{ "id": 4278457, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH R. LEMKE, Defendant-Appellant", "name_abbreviation": "People v. Lemke", "decision_date": "2008-07-31", "docket_number": "No. 5\u201407\u20140064", "first_page": "437", "last_page": "451", "citations": [ { "type": "official", "cite": "384 Ill. App. 3d 437" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "299 Ill. App. 3d 535", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 221436 ], "year": 1998, "pin_cites": [ { "page": "540" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/299/0535-01" ] }, { "cite": "362 Ill. App. 3d 65", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4261573 ], "year": 2005, "pin_cites": [ { "page": "75" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/0065-01" ] }, { "cite": "376 Ill. App. 3d 298", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4273248 ], "year": 2007, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/376/0298-01" ] }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "232 Ill. App. 3d 386", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 8498857 ], "weight": 4, "year": 1992, "pin_cites": [ { "page": "390-93" }, { "page": "392-93" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/232/0386-01" ] }, { "cite": "169 Ill. App. 3d 264", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551145 ], "year": 1988, "pin_cites": [ { "page": "275", "parenthetical": "noting, \"Since no limiting instruction was given in this case, the jury must have considered the [prior inconsistent statements] substantively, as any other piece of evidence\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0264-01" ] }, { "cite": "366 Ill. App. 3d 701", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4264910 ], "year": 2006, "pin_cites": [ { "page": "714-15", "parenthetical": "noting, \"[I]f no request is made to have the jury advised that a prior inconsistent statement was admitted solely to impeach, the statement [ ] may be considered as substantive evidence by the jury\"" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/366/0701-01" ] }, { "cite": "362 Ill. App. 3d 1062", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4260123 ], "year": 2005, "pin_cites": [ { "page": "1091-92", "parenthetical": "Theis, J., specially concurring" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/362/1062-01" ] }, { "cite": "149 Ill. App. 3d 1075", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3459032 ], "year": 1986, "pin_cites": [ { "page": "1078-79" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/1075-01" ] }, { "cite": "353 Ill. App. 3d 817", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3363227 ], "year": 2004, "pin_cites": [ { "page": "827" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/353/0817-01" ] }, { "cite": "202 Ill. 2d 544", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 1442061 ], "year": 2002, "pin_cites": [ { "page": "561" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/202/0544-01" ] }, { "cite": "186 Ill. 2d 301", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 243886 ], "year": 1998, "pin_cites": [ { "page": "332" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/186/0301-01" ] }, { "cite": "218 Ill. 2d 125", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5735992 ], "year": 2005, "pin_cites": [ { "page": "143-44" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/218/0125-01" ] }, { "cite": "217 Ill. 2d 407", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3875001 ], "weight": 2, "year": 2005, "pin_cites": [ { "page": "441" }, { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/217/0407-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] }, { "cite": "88 Ill. App. 3d 447", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3173686 ], "year": 1980, "pin_cites": [ { "page": "453" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/88/0447-01" ] }, { "cite": "211 Ill. 2d 150", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 8451179 ], "year": 2004, "pin_cites": [ { "page": "181" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/211/0150-01" ] }, { "cite": "141 Ill. 2d 40", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3238211 ], "year": 1990, "pin_cites": [ { "page": "56" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/141/0040-01" ] }, { "cite": "120 Ill. App. 3d 1072", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3594823 ], "year": 1984, "pin_cites": [ { "page": "1077" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/120/1072-01" ] }, { "cite": "130 Ill. App. 3d 280", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3494243 ], "year": 1985, "pin_cites": [ { "page": "287-88" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/130/0280-01" ] }, { "cite": "178 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 385522 ], "year": 1997, "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/178/0001-01" ] }, { "cite": "98 Ill. 2d 294", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3123281 ], "year": 1983, "pin_cites": [ { "page": "306-09" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/98/0294-01" ] }, { "cite": "171 Ill. 2d 207", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 57342 ], "year": 1996, "pin_cites": [ { "page": "219" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/171/0207-01" ] }, { "cite": "183 Ill. 2d 239", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 209960 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "249, 253" }, { "page": "253" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/183/0239-01" ] }, { "cite": "195 