People v. Tucker , 2017 IL App (5th) 130576 ( 2017 )

NOTICE
2017 IL App (5th) 130576
Decision filed 05/30/17. The
text of this decision may be NO. 5-13-0576
changed or corrected prior to
the filing of a Peti ion for
Rehearing or the disposition of IN THE
the same.
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 02-CF-212
)
JOE C. TUCKER, JR., ) Honorable
) David K. Overstreet,
Defendant-Appellant. ) Judge, presiding.
________________________________________________________________________
JUSTICE CATES delivered the judgment of the court, with opinion.
Justices Chapman and Barberis * concurred in the judgment and opinion.
OPINION
¶1 The defendant, Joe C. Tucker, Jr., filed a pro se petition pursuant to the Post-
Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). Appointed counsel filed
an amended postconviction petition, alleging ineffective assistance of trial and appellate
counsel. The State filed a motion to dismiss the amended petition, and the motion was
granted by the trial court. The defendant filed a timely appeal, asserting that the trial
court erred in dismissing his amended petition without a third-stage evidentiary hearing,
*
Justice Stewart was originally assigned to participate in this case. Justice Barberis was substituted on the
panel subsequent to Justice Stewart’s retirement and has read the briefs and listened to the recording of oral
argument.
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when the defendant had alleged sufficient facts to make a substantial showing that his
constitutional rights had been violated. For the reasons that follow, we reverse the order
of dismissal and remand the matter for an evidentiary hearing.
¶2 BACKGROUND
¶3 This appeal is taken from the circuit court’s decision to dismiss the defendant’s
amended postconviction petition at the second stage of postconviction proceedings. The
facts of this case are set forth in this court’s disposition of the defendant’s direct appeal.
People v. Tucker, No. 5-06-0484 (2011) (unpublished order under Supreme Court Rule
23). Accordingly, we will restate only those facts relevant to our resolution of the issues
raised in this appeal.
¶4 The evidence at trial established that on the morning of May 6, 1988, Jeff
Reynolds, Jana’s husband, returned home from his job on the night shift and found Jana
lying on the bed covered in blood. She had been stabbed multiple times. A thermal
underwear bottom and gray panties were hanging from her left ankle, and her thermal top
had been pushed up. She was dead. Her purse was on the living room floor, with its
contents dumped out.
¶5 During the investigation, the police interviewed a number of individuals, including
Albert McDaniels and the defendant. Albert McDaniels went to the police station and
voluntarily gave samples of hair, pubic hair, saliva, and blood. A forensic technician
compared small hair fragments found on Jana’s bed sheet to McDaniels’ head and pubic
hair standards, and determined that there was no DNA match. The defendant also
provided samples of hair from his head. A forensic scientist compared the samples taken
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from the defendant’s head with the hair fragments recovered from the crime scene. The
forensic scientist testified that the defendant’s hair sample did not match the hair
fragments at the scene. The scientist further stated that he did not have hair from the
defendant’s other body parts to compare with the hair fragments obtained from the crime
scene, and because of that, the defendant could not be excluded as a suspect. By
December 1988, the police had followed more than 300 leads, but the case remained
open.
¶6 In August 2001, the Mount Vernon police department began to reexamine the
physical evidence found at the scene of Jana’s murder. Using an alternate light source
that was not available during the original investigation, a detective found previously
undiscovered stains on the thermal bottoms and panties Jana was wearing at the time of
her death. Cellmark, a private laboratory, determined that the stains on the thermal
bottoms and panties were from seminal fluid. Cellmark developed a DNA profile from
the stains and found that the DNA profile was from an unknown male source. The
unknown DNA profile was compared to a DNA profile from McDaniels, and it did not
match. No physical evidence linking McDaniels to the inside of Jana’s house was found.
¶7 Cellmark also created a DNA profile of the defendant, using the hair samples he
had provided to the police in 1988. Cellmark found that the defendant’s DNA matched
the stains on Jana’s thermal bottoms and panties. Investigators obtained a current sample
of the defendant’s DNA. Cellmark tested that sample and confirmed that the DNA
sequences were the same. The defendant was arrested and subsequently charged with
Jana’s murder.
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¶8 In November 2002, the State’s Attorney telephoned police investigators and
advised that he had received a letter from a prisoner named Robin Gecht. In the letter,
Gecht claimed to have information about Jana’s death. Investigators interviewed Gecht,
who stated that the defendant had approached him to help prepare a defense for the
defendant’s case. Gecht told the defendant to write out his involvement with the case, and
he wrote out four statements, providing more details in each successive version.
Subsequently, the police obtained the statements from Gecht.
¶9 During trial, Robin Gecht testified that he had been convicted of aggravated
battery, aggravated kidnapping, rape, deviant sexual assault, and attempted murder.
Gecht admitted that he sent a letter to the State’s Attorney stating that he had information
about Jana’s murder and suggesting that they could work out an agreement helpful to all
concerned. Gecht testified that no one from the prosecution or law enforcement had
offered him a deal in exchange for his testimony. Gecht stated that the defendant
admitted he entered Jana’s house with the intent of raping her and burglarizing the home,
and that he killed her. Gecht testified that he asked the defendant to write down what had
occurred, and that he asked the defendant to rewrite the statement four times, including
more details each time. Gecht stated that he helped the defendant with one statement,
constructing a theory of defense that his friend, McDaniels, had killed Jana, while he
observed. Gecht acknowledged that he had seen four pieces of discovery.
¶ 10 Gecht denied tricking the defendant into writing the statements. During cross-
examination by the defendant’s counsel, the following occurred:
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“MR. BURKE [defense counsel]: Did you trick [the defendant] into writing
these statements?
