Appeal from the Circuit Court of Winnebago County. No. 07-CF-4322 Honorable Gary V. Pumilia, Judge, Presiding.
The opinion of the court was delivered by: Justice Birkett
JUSTICE BIRKETT delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion.
Justice Schostok specially concurred, with opinion.
¶ 1 Defendant, Michael C. Gardner, was found guilty of home invasion (720 ILCS 5/12-11(a)(2) (West 2006)), after a jury trial. He was sentenced to 20 years' imprisonment. Defendant filed a direct appeal, arguing that the trial court failed to comply with Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). This court affirmed the judgment of the trial court. People v. Gardner, No. 2-09-0429 (2010) (unpublished order under Supreme Court Rule 23). Defendant filed a pro se post-conviction petition on March 2, 2011, pursuant to the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2010)). The trial court dismissed the petition as frivolous and patently without merit. Defendant appeals, arguing that his petition was improperly dismissed at the first stage where it contained the gist of a constitutional claim, specifically that counsel failed to call a witness to refute the victim's injuries, a necessary element of home invasion. According to defendant, had the witness been called to refute the injury evidence, he would have been guilty of only the lesser included offense of criminal trespass to a residence. We affirm.
¶ 3 On June 2, 2008, defendant's trial on the home invasion charge commenced. The victim, Sharon James, 65 years old at the time of trial, testified that she lived in a home on 10th Street in Rockford with her dog, Barney. Around 10:30 p.m. on November 7, 2007, James took Barney out, and while outside she saw a man in a black hoodie, defendant, on a bicycle in the alley. Defendant pulled over and parked in front of James's car. He jumped off and started coming toward James's gate. James told defendant to get away from her gate and that her dog was not friendly. Defendant said he knew her dog and pulled his hoodie down. James could see defendant's face because he was standing under a streetlight. Defendant told her that he used to mow her lawn when he lived next door. James remembered him and began to talk to him. Defendant then opened her gate and came in to talk to her dog. James continued to talk to defendant. Defendant then asked James if she had any jobs for him right now. James said she did not have anything for him to do this late in the evening. He then asked for a glass of water. James said she would bring him water and went inside to retrieve the water. James denied ever inviting defendant into her home.
¶ 4 James testified that defendant tried to push his foot and leg through her door as she was trying to close it behind her. She put her hands up to his chest and pushed him, stating "get out, get out, get out." James tried to keep her arm in the door to prevent getting locked into the house with defendant but he pulled her arm out and reached behind to lock the door. Defendant grabbed James's neck. His arm was around her neck, and his fingers were around her throat. James testified that she was horrified. Defendant told her to "hug him" and that he had a gun. James did not feel a gun and told him that he did not have a gun. She smelled alcohol on defendant. He then loosened his grip, and James stood up, grabbed a gallon bottle of water nearby, and pushed it into defendant's chest. She told him "here's your water, now get out." James ran to the front of the house. Halfway through the living room, defendant grabbed James again. She hit him with a bottle of spray cleanser that was on the coffee table. Defendant grabbed her by the shoulders. James started switching her lights on and off to signal for help. Defendant grabbed her fingers and pressed them back. James managed to open the front door and run out. Defendant was behind her and grabbed her arm again. James managed to break loose and hop the fence to get help from her neighbor. Defendant took off in a different direction. James then went back to her home and called police.
¶ 5 Regarding her injuries, James testified that she sought medical attention because the back of her neck was sore, her fingers were bruised, and her arm was sore. She had to take pain medication for the physical pain and anxiety medication for the emotional trauma. Her blood pressure was also elevated from the anxiety, and she was given medication for that as well.
¶ 6 Rockford police officer Daniel Watton testified that he arrived at James's home, and James provided a description of the incident and defendant. He left and found defendant at a nearby gas station. Defendant agreed to go with Watton to James's home to rule him out as a suspect in a home invasion. Defendant appeared intoxicated as he had a strong odor of alcohol, had slurred speech, and was swaying. James identified defendant, and Watton placed defendant under arrest. On cross-examination, Watton admitted that he did not notice any physical injuries on James when he spoke with her.
¶ 7 Defendant testified that on November 7, 2007, around 9:30 p.m., he was moving his ex-girlfriend into her new apartment. He later went to a liquor store with his nephew around 10 p.m. on bicycles. Later, defendant left his nephew and rode his bike toward 10th Street to visit some friends. He rode down the alley where James was with her dog. He began to talk to her and asked her for any jobs. She said she did not have any work for him. James then told defendant that he needed to go home because she thought he was drunk. Defendant touched her shoulder and said he was okay but James got scared and shoved him away from her door. Defendant got on his bike and left. He denied threatening James with a gun or going inside her home. He denied choking her or grabbing her hand or fingers. On cross-examination, defendant admitted that he was not invited into James's home. He admitted that he might have asked her for water.
¶ 8 The jury was instructed on both home invasion and the lesser included offense of criminal trespass to a residence. In the end, the jury found defendant guilty of home invasion.
¶ 9 On March 2, 2011, after his direct appeal alleging a Rule 431(b) violation was rejected by this court, defendant filed a pro se post-conviction petition, alleging: (1) ineffective assistance of trial counsel; (2) "prejudicial information" by Watton; (3) prosecutorial misconduct for failing to turn over evidence of James's injuries; (4) the court's abuse of discretion in admonishing the jury to disregard a witness's mentioning a prior burglary incident; (5) the State's failure to prove its case beyond a reasonable doubt; (6) insufficient deliberation by a tainted jury; and (7) ineffective assistance of appellate counsel. In defendant's ineffective-assistance-of-trial-counsel argument, he stated that trial counsel failed to file motions to suppress evidence and quash his arrest, failed to object to the victim's testimony regarding her injuries, failed to call Elizabeth Gardner, defendant's mother, as a witness to testify that she saw the victim the next day and did not observe any injuries on the victim's arm, and failed to consult with defendant about having a bench trial. As to appellate counsel, defendant claimed that counsel failed to argue that anything was wrong with his trial.
¶ 10 Defendant attached to his petition a signed letter from Elizabeth, dated December 7, 2010. The letter states that Elizabeth met with James on November 8, 2007, one day after the crime, at James's home. The letter states that "she had no injuries to her at this time." Elizabeth stated that the victim told her she called police because she was scared and aggravated. Elizabeth stated that she reported this to trial counsel and told ...