No. 2-13-0135 Opinion filed July 24, 2015 ______________________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT ______________________________________________________________________________

THE PEOPLE OF THE STATE ) Appeal from the Circuit Court OF ILLINOIS, ) of Winnebago County. ) Plaintiff-Appellee, ) ) v. ) No. 10-CF-58 ) FRANKLIN LOFTON, ) Honorable ) John R. Truitt, Defendant-Appellant. ) Judge, Presiding. ______________________________________________________________________________

JUSTICE McLAREN delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion. Justice Zenoff dissented, with opinion.

OPINION

¶1 After a jury trial, defendant, Franklin Lofton, was found guilty of three counts of first-

degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (b)(6) (West 2006)) and one count of attempt

(armed robbery) (720 ILCS 5/8-4, 18-2 (West 2006)) arising out of the shooting death of Tyrone

Dowthard. Two of the murder counts merged into the third (under subsection (a)(2)), and

defendant was sentenced to a mandatory term of natural life in prison for first-degree murder, to

be served consecutively to a term of 20 years for attempt. These sentences were to be served

consecutively to defendant’s 75-year prison sentence arising from a prior, unrelated murder

conviction. Defendant now appeals from his convictions. We reverse and remand for a new

trial.

¶2 I. BACKGROUND

¶3 At trial, the victim’s sister, Karen Dowthard, testified that she was at her home at 2319

West Jefferson Street in Rockford with Tyrone and a friend, Henry Sanders, in the evening of

May 23, 2006. At around dusk, she walked out her door to her front porch and saw Tyrone,

standing by his truck in her driveway, and a small, slender, light-skinned black man with a gun

standing near him. Her porch light was on, so she could see the man, whom she thought was

between 17 and 19 years old. He was wearing a hoodie with the hood “partially” up and had a

bandana wrapped around his face; she could see only from the bottom of his eyes to the middle

of his forehead. She noticed his eyes and the structure of his neck even though she saw the man

only from the side. The man said, “Stick your hands up,” and Tyrone laughed. The man shot

him. Karen could not identify the shooter that night.

¶4 About a year later, police showed her a photo line-up, and she picked out a photo

“[i]mmediately.” She could “tell his neck” and she believed that she had seen the shooter’s

“braids out of the back.” She recognized the shooter “from his body structure, his neck, and his

eyes.” The photo “jumped out” at her because “spiritually, emotionally,” she felt she was “in the

presence.” She identified the man in the photo as defendant.

¶5 Sanders, who had been sitting near the bottom of the stairs of the porch at the time of the

shooting, testified that, at about 11:30 p.m., a young, small black man, probably a teenager, with

something covering his face came from behind the house with a “big, chrome gun” and told

Tyrone to put up his hands. Sanders remembered Tyrone “putting it like I guess he thought it

was a joke.” The man shot Tyrone and ran away in a different direction. Sanders did not

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remember that he called the police, nor did he remember what he told the police that night.

About a year later, he was shown a photo line-up by the police, but he could not identify anyone

as the shooter.

¶6 Officer Patrice Turner of the Rockford police department testified that she responded to a

call of a shooting at 2319 Jefferson at about 11:30 p.m. on May 23, 2006. When she first saw the

man she later learned was Sanders, he was “distraught, he was crying and very frantic.” She

later interviewed Sanders and described him as cooperative and answering questions

appropriately. Sanders described the shooter as “short” and a “shorty,” a term that meant a

“younger person” or “a kid.” Sanders further described the shooter as five feet three inches tall

with a medium build. The shooter had on a gray sweater that was pulled up over the lower half

of his face and something over his head. Sanders described the shooter as “a 16 or 17 year old

black male” with the voice of “a younger teenager.” The shooter had a “long barrel, silver

handgun.” Sanders said that he had never seen the shooter before that night and was unsure if he

would be able to identify him.

¶7 Detective Mark Jimenez of the Rockford police department testified that he interviewed

Karen within hours of the shooting. He described Karen as “a little bit emotional” but able to

talk. Although Jimenez initially testified that Karen thought that she could identify the shooter,

on cross-examination he reviewed the report that had been written by another detective and

stated that he was mistaken; Karen had stated that she “could identify his description and not his

actual physical identity.” Karen gave a description of a black male, five feet three inches tall,

130 pounds, wearing gray pants, a gray hooded sweatshirt, and a red and white bandana. She did

not mention that his eyes, neck, or facial structure stood out to her. Karen told him that she

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would be unable to identify the shooter if she saw him again. Jimenez gave defendant’s date of

birth as January 6, 1985.

