## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Fields , 2013 IL App (2d) 120945

Appellate Court Caption THE PEOPL E OF THE STATE OF I L L I NOI S, Plaintiff-Appe l lee, v. TUAN C. F I EL DS, Defe ndant-Appe llant.

District & N o. Second District Docke t No. 2-12-0945

Filed September 27, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) On ap p eal from defe ndant’s convictions under an acc ountability theory for first-degree murder and attempted first-degree murder arising from a g ang -re lated shooting, the appellate court reje cted d efendant’s contentions that the evidenc e was insufficient to establish his guilt of attempted murder bey o n d a reasonable doubt and that his counsel was ineffe ctive in failing to object to g ang evidenc e, since the jury rea sonably could h av e believed defe ndant, through the shooter, took a step toward killing the victim of the attempted mur d er , and defe ndant failed to establish that he wa s prejudice d by his counsel’s failure to object to t he
g ang evi d en ce ; howeve r, the cause was rema nded for a new hear ing on defe ndant’s pro se posttrial motion alleg ing ineffe ctive ass i stance of counsel.

Dec ision Under Review Appea l from the Circuit Court of Kane County
, No

. 07-CF- 1241; the Hon. Gra nt S. Wegne r, the Hon. Kar en Simps on, and the Hon. J ames C. Hallock, Judge s, presiding

.

J udg ment Affir med in part a

nd reve rsed in par

t; cause r emande d with directions.Counsel on

Appea l Thomas A. L ilien a n d B r u ce Kirkham, both of State Appellate Def ender ’s Offic e, of Elg in, for appe llant.

J oseph H. McMahon, State’s Attorney
, of St. C h ar les (L awr ence M. Ba uer and Victoria E. J ozef, both o f State’s Attorney s Appellate Prosecutor’ s Offic e, of c ounsel), for the People.

Panel J USTI CE J ORGENSEN delivere d the judgme nt of the cour t , wi th opinion Presiding J ustice Bur

ke and J ustic e Hutchinson concur red in the judgme nt and opinion.

OP INION

¶ 1 I n 2 0 0 8
, a j u ry fo u n d d ef en d an t , Tuan C. Fields, acc ountable for the acts of his codef endant, Da

rvin Hende rson, and convicted him of first-de g ree murder ( 720 I L CS 5/ 9- 1(a) (1) (West 2 006)) and attempted first-degree murder (720 I L CS 5/8-4(a)
, 9-1(a ) (West 2006)). The court sen tence d defe ndant to consec utive terms of 25 y ear s’ and 8 y ear s’ imprisonment, respe ctively

. Def endant appea ls, arguing, as to his attempted first-degree murder conviction only
, that the evidenc e was insufficien t t o s u stain his conviction. In addition, defe ndant argues that trial counsel provided ineffe ctive assistance wher e he did not object to the State’s introduction of g ang -af filiation evidenc e. Finally
, defe ndant argues that

we should rema

nd for a new hear ing on his pro se posttrial motion alleg ing ineffec t i v e assistance of counsel, beca use the State’s participat i o n in the preliminary inquiry into his claims rende red the hearing adver sarial. For the following reas o n s , we reje ct defe ndant’s

s u f f ic ie ncy -of- the-e vidence and ineffe ctive-a ssist a n c e a r g u me nts , b ut w e a g

r e e th a t h e s h o u ld

rec eive a new hear ing on his pro se motion alleg ing ineffe ctive assistance

. Acc ording ly
, we aff irm in part, re verse in part, and r emand with dire ctions.

¶ 2 I . BA CKGROUND ¶ 3 On April 30, 2007, Henderson fir ed a w eapon, alleg edly g iven t o him by defe ndant, i n the stairwell of an apar

tment building in Aurora

. Rashod Waldrop died as a result of gunshot wounds and J onathan Phill ips sustained a head wound. On appea l, defe ndant arg ues that the evidenc e was insufficient to sustain his attempted murder conviction, beca use the State did
not establish beyond a rea sonable doubt that Phill ips’ injury was ca u s ed by a firea rm, as char g ed
, an d
, t h u s , that there was any intent to kill. As defe ndant does not challeng e on appea l the evidenc e reg arding his acc ountability for t h e cr i mes, or the sufficie ncy of the evidenc e on his murder conviction, the following fac tual sy nopsis does not focus on the trial

-2-evidenc e on those points. Rather, we provide g ener al background and detail only the

evidenc e and e vents rele vant to defe ndant’s appe llate ar guments.

