Appeal fro the Circuit Court of Cook County. No. 10 CR 5491. Honorable Vincent M. Gaughan, Judge Presiding.
Defendant's convictions for second degree murder and aggravated battery were upheld over his contentions that the State failed to negate his claim that he acted in self-defense and did not prove that the victim of aggravated battery suffered great bodily harm beyond a reasonable doubt and that the trial court's inquiry into his claim of ineffective assistance of counsel did not satisfy Krankel, since the evidence supported a finding that defendant could not have reasonably believed the use of deadly force was justified and the testimony of the victim of the aggravated battery that he suffered stab wounds that required medical treatment was sufficient to establish great bodily harm, especially when defendant used a deadly weapon, the same knife he used on the murder victim; furthermore, the inquiry into the ineffective assistance claim was conducted properly and there was no error in failing to appoint new counsel where defense counsel was credible in stating that her decision not to present evidence of the murder victim's aggressiveness was a matter of strategy.
For APPELLANT: State Appellate Defender Michael J. Pelletier, of Chicago (Deputy Defender Alan D. Goldberg and Assistant Appellate Defender Christopher L. Gehrke, of counsel).
For APPELLEE: Cook County State's Attorney Anita Alvarez, of Chicago (Assistant State's Attorneys Alan J. Spellberg, Amy M. Watroba and Michele Lavin, of counsel)
JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.
[¶1] Following a bench trial, the trial court found defendant Ron Flemming guilty of second degree murder and aggravated battery and sentenced him to 20 years' imprisonment. On appeal, defendant argues that the court erred in (1) finding him guilty of second degree murder where the State failed to disprove he acted in self-defense, (2) finding him guilty of aggravated battery and (3) failing to conduct an adequate inquiry regarding his pro se ineffective assistance claim. We affirm the convictions and remand for sentencing on the aggravated battery conviction.
[¶3] The record shows that defendant was charged by grand jury indictment with four counts of first degree murder arising from the February 17, 2010, stabbing death of Steve Nabry. He was also charged with one count of attempted first degree murder and three counts of aggravated battery arising from the stabbing of Gerald Gushiniere on the same date. The State nol-prossed two of the first degree murder counts and the three aggravated battery counts.
[¶4] At the bench trial, Gushiniere testified that he was currently in custody on a residential burglary charge. It was his understanding that, in exchange for his truthful testimony in defendant's case, the State's Attorney's office would recommend a three-year sentence on a reduced charge of burglary in his case. Gushiniere testified that he and his friend Nabry were walking to Nabry's house on February 17, 2010, to pick up a movie to watch at Gushiniere's apartment. They encountered defendant, whom Gushiniere knew " from the neighborhood," and a woman, subsequently
identified as Yolanda McElroy. The four went to Gushiniere's studio apartment where Nabry, McElroy and defendant sat on the couch and smoked " crack." Gushiniere stated he sat on the bed drinking water. He denied telling defense counsel that he had been drinking alcohol.
[¶5] Gushiniere testified that he was not smoking crack but at some point left with defendant " to get some more crack," leaving Nabry and McElroy at the apartment. Gushiniere stated it was light outside when he and defendant left the apartment to buy more crack. When defendant and Gushiniere returned " four or five minutes" later, they did not see Nabry and McElroy. Gushiniere testified that defendant knocked on the bathroom door, " busted in on them in the bathroom" and Nabry and McElroy came out of the bathroom. Gushiniere did not know what McElroy and defendant were doing in the bathroom or whether they had their clothes on. He admitted that he never told police officers about going to pick up drugs with defendant and defendant " busting" on the bathroom door and rousting Nabry and McElroy.
[¶6] Gushiniere testified that defendant, Nabry and McElroy " just went and got back on the couch" and started smoking crack again. When defendant and McElroy started arguing over her crack pipe, Gushiniere asked defendant to leave but defendant told him to " stay out of it." McElroy told him she did not feel safe with defendant so Gushiniere again asked defendant to leave. Defendant then " ran up on" Gushiniere with a knife he had pulled from his pocket and started cursing at him. Gushiniere testified defendant had pulled a folding knife from his pocket but admitted telling the grand jury that defendant had a different kind of knife, a knife " with multiples tools on it, a screwdriver with a file and you can bend it over and make tracks with it." Defendant held the knife by his side.
