People v. Lemke

892 N.E.2d 1213, 384 Ill. App. 3d 437, 323 Ill. Dec. 221, 2008 Ill. App. LEXIS 754
CourtAppellate Court of Illinois
DecidedJuly 31, 2008
Docket5-07-0064
StatusPublished
Cited by11 cases

This text of 892 N.E.2d 1213 (People v. Lemke) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lemke, 892 N.E.2d 1213, 384 Ill. App. 3d 437, 323 Ill. Dec. 221, 2008 Ill. App. LEXIS 754 (Ill. Ct. App. 2008).

Opinion

JUSTICE WEXSTTEN

delivered the opinion of the court:

Following a jury trial in the circuit court of Edwards County, the defendant, Kenneth R. Lemke, was convicted of first-degree murder (720 ILCS 5/9 — 1(a)(2) (West 2000)). On appeal from his conviction, the defendant argues that his murder conviction should be reduced to involuntary manslaughter (720 ILCS 5/9 — 3(a) (West 2000)) and that, alternatively, he should be granted a new trial because he was denied the effective assistance of counsel. For the following reasons, we affirm the defendant’s conviction for first-degree murder.

BACKGROUND

In November 2001, the defendant and his stepson, Lance Albert-son, were involved in an altercation that resulted in Albertson’s death. It is undisputed that the incident began as a verbal dispute and ended when Albertson was shot in the head with a round fired from a .22-caliber revolver.

In April 2002, following a bench trial in the circuit court of Edwards County, the defendant was convicted of first-degree murder. On appeal, the defendant argued that the evidence presented for the trial court’s consideration did not support a conviction for first-degree murder and that “his trial counsel’s failure to present the defense that the defendant had committed the lesser offense of involuntary manslaughter constituted the ineffective assistance of counsel.” People v. Lemke, 349 Ill. App. 3d 391, 392 (2004). Agreeing with the defendant’s latter contention, this court reversed and remanded for a new trial. Lemke, 349 Ill. App. 3d at 398, 402.

In October 2006, the defendant was retried before a jury, which also found him guilty of first-degree murder. The following occurred at the jury trial.

Jack Russell Heindselman testified that on November 3, 2001, he and Albertson had gone to the defendant’s home in rural Edwards County after having gone bow hunting for deer. Heindselman stated that he and Albertson arrived at the defendant’s sometime after dark and that the defendant was not present at the time. When the defendant later returned home, Heindselman was inside the house and Albertson was “out in the shed working on something.” The defendant and Albertson had been “arguing that day,” and the defendant seemed enraged about something. The defendant then went out to the shed to talk to Albertson but soon returned, grabbed a walking stick, and stated, “He’s not going to talk to me that way.” The defendant then exited the house again. At that point, Heindselman decided to go outside to “see what was going on.” Once outside, Heindselman saw the defendant and Albertson wrestling. After winning the wrestling match, Albertson grabbed the walking stick and walked away from the defendant. As Albertson was subsequently loading up his four-wheeler to leave, the defendant went back inside the house and “walked back out with a gun.” Heindselman indicated that the defendant had held the gun directly in front of him “like he was going to walk up and shoot somebody” and approached Albertson. When Heindselman asked the defendant what he was doing, the defendant stopped for a moment but then continued toward Albert-son. Albertson, who was standing on the back of the four-wheeler with the walking stick in his hand, asked the defendant what he was doing and then urged him to “stop it.” Heindselman then heard a gunshot and saw Albertson fall. Heindselman testified that the defendant was six to eight feet from the four-wheeler at the time. Heindselman subsequently went to Albertson and saw that he had been shot in the forehead and was apparently dead. The defendant also went to Albert-son, and Heindselman told him to call 9-1-1.

When cross-examined, Heindselman admitted that when he checked Albertson’s condition after the shooting, he had removed from one of Albertson’s pockets a light bulb that Albertson had used to smoke methamphetamine earlier in the day. Heindselman denied using methamphetamine himself that day, but he acknowledged that he had used it on other occasions, that at the time of his testimony he was serving a sentence on a methamphetamine-related charge, and that he had other prior methamphetamine-related convictions. He further acknowledged that although his testimony suggested that the defendant had meant to shoot Albertson, he had previously told Deputy Scott Meserole that he thought it had been an accident. Heindselman explained that after later considering that the revolver in question had to be manually cocked before it could be fired, he thought that the shooting “was not an accident.” Heindselman admitted that he had been drinking beer prior to the events in question and was intoxicated when the events occurred. He testified that he did not remember telling the police that he had “looked away” prior to hearing a gunshot. He also admitted that two weeks before the trial, he had sent a letter to the Edwards County State’s Attorney asking him to intervene in some administrative matters that had arisen with the Department of Corrections.

On redirect, Heindselman testified about the circumstances that prompted him to ask the Edwards County State’s Attorney for help in dealing with the Department of Corrections. He explained that as a result of being subpoenaed to testify at the defendant’s trial, he had been transferred to a maximum security facility and had lost his work-release status. He further stated that being subpoenaed had also resulted in his inability to complete the programs and classes in which he had been enrolled and that he had thus lost good-time credit toward his sentence. Heindselman testified that nothing had changed since he had written the letter to the State’s Attorney and that he had not been promised anything in exchange for his testimony.

The defendant called 9-1-1 after the shooting, and the recording of the defendant’s call was played for the jury. On the recording, the defendant can be heard stating, inter alia, “[Albertson] jerked the gun out of my hand.” The defendant can also be heard attempting to revive Albertson with CPR.

Edwards County Sheriff Scott Meserole testified that he was a deputy sheriff on November 3, 2001, and that he responded to the scene of the shooting shortly after it had been reported. Meserole testified that he spoke with both the defendant and Heindselman, that a revolver that had been on the ground near Albertson’s body was collected as evidence, that the defendant had been crying, and that the defendant’s speech was somewhat slurred.

Edwards County Coroner Mark Curtis testified that he pronounced Albertson dead at the scene and that he was present when the revolver found near Albertson’s body was secured as evidence. Curtis testified that the revolver’s cylinder contained five live rounds and one spent round and that the hammer was down on a live round with the spent round to the right of it. An autopsy revealed that Albertson died from a single gunshot wound to the head. The fatal bullet traveled in a “slightly upward” trajectory and “passed through the right side of the brain.” Albertson’s blood tested negative for the presence of alcohol but positive for the presence of amphetamine and methamphetamine.

Michael Cooper, a forensic firearms expert with the Illinois State Police, testified that he had examined the revolver that was found at the crime scene.

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Cite This Page — Counsel Stack

Bluebook (online)
892 N.E.2d 1213, 384 Ill. App. 3d 437, 323 Ill. Dec. 221, 2008 Ill. App. LEXIS 754, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lemke-illappct-2008.