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January 27, 1997

RICHARD D. McVICAR, Respondent.

The opinion of the court was delivered by: MORAN

 Robert Gooch, a prisoner at Shawnee Correctional Center in Vienna, Illinois, brings a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition Gooch argues that (1) the state trial court's failure to admit evidence that his cousin, Ryan Gooch, confessed to committing the murder in question violated his due process right to a fair trial; (2) his trial attorney's failure to tender a lesser offense jury instruction constituted ineffective assistance of counsel in violation of the Sixth Amendment; and (3) the state prosecutor's misstatement of the law and reference to facts not in evidence during his closing statement violated petitioner's due process right to a fair hearing. For the reasons set forth below, the petition is granted.


 At approximately 10 p.m. Angela left Marrs' apartment and returned to her own apartment. At midnight, petitioner, along with Anthony, Terrell, and Ryan Gooch, came to Angela's apartment to ask if she knew where Eskridge was. According to Angela, petitioner said that Eskridge had broken a window in his mother's car. Angela then heard Anthony mumble something and thought he said, "We're going to pop him." Angela told the Gooches that Eskridge was either at Susanna Marrs' apartment or at home.

 Susanna Marrs testified that on December 26, 1991, at about midnight, Anthony Gooch came to her door and asked if Eskridge was there. Eskridge was, and Anthony accused him of breaking the window in his mother's car. Eskridge, who had been drinking, did not appear upset or threatening; he confronted Anthony on the patio balcony and said he did not know anything about the broken window. Anthony turned and walked down the steps from the balcony. Marrs testified that at that point "two more people came out of nowhere." She recognized one of the persons as petitioner. He was wearing a Raiders Starter jacket and was standing at the bottom of the stairs with another boy who was wearing a black trench coat.

 Marrs testified that petitioner asked Eskridge what happened to the car window and Eskridge denied knowing anything about it. The accusation and denial were repeated several times, with Eskridge raising his voice and getting irritated. Petitioner then shot Eskridge. Marrs did not see the gun being pulled out, but she saw petitioner raise his arm and a flash when the gun was fired. Marrs admitted she may initially have confused the names and told police that Anthony was the shooter. At trial, though, she testified that petitioner definitely was the man who shot Eskridge.

 Eugene Unger testified that he was at Marrs' apartment when the shooting occurred. Unger was in Marrs' bedroom when someone knocked at the back door. Marrs answered the door and Unger heard someone complaining about a broken car window. When Unger looked out the bedroom window he saw one person walking down the stairs and two others at the bottom. While Eskridge was arguing about the broken car window someone pulled out a gun and shot him. Unger acknowledged that he initially told police that petitioner's brother Anthony fired the shot. However, Unger testified that later that night he identified petitioner as the shooter, as he viewed him in a squad car. According to Unger, petitioner was wearing a black or blue "long trench coat like." Unger did not see petitioner pull out the gun, but did see him fire it. Unger also positively identified petitioner in court.

 Police Officer Frank Christian testified that on the night of the shooting, approximately two or three blocks from the crime scene, he saw a group of suspects who matched the description of the assailants. Christian took these suspects, including petitioner, into custody. Christian then brought petitioner and his brother Anthony to the crime scene, where Marrs and Unger identified petitioner as the shooter.

 Police Officer Thomas Stein testified that in the early morning hours of December 27, 1991, he interviewed Ryan Gooch. Stein testified that Ryan took them to the home of a man named Euron Matthews, who turned over a .22-caliber revolver. The parties stipulated that if called to testify the state's ballistics expert would tell the jury that the .22-caliber projectile recovered from Eskridge's body was too mangled to identify as being fired from a particular weapon.

 After resting its case, the state made a motion in limine, asking the court to bar petitioner from eliciting testimony as to a confession Ryan Gooch made to the police. The state argued that the confession was inadmissible because it was hearsay. Petitioner countered that the confession was admissible because (1) it was a statement against penal interest; (2) it was or would be corroborated by evidence; and (3) it was trustworthy in that it was made to police, and to the declarant's father, who was also in the room.

 Petitioner then made an offer of proof which established that Ryan was arrested when his father brought him down to the police station in the early morning hours of December 27, 1991, after learning police wanted to talk to him as a witness. *fn2" Ryan initially denied any knowledge of the shooting. He stated that he and petitioner were involved in an argument with Eskridge over a broken car window. Detective Stein then told Ryan that he felt petitioner was the shooter and that Ryan was a witness. Ryan told Stein that he was wrong and that he, Ryan, had shot Eskridge. He went on to say that he had the gun for a while and kept it outside. He identified the gun as a .22-caliber revolver that he threw in the river after the shooting. At that point petitioner was brought into the room. Ryan then told petitioner that he had told police that he shot the victim. Next, Ryan took the police to Euron Matthew's house, where Ryan identified a weapon as being the one used in the shooting.

 Ryan then gave a detailed statement, indicating that he and petitioner drove to Euron Matthews' house, where Ryan got his gun. They went to confront Eskridge at Marrs' apartment. Anthony went up the stairs to Marrs' back door while Ryan and petitioner stayed on the lawn. Anthony knocked on the door and confronted Eskridge about the broken car window. Eskridge denied breaking it and told Anthony to leave. Ryan and petitioner then started yelling at Eskridge. As Eskridge moved toward them, Ryan took out the gun and shot him. After he fired the shot they all ran. Ryan and petitioner then drove back to Matthews' house, where Ryan hid the gun.

 The court was apprised that if Ryan were called to testify he would refuse to do so since it might incriminate him. The court subsequently granted the state's motion to bar evidence of Ryan's confession.

 Police Officer Michael Botzum testified for the defense that he was the first officer on the scene after the shooting. Eskridge's body was lying on the kitchen floor and Susanna Marrs, David Wheeler and Eugene Unger were there. Unger told Botzum that Anthony Gooch shot Eskridge.

 Officer Michael O'Neill testified that in the early morning hours of December 27, 1991, he interviewed Angela Hauser and her mother. O'Neill did not recall Hauser or her mother stating that they heard the people looking for Eskridge say they were going to "pop" him.

 The 18-year-old petitioner testified that he was home on the evening of December 26, 1991, with his cousin Ryan and two girls whom Ryan knew. Sometime between 10 p.m. and 11:30 p.m. petitioner's brothers Anthony and Jeremy, and cousins Terrell and John, came over. They said that Eskridge and another man had chased them and threatened to beat them up if they did not stay away from Angela Hauser. Petitioner knew that Eskridge was a gang member and the type of ...

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