People v. Walker , 2021 IL App (1st) 190125-U ( 2021 )

2021 IL App (1st) 190125-UFIRST DIVISION
June 28, 2021
No. 1-19-0125
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
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Respondent-Appellee, ) Cook County
)
v. ) No. 09 CR 16847 (02)
)
KEVIN WALKER, ) The Honorable
) Thomas J. Byrne,
Petitioner-Appellant. ) Judge, presiding.
JUSTICE PIERCE delivered the judgment of the court.
Presiding Justice Walker and Justice Hyman concurred in the judgment.
ORDER
¶1 Held: The judgment of the circuit court summarily dismissing petitioner’s postconviction
petition at the first stage is affirmed.
¶2 Petitioner, Kevin Walker, filed a postconviction petition asserting in relevant part that his
trial counsel provided ineffective assistance by failing investigate a potential alibi witness. The
circuit court summarily dismissed the petition at the first stage. Walker appeals. We affirm.
No. 1-19-0125
¶3 I. BACKGROUND
¶4 The following facts are relevant to understanding the issues in this appeal. A more complete
recitation of the evidence presented at Walker’s trial can be found in our order affirming his
convictions on direct appeal. See People v. Walker, 2017 IL App (1st) 141036-U, ¶¶ 3-27.
¶5 Walker and two codefendants, Shawn Gaston and Christopher Harris, were charged with
the first degree murder of Chicago police officer Alejandro Valadez and the attempted murder of
Kelvin Thomas. At trial, the State presented evidence that Officer Valadez and his partner started
their shift around 11 p.m. on May 31, 2009. Officer Valadez, his partner, and other officers
responded to a report of possible gunfire around West 60th Street to West 61st Street and South
Hermitage Avenue and South Paulina Street. The officers received information about a garage
used by gang members to store weapons. Around midnight, while investigating the garage, Officer
Valadez approached Thomas, whom officers saw from across a vacant lot. Thomas told Officer
Valadez that he and his sister heard gunshots approximately 15 minutes earlier near 60th and
Hermitage. While Officer Valadez and Thomas were talking, someone fired five or six gunshots.
Officer Valadez and Thomas fell to the ground. A blue or grey Pontiac G6 with a scratched door
stopped and a black male with dreadlocks wearing a white t-shirt emerged from the front passenger
window and fired a gun in the direction of Officer Valadez and Thomas. Officer Valadez was
struck twice and died from his wounds. Police subsequently impounded a four-door Pontiac G6
owned by Gaston’s mother that matched the description of the vehicle involved in the shooting.
The car was parked a few blocks from the scene of the shooting and the hood was still warm.
Officers recovered bullet casings and three guns from the car. Walker and several others were
arrested on porch near the scene of the shooting. Walker’s fingerprint and DNA were found on
one of the guns, although he tested negative for any gunshot residue. There was also evidence that
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Walker and Gaston had been pulled over in Gaston’s mother’s car at around 3 p.m. on May 31 for
a traffic violation.
¶6 An assistant state’s attorney interviewed Walker after the arrest. A videotaped interview of
Walker watching Gaston’s videotaped statement, Walker’s own videotaped statement, and a
transcript of Walker’s videotaped statement were admitted into evidence. Walker initially denied
any involvement in the shooting. However, after viewing Gaston’s videotaped statement, Walker
stated “I’m the driver, I was driving ***.” During that interview, Walker explained that he and
Gaston were getting tattoos between 9:30 p.m. and 10:30 p.m. near West 62nd Street and South
Wolcott Avenue. Gaston was driving his mother’s Pontiac G6 when someone shot at the vehicle.
Gaston drove with Walker to his house and retrieved a gun. When Gaston returned to the car, he
told Walker to drive. Walker knew Gaston would “probably shoot but he probably wouldn’t try to
hit nobody.” While Walker was driving between 10 and 20 miles per hour, Gaston stuck his arm
out of the passenger side window and fired between five and six shots. Walker denied having a
gun on him at the time and denied shooting a gun. He did not know what kind of gun Gaston had.
After the shooting, Walker drove down an alley to get rid of the gun, then parked at 61st and
Paulina before joining friends on the porch where he and others were ultimately arrested.
¶7 The circuit court entered into evidence recordings of two phone calls Walker made from
jail. In a July 31, 2009, call, Walker stated “[c]ause I’m like—then I’m like, man, they gotta get
(inaudible) gotta get my fingerprints of [sic] this motherfucker, (inaudible) they gotta get it off this
motherfucker. They gotta get it off this motherfucking steering wheel, gotta get it off this here gun
that they say that killed this ***.” During a November 5, 2011, phone call to his mother, Walker
was recorded as saying “they might do it to me cause I’m just the driver ***.” Walker did not
testify on his own behalf and the defense presented no evidence.
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No. 1-19-0125
¶8 The jury found Walker guilty of one count of first degree murder and one count of
attempted first degree murder, and Walker was sentenced to 125 years’ imprisonment. We
affirmed Walker’s convictions on direct appeal over his contentions that (1) his trial counsel was
ineffective for failing to file a pretrial motion to redact Walker’s use of his prejudicial nickname
from his videotaped statement and the transcript of that statement, and (2) the circuit court should
have excluded the State’s firearms expert’s testimony because his opinions lacked an adequate
foundation. Walker, 2017 IL App (1st) 141036-U, ¶¶ 28-52.
