People v. Kiture

2021 IL App 200629-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERIC KITURE, Defendant-Appellant.

No. 4-20-0629

Court of Appeals of Illinois, Fourth District

September 15, 2021

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

Appeal from the Circuit Court of Adams County No. 16CF541 Honorable Michael L. Atterberry, Judge Presiding.

JUSTICE TURNER delivered the judgment of the court. Justices Harris and Holder White concurred in the judgment.

ORDER

TURNER JUSTICE

¶ 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 People v. Kiture, No. 4-17-0592 (Nov. 27, 2019) (unpublished summary order under Illinois Supreme Court Rule 23(c)).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 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 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 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 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 represente...