[¶7] Gushiniere got a weight pole from the closet, defendant " grabbed the pole" from him and they began to wrestle over the pole. Gushiniere testified that he pushed defendant with the pole and managed to get him out of the apartment by swinging the pole at him to scare him. Defendant still had his knife. Gushiniere stated Nabry was not involved in ejecting defendant but admitted that he had made an earlier statement that Nabry had assisted in ejecting defendant. Outside the apartment, Gushiniere and defendant continued to fight over the pole and yelled at each other. Defendant still held his knife. Police officers approached the men. At the officers' direction, he left the pole and went back to his apartment. Gushiniere testified it was still light outside. He denied telling the officers that he had picked the pole up off the street to defend himself.
[¶8] Gushiniere stated that, five minutes later, he, Nabry and McElroy were talking when a loud knock came at the door. He thought it was his mother because he had not " buzzed" anyone into the building and his mother was the only person with a key to the building. Gushiniere testified that he went unarmed to the door to let his mother in, even though she had her own key. Nabry was by his side. McElroy was still on the couch. He did not hear pounding or yelling.
[¶9] Gushiniere testified that " [n]ext thing I know, I opened the door and he [defendant] stabbed Steve Nabry in the chest and I hopped in front." He testified that Nabry had approached the door before he opened it and neither he nor Nabry had anything in their hands. Gushiniere stated that when he opened the door, he saw defendant standing there holding a knife and saw defendant immediately stab
Nabry in the chest. Gushiniere testified that he " hopped in front [of Nabry] and told [defendant] he can't stab Steve Nabry no more." Defendant then stabbed Gushiniere in the back and in his left arm. Gushiniere thought that defendant then pushed him onto Nabry. All three men fell onto the floor " at my house." Defendant kept stabbing Nabry.
[¶10] Gushiniere stated he then picked up a weight and/or a weight pole (barbell) and started hitting defendant " in the head" and " in the face" with it. Gushiniere kept hitting defendant but defendant kept stabbing Nabry, who was trying to get up off the floor. Gushiniere stated that, when Nabry fell, Nabry had also " grab[bed]" a part of a weight pole with which to hit defendant. While still on the floor of the apartment, defendant stabbed Gushiniere in his back again. Gushiniere testified that, while in the apartment, defendant had stabbed him six times, in his right arm, left arm, shoulder and back.
[¶11] Gushiniere testified variously that he pushed defendant toward the stairs, he and Nabry pushed defendant toward the stairs and Nabry did not help get defendant down the stairs. Gushiniere saw McElroy coming out of the apartment when the three men were on the stairs. He chased defendant down the interior building stairs and out of the building. After Gushiniere had chased defendant outside, Nabry managed to get off the floor and come into the hallway of the building but fell there bleeding. He died before the police arrived. Gushiniere testified that he was taken to a hospital, where he his wounds were " sewed up" and he stayed in " special care" for " one day" or " one night."
[¶12] On cross-examination, Gushiniere explained that he originally told detectives that he did not know what drug defendant, Nabry and McElroy had been smoking because he did not learn until later the drug was crack. Gushiniere stated he was currently taking a medication named Risperdal, prescribed from him when he arrived at Cook County jail. Before that, " in the outside world," he had been talking Abilify, an anti-psychotic medication, which stopped him from seeing and hearing things that were not there. He had taken the Abilify regularly as he was supposed to.
[¶13] Gushiniere stated that defendant had a knife in the hallway and ran out of the building still holding a knife. He did not know why there was a knife, shown in defense exhibit No. 3, inside his front door. He did not know whether the knife defendant brandished when the door opened was the same folding knife with which he had threatened Gushiniere earlier. He identified defense exhibit No. 3 as the knife defendant used to stab him and Nabry. Neither he nor Nabry had used the knife in defense exhibit No. 3.
[¶14] The tool pictured in defense exhibit No. 5 was his own knife and had been lying on the floor of his apartment. Neither Nabry nor he used it against defendant. Gushiniere testified that the knife defendant had first pulled on him inside the apartment was a green pocket knife and defendant used the same knife when he came back to the apartment. He stated that neither he nor Nabry had a knife that evening. Gushiniere identified defense exhibit No. 7 as a photograph of the two parts of the weight pole with defendant's blood on them and a dumbbell. He stated that he and Nabry each held part of a weight pole and he also held the dumbbell but denied hitting defendant with the dumbbell. He identified a bottle of " Dom Julio" as alcohol he kept in his apartment as a souvenir.
