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.
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
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.
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v. Tucker, No. 5-06-0484 (2011) (unpublished order under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
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
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 ...