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Appellate Court Date: 2016.01.11
14:08:50 -06'00'
People v. Lofton, 2015 IL App (2d) 130135
Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption FRANKLIN LOFTON, Defendant-Appellant.
District & No. Second District
Docket No. 2-13-0135
Filed July 24, 2015
Decision Under Appeal from the Circuit Court of Winnebago County, No. 10-CF-58;
Review the Hon. John R. Truitt, Judge, presiding.
Judgment Reversed and remanded.
Counsel on Thomas A. Lilien and Christopher McCoy, both of State Appellate
Appeal Defender’s Office, of Elgin, for appellant.
Joseph P. Bruscato, State’s Attorney, of Rockford (Lawrence M.
Bauer and Diane L. Campbell, both of State’s Attorneys Appellate
Prosecutor’s Office, of counsel), for the People.
Panel JUSTICE McLAREN delivered the judgment of the court, with
opinion.
Justice Hutchinson concurred in the judgment and opinion.
Justice Zenoff dissented, with opinion.
OPINION
¶1 After a jury trial, defendant, Franklin Lofton, was found guilty of three counts of
first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (b)(6) (West 2006)) and one count of
attempt (armed robbery) (720 ILCS 5/8-4, 18-2 (West 2006)) arising out of the shooting death
of Tyrone Dowthard. Two of the murder counts merged into the third (under subsection
(a)(2)), and defendant was sentenced to a mandatory term of natural life in prison for
first-degree murder, to be served consecutively to a term of 20 years for attempt. These
sentences were to be served consecutively to defendant’s 75-year prison sentence arising from
a prior, unrelated murder conviction. Defendant now appeals from his convictions. We reverse
and remand for a new trial.
¶2 I. BACKGROUND
¶3 At trial, the victim’s sister, Karen Dowthard, testified that she was at her home at 2319
West Jefferson Street in Rockford with Tyrone and a friend, Henry Sanders, in the evening of
May 23, 2006. At around dusk, she walked out her door to her front porch and saw Tyrone,
standing by his truck in her driveway, and a small, slender, light-skinned black man with a gun
standing near him. Her porch light was on, so she could see the man, whom she thought was
between 17 and 19 years old. He was wearing a hoodie with the hood “partially” up and had a
bandana wrapped around his face; she could see only from the bottom of his eyes to the middle
of his forehead. She noticed his eyes and the structure of his neck even though she saw the man
only from the side. The man said, “Stick your hands up,” and Tyrone laughed. The man shot
him. Karen could not identify the shooter that night.
¶4 About a year later, police showed her a photo lineup, and she picked out a photo
“[i]mmediately.” She could “tell his neck” and she believed that she had seen the shooter’s
“braids out of the back.” She recognized the shooter “from his body structure, his neck, and his
eyes.” The photo “jumped out” at her because “spiritually, emotionally,” she felt she was “in
the presence.” She identified the man in the photo as defendant.
¶5 Sanders, who had been sitting near the bottom of the stairs of the porch at the time of the
shooting, testified that, at about 11:30 p.m., a young, small black man, probably a teenager,
with something covering his face came from behind the house with a “big, chrome gun” and
told Tyrone to put up his hands. Sanders remembered Tyrone “putting it like I guess he thought
it was a joke.” The man shot Tyrone and ran away in a different direction. Sanders did not
remember that he called the police, nor did he remember what he told the police that night.
About a year later, he was shown a photo lineup by the police, but he could not identify anyone
as the shooter.
¶6 Officer Patrice Turner of the Rockford police department testified that she responded to a
call of a shooting at 2319 West Jefferson Street at about 11:30 p.m. on May 23, 2006. When
she first saw the man she later learned was Sanders, he was “distraught, he was crying and very
frantic.” She later interviewed Sanders and described him as cooperative and answering
questions appropriately. Sanders described the shooter as “short” and a “shorty,” a term that
meant a “younger person” or “a kid.” Sanders further described the shooter as five feet three
inches tall with a medium build. The shooter had on a gray sweater that was pulled up over the
lower half of his face and something over his head. Sanders described the shooter as “a 16 or
17 year old black male” with the voice of “a younger teenager.” The shooter had a “long barrel,
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silver handgun.” Sanders said that he had never seen the shooter before that night and was
unsure if he would be able to identify him.
¶7 Detective Mark Jimenez of the Rockford police department testified that he interviewed
Karen within hours of the shooting. He described Karen as “a little bit emotional” but able to
talk. Although Jimenez initially testified that Karen thought that she could identify the shooter,
on cross-examination he reviewed the report that had been written by another detective and
stated that he was mistaken; Karen had stated that she “could identify his description and not
his actual physical identity.” Karen gave a description of a black male, five feet three inches
tall, 130 pounds, wearing gray pants, a gray hooded sweatshirt, and a red and white bandana.
She did not mention that his eyes, neck, or facial structure stood out to her. Karen told him that
she would be unable to identify the shooter if she saw him again. Jimenez gave defendant’s
date of birth as January 6, 1985.
¶8 Deputy Dennis Hill of the Winnebago County sheriff’s department testified that he was
assigned to the canine unit when he was called to Karen’s house around midnight on May 23,
2006. He and his canine, Hoss, were directed to the east side of the house, near the front. Hoss
picked up a scent, taking Hill north, along the side of the house to the garage, then northwest,
through some backyards, to the intersection of Soper and Andrew, about one block north and
one block west. Hoss lost the scent there. Hill stated that, when he arrived, the scene was
contaminated by the many people already there and he could not tell whether Hoss was
tracking “a suspect or a witness or somebody completely unrelated” to the situation.
