People v. Tillmon

2024 IL App (3d) 220528-U

• Court: Appellate Court of Illinois
• Decided: October 30, 2024
• Docket: 3-22-0528
• Status: Unpublished

Opinion

NOTICE: This order was filed under Supreme Court Rule 23 and is not precedent except in the limited circumstances allowed under Rule 23(e)(1).

2024 IL App (3d) 220528-U

Order filed October 30, 2024 ____________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

THE PEOPLE OF THE STATE OF ) Appeal from the Circuit Court ILLINOIS, ) of the 18th Judicial Circuit, ) Du Page County, Illinois, Plaintiff-Appellee, ) ) Appeal No. 3-22-0528 v. ) Circuit No. 17-CF-810 ) ANTHONY D. TILLMON, ) Honorable ) John J. Kinsella, Defendant-Appellant. ) Judge, Presiding. ____________________________________________________________________________

PRESIDING JUSTICE McDADE delivered the judgment of the court. Justices Peterson and Albrecht concurred in the judgment. ____________________________________________________________________________

ORDER

¶1 Held: The circuit court did not conduct an adequate Krankel inquiry.

¶2 Defendant, Anthony D. Tillmon, appeals his conviction for first degree murder arguing

the Du Page County circuit court failed to conduct an adequate Krankel inquiry. We remand with

directions.

¶3 I. BACKGROUND ¶4 On May 16, 2017, defendant was charged with five counts of first degree murder (720

ILCS 5/9-l(a)(l) (West 2016)) stemming from the April 21, 2017, shooting of Eduardo Munoz.

At a bench trial on May 3, 2022, Daniel Schuster testified that at approximately 4 p.m. on April

21, 2017, he was travelling eastbound on Interstate 88 in the far right lane behind Munoz’s

semitruck. Defendant’s flatbed tow truck was in the next lane to the left of Munoz. Schuster

observed Munoz and defendant’s vehicles move as close as possible to each other, cross over

into the other lane, and speed up and slow down for one mile. The vehicles were travelling

around 55 to 60 miles per hour. Schuster did not see either vehicle hit the other. After passing the

two vehicles, Schuster looked in his mirror and saw Munoz and defendant pointing at each other.

Munoz’s semitruck nearly lost control before pulling over to the right shoulder. Schuster did not

hear any gunshots.

¶5 Anthony Falconio testified he was driving eastbound on Interstate 88 at the time of the

incident. Falconio saw the semitruck and tow truck in front of him. The semitruck was moving

into the left lane preparing to merge. Falconio was driving the speed limit and the tow truck was

driving just under the speed limit at the time. Falconio believed the semitruck driver realized

there was another vehicle in that lane while attempting to merge, causing it to move back into the

right lane.

¶6 Falconio saw defendant in the tow truck throw up his hands after the semitruck nearly cut

him off. The tow truck swerved toward the semitruck three times. The third time, Falconio

believed the two vehicles made contact and he heard a loud noise. The semitruck pulled over to

the right shoulder and came to a stop. The tow truck increased its speed and exited the interstate.

¶7 An Illinois State trooper dispatched to the scene at 4:58 p.m. found Munoz’s semitruck

on the shoulder of the interstate with the engine still running. The driver’s side door window was

2 shattered, the driver’s door was open, and Munoz’s foot was hanging outside the door. Munoz

was laying inside the cab. He had no pulse and was not breathing. Munoz was transported to the

hospital where he was pronounced dead. A forensic pathologist testified Munoz was shot three

times which caused his death. She further testified defendant’s tow truck tested positive for

gunshot residue.

¶8 Defendant’s girlfriend at the time of the incident testified she picked defendant up at 5:15

p.m. at a Walmart parking lot. She drove him to the tow yard where his car was parked.

Defendant’s coworker testified he drove defendant back to the Walmart parking lot to retrieve

the tow truck. The coworker also testified defendant had purchased a gun and showed it to him

before the incident.

