NOTICE 2026 IL App (5th) 231224-U NOTICE Decision filed 07/22/26. The This order was filed under text of this decision may be NO. 5-23-1224 Supreme Court Rule 23 and is changed or corrected prior to the filing of a Petition for not precedent except in the
Rehearing or the disposition of IN THE limited circumstances allowed the same. under Rule 23(e)(1). APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT ______________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Champaign County. ) v. ) No. 15-CF-1128 ) KEVIN KELLEY, ) Honorable ) Jason M. Bohm, Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________
JUSTICE BOIE delivered the judgment of the court. Justice Sholar concurred in the judgment. *
ORDER
¶1 Held: We affirm the trial court’s second-stage dismissal of the defendant’s postconviction claim where trial counsel did not render ineffective assistance for failure to call a witness where the proposed testimony would have been cumulative.
¶2 This appeal stems from the second-stage dismissal and third-stage denial of the defendant’s
claims set forth in the defendant’s postconviction petition for relief pursuant to the Post-Conviction
Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2018)). On September 22, 2023, the trial court
dismissed all but one of the defendant’s claims at the second stage. After an evidentiary hearing
on November 30, 2023, the trial court denied the defendant’s remaining claim. The defendant now
* Justice Moore fully participated in the decision prior to his retirement. See Cirro Wrecking Co. v. Roppolo, 153 Ill. 2d 6 (1992). 1 appeals the dismissal of one of the claims in the postconviction petition. For the following reasons,
we affirm the judgment of the trial court.
¶3 I. BACKGROUND
¶4 On July 29, 2015, the defendant was charged in Champaign County with two counts of
first degree murder in violation of section 9-1(a)(1) of the Criminal Code of 1961 (Code) (720
ILCS 5/9-1(a)(1) (West 2012)) and one count of first degree murder in violation of section 9-
1(a)(2) of the Code (id. § 9-1(a)(2)). The defendant was arrested, counsel was appointed on August
6, 2015, and a jury trial was held on April 25 through May 2, 2016.
¶5 Because the underlying facts and the evidence presented at trial were set forth in the
previous decision of this court, we will only address the evidence relevant to the current appeal.
People v. Kelley, 2019 IL App (4th) 160598. On August 29, 2013, human remains were found on
the bank of the Sangamon River. Dental records confirmed that the victim was Kelsie Blackford,
a woman whom the defendant was known to spend time with on occasion. A forensic
anthropologist testified at trial that Blackford’s remains bore evidence that someone had attempted
to dismember her body around the time of her death.
¶6 The defendant was incarcerated in Indiana at the time of the investigation into Blackford’s
death, and as an acquaintance of Blackford, he was interviewed by investigators several times.
Evidence at trial established that on December 19, 2012, approximately nine months prior to
Blackford’s remains being found, the defendant and Blackford had purchased pseudoephedrine
from two different pharmacies. The defendant’s cellular telephone also contained photographs of
Blackford taken on that date. During the interviews, the defendant informed investigators that this
was the last time he had seen Blackford. He stated that on that evening, he and Blackford went to
the defendant’s trailer, and he went to sleep. When he woke up, Blackford and the defendant’s
2 wallet were missing. Investigator Andrew Good testified that the defendant had explained during
one of his interviews that after Blackford went missing, the defendant sent texts to various people
pretending to be Blackford. The defendant stated that he did this in order to find Blackford and his
wallet.
¶7 At trial, the State’s exhibit V1 was admitted into evidence and included three video clips.
One of the clips, titled 13-23, contained video and audio footage of detectives interviewing the
defendant on September 3, 2013. In that clip, which the State played for the jury, the following
exchange occurred:
“[Investigator 1]: ‘Cause the thing we know, Kevin. Here’s the thing we
know. She did not put herself there herself. Somebody put her there.
[Defendant]: Right. That’s what. I’m trying. I’m. Right.
[Investigator 1]: K.
