Where an accused's purported confession to a murder was reiterated in a recorded statement made by an individual who had not seen the offense and who testified that he did not remember what the defendant had said, a new trial was required after that recording was played for the jury without objection, since the " event" as to which the witness's personal knowledge would statutorily permit the admission of his prior inconsistent statement was the crime itself, rather than the confession--ineffective assistance of counsel.
Lisa Madigan, Attorney General, of Springfield, and Anita Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, and Janet C. Mahoney, Assistant State's Attorneys, of counsel), for the People.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, and Megan E. Ledbetter, Assistant Appellate Defender, of the Office of the State Appellate Defender, of Chicago, for appellee.
JUSTICE THOMAS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and Theis concurred in the judgment and opinion.
Following a jury trial in the circuit court of Cook County, defendant, Marcel Simpson, was convicted of first degree murder in connection with the beating death of Phillip Thomas. At defendant's trial conducted in October 2010, Vonzell Franklin testified that he was near the crime scene on the date of the murder in May 2006, but did not recall what defendant said to him or what he told police that night. The State then admitted Franklin's videotaped statement to police in which he stated that defendant told him that he had hit the victim 30 times with a bat. The State emphasized the statement in its closing argument. The appellate court reversed defendant's conviction and remanded for a new trial, finding that defense counsel was ineffective in failing to object to the introduction of Franklin's statement where the " personal knowledge" requirement for admission of a prior inconsistent statement was not satisfied under section 115-10.1(c)(2) of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1(c)(2) (West 2010)). 2013 IL App. (1st) 111914, 993 N.E.2d 527, 373 Ill.Dec. 221. We granted the State's petition for leave to appeal (Ill. S.Ct. R. 315 (eff. July 1, 2013)), and we now affirm the judgment of the appellate court.
The State's theory at trial was that Thomas was beaten to death by six men: defendant, Antonio Morris, Larrone Wallace, Johnny Graves, Dwayne Powell and Dwayne Thompson. According to the State's evidence, the beating occurred in retaliation for a prior beating that Thomas delivered to Powell, which resulted in Powell losing several teeth. Defendant and three codefendants--Morris, Wallace and Graves--were charged with first degree murder in connection with the death of Thomas. Powell and Thompson were never charged. Wallace pled guilty to second
degree murder in 2007, and Graves pled guilty to conspiracy to commit murder in 2009. Defendant and Morris were tried jointly and both were convicted of first degree murder.
At trial, the State called one occurrence witness who was not implicated in the offense: 74-year-old Jesse Rucker. Rucker testified that on the evening of May 8, 2006, he was doing repair work on the second floor of his home at 123 North Waller Avenue, in Chicago, when he heard a loud noise coming from an alley to the north between Waller and Parkside. Rucker turned and saw two or three men chasing another man down the alley. Two vehicles, a Chevy and a Ford Bronco, were following behind the men. When the men on foot turned out of the alley into a vacant lot to the north of Rucker's house, the Chevy followed them, while the Bronco continued down the alley and then west toward Waller.
Rucker then went to a bedroom window, overlooking Waller Avenue, to see what was going on. At that point, he saw six men beating the victim, who was lying in the street. He saw the two vehicles, but nobody was left in them. The victim was being beaten by men wielding one object that looked like a bat and another object that looked like a tire tool or a crowbar. All of the six men took turns using the metal objects to beat the victim.
As the beating continued, Rucker left his second-floor bedroom window and went downstairs to his front porch. Rucker then saw the victim attempt to slide himself under a car, but the men pulled him out and continued to beat him.
At some point, Rucker called the police. The men eventually stopped beating the victim and left in the vehicles. Police arrived moments later. Rucker gave a general description to police of the attackers as " six black males."
From pictures shown to him at trial, Rucker identified the Chevy and Ford in which the perpetrators came to and left the scene of the beating. Rucker further testified that he spoke with police who showed him photographs, and he identified Powell as one of the offenders. Rucker did not identify Thompson from the photos. A few days later, Rucker went to the police station and viewed lineups. There, he identified Morris as the driver of the Ford, Wallace as the driver of the Chevy, and defendant as one of the offenders who chased Thomas on foot. Rucker stated that all three of them beat Thomas. Rucker was unable to identify Graves or Powell in the lineups in which they were present. Moreover, Rucker was unable to identify either defendant or codefendant Morris in court, stating that he did not see anyone in court that he had picked out of the lineups.
On cross-examination, Rucker testified that when he saw the three men chasing the victim through the alley, they were within five or ten feet from his house and he " could see them very well." He stated that he was almost 100% sure of his lineup identifications and did not recall telling an investigator that he was only 90% sure of his lineup identifications. Rucker acknowledged that he lost sight of the men that ran through the alley when he changed vantage points. He explained that he saw them when they were within reaching distance of the victim, but then he ran from the back of his house to the front, and this did not take more than a minute and a half. By this time, the men had the victim on the ground and circled. They then proceeded to pass the bat and crowbar from one to another to beat him. Rucker did not know if any particular offender struck the victim more than once, but he was sure each one of them used both the bat and crowbar.
The State's two other occurrence witnesses, Graves and Thompson, were, according to the State's own theory, accomplices in Thomas's murder. As noted above, Graves pled guilty to a lesser charge in exchange for his truthful testimony and a recommended sentence of 14 years. Graves testified that on May 8, 2006, he rode with Morris as they took defendant to a store. Graves saw Thomas get off the " L" train. Graves knew Thomas had beaten up Powell, a friend of Graves, Morris and defendant. Morris made a phone call while Graves went into the store to find defendant. Graves, Morris and defendant then searched the neighborhood looking for Thomas. They met Thompson, Powell and Wallace in a car Thompson's girlfriend owned. Graves spotted Thomas again. Defendant and Powell then got out of the cars and chased Thomas, with the cars joining the pursuit. When he got close to Thomas, ...