¶9 Brian Booker testified he was the owner of the towing company that defendant worked

for at the time of the incident. He testified employees were prohibited from carrying guns or

leaving their trucks in a public parking lot. Employees were expected to call the towing company

if they were involved in a traffic accident or had an altercation with another driver. Defendant

did not call the company to report the April 21, 2017, incident. Booker stated the trucks were

equipped with global positioning system (GPS) data, and the GPS data showed defendant was in

the area at the time of the incident. The GPS data was admitted into evidence and the State

rested.

¶ 10 Defense counsel called a pharmacologist who was admitted as an expert. The

pharmacologist testified dextromethorphan is used therapeutically as a cough suppressant, but in

large doses may cause euphoria, dysphoria, and perceptual disturbances. At very high levels, it

may have effects similar to ketamine or phencyclidine. Munoz’s blood showed a concentration

of dextromethorphan 50 times the normal therapeutic concentration. The pharmacologist

3 estimated Munoz had consumed 10 to 20 times the recommended dose and opined that the

amount in his blood could cause hyper aggressive behaviors and hallucinations.

¶ 11 Defense counsel called Munoz’s fiancée regarding a domestic violence incident from

2009. She testified that she did not remember any incident around that time. Defense counsel

introduced as impeachment evidence a police report stating that during a traffic stop in 2009,

Munoz’s fiancé exited the vehicle Munoz was driving and began yelling that Munoz was trying

to kill her.

¶ 12 Defendant testified that he had been a tow truck driver for 9 to 10 years. On the date of

the incident, defendant was returning from a towing job. He was in standstill traffic when a

semitruck began to merge into him at “[p]robably two to three” miles per hour. He believed the

middle of the semitruck’s trailer rubbed against the tow truck’s mirror. Defendant honked the

horn and flashed his lights. He then drove up alongside the semitruck. Munoz was hanging out of

the semitruck yelling at defendant. Defendant took photographs on his phone. Munoz jerked the

semitruck toward defendant and hit the tow truck’s side mirror. Munoz reached out holding an

object. Defendant could not tell what the object was.

¶ 13 Defendant moved his tow truck to the left lane and slowed down. Defendant believed

Munoz was attempting to move his semitruck close to defendant before swerving right in order

to swing his trailer to the left, hitting defendant’s tow truck. Defendant believed Munoz was

going to kill him. The two vehicles were travelling at approximately 15 to 20 miles per hour at

this time. Defendant grabbed his firearm and fired at Munoz. Defendant sped up and exited the

interstate to get away from Munoz. He did not know whether any bullets hit Munoz. Defendant

attempted to reenter the interstate to check the scene of the incident but could not find an

entrance. He eventually stopped to check the damage to his truck, which was not significant. The

4 mirror was cracked, and paint was scraped off the side of the tow truck. Defendant called his

girlfriend and had her meet him at Walmart. He did not tell her about the incident because he did

not know whether he shot Munoz. He only learned Munoz died several days later when the

police searched defendant’s house. Defendant turned himself in when he learned the police were

looking for him.

¶ 14 In closing arguments, defense counsel argued that defendant acted in self-defense and

suggested defendant could be guilty of second degree murder due to imperfect self-defense. On

May 18, 2022, the court found defendant guilty of all five counts of first degree murder. The

court determined defendant was unreliable, noting his testimony that he came to a stop on the

highway was contradicted by two witnesses who testified he and Munoz were travelling at or

above the speed limit during the altercation. The court also found there was no evidence Munoz

did anything wrong besides his initial error of attempting to merge into defendant’s lane. The

court concluded that, following Munoz’s mistake, defendant challenged him before shooting him

out of anger, not fear.

