People v. Gerken

2023 IL App (2d) 220450-U

• Court: Appellate Court of Illinois
• Decided: August 21, 2023
• Docket: 2-22-0450
• Status: Unpublished

Opinion

2023 IL App (2d) 220450-U No. 2-22-0450 Order filed August 21, 2023

NOTICE: This order was filed under Supreme Court Rule 23(b) and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1). ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of De Kalb County. ) Plaintiff-Appellee, ) ) v. ) No. 15-CF-706 ) CHRISTOPHER GERKEN, ) Honorable ) Marcy Buick, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE HUTCHINSON delivered the judgment of the court. Justices Jorgensen and Schostok concurred in the judgment.

ORDER

¶1 Held: The trial court did not err in summarily dismissing defendant’s postconviction petition; defendant’s claim was forfeited as it could have been raised on direct appeal and, in any event, defendant was not entitled to an “accomplice-witness” jury instruction.

¶2 A jury found defendant, Christopher Gerken, guilty of first-degree murder in the shooting

death of Matthew Clark, a known drug dealer, and was sentenced to 60 years’ imprisonment.

Defendant now appeals from the dismissal of his pro se postconviction petition. He contends that

the trial court should have advanced the petition to second-stage proceedings because his trial 2023 IL App (2d) 220450-U

counsel was ineffective for failing to request an “accomplice-witness” jury instruction, and his

direct-appeal counsel was ineffective for failing to raise the issue in his first appeal. We affirm.

¶3 I. BACKGROUND

¶4 The facts of this case were extensively detailed when we affirmed defendant’s convictions

on direct appeal (see People v. Gerken, 2021 IL App (2d) 170839-U) and need not be repeated at

length.

¶5 On October 6, 2015, Trevor Motsinger called 9-1-1 from just outside Clark’s apartment in

De Kalb to report that Clark had been shot. Motsinger told the dispatcher that he did not know the

person who shot Clark and said he saw the suspect run off in a particular direction. Both of those

statements were lies. Motsinger knew defendant shot Clark and gave the authorities the wrong

direction that defendant ran off in. Motsinger was later arrested, for cocaine possession, at the

scene.

¶6 At defendant’s trial, Motsinger explained that he had been friends with defendant since

childhood. Clark was Motsinger’s recent acquaintance, whom Motsinger met through Clark’s

girlfriend, who lived with her young daughter and Clark. That summer, Motsinger worked as a

middleman distributing Clark’s cocaine. On September 29, 2015, defendant drove Motsinger to

the apartment. Motsinger went inside and brought what he believed was 1.5 grams of cocaine out

to defendant. Defendant remarked that it felt “a little short” and Motsinger went back inside. Clark

reweighed the cocaine and agreed that it was short; he added the difference, and Motsinger brought

it back to defendant who appeared satisfied. Defendant then drove Motsinger home.

¶7 Later, defendant texted Motsinger to say he was not satisfied and wanted a refund.

Motsinger informed Clark, who replied via text message that defendant was “a bitch.” After

Motsinger texted defendant that Clark would not be remedying the situation to defendant’s

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satisfaction, defendant texted back that he was short $50 worth of cocaine, that he “need[ed]” the

missing amount, and then said, “I want my shit one way or the other.” Defendant also accused

Motsinger of having “got down” on him and having been involved with the missing cocaine.

Motsinger told defendant he would speak to Clark and address defendant’s problem.

¶8 On October 6, 2015, defendant texted Motsinger that he wanted a “ball”—which is short

for an “eight ball,” one-eighth an ounce, or 3.5 grams of cocaine. As before, defendant picked up

Motsinger and drove to Clark’s apartment, but this time, defendant parked in a different area than

before.

¶9 As they sat in the van, defendant pulled out a pistol—a .357 magnum revolver—and

concealed it on his person in either his hoodie or his waistband. Motsinger saw the gun and told

defendant “[d]on’t do it” reminding defendant that Clark lived with his girlfriend’s child (who

often slept in the front room) and that defendant had children of his own. Defendant indicated that,

at most, he was only going to “scare” Clark if necessary. As they walked towards Clark’s

residence, defendant appeared calm, but eventually said, “I’m not no bitch.”

¶ 10 Motsinger walked up the stairs to the door to the apartment. Clark opened the door and

stepped out onto the porch. Motsinger told Clark that defendant was downstairs, and Clark told

defendant to come upstairs. When defendant came upstairs, he and Clark began to scuffle and

pulled at each other’s arms and hands, as if trying to grab something away from each other.

