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People v. Tucker

Court of Appeals of Illinois, Fifth District

May 30, 2017

JOE C. TUCKER, JR., Defendant-Appellant.

         Appeal from the Circuit Court of Jefferson County. No. 02-CF-212 Honorable David K. Overstreet, Judge, presiding.

          Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard, Deputy Defender, John M. McCarthy, Assistant Appellate Defender, Office of the State Appellate Defender, Fourth Judicial District.

          Hon. Douglas R. Hoffman, State's Attorney, Jefferson County Courthouse. Patrick Delfino, Director, David J. Robinson, Deputy Director, Timothy J. Londrigan, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor.

          JUSTICE CATES delivered the judgment of the court, with opinion. Justices Chapman and Barberis [*] concurred in the judgment and opinion.


          CATES JUSTICE.

         ¶ 1 The defendant, Joe C. Tucker, Jr., filed a pro se petition pursuant to the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). Appointed counsel filed an amended postconviction petition, alleging ineffective assistance of trial and appellate counsel. The State filed a motion to dismiss the amended petition, and the motion was granted by the trial court. The defendant filed a timely appeal, asserting that the trial court erred in dismissing his amended petition without a third-stage evidentiary hearing, when the defendant had alleged sufficient facts to make a substantial showing that his constitutional rights had been violated. For the reasons that follow, we reverse the order of dismissal and remand the matter for an evidentiary hearing.

         ¶ 2 BACKGROUND

         ¶ 3 This appeal is taken from the circuit court's decision to dismiss the defendant's amended postconviction petition at the second stage of postconviction proceedings. The facts of this case are set forth in this court's disposition of the defendant's direct appeal. People v. Tucker, No. 5-06-0484 (2011) (unpublished order under Supreme Court Rule 23). Accordingly, we will restate only those facts relevant to our resolution of the issues raised in this appeal.

         ¶ 4 The evidence at trial established that on the morning of May 6, 1988, Jeff Reynolds, Jana's husband, returned home from his job on the night shift and found Jana lying on the bed covered in blood. She had been stabbed multiple times. A thermal underwear bottom and gray panties were hanging from her left ankle, and her thermal top had been pushed up. She was dead. Her purse was on the living room floor, with its contents dumped out.

         ¶ 5 During the investigation, the police interviewed a number of individuals, including Albert McDaniels and the defendant. Albert McDaniels went to the police station and voluntarily gave samples of hair, pubic hair, saliva, and blood. A forensic technician compared small hair fragments found on Jana's bed sheet to McDaniels' head and pubic hair standards, and determined that there was no DNA match. The defendant also provided samples of hair from his head. A forensic scientist compared the samples taken from the defendant's head with the hair fragments recovered from the crime scene. The forensic scientist testified that the defendant's hair sample did not match the hair fragments at the scene. The scientist further stated that he did not have hair from the defendant's other body parts to compare with the hair fragments obtained from the crime scene, and because of that, the defendant could not be excluded as a suspect. By December 1988, the police had followed more than 300 leads, but the case remained open.

         ¶ 6 In August 2001, the Mount Vernon police department began to reexamine the physical evidence found at the scene of Jana's murder. Using an alternate light source that was not available during the original investigation, a detective found previously undiscovered stains on the thermal bottoms and panties Jana was wearing at the time of her death. Cellmark, a private laboratory, determined that the stains on the thermal bottoms and panties were from seminal fluid. Cellmark developed a DNA profile from the stains and found that the DNA profile was from an unknown male source. The unknown DNA profile was compared to a DNA profile from McDaniels, and it did not match. No physical evidence linking McDaniels to the inside of Jana's house was found.

         ¶ 7 Cellmark also created a DNA profile of the defendant, using the hair samples he had provided to the police in 1988. Cellmark found that the defendant's DNA matched the stains on Jana's thermal bottoms and panties. Investigators obtained a current sample of the defendant's DNA. Cellmark tested that sample and confirmed that the DNA sequences were the same. The defendant was arrested and subsequently charged with Jana's murder.

         ¶ 8 In November 2002, the State's Attorney telephoned police investigators and advised that he had received a letter from a prisoner named Robin Gecht. In the letter, Gecht claimed to have information about Jana's death. Investigators interviewed Gecht, who stated that the defendant had approached him to help prepare a defense for the defendant's case. Gecht told the defendant to write out his involvement with the case, and he wrote out four statements, providing more details in each successive version. Subsequently, the police obtained the statements from Gecht.