Ill. 2d 336", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 725359 ], "year": 2001, "pin_cites": [ { "page": "353" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/195/0336-01" ] }, { "cite": "349 Ill. App. 3d 391", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5433250 ], "weight": 2, "year": 2004, "pin_cites": [ { "page": "392" }, { "page": "398, 402" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/349/0391-01" ] } ], "analysis": { "cardinality": 1281, "char_count": 35828, "ocr_confidence": 0.822, "pagerank": { "raw": 8.533802293757377e-08, "percentile": 0.4874789997409115 }, "sha256": "8d607627b8ddc0df8e048ad35be78c1058271e6b56f643e994745e94a59eb80a", "simhash": "1:bb70f83072730453", "word_count": 5649 }, "last_updated": "2023-07-14T18:18:27.294728+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH R. LEMKE, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE WEXSTTEN\ndelivered the opinion of the court:\nFollowing a jury trial in the circuit court of Edwards County, the defendant, Kenneth R. Lemke, was convicted of first-degree murder (720 ILCS 5/9 \u2014 1(a)(2) (West 2000)). On appeal from his conviction, the defendant argues that his murder conviction should be reduced to involuntary manslaughter (720 ILCS 5/9 \u2014 3(a) (West 2000)) and that, alternatively, he should be granted a new trial because he was denied the effective assistance of counsel. For the following reasons, we affirm the defendant\u2019s conviction for first-degree murder.\nBACKGROUND\nIn November 2001, the defendant and his stepson, Lance Albert-son, were involved in an altercation that resulted in Albertson\u2019s death. It is undisputed that the incident began as a verbal dispute and ended when Albertson was shot in the head with a round fired from a .22-caliber revolver.\nIn April 2002, following a bench trial in the circuit court of Edwards County, the defendant was convicted of first-degree murder. On appeal, the defendant argued that the evidence presented for the trial court\u2019s consideration did not support a conviction for first-degree murder and that \u201chis trial counsel\u2019s failure to present the defense that the defendant had committed the lesser offense of involuntary manslaughter constituted the ineffective assistance of counsel.\u201d People v. Lemke, 349 Ill. App. 3d 391, 392 (2004). Agreeing with the defendant\u2019s latter contention, this court reversed and remanded for a new trial. Lemke, 349 Ill. App. 3d at 398, 402.\nIn October 2006, the defendant was retried before a jury, which also found him guilty of first-degree murder. The following occurred at the jury trial.\nJack Russell Heindselman testified that on November 3, 2001, he and Albertson had gone to the defendant\u2019s home in rural Edwards County after having gone bow hunting for deer. Heindselman stated that he and Albertson arrived at the defendant\u2019s sometime after dark and that the defendant was not present at the time. When the defendant later returned home, Heindselman was inside the house and Albertson was \u201cout in the shed working on something.\u201d The defendant and Albertson had been \u201carguing that day,\u201d and the defendant seemed enraged about something. The defendant then went out to the shed to talk to Albertson but soon returned, grabbed a walking stick, and stated, \u201cHe\u2019s not going to talk to me that way.\u201d The defendant then exited the house again. At that point, Heindselman decided to go outside to \u201csee what was going on.\u201d Once outside, Heindselman saw the defendant and Albertson wrestling. After winning the wrestling match, Albertson grabbed the walking stick and walked away from the defendant. As Albertson was subsequently loading up his four-wheeler to leave, the defendant went back inside the house and \u201cwalked back out with a gun.\u201d Heindselman indicated that the defendant had held the gun directly in front of him \u201clike he was going to walk up and shoot somebody\u201d and approached Albertson. When Heindselman asked the defendant what he was doing, the defendant stopped for a moment but then continued toward Albert-son. Albertson, who was standing on the back of the four-wheeler with the walking stick in his hand, asked the defendant what he was doing and then urged him to \u201cstop it.\u201d Heindselman then heard a gunshot and saw Albertson fall. Heindselman testified that the defendant was six to eight feet from the four-wheeler at the time. Heindselman subsequently went to Albertson and saw that he had been shot in the forehead and was apparently dead. The defendant also went to Albert-son, and Heindselman told him to call 9-1-1.\nWhen cross-examined, Heindselman admitted that when he checked Albertson\u2019s condition after the shooting, he had removed from one of Albertson\u2019s pockets a light bulb that Albertson had used to smoke methamphetamine earlier in the day. Heindselman denied using methamphetamine himself that day, but he acknowledged that he had used it on other occasions, that at the time of his testimony he was serving a sentence on a methamphetamine-related charge, and that he had other prior methamphetamine-related convictions. He further acknowledged that although his testimony suggested that the defendant had meant to shoot Albertson, he had previously told Deputy Scott Meserole that he thought it had been an accident. Heindselman explained that after later considering that the revolver in question had to be manually cocked before it could be fired, he thought that the shooting \u201cwas not an accident.