¶8 Deputy Dennis Hill of the Winnebago County sheriff’s department testified that he was

assigned to the canine unit when he was called to Karen’s house around midnight on May 23,

2006. He and his canine, Hoss, were directed to the east side of the house, near the front. Hoss

picked up a scent, taking Hill north, along the side of the house to the garage, then northwest,

through some backyards, to the intersection of Soper and Andrew, about one block north and one

block west. Hoss lost the scent there. Hill stated that, when he arrived, the scene was

contaminated by the many people already there and he could not tell whether Hoss was tracking

“a suspect or a witness or somebody completely unrelated” to the situation.

¶9 Diane McLaurin was called to testify but either could not remember events or denied that

they occurred. This applied to events on or about May 23, 2006, talking to police and identifying

defendant in a photo array in April 2007, and testifying before the grand jury. She did admit that

her signature was on a “photo spread notice” (which had been marked as People’s exhibit No. 8),

but she did not recognize the document or remember what was included on it. She stated that

she did not know defendant, but later admitted signing the back of “the photograph of Franklin

Darielle Lofton.” The State went through each question and answer from McLaurin’s testimony

before the grand jury, asking her if she remembered the question and giving the answer.

McLaurin was confused, sometimes answering whether she remembered or not, sometimes

answering as though the recited question was currently being asked. Several times, the court

reminded McLaurin that “that’s not the question. The question is do you remember being asked

that question and giving that answer.” After saying that she did not remember what year she

testified before the grand jury, she denied remembering going before the grand jury at all.

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¶ 10 Robert Jones, defendant’s cousin, testified that he met with detectives in May 2007 and

told them that he was with defendant during the day in question and that defendant had a silver

.357 revolver. Defendant told him that he was planning on committing a robbery (“hitting some

licks”) that evening because he was broke. Defendant walked away from Jones’s house but

called Jones a half hour to an hour later. Defendant asked Jones to pick him up at defendant’s

house on Sherman because he had just shot somebody. Jones did not do so.

¶ 11 Jones saw defendant a day or two later at the home of Alonda Johnson, defendant’s sister.

Jones heard defendant and Johnson arguing; defendant “didn’t really say anything,” but Johnson

was “hollering at him.” The State then began reading questions and answers from Jones’s grand

jury testimony involving what Jones heard of that conversation; Jones did not remember his

grand jury testimony. He stated that defendant never confessed any crime to him. Jones

admitted that, when he talked to the assistant State’s Attorney and an investigator the day before

trial, he told them that defendant had told him over the telephone that he had shot someone and

needed a ride; however, Jones denied that defendant had said that the shooting had occurred on

Jefferson.

¶ 12 Robert Tate testified that he was currently on federal parole following a 2008 conviction

and had also been convicted of state felony charges. In May 2006, he lived with his girlfriend,

Johnson, and defendant. Tate was asked if, on the morning after Dowthard’s murder, he

overheard a conversation among defendant, Johnson, and Jones. Tate stated, “I just know what

they told me.” When asked again if he had overheard defendant “telling his sister or [Jones]

anything,” Tate responded, “I just—I really didn’t catch the conversation. I was just hearing

them in there talking.” The State then questioned Tate about a signed statement that he had

given to police on July 12, 2007, the procedure for which he described as “what’s in there is like

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the questions they asked me and my answers to them, but that’s not my word for word, it’s not

what I said.” Tate denied telling officers that he “ ‘could hear Franklin say that he had shot the

dude from the night before on Jefferson.’ ” Instead, he explained, “What I said is what they had

told me” and “everything I answered to is—is what I heard. I didn’t hear the conversation.” On

cross-examination, Tate denied that he ever heard defendant say that he shot or robbed anyone.

He heard the conversation on the morning after the murder, “but I don’t know what they was

[sic] talking about.”

