People v. Jenkins

2025 IL App (5th) 220546-U

Opinion

NOTICE 2025 IL App (5th) 220546-U NOTICE Decision filed 11/12/25. The This order was filed under text of this decision may be NO. 5-22-0546 Supreme Court Rule 23 and is changed or corrected prior to not precedent except in the the filing of a Petition for IN THE limited circumstances allowed Rehearing or the disposition of under Rule 23(e)(1). the same. APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Madison County. ) v. ) No. 21-CF-3769 ) WILLIAM A. JENKINS, ) Honorable ) Neil T. Shroeder, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE BOLLINGER ∗ delivered the judgment of the court. Justices Barberis and Boie concurred in the judgment.

ORDER

¶1 Held: We affirm defendant’s conviction and sentence where defense counsel did not provide ineffective assistance by not requesting separate verdicts on the three reasonable theories of first degree murder charged.

¶2 Defendant-Appellant, William A. Jenkins, was found guilty following a jury trial in the

circuit court of the Third Judicial Circuit of Madison County of first degree murder (720 ILCS

5/9-1(a)(1)-(3) (West 2020)) and attempted armed robbery (id. § 8-4(a), 18-2(a)(2)). He was

thereafter sentenced to 50 years for first degree murder, 15 years for a mandatory firearm

enhancement where the jury found a firearm was used in the commission of the offense, and 10

years for attempted armed robbery, all to run consecutively for a total of 75 years of imprisonment

∗ Justice Welch was originally assigned to the panel before his death. Justice Bollinger was later substituted on the panel and has reviewed the briefs and record. 1 in the Illinois Department of Corrections. Defendant now appeals his conviction and sentence,

maintaining that his defense counsel was ineffective for failing to request the verdicts for his first

degree murder conviction be separated, where he was charged under three separate theories of first

degree murder: (1) intentional first degree murder (id. § 9-1(a)(1)); (2) knowing first degree

murder (id. § 9-1(a)(2)); and (3) felony first degree murder (id. § 9-1(a)(3)). Defendant does not

challenge the conviction itself but asserts that a partition of the first degree murder verdict would

have resulted in a conviction only on the theory of felony murder, and thus would have resulted in

the underlying felony, attempted armed robbery, merging into the murder conviction and only a

65-year sentence. For the following reasons, we affirm the judgment and sentence of the trial court.

¶3 I. BACKGROUND

¶4 On December 7, 2021, Andre Hutson was shot multiple times in the front yard of Ingrid

Kramer’s home, after leaving her house at approximately 11:45 p.m. He was pronounced dead

shortly thereafter, in the early hours of December 8, 2021. Dr. Nathaniel Patterson, a forensic

pathologist, performed Hutson’s autopsy. Dr. Patterson testified that Hutson had multiple gunshot

wounds, bullets and bullet fragments in his body, a taser probe in the left side of his chest, a broken

fingernail, and some abrasions. Dr. Patterson testified that Hutson’s cause of death was multiple

gunshot wounds. Josh Easton, a crime scene investigator, testified that he discovered 9-millimeter

caliber bullet casings at the scene of the crime. Timothy Johnson, a forensic scientist for the Illinois

State Police, testified that the bullets and bullet fragments found in Hutson’s body and the bullet

casings found at the scene of the crime were all fired from the same firearm.

¶5 Video evidence and testimony from Kramer and one of her next-door neighbors, Patrick

Childress, indicated that two men dressed in all dark clothing committed the crime. Video evidence

showed two individuals dressed in dark clothing approaching the crime scene at approximately

2 10:19 p.m., prior to the incident. Video evidence also showed an individual exiting Kramer’s home

at approximately 11:46 p.m., followed shortly by two other individuals entering the frame and a

couple flashes of light. Within the same minute, the video showed two individuals in dark clothing

leaving the scene, one running and the other jogging with an altered gait.

