People v. Wade

2024 IL App (5th) 220755-U

Opinion

2024 IL App (5th) 220755-U NOTICE NOTICE Decision filed 04/01/24. The This order was filed under text of this decision may be NO. 5-22-0755 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, ) Macon County. ) v. ) No. 18-CF-1716 ) DANTE L. WADE, ) Honorable ) Thomas E. Griffith Jr., Defendant-Appellant. ) Judge, presiding. ______________________________________________________________________________

JUSTICE McHANEY delivered the judgment of the court. Justices Moore and Barberis concurred in the judgment.

ORDER

¶1 Held: Where the defendant’s pro se postconviction petition failed to establish thegist of a constitutional violation, we affirm the trial court’s order dismissing the petition at the first stage.

¶2 The defendant was charged with three counts of first degree murder (720 ILCS 5/9-1(a)(1),

(2) (West 2018)), alleging the defendant, without lawful justification and with the intent to kill or

do great bodily harm, personally discharged a firearm that caused the death of Marcqui Apholone.

See 730 ILCS 5/5-8-1(a)(1)(d)(iii) (West 2018). Following a jury trial, the defendant was found

guilty of first degree murder and to have personally discharged a firearm that proximately caused

the death of Apholone. The defendant filed a direct appeal, and the Fourth District affirmed his

conviction and sentence. People v. Wade, 2022 IL App (4th) 200586-U (filed Apr. 20, 2022). On

August 16, 2022, the defendant filed a pro se postconviction petition, which the trial court

1 dismissed after finding it was “frivolous or patently without merit.” The defendant appeals from

the trial court’s summary dismissal of his postconviction petition at the first stage. For the reasons

that follow, we affirm.

¶3 I. BACKGROUND

¶4 The facts contained herein have been largely extracted from the appellate court order on

direct appeal. Id. At the defendant’s jury trial, the State called Jasmine Wade, who testified that

she is the defendant’s daughter and, at the time of her testimony, was in jail for failing to appear

in court despite being subpoenaed. In November 2018, Jasmine had been dating Apholone for

about a year. On November 7, 2018, Jasmine and Apholone argued after she accused him of

cheating. Jasmine had Apholone’s phone, and he wanted it back. On November 8, 2018, Apholone

confronted Jasmine while she attended class at Richland Community College, and the pair engaged

in a physical altercation, during which Jasmine’s acrylic nails were damaged or torn from her

fingers, causing injury. Apholone took Jasmine’s keys. When Jasmine later contacted Apholone

and demanded her keys back, he said he would return her keys when she returned his phone.

Jasmine went to her sister Shakeara’s apartment and her father, the defendant, was there. She

testified it was unusual for him to come to Decatur, and she had not seen him since December

2017. Defendant was upset when he saw Jasmine’s injuries. Jasmine, Shakeara, the defendant, and

her uncle, Ernest Brooms, who came along for “protection,” drove to Apholone’s house. The

defendant was dropped off before they arrived at Apholone’s house, but Jasmine could not

remember why he got out of the vehicle. When they arrived, Jasmine started arguing with

Apholone. After the defendant appeared, he and Apholone began fighting. Jasmine testified she

saw the defendant point a gun at Apholone and pull the trigger. She was “100 percent” certain the

defendant shot Apholone. Brooms got out of the car and ran off. While Shakeara drove away, the

2 defendant was acting “aggressively” and said, “I don’t like dread heads. He’s in the dirt.” Jasmine

did not see the defendant again until the day of her testimony at his jury trial.

¶5 Police interviewed Jasmine on November 9, 2018, and she told them she did not know

anything about Apholone’s murder. Jasmine returned on November 19, 2018, with counsel and

gave a full interview, which she agreed was a “truthful statement.” On cross-examination, Jasmine

stated she was scared “in general.” She testified someone had “shot at” Brooms and her mother’s

house and she believed the shots were related to Apholone’s murder. Jasmine also agreed Brooms

had previously fought boyfriends of his nieces.

