People v. Gardner ( 2021 )

2021 IL App (5th) 190421-UNOTICE
NOTICE
Decision filed 12/28/21. The
This order was filed under
text of this decision may be NO. 5-19-0421
Supreme Court Rule 23 and is
changed or corrected prior to
not precedent except in the
the filing of a Petition for IN THE limited circumstances allowed
Rehearing or the disposition of
under Rule 23(e)(1).
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Madison County.
)
v. ) No. 17-CF-3263
)
KEVIN D. GARDNER, ) Honorable
) Kyle Napp,
Defendant-Appellant. ) Judge, presiding.
______________________________________________________________________________
JUSTICE VAUGHAN delivered the judgment of the court.
Justices Welch and Moore concurred in the judgment.
ORDER
¶1 Held: The defendant’s conviction and sentence are affirmed where the defendant failed
to establish: (a) his first degree murder conviction should be reduced to second
degree murder because the State failed to disprove the defendant’s showing that
he had an actual, though unreasonable, belief in the need to defend himself; (b)
the trial court did not conduct a proper preliminary Krankel hearing; (c) possible
neglect of trial counsel; and (d) the defendant’s prison sentence for first degree
murder was excessive. The defendant’s conviction on the second count of first
degree murder is vacated and remanded.
¶2 Following a jury trial, the defendant, Kevin D. Gardner, was convicted of first degree
murder (720 ILCS 5/9-1(a)(2) (West 2016)) with an enhancement for having personally discharged
the firearm that proximately caused the victim’s death (730 ILCS 5/5-8-1(a)(1)(d)(iii) (West
2016)), and was sentenced to 40 years’ imprisonment on the first degree murder conviction and 40
years’ imprisonment on the enhancement, to be served consecutively for a total of 80 years. On
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appeal, the defendant argues: (a) his first degree murder charge should be reduced to second degree
murder and the case remanded for resentencing; (b) the case should be remanded for a new
preliminary Krankel hearing (see People v. Krankel, 102 Ill. 2d 181 (1984)) because the trial court
failed to conduct an adequate inquiry into the defendant’s claims of ineffective assistance of
counsel in that it failed to inquire of defense counsel; (c) the case should be remanded for a new
preliminary Krankel hearing and new counsel appointed because the defendant showed possible
neglect on the part of trial counsel; (d) the defendant’s aggregate 80-year prison sentence was
excessive and the case should be remanded for resentencing; and (e) the defendant’s conviction on
count II for first degree murder should be vacated. For the following reasons, we affirm in part and
remand in part.
¶3 I. BACKGROUND
¶4 A. The Information
¶5 On November 15, 2017, the defendant was charged, by information, with first degree
murder, a Class M felony, in that he, without lawful justification, shot Robert L. Gilmore about
the head, knowing such act created a strong probability of death or great bodily harm to Gilmore,
thereby causing the death of Gilmore, in violation of section 9-1(a)(2) of the Criminal Code of
2012 (720 ILCS 5/9-1(a)(2) (West 2016)).
¶6 B. Jury Trial
¶7 The jury trial commenced on March 4, 2019. During the trial, the evidence established that
on November 13, 2017, the defendant shot and killed Gilmore, after leaving the Madison Meat
Market in Madison, Illinois. The defendant does not dispute this finding.
¶8 The State called Lieutenant Jeff Bridick who worked for the Madison County Sheriff’s
Department and was also the city’s fire chief. He testified that on November 13, 2017, while off-
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duty, he heard four to six gunshots outside his home on 1607 Fourth Street in Madison, Illinois,
around 7 o’clock in the evening. He went outside his home to try to discern from where the shots
came and discovered a dark vehicle with tinted windows in a vacant lot by his house. Inside the
vehicle was a man, later determined to be Gilmore, slumped over with what appeared to be blood
coming from his mouth and ears. Bridick then contacted the Madison Police Department. He did
not touch or move anything around or inside the vehicle. The police department quickly arrived
on the scene and Bridick returned to his home.
¶9 Detective Kyle Graham of the Madison Police Department testified that at the time of the
incident, he was a patrol officer. He was dispatched to the scene whereupon he observed a black
Chevy Impala parked next to Bridick’s home. The car had front end damage as it had struck another
car before coming to rest. The Impala’s windows were tinted such that he could not see inside until
he was right up on the vehicle. Gilmore was inside, slumped over. Detective Graham and another
officer tried to open the doors to obtain access but were unable to do so as they were locked.
Detective Graham then used a window punch to gain access through the farthest back window on
the driver’s side. He was then able to open the back door and, thereafter, the driver’s door. Once
the driver’s door was open, he observed thick blood coming from Gilmore’s head and mouth. He
did not feel a pulse on Gilmore. A crime scene perimeter was established. Detective Graham
further testified there was a bullet hole in the rear passenger side window. In Gilmore’s left hand
was a cellphone. A .40 caliber firearm lay in the front passenger seat.
¶ 10 Illinois State Police crime scene investigator, Joshua Easton, testified he was called to the
scene by the Madison Police Department to assist in processing a death investigation. He initially
observed a black 2013 Impala in a vacant lot on the northeast corner of Fourth Street and
Washington Street. It appeared the car had struck another vehicle parked near the intersection.