         ¶ 9 During trial, Robin Gecht testified that he had been convicted of aggravated battery, aggravated kidnapping, rape, deviant sexual assault, and attempted murder. Gecht admitted that he sent a letter to the State's Attorney stating that he had information about Jana's murder and suggesting that they could work out an agreement helpful to all concerned. Gecht testified that no one from the prosecution or law enforcement had offered him a deal in exchange for his testimony. Gecht stated that the defendant admitted he entered Jana's house with the intent of raping her and burglarizing the home, and that he killed her. Gecht testified that he asked the defendant to write down what had occurred, and that he asked the defendant to rewrite the statement four times, including more details each time. Gecht stated that he helped the defendant with one statement, constructing a theory of defense that his friend, McDaniels, had killed Jana, while he observed. Gecht acknowledged that he had seen four pieces of discovery.

         ¶ 10 Gecht denied tricking the defendant into writing the statements. During cross-examination by the defendant's counsel, the following occurred:

"MR. BURKE [defense counsel]: Did you trick [the defendant] into writing these statements?
GECHT: No, sir.
MR. BURKE: Do you remember talking with me and Kevin McClain back in November?
GECHT: Yes, sir.
MR. BURKE: No other questions, Your Honor."

         ¶ 11 Kevin McClain testified that he was a private investigator. Defense counsel asked McClain if Gecht said that he had tricked the defendant into writing the signed statements. The State objected on hearsay grounds because defense counsel had not asked Gecht any questions about the content of his conversation with McClain. The court sustained the objection.

         ¶ 12 Albert McDaniels testified that on May 5 or 6, 1988, he was near Jana's house because he was going to rob the house next door. McDaniels stated that he walked by Jana's house and looked in the window. He asserted that he had difficulty remembering anything from that time period. Defense counsel handed McDaniels a copy of a statement he had given to the police on May 11, 1988. McDaniels was asked if that was his signature on the bottom of each page, and he answered in the affirmative. When asked if it was his handwriting, he stated that he did not write it. Defense counsel asked that the statement be allowed into evidence as a past recollection recorded. The State objected on the ground that no foundation had been laid, and the trial court sustained the objection. Defense counsel continued asking McDaniels questions about May 5 or 6, 1988, and he claimed not to remember. Defense counsel asked that McDaniels be made a court's witness. The State objected on the ground that he could not be declared a hostile witness until he showed some hostility. The court stated that it would not allow McDaniels to be questioned as a court's witness because he had not shown any hostility. Defense counsel then gave McDaniels a transcript from his testimony in July 1989, to refresh his memory. McDaniels stated that reviewing his testimony only refreshed his memory somewhat, but that the prior testimony indicated that he and an individual named "T.C." had a discussion about robbing a "dope house." McDaniels implied to T.C. that he and Jana had had an affair. McDaniels told T.C. the best time to go to Jana's house if he wanted to have sex with her was between 11 p.m. and 7 a.m. because her husband would be at work. McDaniels denied killing Jana.

         ¶ 13 Defense counsel requested again that McDaniels be declared a hostile witness. The State objected on the ground that McDaniels was answering the questions. The court replied:

"Mr. Burke, you may-you may question this [witness] as if he's being cross examined. There's a proper way that you need to ask someone questions; however, and you're not doing it the proper way. So you need to move on and do it the correct way. But you may cross examine him at this time."

         ¶ 14 McDaniels denied that he stopped by Jana's house and looked in the living room window while the defendant looked in the kitchen window. He also denied telling the defendant that they could go into Jana's house, have sex with her, and look for money for drugs.

         ¶ 15 Alva Busch testified that he had worked for the Illinois State Police as a crime scene investigator for 24 years. In 2001, he retired and opened an agency that reviewed criminal cases. Defense counsel showed Busch a crime scene drawing generated by the Illinois State Police. Defense counsel told Busch that the defendant gave a statement that he looked in the kitchen window and saw Jana lying on the couch. Defense counsel asked Busch to draw a line from the kitchen window to the couch. The State objected on the ground that the drawing was not to scale. Defense counsel argued that it was just demonstrative. The State argued that the defense was ...

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