*1 ILLINOIS, Plаintiff-Appellee, v. THE STATE OF THE PEOPLE OF CAMPBELL, Defendant-Appellant. TESHOME Fourth No. 4—99 —0099 District Rehearing Argued Opinion July denied October filed 2002. 2001. August 2002. *2 Appel- (argued), of State Jacqueline both L. Bullard Daniel D. Yuhas Office, appellant. Springfield, for late Defender’s (Norbert Goetten, J. J. Robert Piland, Attorney, of Urbana John C. State’s Appellate Attorneys Biderman, (argued), all of State’s E. Mannchen and David Office, counsel), People. for Prosecutor’s court: opinion delivered the of the JUSTICE COOK defendant, Camp- Teshome On convicted October 1996)) (West (720 1(a)(2) for his bell, degree of first murder ILCS 5/9 — Shepherd. On November beating death of James involvement motion and posttrial denied defendant’s the trial court January the trial years prison. him to 55 On sentenced to reconsider his sentence. court denied defendant’s motion appeals affirm. his conviction. We
I. BACKGROUND *3 25, 1997, James During early morning hours of December Butler, victim, prostitute, Shepherd, picked up the murdеr Rita Street and Streets Cham- drove to the corner of Bellefontaine Clock rock of crack paign buy purchased to “crack” cocaine. Butler a $20 drugs her on two or three cocaine from defendant. Defendant had sold loca- and the then drove to a different previous occasions. She victim fake, the crack was Upon discovering tion to smoke the crack. money his back from get victim to Bellefontaine Street to drove back defendant, who approached defendant. The victim exited his van and van, remained in the standing large group people. with a Butler the area facing away the corner and from parked which was around group of men on Belle- approached where the victim defendant and fontaine Street. began struggle.
Butler testified that the victim and defendant nine then punch. people She did not the first Five to see whо threw himself, victim fell to the joined fight. Unable to defend until the punch kick and the victim ground. The crowd continued to disperse. The sirens caused the crowd approaching police sound of multiple a result of victim died about one month after the attack as blows to the head. material, following i.e.,
The facts, the remainder of the is nonpub (166 23). lishable Supreme under Court Rule 23 Ill. 2d R.
II. ANALYSIS appeals Defendant and asks this court to reverse his conviction on prosecutorial the basis of misconduct, counsel, ineffective assistance of the improper admission of hearsay testimony, and insufficient evidence to prove guilty beyond defendant a reasonable doubt. We address each issue in turn.
A. Prosecutorial Misconduct (A)(1) The (A)(4) material in this section and sections through nonpublishable Supreme under Court Rule 23.
5. Prearrest Silence Defendant contends his fifth right amendment to remain silent was violated whеn prosecutor presented argument evidence and referring to defendant’s right exercise of that questioned by when police prior to his arrest prior any warnings. agreed to talk to the officers and followed them to their unmarked squad car where the officers interviewed him. The officers asked if defendant he night of the murder. He told them he was outside a house on Bellefontaine Street and witnessed the beating, he not anywhere involved or near the victim. The officers asked where he went beating, after the and defendant responded, “I think I I left. think I pussy, went and some really but I don’t remember.” Officer Kelly defendant, “Well, testified he then asked who was it? did Where you go?” point, At this replied, “Man, defendant I got nothing ain’t say you,” more to and exited the vehicle. illegally
Even may obtained evidence be used to defendant. Where a defendant merely deny does not the elements of against him, the claim “sweeping claim[s],” but makes such as that he had never possessed narcotics, dealt in or may be impeached with illegally obtained States, evidence. Walder v. United 62, 65, (1954) (heroin 347 U.S. L. Ed. 74 S. Ct. earlier). illegally seized years from his home two Such impeachment may include a statement made defendant which would be inadmis Arizona, sible under Miranda v. 384 U.S. 16 L. Ed. 2d 86 S. York, Ct. 1602 Harris v. New 401 U.S. 28 L. Ed. 2d *4 (1971). 4, 643, However, 91 S. impeachment by Ct. defendant’s 645 postarrest silence after he had received Miranda warnings is impermissible. “insolubly ambiguous” Such is using silence such silence fundamentally given would be unfair the fact that warn the ings carry implicit carry penalty. assurance that silence will no
725 91, 97-98, 96 610, 617-18, Ed. 2d S. Ct. Ohio, 49 L. v. 426 U.S. Doyle 2240, 2244-45 receiving contrast, voluntarily speaks after
In
a defendant who
v.
remain silent. Anderson
warnings has not been induced to
Miranda
(1980)
404,
222,
2180
Charles,
65 L. Ed. 2d
100 S. Ct.
447 U.S.
permitted); see also
(impeachment by prior inconsistent statements
86,
Anderson,
231,
2d
100 S. Ct.
v.