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Upon approaching the vehicle, Investigator Easton observed Gilmore deceased, with a cell phone
in his left hand. There was another phone in the passenger’s seat, along with a .40 caliber firearm
and a bag with what appeared to be liquor in it. The firearm’s safety was off and there was an
unfired bullet within. In the backseat, a 100-count box of .40 caliber ammunition was found. On
the outside of the vehicle, Investigator Easton observed a bullet hole in the rear passenger door
window that had shattered the glass and another hole on the front passenger door. He also observed
bullet holes in the rear passenger door. He took photographs of the scene and collected swabs of a
blood-like substance on the driver’s side mirror area and the driver’s side exterior. Investigator
Easton also collected six 9 millimeter shell casings in the yard located at 1522 Fourth Street. The
next day he photographed and processed the Impala at the Metro East Forensic Laboratory.
Investigator Easton collected fired projectile fragments from the rear passenger door frame as well
as from inside the front passenger door.
¶ 11 The parties stipulated, in lieu of testimony, that Detective Mike Lane obtained a true and
accurate copy of the surveillance video taken the night of the murder from the Madison Meat
Market located at 308 Madison Avenue in Madison, Illinois. They further stipulated Detective
Keith Jackson obtained a true and accurate copy of the video footage from the night of the murder
from a building located at 1548 Fourth Street. This footage showed the area of the corner of Fourth
Street and Washington Avenue.
¶ 12 Lieutenant Dave Vucich of the Madison County Sheriff’s Office testified that he reviewed
the aforesaid surveillance footage. The footage showed a gray Dodge Magnum arrive at the store
around 6:50 p.m. He identified the vehicle occupants as Eric Mason, Dominick Harris, and the
defendant. In the defendant’s back pocket was what appeared to be an ammunition magazine. At
6:54 p.m., Gilmore arrived at the store in a black Chevrolet Impala and thereafter entered the store.
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Gilmore is seen moving a handgun from his ankle to the waistband of his pants. While in the
parking lot, the gun fell out of Gilmore’s pants which he then picked up. At 6:55 p.m., the Dodge
Magnum is seen leaving the parking lot. At 6:58 p.m., an individual is faintly seen coming out of
the alley on Fourth Street. Gilmore left the store around 7 p.m. At 7:02 p.m., a blurry image of an
individual is seen at a carport, also on Fourth Street. At 7:03 p.m., Gilmore left the market in the
Impala. Within seconds, Gilmore’s vehicle slid into a vacant lot.
¶ 13 Dr. Gershom Norfleet, a forensic pathologist, testified he performed the autopsy on
Gilmore on November 14, 2017. He found Gilmore had a gunshot wound to the right temple and
his blood alcohol content was .217 milligrams per deciliter.
¶ 14 Eric Mason testified he was currently serving an eight-year prison sentence for obstruction
of justice related to Gilmore’s killing and was originally charged with murder. He stated that he
picked up the defendant and Dominick Harris in his silver Dodge Magnum the evening of the
shooting. They ended up at the Madison Meat Market. He saw the defendant show a handgun and
a firearm magazine to another acquaintance while in the store. After they left the store and talked
a few minutes, a black car pulled into the parking lot. The defendant pointed at the man in the car
and said “that little dude right there.” As soon as the car pulled up, at the defendant’s urging, they
left in the Dodge Magnum. They traveled down Fourth Street, back up Third Street, down
Washington Avenue, made a U-turn in the market’s parking lot, then drove back up Fourth Street
to Mason’s girlfriend’s grandmother’s residence. The defendant told Mason, in reference to
Gilmore, “I gotta get dude up outta here before he get me up outta here.” The defendant then exited
the car, saying he was going to a relative’s house. Roughly 10 minutes later, Mason heard gunshots
and saw a black Impala drive past slowly and then crash into another vehicle. At that time, he and
Harris drove off and the defendant jumped back into his vehicle a short distance later. The
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defendant said “you all ain’t heard nothing, you all ain’t seen nothing.” Mason then dropped the
defendant and Harris off in Venice, Illinois.
¶ 15 Harris testified similarly to Mason. While at the Madison Meat Market, when Gilmore’s
car entered the lot, the defendant wanted to leave immediately. When he and Mason later left the
house on Fourth Street, he saw the defendant running. The defendant then jumped back into the
vehicle and stated, “Did you all hear them shots?” and “You ain’t heard s***.” Harris was
incarcerated at the time of trial pursuant to a plea agreement.
¶ 16 Sergeant Jeremy Hunter, of the Granite City Police Department and a member of the Major
Case Squad of Greater St. Louis, testified that after gathering and speaking to witnesses and
reviewing video footage, the focus of the investigation became locating and interviewing the
defendant. The Squad was activated to find the defendant but disbanded after five days. The U.S.
Marshals continued the search and apprehended the defendant on November 18, 2017, two weeks
after the homicide. Sergeant Hunter was assigned to interview the defendant. The November 18,
2017, interview lasted about an hour and 15 minutes. The defendant was very defiant. All
statements were audio and video recorded. The focus of the interview was why, not if, the
defendant had shot Gilmore as Sergeant Hunter had already determined through the investigation
that the defendant was the perpetrator. The defendant denied being the shooter, having a handgun,
or knowing Gilmore. Sergeant Hunter asked the defendant if he was defending himself when he
shot Gilmore, but the defendant continued to deny knowing Gilmore or having a gun. At no other
point did the defendant indicate the shooting was in self-defense, although Sergeant Hunter gave
him numerous opportunities to do so.
¶ 17 On the fourth day of trial, the defendant announced his intention to testify to another
pending charge (separate from the murder charge) stemming from a shooting on June 4, 2017, in
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which he was charged with aggravated discharge of a firearm. The trial court discussed this with
the defendant as follows:
“THE COURT: It is my understanding that Mr. Gardner is choosing to testify
and he wants to bring out the incident that occurred on June 4, 2017, where he is
charged with Aggravated Discharge of a Firearm and he is wanting to bring out that
information about that shooting because he believes it would help in his defense in
this case. Is that what I am understanding, Mr. Fuller?