\u201d Heindselman admitted that he had been drinking beer prior to the events in question and was intoxicated when the events occurred. He testified that he did not remember telling the police that he had \u201clooked away\u201d prior to hearing a gunshot. He also admitted that two weeks before the trial, he had sent a letter to the Edwards County State\u2019s Attorney asking him to intervene in some administrative matters that had arisen with the Department of Corrections.\nOn redirect, Heindselman testified about the circumstances that prompted him to ask the Edwards County State\u2019s Attorney for help in dealing with the Department of Corrections. He explained that as a result of being subpoenaed to testify at the defendant\u2019s trial, he had been transferred to a maximum security facility and had lost his work-release status. He further stated that being subpoenaed had also resulted in his inability to complete the programs and classes in which he had been enrolled and that he had thus lost good-time credit toward his sentence. Heindselman testified that nothing had changed since he had written the letter to the State\u2019s Attorney and that he had not been promised anything in exchange for his testimony.\nThe defendant called 9-1-1 after the shooting, and the recording of the defendant\u2019s call was played for the jury. On the recording, the defendant can be heard stating, inter alia, \u201c[Albertson] jerked the gun out of my hand.\u201d The defendant can also be heard attempting to revive Albertson with CPR.\nEdwards County Sheriff Scott Meserole testified that he was a deputy sheriff on November 3, 2001, and that he responded to the scene of the shooting shortly after it had been reported. Meserole testified that he spoke with both the defendant and Heindselman, that a revolver that had been on the ground near Albertson\u2019s body was collected as evidence, that the defendant had been crying, and that the defendant\u2019s speech was somewhat slurred.\nEdwards County Coroner Mark Curtis testified that he pronounced Albertson dead at the scene and that he was present when the revolver found near Albertson\u2019s body was secured as evidence. Curtis testified that the revolver\u2019s cylinder contained five live rounds and one spent round and that the hammer was down on a live round with the spent round to the right of it. An autopsy revealed that Albertson died from a single gunshot wound to the head. The fatal bullet traveled in a \u201cslightly upward\u201d trajectory and \u201cpassed through the right side of the brain.\u201d Albertson\u2019s blood tested negative for the presence of alcohol but positive for the presence of amphetamine and methamphetamine.\nMichael Cooper, a forensic firearms expert with the Illinois State Police, testified that he had examined the revolver that was found at the crime scene. Cooper testified that the weapon was a single-action revolver, which, in contrast to a double-action revolver, requires a person to manually pull the gun\u2019s hammer completely back to \u201cfully cock\u201d the weapon before it will fire. Cooper further testified that a spent cartridge would remain under the hammer \u201cin line with the barrel\u201d of the gun and that the weapon would have to be cocked a second time to rotate the cylinder to align \u201cthe next cartridge.\u201d Cooper stated that the revolver\u2019s trigger-pull was within the \u201cnormal range\u201d of that of similar weapons that he had inspected over the years. Cooper acknowledged that he had not test-fired the revolver.\nAt the close of the State\u2019s case, defense counsel moved for a directed verdict. Counsel argued, inter alia, that, at most, the State had proven that the defendant had committed second-degree murder or involuntary manslaughter. The trial court denied the defendant\u2019s motion for a directed verdict, and the defendant presented the following evidence in his defense.\nThe defendant\u2019s personal physician, Dr. Timothy Garrett, testified that he had treated the defendant for carpal tunnel syndrome and for a sciatic nerve problem related to a back injury. Garrett stated that the defendant had been diagnosed with \u201csevere carpal tunnel syndrome in the right hand and mild to moderate carpal tunnel in the left hand.\u201d Garrett explained that carpal tunnel is \u201ca nerve entrapment\u201d that can result in severe numbness and tingling to an affected area. Garrett testified that the condition can cause one\u2019s thumb and index finger to be unable to \u201cfeel things\u201d and can thus complicate tasks such as buttoning a shirt. Garrett further testified that the defendant had been prescribed the tranquilizer Xanax for anxiety and stress. The Xanax was prescribed \u201cas needed\u201d in the amount of one milligram per day.\nSharon Duvall testified that she was the defendant\u2019s girlfriend in November 2001. Duvall testified that on the night of the shooting, she and the defendant had drinks at a bar in Grayville from approximately 7 p.m. to 9:30 p.m. Duvall stated that when the defendant arrived at the bar, he was \u201calready drunk\u201d and he claimed that he had already consumed an 18-pack of beer. While at the bar, the defendant drank Jack Daniels and Coke and \u201ca couple beers.\u201d When he left the bar, he said that he was going home to \u201ccheck on\u201d Albertson and Heindselman. To no avail, Duvall had tried to convince the defendant that he was in no condition to drive. Duvall stated that she had spoken with the defendant after the shooting, which she referred to as \u201cthe accident.