447 U.S.
65 L. Ed.
Jenkins
(1980) (where
trial,
defendant claimed self-defense at
Stаte allowed
stabbing for
by
prearrest
reporting
silence in not
defendant’s
weeks).
questions may
police
A defendant who chooses to answer
two
“Following
regarding
he did not disclose.
be cross-examined
matters
He
did not remain silent.
warnings,
his arrest and Miranda
events,
knowledge
denied his
of
related an entire version
but
Defendant also omitted
anticipated drug
and the
deal.
.cocaine
People
he later testified at trial.”
v.
significant details
which
(1992) (State
508,
Frieberg, 147 Ill. 2d
could
cross-examine).
distinguished
earlier case:
properly
Frieberg
an
617,
(1991),]
“[People Gagliani[,
App.
v.]
210 Ill.
Frieberg impeachment, involved but there no reason a prior substantively, dant’s statements cannot come in on direct silenсe, Perhaps during examination. mere either at trial or the initial questioning by police, is not admissible on direct examination. United (7th 1987) (initial Lane, ex rel. v. 832 F.2d Savory States Cir. questioning); California, v. 380 U.S. 14 L. Ed. 2d Griffin (1965) (silence trial). case, however, S. Ct. 1229 This does not involve speak police. Any mere silence a defendant chose to to the but who person, by privilege statement an accused unless excluded rules, against exclusionary may self-incrimination or other be used admission, against inculpatory against him an even if it is not or People Aguilar, interest. speak police. important
Defendant chose to He made an as- defense, sertion in his own that he did not flee the scene Bobby car, “I I Douglas’s pussy, Joe think went and some really attempted verify I don’t remember.” police When alibi, provide details of defendant’s defendant refused to name The was entitled to show that defendant either woman. Statе alibi, thereby permit- could not or would not furnish the details of his ting Omitting the inference that his alibi was fictitious. facts within a
726
statement does right not involve the People remain silent. v. Misch ke, 252, 265, (1995). App. 442, 278 Ill. 3d 451 A defendant spoke police who thriving about his narcotics trade could not complain when the officer testified that nothing defendant said about the murder at the time except, of his arrest “it will all come out in Garza, court.” People 659, 669-70, v. 276 Ill. App. 1355, (1995). Here, 1362 the prosecutor did not comment on defendant’s silence but on the inconsistent statements defendant made police.
Frieberg and Anderson stand for the proposition that a defendant who voluntarily speaks receiving after warnings Miranda has not been induced to help remain silent. It is no to defendant that this case did not involve a interrogation custodial and did not rise to the level where a Miranda warning required. Instead, weighs that fact in prosecutiоn. Impeachment favor of the by postarrest silence not preceded by Miranda warnings has been on allowed the basis that the government has not induced by implicitly assuring silence the defendant that his silence him. against would not be used Fletcher v. Weir, 603, 606-07, 455 490, 494, U.S. 71 L. Ed. 2d 102 S. Ct. (1982). 1312
It
violation,
has been held that
potential Doyle
a
in
in
cases which
balanced,
the
closely
evidence is
should be treated as plain error for
purposes of
Gagliani,
review.
App.
210 Ill.
3d at
of his invocation of his right guilt to remain silent as evidence of dur ing the during argument. During State’s case in chief and opening arguments, prosecutor jurors coopera told defendant “wasn’t real police initially tive” when During closing arguments, interviewed him. prosecutor said that the physical reason there was no evidence against defendant police was because when the interviewed defendant four days attack, after the defendant “stonewalled” them. The prosecutor further commented that up defendant “threw an attitude” police when questioned him and he “built a wall” between himself viewed, and the police. Again, properly these comments are not as a silence, comment on defendant’s but as a comment on the statements police. defendant did make to the Argument Closing During Remarks Imрroper
6. Prosecutor’s misconduct prosecutorial allegations final six Defendant’s clos prosecutor’s analyzing In whether closing argument. relate to latitude wide gives prosecutor improper, law ing argument inferences legitimate on facts and may and he comment argument Enis, Ill. 2d People therefrom. v. may be drawn com may respond to Further, prosecutor N.E.2d of the counsel, the activities denounce ments made defense in the or weaknesses defendant, inconsistencies highlight Sutton, People v. argument. defendant’s prosecu reviewing allegations Finally,
N.E.2d and the misconduct, prosecutor arguments of both torial allegedly entirety and the in their defense counsel must be examined People context. placed proper must be improper remarks *6 (1992). 398, 836, 856, Westbrook, 635 N.E.2d (6)(a) (6)(b) under nonpublishable is in sections and The material Supreme Court Rule 23.
