NOTICE 2021 IL App (4th) 200629-U FILED This Order was filed under September 15, 2021 Supreme Court Rule 23 and is Carla Bender not precedent except in the NO. 4-20-0629 4th District Appellate limited circumstances allowed Court, IL under Rule 23(e)(1). IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the Plaintiff-Appellee, ) Circuit Court of v. ) Adams County ERIC KITURE, ) No. 16CF541 Defendant-Appellant. ) ) Honorable ) Michael L. Atterberry, ) Judge Presiding.
JUSTICE TURNER delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.
ORDER
¶1 Held: The circuit court’s decision to not appoint defendant new counsel for his pro se claims of ineffective assistance of trial counsel was manifestly erroneous.
¶2 After a December 2016 trial, a jury found defendant, Eric Kiture, guilty of
aggravated domestic battery (720 ILCS 5/12-3.3(a-5) (West 2016)). At an April 2017 sentencing
hearing, the Adams County circuit court sentenced defendant to seven years’ imprisonment and
defendant mentioned having an ineffective assistance of counsel claim. Defendant filed pro se a
motion to reconsider his sentence, in which he claimed his trial counsel was ineffective. At the
July 2017 hearing on the motion, defendant was represented by trial counsel and the court did
not address defendant’s ineffective assistance of counsel claim before denying defendant’s
motion. Defendant appealed and argued, inter alia, the circuit court erred by failing to make an
inquiry into his ineffective assistance of counsel claim in accordance with People v. Krankel, 102 Ill. 2d 181, 464 N.E.2d 1045 (1984). The State conceded defendant’s case needed to be
remanded for a Krankel inquiry, and this court agreed. People v. Kiture, No. 4-17-0592 (Nov.
27, 2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
¶3 In November 2020, the circuit court had jurisdiction of the cause and conducted a
Krankel inquiry. Defendant raised numerous claims of ineffective assistance of trial counsel.
After hearing from both defendant and trial counsel, the court declined to appoint defendant new
counsel and denied defendant’s ineffective assistance of counsel claims. Defendant again
appeals, asserting (1) the circuit court erred by failing to make an adequate Krankel inquiry and
improperly denied defendant new counsel, (2) he was denied effective assistance of trial counsel
because counsel labored under a conflict of interest, (3) he was denied effective assistance of
trial counsel because counsel failed to impeach a state’s witness with his prior inconsistent
statement, and (4) he was denied a fair trial based on prosecutorial misconduct. We reverse and
remand for further proceedings on defendant’s pro se ineffective assistance of counsel claims.
¶4 I. BACKGROUND
¶5 On September 8, 2016, the State charged defendant by information with one count
of aggravated domestic battery, which asserted defendant strangled Nikkole Conway with his
hands around her neck and, in doing so, impeded Conway’s normal breathing or circulation. See
720 ILCS 5/12-3.3(a-5) (West 2016). That same month, the circuit court held a preliminary
hearing, at which the State presented the testimony of Quincy police officer Kyle Hatch. Only
the testimony relevant to the issues on appeal follows. Officer Hatch testified he was the third
officer at the scene and spoke with Conway. He observed “red marks and scratches on the left
side of her neck, as well as a large welt on her left shoulder.”
¶6 In December 2016, the circuit court held a jury trial on the single charge. The
-2- State presented the testimony of Conway and Officer Hatch.
¶7 Conway testified she had known defendant since 2009 or 2010. She started
dating him in 2016, and they began living together. In August 2016, they moved into a room at
the Welcome Inn. The room had two beds, a table, a sink, and a separate bathroom with a toilet
and bathtub. On September 6 or 7, 2016, Conway’s mother, Rebecca Cox, was also in the hotel
room. That day, Conway needed the Illinois Link card that defendant possessed and woke him
up to get it. Defendant appeared angry and called her a “bitch.” They began yelling at each
other, and defendant stood up next to the bed. Conway attempted to leave the hotel room, and
defendant stood in front of the door to prevent her from leaving. Defendant then grabbed
Conway by the shirt and pulled her into the bathroom. There, defendant was “choking” Conway
with one hand. He used the other hand to keep the door shut because Cox was trying to open it.
Cox was also screaming at defendant to let Conway go. At one point during the altercation,
Conway was unable to breathe. Eventually, defendant let her go. A maintenance man came to
the hotel door and asked if everything was okay. Defendant told the maintenance man it was
okay.
