# People v. Campbell > Appellate Court of Illinois · July 26, 2002 · 332 Ill. App. 3d 721 URL: https://www.frixlaw.com/law-library/cases/9732023 ## Case - **Full name:** The PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. TESHOME CAMPBELL, Defendant-Appellant - **Court:** Appellate Court of Illinois - **Decided:** July 26, 2002 - **Citations:** 332 Ill. App. 3d 721; 266 Ill. Dec. 41; 773 N.E.2d 776; 2002 Ill. App. LEXIS 649 - **Precedential status:** Published - **Opinion:** Dissent by Knecht - **Judges:** Cook, Knecht, Myerscough - **Cited by:** 30 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9732023 ## Opinion text JUSTICE KNECHT, dissenting: I respectfully dissent. Defendant’s conviction should be reversed because he did not receive effective assistance of counsel and damaging hearsay testimony was improperly admitted. Defendant contends his counsel was ineffective because he failed to (1) impeach two of the State’s occurrence witnesses and (2) call two disinterested eyewitnesses who could not identify defendant as a participant, but who could identify the State’s leading witnesses, Peete and Johnson, as participants. Defendant must show the conduct of defense counsel fell below an objective standard of reasonableness and, but for counsel’s deficient performance, a reasonable probability exists the outcome of the trial would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068. I conclude defendant has satisfied both the deficiency and the prejudice prongs of the Strickland test. Defendant first contends defense counsel failed to impeach Johnson and Peete with their complete criminal records and the specific details of their agreements with the State. On the date of his trial testimony, Johnson had the following convictions, adjudications, and pending charges: (1) a juvenile adjudication for aggravated battery in 1989 (probation); (2) a juvenile adjudication for theft in 1993 (probation and detention); (3) an adult felony conviction for unlawful use of a weapon in 1997 (conditional discharge); (4) a pending felony residential burglary charge, for which he was arrested in July 1998, after he entered into the agreement with the State to testify in the present case; (5) an arrest for armed violence in conjunction with the 1998 residential burglary charge, but the State did not press charges; and (6) a pending petition to revoke probation for domestic battery, which was set for hearing after defendant’s trial. On direct, the State revealed the weapons conviction, the pending burglary charge and the fact that “back in high school,” Johnson was “adjudicated as a delinquent because [h]e got into a fight.” Defense counsel was ineffective because he did not attempt to inform the jury of the remainder of Johnson’s criminal record or the fact the high school “fight” was actually a felony aggravated battery. Defense counsel also failed to point out Johnson’s petition to revoke probation was pending at the time of his testimony and his sentence of conditional discharge was pending when he entered into the agreement with the State. Johnson had a strong interest in cooperating with the State because he could have faced up to three years in prison on the weapons conviction and he faced up to a year on the pending revocation-of-probation petition. Defense counsel should have elicited testimony regarding Johnson’s theft adjudication because it was an offense directly involving dishonesty. See Spates, 77 Ill. 2d at 202-03, 395 N.E.2d at 568 (reasonable relation between theft and testimonial deceit). In addition to the failure to inform the jury of the totality of Johnson’s criminal background, defense counsel failed to elicit testimony concerning the details of Johnson’s agreement with the State. I conclude Johnson’s credibility would have been seriously undermined if the jury had been aware the State could reinstate murder charges against Johnson if he failed to testify to the “truth,” as spelled out in the agreement. As to Steven Peete, defense counsel failed to impeach him with a prior juvenile adjudication for felony mob action and failed to inform the jury of the details of Peete’s agreement with the State. To support his claim of ineffective assistance, defendant points to the trial of codefendant Douglas, who was acquitted of first degree murder in the death of Shepherd. In a recent case, the supreme court compared the results of the trials of codefendants when one defendant claimed ineffective assistance of counsel on appeal. Edwards, 195 Ill. 2d at 165, 745 N.E.2d at 1225. In Edwards, the court looked to the trial of the first co-defendant, where the claimed error did not occur, to conclude counsel’s ineffectiveness in the trial of the other codefendant did not result in prejudice because the first codefendant was also convicted. Edwards, 195 Ill. 2d at 165, 745 N.E.2d at 1225. I conclude the converse can be argued, i.e., a codefendant’s acquittal can be used to argue defense counsel’s strategy constituted ineffective assistance because the results would have been different had he used the same evidence that codefendant’s counsel used. At codefendant Douglas’s trial, testimony regarding Johnson’s prior convictions, pending charges, and vulnerability to additional prison time was admitted as impeachment evidence over the State’s objection. In addition, in codefendant Douglas’s trial, the court allowed defense counsel to tender a copy of Johnson’s agreement with the State as an exhibit, elicit testimony that Johnson’s trial testimony had to match the story his attorney originally told prosecutors in order for him to avoid his own murder prosecution, and tell the