(c) Fear Witness the improperly told prosecutor Defendant next contends the implied the defendant jury testify afraid to and the witnesses were defendant contends responsible Specifically, for that fear. emphasized and contrasted during closing argument prosecutor threatening menacing and “alleged fears” of the witnesses with portrayal of defendant. based on all, upon commented were “alleged
First of fears” fact, they were, in afraid. Rita testimony from the witnesses that questioned her Officer Swan Butler testified she was “scared” when Johnson, a witness to the the incident. Damion about two weeks after testifying in the murder but who was beating originally charged with did not charges testified he voluntar- exchange having dropped, for he did not the incident because ily police tell what he knew about (some also his of the codefendants were want his cousins and friends cousins) if trouble, might happen in and he was afraid of what get happen, might he was afraid police. he talked to When asked what up, too.” A few said, coming and blow us “[sjomebody Johnson back “[‘1they[’]might try to do later, he afraid lines Johnson clarified was me,” Looking prosecutor’s hurt me.” at the something “try proper comments their closing argument entirety putting in its commenting context, purpose prosecutor’s it becomes clear that the explain was to fear to come forward on the evidence of the witnesses’ story now a different why it not inconsistent for them to have here. they initially. impropriety than There was no did Finally, during Johnson’s testimony, prosecutor made this reference to Johnson’s fear and reluctance testify: “listen carefully, [Damion ’cause Johnson’s] his chin down on his chest because his sitting right cousin’s staring daggers there prosecutor at him.” The did commit error when he made the comment that defendant was “staring daggers” at Johnson while Johnsоn testifying. v. People Crabtree, (1987) 162 App. 632, 637, (er Ill. 1323, prosecutor demeanor). ror for to comment on nontestifying defendant’s single, We find this isolated harmless, however, comment to be was instructed that closing arguments made counsel were not evidence and that any argument or statement made by counsel not based on the evidence disregarded. should be This instruction has been held to cure prejudice to the defendant because of the prosecutor’s improper remarks. People Labosette, 236 Ill. App. 3d (6)(f)
The (6)(d), (6)(e), material in sections nonpublishable under Supreme Court Rule 23.
B. Ineffective Assistance of Counsel
Defendant contends his sixth amendment right to the effective
assistance of counsel was violated when
counsel
defense
failed to
mount any
whatsoever,
defense
despite a wealth of evidence at his
disposal. To establish
counsel,
ineffective assistance of
a defendant
must show the conduct of defense
objective
counsel fell below an
and,
standard of reasonableness
but for
perfor
counsel’s deficient
mance, probability
reasonable
exists the outcome of the trial would
have been different.
Strickland v.
Washington,
U.S.
80 L.
Ed. 2d
104 S. Ct.
Defense counsel’s ac
tions must be
trial,
reviewed in the context of the entire
and the
defendant must
presumption
overcome the
complained-of
actions
*7
could be considered trial strategy under the circumstances. Strick
land,
689-90,
694-95,
U.S. at
Specifically,dеfendant contends his counsel was ineffective because (1) (2) he failed to impeach witnesses; two of the occurrence State’s eyewitnesses failed to call two disinterested identify who could not participant, identify leading defendant as a but who could the State’s (3) witnesses, Johnson, participants; Steven Peete and as tendered an (4) improperly instruction; accomplice worded witness failed to attack reliability Butler’s initial identification of defendant from a (5) photo array; jury failed to tender a limiting instruction alleged drug consideration of defendant’s prior sales to the issue of (6) identification; object failed to nearly all instances of pros- ecutorial misconduct. allegation We address each in turn.