¶8 Conway was eventually able to get out of the hotel room and go to the door of
Althea Buckner, a friend who was also staying at the hotel. There, Conway sat down and asked
Buckner for help. Defendant came after Conway, and when he reached her, he leaned over and
told Conway the following: “Bitch, you got to the count of three. If you don’t get up, I’m going
to knock you out.” Buckner told defendant not to act like that in front of her kids and she was
going to call the police if defendant did not stop. Defendant did not stop, and Buckner told
defendant the police were coming. At that point, defendant drug Conway by her hair back to
their hotel room. After they returned, Conway and Cox left the hotel room, and defendant
-3- proceeded to follow them.
¶9 Conway further testified Officer Hatch arrived and got out of his car. He directed
Conway to come over to him. Conway went to the officer, and defendant stayed to the side.
Conway told Officer Hatch what had happened. Conway testified she knew she had a black eye
and her left shoulder was completely bruised. Officer Hatch took photographs of Conway’s
injuries. Conway identified her injuries in Officer Hatch’s photographs during her testimony.
She denied having the injuries before the incident. Conway stated the incident with defendant
was ongoing for two hours. She denied drinking and using drugs before the incident. Conway
did not seek treatment for her injuries and did not file a petition for an order of protection after
the incident. Conway explained she did not think it was necessary because defendant had been
incarcerated.
¶ 10 Officer Hatch testified he got a call for a disturbance from the hotel’s front desk.
A room number was provided and the name of one of the parties involved was “Nikki.” Officer
Hatch knew Conway from prior dealings. He located Conway across the street from the hotel
with her mother and defendant. Defendant continued to talk the whole time saying nothing had
happened. Officer Hatch noticed red marks on Conway’s neck and Conway seemed frightened.
He had to separate Conway from defendant and her mother before she would talk. Defendant
continued to say Conway’s name even when she was away from him.
¶ 11 Officer Hatch described Conway’s injuries as “scratch marks and redness” on the
left side of her neck. He explained the redness went all the way around her neck. Conway also
had a welt on her shoulder blade that looked like it was the start of a bruise. He identified the
photographs he took of Conway. When asked to point out Conway’s injuries, Officer Hatch
explained, “there was redness, but it doesn’t show up very well on the overhead, but there was
-4- redness on the front and all the way around to the back of her neck.” During his testimony,
Officer Hatch noted two more times the redness went all the way around Conway’s neck. After
speaking with Conway, Officer Hatch spoke with defendant. When asked how Conway’s
injuries occurred, he indicated nothing happened and he did not know how the injuries occurred.
Defendant did admit he grabbed Conway by the arm and picked her up. Officer Hatch also
spoke with Conway’s mother who briefly stated what she had seen inside the hotel room.
¶ 12 After hearing the parties’ arguments, the jury found defendant guilty of
aggravated domestic battery.
¶ 13 In January 2017, defendant filed a timely posttrial motion, asserting (1) the circuit
court erred by barring evidence the victim’s mother used racial slurs against defendant during the
altercation, (2) the State mischaracterized the evidence during closing arguments, and (3) the
State’s evidence was insufficient to prove defendant intentionally impeded Conway’s airflow.
After a February 2017 hearing, the court denied defendant’s posttrial motion.
¶ 14 In April 2017, the circuit court held defendant’s sentencing hearing. The court
noted it was not going to sentence defendant according to the extended-term sentencing
provisions and then sentenced defendant to seven years’ imprisonment. At the end of the
hearing, defendant noted he would be filing a motion to reconsider and filing a claim of
ineffective assistance of counsel. Defendant filed pro se a motion to reconsider his sentence, in
which he argued, inter alia, his sentence was excessive, his sentence violated the proportionate
penalties clause of the Illinois Constitution (Ill. Const. 1970, art. I, § 11), and the trial court
failed to consider all of the mitigating factors. Defendant also alleged trial counsel was
ineffective because counsel misunderstood simple sentencing guidelines by first suggesting
defendant was subject to Class X sentencing and then extended-term sentencing. He asserted, if
-5- counsel would have known the correct sentencing guidelines, he would have received a more
favorable plea offer from the State. In July 2017, the circuit court held a hearing on defendant’s
pro se motion to reconsider his sentence, and trial counsel represented defendant at the hearing.
After considering the parties’ arguments, the court denied defendant’s motion.
¶ 15 Defendant appealed, and this court remanded the case for a Krankel inquiry.
People v. Kiture, No. 4-17-0592 (Nov. 27, 2019) (unpublished summary order under Illinois
Supreme Court Rule 23(c)). On remand, the circuit court conducted the Krankel inquiry on
December 31, 2019, which was before our mandate issued in case No. 4-17-0592. Defendant
appealed again, and this court again remanded the case for another Krankel inquiry because the
circuit court lacked jurisdiction when it conducted the December 2019 inquiry. People v. Kiture,
No. 4-20-0032 (May 8, 2020) (unpublished summary order under Illinois Supreme Court Rule
23(c)).