\u201d\nThe defense next called Sheriff Meserole as a witness. Meserole testified that after interviewing Heindselman on the night of the shooting, he applied for a warrant to search the defendant\u2019s premises. When presented with the application for the warrant, which was marked \u201cDefendant\u2019s Exhibit C,\u201d Meserole identified it and acknowledged that it contained the following language: \u201cHeindselman reported that based on his knowledge of [the defendant] and his observations, he believed the shooting to be accidental.\u201d During the State\u2019s cross-examination of Meserole, after Meserole explained that the contents of \u201cDefendant\u2019s Exhibit C\u201d represented the \u201cbest information that [he] had at the time,\u201d the State admitted the exhibit into evidence without objection. When \u201cDefendant\u2019s Exhibit C\u201d was admitted into evidence, defense counsel stated that he wanted to \u201cclarify\u201d that he had presented \u201cDefendant\u2019s Exhibit C\u201d and that he \u201cwas going to ask that it be admitted into evidence.\u201d During a break in the proceedings, the State acknowledged that Heindselman\u2019s statement that \u201cthis was an accident\u201d was \u201cin as substantive evidence.\u201d\nTrooper Jesse King of the Illinois State Police testified that he interviewed Heindselman after the shooting and that Heindselman appeared upset and \u201cfairly intoxicated\u201d at the time. King testified that Heindselman indicated that he had \u201clooked away\u201d when the shot was fired and had only seen the defendant pointing the gun at Albertson. According to King, Heindselman further indicated that Albertson had been holding the walking stick \u201cin a defensive manner\u201d when he was shot. King testified that Agent Bryan Harms was present during a part of the interview.\nSpecial Agent Bryan Harms of the Illinois State Police testified and confirmed that he had been present for a part of the interview. Harms further testified that during the interview, Heindselman stated that Albertson had been holding the walking stick in a defensive manner \u201cmoments before he was shot.\u201d\nDr. Jonathan Lipman, an expert in the field of neuropharmacology, testified that he had researched the defendant\u2019s use of Xanax and had discovered that the defendant had not been \u201cusing it the way it was prescribed.\u201d Lipman explained that when the defendant took Xanax, \u201che would drink on top of it,\u201d which is \u201cnot recommended.\u201d Lipman further explained, \u201c[T]he intoxication that results from the combination [of alcohol and Xanax] is catastrophically more disabling than the use of either the drug alone or the alcohol alone.\u201d Lipman testified that after studying the defendant\u2019s case, he believed that the defendant\u2019s judgment, reasoning, and \u201cemotional regulation\u201d had been severely impaired on the night in question. Lipman opined that because the defendant had been under the combined influence of alcohol and Xanax, he had misperceived the circumstances of his altercation with Albertson, and \u201cultimately he behaved foolishly[,] *** even say recklessly, as a result of his intoxication.\u201d Lipman further opined that the defendant did not \u201cappreciate the dangerousness and, therefore, the recklessness of his actions\u201d and that a chronic user of alcohol would not \u201cnecessarily be unable to speak clearly\u201d while under the influence of alcohol and Xanax. Lipman also testified that the level of methamphetamine detected in Albertson\u2019s blood suggested that Albertson was \u201ca user of very large doses\u201d of the drug and that Albert-son\u2019s possession of the methamphetamine \u201csmoking pipe\u201d suggested that Albertson\u2019s use was \u201csevere.\u201d Lipman stated that methamphetamine use can result in delusions, hallucinations, and unreasonable aggression.\nThe defense rested after the defendant had advised the court that he did not wish to testify on his own behalf. The State then called Trooper King to the stand as a rebuttal witness.\nTrooper King testified that at the scene of the shooting, he had observed the defendant for approximately an hour and was present when the defendant was later interviewed. King then stated that, in his opinion, the defendant \u201cwas not intoxicated to the point that he did not understand what was being asked of him.\u201d\nSheriff Meserole and Agent Harms also provided rebuttal testimony. Sheriff Meserole testified that he was the first officer to arrive at the scene and that, although the defendant had spoken with \u201cslurred speech,\u201d the defendant was responsive to his questions and was able to \u201cmake sense\u201d when communicating. The defendant also poured himself a glass of iced tea and took some medication in Meserole\u2019s presence. Agent Harms indicated that when he interviewed the defendant approximately three hours after the incident, the defendant was obviously intoxicated but was \u201ccoherent\u201d and \u201cresponded appropriately\u201d to his questions.\nDuring closing arguments, the State maintained that although the defendant\u2019s judgment might have been impaired at the time of the shooting, he knew what he was doing when he retrieved the revolver and fired the round that struck Albertson in the head. The State argued that because the revolver had to be cocked before it would fire, the shooting was \u201cnot an accident\u201d or the result of \u201cmere recklessness.