1. Failure To Impeach Two the State’s Witnesses Defendant first contends defense counsel failed to impeach Peete, Johnson and both witnesses tо the beating originally charged with the murder but who were testifying exchange for having the charges dropped, complete with their criminal records and specific agreements details of their with the direct, State. On the State revealed Johnson weapons had a conviction and a pending burglary charge and the fact high school,” that “back in Johnson was “adjudicated delinquent as a fight.” [h]e into a Defendant argues defense counsel was ineffective because he did not attempt inform the jury of the record, remainder of Johnson’s criminal which extensive, or the fact the high “fight” school actually felony aggravated Further, battery. defense counsel point failed to out petition Johnson’s probation to revoke was pending at the time of his testimony, and his sentence of discharge conditional was pending when he agreement entered into the with the State. argues strong Johnson had a interest in cooperating with the State because he could up have faced years three in prison on the weapons convic tion and he faced toup year on the pending revocation-of-probation petition. Finally, argues defendant defense counsel should have elicited testimony on adjudication Johnson’s theft because it was an offense directly involving dishonesty. People Spates, See 77 Ill. 2d (1979) (reasonable 568-69 relation between theft and deceit). testimonial
In addition to the failure to inform the jury
totality
of the
background,
Johnson’s criminal
argues
defendant
defense counsel
failed to
testimony concerning
elicit
the details of
agree-
Johnson’s
ment with the State. Specifically, defendant argues Johnson’s cred-
ibility would have been seriously undermined if
jury
had been
aware the State could reinstate
charges against
murder
Johnson if he
failed to testify
“truth,”
spelled
out in
agreement.
As to
Peete,
Steven
argues
defense counsel
failed to
him
prior juvenile
with a
adjudication for felony
action
mob
and failed to
inform the
of the details of
agreement
Peete’s
with the State.
Defendant must
impeaching
show that not
Johnson and Peete in
*8
objectively
done was both
way he claims his counsel should have
error,
that,
prob
there is a reasonable
but for this
unreasonable
different.
the outcome of the trial would have been
Strick
ability that
694,
698,
2068. The deci
land,
at
To his did Douglas’s counsel Douglas, acquitted. codefendant who was trial of agree- and his Johnson’s criminal record bring out the details about his counsel way argues defendant now ment with the State counsel had Therefore, argues, if his have done. should done, there is a reasonable Douglas’s counsel had then done what acquitted too. that defendant would have been probability his trial with compare allowеd to argues Defendant that we are Edwards, Ill. 2d trial, Douglas’s citing People case which (2001), Supreme a recent Illinois Court N.E.2d when one defendant the results of the trials of codefendants compared The defendant appeal. of counsel on claimed ineffective assistance for kidnapping and murder charged aggravated with Edwards was Edwards, 151, 745 195 Ill. 2d at in a box. burying a man alive wooden that his counsel argued in Edwards 1217. The defendant N.E.2d at that the the amount of time failing to seek to limit was ineffective for that a mo pointed out in the courtroom wooden box was of his codefendant. granted in the trial that effect was made and tion to not the motion was failing that to make The court in Edwards found had been because, even if the motion counsel ineffective assistance of box excluded the wooden could not have the defendant granted, The Ed at 1225. Edwards, 195 Ill. 2d entirely. that because Edwards’ сourt further noted wards was an presence of the box convicted, appear that the [did] “it not also Edwards, verdicts here.” jury’s guilty consideration influential at 1225. 2d at reviewing that a proposition to stand for appears Edwards defendant’s conviction as evidence codefendant’s court can use a the results assistance not ineffective strategy counsel’s converse argues regardless. the same would have been Edwards-, as evidence can be used acquittal that a codefendant’s *9 assistance strategy was ineffective counsel’s that defendant’s different. the results would have been defen argued by interpretation give Edwards the decline to
We why trial or Douglas’s happened know what dant. do not We Douglas or simply believed jury may him. The have jury acquitted instigated the beat others who responsible he less than believed was nothing had may have handling of Johnson ing. Douglas’s cоunsel’s say that entirely speculative too acquittal. It is do with if his counsel had used likely acquitted been too defendant would have is not Douglas’s acquittal strategy Douglas’s counsel. the same objectively either strategy counsel’s proof that defendant’s that the result probability or that there is a reasonable unreasonable strategy may have been bet have been different. That another would the case ter, apparently handled lawyer or that another would have incompetent. counsel was differently, proof is not defendant’s trial Vera, at 16. App. N.E.2d 2. Failure To Call Two Disinterested Witnesses counsel’s assistance was argues Defendant further that defense eyewitnesses. he failed to call two disinterested ineffective because generally to call a witness is Again, defense counsel’s decision whether immune as from claims of ineffective strategy a matter of triаl Enis, 194 Ill. 2d People sistance. counsel
However, known to defense subpoena the failure to witnesses exonerat provide of the case or theory could contradict the State’s who Butcher, 240 People v. testimony constitutes ineffective assistance. ing Ill. Leroy to call Hunter defense counsel’s failure
Defendant contends neither assistance because and Toni Leonard amounted to ineffective in the participant as a identify could of these witnesses partici- and Johnson as beating they identify could Peete while both have testimony would pants. argues also Toni Leonard’s Leonard would testimony Butler’s contradicted and weakened Rita beating. At codefendant participant Johnson as a have identified in its the altercation Douglas’s trial, Leonard testified she witnessed Lynntez evening. She stated she saw entirety as she walked home that which argument Shephеrd, with Holt and Jeff Dillon initiate the fight. defendant started testimony contradicts Butler’s Further, Leonard, who neighbor Johnson’s, had been a identified him as participant in the beating. Leonard’s testimony at codefendant Douglas’s trial was consistent with gave statements she police, these statements were tendered to defense during counsel discovery here.