¶ 16 On November 11, 2020, the circuit court held another Krankel inquiry.
Defendant raised numerous claims of ineffective assistance of trial counsel, including trial
counsel failed to impeach Officer Hatch and Conway with prior inconsistent statements and to
tender a lesser-included jury instruction. As to the latter claim, defendant noted he asked trial
counsel about a jury instruction for a lesser charge and counsel responded he could not put the
jury instruction in because defendant had one count of aggravated domestic battery. After
defendant set forth his numerous claims of ineffective assistance of counsel, the court invited
defense counsel to reply. Counsel responded his decisions were based on his trial strategy. After
trial counsel responded, the court told defendant he had the last word. Defendant added
additional details to some of his ineffective assistance of counsel claims until the court found he
was just repeating information. The court found all of defendant’s claims were matters of trial
-6- strategy. The court declined to appoint defendant counsel and denied defendant’s ineffective
assistance of counsel claims.
¶ 17 Defendant again appealed. This court retained jurisdiction of defendant’s direct
appeal in our prior decision. See People v. Kiture, No. 4-17-0592 (Nov. 27, 2019) (unpublished
summary order under Illinois Supreme Court Rule 23(c)).
¶ 18 II. ANALYSIS
¶ 19 Defendant asserts the circuit court failed to conduct an adequate Krankel inquiry
into the bases of his claims of ineffective assistance of trial counsel and improperly denied him
appointment of counsel. The State disagrees with both contentions. Even assuming the circuit
court’s Krankel inquiry was adequate, we find the court erred by failing to appoint defendant
counsel.
¶ 20 A pro se posttrial claim alleging ineffective assistance of counsel is governed by
the common-law procedure developed by our supreme court in Krankel and refined by its
progeny. People v. Roddis, 2020 IL 124352, ¶ 34, 161 N.E.3d 173. “The procedure encourages
the trial court to fully address these claims and thereby narrow the issues to be addressed on
appeal.” Roddis, 2020 IL 124352, ¶ 34. Under the supreme court’s procedures, the circuit court
does not automatically appoint counsel when a defendant presents a pro se posttrial claim
alleging ineffective assistance of counsel. Roddis, 2020 IL 124352, ¶ 35. Rather, the court first
examines the factual basis of the defendant’s claim. Roddis, 2020 IL 124352, ¶ 35. In doing so,
the court considers the merits of defendant’s allegations in their entirety. Roddis, 2020 IL
124352, ¶ 61. If the court determines the claim lacks merit or pertains only to matters of trial
strategy, then the court need not appoint new counsel and may deny the pro se claim. Roddis,
2020 IL 124352, ¶ 35. “However, if the allegations show possible neglect of the case, new
-7- counsel should be appointed.” Roddis, 2020 IL 124352, ¶ 35. New counsel can then
independently evaluate the defendant’s claim and avoid the conflict of interest trial counsel
would have in trying to justify his or her own actions contrary to the defendant’s position.
Roddis, 2020 IL 124352, ¶ 36. New counsel also represents the defendant at the hearing on the
pro se ineffective assistance of counsel claim. Roddis, 2020 IL 124352, ¶ 36. When the court
has properly conducted a Krankel inquiry and has reached a determination on the merits of the
defendant’s Krankel motion, this court will reverse that determination only if the circuit court’s
action was manifestly erroneous. People v. Jackson, 2020 IL 124112, ¶ 98, 162 N.E.3d 223.
“Manifest error is error that is clearly evident, plain, and indisputable.” Jackson, 2020 IL
124112, ¶ 98.
¶ 21 Additionally, we note courts analyze ineffective assistance of trial counsel claims
under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). People v. Evans,
186 Ill. 2d 83, 93, 708 N.E.2d 1158, 1163 (1999). To obtain reversal under Strickland, a
defendant must prove (1) his counsel’s performance failed to meet an objective standard of
competence and (2) counsel’s deficient performance resulted in prejudice to the defendant.
Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the deficiency prong of Strickland, the
defendant must demonstrate counsel made errors so serious and counsel’s performance was so
deficient that counsel was not functioning as “counsel” guaranteed by the sixth amendment (U.S.
Const., amend. VI). Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. Further, the defendant must
overcome the strong presumption the challenged action or inaction could have been the product
of sound trial strategy. Evans, 186 Ill. 2d at 93, 708 N.E.2d at 1163. To satisfy the prejudice
prong, the defendant must prove a reasonable probability exists that, but for counsel’s
unprofessional errors, the proceeding’s result would have been different. Evans, 186 Ill. 2d at
-8- 93, 708 N.E.2d at 1163-64.