[Defendant]: Right.
[Investigator 2]: Like you said, you know that river like the back of your
hand.
[Defendant]: Yeah. Fisher to Mahomet.
[Investigator 2]: Don’t you know what I mean, though? I mean, when
people look at this from the outside they’re like, well, he knows this river, this is
his property, that’s where he’s gonna dump her.
[Defendant]: Wow. Wow. Man. I’m thinking if somebody murdered her
they wouldn’t just dump her where somebody could find her so she probably, my
guess.
[Investigator 2]: That she [overdosed]?
3 [Defendant]: That’s what I would guess. I mean, who would just murder
somebody and leave a body to lay to where somebody could find it?
[Investigator 1]: Like I said, it was cold, it was windy, it was snowing, she
has no reason to wander down to the river. Now, k, so she didn’t go down there and
[overdose]. So if she [overdosed], where’d she [overdose] at, and why would she
be taken there?”
¶8 On cross-examination, Investigator Good was asked regarding the interview, “You told
him on September 3rd of 2013 that Miss Blackford’s remains were found right by his house?”
Investigator Good responded, “Either by his house or by his property I can’t remember which I
said.” Later, when the defendant testified, he was asked, “And why were you talking about this
case so much, Kevin?” The defendant responded, “It was very troubling to me, the fact that they
initially told me that they found a body in my back yard at the trailer I was renting.”
¶9 The State also called Shane Halsema as a witness. Halsema testified that in October 2013
he was housed in the same Indiana correctional facility as the defendant. While they were both
staying in the intake dormitory, the defendant told Halsema that the defendant had messed up and
done something he should not have. The defendant began the explanation by stating that he
“wished the bitch didn’t do what she did.” He then told Halsema that he had a “call girl” over at
his house and she tried to take some money, things led to other things, and the defendant ended up
throwing the girl in the river. The defendant told Halsema that the location where he threw the girl
in the river was close to the defendant’s mother’s or grandmother’s home, and the defendant could
drive back to that area of the river from his home. Halsema believed that it was cold outside at the
time of the incident, because he recalled the defendant saying that he had been in a shop or home
with a wood-burning stove. The next day, the defendant approached Halsema and asked him not
4 to ever mention the conversation to anybody. On October 25, 2013, Halsema informed
investigators about the conversation in an attempt to secure leniency in his own case, but he had
not actually received any benefit or been promised anything in exchange for either that report or
for his testimony at trial.
¶ 10 The defendant testified that while incarcerated in Indiana, there were payphones that the
defendant used to call his parents in the intake dormitory where he stayed with Halsema. The
defendant acknowledged that there was no way for Halsema to know that the defendant had been
staying near his parents at the time of the incident, or that there was a river nearby, except for
learning that information from the defendant. The defendant stated that he did not recall telling
investigators that he was heating his home with a stove, but acknowledged that on the last night
that he was with Blackford, he had been heating the home by turning the stove burners on. He
agreed that Halsema would only have been able to know about the stove if the defendant had told
Halsema that information, but the defendant clarified that the stove was not wood burning. He
further agreed that if Halsema had stated that the defendant was mad about Blackford taking
money, Halsema would have had to learn that from the defendant. He did not recall any reason
why Halsema would have been upset with him. The defendant also testified that during his
interview with investigators, they told him Blackford was found right by the defendant’s house.
When he later found out that Blackford was found by the river, it bothered the defendant that
investigators had lied to him.
¶ 11 During closing argument, the State noted that there was no way for Halsema to possess the
details he had unless the defendant had told Halsema those details. The State specifically referred
to the fact that Halsema knew that Blackford’s remains were located near the defendant’s trailer,
near his parents’ home and near the river, and that the defendant was heating the trailer with a
5 stove. The State emphasized that the defendant had not told Halsema that the defendant had
received the information regarding the murder from investigators rather than from personal
knowledge. Noting that the conversation with Halsema began with the defendant wishing
Blackford did not do what she did, and stating that the defendant knew that he had screwed up, the
State highlighted that the defendant was telling Halsema what the defendant had done, not what
investigators said he had done. The State also noted that the defendant approached Halsema the
next day and asked him not to repeat the conversation to anyone, arguing that this was further
indication that the defendant was not simply repeating what the investigators had told him.