¶9 Diane McLaurin was called to testify but either could not remember events or denied that
they occurred. This applied to events on or about May 23, 2006, talking to police and
identifying defendant in a photo array in April 2007, and testifying before the grand jury. She
did admit that her signature was on a “photo spread notice” (which had been marked as
People’s exhibit No. 8), but she did not recognize the document or remember what was
included on it. She stated that she did not know defendant, but later admitted signing the back
of “the photograph of Franklin Darielle Lofton.” The State went through each question and
answer from McLaurin’s testimony before the grand jury, asking her if she remembered the
question and giving the answer. McLaurin was confused, sometimes answering whether she
remembered or not, sometimes answering as though the recited question was currently being
asked. Several times, the court reminded McLaurin that “that’s not the question. The question
is do you remember being asked that question and giving that answer.” After saying that she
did not remember what year she testified before the grand jury, she denied remembering going
before the grand jury at all.
¶ 10 Robert Jones, defendant’s cousin, testified that he met with detectives in May 2007 and
told them that he was with defendant during the day in question and that defendant had a silver
.357 revolver. Defendant told him that he was planning on committing a robbery (“hitting
some licks”) that evening because he was broke. Defendant walked away from Jones’s house
but called Jones a half hour to an hour later. Defendant asked Jones to pick him up at
defendant’s house on Sherman because he had just shot somebody. Jones did not do so.
¶ 11 Jones saw defendant a day or two later at the home of Alonda Johnson, defendant’s sister.
Jones heard defendant and Johnson arguing; defendant “didn’t really say anything,” but
Johnson was “hollering at him.” The State then began reading questions and answers from
Jones’s grand jury testimony involving what Jones heard of that conversation; Jones did not
remember his grand jury testimony. He stated that defendant never confessed any crime to
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him. Jones admitted that, when he talked to the assistant State’s Attorney and an investigator
the day before trial, he told them that defendant had told him over the telephone that he had
shot someone and needed a ride; however, Jones denied that defendant had said that the
shooting had occurred on Jefferson.
¶ 12 Robert Tate testified that he was currently on federal parole following a 2008 conviction
and had also been convicted of state felony charges. In May 2006, he lived with his girlfriend,
Johnson, and defendant. Tate was asked if, on the morning after Dowthard’s murder, he
overheard a conversation among defendant, Johnson, and Jones. Tate stated, “I just know what
they told me.” When asked again if he had overheard defendant “telling his sister or [Jones]
anything,” Tate responded, “I just–I really didn’t catch the conversation. I was just hearing
them in there talking.” The State then questioned Tate about a signed statement that he had
given to police on July 12, 2007, the procedure for which he described as “what’s in there is
like the questions they asked me and my answers to them, but that’s not my word for word, it’s
not what I said.” Tate denied telling officers that he “ ‘could hear Franklin say that he had shot
the dude from the night before on Jefferson.’ ” Instead, he explained, “What I said is what they
had told me” and “everything I answered to is–is what I heard. I didn’t hear the conversation.”
On cross-examination, Tate denied that he ever heard defendant say that he shot or robbed
anyone. He heard the conversation on the morning after the murder, “but I don’t know what
they was [sic] talking about.”
¶ 13 Detective Scott Mastroianni of the Rockford police department testified that he spoke with
Jones in May 2007. Jones was providing information regarding Dowthard’s murder in order to
help Tate, who was being held in federal custody. According to Mastroianni, Jones told him
that he was with defendant at 301 Royal Avenue prior to the murder and that defendant told
him that he was going to “hit a lick” because he was broke. The Royal Avenue address was
about three blocks away from Karen’s house. Jones told him that, after defendant left,
defendant called Jones’s telephone and the telephone of McLaurin, who was Jones’s girlfriend.
Jones did not speak to defendant on either telephone. Defendant told McLaurin to have Jones
pick him up “somewhere off Andrew Street”; Jones drove around but could not find him. He
saw defendant the next day at the home of defendant’s mother. Defendant told him that he had
tried to commit a robbery on West Jefferson Street but that the intended victim laughed at him,
and “he had to shoot him.” Jones also said that he was with defendant at Johnson’s home and
heard defendant tell Johnson “about the robbery that had gone bad and where he had shot the
guy on West Jefferson.” Jones did not come forward with this information until almost a year
after the shooting, because he was afraid that defendant would kill him.
¶ 14 Mastroianni also testified that he and Detective Jason Bailey interviewed Tate in July
2007. Bailey took notes during the interview and produced a written statement that Tate
eventually reviewed and signed for accuracy. After Mastroianni described the procedure of
taking the statement, the State quoted segments of the statement verbatim and asked
Mastroianni if that was what Tate said. According to the statement, Tate said that he had heard
about a murder on West Jefferson the year before and that, on the morning after the murder,
defendant and Jones showed up at the home of Tate and Johnson and began talking to her. Tate
said: (1) “They were in the dining room area talking while I was in the kitchen”; (2) “I could
hear Franklin say he had shot the dude from the night before on Jefferson”; (3) “Franklin was
telling his sister that he had tried to rob the guy and ended up shooting him”; (4) “I can’t
remember his exact words because it was over a year ago, but I know he said he shot the guy on
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Jefferson. Alonda and I both told Franklin he could not stay at our house anymore”; (5)
“Franklin went on to say he would quote do it again if anybody told what he had done”; and (6)
“I am not sure if he was directing his comments towards me and Alonda but at [Jones] and
[Jones’s] girlfriend, Diane McLaurin.” The State also introduced the written statement into
evidence.