¶ 15 Defendant filed a motion for a new trial on June 15, 2022. At the hearing on the motion,

counsel stated defendant wished to raise a claim of ineffective assistance of counsel. On October

5, 2022, the court conducted a preliminary Krankel inquiry. Relevant to this appeal, defendant

argued counsel was ineffective for failing to (1) take photographs of the tow truck’s mirror

which would have helped prove defendant’s version of events; (2) introduce a statement from

defendant’s mother where she told police that defendant’s tow truck had been hit; (3) admit GPS

data showing the tow truck’s speed to show that they were at a standstill at the time; and

(4) introduce dash camera footage from the tow truck which would have corroborated

defendant’s version of events.

5 ¶ 16 The court asked trial counsel whether he was aware of any dash camera footage. Counsel

believed any footage was in the State’s possession, so the State would have a duty to produce it.

Counsel further believed, and the court agreed, several of the routes of investigation by counsel

would not necessarily produce evidence helpful to defendant. In that event, counsel would have

had a duty to produce the evidence, even if harmful to defendant. Counsel further indicated that

the GPS data was already admitted by the State. Regarding the statement from defendant’s

mother, the court did not ask counsel specifically about the issue but instead asked, “Any other

response to any of the other points?” Counsel did not discuss this point.

¶ 17 The court found defendant failed to articulate ineffective assistance of counsel and did

not appoint new counsel for a Krankel hearing. The court believed, “[t]o the extent that there

were decisions made about the evidence and about the arguments, all of it is attributable to

strategy ***.” Defendant was sentenced to 50 years’ imprisonment and 3 years’ mandatory

supervised release. Defendant appealed.

¶ 18 II. ANALYSIS

¶ 19 On appeal, defendant argues the court failed to conduct an adequate preliminary Krankel

inquiry. Specifically, defendant argues the court did not sufficiently inquire into whether counsel

was ineffective for failing to (1) take photographs of the tow truck’s mirror; (2) introduce a

statement from defendant’s mother; (3) admit GPS data showing the tow truck’s speed; and

(4) introduce dash camera footage.

¶ 20 A defendant has the constitutional right to the effective assistance of counsel. U.S.

Const., amends. VI, XIV; Ill. Const. 1970, art. I, § 8. If a defendant raises a pro se posttrial claim

that he was denied his constitutional right to the effective assistance of trial counsel, the court

must inquire further into defendant’s allegations. People v. Krankel, 102 Ill. 2d 181, 189 (1984);

6 People v. Roddis, 2020 IL 124352, ¶ 34. The first step in hearing those claims requires the circuit

court to make a preliminary inquiry to examine the factual basis of the defendant’s claim. People

v. Horman, 2018 IL App (3d) 160423, ¶ 24. New counsel is appointed to represent defendant in a

full hearing if the allegations show possible neglect of the case. Id.

¶ 21 A preliminary inquiry requires the court conduct “ ‘some type of inquiry into the

underlying factual basis’ ” of defendant’s claims. People v. Ayres, 2017 IL 120071, ¶ 11 (quoting

People v. Moore, 207 Ill. 2d 68, 79 (2003)). “Specifically, the ‘trial court must conduct an

adequate inquiry ***, that is, inquiry sufficient to determine the factual basis of the claim.’ ” Id.

(quoting People v. Banks, 237 Ill. 2d 154, 213 (2010)). Generally, “some interchange between

the trial court and trial counsel regarding the facts and circumstances surrounding the allegedly

ineffective representation is permissible and usually necessary.” Moore, 207 Ill. 2d at 78. Where

the claims are based on matters outside the record, an inquiry is incomplete where it fails to

develop the factual record needed to resolve the claims. People v. McLaurin, 2012 IL App (1st)

102943, ¶ 44. “We review whether the trial court conducted an adequate inquiry de novo.”

People v. Rhodes, 2019 IL App (4th) 160917, ¶ 14.

¶ 22 Decisions regarding what witnesses to call or what evidence to present at trial are

ultimately left to trial counsel as matters of trial strategy and generally not subject to attack on

the grounds of ineffective assistance of counsel. People v. Reid, 179 Ill. 2d 297, 310 (1997).

