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People v. Wingate

Court of Appeals of Illinois, Fifth District

April 20, 2015

GARY WINGATE, Defendant-Appellant

Motion to publish granted, April 20, 2015.

Rule 23 Order Filed: April 3, 2015.

Page 276

Appeal from the Circuit Court of St. Clair County. No. 05-CF-1784. Honorable Michael N. Cook, Judge, presiding.

For Appellant: Michael J. Pelletier, State Appellate Defender, Ellen J. Curry, Deputy Defender, Dan W. Evers, Assistant Appellate Defender, Fifth Judicial District, Mt. Vernon, IL.

For Appellee: Hon. Brendan F. Kelly, State's Attorney, St. Clair County, Belleville, IL; Patrick Delfino, Director, Stephen E. Norris, Deputy Director, Sharon Shanahan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, Fifth District Office, Mt. Vernon, IL.

JUSTICE MOORE delivered the judgment of the court, with opinion. Presiding Justice Cates and Justice Stewart concurred in the judgment and opinion.


Page 277

James R. Moore, Justice.

[¶1] The defendant, Gary Wingate, appeals the dismissal, by the circuit court of St. Clair County and at the second stage of proceedings, of his petition for postconviction relief. For the following reasons, we affirm.

[¶2] FACTS

[¶3] The facts necessary to our disposition of this appeal follow. They are derived from this court's review of the record on appeal, as well as from our earlier disposition in this case, in which, on direct appeal, we affirmed the defendant's convictions and his sentence. People v. Wingate, 403 Ill.App.3d 1121, 993 N.E.2d 156, 373 Ill.Dec. 156 (2010) (unpublished order under Supreme Court Rule 23). As we explained therein, the defendant was charged with first-degree murder, aggravated discharge of a firearm, and aggravated unlawful use of a weapon, all in connection with the shooting death of Darlene Russell on November 1, 2005. The trial court granted the defendant's motion to sever the aggravated-unlawful-use-of-a-weapon charge, and the State elected to proceed on the remaining counts.

[¶4] Andre Garrett testified at the defendant's jury trial as follows. On November 1, 2005, he was living with his wife, Darlene Russell, at 5204 Caseyville Avenue in Washington Park, Illinois. Garrett saw the defendant, who lived nearby, walking down 52nd Street. Garrett approached the defendant, whom he had known for more than 20 years, to speak with the defendant about some money the defendant owed Russell. As Garrett approached, the defendant raised his fists and began to talk " crazy." Fearing that the defendant would strike him, Garrett punched the defendant, knocking him down. Garrett testified that he was a former amateur boxing champion and that he " never owned a gun, never carried a gun." After knocking down the defendant, Garrett went back into his house. Russell then went to speak with the defendant. Garrett followed her, telling her to come back inside. Garrett saw the defendant in a nearby yard and saw a person he knew as " Torre" (Torrian Hopkins), who had been with the defendant when Garrett punched him, across the street, walking across a field. Garrett urged Hopkins to stop and talk with him, but Hopkins continued walking and said, " I ain't got nothing to do with it."

[¶5] Garrett then heard a sound he described as " du-du-du-du-du." He turned and saw the defendant on his knees and firing a weapon in Garrett's direction. At first, Garrett thought the defendant was firing blanks, but when he heard gunfire strike his house, he and Russell ran to the house. As Russell was standing on the porch reaching for the door, she was struck and killed by gunfire. The shooting stopped, and when Garrett arrived at the porch, he saw blood on it. Garrett turned

Page 278

and saw the defendant fleeing through an alley carrying " a big rifle."

[¶6] Keith McNeal testified that on November 1, 2005, he was at the home of his cousin, Bryan Turner, at 1542 North 52nd Street, helping Turner repair an automobile. Just to the south of Turner's house was the house where the defendant stayed. McNeal saw Garrett and the defendant and heard them arguing about money. McNeal went inside to get some tools, and when he came out, he saw the defendant lying on the ground. The defendant got up and said that he was " going to get" Garrett. Turner then sent McNeal to a nearby liquor store to purchase some soft drinks. As McNeal was walking back to Turner's house, he heard the sound of gunfire. As he reached Turner's house, he saw " somebody" walk down the alleyway and turn left onto 49th Street. McNeal could not positively identify the man he saw in the alley, but his height and build were similar to the defendant's.

[¶7] Bryan Turner testified that he saw Garrett strike the defendant and knock him to the ground. After Garrett left, the defendant got up and walked away. Douglas Scott testified that on November 1, 2005, he was at Turner's house helping Turner and McNeal work on a car. The defendant was outside the house next door. Garrett walked up and the two men began arguing about money. Garrett struck the defendant, knocking him to the ground. Garrett walked away. After about 10 or 15 minutes, the defendant got up and went into his house. Russell came over to Garrett and tried to calm him down. The defendant came out of his house carrying an " AK-47" and went towards the alley. The defendant then began shooting at Garrett. The defendant knelt as he fired. He stood up, walked toward Garrett's house, knelt, and then fired some more. Garrett was running from the defendant, toward his house. Scott saw Russell " laying [ sic ] there." The defendant then ran away, still holding the rifle.

[¶8] Willie T. Lee testified that on November 1, 2005, he was outside his automobile repair business when he heard the sound of gunfire. Shortly thereafter, Lee saw " [a] black guy" with a rifle coming up the alley towards him. The man turned down a street, walked up three houses, and went into an abandoned building. Lee did not see the man's face clearly but described him as being short, with a stocky build. Dennis Janis, a crime scene investigator with the Illinois State Police, testified that on November 1, 2005, he was directed to the vicinity of Caseyville Avenue and 52nd Street in Washington Park, Illinois. Garrett's house had sustained damage that was " consistent with gunshot damage." Janis recovered " a projectile" from the side door of the house and " a bullet jacket" from a " porch post." Two vehicles near the house had also been damaged by gunfire. Janis recovered " a projectile and a fragment" from one of the vehicles. Janis searched the vicinity around Garrett's house and found a number of " discharged 7.62 cartridge cases." Janis also searched an abandoned house nearby, where he found an " assault rifle" under a mattress. The following day Janis attended Russell's autopsy. The pathologist removed a " jacket and fragment" from Russell's body, which ...

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