¶ 15 Sergeant Kurt Whisenand of the Rockford police department testified that he met with
McLaurin on April 19, 2007. She told him that Jones was her ex-boyfriend and a friend of
defendant.1 She did not know defendant very well but had seen him several times with Jones.
About a year before McLaurin met with Whisenand, she, Jones, and defendant were in a car as
it pulled up to her cousin’s house at 301 Royal Avenue. Defendant got out, said that he was
going to rob somebody because he was broke, and pulled a large silver handgun from his
waistband. After replacing the gun in his pants, defendant walked north on Royal Avenue,
toward Andrew Street. About 20 or 30 minutes later, she received a telephone call from
defendant on her telephone; she answered the call and gave the phone to Jones. About 10
minutes after Jones finished his phone conversation, he told McLaurin that defendant was
hiding in some bushes and needed a ride. Jones then left. McLaurin noticed police down the
block that night and heard from a neighbor that there had been a murder at 2319 West Jefferson
Street.
¶ 16 McLaurin told Whisenand that she saw defendant the next day when he and Jones pulled
up in front of 301 Royal Avenue. McLaurin went up to the car, and defendant showed her the
same gun that he had the night before and told her not to tell anyone that she had seen him the
night before. Two to three weeks before McLaurin spoke to Whisenand, she saw defendant out
in traffic, and he made a motion “like he was pointing a gun at her and pulled the trigger.” She
did not come to the police sooner because she was afraid.
¶ 17 Whisenand also learned from McLaurin that “Darielle” had a sister “Teeka,” who dated
Tate. Based on conversations with other officers, Whisenand was able to identify “Teeka” as
Johnson and her brother as defendant. Whisenand created a photo array that included
defendant’s picture; McLaurin picked out defendant’s picture and indicated that that was the
person she knew as Darielle. She did not know any of the other five individuals shown in the
array.
¶ 18 On cross-examination, Whisenand said that he never gave McLaurin the opportunity to
provide a written statement. McLaurin did not tell him that defendant had “turned in” Tate to
federal authorities on a drug case, although he learned that fact later.
¶ 19 The transcripts of the grand jury testimony of McLaurin and Jones were then entered into
evidence by stipulation. In his grand jury testimony (redacted to two pages), Jones agreed that
defendant told him “about trying to rob a guy on Jefferson [S]treet.” When asked if defendant
“said anything about having to shoot him,” Jones replied, “Yeah, it was something like that.”
However, Jones denied that defendant shot the man “because the guy laughed at him”; instead,
“it was because he couldn’t take the money or something from the guy, something. He got in a
struggle or something with the guy.”
¶ 20 Investigator Greg Lindmark of the Winnebago County State’s Attorney’s office testified
that, two days before trial, he sat in on an interview of Jones by the assistant State’s Attorney
trying the case. Jones told them that he was at McLaurin’s house on Royal Avenue when
1
McLaurin referred to defendant as “Darielle” and did not know his legal name.
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defendant asked him if he “wanted to go do a lick,” meaning rob someone. He did not go with
defendant, who had a chrome .357 Magnum handgun. About 30 minutes later, defendant called
Jones and told him that he had had to shoot someone and that he needed a ride from Andrew
Street. Jones did not pick up defendant. The next day, Jones was at Johnson’s home, where he
heard defendant “talking about the shooting and robbery” with Johnson. Lindmark did not take
a written statement from Jones, and Lindmark wrote a report about the interview only on the
morning of his testimony; he did not know that such a report would be necessary until Jones
had testified the day before, providing testimony that was that different from his interview.
¶ 21 After the State rested, defendant moved for a directed verdict. The trial court denied the
motion, and defendant rested without calling any witnesses. The jury then returned the three
guilty verdicts. This appeal followed.
¶ 22 II. ANALYSIS
¶ 23 Defendant raises multiple contentions of error regarding the admission of evidence and
improper remarks by the State in closing argument. As defendant admits, defense counsel
failed to object at trial to any of these alleged errors and further failed to file a posttrial motion.
To preserve an issue for review, a defendant must both raise an objection at trial and raise the
issue in a posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988). Thus, defendant’s
contentions on appeal would be forfeited. Id.
¶ 24 However, defendant also contends that trial counsel was ineffective for failing to object at
trial and failing to file a posttrial motion. Where a defendant claims ineffective assistance of
counsel, we apply the test in Strickland v. Washington, 466 U.S. 668 (1984). People v. Theis,
2011 IL App (2d) 091080, ¶ 39. Under this test, the defendant must prove both that: (1) defense
counsel’s performance was deficient or fell below an objective standard of reasonableness; and
(2) the defendant suffered prejudice as a result of defense counsel’s deficient performance such
that the defendant was deprived of a fair trial, the result of which is reliable. Strickland, 466
U.S. at 687. There is a strong presumption that a trial counsel’s conduct fell within the wide
range of reasonable professional assistance and that the challenged action or inaction was the
product of sound trial strategy. Id. at 689. However, this is not the case where trial counsel’s
strategy was so unsound that no meaningful adversarial testing was conducted. People v. Enis,
194 Ill. 2d 361, 378 (2000). Because a defendant must satisfy both prongs of the Strickland
test, the failure to establish either prong is fatal to the defendant’s claim. Theis, 2011 IL App
(2d) 091080, ¶ 39. However, prejudice is presumed where “counsel entirely fails to subject the
prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648,
659 (1984). Where, as here, the claim of ineffective assistance was not raised in the trial court,
our review is de novo. People v. Berrier, 362 Ill. App. 3d 1153, 1166-67 (2006).