¶6 Ernest Brooms testified he is Jasmine’s uncle, and he has known the defendant, his sister’s

ex-husband, since he was five years old. On November 8, 2018, Brooms went with Jasmine,

Shakeara, and the defendant to Apholone’s house. He testified that the defendant asked him to join

them so Brooms could “help” if Apholone brought friends out with him. Otherwise, Brooms

planned to let the defendant and Apholone fight “one-on-one.” When the group arrived at

Apholone’s house, Apholone was just pulling into the driveway, so they circled the block and

dropped the defendant off a block away. At Apholone’s house, Apholone and Jasmine got into an

argument. Brooms jumped out of the car “to go make [Apholone] get his hands off [his] niece.”

The defendant showed up shortly after Brooms got out of the car. The defendant grabbed

Apholone, “something” was said, and the defendant “started shooting.” Apholone broke away, and

the defendant chased him. Brooms testified the defendant fired the gun “[f]ive, six times maybe.”

He also stated the gun was a “black—a revolver,” which he knew because he “know[s] guns.”

¶7 Brooms testified that when he was first interviewed by police, he told them he did not know

anything about the murder. He stated that he gave police a “truthful statement” during his second

3 interview. During cross-examination, Brooms confirmed he had previously fought the boyfriend

of a different niece.

¶8 Shakeara Wade testified she is the defendant’s daughter and Jasmine’s older sister.

Shakeara testified Apholone was dating her sister, but she did not know him well. On November

8, 2018, Jasmine called Shakeara and told her Apholone “had beat her up at school.” She testified

that she had not seen the defendant in over a year. After the defendant arrived in Decatur, Shakeara

drove Jasmine and the defendant to meet Apholone to retrieve Jasmine’s keys. Shakeara picked

up Ernest Brooms, her uncle, on the way “for protection.” Shakeara dropped the defendant off

about a block from Apholone’s house. She assumed he needed to use the restroom but could not

recall if he told her that. Shakeara parked near Apholone’s house, and Jasmine went to speak with

him. While Jasmine was arguing with Apholone, Ernest got out of the car. Shakeara saw the

defendant walk up to Apholone and believed Ernest and the defendant started fighting with

Apholone. Shakeara heard “three or four” gunshots. Jasmine returned to the car upset. The

defendant got in the car and told Shakeara to drive. Shakeara described the defendant as upset,

angry, and “acting aggressive.”

¶9 After his arrest, the defendant called Shakeara from jail and asked her not to come to court.

He also asked her to encourage Jasmine to “stay low” and not come to court. The recordings of

the phone calls were played for the jury.

¶ 10 Shakeara acknowledged on cross-examination that she originally gave investigators a

different version of events. Investigators told her she would be arrested for murder, and she gave

them a new version of events. She also confirmed she did not see the defendant with a gun and did

not see anyone actually shoot Apholone. Shakeara explained on redirect she was scared when she

was interviewed by police but the final version of events she provided was the truth.

4 ¶ 11 Cassandra Bond testified she is the mother of Shakeara and Jasmine. On November 8,

2018, Bond left a message with the defendant that Jasmine had been hurt by her boyfriend. She

stated that she did not ask the defendant to come to Decatur.

¶ 12 Stonee Adams testified that Apholone was his best friend and they had been friends since

childhood. On November 7, 2018, after arriving at Adams’s mother’s house, Apholone realized he

had left his phone in Jasmine’s car when she dropped him off. Adams loaned Apholone a phone

so he could locate Jasmine. He overheard Apholone speaking on the phone with Jasmine and

reported the tone was “angry.” The next day, November 8, 2018, Adams was with Apholone when

he went outside to meet Jasmine. Adams could hear Apholone and Jasmine yelling at each other,

“[g]oing back and forth three or four times, ‘give me my phone, give me my keys.’ ” Adams heard

Apholone say, “ ‘Okay, okay, man’ ” and then heard “five or six” gunshots. Adams heard a vehicle

speed off. He ran outside but did not see Apholone or Jasmine.