¶6 Kramer testified that she walked Hutson to her door, then closed and locked the door behind

him after he left. She testified that shortly thereafter, she heard Hutson say “hey” and thought he

needed to come back into her home. She testified that she opened her door and saw two men

dressed in dark clothing running across her yard; one of the men already had Hutson “off-balance,”

and the other turned and started towards her. She testified that she slammed and locked her door,

ran to her bathroom, and locked herself in out of fear; she did not have her phone while locked in

the bathroom. Childress testified he saw two men in all black clothing pass his front yard after

what he later learned was the sound of gunshots. Childress testified that the first man who passed

his yard was wearing a ski mask, but Childress could tell he was a black man because the man had

nothing on his hands, and his hands were visible. Childress testified that the first man began by

strolling by his yard, then jogged; the second man ran past the yard. Kramer and Mekisha

McDougle, Kramer’s other next-door neighbor, both testified to hearing multiple gunshots; neither

person testified that they observed the shooting.

¶7 Linda Lovett testified that Larry Lovett, co-defendant and Linda Lovett’s nephew, arrived

at her house having been shot; she testified co-defendant was wearing a black sweatshirt and that

defendant, who arrived with co-defendant, was wearing dark clothes. Co-defendant’s ex-girlfriend,

Amber Darden, testified that she allowed co-defendant to borrow her vehicle, a 2019 white Buick

Encore, that night, and Marcus Bush—the individual defendant later implicated as the shooter to

police in his interrogation—told her to retrieve her car around 11 p.m., and Bush gave her the keys.

3 Darden testified that Bush was wearing a red shirt when she saw him on the night of the incident.

Surveillance video from Barnes-Jewish Hospital captured a white Buick SUV arriving at the

emergency department at approximately 12:14 a.m. on December 8, 2021. The video showed a

gunshot victim exiting the vehicle. Seth Richardson, a public safety officer for Barnes-Jewish

Hospital that night, testified that the driver of the vehicle told the victim to get out of the vehicle;

Richardson observed two other men in the vehicle, and discovered the gunshot victim’s last name

was Lovett.

¶8 Captain Brian Koberna of the Madison County Sheriff’s Office, and Deputy Commander

of the Major Case Squad, testified that he analyzed the data taken from Darden’s vehicle. He

testified that the data showed the vehicle left the area of Darden’s residence at 8:08 p.m., arrived

at the area of defendant’s residence at 8:22 p.m., drove past the area where the crime occurred, and

arrived in the area of Bush’s residence at 8:57 p.m. He testified that the data also showed the

vehicle arrived in the area of Lovett’s residence at 9:01 p.m., left to drive to the area of Bush’s

residence at 10:18 p.m., and returned to the area of Lovett’s residence at 10:32 p.m. He testified

that the vehicle’s data showed it was active again around 11:30 p.m., when it made a loop in the

area of the incident and, “following the homicide” the vehicle traveled to Barnes-Jewish Hospital,

then stopped at defendant’s home around 12:48 a.m., before ultimately coming to rest outside of

Bush’s residence.

¶9 Exhibits showed that in the days leading up to the murder, cellular phone numbers

belonging to defendant and co-defendant engaged in a text exchange discussing where to “strike,”

the need for “gloves,” and doing “it” whether they had access to a car or not. Sergeant Detective

James Witcher, of the Madison Police Department and a member of the Major Case Squad,

testified that he saw black vinyl gloves on the ground around the corner of the crime scene. He

4 testified that he believed the gloves had some evidentiary value, and both he and Officer Howell,

at the time a member of the Venice Police Department, testified that Officer Howell stayed with

the gloves until a crime scene investigator arrived. Prior to the discovery of the gloves, Officer

Howell was one of the first on the scene and testified that he observed a taser next to Hutson’s

body. In her testimony, Darden stated she had seen co-defendant with a taser before.

¶ 10 Jason Perkins, a crime scene investigator for the Illinois State Police, testified that he

searched Darden’s home and vehicle. He testified that he obtained a taser probe from the back seat

of her vehicle. Darden testified that officers also obtained the phone belonging to co-defendant

and black vinyl gloves from her home. James Riggins, a trace chemist and forensic scientist for

the Illinois State Police, examined the two gloves found near the crime scene, and the three gloves

found in Darden’s home on her dresser. Riggins testified that, due to a lack of broken gloves or

separated edges, a physical match of the two groupings of gloves was precluded. Riggins testified,

however, that the gloves all had a similar, unique, glitter-like effect, and were the same color,

dimensions, thickness, and material.

¶ 11 Jay Winters, a forensic scientist for biology and DNA for the Illinois State Police, analyzed

the DNA in this case. He testified that, after analyzing the DNA discovered in the black vinyl

gloves found near the crime scene and on the taser probe found in the back seat of Darden’s vehicle,

it was his opinion that the DNA belonged to defendant.