¶ 13 Detective Scott Mastroianni of the Rockford police department testified that he spoke

with Jones in May 2007. Jones was providing information regarding Dowthard’s murder in

order to help Tate, who was being held in federal custody. According to Mastroianni, Jones told

him that he was with defendant at 301 Royal prior to the murder and that defendant told him that

he was going to “hit a lick” because he was broke. The Royal address was about three blocks

away from Karen’s house. Jones told him that, after defendant left, defendant called Jones’s

telephone and the telephone of McLaurin, who was Jones’s girlfriend. Jones did not speak to

defendant on either telephone. Defendant told McLaurin to have Jones pick him up “somewhere

off Andrew Street”; Jones drove around but could not find him. He saw defendant the next day

at the home of defendant’s mother. Defendant told him that he had tried to commit a robbery on

West Jefferson Street but that the intended victim laughed at him, and “he had to shoot him.”

Jones also said that he was with defendant at Johnson’s home and heard defendant tell Johnson

“about the robbery that had gone bad and where he had shot the guy on West Jefferson.” Jones

did not come forward with this information until almost a year after the shooting, because he was

afraid that defendant would kill him.

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¶ 14 Mastroianni also testified that he and Detective Jason Bailey interviewed Tate in July

2007. Bailey took notes during the interview and produced a written statement that Tate

eventually reviewed and signed for accuracy. After Mastroianni described the procedure of

taking the statement, the State quoted segments of the statement verbatim and asked Mastroianni

if that was what Tate said. According to the statement, Tate said that he had heard about a

murder on West Jefferson the year before and that, on the morning after the murder, defendant

and Jones showed up at the home of Tate and Johnson and began talking to her. Tate said: (1)

“They were in the dining room area talking while I was in the kitchen”; (2) “I could hear

Franklin say he had shot the dude from the night before on Jefferson”; (3) “Franklin was telling

his sister that he had tried to rob the guy and ended up shooting him”; (4) “I can’t remember his

exact words because it was over a year ago, but I know he said he shot the guy on Jefferson.

Alonda and I both told Franklin he could not stay at our house anymore”; (5) “Franklin went on

to say he would quote do it again if anybody told what he had done”; and (6) “I am not sure if he

was directing his comments towards me and Alonda but at [Jones] and [Jones’s] girlfriend,

Diane McLaurin.” The State also introduced the written statement into evidence.

¶ 15 Sergeant Kurt Whisenand of the Rockford police department testified that he met with

McLaurin on April 19, 2007. She told him that Jones was her ex-boyfriend and a friend of

defendant. 1 She did not know defendant very well but had seen him several times with Jones.

About a year before McLaurin met with Whisenand, she, Jones, and defendant were in a car as it

pulled up to her cousin’s house at 301 Royal. Defendant got out, said that he was going to rob

somebody because he was broke, and pulled a large silver handgun from his waistband. After

replacing the gun in his pants, defendant walked north on Royal, toward Andrew Street. About

1 McLaurin referred to defendant as “Darielle” and did not know his legal name.

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20 or 30 minutes later, she received a telephone call from defendant on her telephone; she

answered the call and gave the phone to Jones. About 10 minutes after Jones finished his phone

conversation, he told McLaurin that defendant was hiding in some bushes and needed a ride.

Jones then left. McLaurin noticed police down the block that night and heard from a neighbor

that there had been a murder at 2319 West Jefferson.

¶ 16 McLaurin told Whisenand that she saw defendant the next day when he and Jones pulled

up in front of 301 Royal. McLaurin went up to the car, and defendant showed her the same gun

that he had the night before and told her not to tell anyone that she had seen him the night before.

Two to three weeks before McLaurin spoke to Whisenand, she saw defendant out in traffic, and

he made a motion “like he was pointing a gun at her and pulled the trigger.” She did not come to

the police sooner because she was afraid.

¶ 17 Whisenand also learned from McLaurin that “Darielle” had a sister “Teeka,” who dated

Tate. Based on conversations with other officers, Whisenand was able to identify “Teeka” as

Johnson and her brother as defendant. Whisenand created a photo array that included

defendant’s picture; McLaurin picked out defendant’s picture and indicated that that was the

person she knew as Darielle. She did not know any of the other five individuals shown in the

array.