¶ 4 A. Trial Evide nce ¶ 5 At trial, in opening statements, t he S tate ex plained to the j ury that the parties involved in the incidents at issue belong ed to the Ga ng ster Disciples stre et g ang or var ious factions, specific ally , the “L ow Ends” a nd the “Tw elve Hundr eds.” ¶ 6 Robert M oore testified that he k n ew and was “like brothers” with defe ndant, who was known by the street name “Don J uan.” He al s o knew Hende rson, who was known by the
street name “B ling.” Phill ips and Waldrop wer e known by the street names “J-Hood” and “T urtle,” respe ctively

. Moore, Hende rson, Phill ips, and Waldrop wer e all members of t h e Gang ster Disciple s ( d e f

endant was a member of the Maniac L atin Disciples, a g ang descr ibed

as like “cousins” with the Gang ster Disciples). Hende rson, howeve r, was part of the Twelve Hundre ds fac tion of the g ang , while Phill ips and Waldrop wer e part of the L ow Ends fac tion. Moore a nd defe ndant did not belongto fac tions. ¶ 7 M oore ag ree d that, on April 29, 2007, at a barbe cue at Fa rnsworth Park in Au ro ra , a problem started “betwe en the two g rou p s

. ” W h en Hende rson arr ived at the barbe cue, Hende rson and the L ow Ends (spec ifically Waldrop and Phill ips) g ot into a fig ht. The fig ht beca me phy sical and Phill ips snatche d a g old chain off of Hende rson’s neck. Def endant was not involved in the fig ht. The fig ht broke up when Michae l Townes (g ang aff iliation, if any , unknown) fir ed a shot from a silver, .357-caliber revolver into the air. Everyone scattered, and Moore, Phill ips, and Waldrop went to a g as station. Def endant did not g o. Acc ording to Moore, Hende rson eventual l y ar ri ved at the g as station and walked up to Phill ips and Wa l d ro p and said, “I ’m g etting my chain back” or “L et me g et my chain.” Waldrop responde d, “Ge t it in bl ood,” and Phillips ripped the chain into piece s. Hende rson got into his car a nd drove a

way

. ¶ 8 That evening
, there was a party held in differ ent ap ar t m en t s at 4 3 0 R i v er Street in Aurora

. The apar

tment building has a secur ed elevator lobby
, and a door off of the lobby that leads to a stairwell. At the party , as defe ndant and Hende rson exit ed a room, defe ndant said to Moore, “w atch wha

t me and B ling a

bout to do.” Moore sa

w Towne s g ive def

endant the
gun that he had fired in the park. Def endant put the gun in his waistband and left. Acc ording
to Moore, defe ndant later returned to the party and said, “Eve ry body g et out, J -Hood and Turtle just g ot knocked out.” ¶ 9 The evidenc e further re fl ec t ed t h at d efendant and Hende rson wer e seen outside the building, with Henders o n p utting on white g loves and wea ring a hooded sweatshirt. Def endant told a witness, “We on some bullshit .” L ater , inside at the party , defe ndant said, “follow me,” and led multipl e people, including Phill ips and Waldrop, out of the apar tment, down a hallway
, and into a stairwell

. Whil e desce nding the stairs, Phill ips and Waldrop passed by defe ndant and then Hende rson fired gunshots. Every body ran. Hende rson was seen runningout of the building w ith gloves on a nd a gun in his right hand. ¶ 10 Offic er Pete Wull brandt responde d to the scene ; there was scre aming and a larg e cr owd outside. When he enter ed the buildinghe saw Phill ips lying in a larg e pool of blood on the

-3-floor, betwe en the elevators and a door leading to a stairwell. Acc ording to Wull brandt,

Phill ips was unconscious, bleeding
, and had what “appe are d to be a gunshot [wound] ” on the top of his head. Offic er Don Flowe rs also arr ived on the scene , which he described as “cha os. A lot of people running around, y elling somebody had been shot.” Flowe rs enter ed the lobby and saw Phill ips lyi n g on the floor, bleeding from his head. Bullet holes, fra g ments, and jacke ts wer e found in the s t airwe ll and near the elevators outside the stairwell door. The bullet jacke ts ref

lected that they could have been fired from a .357 class of fi rea rm. No casing s were found, which w as consistent with the we apon beinga re volver. ¶ 11 Waldrop died in surg ery at the hospital. He had sustained three gunshot wounds and blunt forc e tra uma to the bac k of his head. Spec ifically , Waldrop had four lace rations on the top of the b ac k o f h i s h ead, rang ing from one-f ourth of an inch to three -four ths of an inch in leng th and, under the l ong est lace ration, a skull fra cture