¶ 25 The first issue that we must consider is the State’s use of witnesses’ prior inconsistent
statements as substantive evidence. In general, a prior inconsistent statement may be used only
for impeachment purposes. People v. Morgason, 311 Ill. App. 3d 1005, 1010 (2000). However,
under section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS
5/115-10.1 (West 2006)), 2 a witness’s prior inconsistent statement may be admitted as
substantive evidence in certain circumstances:
2
See also Ill. R. Evid. 801(d)(1)(A) (eff. Jan. 1, 2011).
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“In all criminal cases, evidence of a statement made by a witness is not made
inadmissible by the hearsay rule if
(a) the statement is inconsistent with his testimony at the hearing or trial, and
(b) the witness is subject to cross-examination concerning the statement, and
(c) the statement–
(A) the statement is proved to have been written or signed by the witness, or
(B) the witness acknowledged under oath the making of the statement either
in his testimony at the hearing or trial in which the admission into evidence of
the prior statement is being sought, or at a trial, hearing, or other proceeding, or
(C) the statement is proved to have been accurately recorded by a tape
recorder, videotape recording, or any other similar electronic means of sound
recording.
Nothing in this Section shall render a prior inconsistent statement inadmissible for
purposes of impeachment because such statement was not recorded or otherwise fails
to meet the criteria set forth herein.”
¶ 26 Defendant argues that Tate’s written statement was not admissible as substantive evidence,
because it did not meet the “personal knowledge” requirement of section 115-10.1(c)(2).
According to defendant, “personal knowledge” means that “the witness must have actually
perceived the events that are the subject of the statement,” not merely have heard afterward the
statement about the events. See, e.g., People v. Wilson, 2012 IL App (1st) 101038, ¶¶ 38-41;
People v. McCarter, 385 Ill. App. 3d 919, 930 (2008).
¶ 27 Our supreme court has recently spoken authoritatively on the “personal knowledge”
requirement. In People v. Simpson, 2015 IL 116512, a witness called by the State, Vonzell
Franklin, testified that he had had a conversation with the defendant about “an event”
involving Phillip Thomas, who was beaten to death; Franklin could not remember what the
defendant told him, nor could he remember what he told the police about the conversation. Id.
¶ 14. The State then called a police officer who testified about his conversation with Franklin,
which had been recorded on video. The State played clips from the video, in which Franklin
told police that the defendant made several incriminating statements, including “ ‘we beat the
f*** out of that n*** man I think he dead. We bashed his head in *** I hit him about 30 times
with a bat.’ ” Id. ¶ 16. Defense counsel failed to object to the introduction of the video clips.
¶ 28 The defendant argued that counsel’s failure to object to the introduction of the video
amounted to ineffective assistance of counsel; the State argued that the introduction of the
video was proper under section 115-10.1(c)(2). The supreme court found subsection (c)(2) to
be ambiguous, as it did not answer: (1) “whether the making of the statement qualifies as an
event”; and (2) “whether the ‘personal knowledge’ requirement necessitates that the declarant
observe the events described in the statement or whether it is sufficient that he observed the
making of the statement.” Id. ¶ 31. The supreme court rejected the State’s argument that the
legislative intent was to “require that the witness simply have personal knowledge of the
defendant’s admission, and not the crime being described, for a prior inconsistent statement to
be admissible.” Id. ¶ 32. Citing a “quarter of a century” of appellate court opinions holding that
a prior inconsistent statement was not admissible unless the declarant actually perceived the
events that were the subject of the statement, the court held that “it seems clear that the statute
has a settled meaning and it would not be appropriate for us to change it.” Id. ¶ 33. Thus, as
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Franklin’s videotaped statement “was not given the imprimatur of admissibility by section
115-10.1,” had defense counsel objected to the use of it, “he could have precluded it from
being introduced into evidence.” Id. ¶ 34.
¶ 29 Here, Tate did not perceive the events that were the subject of defendant’s overheard
statement. In his written statement, Tate said that he “could hear Franklin say he had shot the
dude from the night before on Jefferson” and that “Franklin was telling his sister that he had
tried to rob the guy and ended up shooting him.” Thus, Tate’s written statement was
inadmissible as substantive evidence, and its use would have been denied had defense counsel
objected. We further note that, in addition to the improper admission of the written statement
as substantive evidence, Mastroianni was questioned at trial about the written statement with
specific quotes from the statement. Mastroianni affirmed that Tate had said: (1) “I could hear
Franklin say he had shot the dude from the night before on Jefferson”; (2) “Franklin was telling
his sister that he had tried to rob the guy and ended up shooting him”; and (3) “I can’t
remember his exact words because it was over a year ago, but I know he said he shot the guy on
Jefferson.” Thus, the content of the improperly admitted statement was bolstered by
Mastroianni’s repetitious testimony of what was contained therein.
¶ 30 This same analysis applies to portions of Jones’s prior oral statements that were recounted
at trial by Mastroianni and Lindmark. According to Mastroianni, Jones told him that, on the
day after Dowthard’s murder, defendant told Jones that he had tried to commit a robbery on
West Jefferson Street but that the intended victim laughed at him and “he had to shoot him.”
Jones also said that he heard defendant tell Johnson “about the robbery that had gone bad and
where he had shot the guy on West Jefferson.” Similarly, Lindmark testified that, two days
before trial, Jones told him and an assistant State’s Attorney that defendant called Jones on the
night of Dowthard’s murder; defendant told him that he had had to shoot someone and that he
needed a ride from Andrew Street. The next day, Jones was at Johnson’s house, where he heard
defendant “talking about the shooting and robbery” with Johnson. Jones’s statements to
Mastroianni and Lindmark were not made under oath at a trial, hearing, or other proceeding,
nor did they narrate, describe, or explain an event of which Jones had personal knowledge. See
725 ILCS 5/115-10.1(c) (West 2006). The use of these prior statements was improper, and an
objection by defense counsel would have kept that testimony out.