¶ 18 On cross-examination, Whisenand said that he never gave McLaurin the opportunity to

provide a written statement. McLaurin did not tell him that defendant had “turned in” Tate to

federal authorities on a drug case, although he learned that fact later.

¶ 19 The transcripts of the grand jury testimony of McLaurin and Jones were then entered into

evidence by stipulation. In his grand jury testimony (redacted to two pages), Jones agreed that

defendant told him “about trying to rob a guy on Jefferson [S]treet.” When asked if defendant

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“said anything about having to shoot him,” Jones replied, “Yeah, it was something like that.”

However, Jones denied that defendant shot the man “because the guy laughed at him”; instead,

“it was because he couldn’t take the money or something from the guy, something. He got in a

struggle or something with the guy.”

¶ 20 Investigator Greg Lindmark of the Winnebago County State’s Attorney’s office testified

that, two days before trial, he sat in on an interview of Jones by the assistant State’s Attorney

trying the case. Jones told them that he was at McLaurin’s house on Royal Avenue when

defendant asked him if he “wanted to go do a lick,” meaning rob someone. He did not go with

defendant, who had a chrome .357 Magnum handgun. About 30 minutes later, defendant called

Jones and told him that he had had to shoot someone and that he needed a ride from Andrew

Street. Jones did not pick up defendant. The next day, Jones was at Johnson’s home, where he

heard defendant “talking about the shooting and robbery” with Johnson. Lindmark did not take a

written statement from Jones, and Lindmark wrote a report about the interview only on the

morning of his testimony; he did not know that such a report would be necessary until Jones had

testified the day before, providing testimony that was that different from his interview.

¶ 21 After the State rested, defendant moved for a directed verdict. The trial court denied the

motion, and defendant rested without calling any witnesses. The jury then returned the three

guilty verdicts. This appeal followed.

¶ 22 II. ANALYSIS

¶ 23 Defendant raises multiple contentions of error regarding the admission of evidence and

improper remarks by the State in closing argument. As defendant admits, defense counsel failed

to object at trial to any of these alleged errors and further failed to file a posttrial motion. To

preserve an issue for review, a defendant must both raise an objection at trial and raise the issue

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in a posttrial motion. People v. Enoch,

(1988). Thus, defendant’s

contentions on appeal would be forfeited.

¶ 24 However, defendant also contends that trial counsel was ineffective for failing to object at

trial and failing to file a posttrial motion. Where a defendant claims ineffective assistance of

counsel, we apply the test in Strickland v. Washington,

(1984). People v. Theis,

. Under this test, the defendant must prove both that: (1) defense

counsel’s performance was deficient or fell below an objective standard of reasonableness; and

(2) the defendant suffered prejudice as a result of defense counsel’s deficient performance such

that the defendant was deprived of a fair trial, the result of which is reliable. Strickland,

. There is a strong presumption that a trial counsel’s conduct fell within the wide

range of reasonable professional assistance and that the challenged action or inaction was the

product of sound trial strategy.

. However, this is not the case where trial counsel’s

strategy was so unsound that no meaningful adversarial testing was conducted. People v. Enis,

(2000). Because a defendant must satisfy both prongs of the Strickland test,

the failure to establish either prong is fatal to the defendant’s claim. Theis,

. However, prejudice is presumed where “counsel entirely fails to subject the

prosecution’s case to meaningful adversarial testing.” United States v. Cronic,

(1984). Where, as here, the claim of ineffective assistance was not raised in the trial court,

our review is de novo. People v. Berrier,

(2006).

¶ 25 The first issue that we must consider is the State’s use of witnesses’ prior inconsistent

statements as substantive evidence. In general, a prior inconsistent statement may be used only

for impeachment purposes. People v. Morgason,

(2000). However,

under section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1

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(West 2006)), 2 a witness’s prior inconsistent statement may be admitted as substantive evidence

in certain circumstances:

“In all criminal cases, evidence of a statement made by a witness is not made

inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at the hearing or trial, and

(b) the witness is subject to cross-examination concerning the statement, and

(c) the statement—

(1) was made under oath at a trial, hearing, or other proceeding, or

(2) narrates, describes, or explains an event or condition of which the

witness had personal knowledge, and

(A) the statement is proved to have been written or signed by the

witness, or

(B) the witness acknowledged under oath the making of the

statement either in his testimony at the hearing or trial in which the

admission into evidence of the prior statement is being sought, or at a trial,

hearing, or other proceeding, or

(C) the statement is proved to have been accurately recorded by a

tape recorder, videotape recording, or any other similar electronic means

of sound recording.