¶ 13 George Yeaman testified that on November 8, 2018, he was sitting at his kitchen table

when he heard gunshots. He looked out the window and saw a car drive away with a truck right

behind it. Both vehicles were “getting out of there,” and the truck was driving “[l]ike a bat out of

hell.” Yeaman saw a man wearing baggy clothes running across multiple yards down the street.

¶ 14 Laney Martin testified she heard a male and a female arguing. She then heard what sounded

like a scuffle, followed by six gunshots, “a sequence of two rapid shots, single shot, single shot,

and then two more rapid shots.” Martin went outside and saw Adams, who approached her and

said he was scared because he was on parole or probation. Adams used Martin’s phone to call for

a ride. Martin encouraged Adams to wait and give a statement to the police, which Adams did.

¶ 15 Vanessa Helms testified that she was dating the defendant in November 2018. On

November 8, 2018, the defendant sent her a text message, saying his daughter was hurt and he

5 needed to go to Decatur. Helms drove him to Decatur from Joliet. They arrived at around 7 p.m.,

and Helms dropped the defendant off at an apartment complex then went to visit her own daughter.

Helms visited with her daughter for approximately 45 minutes, and then went to get food. The

defendant called and said he was ready to leave. Helms picked him up at the same apartment

complex. She could not remember the exact time she picked the defendant up, but it was after 8

p.m. On the drive back to Joliet, they stopped at a Casey’s gas station. The State played a video

recording from a security camera at the Casey’s gas station in Maroa, which showed the defendant

at the station between 8:33 p.m. and 8:38 p.m. Helms testified the defendant was not acting any

differently than he normally did on the drive back. Helms later learned that the defendant had been

arrested for murder. The defendant called her from jail and the recording of the call was played for

the jury.

¶ 16 Decatur police officer Timothy Wisniewski testified that on November 8, 2018, he

responded at 7:44 p.m. to a call of shots fired with a possible gunshot victim. Officer Wisniewski

located a deceased black male lying on his back in a driveway. There was a large pool of blood

under his body and blood pooling around his head.

¶ 17 Decatur police officer Troy Kretsinger also responded to a call of shots fired with a possible

gunshot victim. Officer Kretsinger went to the police station to retrieve equipment to process the

crime scene and collect evidence. By the time Officer Kretsinger returned, it was actively raining.

He quickly placed tent markers, photographed evidence, and collected items officers located at the

scene, which included a blue University of Illinois stocking cap, a chewed piece of gum, hair braids

or hair extensions consistent with the victim’s hair, a Ford key fob, and a key chain with a lanyard

with the name “Jasmine” on it. No casings or projectiles were recovered.

6 ¶ 18 Detective David Dailey with the Decatur Police Department testified he specializes in the

examination of cell phone records and cell phone data. Detective Dailey obtained a search warrant

for the defendant’s cell phone. The data from the cell phone showed the approximate latitude and

longitude of the defendant’s cell phone between 4:23 p.m. and 11:17 p.m. on November 8, 2018.

Detective Dailey created a PowerPoint presentation of the location information, which was shown

to the jury. From 4:23 p.m. to 6:32 p.m., the defendant’s cell phone traveled from Joliet to Decatur.

The defendant’s cell phone then began traveling “down to the area general to the crime scene.”

The defendant’s cell phone left Decatur at 7:55 p.m. and arrived back in Joliet at 11:17 p.m.

Detective Dailey also confirmed the defendant’s cell phone was in the approximate area of the

Casey’s in Maroa when the defendant was seen on the security camera at the gas station. On cross-

examination, Detective Dailey explained the data is not global positioning system data and

therefore does not provide an exact location.

¶ 19 Dr. Scott Denton testified he is a coroner’s forensic pathologist and performed the autopsy

on Apholone. Dr. Denton testified Apholone had six individual gunshot wounds, only one of which

was fatal. Dr. Denton explained: “The only gunshot wound that would have caused death *** was

the gunshot wound that went in the back of [Apholone’s] left neck that got his carotid artery

because that’s a fatal wound that cause instantaneous large amount of bleeding, and then went up

through the skull and exited the eye, so that was the fatal wound.” Apholone would have remained

conscious for “about 30 seconds to a minute and a half” after his carotid artery was severed and

would have been able to move before he lost consciousness. The wound was also consistent with

Apholone being in a bent down or bent forward position. Autopsy photos were presented to the

jury.