¶ 12 Captain Koberna interrogated defendant on December 14, 2021, and testified to some of

the items investigators took photographs of and/or obtained from the search of defendant’s home.

He testified that investigators found dark articles of clothing in defendant’s home. He also testified

that investigators found a generic gun case containing a 9-millimeter Glock magazine; no firearm

was found in defendant’s home.

5 ¶ 13 In his recorded interrogation with police, which was admitted into evidence and watched

by the jury, defendant admitted to being with co-defendant on the night of the incident. He further

admitted that he and co-defendant planned to rob Hutson but stated that he only drove the

“getaway” vehicle because co-defendant asked him for “help.” Defendant stated that Bush had a

taser probe dangling from his chest, and that he saw Bush take the probe out and throw the probe

out of the vehicle.

¶ 14 At points defendant stated he rode in the back seat, walked to the store, or needed to be

picked up when co-defendant needed to go to the hospital. At other points defendant said he pulled

up to the scene of the crime to pick up co-defendant and Bush, had the car with him the whole

time, or became the driver after arriving at the hospital. Defendant stated that he has worn black

latex gloves, but not on the night of the incident and not in a long time. He also stated that he does

not own a firearm, that he had not been shot with a taser that night, and that he was not wearing

black clothing that night. Following the State’s case-in-chief, defendant indicated that he did not

intend to testify after being properly admonished by the trial court.

¶ 15 In her opening statement, defense counsel questioned the reliability of the evidence and

those that collected it and also asserted that the State would not be able to satisfy its burden.

Defense counsel asserted that the State “cannot prove all” of its case, and that the jury would have

questions “at every point along the way.” Defense counsel stated that the officers involved in the

case may “believe in what they’re doing *** [b]ut that doesn’t mean that absolutely everybody

performed to the best of their ability *** [or] did everything they were supposed to do. There are

mistakes made throughout this process.” She criticized the officers for not “follow[ing] up in any

great detail,” and stated that the “emphasis [was] to get [the investigation] done as fast as possible”

later stating that the officers had to have been “short on sleep.” Defense counsel asserted that

6 evidence was mishandled “time and again,” and that officers would “conveniently” find evidence

that had previously gone unseen. She stated that the jury would not have the “full picture” and that

the victim and the gloves “laid there a long time.” Finally, shortly before concluding her opening

statement, defense counsel asserted that those who worked on the case employed a “conclusory

approach” and operated with “confirmation bias” regarding defendant’s guilt.

¶ 16 Throughout the trial, defense counsel’s questions followed what her opening statement

foreshadowed, with many of the officers being questioned during cross-examination to establish

that their work on the case lacked the requisite care or the necessary attention to detail. The defense

rested without calling any witnesses or presenting evidence.

¶ 17 In the State’s closing arguments, it reasserted its theory of the case, namely that defendant

and co-defendant, dressed in all black and wearing gloves, waited in darkness armed with weapons.

It argued that when Hutson left Kramer’s home, they struck, attempting to rob Hutson at gunpoint.

It argued that Hutson put up a fight and, despite being shot by one of the prongs of a taser, Hutson

was able to take the firearm from defendant and shoot co-defendant. It argued that defendant was

able to get his gun back after another struggle, and shot Hutson multiple times, and both assailants

left Hutson to die in the driveway of Kramer’s home.

¶ 18 Defense counsel’s closing argument began with her stating, “This case is a mess.” She

asked, “Who’s going to hold the police accountable for this incredibly sloppy investigation that

they gave to you?” Defense counsel suggested that the investigation had been nefariously

conducted, and that some of the DNA evidence had been placed near the scene, rather than found

there. She told the jury that it did not “have all the evidence in this case.” The trial court tendered

the pattern jury instructions for accountability generally as well as for felony murder specifically

and responsibility for the act of another when that other actor is not prosecuted to the jury after

7 closing. Despite the aforementioned instructions looming, defense counsel stated, “They cannot

prove [defendant discharged a firearm that killed Andre Hutson] to you, and so now they’re asking

you to hold my client accountable for what someone else might have done, and you cannot do that.