Nothing in this Section shall render a prior inconsistent statement inadmissible for

purposes of impeachment because such statement was not recorded or otherwise fails to

meet the criteria set forth herein.”

2 See also Ill. R. Evid. 801(d)(1)(A) (eff. Jan. 1, 2011).

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¶ 26 Defendant argues that Tate’s written statement was not admissible as substantive

evidence, because it did not meet the “personal knowledge” requirement of section 115-

10.1(c)(2). According to defendant, “personal knowledge” means that “the witness must have

actually perceived the events that are the subject of the statement,” not merely have heard

afterward the statement about the events. See, e.g., People v. Wilson,

; People v. McCarter,

(2008).

¶ 27 Our supreme court has recently spoken authoritatively on the “personal knowledge”

requirement. In People v. Simpson,

, a witness called by the State, Vonzell

Franklin, testified that he had had a conversation with the defendant about “an event” involving

Phillip Thomas, who was beaten to death; Franklin could not remember what the defendant told

him, nor could he remember what he told the police about the conversation. Id. ¶ 14. The State

then called a police officer who testified about his conversation with Franklin, which had been

recorded on video. The State played clips from the video, in which Franklin told police that the

defendant made several incriminating statements, including “ ‘we beat the f*** out of that n***

man I think he dead. We bashed his head in *** I hit him about 30 times with a bat.’ ” Id. ¶ 16.

Defense counsel failed to object to the introduction of the video clips.

¶ 28 The defendant argued that counsel’s failure to object to the introduction of the video

amounted to ineffective assistance of counsel; the State argued that the introduction of the video

was proper under section 115-10.1(c)(2). The supreme court found subsection (c)(2) to be

ambiguous, as it did not answer: (1) “whether the making of the statement qualifies as an event”;

and (2) “whether the ‘personal knowledge’ requirement necessitates that the declarant observe

the events described in the statement or whether it is sufficient that he observed the making of

the statement.” Id. ¶ 31. The supreme court rejected the State’s argument that the legislative

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intent was to “require that the witness simply have personal knowledge of the defendant’s

admission, and not the crime being described, for a prior inconsistent statement to be

admissible.” Id. ¶ 32. Citing a “quarter of a century” of appellate court opinions holding that a

prior inconsistent statement was not admissible unless the declarant actually perceived the events

that were the subject of the statement, the court held that “it seems clear that the statute has a

settled meaning and it would not be appropriate for us to change it.” Id. ¶ 33. Thus, as

Franklin’s videotaped statement “was not given the imprimatur of admissibility by section 115-

10.1,” had defense counsel objected to the use of it, “he could have precluded it from being

introduced into evidence.” Id. ¶ 34.

¶ 29 Here, Tate did not perceive the events that were the subject of defendant’s overheard

statement. In his written statement, Tate said that he “could hear Franklin say he had shot the

dude from the night before on Jefferson” and that “Franklin was telling his sister that he had tried

to rob the guy and ended up shooting him.” Thus, Tate’s written statement was inadmissible as

substantive evidence, and its use would have been denied had defense counsel objected. We

further note that, in addition to the improper admission of the written statement as substantive

evidence, Mastroianni was questioned at trial about the written statement with specific quotes

from the statement. Mastroianni affirmed that Tate had said: (1) “I could hear Franklin say he

had shot the dude from the night before on Jefferson”; (2) “Franklin was telling his sister that he

had tried to rob the guy and ended up shooting him”; and (3) “I can’t remember his exact words

because it was over a year ago, but I know he said he shot the guy on Jefferson.” Thus, the

content of the improperly admitted statement was bolstered by Mastroianni’s repetitious

testimony of what was contained therein.

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¶ 30 This same analysis applies to portions of Jones’s prior oral statements that were

recounted at trial by Mastroianni and Lindmark. According to Mastroianni, Jones told him that,

on the day after Dowthard’s murder, defendant told Jones that he had tried to commit a robbery

on West Jefferson Street but that the intended victim laughed at him and “he had to shoot him.”

