People v. Reeves

2021 IL App (1st) 170978-U

No. 1-17-0978

March 22, 2021

FIRST DIVISION

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the

limited circumstances allowed under Rule 23(e)(1)

IN THE

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

PEOPLE OF THE STATE OF ILLINOIS ) Appeal from the Circuit Court

) Of Cook County.

Respondent-Appellee, )

)

v. ) No. 02 CR 8055

)

GABRIEL REEVES ) The Honorable

) Rickey Jones

Petitioner-Appellant. ) Judge Presiding.

PRESIDING JUSTICE WALKER delivered the judgment of the court.

Justices Hyman and Coghlan concurred in the judgment.

ORDER

Held: The circuit court’s denial of defendant’s petition for post-conviction relief after third-

stage proceedings was not manifestly erroneous.

¶1 Petitioner, Gabriel Reeves, was indicted for the murders of Richard and Ronald Phillips.

Reeves waived his right to trial by jury and was found guilty at a bench trial of two counts of

first-degree murder and sentenced to a term of natural life imprisonment. He filed a post-

conviction petition alleging, inter alia, that his trial counsel was ineffective for failing to call

an expert on eyewitness identifications, where the only evidence against him came from an

No. 1-17-0978

eyewitness with limited opportunity to observe the shooter. The circuit court denied the claim

and dismissed the petition after an evidentiary hearing. Reeves appeals the dismissal of his

petition. For the following reasons, we affirm.

¶2 BACKGROUND

¶3 On the night of October 6, 2001, a large group of approximately 100 friends and family

gathered at the New Phillips Lounge located at 2434 East 87th Street in Chicago, Illinois, for

a birthday/going away party. Cousins Richard and Ronald arrived after midnight with

Richard’s girlfriend, Serynthia Jefferson. Due to overcrowding, the lounge closed early at 1:30

a.m. After the lounge closed, Richard and Ronald were outside speaking with other attendees

when a man fired a semi-automatic weapon at close range, killing both men. Multiple

eyewitnesses later identified Reeves as the shooter.

¶4 Teoqua Gardner was one of the eyewitnesses who identified the shooter as Reeves. Gardner

was a cousin of Richard and Ronald and attended the party that night. At trial, Gardner testified

that when she exited the lounge, she noticed Richard and Jefferson arguing and pulling on each

other. Gardner intervened and told Jefferson to ride with her to another bar. The two walked

toward Gardner’s car, which was parked across the street from the lounge. Michelle Bernaugh,

a friend of Gardner’s, was already seated in the car. Ronald and Richard then walked over to

the car. Ronald and Gardner leaned against the car, talking, and Richard and Jefferson stood a

couple feet from the car, talking. As Gardner spoke with Ronald, she heard gunfire coming

from behind her. According to Gardner, Richard was shot first. While Richard was falling,

Gardner saw the shooter standing next to him with a gun. Seconds later, Ronald was shot with

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a total of four shots. After shooting both men, the shooter used foul language, then walked

away.

¶5 Gardner testified that she recognized the shooter as someone from high school and from

the neighborhood but could not remember his name at the time of the shooting. Gardner

attended Bowen High School from 1990-93 and had often seen Reeves in school in 1992 but

had only seen him a couple of times since then. Gardner told police she would be able to

identify the shooter if shown a picture. She identified Reeves as the shooter in a January 2002

photo array and again in a February 2002 lineup.

¶6 Gardner admitted on cross-examination that she looked at Reeves’ picture in her high

school yearbook before identifying him in the police photo array. At trial, she could not

remember whether she told police that she looked at the yearbook. The parties stipulated that

no police report indicated that Gardner ever told police she looked at her high school yearbook

to identify the shooter. Gardner also admitted she told Bernaugh and another friend, Deborah

Smith, that she found Reeves’ picture in the yearbook but claimed she did not show the picture

to either of them or to Jefferson.