GECHT: No, sir.
MR. BURKE: Do you remember talking with me and Kevin McClain back
in November?
GECHT: Yes, sir.
MR. BURKE: No other questions, Your Honor.”
¶ 11 Kevin McClain testified that he was a private investigator. Defense counsel asked
McClain if Gecht said that he had tricked the defendant into writing the signed
statements. The State objected on hearsay grounds because defense counsel had not asked
Gecht any questions about the content of his conversation with McClain. The court
sustained the objection.
¶ 12 Albert McDaniels testified that on May 5 or 6, 1988, he was near Jana’s house
because he was going to rob the house next door. McDaniels stated that he walked by
Jana’s house and looked in the window. He asserted that he had difficulty remembering
anything from that time period. Defense counsel handed McDaniels a copy of a statement
he had given to the police on May 11, 1988. McDaniels was asked if that was his
signature on the bottom of each page, and he answered in the affirmative. When asked if
it was his handwriting, he stated that he did not write it. Defense counsel asked that the
statement be allowed into evidence as a past recollection recorded. The State objected on
the ground that no foundation had been laid, and the trial court sustained the objection.
Defense counsel continued asking McDaniels questions about May 5 or 6, 1988, and he
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claimed not to remember. Defense counsel asked that McDaniels be made a court’s
witness. The State objected on the ground that he could not be declared a hostile witness
until he showed some hostility. The court stated that it would not allow McDaniels to be
questioned as a court’s witness because he had not shown any hostility. Defense counsel
then gave McDaniels a transcript from his testimony in July 1989, to refresh his memory.
McDaniels stated that reviewing his testimony only refreshed his memory somewhat, but
that the prior testimony indicated that he and an individual named “T.C.” had a
discussion about robbing a “dope house.” McDaniels implied to T.C. that he and Jana had
had an affair. McDaniels told T.C. the best time to go to Jana’s house if he wanted to
have sex with her was between 11 p.m. and 7 a.m. because her husband would be at
work. McDaniels denied killing Jana.
¶ 13 Defense counsel requested again that McDaniels be declared a hostile witness. The
State objected on the ground that McDaniels was answering the questions. The court
replied:
“Mr. Burke, you may—you may question this [witness] as if he’s being
cross examined. There’s a proper way that you need to ask someone
questions; however, and you’re not doing it the proper way. So you need to
move on and do it the correct way. But you may cross examine him at this
time.”
¶ 14 McDaniels denied that he stopped by Jana’s house and looked in the living room
window while the defendant looked in the kitchen window. He also denied telling the
defendant that they could go into Jana’s house, have sex with her, and look for money for
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drugs.
¶ 15 Alva Busch testified that he had worked for the Illinois State Police as a crime
scene investigator for 24 years. In 2001, he retired and opened an agency that reviewed
criminal cases. Defense counsel showed Busch a crime scene drawing generated by the
Illinois State Police. Defense counsel told Busch that the defendant gave a statement that
he looked in the kitchen window and saw Jana lying on the couch. Defense counsel asked
Busch to draw a line from the kitchen window to the couch. The State objected on the
ground that the drawing was not to scale. Defense counsel argued that it was just
demonstrative. The State argued that the defense was trying to use a diagram that was not
to scale to establish that it was impossible to see Jana lying on the couch from the kitchen
window. The trial court sustained the objection.
¶ 16 The defendant took the stand, and defense counsel asked him about his
convictions for aggravated battery and burglary. The defendant stated that one night
while he was out, he went to a gas station for a soda, but had no money. When he told the
cashier that he planned to rob him, the cashier laughed, and he threw the soda at the
cashier.
¶ 17 The defendant testified that he and Jana worked together at a Wendy’s restaurant
in 1982 or 1983 and that they began a sexual relationship in about 1983. He testified that
on May 5, 1988, he borrowed his sister’s car to go to Jana’s house. He parked about two
blocks away and walked to her house. He testified that as he approached her house,
McDaniels stepped out from beside it, claiming to have been just walking around. They
both went to the door, and he introduced McDaniels to Jana. They spent about 15 minutes
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talking in the living room. He stated that he and Jana went into her bedroom and started
to engage in sexual intercourse. McDaniels came into the bedroom and asked if “it was a
party,” and Jana said “no.” He stated that McDaniels left the room and then returned,
saying “Fuck this shit.” The defendant testified, “I had already came at the time and I was
getting up and then he just ran into the bedroom and started grabbing on her, pulling on
her.” The defendant pushed McDaniels off Jana. The defendant testified that McDaniels
then pulled a knife, stabbed Jana, and threatened to kill him. The defendant ran away. He
claimed to have seen McDaniels later that morning, and McDaniels threatened to kill him
if he said anything. The defendant testified that he did not say anything to the police
because he was afraid.
¶ 18 The defendant testified that he met Gecht in prison. The defendant stated that he
had questions he wanted his attorney to ask some potential witnesses. Because his
handwriting was poor, he asked Gecht to type the questions for him. He testified that
Gecht told him that he could help with his defense. The defendant admitted writing the
statements that the State offered into evidence and said that he had written them for
Gecht to help him with his defense. The defendant testified that after he wrote the first
statement, Gecht told him to write another one with more detail. He stated that he wrote
the statements because his attorney had told him that the police knew that McDaniels was
at the scene, but could not place him in the house. He testified that Gecht told him to
write a statement putting himself in McDaniels’ place to show the police how they
missed McDaniels. He stated that in writing the statements, he took everything he knew
about the case, and everything he learned from discovery, and tried to rebuild a crime
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scene.
