People v. Denson

• Decision Date: 07 September 1993
• Docket Number: No. 2-91-0125,2-91-0125
• Parties: , 189 Ill.Dec. 177 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David DENSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 878

619 N.E.2d 878

250 Ill.App.3d 269, 189 Ill.Dec. 177

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David DENSON, Defendant-Appellant.

No. 2-91-0125.

Appellate Court of Illinois,

Second District.

Sept. 7, 1993.

G. Joseph Weller, Deputy Defender, Thomas A. Lilien, Asst. Defender, Office of State Appellate Defender, Kathleen T. Zellner, Kathleen T. Zellner and Associates, Naperville, Theodore Gottfried, State Appellate Defender, Springfield, for David Denson.

Michael J. Waller, Lake County State's Atty., Waukegan, William L. Browers, Deputy Director, Cynthia N. Schneider, State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice QUETSCH delivered the opinion of the court:

Defendant, David Denson, appeals from an order of the circuit court of Lake County denying his petition under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 1992)). The issues presented for review are: (1) whether decisions invalidating certain pattern jury instructions given at defendant's trial may be applied retroactively in post-conviction proceedings, and (2) whether defendant was denied the effective assistance of counsel.

Following a jury trial, defendant was convicted of two counts of murder (Ill.Rev.Stat.1981, ch. 38, par. 9-1 (now codified, as amended, at 720 ILCS 5/9-1 (West 1992))) arising from the fatal shootings of Angela Gardner and George Coleman in Waukegan. Defendant was originally sentenced to two concurrent 40-year terms of imprisonment, but on the State's petition, the Illinois Supreme Court, in the exercise of its supervisory jurisdiction, ordered the trial court to vacate the sentence and to sentence defendant to a term of natural-life imprisonment pursuant to section 5-8-1(a)(1)(c) of the Unified Code of Corrections (730 ILCS 5/5-8-1 (West 1992)). In defendant's direct appeal, we affirmed the conviction and the sentence entered pursuant to the supreme court's order. People v. Denson (1985), 139 Ill.App.3d 914, 94 Ill.Dec. 20, 487 N.E.2d 777, cert. denied (1986), 479 U.S. 837, 107 S.Ct. 137, 93 L.Ed.2d 80.

The evidence presented at trial is set forth in detail in our opinion deciding defendant's direct appeal (People v. Denson (1985), 139 Ill.App.3d 914, 94 Ill.Dec. 20, 487 N.E.2d 777) and need only briefly be summarized here. Defendant testified that he and Angela Gardner had begun dating in the summer of 1983. Their relationship broke off as a result of defendant's involvement with another woman, Sharon Daniels, with whom defendant had a child. After their relationship ended under these circumstances, Gardner began spreading rumors that defendant had raped her and had stolen $2 from her. Gardner was connected in some way to the Vice Lords street gang and, in fact, had a gang insignia tattooed on her arm. Defendant testified that on several occasions prior to the shootings he had been accosted by groups of young men who threatened reprisals against him based on Gardner's allegations. Four or five days before the shooting, when defendant approached Gardner to talk about the situation, she told him "Now you [sic ] going to get yours."

In the early evening of November 1, 1983, defendant and his friends Bernard Jedkins and Sam Jenkins were together at defendant's house. Jedkins told defendant that Gardner had arranged to have defendant beaten up and that the assailants were waiting for him. Defendant indicated that he was going to ask Gardner what was going on. They left defendant's house on foot, but returned for defendant's car, and as they were driving off, defendant saw Gardner and Coleman coming out of Ricky Allen's house. Defendant told Jedkins and Jenkins that he wanted to "find out what is happening now." Jedkins and Jenkins warned defendant that there were more people waiting for him at Allen's house.

They drove farther, and defendant parked the car, again indicating that he was going to confront Gardner. Defendant asked Jenkins and Jedkins if they would back him up if a fight occurred, but they responded that they would not. Defendant took a gun from a tool box in his car and they began walking. When he saw Gardner and Coleman, defendant walked toward them holding his gun for protection. Jedkins and Jenkins stayed behind. Defendant saw a group of five to seven young men about three houses behind Gardner and Coleman. The group included some gang members who had previously threatened revenge against defendant for raping Gardner and stealing $2 from her. When defendant was a few feet from Gardner and Coleman, Coleman said, "What is this between you and my woman?" Defendant was then struck in the mouth by some object, and his head snapped back. Defendant then shot Coleman. Gardner bent down, which scared defendant. He then shot Gardner. Defendant testified, "I was already nervous about the people down the street and I just jumped and the gun went off again." Coleman had started to run and defendant panicked and ran.