¶ 22 One of defendant’s pro se claims of ineffective assistance of counsel raised on
remand was trial counsel failed to submit a lesser-included jury instruction. Defendant’s
comments at the Krankel hearing suggest defendant asked counsel about a lesser-included
offense instruction. Domestic battery is a lesser-included offense of aggravated domestic
battery. See 720 ILCS 5/12-3.3(a-5) (West 2016) (establishing the commission of domestic
battery is a necessary element of aggravated domestic battery). Defendant stated defense counsel
told defendant the jury instruction could not be submitted because defendant had only one count
of aggravated domestic battery. In response, trial counsel stated the following:
“My failure or—my failure to include a lesser included charge jury
instruction was trial strategy. I will say for the record I never had a conversation
with [defendant] where I told him that I would or that I had changed my mind and
that I could not because he only had one charge. I do not believe that
conversation ever took place. My decision not to include a lesser included jury
instruction was trial strategy.”
¶ 23 In People v. Brocksmith, 162 Ill. 2d 224, 229, 642 N.E.2d 1230, 1232 (1994), our
supreme court held a defendant has the exclusive right to decide whether to submit a jury
instruction on a lesser-included offense at the conclusion of the evidence. There, the supreme
court reversed the defendant’s conviction on the lesser-included offense because defense
counsel, rather than the defendant, had made the ultimate decision to tender the lesser-included
offense instruction. Brocksmith, 162 Ill. 2d at 229-30, 642 N.E.2d at 1233. Here, the State
acknowledges the decision whether to submit a lesser-included offense instruction was not
defense counsel’s to make. As such, trial counsel’s actions were not a matter of trial strategy.
-9- However, the State still asserts the circuit court’s decision not to appoint counsel was proper
because defendant’s claim was still meritless.
¶ 24 The State first suggests defendant would not have tendered such an instruction if
he had been allowed to make the decision because defendant did not accept the State’s plea deal.
The State’s argument is irrelevant since defense counsel did not allow defendant to make the
decision. Further, defendant’s statements at the Krankel inquiry suggest he desired a
lesser-included offense instruction.
¶ 25 The State next argues defendant was not prejudiced by defense counsel’s making
the decision about the lesser-included offense instruction. It notes “[a] defendant is entitled to a
lesser-included offense instruction only if the evidence at trial is such that a jury could rationally
find the defendant guilty of the lesser offense, yet acquit him of the greater.” People v. Medina,
221 Ill. 2d 394, 405, 851 N.E.2d 1220, 1226 (2006). The State contends the evidence was such
that the jury would not have convicted defendant of only domestic battery. However, defense
counsel’s theory was Officer Hatch suggested to Conway defendant’s actions impeded her
breathing. Defense counsel emphasized the injuries to Conway were very minor, which is not
refuted by the pictures. At the Krankel hearing, defendant asserted other errors by defense
counsel in impeaching Officer Hatch’s testimony that suggested Conway was strangled.
¶ 26 Based on the information disclosed at the Krankel inquiry and the record on
appeal, defendant’s claim of ineffective assistance of counsel based on counsel’s failure to tender
a lesser-included instruction is not meritless. As such, defendant did show possible neglect of
his case by defense counsel. The circuit court’s finding to the contrary is manifestly erroneous.
Thus, we remand defendant’s case for appointment of new counsel to address defendant’s
ineffective assistance of counsel claims. We need not address defendant’s other claims of
- 10 - ineffective assistance of counsel as defendant’s new counsel will be able to independently
evaluate the merit of those claims. Additionally, we express no view on the ultimate merits of
defendant’s ineffective assistance claims or on any of his other appellate arguments. As noted in
our first order, if after a subsequent hearing on the ineffective assistance claims, the circuit court
rejects that claim, then defendant may again appeal, at which point we will address defendant’s
remaining arguments from this appeal and any argument on appeal defendant may raise about the
circuit court’s determination his trial counsel was not ineffective. See People v. Kiture, No. 4-
17-0592 (Nov. 27, 2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)).
“To avoid confusion in the event of a subsequent appeal, we retain jurisdiction over this matter
pursuant to Illinois Supreme Court Rule 366(a)(5) (eff. Feb. 1, 1994).” In re T.R., 2019 IL App
(4th) 190051, ¶ 51, 127 N.E.3d 1157.
¶ 27 III. CONCLUSION
¶ 28 For the reasons stated, we reverse the Adams County circuit court’s denial of
defendant’s ineffective assistance of counsel claims without the appointment of counsel and
remand the cause for further proceedings consistent with this order.
¶ 29 Reversed and remanded with directions.
- 11 -