Jones also said that he heard defendant tell Johnson “about the robbery that had gone bad and

where he had shot the guy on West Jefferson.” Similarly, Lindmark testified that, two days

before trial, Jones told him and an assistant State’s Attorney that defendant called Jones on the

night of Dowthard’s murder; defendant told him that he had had to shoot someone and that he

needed a ride from Andrew Street. The next day, Jones was at Johnson’s house, where he heard

defendant “talking about the shooting and robbery” with Johnson. Jones’s statements to

Mastroianni and Lindmark were not made under oath at a trial, hearing, or other proceeding, nor

did they narrate, describe, or explain an event of which Jones had personal knowledge. See 725

ILCS 5/115-10.1(c) (West 2006). The use of these prior statements was improper, and an

objection by defense counsel would have kept that testimony out.

¶ 31 Defendant next argues that the State’s use of portions of McLaurin’s grand jury

testimony was erroneous. The substantive use of a witness’s grand jury testimony as a prior

inconsistent statement under section 115-10.1 is well established as proper (see 725 ILCS 5/115-

10.1(c) (West 2006); Ill. R. Evid. 801(d)(1)(A)(1) (eff. Jan. 1, 2011)), and defendant does not

argue that, in general, the use of McLaurin’s testimony was improper. However, during

McLaurin’s grand jury testimony, the following colloquy took place:

“Q. Did RJ [Jones] talk to Darielle [defendant]?

A. Yes.

Q. When he finished, did RJ tell you what Darielle had told him?

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A. Yes.

Q. What did he say?

A. He asked him can he come pick him up because he just shot someone.

Q. Did he indicate where he was located?

A. Yes, on Alliance and West Jefferson in some bushes.” (Emphases added.)

This exchange was not read to the jury; however, it was contained in the transcript of the grand

jury testimony that was given to the jury.

¶ 32 Defendant argues that this portion of McLaurin’s grand jury testimony was double

hearsay and not admissible under section 115-10.1. The State never addresses the merits of this

argument but labels the conveyance of the challenged testimony as “hardly a significant

disclosure in light of the totality of evidence at the trial.” We agree with defendant. Section

115-10.1(c)(1) and Rule 801(d)(1)(A)(1) relax the hearsay rule as it bars the substantive use of a

prior inconsistent statement; however, they do not relax the general rule against hearsay

contained within a prior inconsistent statement. See People v. Radovick,

(1995) (“the admission of these transcripts was improper because they contained double

hearsay”); People v. Sangster,

(in addressing Radovick, stating

“even if statement is admitted substantively under section 115-10.1 of the Code, that section does

not abrogate other rules of evidence, including ban on double hearsay”). Double hearsay, or

hearsay within hearsay, is still excluded unless “each part of the combined statements conforms

with an exception to the hearsay rule provided in these rules.” Ill. R. Evid. 805 (eff. Jan. 1,

2011). As we have noted, the State makes no effort to find an exception to the hearsay rule that

would apply to this part of the statement. While, in general, McLaurin’s testimony to the grand

jury was admissible at trial, what Jones told McLaurin that defendant told him was not. This

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impermissible hearsay was properly kept from the jury (at the State’s suggestion and with

defense counsel’s concurrence) during testimony. It was error for defense counsel to allow it to

go to the jury in written form.

¶ 33 The question remains as to whether defense counsel rendered ineffective assistance of

counsel by failing to object to the use of these prior inconsistent statements. Regarding the first

prong of the Strickland test, clearly, counsel’s failure to object to the use of Tate’s and Jones’s

prior inconsistent statements and his failure to keep from the jury the double hearsay contained

in the transcript of McLaurin’s grand jury testimony show representation that fell below an

objective standard of reasonableness. While there is a strong presumption that a trial counsel’s

conduct fell within the wide range of reasonable professional assistance and that the challenged

action or inaction was the product of sound trial strategy (see Strickland,

), we

can see no strategic reason for counsel’s failures here. All of these statements amounted to

confessions by defendant, complete with the motive for the shooting and the street upon which

the murder was committed. As our supreme court has noted, “ ‘a confession is the most

powerful piece of evidence the State can offer, and its effect on a jury is incalculable.’ ”

Simpson,

(quoting People v. R.C.,

(1985)). Here, not

only did defense counsel fail to object when the improper prior statements were introduced,

counsel also failed to object when they were referenced in closing and rebuttal arguments, such

as when the State argued: “These are three separate people[3] who all learned about the murder

from the defendant’s own mouth and chose to share that information with the police.”