¶ 19 The jury found the defendant guilty of all 10 counts of first degree murder.
Following the sentencing hearing, the trial court stated that the defendant would be
sentenced on the most serious charge, the offense of first degree murder in that he,
without lawful justification and with the intent to kill Jana, stabbed her with a sharp
instrument, thereby causing her death, and the offense was accompanied by exceptionally
brutal or heinous behavior indicative of wanton cruelty (count VI). The court then
sentenced the defendant to natural life imprisonment on count VI, and vacated the other
convictions.
¶ 20 The defendant filed a motion to reconsider sentence and a motion for a new trial,
both of which were denied. As previously noted, the defendant’s conviction and sentence
were affirmed on appeal. People v. Tucker, No. 5-06-0484 (2011) (unpublished order
under Supreme Court Rule 23). The defendant then filed a pro se petition for relief from
judgment pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-
1401(f) (West 2010)). The circuit court sua sponte dismissed the petition, and the
defendant appealed. This court affirmed the dismissal. People v. Tucker, 2012 IL App
(5th) 100190-U.
¶ 21 The defendant then filed a pro se postconviction petition. Appointed counsel filed
an amended postconviction petition alleging ineffective assistance of trial and appellate
counsel. The State filed a motion to dismiss the defendant’s postconviction petition,
arguing that the defendant failed to meet the Strickland standard for ineffective assistance
of counsel. Strickland v. Washington, 466 U.S. 668 (1984). The court granted the State’s
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motion to dismiss. This appeal followed.
¶ 22 ANALYSIS
¶ 23 On appeal, the defendant contends that the trial court erred in dismissing his
postconviction petition at the second stage of the proceedings. The defendant argues that
the errors made by trial counsel so permeated his trial that it is impossible to conclude
that the allegations in the amended petition, when liberally construed in light of the trial
record, failed to make a substantial showing of a constitutional violation.
¶ 24 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012))
provides a process through which a defendant can assert that his conviction resulted from
a substantial deprivation of his rights under the United States Constitution or the Illinois
Constitution. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A postconviction
petition is a collateral attack on a prior conviction, the purpose of which is to allow
inquiry into constitutional issues related to the conviction or sentence that were not, and
could not have been, determined on direct appeal. People v. Barrow, 195 Ill. 2d 506, 519
(2001). Thus, issues that were raised and decided on direct appeal are barred under the
principle of res judicata, and issues that could have been presented on direct appeal, but
were not, are considered waived. Barrow, 195 Ill. 2d at 519.
¶ 25 Postconviction proceedings may potentially proceed through three stages. People
v. Pendleton, 223 Ill. 2d 458, 471-72 (2006). At the first stage, the trial court may
summarily dismiss a petition if it finds that the petition is frivolous and patently without
merit. Pendleton, 223 Ill. 2d at 472. At the second stage, counsel may be appointed for an
indigent defendant. Pendleton, 223 Ill. 2d at 472. Postconviction counsel’s obligations
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under Illinois Supreme Court Rule 651(c) include (1) consulting with the defendant to
ascertain his contentions of deprivation of constitutional rights; (2) examining the record
of the trial proceedings; and (3) amending the petition, if necessary, to ensure that the
defendant’s contentions are adequately presented. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013);
Pendleton, 223 Ill. 2d at 472. At the second stage, it is the defendant’s burden to make a
substantial showing of a constitutional violation, and the State may move to dismiss the
petition for failure to do so. Pendleton, 223 Ill. 2d at 472-73. In determining whether the
defendant has made a substantial showing of a constitutional violation, all well-pleaded
facts in the petition, not positively rebutted by the record, are to be taken as true.
Pendleton, 223 Ill. 2d at 473. Where, as here, the trial court dismisses the postconviction
petition on the State’s motion, without an evidentiary hearing, the trial court’s decision is
reviewed de novo. Pendleton, 223 Ill. 2d at 473.
¶ 26 A defendant has a right to effective assistance of counsel under the United States
Constitution (U.S. Const., amend. VI) and the Illinois Constitution (Ill. Const. 1970, art.
I, § 8). People v. Leeper, 317 Ill. App. 3d 475, 481 (2000). A defendant alleging a
violation of his right to effective assistance of counsel must generally meet the two-
pronged test set out in Strickland, 466 U.S. at 687. People v. Albanese, 104 Ill. 2d 504,
525-27 (1984). Under Strickland, the defendant must allege facts demonstrating (1) that
counsel’s performance fell below an objective standard of reasonableness and (2) that
counsel’s deficient performance so prejudiced the defendant that he was denied a fair
trial. Strickland, 466 U.S. at 687-88; People v. Nowicki, 385 Ill. App. 3d 53, 81 (2008). In
establishing substandard performance, the defendant must overcome the strong
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presumption that his attorney’s actions were the product of sound trial strategy and not
incompetence. Nowicki, 385 Ill. App. 3d at 81. A defendant is entitled to competent, not
perfect, representation, and mistakes in trial strategy or judgment will not, of themselves,
render the representation ineffective. Nowicki, 385 Ill. App. 3d at 82. In establishing the
prejudice prong, the defendant must show that there is a reasonable probability that, but
for his attorney’s deficient performance, the result of the proceedings would have been
different. Barrow, 195 Ill. 2d at 520. A reasonable probability is one that sufficiently
undermines confidence in the outcome of the proceeding. Barrow, 195 Ill. 2d at 520.
¶ 27 To prevail on a claim of ineffective assistance, both prongs of Strickland must be
satisfied. Coleman, 183 Ill. 2d at 397. Thus, a court may resolve an ineffective assistance
claim based upon only the prejudice component because a lack of prejudice renders
irrelevant the issue of counsel’s performance. Coleman, 183 Ill. 2d at 397-98.