You cannot hold someone accountable for somebody’s actions when you don’t know what that

person’s actions are.”

¶ 19 The trial court instructed the jury as to the law to be applied to the evidence. Inter alia, the

trial court read the instructions for attempted armed robbery, first degree murder, and

accountability generally (Illinois Pattern Jury Instructions, Criminal, No. 5.03 (eff. Jan. 1, 2010)

(hereinafter IPI Criminal No. 5.03)), accountability in felony murder specifically (Illinois Pattern

Jury Instructions, Criminal, No. 5.03A (approved Oct. 28, 2016) (hereinafter IPI Criminal No.

5.03A)), and accountability for the act of another when that other actor is not prosecuted (Illinois

Pattern Jury Instructions, Criminal, No. 5.06 (approved Oct. 28, 2016) (hereinafter IPI Criminal

No. 5.06)). The trial court instructed that a person commits first degree murder, “when he kills an

individual if in performing the acts which caused the death he intends to kill or do great bodily

harm to that individual, or he knows that such acts create a strong probability of death or great

bodily harm to that individual, or he is committing the offense of Attempt Armed Robbery.” The

trial court instructed the jury that the State must prove two propositions to sustain the charge of

first degree murder. First, “that the defendant, or one for whose conduct he is legally responsible,

performed the acts which caused the death of *** Hutson.” Second, that when defendant, or one

whose conduct he was legally responsible for, did so he “intended to kill or do great bodily harm

to *** Hutson, or he knew that his acts created a strong probability of death or great bodily harm

to *** Hutson, or he was committing the offense of Attempt Armed Robbery.” The jury was given

8 a general verdict for all three counts of murder. The jury was asked to find defendant guilty or not

guilty of first degree murder and attempted armed robbery.

¶ 20 The trial court also instructed the jury on IPI Criminal Nos. 5.03, 5.03A, and 5.06; all three

instructions were given without an objection. Stated in the order listed, the trial court instructed

that a person is legally responsible for the conduct of another when “either before or during the

commission of the offense and with the intent to promote or facilitate the commission of an

offense, he knowingly solicits, aids, abets, agrees to aid or attempts to aid the other person in the

planning or commission of the offense.” The trial court also instructed that it is not necessary to

find that defendant, or someone he was legally responsible for, originally intended to kill Hutson,

and to sustain the charge of first degree murder it is “sufficient if the jury believes from the

evidence beyond a reasonable doubt that the defendant, or one for whose conduct he is legally

responsible, combined to do an unlawful act, such as to commit Attempt Armed Robbery, in that

the deceased was killed by one of the parties committing the unlawful act.” The trial court further

instructed that a person can be found legally responsible for the conduct of another, and be

convicted for the offense, “even though the other person who it is claimed committed the offense

has not been prosecuted or has not been convicted.”

¶ 21 Jury deliberations lasted approximately three hours. During deliberations, the jury asked

three questions regarding whether a taser is a weapon, whether a taser is considered a firearm, and

“If the gun belonged to the deceased could the defendant be charged with first degree murder

armed with a firearm?” The trial court answered by defining what a “taser” is, explaining that a

taser is not a firearm, and, responding to the last question, stating, “You have received all the

evidence and instructions in this case.”

9 ¶ 22 On July 15, 2022, defendant was found guilty of first degree murder and attempted armed

robbery. The jury also found that during the commission of the offense of first degree murder,

defendant, or one for whose conduct he was legally responsible, was armed with a firearm.

¶ 23 On August 2, 2022, defendant’s posttrial motion for a new trial was denied, and he was

sentenced to 75 years in the Illinois Department of Corrections, 50 years for the murder, 10 years

for the attempted robbery, and a 15-year firearm enhancement. Each sentence was mandated to be

consecutive. Defendant filed a timely appeal on August 23, 2022.

¶ 24 II. ANALYSIS

¶ 25 Defendant argues on appeal that his defense counsel was ineffective when she failed to

request a separation of the verdict for first degree murder into three verdicts on the three theories

of first degree murder he was charged under, those being intentional murder, knowing murder, and

felony murder. Defendant asserts that, while there may not have been much in the way of a defense

for felony murder as he had confessed to the underlying felony and did not dispute that a death

resulted from the commission of the confessed felony, a conviction for intentional or knowing

murder was not supported by the evidence. Defendant asserts that defense counsel’s failure to

request a partition of the verdict could not be considered trial strategy, and that prejudice results

from the fact that defendant would not have been found guilty of intentional or knowing murder,

thereby merging the underlying attempted armed robbery felony into felony murder, and resulting

in a ten-year-shorter sentence. Defendant requests that his conviction and sentence for attempted

armed robbery be vacated.