¶7 Jefferson also identified the shooter in court as Reeves but said she had never seen him

before the shooting. Jefferson testified that when she was outside the lounge after it closed, she

was about to go with Gardner when she heard a few shots coming from behind her and to the

right. She turned around, looked at Richard, and saw that Richard was bleeding and had been

shot in the top of his head. Richard fell, and she tried to hold him up. According to Jefferson,

Ronald was nearly four feet away, laying on the ground, and not moving. Jefferson attempted

to speak with police when they arrived in the early morning hours of October 7 but was too

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distraught to clearly recount the events surrounding the shooting. She later identified Reeves

as the shooter in a January 2002 photo array and a February 2002 lineup.

¶8 On direct examination, Jefferson first testified that she did not see anyone holding a gun

and did not see anyone shoot Richard or Ronald. She looked up from Richard only after the

shooting and saw the shooter walking toward the alley near the lounge and holding a gun in

his left hand. He was wearing a black hooded sweatshirt with the hood over his head. After

further questioning on direct, Jefferson said Reeves was four to five feet away from her when

she saw him walk up to Richard and heard a gunshot.

¶9 Bernaugh also identified the shooter as Reeves. After the lounge closed, Bernaugh sat in

the passenger seat of Gardner’s car while Gardner, Jefferson, Richard, and Ronald talked

outside. While waiting in the car, Bernaugh saw the shooter approach the car from across the

street. According to Bernaugh, the shooter was wearing a hooded, gray jogging suit with the

hood down. The shooter pulled his gun from his right pocket and rapidly fired four to five

shots. He was about twelve feet away from Michelle when he shot Richard and Ronald.

Bernaugh could see that the shooter was saying something but could not hear it because the

windows were up. After shooting both men, the shooter walked away northbound down

Phillips Avenues. She later identified Reeves as the shooter in a January 2002 photo array and

in a February 2002 lineup.

¶ 10 At trial, Bernaugh admitted she had never seen Reeves before the night of the shooting.

The parties stipulated that she told a police detective on the day of the incident that she did not

get a good look at the shooter’s face. Bernaugh testified that she never discussed the morning

of the shooting with Gardner or Smith.

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¶ 11 Smith also identified Reeves at trial but did not identify him as the shooter, only that he

was inside of the lounge that night. Smith testified she had never seen Reeves before the

morning of the shooting. According to Smith, Reeves was at the bar in the lounge between

12:30 a.m. and 1:00 a.m. and stood two to three feet away from her. Smith only glanced at him

and did not remember what he was wearing. Smith testified that she never discussed the

shooting with Gardner, despite being best friends with her at the time. Smith later identified

Reeves in a January 2002 photo array and a February 2002 lineup as the person she saw inside

the lounge.

¶ 12 The defense presented one witness, Octavia Sawyer. Sawyer had known Reeves for more

than ten years, but they were not friends. Sawyer testified she was at the New Phillips Lounge

from 10:30 p.m. or 11:00 p.m. on October 6, 2001, until the lounge closed. Sawyer walked

around the lounge and saw Gardner and Bernaugh at the bar. She left the bar around 1:30 a.m.

in her car and never heard any gunshots. Sawyer testified that she never saw Reeves inside or

outside the lounge that night.

¶ 13 Following closing arguments, the circuit court found Reeves guilty of the first-degree

murder of Richard and Ronald. Reeves filed a motion for a new trial, which was denied.

Following a sentencing hearing, Reeves was sentenced to a term of natural life imprisonment.

¶ 14 On direct appeal, counsel filed a motion pursuant to Anders v. California, 386 U.S. 738,

18 (1967), to withdraw based on counsel’s conclusion that an appeal in the case would be

frivolous. Reeves filed a pro se response arguing that the State’s evidence was insufficient to

prove him guilty beyond a reasonable doubt, he was denied his right to effective assistance of

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trial counsel, and the State knowingly used perjured testimony. The appellate court affirmed

the judgment of the circuit court.

¶ 15 On May 23, 2006, Reeves filed a petition for post-conviction relief alleging, among other

issues, ineffective assistance of trial counsel for his failure to call an available alibi witness.

On August 15, 2006, the circuit court summarily dismissed the petition. Reeves appealed the

summary dismissal arguing that he presented the gist of a claim of ineffective assistance for

failing to call an alibi witness. The appellate court reversed, holding Reeves’ claim merited

that he be appointed counsel and advance to second-stage post-conviction proceedings.