MR. FULLER: That is correct, Your Honor.
THE COURT: Mr. Gardner, do you understand that the Court had previously
said absolutely the jury is not to know about these pending charges against you?
DEFENDANT GARDNER: Yes.
THE COURT: Mr. Gardner, do you understand that if you take the stand and
bring that out yourself, the State would be allowed to question you about that?
DEFENDANT GARDNER: Yes.
THE COURT: And that you would then be admitting to a jury that you were
involved in a conflict that involved a firearm?
DEFENDANT GARDNER: Yes.
THE COURT: And your attorney advised you that he doesn’t think this is a
good idea, right?
DEFENDANT GARDNER: Yes.
THE COURT: And even though he’s advising you that he doesn’t think this
is a good idea and that you shouldn’t do this, this is something that you are deciding
that you want to do?
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DEFENDANT GARDNER: Yes.
THE COURT: If you take the stand, Mr. Gardner—and we talked about this
yesterday afternoon and I asked you all the questions I needed to ask you—if you
take the stand and you elicit information about a prior shooting the State would be
allowed to question you about that. Do you understand that?
DEFENDANT GARDNER: Yes.”
¶ 18 Also on the fourth day of trial, the defendant set forth his intention to call Detective Michael
Renth of the Madison Police Department to testify about his familiarity with the defendant,
Gilmore, and the defendant’s cousin, Zayren Gregory, through his employment as a police officer.
The defendant believed Detective Renth’s testimony could help establish his theory of self-
defense. The defendant also wished to bring out information from Detective Renth regarding the
shooting incident on June 4, 2017. The trial court discussed this issue with the defendant:
“THE COURT: Sure. Agreed. So I still haven’t resolved my issue with regard
to Officer Renth, and I need to get this going. We’ve got a jury that’s been waiting
now a half hour. So, Officer Renth, we talked about it back in chambers briefly, but
you would call Officer Renth to testify about his investigation of the shooting in
this Aggravated Discharge of a Firearm case that I just discussed with your client;
is that right, Mr. Fuller?
MR. FULLER: That’s correct, Your Honor.
THE COURT: If that’s the strategy you guys wish to go with then I’m not
going to stop it.
MR. FULLER: I’d reiterate, Your Honor, that I discussed this at length with
Mr. Gardner, I have advised him what my thoughts are and I think the Court
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accurately set forth my position on it. Mr. Gardner has been insistent about this for
some time, and despite my—we’re at an impasse on that as far as—”
¶ 19 The defendant then called Detective Renth to testify. Detective Renth testified that on June
4, 2017, a shooting occurred in which the defendant was involved and was shot in the leg. The
defendant went to the hospital where he gave a false name and then fled before authorities arrived.
At least two other individuals were shot, including an innocent bystander. The defendant was
charged with unlawful possession of a firearm by a felon (720 ILCS 5/24-1.1(a) (West 2016)) and
aggravated unlawful discharge of a firearm (id. § 24-1.2(a)(2)) in connection with the incident.
Gilmore’s name was never mentioned in the course of Detective Renth’s testimony.
¶ 20 Denzel McNeil, the defendant’s cousin, testified he and the defendant were driving in
Madison, Illinois, on September 25, 2017, when Gilmore cut them off with his car. When they
subsequently got to a gas station, Gilmore displayed a gun. Neither McNeil nor the defendant
called the police. Before the incident, McNeil had never seen Gilmore. He identified Gilmore via
a photo shown to him by the defendant’s investigator.
¶ 21 John Richardson, the defendant’s special investigator, testified he spoke with McNeil as
well as the defendant. He showed photographs to McNeil of Gilmore. McNeil identified Gilmore
as the person who had pulled a gun on him and the defendant on September 25, 2017, though he
did not identify Gilmore by name.
¶ 22 The defendant then testified on his own behalf. He testified he had prior convictions for
armed robbery, retail theft, and mob action. The defendant testified he had taken responsibility for
his actions in those cases. He also had pending charges at the time of trial as set forth in Detective
Renth’s prior testimony. He stated he lied in his interview with Sergeant Hunter because he was
scared and feared for his life. The defendant and Gilmore had a business relationship in which
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Gilmore sold drugs to the defendant who then sold them to others. Gilmore owed the defendant
$1300, which the defendant had attempted to collect but ceased doing so after Gilmore pulled the
gun on him during the gas station incident with McNeil. The defendant next testified about the
June 4, 2017, incident. He and his cousin, Frank Brown, had gone to the Phillips 66 gas station.
He went in and purchased alcohol. Upon exiting the store and approaching his vehicle, shots were
fired at him and Brown by three individuals. The defendant was hit in the leg and Brown was hit
in the back and leg. He shot back, which resulted in criminal charges against him. Gilmore was
not part of the shooting. After the shooting ceased, he left the scene and went to the hospital. He
gave a fake name at the hospital because there were warrants for his arrest. The defendant’s cousin,
Zayren Gregory, had been shot a few days before this incident. Defense counsel did not ask the
defendant if he thought Gilmore shot Gregory.