¶ 31 Defendant next argues that the State’s use of portions of McLaurin’s grand jury testimony
was erroneous. The substantive use of a witness’s grand jury testimony as a prior inconsistent
statement under section 115-10.1 is well established as proper (see 725 ILCS 5/115-10.1(c)
(West 2006); Ill. R. Evid. 801(d)(1)(A)(1) (eff. Jan. 1, 2011)), and defendant does not argue
that, in general, the use of McLaurin’s testimony was improper. However, during McLaurin’s
grand jury testimony, the following colloquy took place:
“Q. Did RJ [Jones] talk to Darielle [defendant]?
A. Yes.
Q. When he finished, did RJ tell you what Darielle had told him?
A. Yes.
Q. What did he say?
A. He asked him can he come pick him up because he just shot someone.
Q. Did he indicate where he was located?
A. Yes, on Alliance and West Jefferson in some bushes.” (Emphases added.)
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This exchange was not read to the jury; however, it was contained in the transcript of the grand
jury testimony that was given to the jury.
¶ 32 Defendant argues that this portion of McLaurin’s grand jury testimony was double hearsay
and not admissible under section 115-10.1. The State never addresses the merits of this
argument but labels the conveyance of the challenged testimony as “hardly a significant
disclosure in light of the totality of evidence at the trial.” We agree with defendant. Section
115-10.1(c)(1) and Rule 801(d)(1)(A)(1) relax the hearsay rule as it bars the substantive use of
a prior inconsistent statement; however, they do not relax the general rule against hearsay
contained within a prior inconsistent statement. See People v. Radovick, 275 Ill. App. 3d 809,
822 (1995) (“the admission of these transcripts was improper because they contained double
hearsay”); People v. Sangster, 2014 IL App (1st) 113457, ¶ 85 (in addressing Radovick, stating
“even if statement is admitted substantively under section 115-10.1 of the Code, that section
does not abrogate other rules of evidence, including ban on double hearsay”). Double hearsay,
or hearsay within hearsay, is still excluded unless “each part of the combined statements
conforms with an exception to the hearsay rule provided in these rules.” Ill. R. Evid. 805 (eff.
Jan. 1, 2011). As we have noted, the State makes no effort to find an exception to the hearsay
rule that would apply to this part of the statement. While, in general, McLaurin’s testimony to
the grand jury was admissible at trial, what Jones told McLaurin that defendant told him was
not. This impermissible hearsay was properly kept from the jury (at the State’s suggestion and
with defense counsel’s concurrence) during testimony. It was error for defense counsel to
allow it to go to the jury in written form.
¶ 33 The question remains as to whether defense counsel rendered ineffective assistance of
counsel by failing to object to the use of these prior inconsistent statements. Regarding the first
prong of the Strickland test, clearly, counsel’s failure to object to the use of Tate’s and Jones’s
prior inconsistent statements and his failure to keep from the jury the double hearsay contained
in the transcript of McLaurin’s grand jury testimony show representation that fell below an
objective standard of reasonableness. While there is a strong presumption that a trial counsel’s
conduct fell within the wide range of reasonable professional assistance and that the
challenged action or inaction was the product of sound trial strategy (see Strickland, 466 U.S.
at 689), we can see no strategic reason for counsel’s failures here. All of these statements
amounted to confessions by defendant, complete with the motive for the shooting and the street
upon which the murder was committed. As our supreme court has noted, “ ‘a confession is the
most powerful piece of evidence the State can offer, and its effect on a jury is incalculable.’ ”
Simpson, 2015 IL 116512, ¶ 36 (quoting People v. R.C., 108 Ill. 2d 349, 356 (1985)). Here, not
only did defense counsel fail to object when the improper prior statements were introduced,
counsel also failed to object when they were referenced in closing and rebuttal arguments, such
as when the State argued: “These are three separate people[3] who all learned about the murder
from the defendant’s own mouth and chose to share that information with the police.”
¶ 34 The dissent finds a “clear” defense strategy of casting McLaurin, Jones, and Tate as
conspirators fabricating a story to implicate defendant in order to cut a deal for Tate, who was
facing federal drug charges. Infra ¶ 44. According to the dissent, such a defense would have
been “untenable had defense counsel not allowed Jones’s oral statements and Tate’s written
3
Tate, Jones, and McLaurin. However, McLaurin never stated that she heard defendant say that he
had killed anyone; she relayed only what Jones told her defendant said.
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statement to be admitted.” Infra ¶ 45. First, we note that a strategy of “eliciting the
circumstances of Jones’s and Tate’s statements to police[] by establishing the close
relationships among the three witnesses *** and by showing that none of them came forward
until a year after the murder when Tate was in custody” (infra ¶ 44) would not require that the
substance of these witnesses’ statements be admitted into evidence. Further, such a “strategy”
would be unsound. Instead of, for example, Tate’s trial testimony of “ ‘I just–I really didn’t
catch the conversation. I was just hearing them in there talking’ ” (supra ¶ 12), the “strategy”
allowed into evidence Tate’s written statement that, among other things, (1) “I could hear
Franklin say he had shot the dude from the night before on Jefferson”; (2) “Franklin was telling
his sister that he had tried to rob the guy and ended up shooting him”; and (3) “I can’t
remember his exact words because it was over a year ago, but I know he said he shot the guy on
Jefferson.” The strategy got the additional benefit of an oral verbatim repetition of Tate’s
written statement, during Mastroianni’s testimony. As applied to Jones and McLaurin, this
strategy reaped similar results. If allowing all of these improper statements into evidence so
that counsel could argue that it was suspicious that these witnesses all said the same thing was
a strategy, it was an unsound one that deserves no deference.