¶ 28 On appeal, the defendant contends that his trial counsel’s errors so permeated
every phase of the trial that there can be no confidence in the jury’s verdict. Initially, the
defendant notes that the State’s evidence, particularly the DNA evidence and the
defendant’s incriminating written statements, led his counsel to pursue a three-part
defense strategy: (1) the defendant had been having an “on again off again affair” with
Jana, and that he had consensual sex with her on the night of her murder; (2) the actual
killer was Albert McDaniels; and (3) Gecht had tricked the defendant into writing the
incriminating statements. The defendant concedes that his counsel successfully presented
evidence that the defendant had consensual sex with Jana, through the defendant’s own
trial testimony. The defendant asserts, however, that his counsel failed to present
12
evidence in support of the remaining theories of defense due to counsel’s lack of
understanding of basic rules of evidence, violations of pretrial rulings, and incompetence
in trial advocacy.
¶ 29 Specifically, the defendant alleges that his counsel (1) violated the court’s order
granting a motion in limine limiting the introduction of Gecht’s criminal history, (2)
disregarded evidentiary rules in describing the details of his prior conviction, (3) failed to
lay a proper foundation to impeach Gecht and establish that Gecht tricked him into
writing the incriminating statement, (4) failed to attempt to perfect impeachment of
McDaniels with any of McDaniels’ inconsistent statements; (5) failed to know the rules
of evidence when introducing a diagram, and (6) made an improper closing argument in
which counsel focused on his own performance, discussed an offensive interpretation of
the evidence, and referenced prejudicial information. The defendant asserts that the
substandard performance left him unable to present his theory of the case and prejudiced
him to the point that he suffered a constitutional deprivation of his right to counsel. The
defendant also alleges ineffective assistance of appellate counsel. We will consider each
contention in turn.
¶ 30 Initially, the defendant argues that counsel’s lack of courtroom awareness was
evident during the pretrial hearing when counsel offended the trial court by suggesting
that defense motions were routinely denied when the State offered an objection and that
the defense motions were granted only when the State agreed to them. We note that this
exchange between counsel and the trial court occurred outside the presence of the jury
and thus could not have biased the jurors. People v. Young, 248 Ill. App. 3d 491, 502
13
(1993). The defendant has not alleged nor argued that the trial judge developed a bias
against the defendant as a result of this exchange. In fact, the defendant concedes that this
instance alone would not be sufficient to establish ineffective assistance of counsel.
Instead, he contends that this conduct foreshadowed counsel’s refusal to comply with
pretrial orders and his lack of understanding of the rules of evidence.
¶ 31 Next, the defendant asserts that his counsel violated an order in limine prohibiting
the defense from discussing the details of one of Robin Gecht’s criminal convictions. The
defendant notes that during opening statements, defense counsel told the jury that Gecht
was serving time for attempted murder and deviant sexual assault, and then stated: “we’ll
get into the particulars of that deviant sexual assault.” The State objected that counsel’s
comment violated the order in limine, and the objection was sustained. During a sidebar,
the trial court admonished defense counsel that he could ask about Gecht’s prior
conviction, but he could not delve into the particulars of that case.
¶ 32 A witness may be impeached on cross-examination with prior convictions, but the
details of the nature of the crime are irrelevant and prejudicial surplusage. People v.
Arroyo, 339 Ill. App. 3d 137, 151-52 (2003). In this case, defense counsel’s comment,
during opening statement, that he would reveal the details of Gecht’s deviant sexual
assault conviction, suggests that counsel either did not understand the order in limine or
did not plan to abide by it. In our view, this incident, standing by itself, does not satisfy
the prejudice prong of Strickland. In other words, the defendant cannot show that but for
defense counsel’s comment, there is a reasonable probability that the result of the trial
would have been different.
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¶ 33 The defendant also asserts that his counsel disregarded the evidentiary rule
restricting the admission of details underlying a prior conviction of a defendant. Prior to
commencement of opening statements, defense counsel had not yet received a ruling on a
motion in limine, which included a paragraph seeking to prohibit the State from referring
to the defendant’s prior bad acts and prior convictions. During a conference outside the
presence of the jury, and just prior to opening statements, the State indicated that it did
not intend to refer to the defendant’s prior convictions during opening statements because
the motion had not yet been ruled upon. During its opening statement, the State refrained
from any comment on the defendant’s prior convictions. Curiously, defense counsel,
during his opening statement, proceeded to inform the jury that the defendant had been
convicted of a crime in Champaign. He stated that the defendant:
“was in a convenience store. He got a Coke out of the freezer or out of the
refrigerator, took it up to the counter, didn’t have any money. He told the
guy behind the counter that he was going to rob him. The guy behind the
counter laughed. Joe hit him with the Coke can, then the two guys in the
store jumped over the counter, held Joe down until the police got there. So
Joe ended up with a felony conviction and went to prison. While he was out
of prison and on parole, these charges were brought up and so a parole hold
was put on him and he was put back in prison. While he was in prison,
that’s when he hooked up with Robin Gecht.”
¶ 34 The defendant later testified in his own defense. Responding to questions by his
own counsel, the defendant explained that he was arrested for a parole violation and
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subsequently sent to prison at Menard, where he met Robin Gecht. The defendant asserts
that defense counsel’s errors during his opening statements, and during his questioning of
the defendant, unfairly prejudiced the defense because the jury was needlessly given
some details of a prior conviction, which included violence, and was permitted to
speculate as to the extent of the injury caused when the clerk was struck with the Coke
can.