¶ 23 Turning to the incident now before the court, the defendant testified that, on November 13,
2017, he was at the Madison Meat Market and he had a firearm. After exiting the store, a black
Impala pulled into the parking lot and he knew it was Gilmore. The defendant did not want a
confrontation, so he had Mason take him to his cousin Rochelle’s house on Fourth Street. He was
the grainy image in the carport shown on the surveillance camera. He went to the back of the house
to look for a key to get into the residence. He then called Mason to pick him up and went to the
front porch to wait for him. As he was leaving the porch to try to get back to Mason’s car, which
was parked across a neighbor’s yard, he observed Gilmore’s car driving toward him. As Gilmore
approached, the defendant saw what appeared to be a firearm in Gilmore’s hand. When he saw the
firearm, he thought Gilmore was going to kill him. He had only a few seconds to make a decision
and, out of fear for his life, he fired shots at Gilmore’s Impala. He had no intent to kill anybody
and did not know if any of the bullets struck Gilmore. He then got back into Mason’s car and fled
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to Venice. He did not contact 911 because he did not want to go to jail. After the shooting, he hid
from the police. He now regretted his actions on that night.
¶ 24 The trial court gave the jury instructions for first degree murder, second degree murder,
and self-defense. The jury found the defendant guilty of first degree murder and found he had
personally discharged the firearm that caused Gilmore’s death.
¶ 25 Posttrial
¶ 26 On March 25, 2019, the defendant, pro se, filed a posttrial motion, raising several claims
of ineffective assistance of counsel. In the motion, the defendant alleged defense counsel was
ineffective because he failed to: (1) bring out testimony from Detective Renth linking Gilmore to
the shooting incident in which the defendant’s cousin Zayren Gregory was shot, and the shooting
incident at Charlie’s gas station in which the defendant was shot; (2) conduct proper voir dire;
(3) present the self-defense theory; (4) object to other crimes evidence; (5) disclose a conflict of
interest; (6) argue self-defense in his closing argument; and (7) request self-defense and second
degree murder instructions.
¶ 27 On April 25, 2019, the trial court conducted a preliminary Krankel inquiry. The court began
by explaining the procedure:
“THE COURT: So, Mr. Gardner, I read your motion—you title it Motion for
Post-Trial Motions, and I read through your motion and under the law if the
Defendant makes a written motion—an oral motion or a written it’s supposed to be
in writing, but lately the Courts have allowed oral motions as well. If the Defendant
makes allegations, either in writing or orally, alleging ineffective assistance of
counsel then it is incumbent upon the Court to inquire directly with you the bases
of your claims and what your claims are. I would cite to People v. Ayres, A-Y-R-
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E-S, which is 2017 IL 120071, which indicates that it’s up to the Court to make this
inquiry between the Court and Mr. Gardner, and I can also inquire of Mr. Fuller
during this, it’s called a preliminary Krankel hearing, and basically it’s where the
Court inquires of you what your allegations are. I also talk with defense counsel,
the State is not allowed to contribute anything to this hearing. They aren’t allowed
to ask any questions or make any statements, they are allowed to be present and
that’s it.
And then I’ll inquire as to what the bases of your claims are, then I’ll determine
whether or not there’s any bases to your claims or if they stem to something else.
Trial strategy, for instance.
So I’m going to talk to you now about your claims. You have a copy of your
motion in front of you, so I would ask you, Mr. Gardner, if you like—I read it but
you are more than welcome to elaborate on your motion, your written motion, if
you wish, or to discuss it with the Court, you are welcome to do that and I’ll let you
do that now before I ask any questions, sir.”
¶ 28 The following exchange occurred regarding the defendant’s allegation related to Detective
Renth’s testimony:
“THE COURT: But he did put on Detective Renth.
DEFENDANT GARDNER: He put him on but as far as when I got shot. I was
like—I don’t really know how to really word it, but—
THE COURT: Let’s be clear. I remember Mr. Fuller—there was discussion
and it was on the record. There was information that you were bringing out that the
Court had said I wouldn’t allow it to be brought out because I thought it—the law
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said that it wouldn’t come out. The way I read the law is that it would be detrimental
to you and that it shouldn’t be allowed because it didn’t have relevance to this
particular case, but you specifically wanted it to be brought out, and Mr. Fuller put
on the record that he spoke with you about that, that he advised you that he didn’t
think it was a good idea, but that you had a reason[ing] for why you wanted it to be
brought out. And he brought out all of that information, which is what you had
wanted to bring out based on our conversations in court.
And I would note the State—the only question really asked on cross that I
recall was that the victim in this case, the deceased in the case at hand, wasn’t a part
of that shooting at Charlie’s gas station, he was not involved, he wasn’t there that
day, that it was two separate people. That was the only question that the State
brought out through Detective Renth. But you felt it was important to bring out this
information, possibly for reasons that we talked about. But what more did you want
Mr. Fuller to bring out that he didn’t bring out that day with regard to Detective
Renth?
DEFENDANT GARDNER: That it was a possibility linking, like we had
discussed, like it was a possibility linking to Mr. Gilmore, that ambush of me
arriving at that gas station, like—
THE COURT: How were you going to—how are you linking that incident
that we just talked about to Robert Gilmore?
DEFENDANT GARDNER: Because prior to that day, which would be May
31st, that would be the same date that Zayren Gregory was shot, and in the police
report it says clearly that upon arriving on the scene of this Zayren Gregory
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shooting there was a black sports-type model vehicle which was identified by one
of Madison police and the same black sports model vehicle that was in my case is
the same vehicle that was in the Zayren case, it was May 31st and I was shot June
4th.”
¶ 29 The court determined Detective Renth was never going to testify to what the defendant
wanted because he already testified that Gilmore was not involved in the prior shootings. The court
also noted, and the defendant agreed, that the defendant had the opportunity to link Gilmore to the
previous shootings during his own testimony but failed to do so.