. The forensic pathologist testified that, hy pothetically

speaking , the lace rations could have come f rom Waldrop being pistolwhipped. ¶ 12 Def

endant’ s friend, Earl J ames, testified in exchang e for a deal with the State. J ames had known defe ndant for sever al y ear s, assumed defe ndant was a Gang ster Disciple, and he had spent time with defen d an t i n t he same jail cell. Whil e there
, defe ndant told J ames that he
g ave Hende rson the gun while they wer e outside the apar tment building and that then he
returne d to the apar

tment p ar ty while Hende rson went into the stairwell. Def endant told J ames that he had escor

ted Phill ips and Waldrop to the st ai rwe ll, but that they proce eded downstairs i n front of him. Def endant heard gunshots, went downstairs and “looked at the
two that was shot in the doorwa y ,” and the n went back upstairs. Def endant told James that he did not think “they” would g et shot. ¶ 13 Offic er Wil liam Rowley i n t er v i ew ed d ef en d an t

. Acc ording to Rowley
, duringthe interview, defe ndant rec ounted that, afte r hear ing the gunshots, he exit ed the stairwell, “saw that two people ha d been shot,” and re turned up the stair s. ¶ 14 Offic er Kevin J enkins also interviewe d defe ndant, who initially denied any involvement in the s hootings. Defenda nt later admitted that he knew of the dispute betwe en Henderson and the L ow Ends wher e someone snatche d a chain from Hende rson’s neck. Def endant admitted that he had obtained Townes’ gun while inside the building that night. He conce ded that Hende rson was the shooter and that he ad m i t t ed He nderson into the elevator lobby throug h a secur ed door; Hende rson then enter ed the stairwell and defe ndant took an elevator upstairs to a party wher e Waldrop and P hillips wer e prese nt. Def endant told J enkins that, afte r leaving the party , Waldrop asked defe ndant to walk him downstairs. After enter ing the stairwell, defe ndant hear d shots being fired as people rea ched the bo t t om of the stairs. Def endant sa w Hende rson “shootingat the two subjec ts” at the bottom of the stairs. 1

T he apa rt m ent bui ldi ng con ta ine d a net work of sur veill anc e video camera s, al tho u gh no 1

camera s exi st ed in the st ai rwe ll

. T he video re cor din gs fr om the night at is sue (whi ch wer e st ipu la te d
to and ent er ed int o eviden ce) sho wed def end ant : (1) admitt ing a per son wear ing a hood ed swea ts hir t ( i.e

. , Hende rs on) thr ough the sec ure d door of the el evator lob by and int o the bui ldi ng’s st ai rwe ll ; (2) the re af te r get ti ng on th e e le vator ; a nd ( 3) le adi ng Wal dro p an d Phi ll ips fr om the apa rt m ent , down

-4-¶ 15 In closingarguments, the State commented:
“All we have to do is show that he aided or abetted in some way

. And how do we know that? How do we know, how have we p ro v en to y ou that he aided or abetted? We’ve done it throug h his actions and through his words, spoken to his friends and his fe llow Gang ster Disciples that nig ht and af terwa rds.” The State then noted that the evidenc e ref lected that defe ndant had commented, “We on

s o m e bullshit ” and “watch what me and Bling about t o do,” and that he obtained and then
g ave Hende rson a gun. The State further argued that the video rec ording s showed defe ndant
g iving Hender son acc ess t o the bui lding and then, by leading them t o t h e s tairwe ll, g iving Hende rson ac cess to the victims. ¶ 16 D e f

e n se counsel, in turn, commented in closing
, “Why would [defendant] be angry? Why would he want to conspire with any body to have wh at wer e his friends, Waldrop and Phill ips, murdere d? I t doesn’t make se nse.” ¶ 17 The jury convicted defe ndant of first-degree murder and attempted first-degree murder. In specia l-verdic t forms, the jury found that the State did not prove that defe ndant was arme d with a fire arm duringthe commission of the offe nses.