¶ 35 Our courts have voiced concerns that providing proof of an accused’s “penchant
for criminal behavior would control the decision-making process, resulting in convictions
based upon past guilt instead of current evidence.” People v. Fletcher, 335 Ill. App. 3d
447, 449 (2002). “While evidence of prior criminality cannot be admitted for the purpose
of proving criminal propensity, it is allowed to be used, on occasion, after an accused
testifies.” Fletcher, 335 Ill. App. 3d at 449. Whether a prior conviction can be used
against the defendant requires a process of balancing its probative value as impeachment
against the unfair prejudice it might impose. People v. Montgomery, 47 Ill. 2d 510, 518-
19 (1971). Simply put, the details of the defendant’s actions as described by his counsel
during opening statement would not have been admissible under any interpretation of
Montgomery, unless the defendant took the stand and testified to same. In this case, the
defendant admitted to being on parole and then returned to prison for the parole violation,
but he did not provide details of the prior conviction during his testimony. Thus, it was
only the defendant’s attorney who described, in detail, the circumstances that led to the
defendant’s prior conviction in Champaign County.
¶ 36 Further, the defendant has questioned his counsel’s understanding of when the
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State can properly introduce evidence of a defendant’s prior criminal history. Based on
the record, it seems that defense counsel was unaware of the limitations placed upon the
admissibility of prior criminal convictions under the Montgomery rule, and the trial
court’s obligation to perform a balancing test under circumstances as set forth herein,
where the defendant testifies and the State seeks to introduce prior convictions. Defense
counsel made no objection to the State’s motion to admit the defendant’s prior conviction
for unlawful delivery of a controlled substance, a crime that was unrelated to the facts of
this case. Inasmuch as defense counsel made no objection, the trial court did not perform
any analysis, as required by Montgomery. In some circumstances, counsel’s decision to
inform a jury of a prior conviction shows competence by attempting to blunt its impact
with the jury, but the details of the nature of past crimes are irrelevant and prejudicial
surplusage. Arroyo, 339 Ill. App. 3d at 151-52. The defendant contends that defense
counsel either was unaware of or ignored the Montgomery rule and that his counsel’s
repeated introduction of the prejudicial details of the defendant’s past criminal history
before the jury constitutes ineffective assistance of counsel.
¶ 37 Judicial scrutiny of counsel’s performance is highly deferential, and there is a
strong presumption that counsel’s conduct falls within the wide range of reasonable
professional assistance. People v. Manning, 241 Ill. 2d 319, 334 (2011). It is the
defendant’s burden to overcome the presumption that, under the circumstances, counsel’s
challenged action might be considered trial strategy. Manning, 241 Ill. 2d at 334.
“Reviewing courts should hesitate to second-guess counsel’s strategic decisions, even
where those decisions seem questionable.” Manning, 241 Ill. 2d at 335. Given the record
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before us, we are unwilling to assume that defense counsel’s decision to describe the
details of the defendant’s aggravated battery conviction, and to allow the defendant to
testify regarding his past criminal activity, was sound trial strategy. This information may
have influenced the jury’s verdict. These allegations, supported by the trial record, make
a substantial showing that the defendant’s constitutional rights may have been violated.
¶ 38 The defendant also argues that his counsel was ineffective in that he failed to lay a
proper foundation to impeach Gecht. The defendant asserts that his counsel erred during
cross-examination of Gecht because counsel stopped one question short of laying a
proper foundation to impeach Gecht’s testimony that he had not tricked the defendant
into writing the statements confessing to Jana’s murder. Defense counsel asked Gecht
whether he remembered speaking with defense counsel and McClain, the private
investigator. Gecht responded in the affirmative. Defense counsel then stated “No further
questions.” Next, defense counsel called McClain as a witness and asked him about his
conversation with Gecht. Specifically counsel asked McClain whether Gecht had
admitted that he tricked the defendant into writing the incriminating statements. The State
objected on hearsay grounds, arguing that defense counsel had not asked Gecht any
questions about the content of his conversation with McClain. The trial court sustained
the objection. The defendant argues that defense counsel never asked the court if he could
recall Gecht to lay the proper foundation, even though the trickery was a cornerstone of
the defendant’s explanation in defense of the incriminating statements. The defendant
asserts that counsel’s failure to lay this foundation was unfairly prejudicial to his defense
because the defendant was unable to present testimony from his witness, McClain, to
18
corroborate the defendant’s testimony that he was tricked by Gecht into writing
incriminating statements. Without this testimony, the defendant argues that the jury was
left to determine whether the defendant or Gecht was more credible on this issue.
¶ 39 The record at trial shows that both Gecht and the defendant had credibility issues.
Gecht had been impeached by his criminal record. And while Gecht did not receive a deal
in exchange for his testimony, he readily admitted that he wrote to the State’s Attorney,
claiming to have information about Jana’s murder in hopes of working out some
agreement that would be helpful to “all concerned.” Gecht testified that the defendant
told him that he had entered Jana’s house with the intent of raping her and burglarizing
her house and that he had killed her. During cross-examination by defense counsel, Gecht
denied that he had tricked the defendant into writing the statements. But defense counsel
failed to take the extra steps necessary to lay the ground work for impeaching Gecht with
McClain’s testimony. Inasmuch as the defendant’s claim of deception in the authoring of
the incriminating statements was a key component to the defendant’s trial strategy, we
are not willing to assume that defense counsel’s failure to lay the groundwork for the
impeachment of Gecht was sound trial strategy. The testimony of McClain may have
influenced the jury’s verdict. The defendant’s allegations, supported by the trial record,
make a substantial showing that the defendant’s constitutional rights may have been
violated.