7 ¶ 20 Detective Appenzeller testified that he was the lead investigator for Apholone’s homicide

investigation. On November 29, 2018, Detective Appenzeller interviewed the defendant.

Appenzeller informed the defendant they were investigating a November 8, 2018, homicide. The

defendant responded that he received a text message from his ex-wife, Bond, about an emergency

involving his daughters, Jasmine and Shakeara. The defendant contacted Shakeara, who told him

“it was not a big deal.” The defendant told Detective Appenzeller that he decided to go to Decatur

and told Shakeara he was coming. However, the defendant’s ride fell through, and he stayed in

Joliet. The defendant learned of Apholone’s murder the next day when he spoke to Shakeara. The

defendant also told Detective Appenzeller that he did not get along with Brooms.

¶ 21 The parties stipulated (1) to the foundation for the recordings of the defendant’s calls from

jail, and (2) that Detective Ronald Borowczyk would testify he extracted data from Shakeara’s cell

phone and identified texts between Shakeara and the defendant.

¶ 22 At the close of the State’s evidence, the defendant moved for a directed verdict, which was

denied. The defendant called Detective Brad Hall, who testified that he interviewed Katherine

Koenig, Brooms’s mother, who said Brooms was with her at the time of the murder. The State’s

objection to Detective Hall’s testimony as hearsay was sustained. The defendant called no other

witnesses and chose not to testify in his own defense.

¶ 23 During deliberations, the jury requested the transcripts of phone calls the defendant placed

from the jail. The trial court allowed jurors to look at the transcripts over the defendant’s objection.

The jury also requested a definition of “reasonable doubt,” and the court instructed them to

continue deliberating. Finally, the jury asked whether they could find the defendant guilty of first

degree murder but find he did not personally discharge the firearm. The court referred the jury to

8 their instructions, after which they found the defendant guilty of first degree murder and found that

the defendant personally discharged the firearm that proximately caused the death of Apholone.

¶ 24 The defendant filed a motion for judgment notwithstanding the verdict or a new trial, which

was denied. The court then proceeded to sentencing. The defendant’s presentence investigation

report listed eight prior felony offenses and seven prior misdemeanor offenses.

¶ 25 Roger Craig, an investigator for the Macon County State’s Attorney’s Office, testified in

aggravation that he obtained Illinois Department of Corrections (DOC) disciplinary records for the

defendant. Craig testified that the defendant is affiliated with the Unknown Vice Lords gang and

the defendant was found guilty of 15 different disciplinary infractions while incarcerated. On

cross-examination, Craig acknowledged he did not know the extent of the defendant’s involvement

with the Unknown Vice Lords. Craig also agreed the defendant’s disciplinary infractions were for

rule violations, like wardrobe infractions, none of which would constitute crimes outside of a

correctional facility.

¶ 26 Officer Kretsinger testified that he responded to a domestic incident involving the

defendant in 2003. Cassandra Bond claimed the defendant shoved her to the ground and repeatedly

punched her in the head, a story corroborated by Bond’s mother and brother. The defendant

admitted he told Bond he was going to kill her before knocking her to the ground. The defendant

also stated he waited across the street for Bond to return home because he knew if she saw him

waiting, she would drive by and not stop. Officer Kretsinger testified the defendant was arrested

for the incident but did not know if the defendant was prosecuted for the offense and could not

recall if he was called to testify about the incident. Officer Sean Bowsher testified to a separate

domestic incident involving the defendant and Bond in 2005.

9 ¶ 27 Officer Brian Allison testified that in 2005, a man named Terrimus Jackson reported the

defendant fired a shot at him. The defendant was located close to the scene assaulting a woman

named Juanita Goodwin. The defendant fled and was seen discarding a handgun, which was

recovered and contained live rounds. The defendant admitted possessing and discarding the

handgun, which was stolen. The defendant was sentenced to 20 years in DOC related to that

incident. The defendant chose not to make a statement in allocution.

