People v. Flemming , 2015 IL App (1st) 111925-B ( 2015 )

Illinois Official Reports
Appellate Court
People v. Flemming, 2015 IL App (1st) 111925-B
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption RON FLEMMING, Defendant-Appellant.
District & No. First District, Fifth Division
Docket No. 1-11-1925
Filed May 1, 2015
Decision Under Appeal from the Circuit Court of Cook County, No. 10-CR-5491; the
Review Hon. Vincent M. Gaughan, Judge, presiding.
Judgment Affirmed; remanded.
Counsel on Michael J. Pelletier, Alan D. Goldberg, and Christopher L. Gehrke, all
Appeal of State Appellate Defender’s Office, of Chicago, for appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Amy M. Watroba, and Michele Lavin, Assistant State’s Attorneys, of
counsel), for the People.
Panel PRESIDING JUSTICE PALMER delivered the judgment of the court,
with opinion.
Justices McBride and Reyes concurred in the judgment and opinion.
OPINION
¶1 Following a bench trial, the trial court found defendant Ron Flemming guilty of second
degree murder and aggravated battery and sentenced him to 20 years’ imprisonment. On
appeal, defendant argues that the court erred in (1) finding him guilty of second degree murder
where the State failed to disprove he acted in self-defense, (2) finding him guilty of aggravated
battery and (3) failing to conduct an adequate inquiry regarding his pro se ineffective
assistance claim.
¶2 In People v. Flemming, 2014 IL App (1st) 111925, filed August 15, 2014, we affirmed the
convictions and remanded for sentencing on the aggravated battery conviction. On April 21,
2015, pursuant to Illinois Supreme Court supervisory order, we vacated our judgment in order
to reconsider it in light of People v. Jolly, 2014 IL 117142, to determine whether a different
result is warranted. People v. Flemming, No. 118371 (Ill. Jan. 28, 2015) (supervisory order).
Upon reconsideration, we find that Jolly changes our original decision. We, therefore, affirm
the convictions and remand for sentencing on the aggravated battery conviction and for a new
preliminary Krankel (People v. Krankel, 102 Ill. 2d 181 (1984)) hearing, with directions.
¶3 BACKGROUND
¶4 The record shows that defendant was charged by grand jury indictment with four counts of
first degree murder arising from the February 17, 2010, stabbing death of Steve Nabry. He was
also charged with one count of attempted first degree murder and three counts of aggravated
battery arising from the stabbing of Gerald Gushiniere on the same date. The State nol-prossed
two of the first degree murder counts and the three aggravated battery counts.
¶5 At the bench trial, Gushiniere testified that he was currently in custody on a residential
burglary charge. It was his understanding that, in exchange for his truthful testimony in
defendant’s case, the State’s Attorney’s office would recommend a three-year sentence on a
reduced charge of burglary in his case. Gushiniere testified that he and his friend Nabry were
walking to Nabry’s house on February 17, 2010, to pick up a movie to watch at Gushiniere’s
apartment. They encountered defendant, whom Gushiniere knew “from the neighborhood,”
and a woman, subsequently identified as Yolanda McElroy. The four went to Gushiniere’s
studio apartment where Nabry, McElroy and defendant sat on the couch and smoked “crack.”
Gushiniere stated he sat on the bed drinking water. He denied telling defense counsel that he
had been drinking alcohol.
¶6 Gushiniere testified that he was not smoking crack but at some point left with defendant “to
get some more crack,” leaving Nabry and McElroy at the apartment. Gushiniere stated it was
light outside when he and defendant left the apartment to buy more crack. When defendant and
Gushiniere returned “four or five minutes” later, they did not see Nabry and McElroy.
Gushiniere testified that defendant knocked on the bathroom door, “busted in on them in the
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bathroom” and Nabry and McElroy came out of the bathroom. Gushiniere did not know what
McElroy and defendant were doing in the bathroom or whether they had their clothes on. He
admitted that he never told police officers about going to pick up drugs with defendant and
defendant “busting” on the bathroom door and rousting Nabry and McElroy.
¶7 Gushiniere testified that defendant, Nabry and McElroy “just went and got back on the
couch” and started smoking crack again. When defendant and McElroy started arguing over
her crack pipe, Gushiniere asked defendant to leave but defendant told him to “stay out of it.”
McElroy told him she did not feel safe with defendant so Gushiniere again asked defendant to
leave. Defendant then “ran up on” Gushiniere with a knife he had pulled from his pocket and
started cursing at him. Gushiniere testified defendant had pulled a folding knife from his
pocket but admitted telling the grand jury that defendant had a different kind of knife, a knife
“with multiples tools on it, a screwdriver with a file and you can bend it over and make tracks
with it.” Defendant held the knife by his side.
¶8 Gushiniere got a weight pole from the closet, defendant “grabbed the pole” from him and
they began to wrestle over the pole. Gushiniere testified that he pushed defendant with the pole
and managed to get him out of the apartment by swinging the pole at him to scare him.
Defendant still had his knife. Gushiniere stated Nabry was not involved in ejecting defendant
but admitted that he had made an earlier statement that Nabry had assisted in ejecting
defendant. Outside the apartment, Gushiniere and defendant continued to fight over the pole
and yelled at each other. Defendant still held his knife. Police officers approached the men. At
the officers’ direction, he left the pole and went back to his apartment. Gushiniere testified it
was still light outside. He denied telling the officers that he had picked the pole up off the street
to defend himself.
¶9 Gushiniere stated that, five minutes later, he, Nabry and McElroy were talking when a loud
knock came at the door. He thought it was his mother because he had not “buzzed” anyone into
the building and his mother was the only person with a key to the building. Gushiniere testified
that he went unarmed to the door to let his mother in, even though she had her own key. Nabry
was by his side. McElroy was still on the couch. He did not hear pounding or yelling.
¶ 10 Gushiniere testified that “[n]ext thing I know, I opened the door and he [defendant] stabbed
Steve Nabry in the chest and I hopped in front.” He testified that Nabry had approached the
door before he opened it and neither he nor Nabry had anything in their hands. Gushiniere
stated that when he opened the door, he saw defendant standing there holding a knife and saw
defendant immediately stab Nabry in the chest. Gushiniere testified that he “hopped in front [of
Nabry] and told [defendant] he can’t stab Steve Nabry no more.” Defendant then stabbed
Gushiniere in the back and in his left arm. Gushiniere thought that defendant then pushed him
onto Nabry. All three men fell onto the floor “at my house.” Defendant kept stabbing Nabry.
¶ 11 Gushiniere stated he then picked up a weight and/or a weight pole (barbell) and started
hitting defendant “in the head” and “in the face” with it. Gushiniere kept hitting defendant but
defendant kept stabbing Nabry, who was trying to get up off the floor. Gushiniere stated that,
when Nabry fell, Nabry had also “grab[bed]” a part of a weight pole with which to hit
defendant. While still on the floor of the apartment, defendant stabbed Gushiniere in his back
again. Gushiniere testified that, while in the apartment, defendant had stabbed him six times, in
his right arm, left arm, shoulder and back.
¶ 12 Gushiniere testified variously that he pushed defendant toward the stairs, he and Nabry
pushed defendant toward the stairs and Nabry did not help get defendant down the stairs.
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Gushiniere saw McElroy coming out of the apartment when the three men were on the stairs.
He chased defendant down the interior building stairs and out of the building. After Gushiniere
had chased defendant outside, Nabry managed to get off the floor and come into the hallway of
the building but fell there bleeding. He died before the police arrived. Gushiniere testified that
he was taken to a hospital, where his wounds were “sewed up” and he stayed in “special care”
for “one day” or “one night.”
¶ 13 On cross-examination, Gushiniere explained that he originally told detectives that he did
not know what drug defendant, Nabry and McElroy had been smoking because he did not learn
until later the drug was crack. Gushiniere stated he was currently taking a medication named
Risperdal, prescribed for him when he arrived at Cook County jail. Before that, “in the outside
world,” he had been taking Abilify, an anti-psychotic medication, which stopped him from
seeing and hearing things that were not there. He had taken the Abilify regularly as he was
supposed to.