¶ 40 The defendant argues that defense counsel was ineffective because he never tried
to perfect his impeachment of McDaniels with any of McDaniels’ inconsistent
statements, even though McDaniels’ testimony was replete with instances where he
19
claimed not to remember and where he denied things he had said in previous statements.
The defendant argues that getting McDaniels’ prior inconsistent statements into evidence
was critical to his defense because the police had identified McDaniels as the alternate
suspect, and the jury deserved to have a full understanding of McDaniels’ viability as the
perpetrator of the murder. He further asserts that, after watching defense counsel struggle
to lay a proper foundation to introduce McDaniels’ prior inconsistent statements, the trial
court allowed counsel to question McDaniels as a hostile witness, even though he showed
no hostility, highlighting counsel’s lack of knowledge of the rules of evidence.
¶ 41 The trial record shows that defense counsel was able to establish that McDaniels
was serving time in prison for armed robbery at the time he testified. After defense
counsel failed to lay the foundation to admit McDaniels’ May 11, 1988, statement to the
police as a past recollection recorded, he attempted to use that document to refresh
McDaniels’ memory. McDaniels reviewed the statement, but stated that it did not really
refresh his memory. Defense counsel then asked McDaniels if he remembered giving
sworn testimony in July 1989, and McDaniels stated that he did not remember.
McDaniels was asked if he remembered saying he was at Jana’s house on the night of the
murder. He replied that he could not remember if he said he was at her house, but he did
recall saying he was near the house, because he was going to rob the house next door.
McDaniels denied stopping at Jana’s house while heading to rob the house next door. He
testified that he cut through Jana’s yard and looked in the window as he passed. Defense
counsel handed him three pages from the transcript of his July 1989 testimony. He read
them and stated that they refreshed his memory somewhat. Defense counsel asked him if
20
he discussed robbing the house with T.C., and he stated that he did. Defense counsel
asked McDaniels if he knew Jana, and he said no. Defense counsel handed McDaniels
pages from his July 1989 testimony to refresh his memory. McDaniels stated that it did
not really refresh his memory, but, if that is what he said, “then that’s about as close that
it get[s] to what really happened back then.” He was asked if he had been to a party at
Jana’s house, and he said not that he remembered. He admitted testifying to having been
at a party at her house and that he had implied to T.C. that he and Jana had an affair. He
testified that he no longer remembered, but at the time of his July 1989 testimony, he
stated that he had told T.C. that the best time to go to Jana’s house to have sex was
between 11 p.m. and 7 a.m. because her husband would be at work.
¶ 42 McDaniels also testified that he voluntarily cooperated with the police when they
asked for blood, hair, saliva, and the clothes he was wearing on the night of the murder.
He stated that every time the police asked if they would find his DNA in the house, he
stated they would not. McDaniels reviewed his testimony from July 1989 and admitted
that he had testified that he knew Jana slightly through a friend who may have worked
with her and that he had been to her house once for a small party, with just a few people.
He said he was introduced to her, but did not speak with her. He stated that any
implications that he was having an affair with her were false. He denied killing Jana,
denied that he was in the house at any time on the night she was killed, and denied that he
had any contact with her other than at the small party.
¶ 43 Based upon the testimony in the trial record, it appears that defense counsel was
able to impeach McDaniels with prior inconsistent statements. McDaniels had difficulty
21
remembering statements he had made to the police years earlier. Defense counsel asked
McDaniels to verify if he had made the statements, and defense counsel was then able to
either refresh McDaniels’ memory with his prior statements or was allowed to read from
the statements. Defense counsel was also allowed to question McDaniels as a hostile
witness and was thus allowed to ask leading questions through cross-examination. The
record establishes that defense counsel was able to introduce the defense theory that
McDaniels was the perpetrator of the crime. McDaniels admitted that he was near Jana’s
house and looked in the window. He admitted to being in the area to rob the house next
door. He admitted that he made a statement to the police allowing a friend to believe that
he had an affair with Jana and that he had told his friend that the best time to have sex
with Jana would be between 11 p.m. and 7 a.m. when her husband was at work. He
admitted that he had lied to his friend about having an affair with Jana. While he denied
knowing Jana, he admitted that he had told police that he had been at a small party at her
house. He also admitted that statements he had made earlier to the police would have
been more accurate. He stated that it was possible that he had told the police some things
in May 1988 that were not completely true.
¶ 44 Impeachment is not evidence. People v. Douglas, 2011 IL App (1st) 093188, ¶ 47.
Impeachment simply challenges the credibility of the witness and, ultimately, it falls to
the trier of fact to determine whether that challenge was successful. Douglas, 2011 IL
App (1st) 093188, ¶ 47. “[A] court of review will not upset a verdict by a jury on the
possibility, not probability, that with a little bit more impeachment, the witness would
have been found totally incredible.” Douglas, 2011 IL App (1st) 093188, ¶ 47. Defense
22
counsel was able to show that McDaniels made inconsistent statements, and the question
of credibility was left to the jury to determine who was more credible—the defendant or
McDaniels. Accordingly, the defendant has failed to make a substantial showing that his
defense was unfairly prejudiced by his counsel’s failure to properly impeach McDaniels.
¶ 45 The defendant next argues that defense counsel was ineffective for failing to know
the rules of evidence when introducing a diagram to establish line of sight. Defense
counsel hired an expert witness, Alva Busch, to recreate the crime scene. Defense counsel
attempted to elicit testimony from Busch that it was impossible to see Jana lying on the
couch, from the kitchen window, as testified to by McDaniels. Defense counsel also
attempted to elicit testimony from Busch that the defendant could not have seen Jana
lying on the couch from the kitchen window as the defendant claimed in his statement.