¶ 16 On remand, appointed counsel filed a supplemental petition adding a claim of ineffective

assistance of counsel for failing to call an eyewitness identification expert at trial. In support

of this new claim, Reeves attached a report by Dr. Geoffrey Loftus, a psychology professor

specializing in human perception, who explained how current research on the reliability of

eyewitness accounts applied to Reeves’ case. The State filed a motion to dismiss the petition.

After arguments on the State’s motion, the circuit court granted a third-stage evidentiary

hearing on both of Reeves’ claims in his supplemental petition.

¶ 17 At the beginning of the evidentiary hearing, Reeves withdrew the alibi witness issue and

proceeded solely on the claim of ineffective assistance of counsel for failing to call an

eyewitness identification expert at trial. The only evidence presented was the testimony of Dr.

Loftus.

¶ 18 Dr. Loftus testified generally about the fallibility of eyewitness identifications. He

emphasized the importance of having good lighting, sufficient time, and a good opportunity to

observe events in forming accurate memories. He also described the role of post-event

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information in altering a person’s original memory of an event. Specifically, he described

instances where memory of an event is contaminated with false post-event information that a

person believes to be accurate. He testified that experiments in laboratories have shown

misidentifications by witnesses, such as false positive identifications of strangers as familiar

people from the past.

¶ 19 Dr. Loftus testified that in a large percentage of exoneration cases, there were eyewitnesses

who confidently, yet falsely, identified a defendant as the person they saw commit the crime.

If a witness expresses a great deal of confidence in a memory, the circumstances for forming

the memory were good, and there was no potentially contaminating post-event information,

then this would lead to an indication that the witness is accurate. However, if the circumstances

for forming the memory were poor and there were potentially contaminating sources of post-

event information, then under those circumstances, high confidence on the witness’s part does

not necessarily imply a high accuracy level.

¶ 20 Upon questioning from the court, Dr. Loftus acknowledged that a witness could wind up

with accurate post-event information that would not affect the accuracy of the witness’

identification.

¶ 21 Dr. Loftus also testified that lineup identifications in which police officers know who the

subject is and double identifications, where the suspect is the only person who appears in the

photo array and in the lineup, are intrinsically biased and more likely to produce false

identifications. Similarly, simultaneous lineups, where a witness views all the lineup

participants simultaneously, are likely to produce circumstances where police officers give the

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witnesses subtle hints that the witness had chosen the correct person. When this occurs, the

witness becomes more confident that they had chosen the right person.

¶ 22 Dr. Loftus testified that double blind lineups are recommended by the scientific community

to eliminate the possibility of the officer giving subtle, nonverbal information to the witness.

He also noted that sequential lineups, where the witness views the participants one at a time,

are preferred over simultaneous lineups due to a lesser risk for false identifications.

¶ 23 Dr. Loftus also opined about issues in this case. He testified that poor lighting, limited time

to view events, alcohol consumption, high stress from the presence of the gun, were all factors

that contributed to witnesses’ inability to acquire accurate information. He concluded that

under the circumstances present at the shooting of the cousins, it was unlikely that three

witnesses who did not know Reeves would all be able to make independent, accurate

identifications from an unbiased photo array. Three months had elapsed between the crime and

the witnesses’ participation in the identification procedures. Under those circumstances, the

chances that three witnesses who did not know the offender would all independently choose

the same suspect from the lineup were minimal. However, on cross-examination, he noted that

it was possible that any number of them could have correctly identified him.

¶ 24 Throughout the testimony, the circuit court intervened and asked its own questions. In

several of its questions, the circuit referred to Dr. Loftus’ testimony as “common sense.” Dr.

Loftus acknowledged that many of the concepts to which he was testifying were common sense

factors.

¶ 25 At the conclusion of Dr. Loftus’ testimony, Reeves admitted his exhibits into evidence and

rested. The State rested without presenting witnesses. After arguments by both parties, the

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court noted that it had presided over the original bench trial and had “carefully, meticulously

and thoroughly considered all of the evidence and testimony.” The court found that evidence

presented at the evidentiary hearing would not have changed its guilty finding but instead

would have “strengthened and enhanced” it. The circuit court found no constitutional

violations and denied the post-conviction petition.