¶ 12 Regarding Halsema, the defense noted in closing argument that Halsema had reported the
defendant’s statements to law enforcement in an attempt to secure a benefit for himself, implying
that Halsema had a motive to relay the conversation as a confession when it was really just a
discussion of what investigators had told the defendant. The defense also highlighted the
discrepancy between a shop with a wood-burning stove, as Halsema reported as the location of the
incident, versus a trailer with a cooking stove.
¶ 13 The jury returned guilty verdicts on all three counts. After the jury was excused, the trial
court entered judgment against the defendant on all three counts but stated that the counts would
merge for the purpose of sentencing. A presentence investigation report was ordered, and the case
was set for a sentencing hearing on June 15, 2016. On May 24, 2016, the defendant’s counsel filed
a motion for acquittal, or in the alternative, motion for a new trial. On June 14, 2016, the
defendant’s counsel appeared before the trial court requesting an emergency continuance of the
sentencing hearing to investigate a possible issue regarding a witness’s testimony at trial. The trial
court granted the motion over the State’s objection. On June 16, 2016, the defendant’s counsel
filed an amended motion for acquittal, or in the alternative, motion for a new trial.
6 ¶ 14 On July 15, 2016, the trial court conducted a hearing on the defendant’s amended motion
for acquittal, or in the alternative, motion for a new trial. After hearing testimony from the
defendant’s three witnesses, the State’s sole witness, and arguments from counsel, the trial court
denied the amended motion. The sentencing hearing was held on July 27, 2016, and the defendant
was sentenced to a 60-year term of incarceration in the Illinois Department of Corrections with a
three-year term of MSR. On direct appeal, the defendant raised five issues, and this court affirmed
the conviction and sentence in People v. Kelley, 2019 IL App (4th) 160598. The defendant’s
petition for leave to appeal to the Illinois Supreme Court was denied on May 22, 2019, and
certiorari was denied by the United States Supreme Court on November 18, 2019. People v.
Kelley, 2019 IL App (4th) 160598, appeal denied, No. 124590 (May 22, 2019), Kelley v. Illinois,
140 S. Ct. 539 (2019).
¶ 15 On July 27, 2020, the defendant filed a pro se postconviction petition pursuant to the Act
(725 ILCS 5/122-1 et seq. (West 2018)) alleging multiple constitutional violations. Relevant to
this appeal, the defendant claimed trial counsel failed to call the defendant’s mother, Stephanie
Harris, to testify regarding information that she had provided to the defendant during telephone
calls while he was in jail in Indiana; specifically, information regarding where Blackford was
found. The defendant argued that this information tended to rebut the State’s argument that the
defendant would only have known where Blackford was found if he had killed her. The defendant
further argued that trial counsel failed to investigate these telephone calls the defendant had with
his mother, even though the defendant informed trial counsel that he learned where Blackford was
found during the calls.
¶ 16 On August 6, 2020, the trial court entered an order stating:
7 “The Defendant has filed a Petition for Post-Conviction Relief on July 27,
2020[.] In his petition, he claims that the State failed to prove him guilty beyond a
reasonable doubt. Since the State was unable to establish the cause of death through
their expert witnesses then he couldn’t be found guilty. He also claims that the
propensity evidence wasn’t sufficient to prove him guilty beyond a reasonable
doubt.
The Defendant can not use post-conviction relief as a means to relitigate his
guilt. People vs Vail. 46 ILL2 589[.]
The Petition is frivolous, patently without merit and is ordered dismissed[.]”