jury the “truth” in the case before it was specifically defined in the agreement and Johnson had to testify accordingly or the State could reinstate murder charges against him. Codefendant Douglas was found not guilty, despite the existence of deoxyribonucleic acid (DNA) blood evidence found on his clothing that matched the DNA of Shepherd, the victim. No physical evidence linked defendant to Shepherd’s death. The decision whether to impeach a witness is generally considered a matter of trial strategy. See Ward, 187 Ill. 2d at 261-62, 718 N.E.2d at 127 (decisions on what evidence to present are matters of trial strategy). Defense counsel in the present case may have been unaware of codefendant Douglas’s successful impeachment of Johnson. However, defense counsel had the same impeachment evidence at his disposal as did codefendant Douglas’s counsel, but he did not even attempt to impeach Johnson. Peete did not testify at codefendant Douglas’s trial so we do not have a point of comparison, but defense counsel did not even attempt to impeach Peete with his prior criminal record or the totality of his agreement with the State. There was no trial strategy in defense counsel’s total failure even to attempt to impeach the State’s two main witnesses, especially considering the lack of physical evidence against defendant. The credibility of the State’s witnesses was the critical issue in the jury’s determination of defendant’s guilt or innocence. The successful introduction of compelling impeachment evidence at codefendant Douglas’s trial leads me to conclude that, but for defense counsel’s failure to impeach Johnson and Peete, there is a reasonable probability the outcome of defendant’s trial would have been different. Defense counsel’s failure to call two disinterested eyewitnesses was even more egregious. Defense counsel’s decision whether to call a witness is generally a matter of trial strategy and immune from claims of ineffective assistance. Enis, 194 Ill. 2d at 378, 743 N.E.2d at 12. However, the failure to subpoena witnesses known to defense counsel who could contradict the State’s theory of the case or provide exonerating testimony constitutes ineffective assistance. Butcher, 240 Ill. App. 3d at 510, 608 N.E.2d at 498. Defense counsel’s failure to call Leroy Hunter and Toni Leonard amounted to ineffective assistance because neither of these witnesses could identify defendant as a participant in the beating while they could identify both Peete and Johnson as participants. Hunter originally contacted the police and identified Peete as a participant. Hunter also testified at codefendant Douglas’s trial that he thought Peete was a participant but was not comfortable “swearing” to the identification. In codefendant Douglas’s trial, Hunter’s taped statement to police, in which he stated, “I do know Joe Posey and this Peete,” was introduced as substantive evidence. Hunter’s identification of Peete was bolstered because Hunter knew Peete as a neighbor, and Hunter, who was not saddled with prior criminal convictions, was a far more credible witness than the State’s witnesses. Hunter’s testimony would have virtually destroyed Peete’s credibility and contradicted the State’s version of the facts surrounding the beating. Toni Leonard’s testimony would have contradicted and weakened Rita Butler’s testimony and Leonard would have identified Johnson as a participant in the beating. At codefendant Douglas’s trial, Leonard testified she witnessed the altercation in its entirety as she walked home that evening. She saw Lynntez Holt and Jeff Dillon initiate the argument with Shepherd, which contradicts Butler’s contention that defendant started the fight. Further, Leonard, who had been a neighbor of Johnson’s, identified him as a participant in the beating. Leonard’s testimony at codefendant Douglas’s trial was consistent with statements she gave to police, and these statements were tendered to defense counsel during discovery in the present case. Defense counsel may have chosen not to call these witnesses for various reasons, such as Leonard’s admitted drug use or Hunter’s possible reluctance to testify because he was Peete’s neighbor. However, there was no risk and substantial advantage to calling these witnesses to testify. As to Hunter, if he did not cooperate, defense counsel could have presented his taped statement to police as substantive evidence under section 115 — 10.1(c)(2)(C) of the Code of Criminal Procedure of 1963 (725 ILCS 5/115 — 10.1(c)(2)(C) (West 1998)). This would have eviscerated the credibility of as well as contradicted the State’s theory. Toni Leonard was as credible a witness as the State’s witness, Rita Butler, who also admitted a drug problem. Butler, who the police knew was involved in drugs and who had a criminal record, may have had incentive to cooperate and testify for the State. Leonard, who stood only a few feet from the beating, was in a far better position than Butler to view the beating and identify participants. Defense counsel’s failure to call Hunter and Leonard could hardly be called trial strategy. I can fathom no strategy in this case that could overcome the value of their potential testimony. At codefendant Douglas’s trial, these witnesses were called to discredit the State’s witnesses and to contradict the State’s version of facts. I conclude that, but for defense counsel’s failure to call these witnesses, there is a reasonable probability the outcome of defendant’s trial may have been different. Defense counsel’s failure to impeach Peete and Johnson and his failure to call Hunter and Leonard as disinterested witnesses amount to ineffective