Motsinger stepped back, away from the scuffle. Clark pulled away from defendant, went inside,

and closed the door. Then, defendant fired one shot through the door, striking Clark. Defendant

then fled on foot.

¶ 11 Motsinger started knocking on the door; Clark opened it and said that he had been shot.

Motsinger went inside and checked on Clark, and Clark handed him money and cocaine as he sat,

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dying. Motsinger also made sure Clark’s girlfriend and her daughter were not hurt. Then, he called

9-1-1 and, again, reported that Clark had been shot, but Motsinger lied and said he did not know

who shot Clark and gave the dispatcher a different direction from where defendant ran off.

¶ 12 The police quickly arrived but Clark ultimately died from his wound. Motsinger gave the

police several different stories about the events surrounding the shooting and who the perpetrator

was. Motsinger said he was scared for himself and his family, which was why he lied. He

eventually consented to a search of his cell phone and told the police that defendant shot Clark.

Motsinger pled guilty to cocaine possession and agreed to testify truthfully at defendant’s trial.

¶ 13 Defendant was later arrested by the police and the SAR .357 magnum revolver, which fired

the shot that killed Clark, was found in his possession. Defendant testified that he believed Clark

was armed and that he shot Clark in self-defense. Based on defendant’s testimony, the jury was

instructed on self-defense and second-degree murder. The jury ultimately found defendant guilty

of first-degree murder, and the trial court sentenced him to 60 years’ imprisonment.

¶ 14 On direct appeal, defendant contended that his trial was rendered unfair because (1) a

venireperson possibly mentioned a newspaper article about the case, which referenced defendant’s

lengthy criminal history, (2) a police officer gave emotional testimony about Clark’s final

moments and embraced the victim’s family after testifying, and (3) the prosecution’s comments

during closing argument. We rejected defendant’s contentions and affirmed his conviction and

sentence. See Gerken, 2021 IL App (2d) 170839-U, ¶¶ 46, 53, 59, 64. (Separately, defendant also

pled guilty to one count of unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a)

(West 2014)) and was given an additional five-year sentence. That conviction was not at issue in

defendant’s direct appeal or this appeal.)

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¶ 15 In 2022, defendant filed a pro se postconviction petition, which raised eight ineffective-

assistance claims, including that his trial counsel should have sought “a jury instruction regarding

accomplice testimony.” We note that the pro se petition made no mention of ineffectiveness by

defendant’s direct-appeal counsel. The trial court found that defendant’s petition lacked merit and

issued a two-page memorandum order summarily dismissing it. Defendant appealed, and the trial

court appointed the Office of the State Appellate Defender to represent him.

¶ 16 II. ANALYSIS

¶ 17 Before this court, defendant has abandoned seven of his eight postconviction claims. He

contends that the sole issue in this appeal is whether trial counsel was ineffective for failing to

request the accomplice-witness instruction Illinois Pattern Jury Instructions, Criminal, No. 3.17

(approved Oct. 17, 2014) (hereinafter IPI Criminal No. 3.17). The State contends that defendant

forfeited this argument by not raising it on direct appeal, and by failing to claim in his pro se

petition that appellate counsel was ineffective. Forfeiture aside, the State also contends the trial

evidence did not warrant an instruction treating Motsinger as an accomplice, and alternatively that

the failure to request the instruction was harmless. For the reasons that follow, we agree with the

State.

¶ 18 Before we turn to these issues, however, we must address one incorrect aspect of the trial

court’s order dismissing defendant’s pro se petition. The Post-Conviction Hearing Act (725 ILCS

5/122-1 et seq. (West 2020)) enables an Illinois criminal defendant to collaterally attack their

conviction and sentence on constitutional grounds. Under the state and federal constitutions, a

criminal defendant is entitled to the effective assistance of counsel (U.S. Const., amends. VI, XIV;

Ill. Const. 1970, art. I, § 8)) and a claim of ineffective-assistance of counsel may be pursued in a

postconviction petition. See generally Strickland v. Washington, 466 U.S. 668 (1984).

