People v. Gardner

2021 IL App (5th) 190421-U
NOTICE
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.

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¶ 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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