¶ 18 B. Posttrial Procee dings ¶ 19 Def

ense counsel moved for a new trial and argued that th e v er d i ct s were inconsistent. T h e court denied the motion and, on J anuar y 9, 2009, sentenc ed defe ndant to consec utiv e terms of 25 y ear s’ imprisonment for firs t -d egr ee murder and 8 y ear s’ imprisonment for attempted murder. Def

endant appea led. On J anuar y 27, 2009, howeve r, defe ndant filed a pro

se motion for a new trial, which included alleg ations of ineffe ctive assistance
, and a motion
to rec onsider the sentenc e. Acc ording ly
, on Oc t o b er 1 6, 2009, this court dismiss ed defe ndant’s appe al. ¶ 20 T h er ea fter, on Dec ember 3, 2009, defe ndant filed befor e th e t ri al co u rt a p r o s e supplemental motion, alleg ing, among other th i n gs , ineffe ctive assistance of counsel. The State moved to strike the motion, in part on timeliness g rounds. On J anuar y 13, 2010, defe ndant appea

red befor e the court and reque sted an attorney ; the trial judge explained that defe ndant was not, a

t that sta g e, entitled to a

ppointed counsel, but it grante d a continuance

so that defe ndant could try to obtain private counsel. In J uly 2010, the co u rt denied the State’s motion to strike and g rante d defe ndant leave to f ile an amende d pro se motion with specific alleg ations supporting his ineffe ctive-a ssistance claims. On October 1 9
, 2 0 1 0, d ef endant amende d his motion and asser ted approximately 15 claims of ineffe cti v e assistance
, encompa ssing counsel’s alleg ed failure s to: (1) make cer tain objections and file

cer tain motions; (2) prese nt cer tain evidenc e; (3) proper ly cross-e x amine various witnesses;

an ups ta ir s hal lwa y, and to the st ai rwe ll

. T he re cor din gs al so app ar ent ly sho wed Wa ld r o p f a l l i ng thr ough the st ai rwe ll door in the el evator lob by and a hood ed fi gure st and ing over him wit h a han d
ext end ed and a si lver obj ect in the han d. Fur the r, the re cor din gs sho wed Phil li ps lying on the fl oor in the bac kgrou nd. Fina ll y, def end ant is see n st epp ing over Phil li ps as if to lea ve the st ai rwe ll , but the n he st eps bac k ov erPhi ll ips andre tur ns u pst ai rs

.

-5-and (4) prese nt and interview wi t n es s es who could have testified on defe ndant’s behalf

. Def endant attache d to his motion four aff idavits from witnes s es cl ai ming that they wer e willing to testify

on defe ndant’s beha lf but were not contacte d by counsel. ¶ 21 Def

endant’ s case was transfe rre d to another judge

. On Fe bruar y 16, 2011, th at j u d g e (w ho, we note, did not preside over defenda nt’s trial) held a hearing pursuant to People v. Krankel
, 102 I ll. 2d 181 (1984). At the commence ment of the hear ing, the State summarized 2 for the court the proce dural posture of the case , n o t ing that, acc ording to Krankel and its
prog eny , including People v. Serio
, 357 I ll. App. 3d 806 (2005), to war rant appointment of counsel and further proce eding s, defe ndant’s alleg ations of ineffe ctive assistance must be sufficie ntly d et ai l ed and may not simply challeng e counsel’s trial strategy

. The court

announce d that it would g ive defe ndant the opportunity to say what he wished about eac h claim, and that the State would also be g iven an opportunity to be hear d. There afte r, the court stated that it would make a deter mination under Krankel with reg ard to whethe r the case would move forw ard on the claims. ¶ 22 At the hear ing, the court’s proce dure was to ask defe ndant to explain eac h claim and then ask t he S tate for its position. The S tate’s posit ion on eac h clai m was that the court did not need to further inquire about the claim, for a varie ty of re as o n s

. Fo r ex ample, the State

asser ted that sever al claims wer e not sufficie ntly specific

. On one claim, the State argued that the l aw did not require it to do what defe nse counse l alleg edly should have re quested. The State asser

ted that other claims related to matters of trial strategy

. For example, on one claim, defe nse counsel responde d under oath that he did not call a par ticular witness beca

use “we went through this stuff, we chose not to call him .” The State interjec ted, “J udg e, if Icould add one other thing. I am not sure what went into [defense counsel’s] decision or not, but my memory *** of [t he witness is that he] has an ex t en s i ve criminal history
, which probably would have, I know I would have used to impea ch him as a witness, and I don’t know, like I say , I can’ t say whether that would be [defense counsel].” Def ense counsel then interjec ted, “that’s part of it

