People v. Ewing , 2024 IL App (1st) 220474-U ( 2024 )

2024 IL App (1st) 220474-UFIFTH DIVISION
May 31, 2024
No. 1-22-0474
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
Plaintiff-Appellee, ) Cook County.
)
v. ) No. 16 CR 5260
)
DEMARRED EWING, ) Honorable
) Ursula Walowski,
Defendant-Appellant. ) Judge presiding.
JUSTICE MIKVA delivered the judgment of the court.
Justices Lyle and Navarro concurred in the judgment.
ORDER
¶1 Held: Defendant’s conviction is affirmed. After remand for a Krankel hearing, defendant
cannot show there was a reasonable probability that he would have accepted the
State’s plea offer if he received effective assistance of counsel.
¶2 Following a jury trial, defendant Demarred (also referred to as Demarrio and Demarreio)
Ewing was found guilty of attempted murder and aggravated battery with a firearm. He was
sentenced on the attempted murder count to 30 years in prison. Following this court’s remand for
a hearing pursuant to People v. Krankel, 102 Ill. 2d 181 (1984), the trial court denied Mr. Ewing’s
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motion for a new trial. On appeal, Mr. Ewing argues the trial court erred in denying his motion, as
his trial counsel failed to adequately review the video evidence against him and gave him an
inaccurate impression of the State’s case, causing him to reject a favorable plea offer that he would
have otherwise accepted. For the reasons that follow, we affirm.
¶3 I. BACKGROUND
¶4 Mr. Ewing was charged by indictment with five counts of attempted murder, one count of
aggravated battery, and one count of aggravated unlawful restraint in connection with the shooting
of Kevin Flint on February 19, 2016. The State proceeded to trial on one count each of attempted
murder while armed with a firearm (720 ILCS 5/8-4(a), 720 ILCS 5/9-1(a)(1) (West 2016)) and
aggravated battery with a firearm (720 ILCS 5/12-3.05(1) (West 2016)). The remaining counts
were nol-prossed.
¶5 A. Plea Discussions
¶6 On the day of trial, the State offered Mr. Ewing a plea deal of 12 years in prison in exchange
for a guilty plea on the lesser charge of aggravated battery with a firearm. Defense counsel
informed the court of the plea offer. The court admonished Mr. Ewing that, if he proceeded to trial,
he would be facing a minimum sentence of 21 years in prison. It also admonished him that he was
under no obligation to accept the offer of 12 years on the lesser offense but, if he did not accept it,
a term of 12 years would no longer be possible.
¶7 The court passed the case to allow Mr. Ewing time to discuss the offer with his counsel.
When proceedings reconvened later that day, the parties informed the court that they were ready
for trial. The State asked the court to re-admonish Mr. Ewing, which it did, informing him that he
faced a minimum sentence of 26 years in prison for attempted murder with a firearm. Mr. Ewing
confirmed that he understood.
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¶8 B. Trial and Initial Appeal
¶9 At trial, Mr. Flint testified that when the shooting occurred, he had known Mr. Ewing,
whom he identified in court, for over a year and knew him at that time only as “Rio.” Mr. Flint
occasionally worked as a mechanic. On the day before the shooting, Mr. Ewing contacted Mr.
Flint, who agreed to fix a flat tire and the door of Mr. Ewing’s vehicle. Mr. Flint received partial
payment from Mr. Ewing.
¶ 10 The next day, Mr. Flint made plans to meet Mr. Ewing to return the keys to the vehicle.
Mr. Flint had put a new tire on Mr. Ewing’s vehicle but could not fix the door. Mr. Flint met Mr.
Ewing and they went to a liquor store on 94th Street and Cottage Grove Avenue. After purchasing
liquor, they stood on the sidewalk outside the store drinking. Mr. Flint asked Mr. Ewing for more
money for the work he did on Mr. Ewing’s vehicle. Mr. Ewing never really answered. Eventually,
Mr. Flint started toward a bus stop about 20 feet away, then turned around, came back, and again
asked Mr. Ewing for payment.