¶ 28 The State argued that the defendant was a “menace to society” and requested a sentence of

life in prison. The defendant requested a sentence of 47 years in DOC, highlighting his intention

of protecting his daughter.

¶ 29 The trial court “considered the facts of th[e] case, the factors in aggravation and mitigation,

and the pre-sentence investigation report.” Citing the defendant’s “poor criminal history” and the

defendant’s failure to accept responsibility, the court sentenced the defendant to 60 years’

incarceration—35 years for first degree murder with 25 years for the firearm enhancement. The

defendant filed a motion to reconsider sentence, which was denied.

¶ 30 The defendant appealed to the Fourth District Appellate Court. On appeal, the Office of

the State Appellate Defender (OSAD) filed a motion to withdraw as appellate counsel citing

Anders v. California, 386 U.S. 738 (1967), on the ground that no meritorious issue could be raised

in the appeal. The appellate court granted OSAD’s motion and affirmed the defendant’s conviction

and sentence. Wade, 2022 IL App (4th) 200586-U.

¶ 31 On August 16, 2022, the defendant filed a pro se postconviction petition raising a claim of

ineffective assistance of trial counsel for failing to request second degree murder jury instructions.

In support of his claim, the defendant attached portions of the trial testimony of Laney Martin,

10 Shakeara Wade, Ernest Brooms, and Jasmine Wade in support of his claim. He argued that these

witnesses testified that

“on November 8, 2018, Jasmine was meeting her ex-boyfriend and asking him to return

her cell phone, house keys and car keys which he took from her the day before. They began

to argue and during that argument Mr. Apholone (ex-boyfriend) grabbed Jasmine and

began to assault her. When defendant walked up and saw what was happening, he then

quickly intervened in the middle of the assault and Mr. Alpholones [sic] aggression

continued towards the defendant and they began to quarrel when defendant then shot Mr.

Alpholone.”

He also argued that Laney Martin’s testimony showed that Jasmine was assaulted before the

defendant intervened, and that the testimony of Brooms, Jasmine, and Shakeara revealed that the

defendant was not the aggressor and he only reacted to Apholone’s aggression toward Jasmine

with the knowledge Apholone had battered Jasmine the day before. The defendant also argued that

he “acted in a sudden and intense passion in protecting his daughter resulting from the serious

provocation by Mr. Apholone, and/or the defendant subjectively believed that he was acting in

defense of his daughter, but his belief was unreasonable.”

¶ 32 On November 4, 2022, the trial court summarily dismissed the petition stating that the trial

evidence was clear:

“[The Defendant] ambushed the victim and shot the victim approximately six times and

the victim was not armed. In addition, the record reflects that the Defendant’s position at

trial was that he had nothing at all to do with the shooting and the State was therefore not

able to meet its burden of proof beyond a reasonable doubt. The Defendant is now

attempting to ‘bootstrap’ a Second Degree Murder instruction where, again, the facts

11 adduced by the State do not support such an instruction and the Defendant’s position at

trial was contrary to the giving of such instruction.”

From the dismissal of his postconviction petition, the defendant filed the instant appeal.

¶ 33 II. ANALYSIS

¶ 34 The defendant argues that the trial court erred when it dismissed his pro se postconviction

petition at the first stage, contending that his petition sufficiently alleged the “gist” of a

constitutional claim that his trial counsel was ineffective for failing to request a second degree

murder jury instruction.

¶ 35 The Post-Conviction Hearing Act (Act) provides a mechanism by which persons under a

criminal sentence in Illinois can assert that their convictions were the result of a substantial denial

of their rights under the United States Constitution, the Illinois Constitution, or both. 725 ILCS

5/122-1 et seq. (West 2020); People v. Hodges, 234 Ill. 2d 1, 9 (2009). The purpose of the

postconviction proceeding is to allow inquiry into constitutional issues involved in the original

conviction and sentence that have not been, and could not have been, adjudicated previously on

direct appeal. People v. Blair, 215 Ill. 2d 427, 443-44 (2005). Proceedings under the Act are

commenced by the filing of a petition in the circuit court in which the original proceedings

occurred. 725 ILCS 5/122-1 (West 2020). The petition need only present the “gist” of a

constitutional claim. Hodges, 234 Ill. 2d at 9.