¶ 17 The defendant timely appealed. On appeal, the defendant argued that the trial court erred
in dismissing his petition as frivolous regarding two of his allegations. Those claims involved the
alleged ineffectiveness of trial counsel for failing to call the defendant’s mother, Harris, and a
jailhouse teacher who could have rebutted evidence provided by another jailhouse informant, to
testify at trial. This court noted that the defendant had attached affidavits from Harris and the
teacher, as well as telephone records showing the defendant’s collect calls made to Harris. The
State conceded the defendant’s two claims, and this court found that the claims met the lenient
standard to withstand first-stage dismissal. Accordingly, we remanded the matter for second-stage
proceedings. People v. Kelley, No. 4-20-0408 (2022) (unpublished summary order under Illinois
Supreme Court Rule 23(c)).
¶ 18 Postconviction counsel was appointed for the defendant on December 9, 2022. On March
13, 2023, postconviction counsel filed a supplemental petition for postconviction relief and a
certificate pursuant to Illinois Supreme Court Rule 651(c) (eff. July 1, 2017). The supplemental
petition re-alleged the allegations of the original pro se postconviction petition and added
8 additional claims for ineffective assistance of both trial counsel and appellate counsel on direct
appeal.
¶ 19 On April 24, 2023, the State filed a motion to dismiss the petition and the supplemental
petition. Regarding the defendant’s claim that his mother’s testimony would have explained his
knowledge of the location of Blackford’s remains, the State argued that the testimony would have
been superfluous where the jury was aware that detectives had told the defendant the location of
Blackford’s remains a month prior to the calls with his mother, and where her anticipated testimony
did not refute the defendant’s confession to Halsema. The State also argued that Harris’s testimony
could only help the State’s case because a jury could infer that the defendant’s spontaneous
confession to Halsema, made well after the alleged incident, was prompted by panic after speaking
to his mother.
¶ 20 A hearing on the motion to dismiss the petitions occurred on August 24, 2023. Defense
counsel argued that, regarding Harris, the defendant’s telephone calls with Harris could explain
how Halsema learned of the location of Blackford’s remains because Halsema could have
overheard the defendant speaking with Harris when she told him Blackford was found by the river.
Defense counsel believed that Harris’s testimony would have given context as to why the
defendant was discussing Blackford’s remains being by the river and why Halsema would have
known that information. The trial court asked defense counsel if it was true that the detectives who
interviewed the defendant gave him that same information. The defendant stated, “No, sir,” and
defense counsel responded that “one of the investigators did say something to that effect. Yes, that
is true.”
¶ 21 By written order entered September 22, 2023, the trial court granted the State’s motion to
dismiss all but one of the defendant’s postconviction claims. The trial court dismissed the claim
9 regarding Harris because investigators had informed the defendant of the location of Blackford’s
remains prior to the defendant’s telephone call with Harris. Because of this, Harris’s testimony
would not have added anything to the trial. Only the claim involving the jailhouse teacher survived
the motion to dismiss and was set for an evidentiary hearing.
¶ 22 The evidentiary hearing occurred on November 30, 2023, and the trial court heard evidence
on the defendant’s claim regarding the jailhouse teacher. The trial court found that trial counsel’s
representation of the defendant was not deficient on that issue. The sole surviving claim from the
defendant’s initial postconviction petition and supplemental petition was therefore denied. The
defendant timely appealed.
¶ 23 II. ANALYSIS
¶ 24 On appeal, the defendant raises the sole issue of whether the trial court erred in its second-
stage dismissal of the defendant’s claim regarding Harris. The defendant argues that the trial court
should not have dismissed his postconviction claim that trial counsel was ineffective for failing to
contact Harris regarding her telephone calls with the defendant while he was in jail, and for failing
to call Harris as a witness at trial to explain how the defendant knew where Blackford’s remains
were located. He argues that his supplemental petition made a substantial showing that trial counsel
provided ineffective assistance by failing to take these steps, and the trial court should have
conducted an evidentiary hearing regarding this issue.
