People v. Ware, 061319 ILCA1, 1-16-1545
| Opinion Judge | McBRIDE PRESIDING JUSTICE. |
| Party Name | THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH WARE, Defendant-Appellant. |
| Judge Panel | McBRIDE PRESIDING JUSTICE delivered the judgment of the court. Justices Gordon and Reyes concurred in the judgment. |
| Case Date | June 13, 2019 |
| Court | United States Appellate Court of Illinois, First District |
This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).
Appeal from the Circuit Court of Cook County. No. 09 CR 4293, Honorable Alfredo Maldonado, Judge, presiding.
McBRIDE PRESIDING JUSTICE delivered the judgment of the court. Justices Gordon and Reyes concurred in the judgment.
ORDER
McBRIDE PRESIDING JUSTICE.
¶ 1 Held: The trial court did not err in granting the State's motion to dismiss defendant's pro se postconviction petition where he failed to make a substantial showing of a constitutional violation of ineffective assistance of trial counsel.
¶ 2 Defendant Kenneth Ware appeals the trial court's order granting the State's motion to dismiss his pro se postconviction petition for relief filed under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)). He contends that he made a substantial showing that his trial counsel was ineffective for interfering with his right to testify at trial by providing him with erroneous information regarding his claim of self-defense. We affirm.
¶ 3 Following a 2009 bench trial, defendant was convicted of second degree murder of Lionel Bolden and sentenced to 17 years' imprisonment. We affirmed on direct appeal over defendant's contention that his sentence was excessive. People v. Ware, 1-09-3280 (2011) (summary order). We recount the facts here to the extent necessary to resolve the issue raised on appeal.
¶ 4 The record shows defendant was charged with various counts of armed robbery and first degree murder for the shooting death of Bolden. Prior to trial, defendant informed the State that he would be raising the affirmative defense of self-defense. He also informed the State that Bolden's relatives, Brandy, Sade, and Renee Bolden were potential People v. Lynch, 104 Ill.2d 194 (1984), witnesses who "may or may not testify" that Bolden was on parole from a 1989 murder conviction at the time of his death.
¶ 5 During opening statements, defense counsel argued that defendant acted in self-defense when Bolden attempted to retrieve the money he lost during a dice game between the two men. Counsel stated Bolden was the initial aggressor and the gun used during the shooting belonged to Bolden.
¶ 6 At trial, Brandy Bolden testified that in March 2008, she lived in her grandmother Renee Bolden's house on South Aberdeen Street with her mother, Erica; cousins, Sade and Mikesha; and Bolden, her uncle.1 Her cousin Mykia Bolden was at the house on March 16, 2008. Brandy's room was on the second floor of the house next to Bolden's room. There was a third bedroom on that floor used for storage. On that day, Bolden was in his room with defendant. Brandy had known defendant for three to four years at that time because he was friends with her mother and Bolden and "used to stay by [her] old house." Around noon or 1 p.m., Brandy woke up and heard "rumbling" from Bolden's bedroom. She knocked on Bolden's door and asked if everything was okay. Bolden opened the door slightly and said, "yeah," so Brandy returned to her room.
¶ 7 Brandy thereafter heard the two men arguing in a landing area in the hallway. She exited her room and saw them "tussling" over a gun. Bolden was on top of a TV with his back in a hole in the wall "that they made" during the fight. Defendant was on top of Bolden and both men had their hands on the gun. Brandy attempted to break up their fight and saw "a fire from the gun" as it fired toward Bolden. Following the shot, she went back into her room and called the police. She then hid in the closet with her cousin. Brandy subsequently heard more gunshots and defendant going downstairs saying, "Lord, please forgive me." Bolden was lying on the floor holding a sweater that defendant had been wearing earlier. Brandy did not see the gun near Bolden. She had never seen the gun before that date. She identified several photographs of the scene, which included a photograph of a black object on the floor of the storage bedroom. Brandy had never seen the black object before and had not heard it referred to as a "speed-loader." In February 2009, Brandy identified defendant in a physical lineup as the shooter.