¶ 35 The second Strickland prong, that the defendant suffered prejudice as a result of defense
counsel’s deficient performance such that the defendant was deprived of a fair trial, the result
of which is reliable, is no less in doubt than the first. Other than hearsay statements involving
defendant’s alleged confessions to others, there is very little evidence to tie defendant to
Dowthard’s killing. Neither Karen nor Sanders, the only eyewitnesses to the shooting, was
able to identify the shooter that night.4 Both described the shooter as having his face covered.
Sanders was unable to pick the shooter out of a photo array a year later, while Karen picked out
defendant’s photo a year later “from his body structure, his neck, and his eyes,” all features that
Jimenez testified Karen failed to mention on the night of the shooting. Instead, defendant’s
photo “jumped out” at her because “spiritually, emotionally,” she felt that she was “in the
presence.”
¶ 36 The dissent finds “overwhelming support” for the jury’s guilty verdict in the evidence that
was properly admitted. See infra ¶ 48. We first note that, of all the evidence listed in the
dissent’s summary of the “overwhelming” evidence, only Jones’s grand jury testimony made
any mention of defendant saying that he shot someone on Jefferson, and the motive given for
the shooting was a struggle, not that the man laughed. However, the improperly admitted
hearsay statements contained at least half a dozen such references to Jefferson. In this very
important respect, the properly admitted evidence was not “duplicative” of the improperly
admitted evidence, as the dissent claims. See infra ¶ 53. The improperly admitted evidence
was duplicative of itself and was drummed, repeatedly, into the jury’s heads.
¶ 37 Neither Tate’s written statement, nor Jones’s oral statements to Mastroianni and Lindmark,
was admissible substantively, because they lacked the element of personal knowledge.
Similarly, the double hearsay contained in McLaurin’s grand jury testimony was inadmissible
as substantive evidence. Yet the jury was told repeatedly, through the use of these statements,
of defendant’s alleged admissions to committing the murder, complete with location and
motive. We do not argue that there was not sufficient admissible evidence to convict
4
Neither could agree on the timing of the shooting, either. Karen testified that the shooting occurred
at about dusk, while Sanders said that it occurred at about 11:30 p.m.
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defendant. However, we are not reviewing the sufficiency of the evidence, nor is it our role
here to weigh “good” evidence versus “bad”; even where the evidence is sufficient to convict,
if a defendant is deprived of effective assistance of counsel, the proper remedy is to reverse the
defendant’s conviction and remand the matter for a new trial. People v. Young, 306 Ill. App. 3d
350, 356 (1999); People v. Graham, 179 Ill. App. 3d 496, 509 (1989). We have no confidence
in a verdict reached after the repeated use of improper hearsay statements, especially where
defense counsel failed to attempt to keep these improper statements from the jury. The power
of these detailed “admissions,” in light of the scarcity of other concrete evidence, leads us to
conclude that defendant has shown a reasonable probability that, but for counsel’s errors, the
result of the trial would have been different. Thus, defendant received ineffective assistance of
counsel, which requires this court to reverse his conviction and remand the cause for a new
trial.
¶ 38 Defendant raises additional contentions of error, mostly regarding allegedly improper
argument by the State. The propriety of argument on retrial will depend on the evidence
adduced and objections raised on retrial. We will not speculate as to what errors might occur in
the future and we will not issue an advisory opinion.5
¶ 39 III. CONCLUSION
¶ 40 For these reasons, the judgment of the circuit court of Winnebago County is reversed, and
the cause is remanded for a new trial.
¶ 41 Reversed and remanded.
¶ 42 JUSTICE ZENOFF, dissenting.
¶ 43 I respectfully dissent, because I believe that defendant has not satisfied Strickland’s
prejudice prong. As I explain below, because the properly admitted, nonhearsay evidence
overwhelmingly establishes defendant’s guilt, I cannot agree with the majority that defendant
has established a claim of ineffective assistance of counsel. I would affirm the judgment.
¶ 44 Before addressing the prejudice prong, however, I note that a reading of the record makes
clear that defense counsel’s strategy was to cast McLaurin, Jones, and Tate as “conspirators”
who fabricated a story implicating defendant in Tyrone’s murder in order to negotiate a plea
deal for Tate, who was facing federal drug charges after defendant turned in Tate to the
authorities. Defense counsel accomplished this strategy by eliciting the circumstances of
Jones’s and Tate’s statements to police; by establishing the close relationships among the three
witnesses; by establishing the similarities of Jones’s, Tate’s, and McLaurin’s stories (not just
that they were conferring or having a discussion); and by showing that none of them came
forward until a year after the murder, when Tate was in custody.
¶ 45 During defense counsel’s cross-examination of him, Mastroianni testified that, when he
spoke to Jones a year after the murder, Jones was in the office of the United States Attorney,
looking to get some “consideration” for Tate in his negotiations on his federal drug charges.
Likewise, Mastroianni testified that Tate was in negotiations with federal prosecutors when he
5
One exception is the inadmissibility of dog-tracking evidence. The State admits that the
introduction of this evidence was error. Such evidence shall not be introduced on retrial.
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gave his written statement. Indeed, Tate’s written statement began, “My name is Robert Tate
and I now live in the Ogle County Jail. I am facing a federal drug case but want to share some
information about a murder on Jefferson Street last year.” During closing argument, defense
counsel remarked that it was suspicious how McLaurin, Tate, and Jones all came forward with
the same story at the same time, shortly after defendant turned in Tate to federal authorities.