We find that none of which defendant claims Hunter and Leonard would given have would have exonerated defendant. All these witnesses could do is further implicate Johnson and Peete as murder, involved in the a fact of which the already aware because it knew Johnson and Peete had charged been with the murder. Implicating Johnson and Peete Also, would not exonerate defendant. testimony that defendant did beating not start would not contradict theory the State’s that defendant participated in the beat- ing.
The State argues that the failure tо call only witnesses who could further impeach the already disreputable State’s witnesses cannot be ineffective assistance of counsel because it was a matter of trial strategy. As out, the State correctly points it was defendant’s counsel’s strategy during argue trial to that it was too dark on the street that night specific make identifications. There was evidence that the *10 paramedics who arrived at face, the scene could not see the victim’s right him, even when next to because it too Therefore, was dark. it would have been entirely contrary to strategy defendant’s counsel’s to call witnesses who specific claimed to have made identifications.
Essentially, defendant’s argument again entire is his belief that his strategy counsel’s should have been to do more to impeach the State’s witnesses because strategy. that was a better The jury was problems awаre of the with the State’s witnesses. The record shows that all of the witnesses to the beating who were out 2 on street at a.m. morning, on Christmas including those argues should called, have problems. been had Defendant’s argue counsel chose to it night too dark that identifications, to make for which there was evidence, some rather than mount a upon defense based the conflict ing testimony of unreliable witnesses. failing Whether or not to use impeachable witnesses further already State’s impeached mistake, witnesses was a strategy. it was still either “[N] in strategy mistakes nor the attorney fact another with the benefit of hindsight would have handled the differently case indicates the trial lawyer incompetent.” Vera, 138, App. 3d at 660 at N.E.2d 16. (B)(3) (B)(6)
The material in sections through nonpublishable under Supreme Court Rule 23. Hearsay Admission of Evidence
C. permitted court erred it Defendant next contends the trial when hearsay testimony regarding Heather the introduction of Vinson’s Douglas overheard and an conversation she between man, where she not attribute the statements to a unidentified could particular and admissible as speaker where the was not either or tacit express an admission. testimony regarding defined as an out-of-court state
Hearsay is
People Cloutier,
v.
ment offered for the truth of the matter asserted.
930,
Hearsay
is generally
Ill. 2d
N.E.2d
exception
excluding
inadmissible
it falls under
rule
unless
an
it.