Bernard Jedkins and Sam Jenkins testified for the State. They had been at defendant's house and had discussed defendant's situation with Gardner, including their belief that Gardner had enlisted some boys to beat defendant up. Jedkins and Jenkins both testified that during the course of the evening defendant had threatened, in essence, to beat up Gardner and had also stated that he was going to shoot Gardner in the head and was also going to shoot whoever was with her. Jenkins testified that when defendant exited his car immediately prior to the shootings, defendant said he was "going to get this bitch." Defendant jogged or ran toward Gardner and Coleman and pulled out a gun when he was about 10 to 20 feet from them. Defendant fired at Gardner and Coleman. Coleman began running and defendant ran after him. Nobody else was in the area around Coleman and Gardner when defendant approached and shot them.

Later that evening defendant contacted the Waukegan police department and voluntarily accompanied Waukegan police officers to the police station where he was interviewed by Detective Howard Pratt that same evening and by Detective Ralph Henriquez the next morning. Detective Pratt testified that defendant told him he shot Coleman at which time he panicked and shot Gardner. Defendant also told Pratt he did not know why he shot them. Detective Henriquez testified that defendant told him that he pulled his gun out "because he was very angry at Angie and wasn't thinking right."

Based upon the evidence presented at trial, the jury found defendant guilty of murder in the killings of Coleman and Gardner, and as noted above, we affirmed the conviction. Thereafter, on December 13, 1989, defendant filed his petition for relief under the Post-Conviction Hearing Act, contending that his right to due process was violated by the use of jury instructions which had subsequently been held invalid in People v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141. Defendant further contended that he was deprived of the right to effective assistance of counsel at trial because of, inter alia, trial counsel's failure to present certain evidence bearing on defendant's state of mind at the time of the shootings. The circuit denied the petition, and this appeal followed.

Defendant first contends that the circuit court erred in denying his request for post-conviction relief based on the use of jury instructions similar to instructions later found to be defective by the Illinois Supreme Court in People v. Reddick (1988), 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141. The circuit court based its ruling on People v. Flowers (1990), 138 Ill.2d 218, 149 Ill.Dec. 304, 561 N.E.2d 674, in which our supreme court held that its decision in Reddick is not to be applied retroactively to a case under consideration in a post-conviction proceeding. Defendant maintains that irrespective of the retroactivity of Reddick he is entitled to relief pursuant to Federal due process and retroactivity principles articulated by the United States Court of Appeals for the Seventh Circuit in its recent decisions in Falconer v. Lane (7th Cir.1990), 905 F.2d 1129, and Taylor v. Gilmore (7th Cir.1992), 954 F.2d 441, rev'd (1993), 508 U.S. 333, 113 S.Ct. 2112, 124 L.Ed.2d 306.

After the parties submitted their briefs in this appeal, the United States Supreme Court granted certiorari in Taylor (Gilmore v. Taylor (1992), 506 U.S. 814, 113 S.Ct. 52, 121 L.Ed.2d 22) and reversed the Court of Appeals' decision. (Gilmore v. Taylor (1993), 508 U.S. 333, 113 S.Ct. 2112, 124 L.Ed.2d 306.) We also note that in People v. Qualls (1992), 233 Ill.App.3d 394, 174 Ill.Dec. 595, 599 N.E.2d 141, a case decided after the briefs were filed in the case at bar, but prior to the Supreme Court's reversal of Taylor, we refused to follow Taylor, finding it in conflict with our supreme court's decision in Flowers. As discussed below, in view of the Supreme Court's reversal of the principal case defendant relies upon, defendant's argument finds no support in either Federal or State authority. Accordingly, we affirm the circuit court's denial of post-conviction relief requested on the basis of improper instructions.

In People v. Reddick (1988) 123 Ill.2d 184, 122 Ill.Dec. 1, 526 N.E.2d 141, our supreme court held that the pattern jury instructions on the burden of proof for murder and voluntary manslaughter (Illinois Pattern Jury Instructions, Criminal, Nos. 7.02, 7.04, 7.06 (2d ed. 1981)), read together, were erroneous because they improperly placed on the State the burden of proving the mitigating factors which reduce the offense to voluntary manslaughter, "a burden the State, in seeking a murder conviction, would have no reason to fulfill." (People v. Johnson (1991), 146 Ill.2d 109, 140, 165 Ill.Dec. 682, 696, 585 N.E.2d 78, 91.) According to the court in Reddick, such instructions assured that the jury could not convict the defendant of voluntary manslaughter since "even if a mitigating mental state is...