Counsel referred to the three witnesses as “conspirators who ma[d]e up a story to try to get a
deal.” This strategy of casting the three witnesses as conspirators with a motive to fabricate a
story would have been untenable had counsel not allowed Jones’s oral statements and Tate’s
written statement to be admitted.
¶ 46 Nevertheless, I believe that it is unnecessary to more fully analyze counsel’s strategy,
because defendant has not shown that he suffered any prejudice as a result of counsel’s alleged
errors. A court need not address both prongs of an ineffective-assistance-of-counsel claim if a
defendant makes an insufficient showing on one. Strickland, 466 U.S. at 697. “If it is easier to
dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, *** that
course should be followed.” Strickland, 466 U.S. at 697.
¶ 47 A defendant satisfies the prejudice prong by showing that there is a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different. Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S. at 694. In making this
determination, a court must consider the totality of the evidence before the judge or jury.
Strickland, 466 U.S. at 695. “[A] verdict or conclusion only weakly supported by the record is
more likely to have been affected by errors than one with overwhelming record support.”
Strickland, 466 U.S. at 696. “Taking the unaffected findings as a given, and taking due account
of the effect of the errors on the remaining findings, a court making the prejudice inquiry must
ask if the defendant has met the burden of showing that the decision reached would reasonably
likely have been different absent the errors.” Strickland, 466 U.S. at 696.
¶ 48 Even assuming that defense counsel should have objected to the introduction of Tate’s
written statement, Jones’s oral statements to Mastroianni and Lindmark, and the hearsay
portions of McLaurin’s grand jury transcript, defendant has not shown that the jury’s verdict
would reasonably likely have been different. When the properly admitted evidence of
defendant’s guilt, including Jones’s in-court testimony and grand jury testimony and the
properly admitted portions of McLaurin’s grand jury testimony, is combined with Karen’s and
Sanders’ eyewitness testimony and the other properly admitted evidence, the evidence
provides overwhelming support for the jury’s guilty verdict.
¶ 49 Jones testified at trial that, on the evening of the murder, he and defendant were at 301
Royal Avenue. Defendant told Jones that he planned on “hitting some licks,” which meant
committing a robbery, because he was “broke.” Jones saw defendant leave 301 Royal Avenue
on foot. Approximately 30 minutes to 1 hour later, Jones received a phone call from defendant.
Defendant asked Jones to come pick him up because “he had just shot somebody.” Because
defendant’s statements to Jones were admissions from which guilt could be inferred, Jones’s
in-court testimony as to what defendant said to him was not hearsay and was properly
admitted. See Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011) (providing that a party’s own statement
is not hearsay); People v. Milka, 336 Ill. App. 3d 206, 232 (2003) (explaining that a
defendant’s statement from which guilt may be inferred is an admission that is not
objectionable under the hearsay rule (quoting People v. Stewart, 105 Ill. 2d 22, 57 (1984)).
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¶ 50 Jones’s grand jury testimony was also properly admitted. A witness’s grand jury testimony
that is inconsistent with his or her trial testimony is admissible as substantive evidence under
section 115-10.1(c)(1) of the Code, which, unlike section 115-10.1(c)(2), does not have a
personal-knowledge requirement. People v. Harvey, 366 Ill. App. 3d 910, 920-22 (2006). At
trial, Jones professed memory loss regarding his grand jury testimony and further testified that
defendant “never” confessed to him in the days following the shooting, which was sufficient to
lay a foundation for admission of his grand jury testimony. See People v. Flores, 128 Ill. 2d 66,
88 (1989) (a witness’s “professed memory loss” regarding his or her grand jury testimony is
sufficient to establish inconsistency). Jones testified before the grand jury that, the day after the
murder, Jones saw defendant at defendant’s mother’s house. Defendant told Jones about trying
to rob a guy on Jefferson and having to shoot the guy. Jones explained that “it was something
about because he couldn’t take the money or something from the guy, something. He got in a
struggle with the guy or something.”
¶ 51 McLaurin’s grand jury testimony was also admissible as substantive evidence pursuant to
section 115-10.1(c)(1) of the Code. Like Jones, McLaurin professed memory loss at trial.
Before the grand jury, however, McLaurin testified that she was with defendant and Jones at
301 Royal Avenue on the evening of the murder. Defendant said “that he was broke and he was
about to go rob someone.” Defendant left the house on Royal Avenue on foot, wearing a “black
hoody” and blue jeans. Approximately 20 to 30 minutes later, defendant called McLaurin’s
phone, and she handed the phone to Jones. (McLaurin then testified that, following the phone
conversation, Jones told her that defendant had said that he had just shot someone and needed a
ride, which was a hearsay portion of the grand jury transcript and should have been redacted.)
The next morning, McLaurin saw defendant again at the house on Royal Avenue when he and
Jones drove up in a car. Defendant had a “big silver gun” wrapped in a towel or a shirt in the
trunk and told McLaurin that she “shouldn’t tell anyone.”
¶ 52 Viewing Jones’s trial and grand jury testimony and McLaurin’s grand jury testimony
together, a reasonable trier of fact could have found that, on the evening of the murder,
defendant left 301 Royal Avenue on foot after saying that he was going to rob someone
because he was “broke.” He was wearing a “hoody” and blue jeans. Approximately 30 minutes
later, defendant called Jones’s phone and said that he had shot someone. The next day, Jones
saw defendant at his mother’s house, where defendant again told Jones that he had shot
someone during a failed robbery. Defendant told Jones that the shooting occurred on Jefferson
Street. Also the next day, Jones and defendant drove to 301 Royal Avenue and defendant had a
“big silver gun” wrapped in a towel or a shirt in the trunk. Defendant told McLaurin that she
“shouldn’t tell anyone.”