¶ 11 Mr. Ewing pulled a firearm out of his right jacket pocket and shot at Mr. Flint two or three
times, hitting him in the right thigh and left side of his groin. Mr. Ewing then ran away. When the
police arrived, Mr. Flint told them “Rio” had shot him. He also told the police where Mr. Ewing’s
vehicle was parked and that Mr. Ewing might be found going to the vehicle.
¶ 12 The State then referenced video cameras located inside and outside the liquor store.
Following a sidebar, the court overruled defense counsel’s objection for a lack of foundation. The
State, over defense’s objection, then published and submitted three videos into evidence from the
liquor store’s surveillance cameras, two showing the inside of the store and one showing the
sidewalk outside it.
¶ 13 Mr. Flint identified himself and Mr. Ewing in the videos. In the video clip showing the
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outside of the store, Mr. Flint identified where Mr. Ewing “just shot me and ran.” When Mr. Flint
was released from the hospital five days after the shooting, he identified Mr. Ewing in a photo
array.
¶ 14 On cross-examination, Mr. Flint confirmed that he was in custody and had two pending
cases being prosecuted by the State. On redirect examination, he testified that he had not been
promised anything by the State to testify and no deals had been made regarding his case.
¶ 15 In closing arguments, defense counsel referenced the video depicting the shooting and
argued that “[y]ou can’t see anyone’s face in the video.” Counsel elaborated that “[y]ou can’t see
the shooter’s face, you can’t see [defendant’s] face” and “[f]rom far away it’s grainy and it’s no
way to identify the people in the video.” Counsel also argued that Mr. Flint had an “elaborate
story” about fixing Mr. Ewing’s vehicle that “[didn’t] make any sense,” he was facing pending
charges in a different case, and the bottom line was that “we have to take” his word for everything.
¶ 16 The jury found Mr. Ewing guilty of attempted murder and aggravated battery. The trial
court merged the aggravated battery count into the attempted murder count and sentenced him to
30 years in prison.
¶ 17 Mr. Ewing appealed. On January 30, 2020, this court granted the parties’ agreed motion
for summary disposition and remanded the case with instructions to the trial court to conduct a
Krankel hearing. People v. Ewing, 1-17-2318 (Jan, 30, 2020) (disposition order).
¶ 18 C. Proceedings on Remand
¶ 19 On remand, Mr. Ewing filed a pro se motion alleging that his trial counsel provided
ineffective assistance by withholding “actual video footage that the State had against” him. He
asserted that his counsel had shown him two clips of the video footage, “stating that the video was
only in black and white” and that it “did not show the defendant in the video.” However, different
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video footage was shown at trial, including multiple clips showing him clearly. Mr. Ewing asserted
that his trial counsel “lied to him” by stating that there was no evidence against him because he
did not appear in the video footage. Mr. Ewing stated he rejected the plea offer because he believed
that the State had no incriminating evidence against him, and, had counsel shown him the actual
video footage, “the case may have never proceeded to trial.” The trial court appointed Mr. Ewing
counsel to review the allegations and file a motion for a new trial.
¶ 20 Mr. Ewing’s Krankel counsel filed a supplemental motion requesting a new trial. In the
motion, Mr. Ewing asserted that his trial counsel showed him only a small part of the video content
tendered by the State. The part he was shown was in black and white and not clear. Based on what
he saw, he rejected the plea offer. However, at trial, the State introduced videos of the interior of
the liquor store that were in color and clearly showed Mr. Ewing’s face, which had not been shown
to him. Mr. Ewing contended that, had he been shown the complete video that was shown to the
jury, he would have been able to make an informed decision to take the plea offer instead of making
a decision based on incomplete and distorted information.