¶ 26 The State argues in response that defense counsel employed an “all-or-nothing” and/or jury

nullification trial strategy, making this issue virtually immune to review for ineffective assistance.

The State argues further that there is no reasonable probability that the trial court would have found

10 differently, where defendant could have been found guilty of intentional or knowing murder, just

as he was found guilty of felony murder. As a tertiary issue, the State asserts that this claim is best

resolved in a postconviction proceeding and not on appeal. For the following reasons, we find that

defendant did not receive ineffective assistance of defense counsel and affirm the judgment of the

trial court. We first address the State’s claim that this issue is best left for a postconviction

proceeding.

¶ 27 A. Veach Jurisprudence

¶ 28 The State asserts that the record here is insufficient to dispose of defendant’s claim of

ineffective assistance of defense counsel on the merits, and that a postconviction proceeding is the

best avenue to develop the record. We disagree.

¶ 29 “[I]n Illinois, a defendant must generally raise a constitutional claim alleging ineffective

assistance of [trial] counsel on direct review or risk forfeiting the claim.” People v. Veach, 2017

IL 120649, ¶ 47. “[A]ny issues considered by the court on direct appeal are barred by the doctrine

of res judicata, and issues which could have been considered on direct appeal are deemed

procedurally defaulted.” People v. Ligon, 239 Ill. 2d 94, 103 (2010). It is not the function of a

postconviction proceeding to consider claims “which could have been presented on the direct

review of the conviction.” People v. Thomas, 38 Ill. 2d 321, 323 (1967). “Procedural default does

not, however, preclude a defendant from raising an issue on collateral review that depended upon

facts not found in the record.” Veach, 2017 IL 120649, ¶ 47.

¶ 30 In Veach, the supreme court reviewed a case in which the Fourth District Appellate Court

declined to review an ineffective assistance of counsel argument based on the assertion that the

issue was best pursued through postconviction proceedings. Veach, 2017 IL 120649, ¶ 25. The

Fourth District reasoned that, “The record contain[ed] no indication whatsoever why defense

11 counsel agreed to the admission of the video recordings in question [and t]o resolve defendant’s

claim, this court would need to guess at [trial] counsel’s motivation.” (Internal quotation marks

omitted.) Id. ¶ 35. In overruling the Fourth District, the supreme court stated, “In our view,

ineffective assistance of trial counsel claims may sometimes be better suited to collateral

proceedings but only when the record is incomplete or inadequate for resolving the claim. The

reason is that in Illinois, defendants are required to raise ineffective assistance of trial counsel

claims on direct review if apparent on the record.” (Emphases added.) Id. ¶ 46. The Court stated,

“reviewing courts in Illinois should carefully consider each ineffective assistance of [trial] counsel

claim on a case-by-case basis.” Id. ¶ 48. The Court subsequently determined that the record in

Veach was sufficient to resolve defendant’s ineffective assistance of defense counsel claim. Id.

¶ 50.

¶ 31 In making its argument, the State relies on the cases of People v. Durgan, 346 Ill. App. 3d

1121 (2004), People v. Logan, 2011 IL App (1st) 093582, and People v. Parker, 344 Ill. App. 3d

728 (2003). We first must note that Durgan was abrogated by our supreme court in Veach because

it improperly relied on People v. Kunze, 193 Ill. App. 3d 708 (1990), which “did not cite any

authority to support its holding that ineffective assistance of trial counsel claims are better made

in postconviction proceedings.” Veach, 2017 IL 120649, ¶ 39. The State’s reliance on Durgan is

unfounded.

¶ 32 The State’s reliance on Logan and Parker is misplaced. Logan is distinguishable from the

case at bar, where the claims of ineffective assistance of defense counsel were presented in a

posttrial motion, on direct appeal, in postconviction proceedings, and then in a second appeal

regarding the postconviction proceedings. Logan, 2011 IL App (1st) 093582, ¶¶ 15, 18-19, 29, 56.