. W e didn’t believe he would be cre dible.” Defendant then interjec ted, “It wasn’t up to either one of those, it’s up to the trier of fac t to decide whether he was cre dible

or not. J ust lik e ev ery

b o dy that came on the stand had an extensive background, case s pending ***.” The court found no basis for any of the claims. The State then asked the court to not only deny defe ndant’s reque st to appoint couns el
, b u t als o to deny the motion for a new tria l. The cour

t did so. ¶ 23 On April 20, 2011, defe ndant filed a mot i o n t o re consider his convictions. The c ourt g rante d the State’s motion to strike it as untimely beca use it was fi l ed more than 30 day s afte r the de nial of the motion for a new tria l. ¶ 24 The court appoi nted counsel to repr esent defenda nt on his pro se motion to rec onsider his sentenc e, and appo in

ted counsel amende d the motion. The case was transfe rre d to another judge
, who, on August 23, 2012, denied the amende d motion. Def endant filed his notice of
appea l that same day

.

Hear ings inves ti gatin g pro se cl ai m s of ine ff ect ive ass is ta nce of cou nse l, hel d pur sua nt to 2 Peop le v. Kr ank

el , 102 I ll . 2d 181 (19 84) , ar e c omm onl y refe rr ed t o as Kran kel hea ri ngs.

-6-¶ 25 I I . ANALYSI S

¶ 26 A. Sufficienc y of the Evidenc e ¶ 27 De fe n d an t ar gues first that he was not proved guilty beyond a rea sonable doubt o f attempted first-degree murder wher e the jury was pre sented with no cr edible evide nce that Phill ips’ injury was cause d by a gunshot. Def endant notes that the State prese nted no medical evidenc e establishing that Phill ips was shot or injured in any way by Hende rson. He argues that the evidence showe d only that police found Phillips ly ing on the floor with a blee ding head injury that could have been cause d by a number of people duringthe panic a nd chaos immediately following the shooting of Waldrop. “B eca use the S t at e fa iled to prove what

cause d Phill ips’ injury
, there was not proof beyond a rea sonable doubt that Hende rson, and by an acc ountability theory
, the defe ndant, had the intent to kill Phill ips.” Def endant asks that

we vaca te his attempted first-degree murder conviction. For the following rea sons, we reje ct defe ndant’s suff

iciency-of- the-e vidence argument. ¶ 28 When we revie w the sufficie ncy of the evidenc e, the rele vant question is “whe ther, afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime beyond a rea sonable doubt.” (Emphasis in orig inal and internal quotation marks omitted.) People v. Cooper
, 194 I ll. 2d 419, 430-31 (2000). W e will not substit ute our judgme nt for the trier of fac t’s and will not rew eig h the evidenc e. Id. at 431. I t is the trier of fac t’s responsibility to resolve conflicts in the testimony
, weig h the evidenc e, and dr aw r easona ble infer ence s theref

rom. Id. ¶ 29 Her e, the evidenc e was sufficie nt for the jury to find beyon d a rea sonable doubt that Phill ips sustaine d a gunshot w ound. First, the evidenc e showed that gunshots we re fired in

a crow ded stairwell. Second, bullet holes, fra g ments, and jacke ts wer e found in the stairwell and near the elevators outside the stairwell door, wher e Phill ips was found lying in a pool of blood. Sec ond, Wull brandt testified that Philli ps was unconsc ious, bleeding
, and had what “appe are d to be a gu n s h o t [wound] ” on the top of his head. Third, acc ording to J ames, defe ndant told him that, befor e returning up the s tairs, he “looked at the two that was shot in the doorwa

y” (empha sis a dded) and said that he did not think that “they” would be shot. Four th, in his interview with Rowley
, defe ndant stated that, befor e returning upstairs, he saw that “ two people had been shot.” (Emphasis added.) Finally
, acc ording to J enkins, defe ndant said that, as people rea ched the bottom of the stairwell, he saw He nderson “ shooting at the
two subjects.” (Emphasis added.) Viewing the evidenc e in the State’s favor, the jury could have r easona

bly found beyond a re asonable doubt that Phil lips was shot. ¶ 30 Def

endant notes that never

theless t he S tate presented no medical evidence of P hillips ’ injury and that the evidenc e that was prese nted provided alternative, rea sonable explanations for it. For example, defe ndant notes that Waldrop sustained injuries to the back of his head that, acc ording to the patholog ist, could have been cause d by pistol-whipping; there fore
, Phill ips’ head injury might also have been cause d by pistol-whipping. Also, defe ndant notes th at t he evidenc e ref

lected chaos in the stairwell following the shooting, and there fore

someone other than Hende rson could have injured Phill ips. We reje ct defe ndant’s argument. The State was not require d to exclude ever y rea sonable alterna