3 Tate, Jones, and McLaurin. However, McLaurin never stated that she heard defendant

say that he had killed anyone; she relayed only what Jones told her defendant said.

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¶ 34 The dissent finds a “clear” defense strategy of casting McLaurin, Jones, and Tate as

conspirators fabricating a story to implicate defendant in order to cut a deal for Tate, who was

facing federal drug charges. Infra ¶ 44. According to the dissent, such a defense would have

been “untenable had defense counsel not allowed Jones’s oral statements and Tate’s written

statement to be admitted.” Infra ¶ 45. First, we note that a strategy of “eliciting the

circumstances of Jones’s and Tate’s statements to police[] by establishing the close relationships

among the three witnesses *** and by showing that none of them came forward until a year after

the murder when Tate was in custody” (infra ¶ 44) would not require that the substance of these

witnesses’ statements be admitted into evidence. Further, such a “strategy” would be unsound.

Instead of, for example, Tate’s trial testimony of “ ‘I just—I really didn’t catch the conversation.

I was just hearing them in there talking’ ” (supra ¶ 12), the “strategy” allowed into evidence

Tate’s written statement that, among other things, (1) “I could hear Franklin say he had shot the

dude from the night before on Jefferson”; (2) “Franklin was telling his sister that he had tried to

rob the guy and ended up shooting him”; and (3) “I can’t remember his exact words because it

was over a year ago, but I know he said he shot the guy on Jefferson.” The strategy got the

additional benefit of an oral verbatim repetition of Tate’s written statement, during Mastroianni’s

testimony. As applied to Jones and McLaurin, this strategy reaped similar results. If allowing

all of these improper statements into evidence so that counsel could argue that it was suspicious

that these witnesses all said the same thing was a strategy, it was an unsound one that deserves

no deference.

¶ 35 The second Strickland prong, that the defendant suffered prejudice as a result of defense

counsel’s deficient performance such that the defendant was deprived of a fair trial, the result of

which is reliable, is no less in doubt than the first. Other than hearsay statements involving

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defendant’s alleged confessions to others, there is very little evidence to tie defendant to

Dowthard’s killing. Neither Karen nor Sanders, the only eyewitnesses to the shooting, was able

to identify the shooter that night. 4 Both described the shooter as having his face covered.

Sanders was unable to pick the shooter out of a photo array a year later, while Karen picked out

defendant’s photo a year later “from his body structure, his neck, and his eyes,” all features that

Jimenez testified Karen failed to mention on the night of the shooting. Instead, defendant’s

photo “jumped out” at her because “spiritually, emotionally,” she felt that she was “in the

presence.”

¶ 36 The dissent finds “overwhelming support” for the jury’s guilty verdict in the evidence

that was properly admitted. See infra ¶ 48. We first note that, of all the evidence listed in the

dissent’s summary of the “overwhelming” evidence, only Jones’s grand jury testimony made any

mention of defendant saying that he shot someone on Jefferson, and the motive given for the

shooting was a struggle, not that the man laughed. However, the improperly admitted hearsay

statements contained at least half a dozen such references to Jefferson. In this very important

respect, the properly admitted evidence was not “duplicative” of the improperly admitted

evidence, as the dissent claims. See infra ¶ 53. The improperly admitted evidence was

duplicative of itself and was drummed, repeatedly, into the jury’s heads.

¶ 37 Neither Tate’s written statement, nor Jones’s oral statements to Mastroianni and

Lindmark, was admissible substantively, because they lacked the element of personal

knowledge. Similarly, the double hearsay contained in McLaurin’s grand jury testimony was

inadmissible as substantive evidence. Yet the jury was told repeatedly, through the use of these

4 Neither could agree on the timing of the shooting, either. Karen testified that the

shooting occurred at about dusk, while Sanders said that it occurred at about 11:30 p.m.

