchett admitted that he chose not to say anything 

to the police on the scene. Also, Hatchett claimed that he went to the police on his own on 

October 3, 2013, to speak with the police because he wanted justice for his friend. However, 

counsel’s cross-examination forced the State to clarify on redirect examination that Hatchett 
No. 1-17-0542 

33 

was at the police station on October 3 because he was a suspect in an unrelated case and that 

he was never charged in that case. 

¶ 111 During Peyrefitte’s testimony, counsel objected to the State’s use of the victim’s 

statements of identification. However, through no fault of counsel, the trial court overruled 

his objection and admitted the statements as both dying declarations and excited utterances. 

¶ 112 During cross-examination, Peyrefitte admitted that she could not observe any of the 

shooter’s hair because the hoodie was drawn tightly around his face and, thus, she did not 

know whether the shooter was bald or had a shaved head or braids. Peyrefitte admitted that 

she had never observed the shooter before in the store and that she had no idea if there was 

another person present as well. Her inability to recall another person was in stark contrast to 

the testimony of the two other eyewitnesses who testified about a pair of men, acting as a 

pair. 

¶ 113 Peyrefitte admitted that she could not tell whether the shooter was wearing an earring 

or any jewelry and that she did not observe any scars on his face or his eye color or whether 

he had any braces or gold or silver teeth and that she identified him based on “just the 

outline.” The fact that Peyrefitte did not observe any scars is significant because later in the 

trial, during cross-examination, O’Brien acknowledged the presence of a scar on the bridge 

of defendant’s nose. 

¶ 114 Counsel established during the cross-examination of Officer Ryan, the forensics 

investigator, that none of the prints or blood that he collected from the crime scene

“ultimately came back to” defendant. 

¶ 115 On cross-examination, O’Brien admitted that, on September 20, 2013, when he met 

with Peyrefitte, the cashier, immediately after the offense, she described the shooter only as 
No. 1-17-0542 

34 

“a male black in his teens” wearing “a blue hoodie”—a description that could match 

hundreds of people, if not more. O’Brien admitted that Peyrefitte did not provide “any unique 

characteristics or markings, scars or tattoos,” and he did not recall her stating that the hoodie 

was tied tightly around the shooter’s face, as she had testified to at trial. In addition, 

Peyrefitte informed him that the shooter “shoved the door open with his left hand,” which 

was significant because none of the recovered prints belonged to defendant. In addition, 

O’Brien confirmed that Peyrefitte did not provide the name “Bonna” on the night of the 

shooting, although she testified at trial that this was the name used by the victim to identify 

the shooter. As a result of this cross-examination, the trial court asked a question, and in 

response, the State was willing to stipulate that, when Peyrefitte spoke to the police on the 

day of the offense, she did not inform them that the victim had told her that Bonna had shot 

him. O’Brien also acknowledged the presence of a scar on the bridge of defendant’s nose, 

which Peyrefitte had not mentioned, and acknowledged that one could not discern from the 

video if defendant was the shooter. 

¶ 116 For all the above reasons, we cannot find that counsel rendered deficient 

performance. However, on appeal, defendant claims that counsel bolstered the event 

witnesses’ identifications, when he elicited information on cross-examination such as that 

Peyrefitte was focused on the shooter and that his face made such an emotional impact on her 

life that it haunted her dreams, that Hatchett observed defendant wearing a blue jacket, and 

that Cooks’s view of defendant crossing the street was not obstructed. First, counsel argued 

during closing that Peyrefitte’s emotional trauma should make her less credible, not more. 

Second, as we explained above, Hatchett’s testimony that defendant wore a blue jacket and a 

black hoodie contradicted the testimony of the other two event witnesses. Third, although her 
No. 1-17-0542 

35 

view was unobstructed, counsel established on cross-examination that Cooks had a brief, 

diagonal view as she peered, half-twisted, over her shoulder. 

¶ 117 Defendant also argues that counsel’s cross-examination permitted Peyrefitte and 

Hatchett to repeat how scared they were to come forward, thereby excusing their delay in 

providing information to the police, which was, for Hatchett, from September 20, 2013, to 

October 3, 2013, and for Peyrefitte, from September 20, 2013, to October 18, 2013.