¶ 30 The court next inquired about the defendant’s allegations regarding the jury voir dire. After
the court asked the defendant to be more specific about these allegations, the defendant stated,
“The age limit and the race, the jury was like—to me it didn’t seem right—like it didn’t seem right
from the beginning.” The court explained that no attorney, including the defendant’s, can dismiss
a juror based on age or race.
¶ 31 After the court inquired into the defendant’s claim that counsel failed to present the defense
theory properly, the defendant stated, “I believe the argument could have been a little more
different than what it was as far as the evidence that was in the case as far as the victim, the previous
altercations we had—me and the victim—and I think we won a motion where me and Mr. Gilmore,
that it wasn’t supposed to be brought up that we were selling drugs as far as what our business
relation, and it was brought up when the State brought it up and questioned me when I was on the
stand and they asked me which did I sell.” The court then explained counsel was not ineffective
for failing to object because the court previously ruled the State could bring out such information
if the defendant testified to his prior “business” dealings with Gilmore.
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¶ 32 Regarding the defendant’s allegation that defense counsel failed to argue self-defense, the
court explained that it had allowed the defense to put on its theory of self-defense and second
degree murder. It further pointed out that defense counsel had, in fact, argued self-defense.
¶ 33 With regard to the allegation that counsel had a conflict of interest because he previously
had been married to the assistant state’s attorney, the court explained that the defendant had waived
the perceived conflict during a pretrial hearing in which the court gave the defendant himself the
opportunity to object.
¶ 34 After the court explained to the defendant that it did not believe defense counsel was
ineffective for failing to object to other crimes evidence because the court ruled such evidence
would come in if the defendant testified about those other crimes, the defendant stated that he had
nothing further to argue on that contention of ineffectiveness.
¶ 35 The court then rejected the defendant’s claim of ineffectiveness based on counsel’s failure
to request self-defense and second degree murder instructions. The court specifically recalled
counsel arguing such during his closing argument and requesting those instructions, which were
then tendered to the jury. In response to the court’s question whether the defendant had any further
allegations of ineffectiveness, the defendant replied, “At this time I can’t think of nothin.”
¶ 36 The following exchange then took place:
“THE COURT: So, I don’t even need to talk to Mr. Fuller. I’m allowed to
asked you questions if I wish, but I don’t need to ask him any questions. I’ve
read through your motion, I talked about it with you, Mr. Gardner, I sat through
this entire trial with you. Your attorney asked all of the questions that as a judge
sitting here I would think, I wonder if he’ll ask about this, he should ask about
this, it’s just something we do, and he asked all of the questions. He asked the
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right questions, sometimes he knew not to ask a question. That’s all trial strategy,
and sometimes trial strategy you look brilliant if it works out, and then everyone
questions it if it doesn’t, but that’s part of trial strategy.
In this particular case the issue came up that really was the big issue was
you wanting to bring in this other offense where you shot at people and got
charged with that, and you also got shot, and Mr. Fuller thought that was a bad
idea and he told you that, and it was put on the record and I talked to you about
it, but ultimately that decision was yours, and you did it.
DEFENDANT GARDNER: When I was shot they watched the video, I
shot back in self-defense.
THE COURT: What video? The video from the gas station shooting?
DEFENDANT GARDNER: Yes.
THE COURT: But that wasn’t a part of this, that’s a whole separate case.
That was your bases for why you felt the way you felt about Mr. Gilmore and
why you felt scared that night, and I allowed you to get into that other incident.
I wouldn’t allow the State to get into it, but I allowed you to get into it if you
wanted to because that was your theory of why you were scared that night. But
Mr. Fuller talked to you extensively about the good and bad of doing that. He
explained it to you, and I think Mr. Fuller did a really good job representing you.
Unfortunately a jury convicted you, but that doesn’t change the fact the Mr.
Fuller did everything that you would want a defense attorney to do. He spent a
lot of time with you talking about this case. He called witnesses in his case-in-
chief that he didn’t have to but he did. He called in Renth because that’s what
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you wanted, and ultimately the decision is Mr. Fuller’s on how to proceed, but
it was after much conversation with you that he made certain decisions. He’s a
more than competent attorney, more than effective attorney, but sometimes facts
are facts and he can’t change the facts of the case, you know? He only has so
much that he can do.
I do not find based on our conversation, based on my recollection of this
trial and what occurred, I do not find that Mr. Fuller was in any way ineffective
in your case. I don’t think there’s a factual basis for your claims of ineffective
assistance of counsel. I went through each point with you and I talked to you and
gave you an opportunity to let me know what else is out there, and there’s
nothing.
I don’t find that there’s a factual basis for your ineffective assistance claim
and I am—for the purposes of this hearing—for the Krankel hearing—I am not
finding that there is any ineffective assistance of counsel and I am not allowing
Mr. Fuller to withdraw from your case, because the only basis under which it
was filed it was based on your written ineffective assistance claim. There wasn’t
any other reason, so I’m not allowing Mr. Fuller to withdraw, I’m not finding
that there was ineffective assistance of counsel, and I am going to proceed with
the post-trial motions and sentencing hearing, if necessary. It’s already set and
it’s currently set on a date, I believe—***.”
¶ 37 Trial counsel filed a motion for a new trial, which was denied. On May 29, 2019, the trial
court found no mitigating factors and sentenced the defendant to two consecutive 40-year
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sentences in the Illinois Department of Corrections, one for first degree murder and the other for
the mandatory firearm enhancement. The defendant appeals.