The defendant argues that defense counsel failed to properly prepare a diagram for use as
substantive evidence and that counsel’s error prevented him from offering substantive
evidence to support his theory that McDaniels was in the victim’s house on the night she
was murdered.
¶ 46 In this case, defense counsel retained a well-qualified expert, who had years of
experience with the Illinois State Police as a crime scene investigator, to offer testimony
to support the defense theory that McDaniels had to have been in the house to know that
Jana was lying on the couch. Inexplicably, counsel failed to properly prepare a diagram
of the house and yard, including sight lines, so that this evidence could be introduced
through the testimony of Busch. The defendant contends that, as a result of counsel’s
error, he was deprived of critical evidence that supported his theory that McDaniels was
23
the perpetrator of the crime. The defendant’s allegation, supported by the trial record, is
sufficient to make a substantial showing that his constitutional rights may have been
violated.
¶ 47 In this case, the allegations in the defendant’s petition, and the supporting record,
regarding counsel’s inability to introduce this evidence and counsel’s other errors, make a
substantial showing that counsel’s representation was deficient and that counsel’s
deficient performance may have resulted in unfair prejudice.
¶ 48 Next, the defendant contends that by the end of the trial, even defense counsel
recognized his performance was deficient. Defendant notes that counsel began his closing
argument with the words, “Not guilty. Joe Tucker is innocent of killing Jana Reynolds.
Albert McDaniels killed Jana Reynolds.” The defendant suggests that these words are
important because they support his contention that the trial strategy to be used in his
defense was to show that McDaniels killed Jana.
¶ 49 Shortly thereafter, defense counsel offered the following description of his legal
performance:
“Years ago I tried being a—a trial lawyer for a while. And my memory I
was pretty good at it. Last Monday put the light to that. I was so nervous last
Monday and I’m nervous now but not like last Monday. Last Monday I was so
nervous I couldn’t hardly speak.
I retired, if you will, from being a trial lawyer and I—and I became more
what you might have a research lawyer and that’s how I end up learning so much
about DNA. I’m a DNA guy.
24
When I agreed to help [the defendant] on this case, I thought it was a DNA
case and it turned out it wasn’t. So here I am. I might have said during voir dire
about how I’ve been on a jury before. It was a criminal case down in Benton in
Federal Court. For as tough as it is on this side of the railing—(Physical
indication)—to me it’s a whole lot tougher over on this side of the railing.
(Physical indication).
In that case it was obvious to all of us on the jury that one lawyer was better
than the other. When we got back to the jury room nobody even mentioned it.
When we got back to the jury room we started to look at the evidence. I think that
you guys are going to do the same thing; but, if there’s any doubt, please don’t
judge this case on who has the better lawyer. That wouldn’t be fair because [the
defendant is] going to lose on that ground.”
Defense counsel’s admission to the jury that he may not have been as good a lawyer for
the defendant as the attorney representing the State is somewhat confounding. It is
conceivable that a lawyer may try to endear himself or herself to the jury as a matter of
trial strategy, but the extended admission did not end with defense counsel’s request that
the jury treat the defendant fairly. Instead, defense counsel revisited it later in his
argument, telling the jurors:
“And, by the way, I have—I have decided that I’m going to re-retire from being a
trial lawyer. I—I find it just too stressful. But while Albert McDaniels was on the
stand last Friday, I wanted to quit that day. I wanted to quit that morning. I wanted
25
to quit being [the defendant’s] lawyer. I wanted to quit my job. I wanted to turn in
my law license.”
When the State objected to this argument, the judge asked defense counsel to “move on.”
¶ 50 The defendant also directs us to that portion of defense counsel’s argument about a
wet spot found on the murder victim’s bed. Defense counsel, in describing this spot, used
a somewhat bizarre example. He explained to the jury:
“But let’s talk about the wet spot. Okay. And I’ll give you my example of that.
When I was married, my wife had a bird. It was some kind of little parrot and we
always thought it was a female. You can’t really tell with birds until we gave it a
little fuzzy bear that was about it’s [sic] own size. And then it turned out that it—it
was actually a male bird. And my wife asked me to clean it up and I asked her
why am I the expert on the wet spot? Just because there’s semen on thermal
underwear, if somebody moves, the semen doesn’t leak off the thermal
underwear.”
It is unclear, based upon the trial record, what point defense counsel was attempting to
make with this example.
¶ 51 When talking about McDaniels’ testimony that he knew Jana from a party, defense
counsel asked the jury:
“Did Albert ever have sex with Jana? We don’t know. Only Albert knows.
There’s—that’s—this is the thing, you can’t—you can’t prove or disprove an
affair, I mean, like—I know with—with—with President Clinton, he was
impeached after they found some of his DNA.”
26
Again, the State objected, and the court sustained the objection, telling defense counsel to
“move on.”
¶ 52 The defendant notes that at one point during closing argument, defense counsel
intentionally raised the possibility that the defendant’s family may have been involved in
an unsolved murder. Defense counsel referred to one of the letters the defendant
maintains were written at the request of Gecht, and tells the jury:
“Back to this letter. Okay. You guys are getting this letter. I asked that it be put in
evidence. One thing he says right at the very beginning, I think I have some
information about an unsolved murder that Tucker’s family took part in. Back in
1991, a guy named Lamont and—”
¶ 53 Before defense counsel could finish, the State objected. The court sustained the
objection and instructed the jury to disregard counsel’s statement. The court gave a
further instruction, telling the jury that what an attorney says in closing argument is not
evidence. The defendant claims he was further prejudiced when his counsel allowed the
entire Gecht letter, which contained allegations that the defendant’s family killed
someone in 1991 named Lamont, to go back to the jury room during deliberations. After
reviewing the record, it appears that the State’s objection to defense counsel’s statements
was made to protect the defendant from potential prejudice. We note that after the jury
retired to deliberate, the State questioned whether defense counsel wanted the letter to go
to the jury, and defense counsel reiterated he wanted the entire letter to go back to the
jury. The letter did not advance the defendant’s cause, nor did it test the prosecution’s
case. Rather, the implication from the letter was that the defendant may have been
27
inclined to commit murder because of his familial upbringing.