[¶15] Officer Torreno Cobb testified that, on February 17, 2010, at 11 p.m., he and
two other officers were riding in an unmarked squad car. It was night and dark outside, but the area was well lit. The officers saw two men, one chasing the other with a pole in his hand, and stopped to speak to them. Cobb identified Gushiniere as the man running with the pole and defendant as the man being chased. He did not see Gushiniere actually swing the pole and saw no pushing and shoving. The officers took the five-pound pole away from Gushiniere and placed it in the squad car. They patted down defendant but found no weapons. It appeared to Cobb that defendant was under the influence " of maybe alcohol." Defendant was aggressive while Cobb was attempting to interview him and " yelling back and forth" to Gushiniere. Cobb told Gushiniere to go home and defendant to go home in the opposite direction and not return to Gushiniere's apartment. Cobb kept the pole in his custody but turned it over to detectives when he heard a stabbing had taken place. Cobb testified that Gushiniere told him he ran from defendant and picked the pole off the street to protect himself.
[¶16] The parties stipulated that the medical examiner, Tara Jones, would testify that Nabry had stab wounds in the right upper and left side of his chest as well as abrasions, he died as a result of the multiple stab wounds and his death was a homicide. Toxicologist Peter Koin would testify that a toxicologic analysis of Nabry's blood showed it contained " a significant amount of cocaine," a byproduct of cocaine named benzoylecgonine and morphine. Evidence technician William Buglio would testify that he processed the crime scene and inventoried, inter alia, blood samples found on the first, second and third floors, a 25-pound hand weight, a crack pipe, a 33-inch-long metal pipe with a suspected bloodstain, two other pipes with suspected blood stains, a Leatherman pocket tool and a kitchen knife with a 5-inch blade. Jennifer Barrett and Christine Creagan of the Illinois State Police crime lab would testify that they found no fingerprints or presence of blood on the pocket tool. They lastly stipulated that Gushiniere's apartment was on the third floor.
[¶17] Yolanda McElroy testified that on February 17, 2010, she was walking with defendant when they met Nabry and Gushiniere on the street. It was nighttime and dark. The four of them went to a third-floor apartment. McElroy stated that there was " stuff" on the floor but did not remember having to step over a dumbbell, knife or pocket tool to get into the apartment. She and defendant sat on the couch, Nabry sat on the bed and Gushiniere was in the back of the apartment. Everyone drank beer and defendant and Nabry smoked crack pipes. " Not long" thereafter, defendant told her that he had to leave for a few minutes " to go make a run."
[¶18] Defendant left with Gushiniere, leaving her alone in the apartment with Nabry. She chatted with Nabry and then went to the bathroom. While she was in there, Nabry pushed the door open and came in. He asked her whether they could " hook up and get together." She told him no, because she was with defendant, and Nabry " was like okay, I can respect that." While they were still in the bathroom talking, defendant and Gushiniere returned to the apartment. Defendant pushed the bathroom door open, saying " what's going on in here, what are you doing." McElroy testified he " was upset."
[¶19] McElroy left the bathroom, followed by Nabry, and defendant then went into the bathroom. She testified that, " when [defendant] came out of the bathroom he was even more angrier," was " yelling" at her and " appeared to be high." She could tell he was high because his eyes
were glassy and " he was looking and, you know, like acting frantic." McElroy was sitting on the couch. Defendant approached, stood over her and " started arguing" with her, asking her " what did they give you, what did you do?" He started searching her pockets and lunged at her. Gushiniere " got in the middle" and told defendant to leave her alone. McElroy testified that Gushiniere and defendant then started a " pushing match." She saw defendant reach into his back pocket, pull out a black and gray switchblade knife and hold it at his side. When McElroy yelled his name and " no," defendant put the knife back in his pocket
[¶20] McElroy testified that, when defendant pulled out the knife, Gushiniere picked up a pole. After defendant put the knife back in his pocket, he and Gushiniere were wrestling, " tussling" back and forth, with Gushiniere telling defendant to leave and pushing defendant with the pole, trying to back him toward the door. McElroy stated that Nabry then started helping Gushiniere and together they were able to get defendant out of the apartment. Gushiniere also left the apartment, still holding the pole. McElroy watched through a window and saw Gushiniere and defendant go to a street corner. They were talking " kind of loud," arguing or discussing, she could hear their voices through the window. A police car pulled up. The police officers took the pole and Gushiniere returned to the apartment.