¶ 26 This timely appeal followed.

¶ 27 ANALYSIS

¶ 28 On appeal, Reeves argues the circuit court’s dismissal of the post-conviction petition

following the evidentiary hearing was against the manifest weight of the evidence.

Specifically, Reeves contends Dr. Loftus’ testimony demonstrated that his opinion would have

significantly undermined the testimony of the State’s central eyewitnesses and substantially

aided the defense, had it been presented at trial.

¶ 29 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122–1 et seq. (West 2018))

establishes a process by which those under criminal sentence can assert that their convictions

were the result of a substantial denial of their rights under the United States Constitution or the

Illinois Constitution or both. People v. Tate, 2012 IL 112214, ¶ 8. In cases not involving the

death penalty, a post-conviction proceeding contains three stages. Id., ¶ 9. At the first stage,

the circuit court must independently review the post-conviction petition and determine whether

“the petition is frivolous or is patently without merit.” People v. Hodges, 234 Ill. 2d 1, 10

(2009). The court must dismiss the petition in a written order if it determines the petition is

either frivolous or patently without merit. Id.

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¶ 30 If the circuit court does not dismiss the petition at the first stage, it advances to the second

stage. People v. Domagala, 2013 IL 113688, ¶ 33. At the second stage, counsel is appointed

to represent the defendant, if necessary, and the State may move to dismiss or answer the

petition. Id. At this stage, the petitioner bears the burden of making a substantial showing of a

constitutional violation. People v. Pendleton, 223 Ill. 2d 458, 473 (2006). If no such showing

is made, the petition will be dismissed. People v. Edwards, 197 Ill. 2d 239, 246 (2001).

However, if a substantial showing of a constitutional violation is made, then the petition

advances to the third stage, where the circuit court conducts an evidentiary hearing. Id.

¶ 31 At the third stage evidentiary hearing, the burden is again on the petitioner to make a

substantial showing of a deprivation of constitutional rights. Pendleton, 223 Ill. 2d at 473.

Following an evidentiary hearing where fact-finding and credibility determinations are

involved, this court will not reverse the circuit court's decision unless it is manifestly erroneous.

Id. Manifest error is error that is “clearly evident, plain, and indisputable.” People v. Beaman,

229 Ill. 2d 56, 74 (2008) (quoting People v. Morgan, 212 Ill. 2d 148, 155 (2004)).

¶ 32 Reeves was granted an evidentiary hearing to determine whether his trial counsel was

ineffective for failing to call an eyewitness identification expert to testify at his bench trial.

¶ 33 A criminal defendant has the right to the effective assistance of counsel under both the

United States and Illinois constitutions. Strickland v. Washington, 466 U.S.668, 690-91 (1984);

People v. Albanese, 104 Ill. 2d 504, 525 (1984). In determining whether a defendant was denied

effective assistance of counsel, this court applies the familiar two-prong test set forth in

Strickland. A defendant must demonstrate that (1) trial counsel’s representation was deficient

and (2) the deficient performance prejudiced the defendant. Domagala, 2013 IL 113688, ¶ 36.

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If a defendant fails to establish either prong, his claim of ineffective assistance of counsel fails.

People v. Colon, 225 Ill. 2d 125, 135 (2007).

¶ 34 To satisfy the first prong of Strickland, “a defendant must show that his counsel's

performance was so inadequate that counsel was not functioning as the “counsel” guaranteed

by the sixth amendment.” People v. Smith, 195 Ill. 2d 179, 188 (2000). “Counsel's performance

is measured by an objective standard of competence under prevailing professional norms.” Id.

Additionally, the defendant must overcome the strong presumption that the challenged action

or inaction may have been a product of sound trial strategy. Id. This court is highly deferential

to trial counsel on matters of trial strategy. People v. Perry, 247 Ill. 2d 312, 344 (2007).

However, we will find counsel’s performance to be deficient where the “trial strategy is so

unsound that counsel entirely fails to conduct any meaningful adversarial testing.” People v.

Reid, 179 Ill. 2d 297, 310 (1997).