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¶ 19 We note that, citing People v. Murphy, 72 Ill. 2d 421 (1978), the trial court’s order

dismissed defendant’s petition under a long-repudiated framework, using a much higher standard

for gauging trial counsel’s effectiveness, because defendant retained private counsel for trial. As

defendant’s reply brief notes, our supreme court abrogated this approach in People v. Royse, 99

Ill. 2d 163 (1983). See also Cuyler v. Sullivan, 446 U.S. 335, 344-45 (1980) (holding that there is

“no [constitutional] basis for drawing a distinction between retained and appointed counsel” as it

“den[ies] equal justice to defendants who must choose their own lawyers”). Later, in People v.

Albanese, 125 Ill. 2d 100, 105-07 (1988), the court adopted the now-familiar performance-

prejudice test, as set forth in Strickland v. Washington, 466 U.S. 668 (1984), which does not

differentiate between public and private counsel. That said, we review the petition’s dismissal

de novo and may affirm on any basis in the record. People v. Kimmons, 2022 IL App (2d) 180589,

¶ 33. Thus, if we reach the petition’s merits, the question for us is the correctness of that result,

i.e., the dismissal of the petition had the correct Strickland standard been applied, regardless of the

rationale or precedent used by the trial court.

¶ 20 Next, the State is correct that defendant indeed forfeited his jury instruction claim.

Defendant’s pro se petition made no mention of appellate counsel’s ineffectiveness; that argument

was, for the first time, added by defendant’s appellate counsel in his opening brief before this

court. After the State raised this obvious forfeiture, defendant’s appellate counsel filed a reply brief

lamenting that defendant’s petition did not “fully” set forth a claim of ineffective-assistance of

direct-appeal counsel, but that the petition was nevertheless sufficient. We disagree. It is axiomatic

that we cannot review the petition’s dismissal based on claims that were never presented to the

trial court. People v. Blair, 215 Ill. 2d 427, 442 (2005); People v. Mars, 2012 IL App (2d) 110695,

¶¶ 31-33. Accordingly, we would be within our rights to find defendant’s claim forfeited and to

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affirm on that basis alone. Nevertheless, because the matter is straightforward, we elect to relax

the forfeiture rule and address defendant’s claim on the merits.

¶ 21 As noted, claims of ineffective assistance are analyzed by using the two-prong test

established in Strickland, 466 U.S. at 687. To prevail, a defendant must show that counsel’s

performance was deficient, or professionally unreasonable, and that the deficient performance was

prejudicial, i.e., that there is a reasonable probability that, but for counsel’s action or inaction,

defendant would have been acquitted. Id. at 689-94. The failure to establish either deficient

performance or prejudice precludes a finding of ineffective assistance. Id.; see also Delaware v.

Van Arsdall, 475 U.S. 673, 681 (1986) (“the Constitution entitles a criminal defendant to a fair

trial, not a perfect one”). We determine that defendant has not established either deficient

performance or prejudice.

¶ 22 With respect to the accomplice-witness instruction, this court recently addressed this

precise issue in People v. Quezada, 2022 IL App (2d) 200195, app. granted, No. 128805 (Nov.

30, 2022)—a case which defendant’s counsel here neither cited nor distinguished. Although our

supreme court granted review in that case, our disposition set out a comprehensive statement on

the law surrounding this issue, and it is that underlying body of law that controls our decision

today.

¶ 23 The accomplice-witness instruction provides:

“When a witness says he was involved in the commission of a crime with the

defendant, the testimony of that witness is subject to suspicion and should be considered

by you with caution. It should be carefully examined in light of the other evidence in the

case.” IPI Criminal No. 3.17.

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As we said in Quezada, “The test for determining whether a witness is an accomplice, such that a

defendant is entitled to have IPI Criminal No. 3.17 given to the jury, is “ ‘whether there is probable

cause to believe that [the witness] was guilty either as a principal, or on the theory of

accountability.’ ” Quezada, 2022 IL App (2d) 200195, ¶ 43 (quoting People v. Cobb, 97 Ill. 2d

465, 476 (1983) (quoting People v. Robinson, 59 Ill. 2d 184, 191 (1974))). In other words, “ ‘[t]he

instruction should be given if the totality of the evidence and the reasonable inferences derived

from the evidence establish probable cause to believe that the witness participated in the crime, as

either a principal or an accomplice.’ ” Id. (quoting People v. Hunt, 2016 IL App (2d) 140786,