Undoubtedly, multiple proceedings and appeals will lead to a more comprehensive record. Logan,

12 however, does not stand for the assertion that a defendant must pursue postconviction proceedings

as a matter of course, nor does the State argue as such, providing in its brief, “The Logan decision

illustrates the importance of a developed record where a defendant claims ineffective assistance of

trial counsel.” This illustration from Logan does not mandate defendant pursue a claim of

ineffective assistance of counsel through postconviction proceedings prior to a direct appeal here.

¶ 33 Further, the decision in Parker appears to rely in part on the Kunze progeny case, People

v. Morris, 229 Ill. App. 3d 144 (1992), in making its decision not to review the ineffective

assistance claim for want of a more complete record. Parker, however, did not apply the “broad-

sweeping ‘categorical approach’ ” the Veach Court took issue with from Kunze, and did indeed

review the case, finding that that specific record was insufficient to determine the issue of

ineffective assistance. Parker, 344 Ill. App. 3d at 736-37.

¶ 34 Here, as our supreme court outlined in Veach, we shall not utilize the broad-sweeping

categorical approach the State seeks us to employ in finding that this case is best placed in a

postconviction proceeding. We indeed find the opposite, that the record is sufficient to resolve the

issue of ineffective assistance of defense counsel. As discussed below, we find that defense

counsel’s strategy can be gleaned from the record before us, based on her opening statement, her

questions in cross-examinations, and her closing argument. Therefore, following Veach and

applying a case-by-case analysis, we find the record here sufficient to resolve the issue of

ineffective assistance of defense counsel.

¶ 35 B. Ineffective Assistance of Counsel

¶ 36 Next we consider the primary issue of ineffective assistance of defense counsel. Defendant

asserts defense counsel was ineffective for failing to request a partition of the first degree murder

verdict and that, if defense counsel had done so, he would have only been found guilty on the basis

13 of felony murder, and the underlying felony would have merged into the murder conviction,

thereby reducing his sentence by 10 years. We find that defense counsel not seeking a partition of

the first degree murder verdict was a matter of trial strategy. Further, even assuming, arguendo,

we were to take as true defendant’s argument that defense counsel’s assistance fell below the

objective standard of reasonableness, we find that defendant cannot show prejudice under the

second prong of Strickland, where there was ample evidence to convict defendant on any of the

three theories of first degree murder.

¶ 37 The analysis for ineffective assistance of counsel is two-prong. First, “defendant must show

that trial counsel’s representation fell below an objective standard of reasonableness.” Strickland

v. Washington, 466 U.S. 668, 688 (1984). Second, “[d]efendant must show that there is a

reasonable probability that, but for trial counsel’s unprofessional errors, the result of the

proceeding would have been different.” Id. at 694. “To prevail, [d]efendant must satisfy both

prongs of the Strickland test. [Citation.] The failure to satisfy either prong of the Strickland test

precludes a finding of ineffective assistance of [trial] counsel.” People v. Yankaway, 2025 IL

130207, ¶ 62.

¶ 38 1. Objective Standard of Reasonableness

¶ 39 “The benchmark for judging any claim of ineffectiveness must be whether [trial] counsel’s

conduct so undermined the proper functioning of the adversarial process that the trial cannot be

relied on as having produced a just result.” Strickland, 466 U.S. at 686. “When a convicted

defendant complains of the ineffectiveness of [trial] counsel’s assistance, defendant must show

that trial counsel’s representation fell below an objective standard of reasonableness.” Id. at 687-

88. “[T]he performance inquiry must be whether [trial] counsel’s assistance was reasonable

considering the circumstances.” Id. at 688. When reviewing defense counsel’s performance, we

14 must make every effort “to eliminate the distorting effects of hindsight, to reconstruct the

circumstances of [trial] counsel’s challenged conduct, and to evaluate the conduct from [trial]

counsel’s perspective at the time.” Id. at 689. “[A] court must indulge a strong presumption that

[trial] counsel’s conduct falls within the wide range of reasonable professional assistance; that is,

defendant must overcome the presumption that, under the circumstances, the challenged action

might be considered sound trial strategy.” (Internal quotation marks omitted.) Id. “Matters of trial

strategy are generally immune from claims of ineffective assistance of [trial] counsel.” (Internal

quotation marks omitted.) People v. Manning, 241 Ill. 2d 319, 327 (2011).

