People v. Bailey

872 N.E.2d 1018, 374 Ill. App. 3d 1008, 313 Ill. Dec. 629, 2007 Ill. App. LEXIS 734
Appellate Court of Illinois·Decided June 29, 2007·No. 1-04-3835·Published·Cited by 12 cases

Opinion

PRESIDING JUSTICE THEIS

delivered the opinion of the court:

Following a third-stage evidentiary hearing under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122 — 1 et seq. (West 1994)), the trial court granted defendant’s request for a new trial based on ineffective assistance of trial counsel. The State now appeals, contending that the grant of a new trial was manifestly erroneous. Specifically, the State argues that: (1) defendant failed to prove that his trial counsel was ineffective in failing to file a written pretrial discovery motion, failing to impeach an eyewitness with certain grand jury testimony, or failing to recognize that his dual representation created an actual conflict of interest, and (2) the circuit court relied on improper evidence from outside the record in making a credibility determination with respect to trial counsel. For the following reasons, we reverse the judgment of the circuit court.

BACKGROUND

On May 8, 1987, Anthony Jackson was fatally shot, and Brandon Abrams and Anthony Camphor were shot and injured during a melee occurring near an elevator on the ground level of a Chicago Housing Authority building at 4101 South Federal Street in Chicago. At trial, Abrams, as well as two other eyewitnesses, Michael Thompson and Torrence Adams, testified on behalf of the State. Defendant and codefendant Darryl Moten were both represented by privately retained attorneys William Swano, Abbey Fishman, and Edward Stern in a joint bench trial. This was a capital murder case for defendant as he had a prior murder conviction. The State’s theory of the case was that Moten was the shooter and that defendant was liable under an accountability theory. Defendant was ultimately convicted of first degree murder and two counts of attempted murder and was sentenced to life imprisonment on the murder conviction and concurrent 10-year prison terms on the two counts of attempted murder.

The following relevant evidence was adduced from the record on appeal. At trial, Brandon Abrams testified that on May 8, 1987, he observed a man throw a brick at a group of people and Abrams and Camphor chased the man to the elevator area at 4101 South Federal. Abrams observed about 10 people standing around, including Thompson and Adams. Abrams asked whether they saw where the man who threw the brick had gone. Someone replied, “there they go.” Next, Abrams heard someone say “shoot them marks.” Abrams then stated that a lot of people were shooting and that he and Jackson got shot. Abrams was unable to identify the shooter or the person who uttered the words “shoot them marks,” although he said that the gunshots came from the group standing in front of the elevator. He also admitted that he and Camphor were members of the Vice Lords gang.

Torrence Adams testified that on the night of May 8, 1987, he and Thompson were returning from a liquor store and as they walked through the elevator area of 4101 South Federal, they saw a group of people standing around, including four people associated with the Gangster Disciples street gang. Adams recognized defendant and codefendant Moten as two of those four people. Adams stated that he had known codefendant Moten for five years and did not personally know defendant, but had heard of and had seen him on the street once or twice and knew he went by the nickname “Peanut.”

As Adams and Thompson left the elevator area, they saw two men run by the area followed by a third person. Adams identified the first two men as “Brandon” and “Ant.” One of the men asked Adams if he knew the man who had run through the area, and Adams tried to signal to the men “to look over there,” but the others did not understand. At this time, a fourth man, who was not wearing a shirt, ran to the area and stooped to tie his shoe. Adams testified that codefendant Moten turned around and fired a gun and that defendant said “shoot.” As Adams ran away, he saw the man without the shirt fall to the ground.

On cross-examination, Adams equivocated, stating that although he saw defendant there, he did not know if defendant was the person who said, “shoot.” Adams further testified that he was interviewed by police officers after being placed in a lineup on May 11, 1987. When asked on cross-examination whether he told Detective Kelly that Mo-ten was involved in the shooting and that he saw “Peanut” at the scene of the shooting, Adams insisted at trial that he had told the officers that information, but was unable to remember the name of the officer with whom he had spoken.

Next, Thompson testified that at the time of trial, he was serving a six-year prison sentence for aggravated battery. He had known defendant his whole life and had also known codefendant Moten. On May 8, 1987, he was with Adams a little before 11 p.m. When they arrived at 4101 South Federal, they saw a large number of people near the elevator at the center of the building. When Thompson walked out of the building, some “guys” came through talking to each other. Thompson testified that a man standing by the wall near the elevator then turned around and shot one of the men. At trial, Thompson testified that he could not identify the shooter because it was dark.

The State moved to have Thompson declared a hostile witness based upon his earlier statements to a police officer and a statement made to the prosecutor the day before his testimony. In that statement, he referenced his grand jury testimony in which he identified codefendant Moten and defendant as participants in the shooting. The prosecutor informed the court that she was not aware of any grand jury transcript of Thompson, but that she would check the records. Specifically, she indicated to the court that the testimony upon which the grand jury returned an indictment had already been tendered to the defense. In addition to that statement, the prosecutor indicated to the court that

“there was evidently testimony that was brought out under a John Doe transcript prior to the Indictment, the actual Indictment. If that is the case, we are both entitled to have it and I don’t physically have it.”

Defense counsel acknowledged that he had been tendered a grand jury transcript by the State, but indicated that the transcript did not include testimony from Thompson. It also became apparent that defense counsel had not filed a written motion for pretrial discovery, but that the State had filed an answer. The prosecutor indicated to the court that, “the answer that we filed said that the [grand jury testimony] would be made available upon being received by the People and we don’t have it.”

After a continuance, it became apparent that Thompson and Adams had indeed previously testified before the grand jury in a “John Doe investigation” prior to its returning an indictment. The prosecutor tendered a copy of that transcript to defense counsel and defense counsel acknowledged receipt of that on the record. The transcript included the grand jury testimony from both Thompson and Adams.

The State also called Detective Thomas Kelly for the purpose of voir dire to determine whether Thompson could be declared a hostile witness.

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People v. Bailey, 872 N.E.2d 1018, 374 Ill. App. 3d 1008, 313 Ill. Dec. 629, 2007 Ill. App. LEXIS 734 (Ill. Ct. App. 2007).

872 N.E.2d 1018 (People v. Bailey) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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