¶ 38 II. ANALYSIS
¶ 39 On appeal, the defendant argues: (a) his conviction for first degree murder should be
reduced to second degree murder; (b) the trial court did not conduct a proper preliminary Krankel
hearing; (c) he showed possible neglect of trial counsel and should have had new counsel
appointed for his ineffectiveness assistance of counsel claims; (d) his sentence of 80 years’
imprisonment was excessive; and (e) his conviction on count II of the first degree murder charge
should be vacated under the one-act, one-crime doctrine. We will address each issue in turn.
¶ 40 A. Imperfect Self-Defense
¶ 41 The defendant’s first issue on appeal is whether his first degree murder charge should be
reduced to second degree murder and the case remanded for resentencing. When a defendant
argues on appeal that his first degree murder conviction should be reduced to second degree
murder, the standard of review is “whether, after viewing the evidence in the light most favorable
to the prosecution, any rational trier of fact could have found that the mitigating factors were not
present.” People v. Blackwell, 171 Ill. 2d 338, 358 (1996); see People v. Lee, 213 Ill. 2d 218, 225
(2004).
¶ 42 “The elements of self-defense are: (1) that unlawful force was threatened against a person;
(2) that the person threatened was not the aggressor; (3) that the danger of harm was imminent;
(4) that the use of force was necessary; (5) that the person threatened actually and subjectively
believed a danger existed that required the use of the force applied; and (6) the beliefs of the person
threatened were objectively reasonable.” Lee, 213 Ill. 2d at 225; People v. Jeffries, 164 Ill. 2d 104,
127-28 (1995). “The imperfect self-defense form of second degree murder occurs when there is
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sufficient evidence that the defendant believed he was acting in self-defense, but that belief is
objectively unreasonable.” Jeffries, 164 Ill. 2d at 113.
¶ 43 “[T]he reasonableness of defendant’s belief that the circumstances warranted the use of
deadly force” involves credibility determinations that should be made by the jury. Lee, 213 Ill. 2d
at 225. “It is the function of the jury as the trier of fact to assess the credibility of witnesses, the
weight to be given their testimony, and the inferences to be drawn from the evidence.” Id. “The
jury must also resolve conflicts or inconsistencies in the evidence.” Id.¶ 44 The defendant posits the shooting of Gilmore resulted from his belief, albeit objectively
unreasonable, in the need for self-defense. The defendant testified he became fearful for his life
when he spotted Gilmore coming towards him in his car while Gilmore was holding what appeared
to be a gun in his hand. The defendant stated he had prior “business” dealings with Gilmore and
there was “bad blood” between them. He further stated there had been an incident wherein Gilmore
flashed a firearm at him. He avers all of these factors led him to believe he was in danger of death
or great bodily harm at the hands of Gilmore. The defendant argues he left the market as soon as
he saw Gilmore’s car enter the parking lot because he feared Gilmore and did not want a
confrontation with him.
¶ 45 The defendant contends he proved by a preponderance of the evidence the mitigating factor
of self-defense. He further argues that upon this showing, the burden then shifted to the State to
disprove the existence of the mitigating factor beyond a reasonable doubt. He avers the State did
not meet its burden. We disagree.
¶ 46 Contrary to the defendant’s claim, the State’s evidence showed that after he and his friends
left the Madison Meat Market, they did not leave the area. Rather, they traveled down the road and
back again by the market and even made a U-turn in the store’s parking lot, all while Gilmore
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remained at the market. Moreover, the defendant’s testimony wholly contradicted his first
statements to Sergeant Hunter wherein he adamantly denied knowing Gilmore, having a gun, or
shooting Gilmore. Of key importance, the defendant never asserted to Sergeant Hunter that he was
defending himself although he was given the opportunity to do so.
¶ 47 In this case, there was a plethora of evidence presented to the trier of fact. The jury was in
the best position to discern and weigh the facts, and determine the credibility of witnesses and
other evidence before it. People v. Frazier, 248 Ill. App. 3d 6, 13 (1993). The jury simply chose
to believe the State’s rendering of events in the shooting of Gilmore. In light of the foregoing, the
trier of fact could have found beyond a reasonable doubt that the mitigating factor of self-defense
was not present.
¶ 48 B. Preliminary Krankel Hearing
¶ 49 The defendant next posits the trial court did not conduct a proper preliminary Krankel
hearing. The issue of whether the trial court properly conducted a preliminary Krankel inquiry
presents a legal question we review de novo. People v. Roddis, 2020 IL 124532, ¶ 33.
¶ 50 As the defendant properly states, once a defendant makes a posttrial claim of ineffective
assistance of counsel, the trial court must conduct a preliminary inquiry and examine the
underlying factual matters. People v. Krankel, 102 Ill. 2d 181, 189 (1984); People v. Ayres, 2017
IL 120071, ¶ 9. “[A] pro se defendant is not required to do any more than bring his or her claim”
during the preliminary Krankel inquiry. Ayres, 2017 IL 120071, ¶ 11; People v. Jackson, 2020 IL
124112, ¶ 96. The trial court may consider both the facts and legal merits of a defendant’s pro se
posttrial allegations of ineffective assistance of counsel at the preliminary stage. People v. Roddis,
2020 IL 124352, ¶ 70. If the claim lacks merit or pertains only to matters of trial strategy, new
counsel need not be appointed. Id. ¶ 35. If possible neglect is shown, the trial court should appoint
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new counsel to represent a defendant at the hearing on the ineffective assistance of counsel claim.