¶ 40 Ineffective assistance of defense counsel “requires a bifurcated standard of review, wherein

a reviewing court must defer to the trial court’s findings of fact unless they are against the manifest

weight of the evidence but must make a de novo assessment of the ultimate legal issue of whether

trial counsel’s omission supports an ineffective assistance claim.” People v. Berrier, 362 Ill. App.

3d 1153, 1166-67 (2006). Where the facts surrounding the claim are undisputed, the review is

de novo. Id. at 1167.

¶ 41 Before any analysis on the first prong of Strickland, we briefly acknowledge defendant’s

and the State’s citation to People v. Smith, 233 Ill. 2d 1 (2009). In Smith, our supreme court found

that a trial court abused its discretion when it denied the defendant’s request for specific verdict

forms where the offenses charged could have resulted in different sentencing consequences. Smith,

233 Ill. 2d at 23. As is acknowledged in both briefs, since it was decided, reviewing courts have

consistently refused to apply Smith to cases that did not involve a circuit court’s refusal of a defense

request to separate verdict forms. See People v. Wilson, 2017 IL App (1st) 143183; People v. Hill,

2014 IL App (2d) 120506; People v. Calhoun, 404 Ill. App. 3d 362 (2010); People v. Mabry, 398

Ill. App. 3d 745 (2010); People v. Braboy, 393 Ill. App. 3d 100 (2009). For example, in Braboy

15 the Court held that Smith could not support a claim of ineffective assistance of defense counsel,

reasoning that Smith is “limited to situations in which the trial court actually denied a request for

separate verdict forms.” Braboy, 393 Ill. App. 3d at 108. Defendant offers no compelling reason

for us to decline to follow Wilson, Hill, Calhoun, Mabry, and Braboy. Accordingly, we too hold

that Smith is “limited to situations in which the trial court actually denied a request for separate

verdict forms,” and does not support a claim of ineffective assistance of defense counsel. Id.

¶ 42 In addressing defense counsel’s effectiveness, the State argues, inter alia, that defense

counsel’s trial strategy was to argue jury nullification. Defense counsel’s trial argument is best

summed in three parts: (1) the evidence was untrustworthy and unreliable; (2) the gatherers and

presenters of the evidence (i.e. the officers and the State) were untrustworthy and unreliable; and

(3) that defendant could not be found guilty for a crime he did not personally commit. The latter

argument is the jury nullification argument.

¶ 43 “[C]ounsel may not argue that jurors should ignore the law in coming to a decision, he may

[however] present a defense evoking the ‘empathy, compassion or understanding and sympathy’

of the jurors.” People v. Gilbert, 2013 IL App (1st) 103055, ¶ 28 (quoting People v. Ganus, 148

Ill. 2d 466, 473-74 (1992)). Where the defendant has no defense and the evidence is overwhelming,

“[j]ury nullification is always a possibility.” Ganus, 148 Ill. 2d at 473. “[W]hen the circumstances

of the case render other defensive strategies unavailable,” arguing jury nullification is a

“reasonable trial strategy.” (Internal quotation marks omitted.) Gilbert, 2013 IL App (1st) 103055,

¶ 28. The case at bar is one such example. 1 Despite the jury instructions that were given without

1 We note that the State also asserts that defense counsel was engaged in an “all-or-nothing” trial strategy. Following this Court’s precedent in People v. Lemke, 349 Ill. App. 3d 391 (2004), we note that said trial strategy alone would not be considered a valid trial strategy, because said strategy would be based on a misapprehension of the law. Lemke, 349 Ill. App. 3d at 399; see People v. Walton, 378 Ill. App. 3d 580, 589 (2007). 16 objection, IPI Criminal Nos. 5.03, 5.03A, and 5.06, concerning accountability, accountability for

felony murder, and accountability for the act of another when that other actor is not prosecuted

respectively, defense counsel still argued in her closing arguments that the jury could not “hold

someone accountable for somebody’s actions when you don’t know what that other person’s

actions are.” Given the context that defendant admitted to the underlying felony, and the jury was

moments away from being instructed that they could indeed hold defendant accountable for

another person’s actions, defense counsel was making an appeal to the jury’s moral sense of right

and wrong, and hoping the jury would ignore the binding law. In the context of overwhelming

evidence and a lack of any other viable defensive strategies, we find jury nullification a reasonable

trial strategy here. Gilbert, 2013 IL App (1st) 103055, ¶ 28. Therefore, we find that defense

counsel’s representation did not fall below an objective standard of reasonableness.