\u201d The State argued that the defendant was guilty of first-degree murder because he knew that \u201cby pointing that gun in the direction of Lance Albertson and pulling the trigger *** he created the strong possibility of death or great bodily harm.\u201d The State suggested that Heindselman had initially stated that he believed that the shooting was an accident because he felt sorry for the defendant.\nIn response, defense counsel repeatedly emphasized that \u201cright after\u201d the shooting, Heindselman had told the police that \u201cit was an accident.\u201d At one point when discussing Heindselman\u2019s prior inconsistent statement, counsel specifically referred to \u201cDefendant\u2019s Exhibit C.\u201d Reminding the jury that Heindselman was a \u201cmeth user\u201d serving time for a methamphetamine-related conviction, counsel argued that Heindselman\u2019s trial testimony was \u201cself-serving\u201d and unreliable. Counsel maintained that Heindselman had testified that the shooting was not an accident because he thought that the testimony \u201cmight benefit\u201d him. Counsel argued that, \u201c[as a matter of] common sense and experience, what [one] say[s] right after something happens is most likely closer to the truth than what [one] say[s] on reflection months later [or] years later.\u201d Referring to Heindselman as the State\u2019s \u201cstar witness,\u201d counsel suggested that without Heindselman\u2019s trial testimony, the State had little more than \u201csupposition\u201d and had failed to prove the defendant guilty of anything beyond a reasonable doubt. Counsel further suggested that, at most, the State\u2019s evidence established that the defendant had committed involuntary manslaughter. When discussing the mental states of murder and involuntary manslaughter, counsel advised the jury that the judge, \u201cin his instructions,\u201d was \u201cgoing to define [\u2018]knowledge[\u2019] [and] [\u2018]intent,[\u2019] \u201d but counsel referred to Dr. Lipman\u2019s testimony when discussing \u201crecklessness.\u201d Counsel suggested that the revolver had gone off as a result of the defendant\u2019s \u201cbad hand\u201d and intoxicated condition, and counsel stated, \u201cThere was no way that [the defendant] intended to kill Lance Albertson.\u201d Counsel urged the jury to exercise its \u201coption\u201d of finding the defendant guilty of involuntary manslaughter if it determined that the defendant was criminally responsible for Albertson\u2019s death.\nIn rebuttal, the State reminded the jury that Heindselman had been promised nothing in exchange for his testimony. The State further reminded the jury that Heindselman had testified that, although he had initially said that the shooting was an accident, he later changed his mind after learning that the revolver in question \u201chad to be cocked and the trigger pulled in order for it to fire.\u201d The State argued that despite his intoxication and carpal tunnel syndrome, the defendant had committed first-degree murder when he \u201cpointed that weapon at [Albertson] and killed him.\u201d\nAfter receiving instructions on, inter alia, first-degree murder and involuntary manslaughter, the jury returned a verdict finding the defendant guilty of first-degree murder. The trial court subsequently sentenced the defendant to a 22-year term of imprisonment, and the defendant filed a timely notice of appeal.\nANALYSIS\nSufficiency of the Evidence\nThe defendant first argues that his murder conviction must be reduced to involuntary manslaughter because the State\u2019s evidence was insufficient to sustain the jury\u2019s finding that he was guilty of first-degree murder. The State counters that it was \u201cneither impossible nor unreasonable for the jury to find the essential elements of the crime of murder, rather than involuntary manslaughter, beyond a reasonable doubt.\u201d We agree with the State.\n\u201cA reviewing court will not set aside a criminal conviction on grounds of insufficient evidence unless the proof is so improbable or unsatisfactory that there exists a reasonable doubt of the defendant\u2019s guilt. When considering the sufficiency of the evidence, it is not the function of a reviewing court to retry the defendant. Rather, the relevant question is whether, after reviewing all of the evidence in the light most favorable to the prosecution, any rational fact finder could have found beyond a reasonable doubt the essential elements of the crime.\u201d People v. Maggette, 195 Ill. 2d 336, 353 (2001).\nA defendant commits first-degree murder under section 9 \u2014 1(a)(2) of the Criminal Code of 1961 when in performing the acts that cause the death of an individual, \u201che knows that such acts create a strong probability of death or great bodily harm.\u201d 720 ILCS 5/9 \u2014 1(a)(2) (West 2000). A person commits involuntary manslaughter when he unintentionally kills an individual by recklessly performing an act that is likely to cause death or great bodily harm. 720 ILCS 5/9 \u2014 3(a) (West 2000). \u201cThe basic difference between involuntary manslaughter and first [-]degree murder is the mental state that accompanies the conduct resulting in the victim\u2019s death,\u201d and whether a defendant is guilty of first-degree murder or the lesser offense of involuntary manslaughter is a question for the trier of fact. People v. DiVincenzo, 183 Ill. 2d 239, 249, 253 (1998). Whether a defendant acted knowingly or recklessly may be inferred from circumstantial evidence, and \u201cinferenees as to [a] defendant\u2019s mental state are a matter particularly within the province of the jury.