¶ 21 Mr. Ewing alleged his trial counsel was ineffective when she failed to show him accurate
and complete images from the video evidence provided by the State before he made the decision
to reject the plea offer. Because of counsel’s failure to adequately inform him of the evidence
against him, he rejected an offer of 12 years in prison on a lesser charge and instead chose to go to
trial. It would have been reasonable under the circumstances for him to take the plea, since the
video evidence was fatal to his defense and the minimum sentence, if he was found guilty after
trial, was greater than the 12-year offer. Mr. Ewing argued that, due to his trial counsel’s ineffective
representation, he received a 30-year sentence.
¶ 22 At the hearing on his motion, Mr. Ewing testified that his trial counsel showed him three
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black and white video clips, about two to three minutes each, on a laptop prior to trial, and one
“couldn’t really make out a face in the video.” Mr. Ewing never viewed them on a larger screen
prior to trial. The State made the plea offer after he had viewed the videos on the laptop, and he
made his decision to reject that offer based on “what [he] saw and what [he] was told” by his
counsel.
¶ 23 Mr. Ewing was “under the impression to fight the case” because he was convinced that “it
wasn’t any definite evidence against [him].” From what he was told and saw, in his mind there
was no video evidence linking him to the crime. But at trial, the video shown was longer, clearer,
and in color. In that video, he “was able to see everything.” Mr. Ewing would have pled guilty had
he seen that video prior to trial.
¶ 24 On cross-examination, Mr. Ewing confirmed that, after he viewed the video on the laptop,
his counsel informed him that Mr. Flint had identified him in a photo array as the person who shot
him. Mr. Ewing also testified on cross-examination that after he received the plea offer he asked
his counsel whether, if he went to trial, he would be found guilty of the “higher” charge of
attempted murder or the lesser charge of aggravated battery, given that “the victim was hit below
the belt.” Counsel told him that there “should be no reason that a jury would find [him] guilty” of
attempted murder and, if he was found guilty of the aggravated battery, the most he would be
sentenced to would be 15 years in prison. Counsel told him that the sentencing range for the
aggravated battery was 6 to 30 years, but he would most likely receive a 15-year sentence. Mr.
Ewing testified that his trial counsel “assured” him that if he was found guilty, the most he would
get would be 15 years.
¶ 25 On redirect examination, Krankel counsel played portions of Defense Exhibit No. 4, part
of which was the surveillance videos from outside the store, on a laptop. Mr. Ewing confirmed
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that this was how he had viewed the videos he saw in the jail. Counsel played one video clip from
Exhibit No. 4, identified as the footage from camera 16, and Mr. Ewing confirmed that he had
viewed this video in jail, and that it was in black and white and did not depict any faces clearly.
¶ 26 On recross-examination, Mr. Ewing acknowledged that prior to rejecting the plea he had
viewed at least two videos taken from inside the liquor store but testified that they were not in
color and did not show a whole face. On re-redirect examination, Mr. Ewing confirmed that he
chose to go to trial based on the evidence shown to him. He believed that the same evidence would
be presented at trial, and that the video was one of the main pieces of evidence against him.
¶ 27 Trial counsel, Coryn Steinfeld, testified at the hearing. She testified that, while Mr. Ewing
was in jail, she showed him video footage from the incident using an older laptop. She could not
recall how much of the footage she showed to him. Ms Steinfeld testified that she believed that
Mr. Ewing’s face was more easily recognizable on the video from inside the store when viewed
on the big screen at trial than when it was viewed on the laptop she had shown Mr. Ewing before
trial. Counsel did not recall the video taken outside the store looking different on the big screen
and believed that it was from an angle that did not show any faces. The part that “looked different”
in her view was that Mr. Ewing’s face was visible in the video that was shown at trial taken by the
camera inside the store.
¶ 28 Ms. Steinfeld testified that she advised Mr. Ewing throughout the case and discussed with
him the specifics of each piece of the State’s evidence, including the videos. Mr. Ewing was
present at hearings prior to trial. A larger screen was available in counsel’s office, but she did not
ask permission to show Mr. Ewing the video on the bigger screen prior to trial. Ms. Steinfeld
herself viewed the video on a larger screen for the first time at trial.