¶ 36 The Act establishes a three-stage process for adjudicating a postconviction petition. Id. at

9-10. During the first stage, the circuit court must independently determine whether the allegations

in defendant’s petition are frivolous or patently without merit. 725 ILCS 5/122-2.1(a)(2) (West

2016). A postconviction petition is frivolous or patently without merit only if it has no arguable

basis either in law or in fact. Hodges, 234 Ill. 2d at 16. A claim has no arguable basis in law or fact

12 if it is “based on an indisputably meritless legal theory,” such as one that is “completely

contradicted by the record,” or “a fanciful factual allegation,” including “those which are fantastic

or delusional.” Id. at 16-17. The phrase “frivolous or *** patently without merit” also encompasses

forfeiture. People v. Blair, 215 Ill. 2d 427, 445 (2005). The circuit court’s summary dismissal of a

defendant’s postconviction petition is reviewed de novo.

¶ 37 Issues raised in a postconviction petition which could have been raised on appeal, but were

not, are forfeited. People v. Petrenko, 237 Ill. 2d 490, 499 (2010). In Petrenko, the defendant

claimed ineffective assistance due to trial counsel’s failure to contest the validity of a search

warrant. Id. at 497. Petrenko’s claim was based entirely on facts contained in the trial court record,

so the defendant could have raised it on direct appeal. Id. at 499. Because he did not, the court

found the claim of ineffective assistance of trial counsel to be “clearly forfeited.” Id. at 498.

¶ 38 On direct appeal in the instant case, defendant’s appellate counsel identified three potential

issues: (1) whether the trial court complied with Illinois Supreme Court Rule 431(b) (eff. July 1,

2012); (2) whether the defendant was proven guilty beyond a reasonable doubt; and (3) whether

his sentence was an abuse of discretion. Wade, 2022 ILL App (4th) 200586-U, ¶ 54. Appellate

counsel concluded none of those issues had arguable merit, and the court agreed, granting

counsel’s motion to withdraw. Id. ¶¶ 54, 73. Appellate counsel’s choice not to raise any claim of

ineffective assistance of trial counsel on direct appeal was a clear determination that the issue

currently before this court lacked an arguable basis at that time.

¶ 39 The defendant asserted in his pro se postconviction petition that the evidence supporting

his claim came from the trial testimony of Ernest Brooms, Jasmine Wade, Shakeara Wade, and

Laney Martin. In support of that contention, the defendant attached excerpts of the trial transcripts

of each of those witnesses. Indisputably, the testimony allegedly supporting the giving of a second

13 degree murder jury instruction was contained in the trial court record. The defendant’s pro se

petition fails to assert the existence of any evidence or witnesses beyond the record which would

support his claim that he was acting in self-defense. As in Petrenko, the evidence to allegedly

support the defendant’s claim for a second degree murder jury instruction was in the trial record

and available at the time he appealed his conviction. Because the defendant could have asserted

this issue on direct appeal but did not, he clearly forfeited this issue.

¶ 40 The defendant acknowledges that since there are no facts in the record to show that he

considered or discussed, much less requested, a second degree murder jury instruction, there was

an insufficient basis for appellate counsel to raise this issue on direct appeal. He seeks to avoid

forfeiture by arguing that since he has “implicitly” admitted to shooting Alpholone for the first

time in his pro se postconviction petition, the record now contains a sufficient basis for this court

to address the merits of his claim. The defendant’s attempt to secure a second bite of the apple by

now changing his trial strategy utterly fails to escape the application of forfeiture.