\u201d DiVincenzo, 183 Ill. 2d at 253.\nIt is well established that proof that a death resulted from a defendant\u2019s act of deliberately firing a gun in the general direction of his victim is sufficient to sustain a conviction for first-degree murder under section 9 \u2014 1(a)(2). People v. Thomas, 171 Ill. 2d 207, 219 (1996); see also People v. Bartall, 98 Ill. 2d 294, 306-09 (1983). That is the case because it is not necessary to prove that the defendant had a specific intent to kill or do great bodily harm or that he knew with certainty that his acts would achieve murderous results. People v. Howery, 178 Ill. 2d 1, 42 (1997). A person who is aware that his acts create a strong probability of death to another may be found guilty of first-degree murder under section 9 \u2014 1(a)(2) even if the victim\u2019s death was \u201ccaused \u2018unintentionally. \u2019 \u201d People v. Deacon, 130 Ill. App. 3d 280, 287-88 (1985). \u201cTo sustain a murder conviction under section 9 \u2014 1(a)(2), there must be evidence from which the trier of fact could infer that the defendant knew, at minimum, that his acts created a strong probability of great bodily harm to another individual; that the defendant acted; and that the act resulted in the death of another.\u201d (Emphasis in original.) People v. Mifflin, 120 Ill. App. 3d 1072, 1077 (1984).\nHere, viewing the evidence adduced at the trial in the light most favorable to the State, the jury could have reasonably concluded that after retrieving the revolver from inside the house, the defendant deliberately fired it at Albertson knowing that doing so created a strong probability of death or great bodily harm. In and of itself, the evidence establishing that the revolver had to be manually cocked before it would fire and that the weapon was apparently cocked again after Albertson had been shot supports the inference that the defendant\u2019s act of firing the gun was a deliberate act despite his intoxication and carpal tunnel syndrome. Additionally, the evidence that the defendant and Albertson were engaged in an escalating altercation when the defendant retrieved the revolver provided a motive for the shooting. See People v. Smith, 141 Ill. 2d 40, 56 (1990). The jury could have also viewed the defendant\u2019s claim that Albertson had jerked the gun out of his hand as a \u201cfalse exculpatory statement\u201d reflecting the defendant\u2019s consciousness of guilt. People v. Milka, 211 Ill. 2d 150, 181 (2004), On appeal, the defendant points to, inter alia, Dr. Lipman\u2019s conclusions that he had behaved \u201crecklessly\u201d and had failed to appreciate the \u201crecklessness of his actions,\u201d but a jury \u201cis free to disregard the testimony of any expert.\u201d People v. McGee, 88 Ill. App. 3d 447, 453 (1980). We also agree with the State\u2019s observation that the cases upon which the defendant relies in support of his claim that his conviction must be reduced \u201care all readily distinguishable from the case at bar.\u201d In any event, because the evidence of the defendant\u2019s guilt is not so improbable or unsatisfactory that there exists a reasonable doubt of his guilt, we will not disturb the jury\u2019s verdict, and accordingly we deny the defendant\u2019s request that we reduce his conviction.\nIneffective Assistance of Counsel\nAlleging that he was denied the effective assistance of counsel, the defendant next asks that we reverse his conviction and grant him a new trial. The defendant\u2019s ineffective assistance claims are without merit, however, and we accordingly affirm his conviction.\nTo succeed on a claim of ineffective assistance of trial counsel, a defendant must satisfy the two-pronged test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). People v. Patterson, 217 Ill. 2d 407, 441 (2005). \u201cUnder Strickland, a defendant must prove not only that defense counsel\u2019s performance fell below an objective standard of reasonableness, but also that this substandard performance caused prejudice by creating a reasonable probability that, but for counsel\u2019s errors, the trial result would have been different.\u201d People v. Johnson, 218 Ill. 2d 125, 143-44 (2005). \u201cBecause [a] defendant must satisfy both prongs of the test, the failure to satisfy either element precludes a finding of ineffective assistance of counsel under Strickland.\u201d People v. Shaw, 186 Ill. 2d 301, 332 (1998).\nWith respect to the first prong of the Strickland test, judicial scrutiny of a counsel\u2019s performance is \u201chighly deferential,\u201d and a defendant who claims that his counsel was ineffective must overcome the strong presumption that the challenged actions were the product of sound trial strategy or tactics. People v. Metcalfe, 202 Ill. 2d 544, 561 (2002). \u201cGenerally, matters of trial strategy will not support a claim of ineffective assistance of counsel unless counsel failed to conduct any meaningful adversarial testing.\u201d Patterson, 217 Ill. 2d at 441. Furthermore, the fact that another attorney with the benefit of hindsight would have handled the defendant\u2019s case differently does not establish that trial counsel\u2019s performance was deficient. People v. Dobbs, 353 Ill. App. 3d 817, 827 (2004).