¶9 On October 3, 2018, Walker, through counsel, filed a petition pursuant to section 122-1 of
the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 (West 2018)). Count I of his petition—
the only count at issue on appeal—asserted that his trial counsel provided ineffective assistance by
failing to “investigate witnesses whose names and contact information was available both in the
police reports and who were made known to defense counsel by [Walker].”1 The petition asserted
Walker “was prejudiced because there is no reason to believe the investigation would have been
futile.” Attached to Walker’s petition was Clint Massey’s affidavit, which asserted that he was
with friends sitting on a porch at West 62nd Street and South Paulina Avenue on May 31, 2009.
Walker joined them on the porch around 11:30 p.m. and did not leave the group until police arrived
and arrested them. Massey averred that he would have been willing to testify that he was with
Walker on May 31, 2009, after 11:30 p.m., and Walker’s trial counsel never contacted him.
¶ 10 Also attached to the petition was Gaston’s affidavit in which he stated, among other things,
he and Walker left a tattoo party and then “drove down the 6100 block of [S]outh Hermitage
Avenue and mother’s car was shot at.” He drove toward his house “and let [Walker] out of the car
in front of 6235 S. Paulina Avenue, so he could join some friends on the porch, then I parked
1
Count II of Walker’s petition asserted a claim of actual innocence, which the circuit court
dismissed. Walker does not press his actual innocence claim on appeal.
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No. 1-19-0125
across the street near 61st and Paulina.” Clint Massey was among the people on the porch “when
Kevin joined them.”
¶ 11 The circuit court entered a written order summarily dismissing Walker’s petition. The
circuit court observed that Walker’s ineffective assistance of counsel claim was waived because
he pursued a different ineffective assistance of counsel claim on direct appeal. Waiver aside, the
circuit court found that Walker failed to show he was prejudiced by his counsel’s failure to contact
Massey. The circuit court found that while Massey “provides an account for petitioner’s
whereabouts at approximately 11:30 p.m., he does not have an accounting of where he was before
that time,” and noted that Officer Valadez responded to the area where he was shot shortly after
starting his shift at 11 p.m. Massey’s affidavit, therefore, did not exclude Walker from the scene
of the shooting, and even if Massey’s statement was presented at trial, “it is unlikely that the results
of the proceedings would have changed.”
¶ 12 Walker filed a timely notice of appeal.
¶ 13 II. ANALYSIS
¶ 14 On appeal, Walker argues that his postconviction petition stated an arguable claim of
ineffective assistance of counsel. He asserts that his petition set forth an arguable claim that his
trial counsel’s performance fell below an objectively reasonable standard because Massey was
disclosed as a potential alibi witness prior to trial and trial counsel had Massey’s contact
information, but counsel never investigated or called Massey as a potential alibi witness. He further
asserts that he presented an arguable claim that he was prejudiced by his trial counsel’s deficient
performance because presenting alibi evidence would have increased the chance of acquittal. He
argues that there were no eyewitnesses that identified him, he was convicted on an accountability
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No. 1-19-0125
theory, and he had argued at a suppression hearing that his videotaped inculpatory statements were
the product of police coercion.
¶ 15 The Act provides a three-stage process for postconviction petitions. At the first stage, the
circuit court reviews the petition and, accepting the petition’s allegations as true, “determines
whether ‘the petition is frivolous or is patently without merit.’ ” People v. Tate, 2012 IL 112214,
¶ 9 (citing People v. Hodges, 234 Ill. 2d 1, 9 (2009)). Summary dismissal is only appropriate where
the petition “has no arguable basis either in law or in fact.” Id. “ ‘[A] petition alleging ineffective
assistance may not be summarily dismissed if (i) it is arguable that counsel’s performance fell
below an objective standard of reasonableness and (ii) it is arguable that the defendant was
prejudiced.’ ” (Emphases in original.) Tate, 2012 IL 112214, ¶ 19 (quoting Hodges, 234 Ill. 2d at
17).
¶ 16 If a petition is not dismissed as patently frivolous or without merit, it proceeds to the second
stage. The circuit court then “must determine if the petition and any accompanying documentation
make ‘a substantial showing of a constitutional violation.’ ” Id. ¶ 10 (quoting People v. Edwards,
197 Ill. 2d 239, 246 (2001)). In the context of ineffective assistance of counsel claims, “it is
appropriate [at the second stage] to require the petitioner to ‘demonstrate’ or ‘prove’ ineffective
assistance by ‘showing’ that counsel’s performance was deficient and that it prejudiced the
defense.” Id. ¶ 19. If the petitioner fails to make such a showing, the petition is dismissed. Id. ¶ 10.
But if the petitioner makes a substantial showing of a constitutional violation, the petition advances
to the third stage where the circuit court holds an evidentiary hearing. Id.
¶ 17 Here, the circuit court summarily dismissed Walker’s petition at the first stage. Our review
of the circuit court’s judgment is de novo. Id.