tive explanatio n consistent

-7-with defe nd an t ’s i n n o ce nce ( People v. Larson
, 379 I ll. App. 3d 642, 654 (2008))
, and the jury was free to rejec t these hy pothetical alter

native explanations for Phi llips’ head injury

. Although the evidenc e was circ umstantial, the finding that Phill ips’ injury was cause d by a gunshot was clea

rly a re asonable infere nce to be drawn from the e vidence

. ¶ 31 Fur

ther, we note t hat, t o prove defenda nt guilty o f at t em p ted m urder
, the S tate nee ded
to show only that defe ndant (ag ain, defe ndant does not challeng e the acc ountability finding ) intended to kill and took a substantial step toward killing his intended vict im. People v. Smith
, 402 I ll. App. 3d 538, 547 (2010). Intent to kill may be inferr ed from the circ umstances surrounding the commission of the offe nse. People v. Miller
, 284 I ll. App. 3d 16, 24 (1996). Given the evidenc e reflec ting that defe ndant acquired Townes’ gun; def endant g ave a gun to Hende rson outside the building; defe ndant admitted Hende rson into the building and the stairwell; defe ndant led Phill ips and Waldrop from the party into th e s t ai rwell; and that multipl e gu nshots wer e subsequently fired into the crow ded stairwell, the jury could

rea sonably have conclude d beyond a re as o n able doubt that, via Hende rson, defe ndant intended that Phill ips be killed and took a substantial step toward doing so. Acc ording ly
, we reje ct def endant’ s sufficienc y -of- the-e vidence argument.

¶ 32 B. Ineff

ective A ssistance of Counsel: Evidenc e of G angAffiliation ¶ 33 Def

endant a rgues next that he was deprive d of a fair trial beca use hi s counsel failed to object to prejudicia l g ang evidenc e. Def endant arg

ues that the State did not establish that the conflict betwee n defe ndant and the victims was g an g -re lated and, there fore
, that the evidenc e

conce rning the parties’ g ang aff iliatio ns, as well as t he S tate’s refe renc e to it in its closing
argument, was irrele vant and overly prejudicia l. Def endant does not spe cifica lly argue that the trial cour

t abused its discretion in admitting the evidenc e, as he agr ees that his counsel

never objected to it. Instead, defe ndant asser ts that his counsel was ineffe ctive for failing to object. ¶ 34 To state a constitutional claim of ineffe ct i v e as s i s t an ce of counsel, a defe ndant must alleg e fac ts to show that counsel’s perf ormanc e was objectively unrea sonable ( i.e.
, defic ient perf ormanc e) and that it is rea sonably probable that, but for counsel’s defic ient perf ormanc e, t h e re s u l t of the proce eding would have been differ ent ( i.e.
, prejudice ). Strickland v. W ashington
, 466 U.S. 668, 687 (1984); People v. Albanese
, 104 I ll. 2d 504, 525-26 (1984). I f the defe ndant fails to estab l i sh either prong , his ineffe ctive-a ssistance claim fails. Strickland
, 466 U.S. at 687. “I f it is easie r, a court may proce ed direc tly to the second prong of Strickland and dismiss an ineffe ctive assistance claim on the g round that it lacks sufficie nt prejudice
, without first deter mining whether counsel’s perf ormanc e was defic ient.” People

v. Valladares
, 2013 I L App (1st) 1 1 2 0 1 0
, ¶ 7 0 ; s ee also Albanese
, 104 I ll. 2d at 527. To establish prejudice
, the defe ndant must show a rea sonable probability that, absent counsel’s alleg ed err or, the trial outcome would have been differ ent. People v. Evans
, 209 I ll. 2d 194, 220 (2004). “A rea sonable probabi lity of a differ ent result is not mere ly a possibili ty of a differ ent re sult.” (Emphasis adde d.) Id. ¶ 35 Her e, eve n if we w ere to assume that, by not objecting to the gangevidenc e, counse l’s

-8-perf ormanc e was objectively unrea sonable, defe ndant’s ineffe ctive-a ssistance claim fails 3 beca use he cannot establish the require d prejudice

