DANVILLE – A Chicago attorney once again is asking for a new trial for a 35-year-old Newtown man who was convicted of first-degree murder in the fatal shooting of his wife.
Stanley Hill plans to file a motion in Vermilion County Circuit Court today that says his client, Kenneth Gray, was denied a fair trial in October because the jury was not given proper instructions regarding the lesser charge of second-degree murder, which was offered as another option.
Gray shot 34-year-old Kimberly Gray 15 times in the couple's home after an argument.
During Gray's weeklong trial in Peoria, Hill unsuccessfully argued his client was guilty of the lesser charge, saying he shot her "in a rage of intense passion and in an act of unreasonable self-defense" provoked by the fear she was going to leave and take their three kids.
Hill also claimed that before being shot, Mrs. Gray tried to get a gun to shoot Gray, then went after him with a knife. In addition, he claimed, Mrs. Gray threatened her husband with a gun and a knife on two prior occasions.
Prosecutors argued Gray shot his wife in a jealous rage and that there were no previous attacks.
On Oct. 20, a jury of seven women and five men deliberated about 1 hours before finding Gray guilty of the more serious charge. It also found him guilty of three aggravating factors related to the murder weapon.
Now Gray faces 45 years to life in prison when he is sentenced on Jan. 11. A second-degree conviction would have made him eligible for four to 20 years behind bars.
A week after the conviction, Hill filed a motion in Vermilion County asking Judge Michael Clary, who presided over Gray's trial, to declare a mistrial, throw out the first-degree murder conviction and replace it with a second-degree conviction.
He also asked for an evidentiary hearing to determine whether extraneous material brought into the deliberations by juror Richard Springston of Peoria prejudiced the outcome. Springston told The News-Gazette that he brought with him a definition for second-degree murder, which he got from the Peoria Public Library, but that he did not share it with other jurors.
That motion will be heard at 2 p.m. on Dec. 7.
Hill's latest motion argues that Clary did not instruct the jury that a mitigating factor for second-degree murder was that Gray's actions resulted from "a sudden and intense passion resulting from serious provocation by the deceased."
"There was evidence presented of mutual quarrel or combat or assault by the victim," Hill wrote. "This court's refusal to provide the jury with the specific instruction regarding sudden and intense passion was fatally defective and prejudicial to the defendant in that it resulted in the jury simply following this court's lead regarding this matter."
The lawyer cited an Illinois case, in which a defendant and victim got into an argument over the victim's shopping cart, which was blocking the path of the defendant's car.
When the victim made a threatening remark and reached into his cart to pull out an object, the defendant shot him.
The trial court judge did not allow an involuntary manslaughter option in that case, saying there was no evidence for it. But the appellate court ruled the jury should've been given the manslaughter option, and the supreme court upheld that decision, saying it's the job of the jury, not the judge, to decide guilt or innocence.
Hill also argued that two Crosspoint Human Services employees should have been allowed to testify about the characteristics of post traumatic stress disorder, a condition from which Hill believes Gray suffered as a result of the murder. He added they also would have testified about the suicide threats Gray made in jail.
During the trial, Clary barred the employees from testifying, saying they did not have the expertise to diagnose Gray with the disorder. A Crosspoint pyschiatrist who was qualified to make a diagnosis reported that Gray suffered from severe depression.
In addition, Hill argued that the material Springston brought into the jury room, testimony from Gray's 13- and 12-year-old children, which he called inflammatory, and "gruesome" photographs of Mrs. Gray, among other things, warranted a new trial.