¶ 25 The Act provides a remedy to a criminal defendant whose federal or state constitutional
rights were substantially violated in his or her original trial or sentencing hearing. People v.
Pitsonbarger, 205 Ill. 2d 444, 455 (2002). A postconviction proceeding is not an appeal from an
underlying judgment, but rather is a collateral attack on the judgment. People v. Ortiz, 235 Ill. 2d
319, 328 (2009). As a collateral proceeding, a postconviction proceeding allows inquiry only into
10 constitutional issues that were not and could not have been adjudicated in an appeal of the
underlying judgment. Id. “If a claim of ineffective assistance of counsel is based on matters outside
the record, then it could not have been raised on appeal and, consequently, is not waived in a post-
conviction petition.” People v. Smith, 326 Ill. App. 3d 831, 839 (2001). Ineffective assistance
claims based on what counsel should have done, not on what counsel did, may depend on proof
“which could not have been included in the record precisely because of the allegedly deficient
representation.” (Internal quotation marks omitted.) People v. Tate, 2012 IL 112214, ¶ 14. Because
the defendant’s appeal is based on an allegation of what trial counsel should have done, rather than
what trial counsel did, the defendant’s claim of ineffective assistance is not waived for failure to
include the issue on direct appeal.
¶ 26 At the second stage of a postconviction proceeding, a defendant is required to demonstrate
a “substantial showing of a constitutional violation.” People v. Bailey, 2017 IL 121450, ¶ 18. A
substantial showing is a measure of the legal sufficiency of the petition’s allegations, which, if
proven at an evidentiary hearing, would entitle the defendant to relief. People v. Domagala, 2013
IL 113688, ¶ 35. During second-stage proceedings, the trial court is “foreclosed from engaging in
any fact-finding because all well-pleaded facts not rebutted by the record are to be taken as true.”
People v. Phyfiher, 361 Ill. App. 3d 881, 884 (2005). The State can move to dismiss the petition
at the second stage. 725 ILCS 5/122-5 (West 2018). If the defendant makes a substantial showing
of a constitutional violation at the second stage, the petition advances to the third stage where the
trial court conducts an evidentiary hearing. Id. § 122-6; People v. Edwards, 197 Ill. 2d 239, 246
(2001).
¶ 27 In this matter, the trial court dismissed the appealed issue at the second stage. The standard
of review for second stage dismissal of a postconviction issue is de novo. People v. Velasco, 2018
11 IL App (1st) 161683, ¶ 91. On de novo review, the reviewing court makes its own independent
assessment of whether the allegations of the petition and supporting documentation, liberally
construed in favor of the petitioner and taken as true, are sufficient to invoke relief under the Act.
People v. Sanders, 2016 IL 118123, ¶ 31.
¶ 28 The defendant’s sole issue on appeal is that trial counsel was deficient for failure to call
Harris as a witness. The State argued at trial that Halsema knew that Blackford’s remains were
located near a river when he reported the defendant’s statement, and Halsema could only have
received that information from the defendant. The defendant claims that if Harris had been called
to explain that she told the defendant the location of Blackford’s remains during a telephone call
in October, that would explain to the jury how he had been able to communicate that information
to Halsema. By explaining that he had a source other than his own personal knowledge for the
information regarding the location of Blackford’s remains, the defendant essentially argues that he
could have rebutted the testimony of Halsema and the implication that the defendant possessed
that information to provide to Halsema because he committed the murder. Thus, the defendant
claims his counsel was ineffective for failing to call Harris to provide that explanation.
¶ 29 A criminal defendant has a constitutional right to effective assistance of counsel. U.S.
Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. Claims of ineffective assistance of counsel
are evaluated under the two-prong test set forth in Strickland v. Washington, 466 U.S. 688 (1984).
