from the Circuit Court of the 14th Judicial Circuit, Rock
Island County, Illinois, Circuit No. 06-CF-844. Honorable
Walter D. Braud, Judge, Presiding.
Appellant: Mr. Peter A. Carusona, Deputy Defender, Office of
the State Appellate Defender, Ottawa, IL; Mr. Thomas A.
Lilien, Deputy Defender, Mr. Christopher McCoy, Office of the
State Appellate Defender, Elgin, IL.
Appellee: Mr. Mark A. Austill, State's Attorneys
Appellate Prosecutor, Ottawa, IL; Mr. John L. McGehee,
State's Attorney, Rock Island County Courthouse, Rock
Lytton concurred in the judgment and opinion. Justice Carter
dissented, with opinion. JUSTICE CARTER, dissenting.
[¶1] Following an unsuccessful direct
appeal, defendant, Thomas E. Jones, filed a pro se
petition under the Post-Conviction Hearing Act (725 ILCS
5/122-1 et seq. (West 2012)). After 90 days passed,
the petition advanced to the second stage and the trial court
appointed counsel to represent defendant. Appointed counsel
amended the petition arguing that defendant's appellate
counsel was ineffective for failing to raise arguments on
direct appeal concerning evidence presented at trial of the
victim's autopsy photographs and a redacted video
recording of defendant's statements to police.
[¶2] Following a hearing on the State's
motion to dismiss, the trial court dismissed the petition at
the second stage. Defendant appeals, arguing appointed
counsel failed to provide reasonable assistance of
postconviction counsel. Specifically, defendant argues that
appointed counsel failed to satisfy his duty under Illinois
Supreme Court Rule 651(c) (eff. Feb. 6, 2013) to make
amendments to his pro se petition necessary to
adequately present the defendant's contentions. We
reverse the order dismissing defendant's petition and
remand the matter for further second-stage proceedings and
the appointment of new postconviction counsel to amend the
petition as necessary.
[¶4] Defendant was charged with first degree
murder (720 ILCS 5/9-1(a)(2) (West 2006)) and aggravated
battery of a child (720 ILCS 5/12-4.3(a) (West 2006)) based
on the death of his two-month-old son, K.C. Both counts
alleged that defendant " violently shook" K.C.
causing his death.
[¶5] Before trial, the State filed a motion
in limine notifying defendant of its intent to
present a redacted video recording of defendant's
statements to police. In the redacted video recording,
defendant demonstrated how he handled K.C. Defense counsel
filed a motion in limine seeking to bar the State
from introducing the redacted version of the video recording.
[¶6] Defendant's motion argued:
" [defense counsel] has been made aware that the State
seeks the introduction of video and audio recordings of the
Defendant's statements which would be edited to highlight
certain respects of his interrogation or questioning by law
enforcement representatives. It is improper to introduce into
evidence audio recordings that have been changed, augmented,
[¶7] In arguing the motions before the trial
court, the following colloquy occurred:
" [Defense Counsel]: Judge, these demonstrations are--I
have seen them. I have been through the evidence--are all in
response to specific questions and a chain of questions
leading up to the demonstrations ***. That all needs to be
played in context so the jury has that context in which to
place his statements. Just having blurps without context,
Judge, is improper.
THE COURT: What context are you talking about?
[Defense Counsel]: The questioning. The series of
questioning, what leads up to this. Cleary & Graham in their
handbook of Illinois Evidence, Judge, state that the federal
courts established the elements of the foundation for these
videotapes and audiotapes and Item 4 of what they enumerate,
what needs to be made clear here, is that changes, additions,
or deletions have not been made to the recording. That's
one of the requirements. So snipping it, cutting it, putting
it in ...