\nOn appeal, the defendant raises two claims of ineffective assistance of trial counsel. The first pertains to Heindselman\u2019s statement to Meserole that the shooting was an accident. Suggesting that trial counsel was unaware of the prior inconsistent statement\u2019s evidentiary value, the defendant argues that trial counsel was ineffective for failing to request that the statement be admitted as substantive evidence pursuant to section 115 \u2014 10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 \u2014 10.1 (West 2006)) and for failing to request that the jury be instructed that it could consider the statement as substantive evidence (see Illinois Pattern Jury Instructions, Criminal, No. 3.11 (4th ed. 2000) (hereinafter IPI Criminal 4th)). The defendant asserts that he was prejudiced by these failures because the jury could only consider the statement for impeachment purposes and because counsel\u2019s use of the statement during closing arguments was similarly limited. See People v. Wilson, 149 Ill. App. 3d 1075, 1078-79 (1986). Having closely reviewed the record on appeal, we conclude that the defendant\u2019s contentions are misleading and unsupportable.\nPursuant to section 115 \u2014 10.1, a witness\u2019s prior inconsistent statement is admissible as substantive evidence if the statement is inconsistent with his trial testimony, the witness is subject to cross-examination regarding the statement and acknowledges under oath that he made it, and the statement describes or explains an event of which the witness had personal knowledge. 725 ILCS 5/115 \u2014 10.1 (West 2006). Here, the record demonstrates that defense counsel and the State were both aware that Heindselman\u2019s statement that the shooting \u201cwas an accident\u201d was a prior inconsistent statement admissible as substantive evidence pursuant to section 115 \u2014 10.1. The record further demonstrates that, during the defendant\u2019s case in chief, trial counsel intended to introduce Heindselman\u2019s prior inconsistent statement into evidence via \u201cDefendant\u2019s Exhibit C\u201d but \u201cfailed\u201d to do so only because the State introduced the exhibit first. Notably, after \u201cDefendant\u2019s Exhibit C\u201d was admitted into evidence, the State acknowledged that Heindselman\u2019s prior inconsistent statement was \u201cin as substantive evidence.\u201d Thereafter, during closing arguments defense counsel extensively argued the truth of Heindselman\u2019s prior inconsistent statement, and on defense counsel\u2019s motion, the jury had \u201cDefendant\u2019s Exhibit C\u201d in its possession during deliberations. Heindselman\u2019s prior inconsistent statement was thus used substantively (see People v. Smith, 362 Ill. App. 3d 1062, 1091-92 (2005) (Theis, J., specially concurring)), and the defendant\u2019s claims to the contrary are without merit. Of the utmost significance, however, is that Heindselman\u2019s prior inconsistent statement was admitted and used as substantive evidence by virtue of the fact that the jury\u2019s use of the statement was not limited by the trial court\u2019s instructions. At oral argument, the parties on appeal asserted that the jury had been given a prior-inconsistent-statement \u201cimpeachment instruction\u201d (i.e., IPI Criminal 4th No. 3.11), which would have advised the jury that it could only consider Heindselman\u2019s prior inconsistent statement for impeachment purposes. That assertion, however, is belied by the record. The jury was not given any instruction regarding or limiting the use of a witness\u2019s prior inconsistent statement, which is precisely why the jury was free to consider Heindselman\u2019s prior statement as substantive evidence. See People v. Mulvey, 366 Ill. App. 3d 701, 714-15 (2006) (noting, \u201c[I]f no request is made to have the jury advised that a prior inconsistent statement was admitted solely to impeach, the statement [ ] may be considered as substantive evidence by the jury\u201d); People v. Wain, 169 Ill. App. 3d 264, 275 (1988) (noting, \u201cSince no limiting instruction was given in this case, the jury must have considered the [prior inconsistent statements] substantively, as any other piece of evidence\u201d); IPI Criminal 4th No. 3.11, Committee Note, at 96 (explaining, \u201call evidence is substantive unless limited to a non- [ ]substantive purpose, such as impeachment,\u201d and \u201c[t]here is no need to use this instruction when the earlier inconsistent statement is being offered as substantive evidence under [s]ection 115 \u2014 10.1\u201d). Trial counsel cannot be deemed ineffective for failing to request that the jury be instructed that it could consider Heindselman\u2019s prior inconsistent statement as substantive evidence because that instruction was unnecessary under the circumstances. Moreover, because the record establishes that trial counsel recognized the value of Heindselman\u2019s prior inconsistent statement and that the statement was admitted and used as substantive evidence, the defendant is unable to prevail on his claim that counsel\u2019s treatment of the statement constituted ineffective assistance of counsel.\nThe defendant next contends that his trial attorney was ineffective for failing to tender IPI Criminal 4th No. 5.01, which defines recklessness, the requisite mental state for involuntary manslaughter. IPI Criminal 4th No. 5.01 instructs that a person acts recklessly \u201cwhen he consciously disregards a substantial and unjustifiable risk that circumstances exist or that a result will follow, and such disregard constitutes a gross deviation from the standard of care which a reasonable person would exercise in the situation.