¶ 14 Gushiniere stated that defendant had a knife in the hallway and ran out of the building still
holding a knife. He did not know why there was a knife, shown in defense exhibit No. 3, inside
his front door. He did not know whether the knife defendant brandished when the door opened
was the same folding knife with which he had threatened Gushiniere earlier. He identified
defense exhibit No. 3 as the knife defendant used to stab him and Nabry. Neither he nor Nabry
had used the knife in defense exhibit No. 3.
¶ 15 The tool pictured in defense exhibit No. 5 was his own knife and had been lying on the
floor of his apartment. Neither Nabry nor he used it against defendant. Gushiniere testified that
the knife defendant had first pulled on him inside the apartment was a green pocket knife and
defendant used the same knife when he came back to the apartment. He stated that neither he
nor Nabry had a knife that evening. Gushiniere identified defense exhibit No. 7 as a
photograph of the two parts of the weight pole with defendant’s blood on them and a dumbbell.
He stated that he and Nabry each held part of a weight pole and he also held the dumbbell but
denied hitting defendant with the dumbbell. He identified a bottle of “Dom Julio” as alcohol he
kept in his apartment as a souvenir.
¶ 16 Officer Torreno Cobb testified that, on February 17, 2010, at 11 p.m., he and two other
officers were riding in an unmarked squad car. It was night and dark outside, but the area was
well lit. The officers saw two men, one chasing the other with a pole in his hand, and stopped to
speak to them. Cobb identified Gushiniere as the man running with the pole and defendant as
the man being chased. He did not see Gushiniere actually swing the pole and saw no pushing
and shoving. The officers took the five-pound pole away from Gushiniere and placed it in the
squad car. They patted down defendant but found no weapons. It appeared to Cobb that
defendant was under the influence “of maybe alcohol.” Defendant was aggressive while Cobb
was attempting to interview him and “yelling back and forth” to Gushiniere. Cobb told
Gushiniere to go home and defendant to go home in the opposite direction and not return to
Gushiniere’s apartment. Cobb kept the pole in his custody but turned it over to detectives when
he heard a stabbing had taken place. Cobb testified that Gushiniere told him he ran from
defendant and picked the pole off the street to protect himself.
¶ 17 The parties stipulated that the medical examiner, Tara Jones, would testify that Nabry had
stab wounds in the right upper and left side of his chest as well as abrasions, he died as a result
of the multiple stab wounds and his death was a homicide. Toxicologist Peter Koin would
testify that a toxicologic analysis of Nabry’s blood showed it contained “a significant amount
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of cocaine,” a byproduct of cocaine named benzoylecgonine and morphine. Evidence
technician William Buglio would testify that he processed the crime scene and inventoried,
inter alia, blood samples found on the first, second and third floors, a 25-pound hand weight, a
crack pipe, a 33-inch-long metal pipe with a suspected bloodstain, two other pipes with
suspected bloodstains, a Leatherman pocket tool and a kitchen knife with a 5-inch blade.
Jennifer Barrett and Christine Creagan of the Illinois State Police crime lab would testify that
they found no fingerprints or presence of blood on the pocket tool. They lastly stipulated that
Gushiniere’s apartment was on the third floor.
¶ 18 Yolanda McElroy testified that on February 17, 2010, she was walking with defendant
when they met Nabry and Gushiniere on the street. It was nighttime and dark. The four of them
went to a third-floor apartment. McElroy stated that there was “stuff” on the floor but did not
remember having to step over a dumbbell, knife or pocket tool to get into the apartment. She
and defendant sat on the couch, Nabry sat on the bed and Gushiniere was in the back of the
apartment. Everyone drank beer and defendant and Nabry smoked crack pipes. “Not long”
thereafter, defendant told her that he had to leave for a few minutes “to go make a run.”
¶ 19 Defendant left with Gushiniere, leaving her alone in the apartment with Nabry. She chatted
with Nabry and then went to the bathroom. While she was in there, Nabry pushed the door
open and came in. He asked her whether they could “hook up and get together.” She told him
no, because she was with defendant, and Nabry “was like okay, I can respect that.” While they
were still in the bathroom talking, defendant and Gushiniere returned to the apartment.
Defendant pushed the bathroom door open, saying “what’s going on in here, what are you
doing.” McElroy testified he “was upset.”
¶ 20 McElroy left the bathroom, followed by Nabry, and defendant then went into the
bathroom. She testified that, “when [defendant] came out of the bathroom he was even more
angrier,” was “yelling” at her and “appeared to be high.” She could tell he was high because his
eyes were glassy and “he was looking and, you know, like acting frantic.” McElroy was sitting
on the couch. Defendant approached, stood over her and “started arguing” with her, asking her
“what did they give you, what did you do?” He started searching her pockets and lunged at her.
Gushiniere “got in the middle” and told defendant to leave her alone. McElroy testified that
Gushiniere and defendant then started a “pushing match.” She saw defendant reach into his
back pocket, pull out a black and gray switchblade knife and hold it at his side. When McElroy
yelled his name and “no,” defendant put the knife back in his pocket.
¶ 21 McElroy testified that, when defendant pulled out the knife, Gushiniere picked up a pole.
After defendant put the knife back in his pocket, he and Gushiniere were wrestling, “tussling”
back and forth, with Gushiniere telling defendant to leave and pushing defendant with the pole,
trying to back him toward the door. McElroy stated that Nabry then started helping Gushiniere
and together they were able to get defendant out of the apartment. Gushiniere also left the
apartment, still holding the pole. McElroy watched through a window and saw Gushiniere and
defendant go to a street corner. They were talking “kind of loud,” arguing or discussing, she
could hear their voices through the window. A police car pulled up. The police officers took
the pole and Gushiniere returned to the apartment.
¶ 22 McElroy testified that she was upset and nervous and asked to borrow a phone so that she
could have someone come and pick her up. She told Gushiniere that defendant “was upset right
now” and she did not want to run into him. Nabry and Gushiniere told her defendant was gone
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but she responded that “no, believe me, he’s not gone.” She had known defendant for three
years and was dating him at the time.
¶ 23 Five minutes after Gushiniere returned, someone started banging on the apartment door.
She had not heard the doorbell ring and no one had buzzed anyone into the apartment building.
McElroy heard defendant’s voice at the door, saying “yo, it’s time to go, let the bitch out of
there, come on out.” She testified defendant kept banging and Nabry and Gushiniere decided to
open the door. She stated one of them, she did not remember which one, picked up an “arm
weight lift [dumb bell]” and the other picked up a weight pole. She did not know who opened
the door.
¶ 24 McElroy testified that, “when the door opened, [defendant] charged at them.” Gushiniere
and Nabry were standing in the doorway and defendant “charged right into them, trying to get
into the apartment.” She stated she “didn’t see anything in his hands.” A fight ensued. McElroy
stated she “[could not] say who did what as far as who hit who where and that kind of thing, but
[defendant] charged at them. [Gushiniere] and [Nabry were] blocking the apartment way and
they were fighting with him to try and get him backwards, to go back out the apartment door.”
They were using their hands to try to get defendant out and she did not see anyone hit him with
the dumbbell.
¶ 25 McElroy testified that Gushiniere and Nabry prevented defendant from coming into the
apartment by wrestling him “backwards” out into the hallway. She did not see them hit him
with anything or him hit them with anything. She walked backwards further into the apartment
away from them. Once the men were in the hallway, she heard “a lot of bumping noises, a lot of
tussling and bumping, and you know, fighting noises.” After a few minutes, she heard
someone moaning “ahh, ooh, he stabbed me.” After all was quiet and she heard the downstairs
door closing, McElroy went into the hallway. She saw Nabry lying on his stomach surrounded
by blood and Gushiniere on his knees, shirtless, with a wound in his back. She did not see any
of the fight happening in the hallway because she did not go out into the hall until the fight was
over.