However, only sound trial strategy is afforded this protection. Id. Whether counsel’s decision to

introduce a particular witness or piece of evidence at trial was the result of sound trial strategy

will often depend on facts not in the record. See, e.g., People v. Barner, 2022 IL App (3d)

200433-U, ¶ 39 (finding a preliminary Krankel inquiry inadequate where the record did not

indicate why counsel failed to present any mitigating evidence at sentencing); see also People v.

7 Brown, 2022 IL App (1st) 191628-U, ¶ 70 (finding an inquiry inadequate where it was not

possible to discern from the record whether trial counsel was aware of certain testimony).

¶ 23 Here, the inquiry was inadequate as it did not sufficiently develop the factual basis

necessary to make a determination as to the ineffectiveness of counsel. First, it is not clear why

counsel did not introduce photographs showing the damage to the tow truck, or whether counsel

even examined the tow truck. Defendant’s theory was that Munoz was the aggressor, striking

defendant’s tow truck with his semitruck. The condition of the tow truck and signs of physical

damage were of clear significance to that defense, and the court should have inquired further as

to whether counsel’s decision here was the result of sound trial strategy following an adequate

investigation.

¶ 24 Second, and for the same reasons, the inquiry into counsel’s decision not to introduce

evidence of defendant’s mother’s statement was insufficient. There is nothing in the record

indicating whether counsel was aware of the statement and its contents, or why he elected not to

admit it into evidence. The court did not inquire into this issue at all. The State argues “[t]rial

counsel was presumably in possession of the police reports,” so the decision not to call the

mother as a witness was the result of sound trial strategy. However, it is precisely because we are

left speculating as to this type of information when the court did not question it further that the

matter must be remanded for further inquiry.

¶ 25 Third, counsel stated the State had already admitted the GPS data into evidence. But the

GPS data admitted at trial did not show the tow truck’s speed. A major discrepancy between the

State’s witnesses and defendant’s testimony was what speed the tow truck and semitruck were

travelling at the time of the incident. Defendant testified they were at a near standstill and the

shooting occurred while they were travelling around 20 miles per hour, while the State’s

8 witnesses testified the vehicles were travelling much faster at the time of the incident. The GPS

data could have bolstered defendant’s credibility as against the other witnesses. Nonetheless,

whether such GPS data existed, counsel’s steps to determine whether it existed, and counsel’s

decision not to procure and admit such evidence at trial were appropriate areas of inquiry that

were not pursued here. The State again argues that “presumably, defense counsel would have

pointed to the portion of the GPS that indicated a slow speed if it were either available or

helpful.” However, the court should have inquired further so the record was clear regarding

counsel’s investigation into the speed the vehicles were travelling.

¶ 26 Fourth, the record does not reveal what steps counsel took in independently acquiring the

dash camera footage. While counsel did state he would have had a duty to produce any evidence,

even if harmful, it is unclear how that would justify failing to pursue evidence counsel believed

to already be in the State’s possession. As defendant argues on appeal, counsel could have filed a

motion to compel the State to tender the video. See, e.g., People v. Beaman, 229 Ill. 2d 56, 72

(2008). The reason no such motion was filed is not readily discernable from the record.

¶ 27 We therefore remand for the limited purpose of allowing the circuit court to make a more

thorough inquiry into the issues raised by defendant. See McLaurin, 2012 IL App (1st) 102943,

¶ 53. In remanding this case, we note that, after an adequate preliminary inquiry, the court may

base its Krankel decision on either the factual or legal merits of defendant’s claim of ineffective

assistance of counsel. Roddis, 2020 IL 124352, ¶¶ 55, 61.

¶ 28 III. CONCLUSION

¶ 29 The judgment of the circuit court of Du Page County is remanded with directions.

¶ 30 Remanded with directions.