Defendant argues on appeal that the two-week delay by Hatchett and the three-week delay by 

Peyrefitte could have otherwise been used to undermine their credibility. However, during 

closing, counsel employed a different strategy, arguing that their testimony did not ring 

true—that they would be “so scared” on the day of the offense and suddenly not scared just a 

short while later. Counsel argued: “You’re scared? Then what changed? Everybody seems to 

have been so scared that they couldn’t talk to the police on the date in question, and they 

decide to open their mouths for whatever reason a month later? What changed?” As we noted 

above, matters of trial strategy are generally immune from claims of ineffective assistance of 

counsel. Manning, 241 Ill. 2d at 327. 

¶ 118 Defendant also argues that counsel elicited information during the cross-examination 

of Detective O’Brien about a 911 call that would otherwise have been inadmissible hearsay.

Counsel asked O’Brien whether the name “Bonna” was a name that Peyrefitte provided on 

the day of the offense “or did this come out subsequently?” O’Brien replied that the 

information about “Bonna came out over the police radio that night” and that the source was 

a person who had called 911 anonymously. Defense argues that counsel acted ineffectively 

when he elicited this testimony and then failed to move to strike it. First, whether to move to 

strike is a matter of trial strategy, and such matters are generally immune from 
No. 1-17-0542 

36 

ineffectiveness claims. Manning, 241 Ill. 2d at 327. Motions to strike may call more attention 

to objectionable testimony, which a trier of fact cannot unhear. Second, if there was one 

identifying witness and this hearsay statement was the sole corroboration, the result could be 

different. See, e.g., People v. Wright, 65 Ill. App. 2d 23, 34 (1965) (“Nor can the error in 

admitting the [officers’ hearsay] testimony be regarded as harmless in view of the fact that 

defendant was identified by but one witness.”). However, in the case at bar, two separate 

event witnesses provided corroborating support for Peyrefitte’s identification of defendant as 

the shooter. Lastly, this was a bench trial, and the trial court gave detailed reasons for its 

verdict, and this hearsay was not among them. Thus, we cannot find that counsel’s alleged 

failure to move to strike this hearsay evidence rose to the level of constitutionally defective 

assistance.

¶ 119 For all the foregoing reasons, we are not persuaded that counsel provided 

constitutionally deficient assistance. Since defendant cannot satisfy the first prong of the 

Strickland test, the failure to establish this prong bars his claim. See Cherry, 2016 IL 118728, 

¶ 24; Flores, 153 Ill. 2d at 283. 

¶ 120 II. Sentencing 

¶ 121 Next, defendant argues that we should remand for resentencing or reduce his sentence 

because his 40-year prison sentence, which was imposed for a crime committed when he was 

17 years old, violates the eighth amendment of the United States Constitution (U.S. Const., 

amend. VIII) and the proportionate penalties clause of our state constitution (Ill. Const. 1970, 

art. I, § 11). 

 
No. 1-17-0542 

37 

¶ 122 A. Constitutional Provisions and Buffer

¶ 123 “The Eighth Amendment’s prohibition of cruel and unusual punishment ‘guarantees 

individuals the right not to be subjected to excessive sanctions.’ ” Miller v. Alabama, 567 

U.S. 460, 469 (2012) (quoting Roper v. Simmons, 543 U.S. 551, 560 (2005)). “That right,” 

the United States Supreme Court has “explained, ‘flows from the basic “precept of justice 

that punishment for crime should be graduated and proportioned” ’ to both the offender and 

the offense.” Miller, 567 U.S. at 469 (quoting Roper, 543 U.S. at 560, quoting Weems v. 

United States, 217 U.S. 349, 367 (1910)). “The concept of proportionality is central to the 

Eighth Amendment.” Graham v. Florida, 560 U.S. 48, 59 (2010). “And we view that concept 

less through a historical prism than according to ‘ “the evolving standards of decency that 

mark the progress of a maturing society.” ’ ” Miller, 567 U.S. at 469-70 (quoting Estelle v. 

Gamble, 429 U.S. 97, 102 (1976), quoting Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality 

opinion)). 

¶ 124 Like the eighth amendment, the proportionate penalties clause of the Illinois 

Constitution embodies our evolving standard of decency. People v. Miller, 202 Ill. 2d 328, 

339 (2002) (“as our society evolves, so too do our concepts of elemental decency and 

fairness which shape the ‘moral sense’ of the community” underlying both the 

proportionality clause and the eighth amendment). Specifically, the proportionate penalties 

clause provides that “[a]ll penalties shall be determined both according to the seriousness of 

the offense and with the objective of restoring the offender to useful citizenship.” Ill. Const. 