Id.; People v. Moore, 207 Ill. 2d 68, 77 (2003).
¶ 51 In the case now before this court, the defendant raised pro se posttrial claims of ineffective
assistance of counsel and the trial court rightly conducted a preliminary Krankel hearing. However,
the defendant would like us to find the preliminary hearing was deficient. We decline to do so.
¶ 52 Three factors are to be considered when determining whether a Krankel inquiry is
sufficient: (1) whether there was some interchange between the trial court and defense counsel
regarding the facts and circumstances surrounding the allegedly ineffective representation, (2) the
sufficiency of defendant’s pro se allegations of ineffective assistance, and (3) the trial court’s
knowledge of defense counsel’s performance at trial and the sufficiency of the defendant’s
allegations on their face. Moore, 207 Ill. 2d at 78-79. Although these factors are to be considered,
“[n]one of these factors are mandatory, and no bright-line rule exists about what is a sufficient
inquiry and what is not.” People v. Schnoor, 2019 IL App (4th) 170571, ¶ 71.
¶ 53 There is no question the trial court did not question defense counsel. However, the absence
of such an interchange alone does not determine the sufficiency of the preliminary Krankel
hearing. Id.¶ 54 As the Roddis court observed:
“The trial court, most familiar with the proceedings at issue, remains best
situated to serve the interests of judicial economy by extinguishing conclusory
claims. We decline to unduly limit the most effective arbiter between patently
frivolous claims and those showing possible neglect. The 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
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defendant’s allegations on their face.’ ” Roddis, 2020 IL 124352, ¶ 56 (quoting
Moore, 207 Ill. 2d at 79).
¶ 55 In the case before this court, we need only look at the lengthy colloquy between the trial
court and the defendant to determine the preliminary Krankel hearing was proper. At the outset,
the trial court instructed the defendant as to what the hearing was about and the process that would
be followed. The court went allegation by allegation with the defendant, asked clarifying
questions, and gave explanations for its reasoning on each allegation. The court provided the
defendant with the opportunity to develop further his arguments and raise any other argument. The
court had a wealth of firsthand experience with the case, from the early stages through the trial and
recalled many of the details. The court was also able to observe trial counsel’s performance
throughout the case.
¶ 56 The defendant also avers the trial court was argumentative with him at this hearing. We do
not find this to be the case. While the defendant may not have received the desired feedback, the
court was merely exploring the issues the defendant raised and, while doing so, stating the facts.
¶ 57 For the foregoing reasons, we find the trial court conducted a proper preliminary Krankel
hearing.
¶ 58 C. Possible Neglect
¶ 59 The defendant also argues that he showed possible neglect on the part of trial counsel.
“[W]hen a trial court has properly conducted a Krankel hearing, this court will review the trial
court’s determination that a defendant’s claim does not demonstrate a possible neglect of the case
by asking if that decision is manifestly erroneous.” People v. Lawson, 2019 IL App (4th) 180452,
¶ 43. A decision is manifestly erroneous “when the opposite conclusion is clearly evident.” People
v. Coleman, 2013 IL 113307, ¶ 98.
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¶ 60 In the case now before us, the defendant first argues that trial counsel was ineffective
because he failed to elicit testimony from Detective Renth linking Gilmore to the shooting of
defendant’s cousin a few days before this incident and the shooting of defendant at Charlie’s gas
station. We do not agree. The record reflects that defense counsel indeed questioned Detective
Renth at the defendant’s insistence. Detective Renth simply was not going to say what the
defendant wanted him to say about those shootings.
¶ 61 The defendant further argues that trial counsel was ineffective because he did not conduct
proper voir dire resulting in an unfair jury. Again, we disagree. The record is clear that no attorney,
including trial counsel, has the power to dismiss a juror based on age or race, which is what the
defendant requested.
¶ 62 The defendant next avers that trial counsel was ineffective because he did not object to the
State raising the nature of the “business” dealings between the defendant and Gilmore during the
defendant’s testimony. Once again, we reject the defendant’s argument. The record reflects that
the court previously ruled the State could delve further into details if the defendant chose to testify
about his “business” relationship with Gilmore.
¶ 63 The defendant further avers that trial counsel was ineffective because he failed to present
a theory of self-defense. Again, the record does not support this argument and, to the contrary,
reveals defense counsel argued self-defense on the defendant’s behalf.
¶ 64 The defendant’s allegation that trial counsel was ineffective due to a conflict of interest
because counsel had previously been married to the prosecutor is without merit. The record is clear
that the trial court gave the defendant an opportunity to object to the perceived conflict at a pretrial
hearing and the defendant willingly chose to continue with trial counsel’s representation.
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¶ 65 Also without merit is the defendant’s contention that trial counsel was ineffective for
failing to object to other crimes evidence. The record reflects the trial court ruled such evidence
would be allowed if the defendant raised the other crimes evidence during his testimony.
¶ 66 The defendant argues that trial counsel was ineffective because he failed to request jury
instructions of self-defense and second degree murder. We reject this argument as well. The record
is clear that trial counsel argued self-defense and second degree murder in his closing argument,
and requested those instructions be tendered to the jury. Those instructions were, in fact, given.
¶ 67 As previously stated, the trial court had a wealth of firsthand experience with the case,
recalled many details, and was able to observe trial counsel’s performance throughout the case.
We do not find the trial court’s decision to be manifestly erroneous as the opposite conclusion is
not clearly evident. The record is clear that there was no showing of neglect on the part of trial
counsel that warranted appointment of new counsel.