. Specifica lly
, defe ndant cannot establish

a reas o n ab l e probability that, absent the g ang -re lated evidenc e, he would have been acquitted. The evidenc e of defe ndant’s guilt was overwhelming. (Ag ain, defe ndant does not challeng e the sufficie ncy of the evidenc e that led to his conviction of first-degree murder, and

we have reje cted his challeng e to t h e s u fficiency of the evidenc e that resulted in his attempted murder conviction.) Setting aside the testimony reg arding g ang membership, the jury hear d evidenc e that defe ndant acquir ed Townes’ gun inside the apar tment building, was

seen outside the apar

tment building with Hende rson (while Hende rson was putting on white
g loves), and g ave Hende rs o n a gun while outside the building. Video rec ording s showed defe ndant l etting Hender son into the bui lding an d t h e stairwell, procee ding upstairs in the elevator, and then leading Phill ips and Waldrop down the hallway to the stairwell. The jury hear d evidenc e that def

endant e ssentially

confirme d these e vents to J ames a nd to police in his interviews with them. As such, there is no rea sonable probability that, if defe nse counsel had succe s sfully moved to exclude evidenc e of g ang membership, defe ndant would have been acquitted. Acc ording ly
, defe ndant’s ineffe ctive-a ssistance argument as to the failure to object to g angevidenc e fa ils.

¶ 36 C. Pro Se Postt rial Motion ¶ 37 De fe n d an t ’s fi n al argument is that the proce dure used by the trial court durin g t h e Krankel hearing improperly conver ted the inquiry into an adver sari al ev identiary hear ing wher ein he wa s not repre sented by counsel. We agree

. ¶ 38 When a defe ndant files a pro se post t ri al m o t i o n al l egi ng ineffe ctive assistance of counsel, he or she is not automatically entitled to the appointment of counsel to a ssist with the motion. P eo

p l e v. Mo o r e , 207 I ll. 2d 68, 77 (2003). Rather, the trial court should first examine the b as es of the defe ndant’s claims; if the court deter mines that the claims lack

m er i t o r perta in only to trial strategy , the court may deny the pro se motion with o u t appointing couns el. Id. at 77-78. I f the court deter mines that the claims demonstrate that counsel possi b l

y neg lected the defe ndant’s case , new counsel should be appointed to repr esent the defe ndant at the hear ing on the pro se motion. Id. at 78. New counsel may also independe ntly

evaluate the def

endant’ s claims. Id. ¶ 39 In conducting the i nquiry into the def endant’ s claims, the trial cour t will li kely

need to discuss the alleg ations with the defe ndant or with the defendant’s trial counsel. “[S] ome intercha ng e betwe en the trial court and trial counsel reg ardingthe fa cts and c ircumstance s surrounding the alleg edly ineffe ctive repr esentation is permissible and usually nece ssary in

We not e tha t, al tho ugh inf ormati on re gardi ng gang m embersh ip is pre j udi ci al
, the eviden ce 3 her e was re la ti vely m ini m al and not par ti cul ar ly inf la m m at ory. I n ess enc e, the cas t of cha ra ct er s was ide nti fi ed and pla ced in the ir gang fa c t i o n s t o pro vide con te xt to the events and an oth er wis e

une xpl ai nab le ac t ( i.e

. , why def end ant andHend er son , who, as def ens e couns el ar gued in cl osi ng,

wer e “f ri end s” of the victi m s, woul d want to cau se the m har m ). Even if the fa ct of gang m embersh ip

cas t d ef end ant in a n egati ve li ght, i t a rguabl y also ca st th e s ame shad ow on Wa ldr op a nd Ph il li ps.

-9-assessing what further action, if any , is war rante d ***.” Id. Acc ording ly
, to evalua te whether the claims indicate possible neg lect, the trial court may consider any fac ial insufficienc y of the defe ndant’s alleg ations and may (1) ask the defe ndant’s trial counsel questions; (2) briefly discuss the alleg ations with the defe ndant; or (3) rely upon its own kno wledg e of counsel’s perf

ormanc e. Id. at 78-79. We revie w de novo the manner in which the trial court conducte d its Krankel

hearing. Id. at 75. ¶ 40 Although a t rial cour t’s method of inquiry

at the Krankel

hear ing is somewhat flex ible (by virtue of its ability to ask questions of the defe ndant, the defe ndant’s counsel, etc.)
, and

we can envis i o n a s i tu ation wher e the State may be asked to offe r concr ete and easily verifia ble facts at the hear ing, no case l aw s u ggests that the State should be an active participa nt during the preliminary inquiry

. In fac t, ty p ically
, virtually no opportunity for State participation is offe red during the preliminary inquiry