¶ 26 On cross-examination, McElroy admitted that, although she told the grand jury that she did
not have a case pending at the time of the grand jury hearing, she had actually been arrested for
prostitution the day before the stabbing and had a court date pending when she went before the
grand jury. She stated she had not lied to the grand jury because, although she had a court date,
the case was ultimately dismissed. McElroy acknowledged that she took an antipsychotic
medication named Seroquel as well as other medications for bipolar disorder. She knew she
should not drink alcohol with the medications and had not taken her evening medication on the
day of the incident because she was drinking. McElroy testified that she was not high or tipsy
at the time of the stabbing and was not on her medication.
¶ 27 Defense counsel asked her why, in her statement to police officers, she did not tell them
that defendant and Nabry were smoking crack. McElroy replied that she did not remember
what she specifically told the State’s Attorney or police officers regarding when the smoking
started but that she did tell them about the crack and that the smoking did happen. She admitted
she did not tell the officers that defendant had been “put out” of the apartment with a pole but
that she should have. She admitted she did not tell them defendant had left earlier with
Gushiniere, but she should have told them because “it happened.”
¶ 28 McElroy stated that she was offered crack but politely refused it. She had used drugs in the
past but had “been clean and sober” since she went into treatment on August 12, 2009. When
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she had used drugs in the past, she and defendant would “party with people,” have sex with
other men. When Nabry followed her into the bathroom, he asked her about “partying or trying
to get with” her, i.e., sex, but did not offer her money or drugs for sex. She thought she had told
the police officers about her conversation with Nabry in the bathroom, defendant’s being angry
about it, his going into the bathroom alone and coming out acting differently, “high and irate,”
and his arguing with her about what Nabry might have given her. McElroy admitted telling the
grand jury that defendant lunged at her and Nabry got between them but, in fact, Gushiniere
got between them. She stated she made the error because, at the time of the grand jury, she did
not know Nabry’s and Gushiniere’s names and confused them. She had not reported to police
that Gushiniere had intervened between her and defendant and started pushing defendant out of
the apartment with a pole. She had not seen the knife shown in defense exhibit No. 3 or the
utility knife shown in defense exhibit No. 5 that night. She stated that she had not been offered
“any deals” in exchange for testifying in front of the grand jury.
¶ 29 Defendant testified that, on the evening of February 17, 2010, he and McElroy were on
their way to dinner when they ran into Nabry and Gushiniere on the street. He subsequently
testified that he and McElroy had been on their way to Nabry’s house to see if they could get
high. He had known Nabry for three years. Defendant acknowledged he had no money that
night and was armed with a folding knife. He carried it for protection as he usually did in that
neighborhood.
¶ 30 Defendant asked Nabry for cocaine, Nabry opened his mouth and showed him “a mouth
full of cocaine” and the four went to Gushiniere’s apartment. At the apartment, defendant
smoked cocaine given to him by Gushiniere and a “rock” given to him by Nabry. He testified
he was not high or agitated at the time. Nabry, meanwhile, had bagged up some cocaine,
separating it with a knife. He asked defendant to go with Gushiniere to drop it off but defendant
refused, telling him he did not “do that.” Gushiniere left alone to deliver the package.
¶ 31 Defendant testified that, at some later point, Nabry asked him whether McElroy “freaked
off.” Defendant replied that it was up to McElroy. Nabry then gave McElroy some cocaine, she
smoked it and performed oral sex with Nabry on the bed. Defendant was sitting on the couch.
McElroy took off her clothes and handed them to defendant. He denied that McElroy
performed oral sex in exchange for drugs, stating that he and McElroy were “swinging.”
Gushiniere returned.
¶ 32 Nabry and McElroy then went into the bathroom. Defendant knocked on the door and they
came out. Defendant testified that there was no argument. He merely asked Nabry what was
going on because, when he and McElroy partied, “having sex, two men and one lady,” they did
not separate and it was strange that Nabry took her into the bathroom alone. Defendant stated
that, when Nabry and McElroy went into the bathroom, it did not make him uncomfortable and
did not bother him. He did not like it that his girlfriend went into the bathroom alone with
Nabry and was whispering with Nabry but he just told Nabry that “we started together, we’ll
finish together.” At that point, he, Nabry and McElroy had their clothes off. When he
undressed, defendant had taken his knife from his pocket and put it on the table.
¶ 33 Subsequently, defendant and Gushiniere left the apartment to get more cocaine. Although
the neighborhood was dangerous, defendant left his knife in the apartment because he was with
Gushiniere. After he returned to the apartment with Gushiniere, he did not smoke any more.
McElroy was sitting on the couch and Nabry was standing by the bed. McElroy had her clothes
on but Nabry only had his shirt on. Defendant told McElroy he was ready to go and she
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responded that she had smoothed everything over. Nabry then mentioned $20, and defendant
assumed Nabry had given McElroy drugs that defendant now had to pay for. He and McElroy
put on their coats and got ready to leave. Nabry and Gushiniere then started arguing with
defendant over whether McElroy should stay or go. When Gushiniere reached for a “Patron
bottle,” defendant picked up his folding knife from the table and put it into his back pocket
because he was leaving. He testified that he felt threatened because Gushiniere was reaching
for the bottle. Gushiniere put the bottle back down when defendant told him he was leaving.
¶ 34 Defendant testified that he walked out of the apartment on his own and Gushiniere closed
the door. However, by the time defendant got downstairs, Gushiniere was coming down the
stairs with a 30-inch pipe in his hands. Gushiniere waved the pipe and walked him to the
corner, where they started talking, not yelling. Defendant started to walk down the street with
Gushiniere walking behind him, at which point police officers stopped the men. They patted
defendant down. He had brought his knife out of the apartment but had threw it “to the side”
when he saw the police officers. Defendant testified that he had felt threatened when
Gushiniere picked up the bottle but not when Gushiniere had the pole.
¶ 35 Defendant testified that Gushiniere returned to his apartment and he started to go to a
friend’s house. He then remembered that McElroy’s mother had told him McElroy was his
responsibility and went back to Gushiniere’s apartment for her. Defendant stated he was
unarmed and did not pick his knife back up because he did not know where he threw it. He
admitted that he told detectives that he returned to the apartment to pick up some paperwork
but stated he also told them that he went there to retrieve McElroy.
¶ 36 On cross-examination, however, defendant stated that, after the incident with Nabry, he
had left the apartment on his own because the situation was getting out of hand and that he had
waited for McElroy to come out but instead Gushiniere came out. He talked to Gushiniere on
the corner about McElroy and Gushiniere had returned to the apartment to ask McElroy what
she was going to do. Defendant admitted that he had told detectives that he had told McElroy to
stay at the apartment if she wanted and that he’d be back but denied that he had not been
waiting for her to come out.
¶ 37 Defendant further testified on direct examination that, back at the apartment building, he
“buzzed” Gushiniere’s doorbell, McElroy came on the intercom, she told him she would be
down and “they” then buzzed him into the building. He waited for a while downstairs but,
when McElroy did not come down, he went upstairs and knocked on the door. Asked to
identify himself, he gave his name. He heard Gushiniere come to the door and Nabry tell
Gushiniere not to open it. The door was then opened.
¶ 38 Defendant stated that Nabry and Gushiniere were standing in the doorway “with pipes and
a dumbbell.” He felt threatened because they had weapons. Defendant stepped back and said,
“you know, hey, man it’s not that serious.” He then ran up the stairs from Gushiniere’s
apartment to the fourth floor landing. Nabry put the dumbbell down, Gushiniere handed Nabry
a pipe and Nabry pulled a folding knife out of his pocket, saying “I know you like knives.”
Nabry did not have the knife in his hands when the door opened but pulled it out of his pocket
when defendant was on stairs.