Cloutier,
at
exception
178 Ill. 2d
Vinson around the night testified called her 3 a.m. of the her beating pick up and asked him at his house. she arrived When house, Douglas got his into the front seat and a man she did not recognize following exchange into backseat. Thе between the prosecutor and then objection: Vinson occurred over defense counsel’s “Q. they say they did talking What were back and forth had *** you
happened pick up? before went to them They guy
A. some bloody. beat Q. they police lights When saw all the cars there on the police cars, they did say what about the man? guy
A. That the must be dead. Q. you talking Do remember them about who the man had been comings beaten his goings? Oh, something why
A. he—T said about don’t know he came something back’ or T can’t believehe back’ or came that effect.” speak Vinson heard men did not exactly both recall said “who cross-examination, what words.” On defense counsel asked Vinson whether Douglas “they” used the word “I” or in describing the beat- ” *** answered, ing, and she “I ‘they.’ can’t remember I think he said Vinson also could not recall spoke what words the unidentified man *11 during they dropped conversation. testified after off Vinson house, unidentified man at Doug- codefendant Thеodis White’s she and las went to his She Douglas phone house. then make call heard a if ask “Theo was home.” explained
The trial reasoning court its when it defen- overruled dant’s objection to the admission the hearsay testimony: of
“I theory evidence, understand State’s to be and the at least circumstantially objection, permit analyzing this purposes
for the [djefendant person was the other that the possible conclusion Vinson, it Ms. is Bobby Douglas in the vehicle with than Joe by were admissible my that the statements elicited State view [djefendant adopted by the by the or either as a statement [djefendant’s Bobby Douglas.” Joe silence made reasoning, the trial court allowed Vinson’s
According to this may A tacit admission. tacit admission hearsay express as either an or hearsay rule if sufficient evidence exception as an be admissible circumstances, that, totality a light of the supports finding inсriminating state faced with an defendant remained silent when v. Pow ment, which, untrue, normally People call for a denial. if would ell, 703 N.E.2d App. 301 Ill. 3d Johnson, Vinson, and Cleo White There was evidence from Douglas when person the other in the car with that defendant was did not have to be made. That evidence incriminating statements were does not A item of evidence particular conclusive for it to be admitted. People admitted. a reasonable doubt to be proved beyond have to be Davis, App. 248 Ill. in is prove proposition any tendency if it has
Evidence is relevant at 1386. The Davis, sue. car and the statements made Vinson entitled to consider by defendant. tacitly or made they expressly were whether Sufficiency D. of the Evidence (D) Supreme nonpublishable under in section The material Rule 23. Court
III. CONCLUSION conviction. affirm defendant’s We
Affirmed.
MYERSCOUGH, J., concurs. KNECHT, dissenting:
JUSTICE respectfully
I dissent. he did not be reversed conviction should Defendant’s hearsay damaging assistance counsеl receive effective ineffec- his counsel was contends improperly admitted. (1) wit- occurrence two of the State’s tive because he failed not could (2) who eyewitnesses call two disinterested nesses and State’s identify the who could participant, as a identify Johnson, participants. witnesses, Peete and leading
735
fell
an
counsel
below
show
of defense
Defendant must
the conduct
and,
deficient
but for counsel’s
objective
of reasonableness
standard
the trial
outcome of
reasonable
exists the
performance,
probability
a
Strickland,
694,
On the State the the revealed school,” burglary charge high and the that “back in Johnson was fact “adjudicated delinquent fight.” [h]e as a because into a Defense jury counsel ineffective he did not to inform the attempt because of high the remainder of or the fact the Johnson’s criminal record battery. “fight” actually felony aggravated school Defense point petition probation to revoke counsel also failed out Johnson’s to was pending at the time of his and his sentence of discharge agree he into the pending conditional when entered strong ment cooperating with the State. Johnson had a interest in up years prison with because he faced three the State could have to up on the weapons year pending the conviction and he faced to a on have revocation-of-probation petition. Defense counsel should elicited adjudication it was an of testimony regarding Johnson’s theft 202-03, involving dishonesty. Spates, fense See Ill. 2d at directly (reasonable theft and testimonial N.E.2d at relation bеtween deceit). totality the of the jury
In addition to failure to inform to background, Johnson’s criminal defense counsel failed elicit with testimony concerning agreement the details of Johnson’s I credibility seriously State. conclude Johnson’s would have been jury undermined if the had aware the could reinstate been State charges “truth,” against murder Johnson if he to testify failed spelled agreement. Peete, out As to defense Steven counsel failed prior juvenile adjudication him with a for felony mob action the agreement and failed inform of the details of Peete’s with the State.
To support
assistance,
his claim of
points
ineffective
defendant
Douglas,
trial of
acquitted
who was
degree
first
Shepherd.
case,
murder in the death of
supreme
In a recent
court
compared the results of
trials
of codefendants
one
when
claimed
Edwards,
ineffective
on appeal.
assistance
counsel
Ill.