¶ 54 We recognize that counsel is given great latitude in his or her closing argument to
the jury. Leeper, 317 Ill. App. 3d at 484. To show ineffectiveness as a result of comments
made during closing argument, the defendant must overcome the strong presumption that
his counsel was not incompetent and that his actions were a part of sound trial strategy.
People v. Davis, 356 Ill. App. 3d 725, 730 (2005). A reviewing court evaluates the
reasonableness of counsel’s conduct from his perspective in light of the totality of the
circumstances in the case. Davis, 356 Ill. App. 3d at 730; People v. Daniels, 331 Ill. App.
3d 380, 393 (2002). Even when defense counsel concedes the defendant’s guilt during
closing argument, the court will not presume prejudice unless the strategy amounted to a
complete failure to subject the prosecution’s case to meaningful adversarial testing.
People v. Milton, 354 Ill. App. 3d 283, 290 (2004). In essence, counsel’s choice does not
constitute ineffective assistance of counsel simply because it was unsuccessful. Milton,
354 Ill. App. 3d at 290.
¶ 55 During closing argument, defense counsel’s conduct was unprofessional, at best.
Again, we are not willing to assume that counsel’s argument was part of some
unconventional defense strategy and that counsel’s conduct had no impact on the jury.
¶ 56 In his postconviction petition and in this appeal, the defendant has argued that
defense counsel’s errors permeated every stage of his trial. He asserts that he is entitled to
a third-stage evidentiary hearing because, through cumulative error, he has demonstrated
a substantial showing of a constitutional violation. We agree. At this stage of the
proceedings, the test is not whether the defendant had established actual prejudice under
28
Strickland. Rather, the analysis focuses on whether the allegations in the petition and
supporting documents make a substantial showing that a constitutional violation
occurred. In our view, the numerous errors outlined above entitle the defendant to a third-
stage evidentiary hearing.
¶ 57 Criminal defense attorneys must assist clients in a way that the constitutional
guarantee of “assistance of counsel” contemplates. The constitution contemplates
assistance that engages evidentiary rules to shield an accused from a decision based upon
unreliable evidence. People v. Moore, 279 Ill. App. 3d 152, 159 (1996). It contemplates
assistance that appreciates and understands legal principles applicable to the case. People
v. Faulkner, 292 Ill. App. 3d 391, 394 (1997). “It contemplates assistance ready to
provide an adversarial check to a prosecutor’s excessive endeavors.” Fletcher, 335 Ill.
App. 3d at 453. Accordingly, on the record before us, the defendant has made a
substantial showing that his trial counsel’s representation was substandard and that
counsel’s deficient performance may have had an effect on the outcome of the
proceedings.
¶ 58 In his final point, the defendant alleges that he was deprived of effective assistance
of appellate counsel because his appellate attorney failed to raise trial counsel’s numerous
errors in his direct appeal. Because we are remanding this case to the trial court for an
evidentiary hearing on many of the defendant’s claims of ineffective assistance of trial
counsel, we are unable to determine whether appellate counsel was ineffective for failing
to raise ineffective assistance of trial counsel. Unless the underlying issues are
meritorious, the defendant has suffered no prejudice from counsel’s failure to raise those
29
issues on appeal. People v. Foster, 168 Ill. 2d 465, 474 (1995). The defendant shall be
allowed to present his claims of ineffective assistance of counsel at the third-stage
evidentiary hearing, including his claims of ineffective assistance of appellate counsel.
¶ 59 CONCLUSION
¶ 60 For the reasons stated, we reverse the judgment of the circuit court dismissing the
defendant’s postconviction petition without an evidentiary hearing, and we remand this
cause of action for a third-stage evidentiary hearing.
¶ 61 Reversed and remanded with directions.
30
2017 IL App (5th) 130576
NO. 5-13-0576
IN THE
APPELLATE COURT OF ILLINOIS
FIFTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Jefferson County.
)
v. ) No. 02-CF-212
)
JOE C. TUCKER, JR., ) Honorable
) David K. Overstreet,
Defendant-Appellant. ) Judge, presiding.
__________________________________________________________________________
Opinion Filed: May 30, 2017
__________________________________________________________________________
Justices: Honorable Judy L. Cates, J.
Honorable Melissa A. Chapman, J., and
Honorable John B. Barberis, J.,
Concur
__________________________________________________________________________
Attorneys Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard,
for Deputy Defender, John M. McCarthy, Assistant Appellate Defender,
Appellant Office of the State Appellate Defender, Fourth Judicial District, 400
West Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705-
5240
__________________________________________________________________________
Attorneys Hon. Douglas R. Hoffman, State’s Attorney, Jefferson County
for Courthouse, 100 South 10th Street, Mt. Vernon, IL 62864; Patrick
Appellee Delfino, Director, David J. Robinson, Deputy Director, Timothy J.
Londrigan, Staff Attorney, Office of the State’s Attorneys Appellate
Prosecutor, 725 South Second Street, Springfield, IL 62704
__________________________________________________________________________