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¶ 29 On cross-examination, Ms. Steinfeld confirmed that a laptop was the only means available
to show Mr. Ewing the video in jail. She had informed Mr. Ewing that the victim identified him
and would be testifying at trial. Ms. Steinfeld confirmed that she knew the sentencing range for
aggravated battery with a firearm was 6 to 30 years, and that the sentence could be greater if Mr.
Ewing was found guilty of attempted murder. She denied telling Mr. Ewing that a jury would not
find him guilty of attempted murder and that she could guarantee he would only receive 15 years
in prison if found guilty on the aggravated battery charge. She told Mr. Ewing that they would ask
for aggravated battery with a firearm rather than attempted murder, but she never guaranteed a 15-
year sentence if he went to trial.
¶ 30 On redirect examination, Ms. Steinfeld testified that Mr. Ewing knew about the evidence
against him, and she showed him all the videos she had.
¶ 31 The court examined Ms. Steinfeld, who confirmed that Mr. Ewing had been informed that
he was charged with attempted murder and faced a sentencing range of 6 to 30 years if a jury found
him guilty. Counsel was not positive that the trial court gave Mr. Ewing a “Curry” admonishment,
but counsel had informed Mr. Ewing. Counsel confirmed that she did not guarantee that a jury
would not find Mr. Ewing guilty of attempted murder. Nor did she guarantee that he would only
be sentenced to 15 years in prison.
¶ 32 The two defense exhibits shown at the hearing are included in the record. Defense Exhibit
No. 4, which is labeled and described as the videos that were shown to Mr. Ewing before trial,
includes six videos of about 30 minutes apiece from the surveillance cameras inside and outside
the liquor store. The first four videos are in color and depict various views of the interior of the
liquor store. Of those, Camera 5 shows Mr. Ewing briefly for about 25 seconds walking in an aisle
at the timestamp 8:20 p.m. Camera 10 shows Mr. Ewing and Mr. Flint at the register at the
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timestamp 8:20:30 p.m., where they remain for approximately one minute before exiting. Camera
14 shows Mr. Ewing and Mr. Flint entering the store at timestamp 8:19:34 before they go out of
frame. The last two cameras, 15 and 16, show black and white views of the street in front of the
store, and the sidewalk and street to the side of the store, respectively. Camera 15 briefly shows
two men at the bottom right hand edge of the screen at the timestamp 8:22 p.m., for approximately
30 seconds. However, the figures are quite blurry. Camera 16 shows two men walking up the
sidewalk at timestamp 8:22, then their silhouettes are seen standing on the edge of an empty lot
from a distance, dressed in dark jackets talking on the sidewalk. One figure speaks animatedly to
the other, who just stands at the edge of the lot. The former person walks away at timestamp
8:28:10, then turns around ten seconds later and goes back to talk to the second person again. The
second person, who is still standing at the edge of the lot, shoots the first person and then runs
away through the empty lot.
¶ 33 Defense Exhibit No.5, is labeled on appeal as the videos that were shown at trial. This
exhibit has also been viewed by this court. The substance of the videos is the same as those in
Defense Exhibit No. 4, though edited to show only the relevant portions. One video on the disc is
all six videos cut together from when Mr. Ewing and Mr. Flint entered the store through the
shooting. The quality of the videos is better but, as with Exhibit 4, the videos from inside the store
are much clearer and the videos outside the store, which depict the shooting, are far away and
blurry.
¶ 34 The trial court denied Mr. Ewing’s motion for a new trial. The court stated that it had
reviewed the court record, viewed the videos shown to the jury, and viewed the videos shown to
Mr. Ewing on a laptop. The court agreed that the video was clearer on a big screen than on a laptop
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in black and white. However, it found that whether the jury could identify Mr. Ewing from the
video was not clear at all. Further, the evidence also included the victim’s identification of Mr.