. See, e.g. , Moore
, 207 I ll. 2d at 73-74; People v. Chapman
, 194 I ll. 2d 186, 227-29 (2000); People v. Robinson
, 157 I ll. 2d 68, 85- 86 (1993); People v. Nitz
, 143 I ll. 2d 82, 134-35 (1991); People v. McCarter
, 385 I ll. App. 3d 919, 926-27 (2008); People v. Bolton
, 382 I ll. App. 3d 714, 716 (2008); People v. Ford
, 368 I ll. App. 3d 271, 273-74 (2006); People v . Peac ock, 359 I ll. App. 3d 326, 330, 339-40 (2005); People v. Gilmo r e , 3 5 6 I ll. App. 3d 1023, 1030, 1036-37 (2005); People v. Cummings
, 351 I ll. App. 3d 343, 351-52 (2004); People v. Cabrales
, 325 I ll. App. 3d 1, 5-6 (2001). I f the State’s pa

rticipation duringthe initial investigation into a defendant’ s pro se alleg ations is any

thing more than de minimis
, there is a risk that the preliminary inquiry will be turned into an adver sarial proce eding
, with both the State and trial counsel opposing the defe ndant. That is exactly what occ urre d here

. ¶ 41 In this case , the tri al co u rt i n v i t ed at least equal participation by the State into the prelim i n ary inquiry of defe ndant’s pro se ineffe ctive-a ssistance claims. The court went throug h defe ndant’s alleg ations one by one, all owing defe ndant to comment and then allowing the State to comment and provide counter arguments on defe ndant’s claims. At one p o i nt, defe nse counsel explained his actions and then the State interjec ted an addi t i o n al possible explanation for defe nse counsel’s actions, at which point both defe nse counsel and the State wer e, essentially
, opposing defe ndant as he argued his position. On appea l, the State, citing Cabrales
, acknow ledg es that this court has “fr owned upon” an adver sarial edg e to a Krankel hear ing, and it conce des that it has found no case that has allowed the
prosec ution to make argument during the preliminar y inquiry

. Howeve r, it asser ts that its participation was focuse d primarily on noting the lack of specific ity of particula r claims and that other claims m er el y challeng ed trial strategy

. Howeve r, even arguing that the claims

war rante d no further inquiry beca use they attacke d strategy or wer e not specific was, in fac t, advocating a position ag ainst defe ndant. Where the trial court, at various times, allowed both defe nse cou n s el an d the State to asser t that defe ndant’s claims war rante d no further investigation, the hear ing chang ed from one consistent with Krankel and it s prog eny to an adver sarial hear ing wher e defe ndant, without waiving his rig ht to be repr esente d, was forc ed,
unrepr esente d, to argue the merits of his claims. See People v. Finley
, 63 I ll. App. 3d 95, 103 (1978) ( defe ndant is entitled to repre sentation on posttrial motions). ¶ 42 The S tate argues t hat we should find that its participation in the hearingwas ha rmless, since the trial court’s bases for denying eac h of defe ndant’s claims wer e (it alleg es) corr ect.

-10-We decline to do so. The case the State cites to support finding harmless err or conce rns the

trial court’s substantive ruling s on pro se alleg ations, but it does not addre ss a context wher e the proce eding itself was conducte d in an err oneous fashion. See People v. McLaurin
, 2012 I L App (1st) 102943, ¶ 42. Other courts have reve rsed and rema nded when the preliminary 4 inquiry morphed into an adversar ial hear ing with the S tate participating and the defe ndant
appea ring pro se

. See Cabrales
, 325 I ll. App. 3d at 6; see also Moore , 207 I ll. 2d at 81. A s such, we fo l l o w the same proce dure. We rema nd for a new preliminary inquiry
, befor e a differ ent judge ( Cabrales
, 325 I ll. App. 3d at 6) and without adver sarial State participation, into defenda

nt’s pro seclaims.

¶ 43 I I I . CONCLUSI ON ¶ 44 For the fore g oing rea sons, the judgme nt of the circ uit court of Kane County is affirme d in part and r ever sed in part, a nd the ca use is rema

nded with direc tions.

¶ 45 Affir

med in part a

nd reve rsed in par

t; cause r emande d with directions.

We al so n ote th at her e the tr ia l j udge who pre si ded over the hea ri ng d id not pre si de over 4 def end ant ’s tr ia l. Ac cor din gly , we c ann ot con cl ude th at any er rorwas har m le ss bec aus e t he j udge

was in a pos it ion to ind epe nde ntl y and wit hout Sta te inp ut evalua te def end ant ’s cl ai m s bas ed on fa ct s wit hin hi s orherown knowl edge. Se e Cabr ale s , 325 I ll . App. 3d a t 6

.
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