Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County, 09 CR 13757, Honorable Thomas V. Gainer, Jr., Judge Presiding.
Justices Hyman and Pierce concurred in the judgment and opinion.
NEVILLE PRESIDING JUSTICE
¶ 1 A jury found Marcel Simpson guilty of murder. On appeal, Simpson contends that he did not receive effective assistance of counsel because his attorney failed to object when the court permitted the jury to watch a video recording of a witness telling police that Simpson confessed to the murder. We find counsel's failure to object objectively unreasonable, and we find a reasonable probability that Simpson would have achieved a better result if his counsel had objected to the evidence. Therefore, we reverse the conviction and remand for a new trial.
¶ 2 BACKGROUND
¶ 3 In February 2006, Phillip Thomas fought Dwayne Powell and knocked out several of Powell's teeth. On May 8, 2006, Jesse Rucker saw Thomas running down an alley, chased by two men running and two cars. The running men caught Thomas and others leapt from the two cars to join in a savage beating. Rucker called police. Thomas died from the blows that caused five comminuted fractures to his head. Rucker identified Powell in a photo array as one of the men who chased and killed Thomas.
¶ 4 On May 14, 2006, police brought Rucker back to the police station to view a lineup. Rucker identified Antonio Morris, Larron Wallace and Marcel Simpson as men who beat Thomas on May 8, 2006. In October 2007, Dwayne Thompson, in jail on an unrelated charge, signed a statement about the beating. Prosecutors charged Simpson, Morris, Wallace and Johnny Graves with first degree murder. Graves agreed to testify against Simpson and Morris, and to plead guilty to conspiracy to commit murder, in exchange for the State's recommendation of a sentence of 14 years in prison for Graves.
¶ 5 A single jury heard the case against Simpson and Morris. Rucker testified that he saw six men beat Thomas with a wooden bat and a metal bar. A photograph accurately depicted the lineup Rucker saw on May 14, 2006. He identified Simpson and Morris in the photograph as persons he saw in the group that beat Thomas to death. However, Rucker could not identify either Simpson or Morris in court as a person he saw beating Thomas. Rucker, who was 74 years old, admitted that he "can't see that good."
¶ 6 An investigator testified for the defense that Rucker's window was 164 feet away from the site of the beating. When the investigator interviewed Rucker, Rucker said he was 90% sure he correctly picked out the offenders in the police lineup.
¶ 7 Graves testified that on May 8, 2006, he rode with Morris as they took Simpson to a store. Graves saw Thomas getting off the "el." Graves knew Thomas had beaten up Powell, a friend of Graves, Morris and Simpson. Morris made a phone call while Graves went into the store to find Simpson. Graves, Simpson and Morris searched the neighborhood looking for Thomas. They met Thompson, Powell and Wallace in a car Thompson's girlfriend owned. Graves spotted Thomas again, and Simpson and Powell got out of the cars and chased Thomas, with the cars joining the chase. When he got close, Simpson threw a metal bar at Thomas. Graves got out of the car and started hitting Thomas, who fell. Graves, Simpson, Morris, Thompson, Wallace and Powell struck Thomas repeatedly with the bar and the bat, and then they left the area in two cars.
¶ 8 Thompson admitted that he rode with Wallace in his girlfriend's car on May 8, 2006, and they met Morris driving his car. However, Thompson testified that he did not see anyone running, he saw no beating, and he did not say most of the things attributed to him in the written statement he signed at the police station.
¶ 9 The court allowed an Assistant State's Attorney to read to the jury the statement that Thompson signed in jail in 2007. According to that statement, on May 8, 2006, Wallace received a phone call while driving Thompson's girlfriend's car. Wallace told Thompson Graves had called and said they saw Thomas nearby. Wallace and Thompson drove to meet up with Simpson, Morris, Graves and Powell. On the way, they saw Simpson and Powell chasing Thomas through an alley, with Morris, driving his car, also involved in the chase. Thompson got out of the car and watched Simpson and Morris beating Thomas. Simpson bashed Thomas's head with a bat, hitting it so hard, it sounded "like a turtle shell cracking." The State did not charge Thompson for his role in the crime.
¶ 10 Vonzell Franklin testified that late in the afternoon on May 8, 2006, he met Simpson on the street. Franklin did not remember what Simpson said to him, but he remembered that he talked to the police later about what Simpson said. Franklin did not remember what he said to the police. He agreed that he probably told the police he saw Simpson talking with Shinesha Houston in an alley, and he agreed that he told the police Simpson said he "caught that n***** Phil."
¶ 11 The prosecution then introduced into evidence, without objection, a video recording of Franklin talking to the police at the police station. In that recording, Franklin told the police what Simpson said to him, "we beat the fuck out that n***** man I think he dead, " and "we bashed his head in[.] I hit him about 30 times with that bat." Later, Franklin added that Simpson said, "these n*****s acting ...