Ewing and Mr. Ewing knew the victim would be testifying and identifying him, and that the victim
had previously identified him in a photo array.
¶ 35 The court found the fact that the video footage was clearer on a big screen and counsel had
not shown it to Mr. Ewing on a large screen was not ineffective assistance. The court found Ms.
Steinfeld had shown Mr. Ewing all the evidence and discussed the case and Mr. Ewing’s options.
¶ 36 The court found Mr. Ewing’s testimony that Ms. Steinfeld guaranteed Mr. Ewing a specific
outcome was not credible. As Mr. Ewing stated, counsel advised him that they would try to “go
for” aggravated battery with a firearm instead of attempted murder, but counsel could not and did
not guarantee that outcome for him. The trial court concluded that Mr. Ewing rejected the plea
because he incorrectly thought the maximum sentence he would get after trial would be 15 years.
¶ 37 II. JURISDICTION
¶ 38 The trial court denied Mr. Ewing’s motion for a new trial on March 16, 2022, and Mr.
Ewing filed his notice of appeal on March 28, 2022. We have jurisdiction over this appeal under
article VI, section 6, of the Illinois Constitution (Ill. Const. 1970, art. VI, § 6) and Illinois Supreme
Court Rules 603 (eff. Feb 6, 2013) and 606 (eff. July 1, 2017), governing appeals from final
judgments in criminal cases.
¶ 39 III. ANALYSIS
¶ 40 On appeal, Mr. Ewing argues that Ms. Steinfeld provided ineffective assistance by failing
to adequately review the State’s evidence, which resulted in him having an inaccurate impression
of the strength of the State’s case that caused him to reject a favorable plea that he would have
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otherwise accepted.
¶ 41 Here, Mr. Ewing raised a pro se posttrial claim of ineffective assistance of counsel, and,
following a preliminary hearing pursuant to Krankel, 102 Ill. 2d 181, on remand, the trial court
properly appointed new counsel to represent him at the second-stage adversarial hearing on his
ineffective assistance claims. See People v. Reed, 2018 IL App (1st) 160609, ¶ 49 (if allegations
during a preliminary Krankel hearing demonstrate possible neglect of the case, new counsel should
be appointed to represent defendant at the second-stage hearing).
¶ 42 The State contends that we may overturn the trial court here only if the decision is
manifestly erroneous, citing People v. McCarter, 385 Ill. App. 3d 919, 941 (2008). However, we
agree with Mr. Ewing that this case and that standard apply to the trial court’s decision to appoint
new counsel for a Krankel hearing, which is not before us. Where, as here, there has been an
evidentiary hearing on whether a criminal defendant received ineffective assistance of counsel,
our standard of review depends on whether we are reviewing a determination of law or of fact.
People v. Velasco, 2018 IL App (1st) 161683, ¶ 137. We defer to the court’s findings of fact and
will disturb them only if they are against the manifest weight of the evidence, but we review de
novo the court’s ultimate determination of whether counsel rendered ineffective assistance. Id.¶ 43 The right to effective assistance of counsel extends to the plea bargaining process. People
v. Hale, 2013 IL 113140, ¶ 15. A criminal defendant’s claim of ineffective assistance of counsel
in the plea bargaining context is evaluated under the two-prong standard set forth in Strickland v.
Washington, 466 U.S. 668 (1984). Id.¶ 44 To prove a claim of ineffective assistance of counsel under Strickland, a defendant must
show (1) that counsel’s performance fell below an objective standard of reasonableness, and (2)
that counsel’s deficient performance prejudiced the defendant. Id. A defendant must satisfy both
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prongs of the Strickland standard to prevail on an ineffective assistance of counsel claim. People
v. Pingelton, 2022 IL 127680, ¶ 53. We therefore may dispose of an ineffective assistance of
counsel claim under the prejudice prong without addressing counsel’s performance. Hale, 2013 IL
113140, ¶ 17. Here, we proceed directly to the prejudice prong.