¶ 39 Defendant testified that, when he stepped up some more stairs, Nabry hit him in the leg
with the pipe, stepped to the side and swung at his head. Defendant blocked the blow with his
arm and “grabbed” Nabry’s arm. Someone hit defendant in the head, he fell forward and then
all three men fell. Defendant is blind in one eye and his glasses fell off during the struggle.
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¶ 40 Defendant testified that, when he fell, Nabry dropped the knife. He and Nabry scrambled
for the knife and defendant “grabbed it.” He denied telling detectives that he had taken the
knife from Nabry’s hand. Nabry started “swinging” at defendant, hit him in the head, and
defendant started swinging the knife. He could not see what he was doing and did not know
how many times he stabbed. Defendant testified that, when he picked the knife up off the floor
and swung it, he was “trying to get them off of me” because he thought they were going to kill
him.
¶ 41 When Gushiniere and Nabry got off defendant, he stood up, started to run down the stairs
and fell to the first floor. Nabry was behind him, swinging at him with a pole as he fell down
the stairs. Gushiniere was upstairs. As defendant got out of the front door, he saw Nabry go
back up the stairs. Defendant then called the police because he was hurt and knew Gushiniere
and Nabry were hurt. Defendant was taken to the hospital, where he received stitches and a
“technic” shot.
¶ 42 Defendant stated that, after the stabbings, he did not take the knife outside so must have
dropped it going down the stairs. He stated that he had not used the knives pictured in defense
exhibits Nos. 3 and 5 to stab Nabry and Gushiniere and had not seen Nabry or Gushiniere with
either knife. However, he identified the knife pictured on defense exhibit No. 3 as the knife
used by Nabry to separate out the cocaine that night. He did not know how the knife came to be
at the front door. He had not seen the utility tool pictured in defense exhibit No. 5 that night. He
identified the weight in defense exhibit 6 as having hit him that night but he did not know who
wielded it.
¶ 43 The parties stipulated that Detective Parks would testify that the upshot of McElroy’s
statement to him was that defendant, McElroy, Nabry and Gushiniere were drinking beer in the
apartment, defendant went to the bathroom for several minutes and returned acting different,
he appeared high and irate and he walked toward her and asked “what did he give you, don’t lie
to me.” He stated McElroy did not tell him that Gushiniere had ejected defendant from the
apartment with a pole, Gushiniere and defendant had left the apartment to buy drugs or
defendant had come into the bathroom with her and Nabry. The parties also stipulated that
Detective Barsh would testify that defendant told him during an interview that “I grabbed his
[Nabry’s] hand, the knife then.”
¶ 44 The trial court found defendant guilty of two counts of second degree murder for Nabry’s
death and one count of aggravated battery of Gushiniere. It noted that it had observed the
demeanor of the witnesses and was aware of defense counsel’s “perfect impeachment” and the
inconsistencies in the evidence, including the fact that Gushiniere testified the 11 p.m. incident
occurred in daylight when sunset had occurred at 5:26 p.m. that night. The court denied
defendant’s posttrial motion.
¶ 45 During the sentencing hearing, defendant made an oral pro se motion for a new trial
asserting ineffective assistance of counsel. Noting that the law required an informal hearing “at
this stage,” the court asked defendant to restate his claim. Defendant stated that his counsel was
ineffective because she had told him Gushiniere was stabbed three times when in fact
Gushiniere had been stabbed six times and she had failed to bring out at trial that Nabry had an
extensive background of unprovoked aggression. He also claimed it should have been “on the
record” that McElroy had stated that he did not have anything in his hand when he returned to
the apartment, that she had stated that everyone had been drinking and that the evidence
showed Nabry had no alcohol in his system.
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¶ 46 The court then asked the State to examine defense counsel. The State asked defense
counsel seven questions. It elicited counsel’s testimony that she had discussed Gushiniere’s
medical records, including the number of stab wounds Gushiniere received, with defendant.
Counsel also testified that she had participated in a conference with the court and the State
regarding Nabry’s criminal history and that it was her trial strategy to keep Nabry’s criminal
history from the trier of fact.
¶ 47 The court then denied defendant’s motion for a new trial predicated on ineffective
assistance of counsel. It found defense counsel’s testimony “more credible” and, “[a]s far as
the other material concerning the behavior and background concerning aggressiveness, I find
that was a legitimate trial strategy.” The court merged the two second degree murder counts
and sentenced defendant to 20 years’ imprisonment. It stated that it was not entering judgment
on the aggravated battery conviction. On June 9, 2011, the court denied defendant’s motion to
reconsider his sentence. Defendant filed a timely notice of appeal on June 10, 2011.
¶ 48 ANALYSIS
¶ 49 Defendant raises the following three arguments on appeal: the court erred in (1) finding
him guilty of second degree murder where the State failed to disprove he acted in self-defense,
(2) finding him guilty of aggravated battery and (3) failing to conduct an adequate inquiry
regarding his pro se ineffective assistance claim.
¶ 50 1. Second Degree Murder Conviction
¶ 51 Defendant first challenges the sufficiency of the evidence to sustain his conviction for
second degree murder. He argues that the court erred in finding him guilty of second degree
murder because the State failed to disprove that he acted in self-defense beyond a reasonable
doubt and its entire case rested on the inconsistent and contradictory testimony of two
inherently incredible witnesses, Gushiniere and McElroy.
¶ 52 In considering a challenge to the sufficiency of the evidence, the reviewing court must
determine whether, after viewing the evidence in a light most favorable to the State, any
rational trier of fact could have found the essential elements of the crime beyond a reasonable
doubt. People v. Cunningham, 212 Ill. 2d 274, 278 (2004). The trier of fact, here the trial court,
is responsible for assessing the credibility of the witnesses, weighing the testimony, and
drawing reasonable inferences from the evidence. People v. Ortiz, 196 Ill. 2d 236, 259 (2001).
We will not reverse a criminal conviction unless the evidence is so improbable or
unsatisfactory that it creates a reasonable doubt as to the defendant’s guilt. People v. Cox, 195
Ill. 2d 378, 387 (2001).
¶ 53 Defendant was charged with two counts of first degree murder of Nabry under sections
9-1(a)(1) and (a)(2) of the Criminal Code of 1961 (Code) (720 ILCS 5/9-1(a)(1), (a)(2) (West
2010)) but found guilty of second degree murder on both counts. Pursuant to sections 9-1(a)(1)
and (a)(2), first degree murder occurs when a person kills another person without lawful
justification and, in performing the acts which cause the death, he (1) either intended to kill or
do great bodily harm to that individual or another or knew that such acts will cause death to that
individual or another or (2) knew that such acts create a strong probability of death or great
bodily harm to that individual or another. 720 ILCS 5/9-1(a)(1), (a)(2) (West 2010). The
elements of first and second degree murder are identical. People v. Jeffries, 164 Ill. 2d 104, 122
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(1995). Second degree murder differs from first degree murder only in the presence of a
mitigating factor, such as an alleged provocation or an unreasonable belief in justification.
People v. Porter, 168 Ill. 2d 201, 213 (1995).
¶ 54 At trial, the State argued that defendant returned to the apartment with a knife to retaliate
against Nabry and Gushiniere. Defendant argued that he went back to the apartment unarmed
to retrieve McElroy, not to retaliate. He also argued that, even if the State met its burden to
prove murder, it did not disprove self-defense beyond a reasonable doubt. Self-defense is a
recognized legal justification to first degree murder. 1 Jeffries, 164 Ill. 2d at 127. Once
defendant raised this affirmative defense, the State had the burden to prove beyond a
reasonable doubt not only the elements of first degree murder but also that the murder was not
carried out in self-defense. Id. In order to raise self-defense:
“[T]he defendant must establish some evidence of each of the following elements: (1)
force was threatened against a person; (2) the person threatened is not the aggressor; (3)
the danger of harm was imminent; (4) the threatened force was unlawful; (5) he
actually and subjectively believed a danger existed which required the use of the force
applied; and (6) his beliefs were objectively reasonable.” Id. at 127-28.