\u201d The defendant points out that the Committee Note to the definitional instruction for involuntary manslaughter, IPI Criminal 4th No. 7.07, states that IPI Criminal 4th No. 5.01 should be given in conjunction with IPI Criminal 4th No. 7.07. IPI Criminal 4th No. 7.07, Committee Note, at 219. Citing People v. Howard, 232 Ill. App. 3d 386 (1992), the defendant argues that counsel\u2019s failure to tender IPI Criminal 4th No. 5.01 was reversible error. The State counters, \u201cThere is substantial evidence in the record to indicate that defense counsel\u2019s decision not to tender the IPI definition of recklessness was trial strategy,\u201d and the State argues that in People v. Carlson, 79 Ill. 2d 564 (1980), the supreme court rejected, on prejudice grounds, the defendant\u2019s claim that his trial counsel\u2019s failure to tender IPI Criminal No. 5.01 in conjunction with IPI Criminal No. 7.07 constituted ineffective assistance of counsel. Because we agree that the record indicates that counsel\u2019s decision to forgo tendering an instruction defining recklessness was a matter of trial strategy, \u201cwe need not consider the second prong of the Strickland standard\u201d (People v. Cunningham, 376 Ill. App. 3d 298, 304 (2007)).\nAs previously noted, defense counsel elicited the following testimony from Dr. Lipman when asking about the defendant\u2019s state of mind at the time of the shooting: the defendant \u201cbehaved foolishly[,] *** even say recklessly,\u201d and the defendant did not \u201cappreciate the dangerousness and, therefore, the recklessness of his actions.\u201d During closing arguments, when discussing the mental states of murder and involuntary manslaughter, counsel advised the jury that the judge, \u201cin his instructions,\u201d was \u201cgoing to define [\u2018]knowledge[\u2019] [and] [\u2018]intent,[\u2019] \u201d but at the same time, counsel specifically referred to Dr. Lipman\u2019s testimony when discussing recklessness.\n\u201cCounsel\u2019s decision as to what jury instructions to tender is one of several determinations widely recognized as matters of trial strategy that are generally immune from ineffective assistance claims\u201d (People v. Douglas, 362 Ill. App. 3d 65, 75 (2005)), and under the circumstances presented here, the defendant is unable to overcome the presumption that counsel\u2019s decision not to tender an instruction defining recklessness was a matter of trial strategy as opposed to incompetent oversight. Furthermore, we cannot say that counsel\u2019s decision to direct the jury\u2019s attention to Dr. Lipman\u2019s testimony and not request that the jury be instructed on the legal definition of recklessness was objectively unreasonable. The defendant\u2019s defense was largely premised on the evidence that he was extremely intoxicated at the time of the shooting, and counsel could have reasoned that the defense was better served by emphasizing Dr. Lipman\u2019s testimony and not tendering IPI Criminal 4th No. 5.01 with its \u201cconsciously disregards\u201d language. The jury was instructed on the definition of involuntary manslaughter and the issues to consider, and through Dr. Lipman\u2019s trial testimony, counsel provided the jury with a concept of recklessness less stringent than the legal definition set forth in IPI Criminal 4th No. 5.01. It is axiomatic that \u201c[t]he effort to confine instructions to those that best support the theory of the defense is what trial strategy is about.\u201d People v. Trotter, 299 Ill. App. 3d 535, 540 (1998). As an aside, we note that the defendant\u2019s reliance on People v. Howard, 232 Ill. App. 3d 386 (1992), is misplaced because Howard did not address a situation where trial counsel\u2019s failure to tender a recklessness instruction was a matter of trial strategy. See Howard, 232 Ill. App. 3d at 390-93. Howard also involved cumulative error, and a reversal of the defendant\u2019s murder conviction was deemed warranted \u201c[b]ased upon the specific facts in [the] case.\u201d Howard, 232 Ill. App. 3d at 392-93. In any event, because the defendant is unable to overcome the presumption that his trial attorney did not request a recklessness instruction as a matter of sound trial strategy, the defendant is unable to prevail on his claim that counsel\u2019s failure to tender IPI Criminal 4th No. 5.01 constituted ineffective assistance of counsel.\nCONCLUSION\nFor the foregoing reasons, the defendant\u2019s conviction is hereby affirmed.\nAffirmed.\nGOLDENHERSH and CHAPMAN, JJ., concur.", "type": "majority", "author": "JUSTICE WEXSTTEN" } ], "attorneys": [ "Daniel M. Kirwan and Lawrence J. O\u2019Neill, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Brian T. Shinkle, State\u2019s Attorney, of Albion (Norbert J. Goetten, Stephen E. Norris, and Sharon Shanahan, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. KENNETH R. LEMKE, Defendant-Appellant.\nFifth District\nNo. 5\u201407\u20140064\nOpinion filed July 31, 2008.\nRehearing denied August 28, 2008.\nDaniel M. Kirwan and Lawrence J. O\u2019Neill, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nBrian T. Shinkle, State\u2019s Attorney, of Albion (Norbert J. Goetten, Stephen E. Norris, and Sharon Shanahan, all of State\u2019s Attorneys Appellate Prosecutor\u2019s Office, of counsel), for the People." }, "file_name": "0437-01", "first_page_order": 453, "last_page_order": 467 }