¶ 45 To establish prejudice in the context of a guilty plea, a defendant must show that there is a
reasonable probability that, had he received effective assistance of counsel, he would have
accepted the State’s plea offer, that his guilty plea would have been accepted, and that he would
have ultimately received a more favorable sentence than was actually imposed. Id. ¶¶ 18-19.
However, if the defendant cannot establish the first requirement, that there was a reasonable
probability he would have accepted the State’s plea offer had counsel’s performance not been
deficient, then we need not address the remaining factors. Id. ¶ 21.
¶ 46 A showing that a defendant would have accepted the plea offer must go beyond the
defendant’s “subjective, self-serving” testimony. Id. (internal quotation marks omitted). Rather,
this court must also find “independent, objective confirmation that defendant’s rejection of the
proffered plea was based upon counsel’s erroneous advice.” Id. ¶ 18 (quoting People v. Curry, 178
Ill. 2d 509, 532 (1997)).
¶ 47 To make the required showing of prejudice, Mr. Ewing contends that based on his review
of the videos he believed he had a chance to beat the case because it boiled down to just his word
against Mr. Flint’s. He knew that Mr. Flint had credibility issues because of his two prior felony
convictions and two pending felony charges. We agree with the trial court that this is insufficient
to establish prejudice.
¶ 48 There is nothing in this record that establishes a reasonable probability that, had counsel
reviewed the videos in color on a bigger screen or showed Mr. Ewing himself the videos on the
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big screen, he would have accepted the plea offer. See Hale, 2013 IL 113140, ¶ 21 (“[I]n order to
establish the prejudice prong of Strickland, a defendant must show that he would have accepted
the State's plea offer had counsel's performance not been deficient.”).
¶ 49 Before rejecting the plea, Mr. Ewing saw the surveillance video footage from both inside
and outside the liquor store where the shooting took place. That footage showed a shooting took
place outside the liquor store and also showed two men in the liquor store just before that shooting.
While it is not entirely clear from this record how many or how much of the videos that are part
of Exhibit 4 were shown to Mr. Ewing prior to trial, it is clear that he knew that those videos
existed. His trial counsel also informed him that Mr. Flint identified him in a photograph array,
and that Mr. Flint would testify and identify him at trial. Based on the evidence shared with Mr.
Ewing prior to trial, the case against him for shooting Mr. Flint was strong, regardless of the quality
of the videos. The enhanced quality of the videos on the larger screen did not materially change
the strength of the State’s case.
¶ 50 Mr. Ewing’s claim that knowing the true quality of the videos would have changed his
plea is further undermined by his testimony that he rejected the plea under the mistaken belief that,
if he went to trial and was convicted, he would only be convicted of aggravated battery and
sentenced to 15 years in prison, three years more than the plea offer. Mr. Ewing claimed at the
Krankel hearing that his trial lawyer “assured” him that if he went to trial and lost, he would only
get 15 years. His trial lawyer denied making any such guarantee as to the outcome of the trial and
sentencing and the trial court found Mr. Ewing’s claim that she had guaranteed such an outcome
to be not credible. The trial court concluded, that it was Mr. Ewing’s mistaken belief that he would
only get 15 years that motivated him to reject the plea. We agree with that finding by the trial
court, whether we view it as a factual finding, to be reversed only if it is against the manifest weight
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of the evidence, or as a legal finding that there was no ineffective assistance, in which case we
would determine it de novo. The record is clear that there was no showing of prejudice in this case.
¶ 51 In sum, Mr. Ewing’s claim of ineffective assistance of counsel fails under the prejudice
prong of the Strickland standard.
¶ 52 IV. CONCLUSION
¶ 53 For these reasons, the judgment of the trial court is affirmed.
¶ 54 Affirmed.
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