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People v. Stroner





APPEAL from the Circuit Court of Will County; the Hon. ROBERT L. DANNEHL, Judge, presiding.


A Will County jury convicted the defendant, Gerard Stroner, of solicitation to commit murder, conspiracy to commit murder, and attempt murder. Concurrent terms of six years on each offense were imposed.

Gerard Stroner was indicted on November 5, 1980, for three offenses: solicitation to commit murder, conspiracy to commit murder and attempt murder. Pleas of not guilty were accepted on each charge. Subsequently, the State sought, by motion, to compel withdrawal of defendant's attorney, Robert M. Gray. The State's motion was based on the fact that another attorney in Gray's firm had been retained to represent in a marriage dissolution proceeding, one of the State's witnesses, the wife of the intended victim in the instant case. The State contended that this relationship created a conflict of interest denying defendant Stroner his constitutional right to effective assistance of counsel and would accordingly, require reversal of any conviction that might result. With Stroner present at the hearing on the motion, attorney for the State carefully detailed the nature of the conflict. Defense counsel Gray asserted that Mr. Stroner was aware of the fact that his firm was representing Susan McGrath, wife of the intended victim, and desired, nonetheless, that Gray continue as his defense counsel. The trial judge then questioned Stroner about the situation. Stroner acknowledged the dual representation of his defense counsel's firm and that he, Stroner, waived any conflict that might arise because of such associations. The trial judge then denied the State's motion to compel withdrawal of defense counsel.

On December 10, 1980, the trial commenced. The State's evidence tended to show that Gerard Stroner, a Crest Hill police officer, met with Dennis McCallister in February 1980 and asked him if he could arrange to have someone killed. At a subsequent meeting, Stroner told McCallister that William McGrath was the target victim. Stroner said he was in love with McGrath's wife, Susan, and that McGrath beat her all the time. McCallister agreed to kill McGrath for $500. Susan McGrath testified that although she had met Stroner several times, he was no more than a mere acquaintance.

McCallister and Stroner met numerous times. Ultimately, a price of $1,000 was agreed upon for McCallister to obtain a gun and to kill William McGrath. On one occasion, McCallister and Stroner followed William McGrath home from work so that McCallister could identify the victim. On another occasion, Stroner drove McCallister by the McGrath residence so that McCallister would know where the victim lived.

Stroner gave McCallister $200 in advance with the understanding that it be used to buy a gun and arrange for transportation the night of the killing. Instead, McCallister used the money for liquor and drugs. Finally, on April 21, 1980, Stroner insisted that William McGrath be killed that night. Later that evening, McCallister informed Stroner that he had been unable to obtain a gun or a ride. Stroner agreed to make the necessary arrangements. Stroner then obtained a shotgun from the Crest Hill Police Department Armory. Stroner also gave $800 to Gordon Olson, a local restaurant assistant manager, with orders to hold on to the money until he or someone sent by him came to claim it.

Stroner had a shotgun and some shells when he picked up McCallister and drove him to a Bolingbrook parking lot where the killing was to take place. A Bolingbrook squad car arrived and the plan was modified to kill McGrath as he arrived home. Stroner then drove McCallister to the McGrath residence for that purpose. Afterwards, Stroner would pick up McCallister a block away.

McCallister hid behind a shed and waited for McGrath's return. When he arrived home, McCallister fired two shots at him then took off running. Untouched by either shot, McGrath telephoned the police.

McCallister hastened to the rendezvous point. There he was arrested by the awaiting Romeoville police. The shotgun was confiscated with one spent shell casing still in the chamber.

Gerard Stroner was the primary witness in his own defense. A Crest Hill police officer since 1971, he had never been arrested before the present charges were filed against him. McCallister was not his friend; however, Stroner had known him for years, having arrested him and questioned him many times about criminal activities.