¶ 68 D. Sentence
¶ 69 The defendant next argues the trial court’s imposition of an aggregate 80-year sentence of
imprisonment for the offense of first degree murder is excessive and constitutes an abuse of
discretion, considering the mitigating factors of the defendant’s relatively young age, his
nonviolent criminal history, and his rehabilitative potential.
¶ 70 A trial court’s sentencing decision is reviewed under an abuse of discretion standard.
People v. Abdelhadi, 2012 IL App (2d) 111053, ¶ 8. Reviewing courts normally apply a strong
presumption that the trial court based its sentencing decision on proper legal reasoning and give
the decision great deference. Id. “[T]he presumption is overcome only by an affirmative showing
that the sentence imposed varies greatly from the purpose and spirit of the law or manifestly
violates constitutional guidelines.” Id.24
¶ 71 Sentences are to “be determined both according to the seriousness of the offense and with
the objective of restoring the offender to useful citizenship.” Ill. Const. 1970, art. I, § 11. “In
sentencing a defendant, the trial court must consider the character and circumstances of the offense
itself and the defendant’s character, criminal history, mentality, social environments, habits, age,
future dangerousness, and potential for rehabilitation. People v. McGowan, 2013 IL App (2d)
111083, ¶ 11. “Of all these factors, the seriousness of the offense has been called the most
important.” Id. “ ‘A sentence which falls within the statutory range is not an abuse of discretion
unless it is manifestly disproportionate to the nature of the offense.’ ” People v. Spicer, 379 Ill.
App. 3d 441, 465 (2007) (quoting People v. Jackson, 375 Ill. App. 3d 796, 800 (2007))
¶ 72 At sentencing, the defendant asked the court to find factors in mitigation pursuant to
sections 5-5-3.1(a)(3) (“[t]he defendant acted under a strong provocation”), 5-5-3.1(a)(4) (“[t]here
were substantial grounds tending to excuse or justify the defendant’s criminal conduct, though
failing to establish a defense”), and 5-5-3.1(a)(5) (“[t]he defendant’s criminal conduct was induced
or facilitated by someone other than the defendant”) of the Unified Code of Corrections (730 ILCS
5/5-5-3.1(a)(3), (a)(4), (a)(5) (West 2018)). The court declined and found no statutory mitigatory
factors. In aggravation, however, it found the defendant had a history of prior delinquency or
criminal activity (id. § 5-5-3.2(a)(3)) and the sentence was necessary to deter others from
committing the same crime (id. § 5-5-3.2(a)(7)).
¶ 73 Although the trial court did not specifically mention age in its considerations, “[t]here is
no mandatory requirement that the trial judge recite all” the aggravating and mitigating factors
“before imposing sentence.” Jackson, 375 Ill. App. 3d at 802. “It is presumed that the trial judge
considered all of the factors unless the record indicates to the contrary.” Id.
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¶ 74 In the case now before us, the trial court affirmatively stated, “I have considered the factors
in aggravation and mitigation as I am required by law to do so.” It continued, “I have listened to
the evidence adduced at trial. I have considered the presentence investigation that was supplied to
the Court. I have considered the history, character and attitude of Mr. Gardner. I considered the
financial impact of incarceration in this matter. I have listened to the evidence in aggravation and
mitigation and the arguments of counsel.” The record does not indicate the trial court failed to
consider any statutory mitigating factors in its sentencing of the defendant.
¶ 75 As to the defendant’s rehabilitative potential, “[t]he command of the Illinois Constitution
to consider the rehabilitative potential of a criminal offender in sentencing does not require a court
in every instance to grant the offender an opportunity for rehabilitation.” (Internal quotation marks
omitted.) McGowan, 2013 IL App (2d) 111083, ¶ 13. Thus, “[n]ot all criminal defendants must be
given an opportunity for rehabilitation,” and “the responsibility for balancing between rendering
justice and rehabilitating the defendant rests with the trial court.” (Internal quotation marks
omitted.) Id.¶ 76 The trial court set forth its reasoning and observations for imposing the lengthy sentence
on the defendant, concluding, “You are a killer,” and noting, belying defendant’s argument of
having a nonviolent criminal history, “Your criminal history is armed robbery, retail theft, mob
action, aggravated unlawful use of a weapon. You have been involved with guns your adult life
and you have used them criminally your entire adult life and I believe you are a danger *** to the
public *** you are dangerous.”
¶ 77 For the foregoing reasons, we cannot say the trial court abused its discretion in sentencing
the defendant to an aggregate 80 years in the Illinois Department of Corrections. The court had the
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responsibility of balancing between justice and rehabilitating the defendant. It took into account
and weighed the factors before it. We will not disturb the trial court’s decision.
¶ 78 E. One-Act, One-Crime Rule
¶ 79 The defendant lastly argues that he was sentenced to both count I and count II, both being
first degree murder charges with the second being a lesser serious offense. He asks this court to
vacate count II pursuant to Illinois Supreme Court Rule 615 (eff. Jan. 1, 1967).
¶ 80 The State agrees the judgment sheet of May 29, 2019, does not reflect the dismissal of
count II and should be amended to vacate the defendant’s conviction on count II.
¶ 81 We agree with both the defendant and the State and vacate the defendant’s murder
conviction on count II. We remand for an amendment to the judgment sheet to reflect the vacation
of count II.
¶ 82 III. CONCLUSION
¶ 83 For the foregoing reasons, we affirm the circuit court of Madison County in subsections A
through D above and vacate the second count conviction of first degree murder and remand the
case under section E for correction of the judgment sheet.
¶ 84 Affirmed in part and vacated in part.
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