Court of Appeals of Illinois, First District, Third Division
Rehearing denied July 17, 2013
Defendant’s murder conviction was reversed and the cause was remanded for a new trial where his counsel’s failure to object to the trial court’s decision to allow the jury to view a video recording of a witness telling the police that defendant confessed, since the failure to object was objectively unreasonable, especially in view of the “extreme probative weight” of a confession, the absence of any physical evidence connecting defendant to the crime scene, and the reasonable likelihood that an objection would lead to a better result for defendant.
Appeal from the Circuit Court of Cook County, No. 09-CR-13757; the Hon. Thomas V. Gainer, Jr., Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Megan E. Ledbetter, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Mary Needham, and William L. Toffenetti, Assistant State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE NEVILLE delivered the judgment of the court, with opinion. 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 ...