People v. Albanese, 104 Ill. 2d 504, 526 (1984) (Illinois Supreme Court adopting the Strickland
standard). To prevail, a defendant must demonstrate that counsel’s performance fell below an
objective standard of reasonableness and counsel’s errors resulted in prejudice to the defendant.
People v. Bailey, 2020 IL App (5th) 160458, ¶ 86. “More specifically, a defendant must show that
counsel’s performance was objectively unreasonable under prevailing professional norms and that
12 there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.’ ” People v. Cathey, 2012 IL 111746, ¶ 23 (quoting
Strickland, 466 U.S. at 694). “ ‘A reasonable probability is a probability sufficient to undermine
confidence in the outcome.’ ” People v. Erickson, 183 Ill. 2d 213, 224 (1998) (quoting Strickland,
466 U.S. at 694). To be successful on a claim for ineffective assistance of counsel, the defendant
must satisfy both prongs. Id. at 697. However, while a defendant must satisfy both prongs to be
successful in an ineffective assistance claim, we may dispose of such a claim by examining the
prejudice prong alone. Albanese, 104 Ill. 2d at 527.
¶ 30 When evidence is cumulative, a failure to present it generally cannot support a claim of
ineffective assistance of counsel, because there is no reasonable probability that the evidence’s
admission would have changed the outcome of the proceedings. See People v. Simms, 168 Ill. 2d
176, 194 (1995); People v. Brooks, 251 Ill. App. 3d 927, 934 (1993). “Evidence is considered
cumulative when it adds nothing to what was already before the jury.” Ortiz, 235 Ill. 2d at 335.
¶ 31 In this case, the proposed testimony of Harris would have added nothing to what was
already before the jury. Investigators had informed the defendant that Blackford was found near
the river during the September 3, 2013, interview. In the video clip of that interview, investigators
first stated to the defendant, “She did not put herself there herself. Somebody put her there.” They
then stated, “You know that river like the back of your hand.” They hypothetically posited that the
defendant “knows this river, this is his property, that’s where he’s gonna dump her,” and asked
him, “She has no reason to wander down to the river. Now *** if she [overdosed], where’d she
[overdose] at, and why would she be taken there?” That video clip was played for the jury.
¶ 32 It is clear from the video that the defendant was informed of the location of Blackford’s
remains by investigators in September 2013. The jury was further aware that the defendant’s
13 conversation with Halsema occurred in October 2013 well after he had spoken to investigators.
Additionally, the State’s argument to the jury that the defendant spoke to Halsema from personal
experience did not hinge on his knowledge of Blackford’s location; the State’s emphasis was on
Halsema’s testimony that the information was relayed as the defendant’s own personal experience,
and that the defendant later asked Halsema to keep the information secret, which the State argued
indicated that the defendant had committed the murder and then later realized that he should not
have told Halsema about it.
¶ 33 Conclusive evidence that the defendant had an alternate source, other than his personal
knowledge, for Blackford’s location by the time he spoke to Halsema was provided to the jury via
the interview video. The State noted that the defendant had this conversation with investigators
prior to speaking to Halsema in its closing argument. As such, for the purpose of showing that the
defendant received information regarding Blackford’s location from another person, his mother,
prior to telling Halsema about it, the proposed testimony would have added nothing to what was
already before the jury and would therefore be cumulative of the interview video.
¶ 34 Because the evidence was cumulative, defense counsel’s failure to present it does not
support the defendant’s claim of ineffective assistance of counsel because the defendant has failed
to demonstrate prejudice where there is no reasonable probability that the result of the proceeding
would have been different. Accordingly, we affirm the trial court’s dismissal of the defendant’s
ineffective assistance claim regarding Harris and the denial of the initial and supplemental
postconviction petitions.
14 ¶ 35 III. CONCLUSION
¶ 36 Based on the foregoing, we affirm the trial court’s second-stage dismissal of the
defendant’s postconviction claim where trial counsel did not render ineffective assistance for
failure to call a witness where the proposed testimony would have been cumulative.
¶ 37 Affirmed.