Much of Stroner's testimony corroborated that given by McCallister and the other State witnesses. Stroner admitted asking McCallister to kill William McGrath. However, Stroner testified it was not his true intent to have McGrath slain. Rather, he claimed, his true intent was to obtain evidence against McCallister regarding several murders in which Stroner believed McCallister played a part. In fact, Stroner declared that he had no specific person in mind as the hypothetical victim when he initially asked McCallister if he would accept a contract to kill someone. Later, Stroner met William McGrath and was threatened by him because he suspected Stroner was having an affair with his wife, Susan. However, Stroner denied having any such relationship. Eventually, Stroner told McCallister that McGrath was the man he wanted killed.

Stroner did not tell anyone at the Crest Hill police department about his dealings with McCallister. He felt they could not be trusted.

Stroner testified that he was hoping to either arrest McCallister for possession of a weapon or trick McCallister into making admissions about the suspected previous murders when the attempt on McGrath's life failed.

In concluding his testimony on direct examination, Stroner admitted taking the shotgun from the police armory. However, he claimed that the shotgun shells that he gave to McCallister had been loaded with table salt. The trial judge then ordered a half-hour recess before commencing cross-examination. At that time, the following dialog ensued:

"THE COURT: All right, I'm going to direct Mr. Kielian that you not discuss the direct testimony of your client [the defendant Stroner] with him during the period of time that we are in recess.

MR. KIELIAN: How long is that recess going to be, Judge.

THE COURT: Half an hour.

MR. KIELIAN: half hour, ten after 11:00."

No objection was levied by Stroner or his attorney; recess was taken.

During cross-examination, Stroner acknowledged that during the planning of the McGrath murder, McCallister had admitted his involvement in a shooting in Rockdale and a bank robbery in Tennessee. Nevertheless, Stroner continued with his plan and did not attempt to arrest McCallister for either of those crimes.

At the conclusion of the trial, the jury returned guilty verdicts on all three counts. Stroner was then sentenced to concurrent terms of six years on each conviction.

Several issues confront us on appeal. Initially, Stroner claims that his right to effective assistance of counsel was violated by the trial court's order which prohibited him from discussing his testimony with his attorney during a half-hour recess between his direct and cross-examination. It is well settled that the right to counsel includes the right to the effective assistance of counsel. (Powell v. Alabama (1932), 287 U.S. 45, 77 L.Ed. 158, 53 S.Ct. 55.) That the criminal defendant is entitled to consult with his attorney during the course of his trial is not disputed. (Geders v. United States (1976), 425 U.S. 80, 47 L.Ed.2d 592, 96 S.Ct. 1330.) However, this right, as others, does not exist in a vacuum and must flex to accommodate other equally important considerations. As such, the right to consult with counsel is subject to reasonable restrictions to preserve the integrity of the truth-seeking process and to maintain an orderly trial procedure.

• 1 In the instant case, the trial judge's order was narrow in scope. Stroner was not barred from consulting with his attorney. Rather, one topic of discussion was prohibited: the direct testimony Stroner had just given. Furthermore, the order was not without reason. It was designed to assure the integrity of the legal process, specifically the cross-examination that would immediately commence after the recess. Moreover, the duration of the proscription was 30 minutes. During this time Stroner and his attorney were free to discuss any topic other than the testimony given by Stroner during his direct examination. Accordingly, we find no violation of the defendant's right to the effective assistance of counsel.

Next, Stroner argues that he was denied his right to effective assistance of counsel because his attorney's law firm also represented, in a divorce proceeding, the intended victim's wife, a prosecution witness.

A month prior to trial, Stroner entered pleas of not guilty to the three charges. On that same day, the State presented a motion to compel withdrawal of the defendant's attorney for the very reason now raised as error by the defendant. A hearing was held on the motion with the defendant present. The following colloquy transpired:

"MR. MAZZONE: * * * Now, Judge, the Law Firm of Bolden, Gray and Kleczek does not represent merely another State witness. They represent the wife of the victim in this case.

The charges against this defendant are attempt murder, conspiracy, and solicitation to commit murder. The focus of those charges are simple.

Mr. Gray represents Susan McGrath, and I feel that the case cited will show your Honor that reversal is mandated where counsel is not — either the defense has not given full and voluntary waiver of any conflict that might exist in the future, because very simply, your Honor, I don't think the State wants to be put in a position to try such an important case or a complex case and have it reversed on the ...

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