If the State negates any one of these elements, a defendant’s claim of self-defense fails. Id. at
128.
¶ 55 Only if the State has successfully proven the elements of first degree murder and negated a
defendant’s claim of self-defense may the trier of fact consider whether the defendant is guilty
of first degree murder or second degree murder. Id. at 128-29. In order to be found guilty of
second degree murder rather than first degree murder, a defendant must prove by a
preponderance of the evidence that:
“(1) at the time of the killing he or she is acting under a sudden and intense passion
resulting from serious provocation by the individual killed or another whom the
offender endeavors to kill, but he or she negligently or accidentally causes the death of
the individual killed; or
(2) at the time of the killing he or she believes the circumstances to be such that, if
they existed, would justify or exonerate the killing under the principles stated in Article
7 of this Code, but his or her belief is unreasonable.” 720 ILCS 5/9-2(a)(1), (a)(2)
(West 2010).
Given that the court found defendant guilty of second degree murder, it necessarily must have
found that the State proved the elements of first degree murder, the State disproved or
defendant failed to raise at least one of the elements of self-defense and defendant proved by a
preponderance of the evidence a mitigating factor sufficient to reduce the offense from first
degree murder to second degree murder. Jeffries, 164 Ill. 2d at 129.
1
“A person is justified in the use of force against another when and to the extent that he reasonably
believes that such conduct is necessary to defend himself or another against such other’s imminent use
of unlawful force. However, he is justified in the use of force which is intended or likely to cause death
or great bodily harm only if he reasonably believes that such force is necessary to prevent imminent
death or great bodily harm to himself or another, or the commission of a forcible felony.” 720 ILCS
5/7-1 (West 1996).
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¶ 56 Defendant challenges the State’s assertion that he did not act in self-defense. He argues the
State’s case was so unsatisfactory, improbable and unreasonable that it established a
reasonable doubt as to his guilt, asserting that the State’s case was predicated exclusively on
the testimony of two inherently incredible witnesses, Gushiniere and McElroy, who directly
contradicted each other and themselves on nearly every relevant fact in the case regarding the
details of the fight that caused Nabry’s death.
¶ 57 The trial court was presented with conflicting versions of defendant’s reentry into the
apartment and subsequent stabbing of Nabry. The State’s version, presented through the
testimony of Gushiniere and McElroy, was that defendant approached the door armed with a
knife and, when the door opened, he immediately attacked Gushiniere and Nabry and stabbed
Nabry without provocation or legal justification. Defendant’s version, presented through his
own testimony, was that he approached the door unarmed, Gushiniere and Nabry were armed
with poles when they opened the door and, although he verbally tried to defuse the situation
and run upstairs, Nabry attacked him and he wound up stabbing Nabry in self-defense with
Nabry’s own knife.
¶ 58 When presented with conflicting versions of events from witnesses, it is the trial court’s
responsibility to determine the credibility of those witnesses and to determine which version to
believe. People v. Villarreal, 198 Ill. 2d 209, 231 (2001). Here, the court chose to believe the
version presented by the State through the testimony of eyewitnesses Gushiniere and McElroy
and did not believe defendant’s version of events. Gushiniere’s and McElroy’s testimony
established that defendant attacked Nabry without provocation as soon as the door opened.
Neither testified that Nabry and/or Gushiniere attacked or threatened defendant first such that
he would need to immediately stab Nabry to protect himself.
“In the context of self-defense, it is the defendant’s perception of the danger, and not
the actual danger, which is dispositive. *** Nevertheless, *** in cases of self-defense,
the issue *** is whether the facts and circumstances induced a reasonable belief that
the threatened danger, whether real or apparent, existed. The reasonableness of a
defendant’s subjective belief that he was justified in using deadly force is a question of
fact for the [trier of fact] to determine.” People v. Sawyer, 115 Ill. 2d 184, 193 (1986).
Accepting Gushiniere’s and McElroy’s version of the events, and viewing the evidence in a
light most favorable to the State, a rational trier of fact could find that the State disproved
beyond a reasonable doubt that any belief on defendant’s part that he was justified in using
deadly force was reasonable.
¶ 59 There is no question that Gushiniere and McElroy contradicted each other throughout their
testimony. They did not agree on who sat where in the apartment, who was drinking alcohol,
who was smoking crack or how the argument between McElroy and defendant arose. They did
not agree on whether Gushiniere chased defendant outside, whether Gushiniere and defendant
argued outside, whether defendant knocked/banged on the door and yelled when he returned to
the apartment, whether Gushiniere and/or Nabry were holding poles or weights when they
opened the door and a myriad of other details.
¶ 60 They did, however, agree that defendant was agitated, aggressive and argumentative and
possibly high while in the apartment the first time. This testimony was corroborated by Officer
Cobb, who testified that defendant was aggressive and appeared under the influence of
something when he questioned him outside, shortly before the stabbing. Gushiniere and
McElroy also agreed that defendant refused to leave the apartment and had to be forced out by
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Gushiniere, that he returned to the apartment shortly after his conversation with the officers
and, when Gushiniere opened the door to him, he immediately attacked. Gushiniere testified
that, when he opened the door, defendant was holding a knife and immediately stabbed Nabry
while McElroy testified that defendant immediately charged Nabry and Gushiniere and she did
not see anything in defendant’s hands. However, they both agree that defendant was the
aggressor; that he immediately attacked. The fact that McElroy did not see anything in
defendant’s hands does not mean that he was not holding a knife.
¶ 61 Defendant points out that Gushiniere and McElroy contradicted not only each other but
themselves throughout their testimony. As the trial court noted, defense counsel was able to
impeach both Gushiniere and McElroy with statements each had previously made to police
officers and the grand jury. But none of these inconsistencies related to the crux of the question
here, whether defendant immediately stabbed Nabry and/or attacked Gushiniere and Nabry
when the door opened and, if so, whether he was justified in doing so, i.e., whether defendant
could have reasonably believed that deadly force was necessary in the situation.
¶ 62 Moreover, even if part of a witness’s testimony is questionable, this does not necessarily
mean that everything that the witness said on the stand must be subject to question. People v.
Cunningham, 212 Ill. 2d 274, 282-83 (2004). A fact finder may reject entire testimony but is
not bound to do so. Id. at 283. “ ‘[C]ontradictory testimony of a witness does not per se destroy
[his credibility], and it remains for the trier of fact to decide when, if at all, he testified
truthfully.’ ” Id. (quoting Sparling v. Peabody Coal Co., 59 Ill. 2d 491, 498-99 (1974)). “In
other words, it is for the fact finder to judge how flaws in part of the testimony affect the
credibility of the whole.” Id. Nothing in the record supports finding that the court erred in
crediting portions of Gushiniere and McElroy’s testimony over defendant’s testimony.
¶ 63 Defendant also argues that Gushiniere and McElroy were unreliable witnesses because
they were both on psychotropic medications. The mental health of a witness can be relevant to
assessing a witnesses’ credibility. People v. Williams, 147 Ill. 2d 173, 237 (1991). Here,
however, beyond Gushiniere’s and McElroy’s testimony regarding the medications they were
taking, the evidence did not otherwise call into question their ability to observe the situation
clearly and communicate it accurately and truthfully.
¶ 64 Viewed in the light most favorable to the State, we find that the evidence presented at trial
supports finding beyond a reasonable doubt that defendant stabbed Nabry without lawful
justification, intending to kill or cause great bodily harm to Nabry and knowing that his act
created a strong probability of death or great bodily harm. Further, the testimony supports
finding that defendant was the aggressor in the situation and that any subjective belief he may
have had that he was justified in using deadly force as self-defense was unreasonable.
Accordingly, the evidence supports a finding that defendant did not prove he stabbed Nabry in
self-defense.