2d at
Edwards,
At codefendant Douglas’s testimony regarding Johnson’s convictions, prior pending charges, to vulnerability additional prison impeachment time was admitted evidence over State’s objection. addition, trial, In in Douglas’s codefendant the court al- lowed copy agreement defense cоunsel to tender a of Johnson’s with exhibit, the State testimony as an elicit that trial Johnson’s had to the story attorney originally prosecutors match his told order to for him avoid his own murder tell prosecution, specifically “truth” in case it was in the agree- before defined ment and Johnson had testify accordingly to or the State could charges against Douglas reinstate murder him. Codefendant was found (DNA) despite not guilty, deoxyribonucleic existence acid blood of clothing Shepherd, evidence on his the DNA matched found of physical victim. No linked defendant to Shepherd’s evidence death. impeach generally The decision whether to a witness considered 261-62, a strategy. Ward, matter of trial Ill. 2d at See N.E.2d (decisions at 127 on evidence of present what to are matters trial strategy). may Defense counsel in the case been have unaware of of Douglas’s impeachment successful Johnson. However, impeachment defense had the same evidence at his counsel counsel, disposal Douglas’s as did codefendant but he not even at did testify tempt impeach Doug Johnson. Peete did not at codefendant point comparison, las’s do not defense trial so we have counsel impeach did his criminal attempt prior not even Peete with record or the State. totality agreement his with the strategy
There was no trial in defense counsel’s total failure even attempt witnesses, the State’s two main especially considering the lack of physical against evidence defendant. The cred- ibility of the State’s jury’s witnesses was the critical issue in the guilt determination of defendant’s or innocence. The successful compelling introduction of impeachment evidence at codefendant Douglas’s that, trial leads me to conclude but for defense counsel’s Peete, failure to impeach Johnson and there prob- is a reasonable ability the outcome of defendant’s trial would have been different.
Defense counsel’s failure to
eyewitnesses
call two disinterested
was even more egregious. Defense counsel’s decision whether to call a
witness is generally
strategy
a matter of trial
and immune from claims
Enis,
ineffective assistance.
Defense counsel’s failure to call Leroy Hunter and Toni Leonard amounted to ineffective assistance because neither of these witnesses identify could defendant as a participant in the beating they while could identify both Peetе and Johnson as participants. Hunter originally contacted the police and identified Peete as participant. Hunter also testified at codefendant Douglas’s trial that he thought Peete was a participant but was not “swearing” comfortable identification. In trial, codefendant Douglas’s taped Hunter’s state- police, ment to stated, which he “I do know Joe Posey and this Peete,” was introduced as substantive evidence. Hunter’s identifica- *14 tion of Peete was bolstered because Hunter neighbor, knew Peete as a Hunter, and who was not saddled with prior convictions, criminal a far more credible witness than the State’s witnesses. Hunter’s testimony would virtually have destroyed Peete’s credibility and contradicted the State’s version of the facts surrounding beating. the
Toni Leonard’s testimony would have contradicted and weakened Rita Butler’s testimony and Leonard would have identified Johnson as participant beating. the At trial, codefendant Douglas’s Leonard testified she witnessed the altercation in its entirety as she walked home that evening. She Lynntez saw Holt and Jeff Dillon initiate the argument Shepherd, with which contradicts Butler’s contention that defendant fight. Further, Leonard, started the who had been a neighbor Johnson’s, of identified him participant as a in the beating. Leonard’s Douglas’s codefendant trial was consistent with gave statements she police, to and these statements were tendered to defense counsel during discovery in the case. to these witnesses for may have chosen not call
Defense counsel reasons, drug pos- or Hunter’s such as Leonard’s admitted use various However, neighbor. testify he was Peete’s sible reluctance to advantage calling these witnesses there was no risk and substantial could Hunter, cooperate, if did not defense counsel testify. As to he police as substantive evidence presented taped his statement have 10.1(c)(2)(C) of of Procedure section of Code Criminal under 115— 10.1(c)(2)(C)(West 1998)). (725 This would have ILCS 5/115 — theory. as well as contradicted the State’s credibility eviscerated the witness, Rita Toni Leonard a witness as the State’s was as credible Butler, Butler, police knew drug problem. who also admitted a who record, may have had drugs and who had a criminal was involved Leonard, stood testify for the State. who cooperate incentive to position in a than only beating, from the far better a few feet beating identify participants. Butler to view hardly and Leonard could Defense counsel’s failure to call Hunter strategy in this case that could strategy. trial I can fathom no be called testimony. Doug- At codefendant potential of their overcome the value the State’s wit- trial, called to discredit las’s these witnessеs were that, of facts. I conclude and to contradict the State’s version nesses witnesses, is a these there for counsel’s failure to call defense may have been the outcome of defendant’s trial probability reasonable different. and Johnson and his failure to Peete
Defense counsel’s amount and Leonard as disinterested witnesses failure to call Hunter of his sixth deprived of counsel and to ineffective assistance counsel and a fair trial. right amendment it permitted court erred when Defendant also contends the trial regarding the conversation she hearsay testimony Heather Vinson’s an uniden- Douglas, boyfriend, her overheard between identify person in the back- could not person. third Vinson tified words to either vehicle, specific she attribute of her nor could seat man. hearsay objection to the introduction Vinson’s
Defense counsel’s
by the trial court:
testimony was overruled
evidence, at least
theory
and the
the State’s
to be
“I understand
circumstantially permit
objection, to
analyzing this
purposes
for
other
person
[defendant
that the
possible
conclusion
Vinson, and it is
Ms.
in the vehicle with
Bobby
Douglas
Joe
than
were admissible
by the State
the statements elicited
my view that
by the
by
adopted
or
[defendant
either as a statement
Bobby Douglas.”