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¶ 18 We find that Walker’s petition did not present an arguable claim that he was prejudiced by
his counsel’s allegedly deficient performance. We found on direct appeal that the evidence of
Walker’s guilt was “overwhelming.” Walker, 2017 IL App (1st) 141036-U, ¶ 47. We found that
“The evidence of defendant’s guilt was not closely balanced. Multiple witnesses
identified the car involved in the shooting as a four-door grey or blue car, and
Officer Lopez identified the make as a Pontiac. A four-door grey or blue Pontiac
was found parked a few blocks away approximately an hour after the shooting and
it was registered to Gaston’s mother. Several witnesses to the shooting identified
Gaston’s car as the shooter’s car. Earlier that day, Gaston and defendant were pulled
over by Illinois State Police in that car, and Gaston’s mother stated it was still in
Gaston’s possession at 9:30 p.m. on May 31. Defendant’s statement put him and
Gaston together getting tattoos at 10:00 p.m., which was corroborated by Gibbons,
who saw them at his house around that time. Furthermore, defendant admitted in
his videotaped statement that he was in Gaston’s car when they were shot at, that
he and Gaston went to get a gun, that when Gaston returned with a gun, Gaston told
him to drive, he willingly drove Gaston back to the location of shooting, knowing
that Gaston was going to shoot at someone, and he drove slowly while Gaston fired
a gun from the moving car. As explained above, the State established that the bullets
recovered from Officer Valadez’s body and the cartridge casings recovered from
the scene of the shooting and Gaston’s car were fired from the guns recovered from
Gaston’s trunk. Defendant’s fingerprint and DNA were found on the .40–caliber
semi-automatic pistol recovered from the trunk of Gaston’s car. Defendant made
his videotaped statements to police at around 6:30 p.m. on June 1, 2009. After being
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Mirandized, he was shown Gaston’s videotaped statement. Defendant made
multiple statements in which he admitted that that he was the willing driver of the
car at the time Officer Valadez was shot and killed and the attempted murder of
Thomas took place. Defendant fully corroborated the State’s evidence as it related
to the fatal shooting of Officer Valadez. Under an accountability theory, ‘a person
is legally responsible for the conduct of another person when, either before or
during the commission of an offense, and with the intent to promote or facilitate
the commission of the offense, he knowingly solicits, aids, abets, agrees to aid, or
attempts to aid the other person in the planning or commission of the offense.’ 720
ILCS 5/5-2(c) (West 2014).” Id.¶ 19 Walker’s petition does not state an arguable claim that he was prejudiced by his counsel’s
allegedly deficient performance because there is no possibility that investigating or calling Massey
as an alibi witness would have changed the outcome of the trial. Walker’s inculpatory statements
to police squarely placed him in the driver’s seat of Gaston’s mother’s car at the time of the
shooting. Walker explained to police that Gaston drove home to get a gun after someone shot at
the car. When Gaston returned to the car, he told Walker to drive, and Walker did so. Walker stated
that he knew Gaston would shoot the gun and explained that he drove slowly while Gaston fired
several shots from the car. Presenting an alibi witness to contradict Walker’s own voluntary
statements about his whereabouts would not have changed the outcome at trial.
¶ 20 Walker cites People v. Cleveland, 2012 IL App (1st) 101631 to support his assertion that
putting on an alibi witness would have increased his chances of acquittal. Cleveland is
distinguishable because that case did not involve a defendant that made voluntary inculpatory
statements acknowledging his involvement in the crime. In his appellate brief, Walker argues
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“[t]he most damaging piece of evidence was Walker’s videotaped statement, which he alleged at
a pre-trial suppression hearing was the product of coercion.” The record citation he provides in his
appellate brief does not support this assertion, although it is clear from the record that Walker filed
a pretrial motion to, among other things, suppress the statements he made to police. His
suppression motion was denied after a hearing, and he did not seek reversal of that decision in his
direct appeal. We reject Walker’s assertion that there is any doubt about the voluntariness of his
statements.
¶ 21 Walker further asserts that he was convicted on an accountability theory and nothing in his
statements to police suggests that he “knew the codefendants were going to fire guns out the
window of the vehicle.” That assertion is directly contradicted by Walker’s statement to police
that he knew that Gaston would “probably shoot but he probably wouldn’t try to hit nobody.”
Walker clearly acknowledged that he knew Gaston intended to fire the gun. Furthermore, Walker
acknowledged that he drove the car slowly while Gaston fired the gun, and then drove with Gaston
to dispose of the gun used in the shooting.
¶ 22 Under the circumstances here, and given the trial record, we find that Walker’s petition
does not present an arguable claim that he was prejudiced by his counsel’s failure to investigate
Massey as a potential alibi witness where the evidence at trial—especially Walker’s own
inculpatory statements placing him in the driver’s seat of vehicle at the time of the shooting—
overwhelming established Walker’s guilt. We therefore affirm the circuit court’s judgment
summarily dismissing Walker’s petition at the first stage.
¶ 23 III. CONCLUSION
¶ 24 For the foregoing reasons, the judgment of the circuit court is affirmed.
¶ 25 Affirmed.
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