¶ 41 The doctrine of forfeiture may be relaxed where fundamental fairness so requires, where

the forfeiture stems from appellate counsel’s ineffective assistance, or where the facts relating to

the issue do not appear in the original appellate record. People v. English, 2013 IL 112890. As

argued supra, the defendant concedes the testimony which he alleges provided a factual basis for

a second degree murder jury instruction was contained in the record on direct appeal. He also

concedes that appellate counsel did not provide ineffective assistance as to this issue. Since the

defendant fails to argue that fundamental fairness requires relaxation of the forfeiture doctrine, we

conclude that the issue raised by the defendant in this appeal is forfeited. However, because the

forfeiture rule is a limitation on the parties, and not a jurisdictional limitation on a reviewing court,

we decline to apply forfeiture, and choose to address the merits of the defendant’s argument that

14 trial counsel was ineffective for failing to request a second degree murder jury instruction. People

v. Chapman, 379 Ill. App. 3d 317, 326 (2007).

¶ 42 In determining whether defendant has asserted an arguable claim of ineffective assistance

of counsel, our courts apply the two-pronged test set forth in Strickland v. Washington, 466 U.S.

668 (1984), and adopted by our Illinois Supreme Court in People v. Albanese, 104 Ill. 2d 504, 526

(1984). Under Strickland, a defendant must show that counsel’s performance fell below an

objective standard of reasonableness, and that there is a reasonable probability that, but for

counsel’s deficient performance, the result of the proceedings would have been different.

Strickland, 466 U.S. at 687-88; Albanese, 104 Ill. 2d at 525. During the first stage of the

postconviction proceedings, a petition alleging ineffective assistance of counsel may not be

summarily dismissed if it is arguable that counsel’s performance fell below an objective standard

of reasonableness, and it is arguable that defendant was prejudiced. Hodges, 234 Ill. 2d at 17.

¶ 43 Reasonableness must be based on the case at issue, viewed at the time of the conduct, and

not in hindsight after an adverse judgment. Strickland, 466 U.S. at 687, 700. “[M]istakes in trial

strategy or tactics or in judgment do not of themselves render the representation incompetent” nor

does the fact that another attorney with the benefit of hindsight would have handled the case

differently. (Internal quotation marks omitted.) People v. West, 187 Ill. 2d 418, 432 (1999)

(quoting People v. Hillenbrand, 121 Ill. 2d 537, 548 (1988)); People v. Young, 341 Ill. App. 3d

379, 383 (4th Dist. 2003). As such, the court must consider in totality all the circumstances of

counsel’s performance, his action or inaction, at the time of the performance, while “indulg[ing] a

strong presumption that counsel’s conduct falls within the wide range of reasonable professional

assistance” or merely trial strategy. Strickland, 466 U.S. at 688-89; Young, 341 Ill. App. 3d at 383.

15 ¶ 44 It is presumed that defense counsel pursues sound trial strategies, a presumption that can

be overcome only by showing that “no reasonably effective criminal defense attorney, facing

similar circumstances, would pursue such strategies.” People v. Faulkner, 292 Ill. App. 3d 391,

394 (5th Dist., 1997). Counsel’s trial strategy must be more than just unsuccessful to overcome

the presumption that it was sound. Id. Unless defense counsel’s strategy was so unsound as to

preclude meaningful adversarial testing, trial strategy decisions are generally immune to claims of

ineffective assistance of counsel. People v. Enis, 194 Ill. 2d 361, 378 (2000). Deciding which

theory of defense to pursue is a matter of trial strategy, and counsel has the ultimate authority to

decide trial strategy. People v. Guest, 166 Ill. 2d 381, 394 (1995). Additionally, a strong

presumption exists that defense theory decisions are sound trial strategy rather than incompetence.

People v. Patterson, 2022 IL App (1st) 182542, ¶ 65.

¶ 45 “It is well settled in Illinois that counsel’s choice of jury instructions, and the decision to

rely on one theory of defense to the exclusion of others, is a matter of trial strategy.” People v.

Sims, 374 Ill. App. 3d 231, 267 (2007). “Accordingly, counsel’s decision as to which jury

instructions to tender can support a claim of ineffective assistance of counsel only if that choice is

objectively unreasonable.” Id.