¶ 65 Defendant asserts that the court’s second degree murder conviction represented a rejection
of Gushiniere’s account of the fight that resulted in Nabry’s death. Gushiniere had testified
that, when he opened the door, defendant immediately stabbed Nabry in the chest. Defendant
asserts that no reasonable fact finder could find this version of the fight compatible with
imperfect self-defense, mutual combat or any other theory of second degree murder, i.e., if the
court believed Gushiniere, it would have found defendant guilty of first degree murder. Not so.
If the court believed defendant had an unreasonable belief in self-defense when he stabbed
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Nabry without legal justification, then the evidence supports a second degree murder
conviction. People v. Hawkins, 296 Ill. App. 3d 830, 836 (1998).
¶ 66 As noted above, after viewing the evidence in a light most favorable to the State, a rational
trier of fact could find the evidence supports finding that defendant’s belief that the
circumstances justified using self-defense against Nabry was unreasonable. Accordingly, the
State proved first degree murder and disproved self-defense beyond a reasonable doubt.
Defendant did, however, prove one of the mitigating factors for second degree murder and the
court, therefore, did not err in finding defendant guilty of the second degree murder of Nabry.
Defendant does not challenge his sentence. We affirm the conviction and sentence.
¶ 67 2. Aggravated Battery Conviction
¶ 68 Defendant argues the court erred in finding him guilty of aggravated battery of Gushiniere
because the State failed to (a) prove that Gushiniere suffered great bodily harm beyond a
reasonable doubt and (b) disprove self-defense. He also argues that aggravated battery is not a
lesser-included offense of attempt murder as charged.
¶ 69 Defendant was charged with attempt first degree murder of Gushiniere and found guilty of
aggravated battery. He raised self-defense as an affirmative defense. The State, therefore, had
the burden to prove beyond a reasonable doubt not only the elements of the charged offense but
also that defendant did not act in self-defense. Jeffries, 164 Ill. 2d at 127. The self-defense
argument has been adequately addressed in section 1 above. Suffice it to say, after viewing the
evidence in a light most favorable to the State, a rational trier of fact could find the evidence
supports finding beyond a reasonable doubt that defendant was the aggressor, no force was
threatened against him, danger of harm was not imminent and his belief that the circumstances
justified using self-defense was not reasonable.
¶ 70 The court did not specify the type of aggravated battery it found defendant committed and
stated no findings of fact from which this can be gleaned. Defendant asserts that “it can be
presumed” that the court was referring to “simple” aggravated battery predicated upon “great
bodily harm, or permanent disability or disfigurement” (hereinafter great bodily harm) as set
forth in section (a)(1) of the aggravated battery statute (720 ILCS 5/12-4(a)(1) (West 2010)).2
He argues that the State failed to prove Gushiniere suffered “great bodily harm” beyond a
reasonable doubt because McElroy’s testimony that she saw a wound on Gushiniere’s back
and Gushiniere’s testimony that he was stabbed six times and taken to the hospital where he
was “sewed up” and stayed for either “one night” or “one day” are insufficient to establish that
the wounds were so serious as to constitute great bodily harm. Whether a victim’s injuries rise
to the level of great bodily harm is a question for the trier of fact. People v. Cochran, 178 Ill.
App. 3d 728, 738 (1989). Viewing this evidence in the light most favorable to the State, we
conclude that a rational trier of fact could find that Gushiniere suffered great bodily harm.
Gushiniere’s testimony shows that his injuries were severe enough to warrant medical
treatment. These were not superficial injuries. Superficial wounds do not require stitches or an
2
The aggravated battery statute in effect at the time of the offense, section 12-4 of the Code (720
ILCS 5/12-4 (West 2010)), was renumbered and amended as section 12-3.05 of the Code (720 ILCS
5/12-3.05 (West 2012)), effective July 1, 2011. Pub. Act 96-1551, art. 1, § 5 (eff. July 1, 2011). The
State cites to the renumbered statute throughout.
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in-hospital observation period. Gushiniere’s testimony is sufficient to show defendant inflicted
great bodily harm on him.
¶ 71 Moreover, we see no reason to presume that the court found defendant guilty under
subsection (a)(1) of the aggravated battery statute when the evidence also supports finding him
guilty of aggravated battery under subsection (b)(1) of the statute (720 ILCS 5/12-4(b)(1)
(West 2010)), which is predicated on use of “a deadly weapon other than by the discharge of a
firearm” (720 ILCS 5/12-4(b)(1) (West 2010)) and has no “great bodily harm” component.
There is no question that the knife defendant used to stab Gushiniere and cause him physical
harm was a deadly weapon. A deadly weapon is an “instrument that is used or may be used for
the purpose of an offense and is capable of producing death.” People v. Blanks, 361 Ill. App. 3d
400, 411 (2005). The knife with which defendant stabbed Gushiniere and caused his injuries is
the same knife with which defendant stabbed and killed Nabry. The knife was not just “capable
of producing death.” It had produced death. Accordingly, the evidence supports finding
defendant committed battery on Gushiniere with a deadly weapon and, therefore, is guilty of
aggravated battery under subsection (b)(1) of the Code.3
¶ 72 Defendant argues that he should not have been convicted of aggravated battery because he
was charged with attempted first degree murder, not aggravated battery, and aggravated
battery is not a lesser-included offense of attempted murder. The indictment charged defendant
with committing attempted first degree murder “in that he, without lawful justification, with
intent to kill, did any act, to wit: stabbed Gerald Gushiniere with a knife, which constituted a
substantial step towards the commission of first degree murder.” Defendant claims that,
because the indictment does not describe Gushiniere’s actual injuries, it is insufficient to show
that great bodily harm occurred and, therefore, insufficient to encompass aggravated battery as
a lesser-included offense of attempted murder as charged in this case.
¶ 73 Defendant did not raise this argument in his posttrial motion to the trial court. A
defendant’s failure to both object at trial to an alleged error and raise the issue in a written
posttrial motion results in forfeiture of that issue on appeal. People v. Enoch, 122 Ill. 2d 176,
186 (1988). Defendant requests, however, that we review the nonpreserved allegation of error
under the plain error doctrine. Under this doctrine, we may consider a nonpreserved error
“where the evidence is closely balanced or the error was so fundamental and of such magnitude
as to deny the defendant a fair trial.” People v. Macri, 185 Ill. 2d 1, 40 (1998). Or, put another
way, when “(1) the evidence is close, regardless of the seriousness of the error, or (2) the error
is serious, regardless of the closeness of the evidence.” People v. Herron, 215 Ill. 2d 167,
186-87 (2005). However, before considering plain error, we must first determine whether error
occurred at all. People v. Harris, 225 Ill. 2d 1, 31 (2007). The defendant bears the burden of
persuasion in plain error review. People v. Thompson, 238 Ill. 2d 598, 613 (2010). If the
defendant fails to sustain his burden, we must honor the procedural default. People v. Hillier,
237 Ill. 2d 539, 545 (2010). For the reasons that follow, there was no error here.
3
There is no question that the defendant committed a battery against Gushiniere. “A person
commits battery if he or she knowingly without legal justification by any means, (1) causes bodily harm
to an individual or (2) makes physical contact of an insulting or provoking nature with an individual.”
720 ILCS 5/12-3(a) (West 2010). As discussed in section 1 above, defendant had no legal justification
for knowingly attacking Gushiniere with a knife and physically harming him.
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¶ 74 We apply the charging instrument approach when determining whether an uncharged
offense is a lesser-included offense of a charged offense. People v. Kennebrew, 2013 IL
113998, ¶ 32. Under this approach, “the lesser offense need not be a ‘necessary’ part of the
greater offense, but the facts alleged in the charging instrument must contain a ‘broad
foundation’ or ‘main outline’ of the lesser offense.” Id. ¶ 30 (quoting People v. Miller, 238 Ill.