¶ 52). Accordingly, “the evidence must show that there is probable cause to believe that the witness

was not merely present “ ‘and failed to disapprove of the crime, but that he participated in the

planning or commission.’ ” Id. (quoting People v. Kirchner, 194 Ill. 2d 502, 541 (2000) (quoting

People v. Henderson, 142 Ill. 2d 258, 315 (1990)). Put differently, to have been an accomplice to

Clark’s murder, defendant must be able to point to evidence showing that Motsinger participated

“knowingly, voluntarily[,] and with common interest” in Clark’s shooting. See People v. Wheeler,

401 Ill. App. 3d 304, 313 (2010).

¶ 24 As in Quezada, here, there was no probable cause to believe that Motsinger was an

accomplice to Clark’s murder. Attached to defendant’s petition was a police report, indicating that

one officer was initially suspicious of Motsinger’s involvement based on his series of stories about

the shooting. But that report was excluded from defendant’s trial and played no role in his

conviction. The evidence that was admitted, however, showed that Motsinger was, at most,

facilitating a cocaine transaction at defendant’s request, was aware that defendant was in

possession of a firearm and implored defendant not to use it, and was present when defendant shot

Clark, who at the time was Motsinger’s de facto employer. Throughout his testimony, Motsinger

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consistently denied any involvement in the planning or execution of Clark’s death, and no contrary

evidence was ever introduced. There was no evidence whatsoever that Motsinger shared

defendant’s intent to shoot Clark or had any sort of common design with defendant to kill Clark.

See generally People v. Fernandez, 2014 IL 115527, ¶ 13. Motsinger knew defendant since

childhood, and never previously knew defendant to present a threat of mortal violence. In fact,

defendant’s own testimony was that he shot Clark in “self-defense,” and not as part of some sort

of plan with Motsinger’s participation or even his acquiescence. As the State crystallized perfectly

at oral argument, defendant’s trial defense was completely incompatible with his present argument,

as one cannot lawfully “plan” on committing an act of self-defense in advance, let alone with an

“accomplice.” As our colleagues in the First District have noted, even where an “accountable

defendant promotes or facilitates a crime by another[,]” and harbors the erroneous “belief that self-

defense is necessary[,]” he or she “is [actually] not culpable at all ***.” People v. Jones, 2016 IL

App (1st) 141008, ¶ 34. It is the defendant, as the principal, who is liable for his or her use of force.

¶ 25 In addition, at oral argument, defendant’s counsel asserted for the first time that our

supreme court’s decision in People v. Fane, 2021 IL 126715, dictated that IPI Criminal No. 3.17

should have been requested during defendant’s trial. Counsel conceded that she did not cite Fane

in her briefs, but nevertheless, urged us to consider it. Having done so, we are not persuaded, and

have rejected this argument before. In Fane, “our supreme court discussed when the instruction

should be given but did so in holding that the trial court did not err in giving the instruction.”

(Emphasis in original.) Quezada, 2022 IL App (2d) 200195, ¶ 47. To say that a trial court did not

err in issuing the instruction in a different case does not mean that trial counsel was unreasonable

for declining to request an unwarranted instruction in this case.

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¶ 26 We have carefully examined the record and agree with the State that there was no evidence

that would warrant treating Motsinger as defendant’s accomplice. Again, at most, Motsinger

arranged the cocaine transaction for which he was merely present when defendant shot Clark,

which was not sufficient evidence to merit instructing the jury with IPI Criminal No. 3.17.

¶ 27 Accordingly, we determine that it was not deficient performance for trial counsel not to

request the accomplice-witness instruction, and by extension appellate counsel’s performance was

not deficient for failing to raise that issue on direct appeal. Moreover, had the instruction been

given, there is no reasonable probability that defendant would have been acquitted. As in Quezada,

the jury was instructed generally on the believability of witnesses, and defendant’s trial counsel

extensively argued Motsinger’s credibility before the jury. The jury was thus faced with a binary

choice, between whether to accept Motsinger’s testimony or to reject it. We cannot say that the

jury’s decision to accept his testimony was unreasonable—particularly given the evidence that

Clark had been in retreat and that defendant fired at Clark through the apartment door when he

posed no threat—or that instructing the jury with IPI Criminal No. 3.17 would have altered that

verdict.

¶ 28 III. CONCLUSION

¶ 29 In sum, we affirm the judgment of the Circuit Court of De Kalb County, which summarily

dismissed defendant’s pro se petition.

¶ 30 Affirmed.

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