¶ 53 Most, if not all, of this properly admitted evidence is duplicative of the hearsay evidence on
which the majority focuses its discussion. Thus, the record contradicts the majority’s statement
that, “[o]ther than hearsay statements involving defendant’s alleged confessions to others,
there is very little evidence to tie defendant to Dowthard’s killing.” Supra ¶ 35. In making this
statement, the majority attributes little import to the fact that virtually identical statements
were properly admitted through Jones’s trial and grand jury testimony and McLaurin’s grand
jury testimony.
¶ 54 In this regard, this case is very similar to Harvey, in which the court affirmed the
defendant’s conviction despite the trial court’s error in admitting two witnesses’ prior written
statements that contained the defendant’s admissions. The court explained that it was error to
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admit the written statements, because they did not satisfy the personal-knowledge requirement
of section 115-10.1(c)(2). However, the court concluded that the error was harmless because
“the jury was permitted to consider substantively virtually identical evidence contained in the
recanting witnesses’ grand jury testimonies.” Harvey, 366 Ill. App. 3d at 921-22. The
witnesses’ grand jury testimonies were properly admitted pursuant to section 115-10.1(c)(1),
which does not require personal knowledge. Harvey, 366 Ill. App. 3d at 920-22. Likewise,
here, any error in admitting Tate’s written statement, Jones’s oral statements to Mastroianni
and Lindmark, and the hearsay portions of McLaurin’s grand jury transcript is harmless, as the
jury heard virtually identical evidence in the form of Jones’s trial and grand jury testimony and
McLaurin’s grand jury testimony.
¶ 55 When Jones’s trial and grand jury testimony and McLaurin’s grand jury testimony are
combined with Sanders’ and Karen’s eyewitness testimony and the other properly admitted
evidence, the evidence of guilt becomes overwhelming. Sanders testified that the shooter had a
“big, chrome gun,” which was consistent with McLaurin’s testimony that defendant had a “big
silver gun” in the trunk of the car on the day after the murder. Additionally, Karen testified that
the shooter was wearing a “hoodie” and “some type of dark pants.” This was consistent with
McLaurin’s grand jury testimony that, when defendant left 301 Royal Avenue on foot, he was
wearing a “hoody” and blue jeans. Both Sanders and Karen testified that the shooter was a
young, thin, light-skinned black male. Jiminez testified that, on the evening of the murder,
Karen described the shooter as about five feet, three inches tall and 130 pounds. See generally
People v. Temple, 2014 IL App (1st) 111653 (explaining that prior statements of identification,
including police officers’ testimony as to witnesses’ descriptions of the offender, are
admissible under Illinois Rule of Evidence 801(d)(1)(B) (eff. Jan. 1, 2011) and section 115-12
of the Code). These descriptions were consistent with Whisenand’s testimony that defendant
was five feet, six inches tall and 130 pounds. Furthermore, Karen estimated that the shooter
was between 17 and 19 years old, while, according to Turner, Sanders estimated his age to be
16 or 17. These estimates were not inconsistent with Jiminez’s testimony that defendant’s date
of birth is January 6, 1985, which made him 21 years old at the time of the murder.
¶ 56 The majority casts doubt on Karen’s selection of defendant out of a photo array a year after
the murder, explaining that Karen picked the photo based on “his body structure, his neck, and
his eyes,” which were features that she failed to mention to Jiminez on the night of the
shooting. The majority also notes that Karen testified that the photo “jumped out” at her
because “spiritually, emotionally,” she felt that she was “in the presence.”
¶ 57 While Karen’s choice of words to express her confidence in her identification of defendant
might have been idiosyncratic, her testimony was not equivocal. Karen’s testimony that
“spiritually, emotionally,” she felt “in the presence” came at the end of a rigorous
cross-examination during which she struggled to articulate the reasons for her adamancy that
the photo she selected was of the shooter. She later explained that she was not “spiritually ***
led to pick it out” but picked the photo because she was certain that it was of the man whom she
saw shoot her brother. She testified that she got a “good look” at the shooter’s eyes and that she
could tell that he was a “slender guy” from the “structure of his neck,” which was a “long
neck.” She also saw the color of his skin. Indeed, the photo depicts a light-skinned black male
with an unusually long and slender neck.
¶ 58 Also supporting the jury’s verdict was the evidence of the short distance between 301
Royal Avenue, from which defendant left on foot, and 2319 West Jefferson Street, where the
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shooting occurred and where, Sanders testified, the shooter arrived on foot. Mastroianni
testified that 2319 West Jefferson Street was only about three blocks from 301 Royal Avenue.
Similarly, Whisenand testified that 2319 West Jefferson Street was 2½ blocks from 301 Royal
Avenue. A map introduced into evidence confirmed the officers’ testimony.
¶ 59 Viewing all of the properly admitted, nonhearsay evidence together, the evidence of
defendant’s guilt is overwhelming. Therefore, I cannot agree with the majority’s conclusion
that, other than hearsay statements, “there is very little evidence to tie defendant to Dowthard’s
killing.” Supra ¶ 35. Even assuming that defense counsel should have objected to Tate’s
written statement, Jones’s oral statements to Mastroianni and Lindmark, and the hearsay
portions of McLaurin’s grand jury transcript, there is no reasonable probability that, but for
counsel’s errors, the result of the trial would have been different.
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