assistance of counsel and deprived defendant of his sixth amendment right to counsel and a fair trial. Defendant also contends the trial court erred when it permitted Heather Vinson’s hearsay testimony regarding the conversation she overheard between her boyfriend, codefendant Douglas, and an unidentified third person. Vinson could not identify the person in the backseat of her vehicle, nor could she attribute any specific words to either man. Defense counsel’s objection to the introduction of Vinson’s hearsay testimony was overruled by the trial court: “I understand the State’s theory to be and the evidence, at least for purposes of analyzing this objection, to circumstantially permit the possible conclusion that the [defendant was the person other than Bobby Joe Douglas in the vehicle with Ms. Vinson, and it is my view that the statements elicited by the State were admissible either as a statement by the [defendant or adopted by the [d]efendant’s silence made by Bobby Joe Douglas.” Hearsay is defined as testimony regarding an out-of-court statement offered for the truth of the matter asserted. Cloutier, 178 Ill. 2d at 154, 687 N.E.2d at 936. Hearsay is generally inadmissible unless it falls under an exception. Cloutier, 178 Ill. 2d at 154, 687 N.E.2d at 936. One exception to the hearsay rule permits the introduction of otherwise inadmissible hearsay if it constitutes an admission by the defendant, either express or tacit. Goswami, 237 Ill. App. 3d at 535-36, 604 N.E.2d at 1023. For hearsay testimony to constitute an express admission, the witness must be able to attribute a particular statement to the defendant. If testimony “fail[s] to identify any statement to defendant,” testimony regarding the witness’s recollection of an overheard conversation does not constitute an express admission. People v. Harbold, 124 Ill. App. 3d 363, 374 , 464 N.E.2d 734, 743 (1984). Vinson failed to identify defendant or attribute any statement to him. The trial court erred in admitting her testimony as an express admission. A defendant’s silence following an accusative statement may be considered a tacit admission and admissible as an exception to the hearsay rule. Goswami, 237 Ill. App. 3d at 535, 604 N.E.2d at 1023. Three elements satisfy this general rule: (1) the defendant must hear the accusative statement; (2) the defendant must have had an opportunity to reply and remained silent; and (3) the accusation was such that the natural reaction of an innocent person would be to deny it. Goswami, 237 Ill. App. 3d at 536, 604 N.E.2d at 1023, citing People v. McCain, 29 Ill. 2d 132, 135 , 193 N.E.2d 784, 786 (1963). In criminal cases, application of the tacit-admission rule has been restricted and “such evidence should be received with caution and only when the conditions upon which it becomes admissible are clearly shown to exist.” Powell, 301 Ill. App. 3d at 275, 703 N.E.2d at 936, quoting People v. Aughinbaugh, 36 Ill. 2d 320, 322-23 , 223 N.E.2d 117, 119 (1967). I have found no case in which the tacit-admission rule has been used against a defendant who was not even identified as a party to the conversation in which the alleged tacit admission occurred. Absent Vinson’s positive identification of the third person in her car, the other evidence presented by the State does not sufficiently identify defendant as the third party. Damion Johnson testified he saw defendant flee the scene of the attack in codefendant Douglas’s car. Thus, defendant was present in a car with Douglas at some point that night. However, there is insufficient evidence to show defendant was the third person in Vinson’s car that night. There is no evidence establishing a time fine of events that night after the assailants fled the scene, other than the phone records presented by the State. Even the testimony of Cleo White regarding the time she received calls from Douglas contradicts the times listed on the telephone records. There is no conclusive evidence as to defendant’s whereabouts after he fled the scene in Douglas’s car until Cleo White found him in her son’s room. According to Cleo White, defendant told her Douglas dropped him off. Whether Douglas dropped defendant off after they fled the scene in Douglas’s car or whether Vinson and Douglas dropped defendant off in Vinson’s car remains unclear. With 12 other codefendants originally charged in this crime, there were 10 other men who could have been in Vinson’s car and carried on a conversation with Douglas that “they beat some guy bloody.” The State failed to present sufficient evidence to show defendant was the unidentified man in Vinson’s car. The trial court erred in admitting the hearsay evidence as either an express or tacit admission. The State argues that, even if the evidence was inadmissible, evidence of defendant’s guilt was overwhelming and any error was harmless. In light of defense counsel’s ineffective assistance and the lack of physical evidence against defendant, the evidence was not overwhelming and this error seriously affected defendant’s right to a fair trial. Defendant also alleges 12 instances of prosecutorial misconduct. Two of defendant’s allegations are well-founded: the prosecutor’s improper use of defendant’s prearrest silence and improper comments concerning witness fear. These instances of prosecutorial misconduct alone would not likely result in a deprivation of defendant’s right to a fair trial, so while I condemn them, they do not merit further discussion. Defendant’s conviction should be reversed and the case should be remanded for a new trial. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9732023. Public record. Not legal advice.