¶ 35 In this case, the only evidence linking Reeves to the shooting was the testimony of four

eyewitnesses. Garner, who knew Reeves from high school and from around the neighborhood,

consulted a yearbook to confirm her belief that she recognized the shooter. The other three

witnesses, Jefferson, Bernaugh, and White, were all friends with Garner and had never seen

Reeves prior to the shooting but identified him three months later. Reeves contends the

testimony of an eyewitness identification expert would have been crucial for the defense and

that without such testimony trial counsel was limited in his ability to challenge the reliability

of the State’s witnesses. The State counters arguing that trial counsel’s performance was not

deficient because counsel was able to make the same challenges to the eyewitness

identifications through cross-examination and closing argument.

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¶ 36 We reject the State’s argument that trial counsel’s closing argument was an adequate

substitute for expert testimony if similar points are made. “[C]losing arguments are not

evidence and any statements or arguments made at closing that are not based on the evidence

should be disregarded.” People v. Wheeler, 226 Ill. 92, 137 (2007). However, regarding the

cross-examination of the four eyewitnesses, counsel was able to bring out the same factors to

which Dr. Loftus testified. Specifically, he discussed the witnesses’ alcohol consumption, their

degree of attention, the short passage of time, most of the witnesses’ unfamiliarity with Reeves,

the lighting conditions, and the distance between them and the shooter.

¶ 37 Nonetheless, Reeves argues that without an expert witness, trial counsel was unable to

make a key argument that the witnesses must have spoken to each other or gained post-event

information to identify Reeves. Counsel attempted to make this argument, but the State

objected, and the circuit court sustained the objection because there was no evidence to support

the argument. If Dr. Loftus had testified at trial, then counsel may have been able to make an

argument that the witnesses gained post-event information. At the evidentiary hearing, Dr.

Loftus opined, “it is unlikely that three witnesses under the circumstances that they observed

this event would all be able to make independent, accurate identifications from an unbiased

photo lineup three months later.” In his report, Dr. Loftus explained that a more plausible

explanation for the witnesses’ selection of Reeves would either be that their selections were

not independent, or they had access to information about his appearance prior to identifying

him in the lineups.

¶ 38 Relying on People v. Lerma, 2016 IL 118496, Reeves argues expert testimony would have

been probative and admissible. In Lerma, the defendant was convicted of first-degree murder.

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Id. ¶ 16. The only evidence of defendant’s guilt consisted of two eyewitnesses. Id. ¶ 5. The

first eyewitness identification was made by the victim and was admitted into evidence under

the excited utterance exception to the hearsay rule. Id. The second eyewitness was present

when the victim was shot and identified the defendant the morning after the shooting, and then

again one day later. At trial, she admitted that she had seen defendant only “once or twice”

before the shooting. Id. Because the State’s case against the defendant rested entirely on the

reliability of its eyewitness identifications, our supreme court found that expert eyewitness

testimony was both “relevant and appropriate.” Id.

¶ 39 Like in Lerma, we agree that expert eyewitness testimony would have been relevant and

appropriate in this case where the only evidence presented against Reeves was eyewitness

testimony. Additionally, most of the factors that Dr. Loftus identified as potentially

contributing to the unreliability of eyewitness testimony are present. These include the stress

of the event itself, the use and presence of a weapon, the wearing of a partial disguise, exposure

to post-event information, and nighttime viewing. However, the admissibility of expert

testimony is not the issue before this court. In Lerma, our supreme court held that the circuit

court abused its discretion by denying expert testimony. 2016 IL 118496, ¶ 27. Specifically,

the circuit court ignored the contents of the expert witness’ report and “effectively substituted

its own opinion on a matter of uncommon knowledge for that of a respected and qualified

expert.” Id. ¶ 28. This did not occur in Reeves’ case. Instead, the only issue here is whether

trial counsel was ineffective for not calling an expert witness. These are “manifestly different”

issues. People v. Macklin, 2019 IL App (1st) 161165, ¶ 39.