1970, art. I, § 11. The purpose of the proportionate penalties clause is to add a limitation on 

penalties beyond those provided by the eighth amendment and to add the objective of 

restoring the offender to useful citizenship. People v. Clemons, 2012 IL 107821, ¶ 39; People 
No. 1-17-0542 

38 

v. Fernandez, 2014 IL App (1st) 120508, ¶ 63 (“the Illinois Constitution places greater 

restrictions on criminal sentencing than the eighth amendment’s prohibition”). 

¶ 125 Recently, in Buffer, our supreme court found that, to prevail on a claim that a 

juvenile’s life sentence3

 violated the eighth amendment, a defendant must show both (1) that 

he was “subject to a life sentence, mandatory or discretionary, natural or de facto,” and

(2) that “the sentencing court failed to consider youth and its attendant characteristics.”

Buffer, 2019 IL 122327, ¶ 27. As a result, a sentencing court’s failure to consider youth and 

its attendant characteristics, by itself, is not enough. Our supreme court established a twoprong test. Buffer, 2019 IL 122327, ¶ 27. A defendant must show, first, that he was subject to 

a life sentence, before we even reach consideration of whether the sentencing court failed to 

consider his youth and its attendant circumstances. Buffer, 2019 IL 122327, ¶ 27. 

¶ 126 Proceeding to the first requirement, we observe that defendant was not subject either 

to a mandatory life sentence or a natural life sentence. Thus, he can satisfy this requirement 

only if he can show that he was subject to a discretionary de facto life sentence.

¶ 127 With respect to what constitutes a de facto life sentence for a juvenile offender, our 

highest court found: “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. As we already noted, 

defendant’s prison sentence is exactly 40 years. Thus, applying the words of the court’s 

finding to the facts of our case requires us to find that defendant’s prison sentence, which is 

“40 years or less,” is not a de facto life sentence.

3

As a preliminary matter, a defendant must also show that he was “sentenced for an offense 

committed while a juvenile.” Buffer, 2019 IL 122327, ¶ 27. In the case at bar, defendant satisfied this 

preliminary requirement. 
No. 1-17-0542 

39 

¶ 128 B. Other Language 

¶ 129 In response to Buffer, defendant argues, first, that other language in the Buffer opinion 

supports a finding that 40 years is long enough to be a de facto life sentence. Defendant 

argues that, based on this other language, we should interpret Buffer to find that his sentence 

constitutes de facto life. 

¶ 130 According to defendant, this other language includes the following sentence from

Buffer: “In determining when a juvenile defendant’s prison term is long enough to be 

considered de facto life without parole, we choose to draw a line at 40 years.” Buffer, 2019 

IL 122327, ¶ 40. However, in the very next paragraph, the Buffer court clarified exactly 

where it was drawing this line, namely, that “40 years or less” was not de facto life. Buffer, 

2019 IL 122327, ¶ 41. 

¶ 131 Defendant also observes that Justice Burke, specially concurring, wrote: “The 

majority goes even further astray when it relies on section 5-4.5-105 of the Unified Code of 

Corrections (730 ILCS 5/5-4.5-105 (West 2016)) to reach the conclusion that a prison term 

of 40 years ‘is long enough to be considered de facto life without parole.’ ” Buffer, 2019 IL 

122327, ¶ 60 (Burke, J., specially concurring) (quoting Buffer, 2019 IL 122327, ¶ 40 

(majority opinion)). Justice Burke explained that the legislature had recently provided, 

prospectively, a new sentencing scheme for defendants who were under 18 at the time their 

offenses were committed. Buffer, 2019 IL 122327, ¶ 60. The new scheme “requires a 

sentencing court to impose on a juvenile a minimum sentence of 40 years’ imprisonment for 

certain egregious first degree murder offenses that would warrant a sentence of natural life 

imprisonment for an adult offender.” (Emphasis in original.) Buffer, 2019 IL 122327, ¶ 60 

(Burke J., specially concurring) (citing 730 ILCS 5/5-4.5-105(a), (b), (c) (West 2016)). 
No. 1-17-0542 