Joe
made
silence
[d]efendant’s
state-
an out-of-court
testimony regarding
Hearsay
defined as
*15
2d
Cloutier, 178 Ill.
asserted.
truth of the matter
ment offered for the
it
unless
inadmissible
Hearsay
generally
154,
at 936.
at
687 N.E.2d
at
154, 687 N.E.2d
Cloutier,
2d at
178 Ill.
exception.
falls under an
the introduction
permits
rule
hearsay
to the
exception
936. One
by the
admission
if
constitutes an
hearsay
it
otherwise inadmissible
535-36,
3d at
Goswami,
App.
237 Ill.
tacit.
defendant,
express
either
or
For defendant. to the partiсular statement ness must be able to attribute defendant,” any statement identify testimony “fail[s] If of an overheard the witness’s recollection testimony regarding Har People v. express an admission. conversation does not constitute (1984). 734, Vinson bold, 464 N.E.2d App. 124 Ill. to him. The statement identify defendant or attribute failed admission. express as an admitting in her trial court erred may be accusative statement following A defendant’s silence an to the exception as an considered a tacit admission and admissible 535, at 1023. Goswami, at 604 N.E.2d hearsay App. rule. 237 Ill. (1) must hear the defendant satisfy general Three this rule: elements (2) op had an statement; the defendant must have the accusative (3) silent; the accusation was and remained portunity reply deny be to person innocent would such that the natural reaction an 1023, 536, citing People Goswami, App. it. 3d at In criminal McCain, v. 29 Ill. 2d rule been restricted and cases, of the tacit-admission has application only when the caution and “such evidence should be received with clearly shown to ex it admissible are upon conditions which becomes quoting People Powell, Ill. 3d at 703 N.E.2d at ist.” 320, 322-23, 223 N.E.2d 36 Ill. 2d Aughinbaugh, rule has been I have found no case in which the tacit-admission party identified as a against used a defendant who was not even Absent admission occurred. alleged in which the tacit conversation car, the other in her positive person identification of the third Vinson’s sufficiently identify defendant by the does not presented evidence State party. as the third scene of the flee the
Damion Johnson testified he saw defendant in a Thus, car. Douglas’s attack However, insuf- there is point night. that Douglas car with at some person third Vinson’s ficient evidence to show defendant was the fine of events establishing a time night. car that There is no evidence scene, phone than the the assailants fled the other night after testimony of Cleo White presented by records the State. Even the Douglas from contradicts regarding the time she received calls times listed on telephone records. There is no evidence conclusive as to defendant’s whereabouts after he fled the scene in Douglas’s car until Cleo White found him in her son’s room. According White, to Cleo *16 defendant told her Douglas dropped him Douglas off. Whether dropped they defendant off after fled the scene in Douglas’s car or whether Douglas Vinson and dropped defendant off in Vinson’s car remains unclear. 12With other originally codefendants charged crime, in this there were 10 other men who could have been in Vinson’s car and car- ried on a conversation Douglas with “they beat guy bloody.” some
The State failed sufficient evidence to show defendant was the unidentified man in Vinson’s car. The trial court errеd in admitting hearsay evidence as either an express or tacit admis- that, sion. The argues State even if the inadmissible, evidence was evidence of guilt defendant’s was overwhelming error was light harmless. In of defense counsel’s ineffective assistance and the physical lack of against defendant, evidence the evidence was not overwhelming and this seriously error affected right defendant’s to a fair trial.
Defendant also alleges 12 instances prosecutorial misconduct. Two allegations defendant’s are prosecutor’s well-founded: improper use of prearrest defendant’s silence improper comments concerning witness fear. These instances prosecutorial misconduct alone likely would not result in deprivation right of defendant’s to a trial, fair them, so while I condemn they do not merit further discus- sion.
Defendant’s conviction should be reversed and the case should be remanded for a new trial. al., Plaintiffs-Appellants, BANK,
CHARLES HARDER et v. FIRST CAPITAL Defendant-Appellee (Emergency Damage al., Control of Central Illinois et
Defendants). Fourth District No. 4—00—1005
Opinion July filed 2002.