¶ 46 Whether defendant’s argument that trial counsel was ineffective for failing to request a

second degree murder jury instruction is meritless focuses on his theory of defense at trial and

whether the evidence adduced at trial supported the giving of such an instruction. Raising the

affirmative defense of self-defense or defense of others requires a defendant to admit he committed

the act for which he is being prosecuted. People v. Cacini, 2015 IL App (1st) 130135, ¶ 44. The

defendant never admitted to killing Apholone before, during, or after trial, and failed to do so on

direct appeal. His defense at trial was that he had nothing to do with Apholone’s murder, and he

16 was not even present at the crime scene, having remained in Joliet on the night of the murder. From

the time the defendant was interviewed by the police, through pretrial discovery, opening

statement, trial testimony, closing argument, sentencing, and direct appeal, the defendant never

wavered from advancing the legal theory that he was innocent of Apholone’s murder. The

defendant made the strategic decision to provide an opportunity for acquittal, rather than risk being

convicted of the lesser offense of second degree murder. Given the fact that during his interview

with police the defendant maintained his innocence, claiming he was in Joliet at the time of the

murder, we cannot find that this trial strategy was objectively unreasonable.

¶ 47 Defendant asserts that the physical confrontation between the murder victim and his

daughter Jasmine, and also between the victim and himself, warranted the jury instruction because

he was acting under an unreasonable belief in the need for self-defense of himself or others or was

under serious provocation. A defendant is entitled to a self-defense jury instruction if there is even

very slight evidence supporting his theory. People v. Washington, 2012 IL 110283, ¶ 43. “The

question of whether sufficient evidence exists in the record to support the giving of a jury

instruction is a question of law subject to de novo review.” Id. ¶ 19.

¶ 48 We turn to the elements of second degree murder in order to further evaluate the

defendant’s claim that trial counsel was ineffective for failing to seek the applicable jury

instruction. A person commits second degree murder when he commits first degree murder and

either (1) “is acting under a sudden and intense passion resulting from serious provocation by the

individual killed or another whom the offender endeavors to kill, but he or she negligently or

accidentally causes the death of the individual killed” or (2) “believes the circumstances to be such

that, if they existed, would justify or exonerate the killing ***, but his *** belief is unreasonable.”

720 ILCS 5/9-2(a) (West 2016).

17 ¶ 49 For an unreasonable belief in self-defense, the defendant must prove by a preponderance

of the evidence the following “six elements to a claim of self-defense: (1) force was threatened

against the defendant, (2) the defendant was not the initial aggressor, (3) the risk of harm was

imminent, (4) the threatened force was not lawful, (5) the defendant subjectively believed that the

use of force was necessary to avert the danger, and (6) the defendant’s belief was objectively

reasonable.” People v. Hampton, 2021 IL App (5th) 170341, ¶ 95. However, an individual

claiming self-defense is not allowed to pursue and inflict injury upon an initial aggressor after the

argument is abandoned by the aggressor. People v. Guja, 2016 IL App (1st) 140046, ¶ 54 (citing

People v. Holman, 2014 IL App (3d) 120905, ¶ 58).

¶ 50 The evidence at trial clearly established that at the time of the murder the victim was not

in possession of a weapon of any kind. To answer the question of whether the record supported

the existence of the required elements of self-defense, we need look no further than the following

statement by the trial court:

“[The Defendant] ambushed the victim and shot the victim approximately six times and

the victim was not armed. In addition, the record reflects that the Defendant’s position at

trial was that he had nothing at all to do with the shooting and the State was therefore not

able to meet its burden of proof beyond a reasonable doubt. The Defendant is now

attempting to ‘bootstrap’ a Second Degree Murder instruction where, again, the facts

adduced by the State do not support such an instruction and the Defendant’s position at

After reviewing the entire record, we find that trial counsel’s decision to avoid the Sisyphean task

of securing a second degree murder jury instruction was objectively reasonable. Accordingly, we

agree with the trial court’s finding that the defendant’s postconviction petition had no arguable

18 basis either in law or fact, and was thus, frivolous and patently without merit. Hodges, 234 Ill. 2d

at 16.

¶ 51 III. CONCLUSION

¶ 52 For the foregoing reasons, the judgment of the circuit court of Macon County is hereby

affirmed.

¶ 53 Affirmed.