40 

Defendant argues that this shows that 40 years’ imprisonment for a juvenile is equal to 

natural life imprisonment for an adult. However, Justice Burke specifically rejected this logic 

and found instead that this showed that the legislature thought that “at least” 40 years was

necessary as punishment for certain murders, even if the offenders were minors. (Emphasis 

in original.) Buffer, 2019 IL 122327, ¶ 61. Thus, neither the quote from Justice Burke’s 

opinion nor the legislative scheme support defendant’s argument.4

 

¶ 132 Defendant also argues that this court has previously interpreted Buffer and 

“concluded that a prison term of 40 years is long enough to be considered a de facto life 

sentence.” People v. House, 2019 IL App (1st) 110580-B, ¶ 53. However, the defendant in 

House received two consecutive natural-life sentences, so the facts of House did not require 

us to make any finding as to what constituted a de facto life sentence. House, 2019 IL App 

(1st) 110580-B, ¶ 4. As a result, defendant’s reliance on House for this argument is 

misplaced. 

¶ 133 In addition, the Buffer court was aware that some defendants would fall close to the 

line that it was drawing, but it believed that a categorical, bright-line rule was nonetheless 

desirable. The court observed: “ ‘[C]lear, predictable, and uniform constitutional standards 

are especially desirable’ in applying the eighth amendment.” Buffer, 2019 IL 122327, ¶ 29 

(quoting Roper, 543 U.S. at 594 (O’Connor, J., dissenting)). The Buffer court stated that it 

understood that drawing a line was subject to the objections always raised against categorical 

rules, but nonetheless it decided “ ‘a line must be drawn.’ ” Buffer, 2019 IL 122327, ¶ 29 

4

Also the Buffer majority noted that “[t]he legislature evidently believed that this 40-year 

floor for juvenile offenders who commit egregious crimes complies with the requirements” of eighth 

amendment jurisprudence, and the majority agreed with the legislature. (Emphases added.) Buffer, 

2019 IL 122327, ¶¶ 39, 41. 
No. 1-17-0542 

41 

(quoting Roper, 543 U.S. at 574 (majority opinion)). As a result, we cannot interpret Buffer

as defendant suggests. 

¶ 134 C. Mandatory Release Term 

¶ 135 Next, defendant argues that his 40-year sentence, plus his 3-year mandatory 

supervised release term, constitutes a 43-year total sentence and, thus, is a de facto life 

sentence under Buffer. 

¶ 136 In support, defendant argues that, although the Post-Conviction Hearing Act (Act) 

applies only to persons “imprisoned in the penitentiary” (725 ILCS 5/122-1(a) (West 2018), 

our supreme court has determined that a person serving a mandatory supervised release term 

is considered imprisoned in the penitentiary for purposes of the Act. E.g., People v. Correa, 

108 Ill. 2d 541, 546-47 (1985). 

¶ 137 First, the court’s finding in Correa was specific to the Act. The court explained that it 

was finding that a mandatory supervised release term was included because courts “must 

construe [the Act] liberally to accomplish the purposes for which it was enacted.” Correa, 

108 Ill. 2d at 546. 

¶ 138 Second, in Buffer, the defendant was sentenced to 50 years, “followed by 3 years of 

mandatory supervised release.” Buffer, 2019 IL 122327, ¶ 5. However, throughout the 

opinion, the supreme court referred to defendant’s 50-year sentence. See, e.g., Buffer, 2019 

IL 122327, ¶ 14. If the court believed that the three years of mandatory supervised release 

should have been counted, it would have referred to his 53-year sentence. 

¶ 139 Third, Buffer said nothing about including a mandatory supervised release term and 

did state unequivocally that “a prison sentence of 40 years or less” is not life. (Emphasis 

added.) Buffer, 2019 IL 122327, ¶ 41. Thus, we cannot find that a mandatory supervised 
No. 1-17-0542 

42 

release term enters into our calculation of a “prison sentence” for purposes of the eighth 

amendment. See Buffer, 2019 IL 122327, ¶ 41. 

¶ 140 Defendant further argues that, if he spends any of his supervised release term behind 

bars, then his prison time will be more than 40 years. Although we understand the force of 

defendant’s logic, Buffer referred to a “prison sentence,” rather than to prison time. See 

Buffer, 2019 IL 122327, ¶ 41. Also, defendant is arguing a hypothetical that is not present in 

the record before us. Thus, we are not persuaded by this argument. 