2d 161, 166 (2010), citing People v. Kolton, 219 Ill. 2d 353, 361 (2006), and People v. Novak,
163 Ill. 2d 93, 107 (1994)). “ ‘The indictment need not explicitly state all of the elements of the
lesser offense as long as any missing element can be reasonably inferred from the indictment
allegations.’ ” Id. (quoting Miller, 238 Ill. 2d at 166-67).
¶ 75 As noted above, with regard to Gushiniere, the indictment charged defendant with
committing attempted first degree murder “in that he, without lawful justification, with intent
to kill, did any act, to wit: stabbed Gerald Gushiniere with a knife, which constituted a
substantial step towards the commission of first degree murder.” We find that merely stating
that Gushiniere was stabbed is insufficient to satisfy the requirement that the element of great
bodily harm can be reasonably inferred. The term “stabbed” can denote many levels of the
infliction of injury. For example, a superficial wound can also be described as a stab wound.
¶ 76 However, as noted previously, the evidence here supported not only a finding that
defendant committed aggravated battery predicated on great bodily harm under subsection
(a)(1) but also a finding that he committed aggravated battery under subsection (b)(1) of the
statute for knowingly and without legal justification causing bodily harm to Gushiniere or
making physical contact of an insulting or provoking nature with him using a deadly weapon
other than a firearm. The indictment is clearly sufficient to provide a main outline of the latter
offense. From the charge that defendant “stabbed *** Gushiniere with a knife” intending to kill
him, one can readily infer that defendant made the requisite physical contact of an insulting or
provoking nature with Gushiniere using a deadly weapon other than a firearm, sufficient to
notify defendant that aggravated battery under subsection (b)(1) was a lesser-included offense
of attempted murder. We may affirm on any basis in the record. People v. Daniel, 2013 IL App
(1st) 111876, ¶ 37.
¶ 77 Given our finding that aggravated battery under subsection (b)(1) was a lesser-included
offense of attempted murder under the indictment here, the court did not err in finding
defendant guilty of committing aggravated battery on Gushiniere. Consequently, given that no
error occurred, we find no plain error and no basis to excuse defendant’s procedural default of
this argument. People v. Chapman, 194 Ill. 2d 186, 227 (2000).
¶ 78 For the foregoing reasons, the court did not err in finding defendant guilty of committing
aggravated battery on Gushiniere. Although the court found defendant guilty of aggravated
battery, it did not enter judgment on the conviction. The appellate court has the authority to
remand for entry of sentence. People v. Scott, 69 Ill. 2d 85, 88 (1977). We remand for entry of
judgment and sentencing on the aggravated battery conviction under subsection (b)(1) of the
aggravated battery statute (720 ILCS 5/12-4(b)(1) (West 2010)).
¶ 79 3. Pro Se Ineffective Assistance of Counsel Claim
¶ 80 Defendant argues that, in violation of People v. Krankel, 102 Ill. 2d 181 (1984), the court
failed to conduct an appropriate judicial inquiry and hearing regarding his pro se claim that
trial counsel was ineffective. He asserts that the court failed to conduct the requisite initial
judicial inquiry, “one-on-one style” with defendant and defense counsel, and, instead,
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“conducted a full-blown hearing wherein the prosecutor conducted an examination of defense
counsel” but defendant was not represented by new counsel and was denied the opportunity to
cross-examine defense counsel, to present evidence and to argue defense counsel’s
ineffectiveness.
¶ 81 In Krankel, our supreme court found that the failure to appoint new counsel to argue a
defendant’s pro se posttrial motion alleging ineffective assistance of counsel was error and
remanded the cause for a new hearing on the ineffective assistance of counsel claim. Krankel,
102 Ill. 2d at 189. Subsequent cases interpreting Krankel compel a fairly narrow reading of the
case. In People v. Nitz, 143 Ill. 2d 82 (1991), our supreme court clarified that there is no per se
rule that new counsel must be appointed every time a defendant presents a pro se motion for a
new trial alleging ineffective assistance of counsel. Id. at 134. Rather, the trial court should
first examine the factual matters underlying the defendant’s claim to determine whether new
counsel should be appointed. Id.
¶ 82 In considering this initial inquiry, “[t]he operative concern for the reviewing court is
whether the trial court conducted an adequate inquiry into the defendant’s pro se allegations of
ineffective assistance of counsel.” People v. Moore, 207 Ill. 2d 68, 78 (2003). If the court
determines that the claim lacks merit or pertains only to matters of trial strategy, then it need
not appoint new counsel and may deny the pro se motion. Id. If, however, the court finds that
the allegations show possible neglect of the case, the case then proceeds to the second step of a
Krankel hearing, an adversarial proceeding in which new counsel must be appointed to
represent the defendant on his pro se claim of ineffective assistance. Id. We review the manner
in which the trial court conducted its Krankel hearing de novo. Id. at 75.
¶ 83 Defendant argues that the trial court here compressed the two steps and, thereby, failed to
properly execute either of them. He asserts the court failed to engage in an elemental
one-on-one inquiry with defendant and defense counsel and, instead, held a full-blown hearing
where defense counsel testified for the State against her client and defendant was not
represented by new counsel to protect his interests. The entire colloquy addressing defendant’s
pro se ineffective assistance of counsel claims was as follows:
“THE COURT: Mr. Fleming has made a motion, a pro se motion in the nature of a
new trial based on ineffective assistance of counsel. Because it’s at this stage, case law
says that I can hold an informal hearing on this.
Mr. Fleming, would you restate why you believe your attorney was ineffective as
your counsel?
THE DEFENDANT: Well, at trial it wasn’t mentioned that Steve Nabry has
extensive background, unprovoked aggression. At trial, when it said that I stabbed
Gerald six times, and I was under the impression that it was three times. That Yolanda
McElroy said when I came back that I didn’t have anything in my hand, and also said
that everybody in there drinking, and Steve didn’t have any alcohol in his system. So
I’m looking at it should have been on the record.
THE COURT: All right. Thank you. State, you can examine counsel. Miss Smith,
state your name for the record, please.
MS. SMITH [defense attorney]: Susan Smith.
THE COURT: And you’re the attorney that represented and is in the process of
representing Mr. Fleming; is that correct?
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MS. SMITH: Yes, your honor.
THE COURT: All right. State.
MS. LANIER [Assistant State’s Attorney]: Miss Smith, during your representation
*** of the defendant, did you discuss with him Mr. Gushiniere’s medical records?
MS. SMITH: Yes, I did.
MS. LANIER: Did you actually go over these medical records with him?
MS. SMITH: Yes, I did.
MS. LANIER: And that would have included any injuries and treatment he
received; is that correct?
MS. SMITH: Yes.
MS. LANIER: In addition, on March 15–
THE COURT: I’m sorry, but that doesn’t get to the number.
MS. LANIER: Included in those records were the number of stab wounds Mr.
Gushiniere received, as well as the treatment for this stab wounds; is that correct?
MS. SMITH: Yes.
MS. LANIER: On March 15 of 2011 did you participate in a conference with Judge
Gaughan, along with myself, regarding this case?
MS. SMITH: Yes, I did.
MS. LANIER: During the conference, did we discuss the victim, Mr. Nabry’s
criminal history in this case?
MS. SMITH: Yes, we did.
MS. LANIER: And during the trial was it then based on the results of that
conference, trial strategy to not put that before the trier of fact?
MS. SMITH: Yes.
THE COURT: Thank you. All right. As to the allegations–first of all, I’m not
entering judgment on Count 5, which is the aggravated battery charge.
As to the allegations as to the number of stab wounds, I find that Miss Smith’s
testimony is more credible. As far as the other material concerning the behavior and
background concerning aggressiveness, I find that was a legitimate trial strategy.
Mr. Flemming, the motion for new trial predicated on ineffective assistance of
counsel is denied.”