[¶21] McElroy testified that she was upset and nervous and asked to borrow a phone so that she could have someone come and pick her up. She told Gushiniere that defendant " was upset right now" and she did not want to run into him. Nabry and Gushiniere told her defendant was gone but she responded that " no, believe me, he's not gone." She had known defendant for three years and was dating him at the time.
[¶22] Five minutes after Gushiniere returned, someone started banging on the apartment door. She had not heard the doorbell ring and no one had buzzed anyone into the apartment building. McElroy heard defendant's voice at the door, saying " yo, it's time to go, let the bitch out of there, come on out." She testified defendant kept banging and Nabry and Gushiniere decided to open the door. She stated one of them, she did not remember which one, picked up an " arm weight lift [dumb bell]" and the other picked up a weight pole. She did not know who opened the door.
[¶23] McElroy testified that, " when the door opened, [defendant] charged at them." Gushiniere and Nabry were standing in the doorway and defendant " charged right into them, trying to get into the apartment." She stated she " didn't see anything in his hands." A fight ensued. McElroy stated she " [could not] say who did what as far as who hit who where and that kind of thing, but [defendant] charged at them. [Gushiniere] and [Nabry were] blocking the apartment way and they were fighting with him to try and get him backwards, to go back out the apartment door." They were using their hands to try to get defendant out and she did not see anyone hit him with the dumbbell.
[¶24] McElroy testified that Gushiniere and Nabry prevented defendant from coming into the apartment by wrestling him " backwards" out into the hallway. She did not see them hit him with anything or him hit them with anything. She walked backwards further into the apartment away from them. Once the men were in the hallway, she heard " a lot of bumping noises, a lot of tussling and bumping, and you know, fighting noises." After a few minutes, she heard someone moaning " ahh,
ooh, he stabbed me." After all was quiet and she heard the downstairs door closing, McElroy went into the hallway. She saw Nabry lying on his stomach surrounded by blood and Gushiniere on his knees, shirtless, with a wound in his back. She did not see any of the fight happening in the hallway because she did not go out into the hall until the fight was over.
[¶25] On cross-examination, McElroy admitted that, although she told the grand jury that she did not have a case pending at the time of the grand jury hearing, she had actually been arrested for prostitution the day before the stabbing and had a court date pending when she went before the grand jury. She stated she had not lied to the grand jury because, although she had a court date, the case was ultimately dismissed. McElroy acknowledged that she took an antipsychotic medication named Seroquel as well as other medications for bipolar disorder. She knew she should not drink alcohol with the medications and had not taken her evening medication on the day of the incident because she was drinking. McElroy testified that she was not high or tipsy at the time of the stabbing and was not on her medication.
[¶26] Defense counsel asked her why, in her statement to police officers, she did not tell them that defendant and Nabry were smoking crack. McElroy replied that she did not remember what she specifically told the State's Attorney or police officers regarding when the smoking started but that she did tell them about the crack and that the smoking did happen. She admitted she did not tell the officers that defendant had been " put out" of the apartment with a pole but that she should have. She admitted she did not tell them defendant had left earlier with Gushiniere, but she should have told them because " it happened."
[¶27] McElroy stated that she was offered crack but politely refused it. She had used drugs in the past but had " been clean and sober" since she went into treatment on August 12, 2009. When she had used drugs in the past, she and defendant would " party with people," have sex with other men. When Nabry followed her into the bathroom, he asked her about " partying or trying to get with" her, i.e., sex, but did not offer her money or drugs for sex. She thought she had told the police officers about her conversation with Nabry in the bathroom, defendant's being angry about it, his going into the bathroom alone and coming out acting differently, " high and irate," and his arguing with her about what Nabry might have given her. McElroy admitted telling the grand jury that defendant lunged at her and Nabry got between them but, in fact, Gushiniere got between them. She stated she made the error was because, at the time of the grand jury, she did not know Nabry's and Gushiniere's names and confused them. She had not reported to police that Gushiniere had intervened between her and defendant and started pushing defendant out of the apartment with a pole. She had not seen the knife shown in defense exhibit No. 3 or the utility knife shown in defense exhibit No. 5 that night. She stated that she had not been offered " any deals" in exchange for testifying in front of the grand jury.
[¶28] Defendant testified that, on the evening of February 17, 2010, he and McElroy were on their way to dinner when they ran into Nabry and Gushiniere on the street. He subsequently testified that he and McElroy had been on their way to Nabry's house to see if they could get high. He had known Nabry for three years. Defendant ...