¶ 8 On cross-examination, Brandy testified defendant had initially come over to her grandmother's house during the day on March 15, 2008. She did not see defendant leave that day, and he was still there the following day. Counsel attempted to ask Brandy about whether Bolden was on electronic monitoring at the time of the shooting, but the trial court sustained the State's objection. Brandy remembered seeing blood on Bolden's pants and telling officers initially that he had been shot in the leg. She did not recall telling officers that the shooter walked away and then turned around and shot Bolden three times in the head.
¶ 9 Sade Bolden testified that on March 16, 2008, she was sleeping around 1 p.m. and was awakened by a "loud crash or boom." She exited her room and saw Bolden and defendant in the hallway "[t]ussling over a gun." Defendant had been holding the gun and was standing over Bolden. Sade heard her grandmother calling her name so she went downstairs. While downstairs, she heard four gunshots and saw defendant running down the stairs holding a sweater. Defendant said, "The Lord gonna forgive me." Sade never saw Bolden with a gun that day and had never seen a gun in the house before. In February 2009, Sade identified defendant as Bolden's shooter in a physical lineup.
¶ 10 Kandyce Bynum testified Bolden was the uncle of her two eldest children. On March 16, 2008, she was driving to Bolden's residence on South Aberdeen to drop some clothes off for her daughter, Mykia. As Bynum was parking in front of the house, she heard four gunshots coming from the house. She heard one gunshot, a pause, and then three more shots. Bynum sat in her car because she was not sure that the sounds were actually gunshots. She subsequently got out of her car with two of her children and rang the doorbell of the house. A man whom she did not know opened the door. He was rushing out of the house and shaking. The man ran down the stairs and across the street. Bynum proceeded into the house and saw her daughter screaming. Sade, Brandy, and Erica were also present. In February 2009, Bynum identified defendant in a physical lineup as the man she saw rushing out the door of the Bolden residence.
¶ 11 Richard Strugala, a Chicago police forensic investigator, testified that he photographed the scene, including two bullet holes in two walls in the hallway landing. He also photographed a "black leather double case that holds speed-loaders" in one of the bedrooms. Other photographs of the scene depicted dice and money on the hallway landing. In addition to the black leather case, Strugala recovered and inventoried five live rounds in a speed-loader found in a closet and six live rounds in a speed-loader found near Bolden. He swabbed Bolden for gunshot residue and blood. Bolden had an electronic monitoring device on his ankle.
¶ 12 Chicago police detective Glenn Turner testified he arrived at the scene on March 16, 2008, and spoke with Renee, Brandy, Sade, and Bynum. He observed bullet holes in the wall of the landing and the ceiling of an adjacent room. Based on his investigation, he learned defendant's name when he left the house on South Aberdeen. In February 2009, Turner located and arrested defendant in Alabama.
¶ 13 The parties stipulated that, if called, forensic scientist Leah Kane would testify that she received two inventories, each containing a fired bullet. The bullets were fired from the same gun. They further stipulated that, if called, medical examiner Dr. James Filkins would testify Bolden died of multiple gunshot wounds and the manner of death was homicide.
¶ 14 Following the State's case in chief, the court granted the defense motion for a directed finding on the armed robbery counts. The defense proceeded by way of stipulation. The parties stipulated that, if called, forensic scientist Ellen Conley would testify that the results of a gunshot residue test showed Bolden discharged a firearm, contacted a primer gunshot residue (PGSR) related item or had both hands in the environment of a discharged firearm. The parties additionally stipulated that Bolden had prior 1989 convictions for first degree murder, armed violence, and aggravated battery. Finally, the parties stipulated that, if called, Chicago police officer "J. O'Donnell" would testify he spoke with Brandy at the house on South Aberdeen and she stated that she tried to help but defendant shot Bolden in the leg. Brandy also stated that defendant walked away, turned back to Bolden and said "God help me," and then shot Bolden three times in the head before fleeing the house. The defense sought to admit a photograph of Bolden's "ankle bracelet."
¶ 15 The court subsequently admonished defendant regarding his right to testify: "[Defendant], you have a constitutional right to testify in this case, you also have a constitutional right not to testify. You're the only person in the whole world that can make this decision. After listening to the testimony in this case and discussing this matter with your attorney, is it your desire to testify or not testify in this case?
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