¶ 141 D. Proportionate Penalties Clause 

¶ 142 Lastly, defendant argues that Buffer was decided solely under the eighth amendment 

of the United States Constitution (U.S. Const., amend. VIII) and did not address our state’s 

proportionate penalties clause (Ill. Const. 1970, art. I, § 11), 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. Defendant is correct that Buffer was decided 

solely under the eighth amendment. E.g., Buffer, 2019 IL 122327, ¶¶ 13-27. 

¶ 143 A sentence violates the proportionate penalties clause if “the punishment for the 

offense is cruel, degrading, or so wholly disproportionate to the offense as to shock the moral 

sense of the community.” Miller, 202 Ill. 2d at 338. 

¶ 144 Defendant argues that his 40-year prison sentence shocks the moral sense of the 

community because, first, it did not account for his rehabilitative potential, particularly the 

facts in the presentence investigative report indicating that he suffered from a learning 

disorder, received special education, regularly saw a grammar school counselor, and had to 

be hospitalized due to his anger. Defendant also argues that the trial court failed to connect 

his family support, school attendance, and employment history to his rehabilitative potential.
No. 1-17-0542 

43 

Defendant acknowledges that his counsel failed to preserve these issues but argues that we 

should review them under the second prong of the plain error doctrine. 

¶ 145 “[T]o preserve a claim of sentencing error, both a contemporaneous objection and a 

written postsentencing motion raising the issue are required.” People v. Hillier, 237 Ill. 2d 

539, 544 (2010). In the case at bar, defendant failed to do both. Thus, “we may review this 

claim of error only if defendant has established plain error.” Hillier, 237 Ill. 2d at 545. “To 

obtain relief under this rule, a defendant must first show that a clear or obvious error 

occurred.” Hillier, 237 Ill. 2d at 545. “In the sentencing context, a defendant must then show 

either that (1) the evidence at the sentencing hearing was closely balanced, or (2) the error 

was so egregious as to deny the defendant a fair sentencing hearing.” Hillier, 237 Ill. 2d at 

545. Defendant argues the latter, or second-prong error.

¶ 146 We cannot find that the trial court’s decision not to mention certain facts contained in 

the presentence investigation report, or its decision not to connect the facts in the way 

defendant hoped it would, rises to the level of plain error.

¶ 147 Second, defendant argues that his 40-year sentence shocks the moral sense of the 

community in light of recent changes in juvenile sentencing enacted by our state legislature.

However, in the case at bar, the trial court stated at defendant’s sentencing that it was aware

of recent changes in both the case law and statutory law concerning juvenile sentencing.

Exercising the discretion given to him by these new laws, the trial judge chose not to impose 

the firearm enhancement, thereby reducing defendant’s maximum possible sentence from 

natural life to 60 years. 

¶ 148 Lastly, we cannot find that a 40-year sentence for a 17-year-old who committed a 

premeditated, gangland-style execution shocks the moral sense of the community. The 
No. 1-17-0542 

44 

evidence established that defendant and codefendant were wearing hoodies on a warm day

and that Hatchett instantly realized that there was going to be a shooting. They approached 

the victim—not the other way around. Not only did they approach him, they chased him. In 

the store, defendant gunned down an unarmed victim, who was trying to get away from 

defendant, thereby posing no immediate threat to defendant. After the execution, both 

Peyrefitte and Cooks testified about how calm and nonchalant defendant appeared. 

Defendant did not have the appearance of a nervous, jumpy juvenile but rather the calm of a 

cold-blooded killer. For all these reasons, we cannot find that a 40-year sentence for this 17-

year-old defendant shocks the moral sense of the community. 

¶ 149 CONCLUSION

¶ 150 For all the foregoing reasons, we find that defendant’s trial counsel provided effective 

assistance and that defendant’s 40-year sentence did not violate the eighth amendment or the 

proportionate penalties clause. 

¶ 151 Affirmed. 
No. 1-17-0542 

45 

No. 1-17-0542

Cite as: People v. Gunn, 2019 IL App (1st) 170542 

Decision Under Review: Appeal from the Circuit Court of Cook County, No. 13-CR21956(01); the Hon. 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.