¶ 84 Contrary to defendant’s assertions, the State’s questioning of defendant was not a
“full-blown” second-stage hearing. The record shows that the questioning was conducted at
the court’s direction and was very brief, consisting of only seven questions. The questions
were specifically directed to determining whether defense counsel informed defendant
regarding the number of stab wounds and why she did not raise the issue of Nabry’s previous
aggression before the court. The questioning was clearly a preliminary inquiry, intended to
provide the court with information regarding the factual matters underlying defendant’s claims
in order to determine whether the claims had merit and should be examined further, in which
case new counsel should be appointed for defendant.
¶ 85 The fact that the State rather than the court asked the questions of defense counsel, that the
court did not personally engage in an interchange with defense counsel, makes no difference in
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our determination that the hearing was a preliminary Krankel hearing. There is no set format
for how an initial inquiry into a defendant’s pro se allegations of ineffective assistance of
counsel should be conducted. During an initial inquiry:
“[S]ome interchange between the trial court and trial counsel regarding the facts and
circumstances surrounding the allegedly ineffective representation is permissible and
usually necessary in assessing what further action, if any, is warranted on a defendant’s
claim. Trial counsel may simply answer questions and explain the facts and
circumstances surrounding the defendant’s allegations. [Citations.] A brief discussion
between the trial court and the defendant may be sufficient. [Citations.] Also, the trial
court can base its evaluation of the defendant’s pro se allegations of ineffective
assistance on its knowledge of defense counsel’s performance at trial and the
insufficiency of the defendant’s allegations on their face.” Moore, 207 Ill. 2d at 78-79.
In other words, a trial court’s method of inquiry at a Krankel hearing is somewhat flexible.
People v. Fields, 2013 IL App (2d) 120945, ¶ 40. Although a court may conduct an initial
inquiry into a defendant’s pro se allegations of ineffective assistance through an interchange
between court and trial counsel or a simple question-and-answer session, it may also base its
evaluation of the allegations “on its knowledge of defense counsel’s performance at trial and
the insufficiency of the defendant’s allegations on their face” (Moore, 207 Ill. 2d at 78-79), i.e.,
depending on the circumstances of the case, it need not question defense counsel at all, directly
or indirectly.
¶ 86 However, “[i]f the State’s participation during the initial investigation into a defendant’s
pro se allegations is anything more than de minimis, there is a risk that the preliminary inquiry
will be turned into an adversarial proceeding, with both the State and trial counsel opposing the
defendant.” Fields, 2013 IL App (2d) 120945, ¶ 40. As our supreme court recently explained in
People v. Jolly, 2014 IL 117142:
“[A] preliminary Krankel inquiry should operate as a neutral and nonadversarial
proceeding. Because a defendant is not appointed new counsel at the preliminary
Krankel inquiry, it is critical that the State’s participation at that proceeding, if any, be
de minimus. Certainly, the State should never be permitted to take an adversarial role
against a pro se defendant at the preliminary Krankel inquiry.
*** [T]he purpose of Krankel is best served by having a neutral trier of fact initially
evaluate the claims at the preliminary Krankel inquiry without the State’s adversarial
participation, creating an objective record for review. This goal, however, is
circumvented when the circuit court essentially allows the State to bias the record
against a pro se defendant during the preliminary Krankel inquiry. A record produced
at a preliminary Krankel inquiry with one-sided adversarial testing cannot reveal, in an
objective and neutral fashion, whether the circuit court properly decided that a
defendant is not entitled to new counsel.” Id. ¶¶ 38-39.
If the circuit court permits the State “to participate in an adversarial fashion during the
preliminary Krankel inquiry,” the error is not harmless but rather is reversible error. Id. ¶ 41.
¶ 87 In Jolly, our supreme court held that the circuit court committed reversible error when it
allowed the State to question the defendant and his trial counsel “extensively in a manner
contrary to [the] defendant’s pro se allegations of ineffective assistance of counsel and to
solicit testimony from his trial counsel that rebutted [the] defendant’s allegations.” Id. ¶ 40. It
found:
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“In other words, the circuit court allowed the State to confront and challenge
defendant’s claims directly at a proceeding when defendant was not represented by
counsel. The State also presented evidence and argument contrary to defendant’s
claims and emphasized the experience of defendant’s trial counsel. Thus, *** the State
and defendant’s trial counsel effectively argued against defendant at a proceeding
when he appeared pro se. *** [T]his is contrary to the intent of a preliminary Krankel
inquiry.” Id.
¶ 88 In our original opinion, People v. Flemming, 2014 IL App (1st) 111925, filed August 15,
2014, we found no error in the State’s participation in the preliminary Krankel hearing at issue
here, holding that the State’s participation was de minimus as it merely asked defense counsel a
few specific questions at the court’s direction, without editorializing or arguing or advocating
against defendant’s position. We held the hearing was a properly conducted and sufficient
initial inquiry into defendant’s pro se claims rather than a “full-blown” second-stage hearing as
defendant claimed and the court, therefore, did not err in failing to appoint new counsel for
defendant for the hearing.
¶ 89 Pursuant to the supreme court’s supervisory order, we have reconsidered the question in
light of Jolly. On reconsideration, we find Jolly does not change our original determination that
the hearing was a preliminary Krankel inquiry for which the court was not required to appoint
new counsel for defendant rather than, as defendant claimed, a “full blown” hearing for which
he should have been represented by new counsel to protect his interests. However, Jolly does
change our determination that the hearing was properly conducted. For the reasons that follow,
we find the State’s participation in the preliminary Krankel hearing is reversible error.
¶ 90 In Jolly, the supreme court made clear that the State’s de minimus participation in a
preliminary Krankel hearing was acceptable. Jolly, 2014 IL 117142, ¶ 38 (“it is critical that the
State’s participation at that proceeding, if any, be de minimus”). But Jolly also made clear that,
when the State questions a defendant’s trial counsel “extensively in a manner contrary to
defendant’s pro se allegations of ineffective assistance of counsel and *** solicit[s] testimony
from his trial counsel that rebut[s] defendant’s allegations,” that participation is not
de minimus. Id. ¶ 40. Here, although the State’s participation was minimal, its questioning of
defense counsel did tend to counter defendant’s pro se allegations. Contrary to the supreme
court’s instruction in Jolly, the State’s questions to defense counsel and responses received to
those questions rebutted defendant’s pro se allegations, specifically his allegations that his
counsel misinformed him regarding the number of stab wounds Gushiniere received and his
counsel should have made Nabry’s prior history of aggression part of the record. By the State’s
questions and defense counsel’s responses, they “effectively argued against defendant at a
proceeding when he appeared pro se,” which “is contrary to the intent of a preliminary Krankel
inquiry.” Id.
¶ 91 Following Jolly, we find the court committed reversible error by allowing the State to rebut
defendant’s pro se allegations at the preliminary Krankel inquiry. Id. ¶ 41. By allowing the
State, through its questioning of defense counsel, to rebut defendant’s allegations, the record at
the preliminary Krankel inquiry was not produced in an objective and neutral fashion such that
the trial court could properly decide whether defendant was entitled to new counsel.
Accordingly, the court committed reversible error in allowing the State to rebut defendant’s
pro se allegations by its questioning of defense counsel during the hearing. We point out that
the trial court did not have the benefit of the lessons of Jolly at the time it made its decision. We
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make no finding as to whether the issues raised by defendant in his pro se motion had merit or
required the appointment of new counsel.
¶ 92 Our supreme court has stated that where, as here, the State’s participation in a preliminary
Krankel inquiry has thwarted the purpose of creating an objective record from which a neutral
trier of fact can initially evaluate a defendant’s claims, “the appropriate remedy is to remand
for a new preliminary Krankel inquiry before a different judge and without the State’s
adversarial participation.” Id. ¶ 46. Therefore, we remand for a new preliminary Krankel
hearing before a different trial judge and without the State’s arguably “adversarial”
participation.
¶ 93 CONCLUSION
¶ 94 For the reasons stated above, we affirm the convictions and remand for entry of judgment
and sentencing on the aggravated battery conviction and for a new preliminary Krankel
hearing, with directions.
¶ 95 Affirmed; remanded.
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