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¶ 40 Although eyewitness testimony was the only evidence presented against Reeves and the

circumstances surrounding the shooting made reliable identification difficult, it was not

unsound for trial counsel to not present an expert on eyewitness identification. Generally,

decisions concerning whether to call certain witnesses on a defendant’s behalf are matters of

trial strategy and reserved to the discretion of trial counsel. People v. Enis, 194 Ill. 2d 361, 378

(2000). Such decisions enjoy a strong presumption that they reflect sound trial strategy, rather

than incompetence and are generally immune from claims of ineffective assistance of counsel.

Id. Further, trial counsel’s “failure to call an expert witness is not per se ineffective assistance,

even where doing so may have made the defendant’s case stronger, because the State could

always call its own witness to offer a contrasting opinion.” People v. Hamilton, 361 Ill. App.

3d 836, 847 (2005). We acknowledge that Dr. Loftus’ testimony may have improved the

defense but cannot find trial counsel’s decision not to present an eyewitness identification

expert resulted in a failure to conduct a meaningful adversarial testing, especially considering

trial counsel’s thorough cross-examination of all four eyewitnesses. Therefore, counsel’s

performance was not deficient, and defendant failed to satisfy the first prong of Strickland.

¶ 41 Even assuming trial counsel’s performance was deficient, there was no resulting prejudice

from that deficient performance. To establish prejudice a defendant must show that but for

counsel’s deficient performance, there is a reasonable probability that the outcome of the trial

would have been different. Strickland, 466 U.S. at 694. A “reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id.

¶ 42 People v. Popoca, 245 Ill. App. 3d 948 (1993) is distinguishable. In Popoca, the defendant

was found guilty of the attempted murder of his wife and daughter. Id. at 949. Trial counsel

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presented the defense of voluntary intoxication and argued the defendant was too drunk to have

a specific intent to kill. Id. at 951. However, counsel did not call an expert witness to support

the intoxication defense because she believed there was sufficient factual evidence to show the

defendant could not have formed an intent to kill and that an expert would not have

significantly helped the case. Id. at 954. After a post-conviction hearing, the circuit court

denied the defendant’s claim of ineffective assistance of counsel. Id. The appellate court

reversed the circuit court’s denial and held that trial counsel was ineffective by failing to

present an expert where expert testimony “would have substantially improved defendant's

claim given the strong evidence of defendant's intoxication already in the record.” Id. at 957.

¶ 43 Unlike in Popoca, there is no external evidence to support Dr. Loftus’ opinion that either

Jefferson’s, Bernaugh’s, or White’s identification of Reeves was not independent. All testified

that they identified Reeves without consulting Garner’s yearbook. Likewise, Garner testified

that she never showed any witness her yearbook. The Popoca court also found trial counsel’s

presentation of the defendant’s intoxication inadequate. Id. at 956. Specifically, the laboratory

technician failed to properly explain the defendant’s blood alcohol level and its effect on his

mental abilities where a psychological expert could have testified that his level of mental

impairment was extreme. Id. Essentially, trial counsel in Popoca failed to present the relevant

issues that an expert would have presented. Here, trial counsel not only discussed the same

factors to which Dr. Loftus would have testified, but also used similar language.

¶ 44 At the conclusion of the evidentiary hearing, Judge Rickey Jones, who was the same trier

of fact at Reeves’ bench trial, found that Dr. Loftus’ testimony would not change the court’s

findings. Dr. Loftus could not determine that either eyewitness was mistaken or dishonest in

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their testimony. Additionally, Dr. Loftus acknowledged that the factors surrounding the

shooting and witness identifications affected the weight given to a witness’s testimony, which

is an issue for the trier of fact to determine. After an evidentiary hearing, we afford great

deference to the circuit court's assessment of a witness's credibility and findings of fact because

“the circuit court is in a superior position to determine and weigh the credibility of the

witnesses, observe the witnesses’ demeanor, and resolve conflicts in their testimony.” People

v. Richardson, 234 Ill.2d 233, 251 (2009). However, we will reverse the circuit court where its

findings are against the manifest weight of the evidence. Here, we find that the circuit court’s

rejection of Reeves’ claim of ineffective assistance of counsel was not manifestly erroneous.

Therefore, the circuit court’s denial of the post-conviction petition is affirmed.

¶ 45 CONCLUSION

¶ 46 For the foregoing reasons, the judgment of the circuit court is affirmed.

¶ 47 Affirmed.

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