¶ 44 2. Prejudice

¶ 45 Further, even assuming, arguendo, that this court takes as true the argument that defense

counsel’s assistance fell below an objective standard of reasonableness, prejudice could not have

resulted from defense counsel’s unreasonable assistance. “An error by trial counsel, even if

professionally unreasonable, does not warrant setting aside the judgment of a criminal proceeding

if the error had no effect on the judgment *** Accordingly, any deficiencies in trial counsel’s

performance must be prejudicial to the defense in order to constitute ineffective assistance under

the Constitution.” Strickland, 466 U.S. at 691-92. “Defendant must show that there is a reasonable

probability that, but for [trial] counsel’s unprofessional errors, the result of the proceeding would

have been different.” Id. at 694. “In making this determination, a court hearing an ineffectiveness

claim must consider the totality of the evidence before the judge or jury.” Id. at 695.

17 ¶ 46 Here, defendant’s entire argument is predicated on the assertion that he would not have

been found guilty of intentional or knowing murder, pursuant to the first degree murder statutes

720 ILCS 5/9-1(a)(1), (2) (West 2020). For intentional murder, “[a] person who kills an individual

without lawful justification commits first degree murder if, in performing the acts which cause the

death he or she either intends to kill or do great bodily harm to that individual or another, or knows

that such acts will cause death to that individual or another.” Id. § 9-1(a)(1). For knowing murder,

“[a] person who kills an individual without lawful justification commits first degree murder if, in

performing the acts which cause the death he or she knows that such acts create a strong probability

of death or great bodily harm to that individual or another.” Id. § 9-1(a)(2).

¶ 47 The myriad of incriminating evidence suggests that defendant committed a knowing

murder, pursuant to section 9-1(a)(2) of the Criminal Code of 2012 (id.), at a minimum.

Communication between cell phone numbers belonging to defendant and co-defendant established

their intent to commit a robbery, and the need for gloves to help conceal their identities; gloves

containing defendant’s DNA were found near the crime scene. Two men dressed in all dark

clothing were seen entering and exiting the crime scene; defendant was seen in all dark clothing

shortly after the shooting. Co-defendant was seen with a taser; one taser probe was found at the

crime scene, and the other was found in the back seat of the car used in the crime with defendant’s

DNA. A firearm that fired 9-millimeter rounds was used in the murder of Hutson; a gun case with

a 9-millimeter Glock magazine but a missing firearm was found at defendant’s residence. Despite

the information defendant provided in his recorded interrogation, a finding of his guilt under either

of the two remaining theories of first degree murder is supported by the evidence, and a rational

trier of fact could have found so beyond a reasonable doubt.

18 ¶ 48 Defendant stated in his interrogation that he was not on the scene and was only ever in the

vehicle, yet his DNA was on one of the taser probes shot as a pair during the commission of the

crime. He stated he was not on the scene and that he had not worn black gloves in a long time, yet

his DNA was found in the black gloves near the crime scene. Defendant said he was not wearing

dark clothes that night, yet there was testimony that he was in dark clothing that night. Defendant

stated he did not own a firearm, despite a gun case and 9-millimeter Glock magazine being found

in his home. Further, defendant’s description of his involvement in the crime is not only

inconsistent, but it is also unsupported by the location data taken from the vehicle used in the

crime. The evidence supports a finding of guilt beyond a reasonable doubt of knowing first degree

murder at a minimum, where a jury could reasonably find that defendant killed Hutson knowing

that shooting Hutson multiple times created the strong probability of his death or great bodily harm

to Hutson. Therefore, we find that, considering the totality of the evidence, defendant cannot

establish the second prong of Strickland, as the evidence supports a finding of guilt under any of

the three theories of first degree murder.

¶ 49 III. CONCLUSION

¶ 50 Therefore, we affirm defendant’s convictions and resulting 75-year sentence where defense

counsel did not provide ineffective assistance when she did not seek separate verdicts on the three

theories of first degree murder.

¶ 51 Affirmed.