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statements, of defendant’s alleged admissions to committing the murder, complete with location

and motive. We do not argue that there was not sufficient admissible evidence to convict

defendant. However, we are not reviewing the sufficiency of the evidence, nor is it our role here

to weigh “good” evidence versus “bad”; even where the evidence is sufficient to convict, if a

defendant is deprived of effective assistance of counsel, the proper remedy is to reverse the

defendant’s conviction and remand the matter for a new trial. People v. Young,

(1999); People v. Graham,

(1989). We have no confidence in

a verdict reached after the repeated use of improper hearsay statements, especially where defense

counsel failed to attempt to keep these improper statements from the jury. The power of these

detailed “admissions,” in light of the scarcity of other concrete evidence, leads us to conclude

that defendant has shown a reasonable probability that, but for counsel’s errors, the result of the

trial would have been different. Thus, defendant received ineffective assistance of counsel,

which requires this court to reverse his conviction and remand the cause for a new trial.

¶ 38 Defendant raises additional contentions of error, mostly regarding allegedly improper

argument by the State. The propriety of argument on retrial will depend on the evidence

adduced and objections raised on retrial. We will not speculate as to what errors might occur in

the future and we will not issue an advisory opinion. 5

¶ 39 III. CONCLUSION

¶ 40 For these reasons, the judgment of the circuit court of Winnebago County is reversed, and

the cause is remanded for a new trial.

¶ 41 Reversed and remanded.

5 One exception is the inadmissibility of dog-tracking evidence. The State admits that the

introduction of this evidence was error. Such evidence shall not be introduced on retrial.

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¶ 42 JUSTICE ZENOFF, dissenting.

¶ 43 I respectfully dissent, because I believe that defendant has not satisfied Strickland’s

prejudice prong. As I explain below, because the properly admitted, nonhearsay evidence

overwhelmingly establishes defendant’s guilt, I cannot agree with the majority that defendant has

established a claim of ineffective assistance of counsel. I would affirm the judgment.

¶ 44 Before addressing the prejudice prong, however, I note that a reading of the record makes

clear that defense counsel’s strategy was to cast McLaurin, Jones, and Tate as “conspirators”

who fabricated a story implicating defendant in Tyrone’s murder in order to negotiate a plea deal

for Tate, who was facing federal drug charges after defendant turned in Tate to the authorities.

Defense counsel accomplished this strategy by eliciting the circumstances of Jones’s and Tate’s

statements to police; by establishing the close relationships among the three witnesses; by

establishing the similarities of Jones’s, Tate’s, and McLaurin’s stories (not just that they were

conferring or having a discussion); and by showing that none of them came forward until a year

after the murder, when Tate was in custody.

¶ 45 During defense counsel’s cross-examination of him, Mastroianni testified that, when he

spoke to Jones a year after the murder, Jones was in the office of the United States Attorney,

looking to get some “consideration” for Tate in his negotiations on his federal drug charges.

Likewise, Mastroianni testified that Tate was in negotiations with federal prosecutors when he

gave his written statement. Indeed, Tate’s written statement began, “My name is Robert Tate

and I now live in the Ogle County Jail. I am facing a federal drug case but want to share some

information about a murder on Jefferson Street last year.” During closing argument, defense

counsel remarked that it was suspicious how McLaurin, Tate, and Jones all came forward with

the same story at the same time, shortly after defendant turned in Tate to federal authorities.

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Counsel referred to the three witnesses as “conspirators who ma[d]e up a story to try to get a

deal.” This strategy of casting the three witnesses as conspirators with a motive to fabricate a

story would have been untenable had counsel not allowed Jones’s oral statements and Tate’s

written statement to be admitted.

¶ 46 Nevertheless, I believe that it is unnecessary to more fully analyze counsel’s strategy,

because defendant has not shown that he suffered any prejudice as a result of counsel’s alleged

errors. A court need not address both prongs of an ineffective-assistance-of-counsel claim if a

defendant makes an insufficient showing on one. Strickland,

. “If it is easier to

dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, *** that course

should be followed.” Strickland,

.

¶ 47 A defendant satisfies the prejudice prong by showing that there is a reasonable

probability that, but for counsel’s unprofessional errors, the result of the proceeding would have

been different. Strickland,

. “A reasonable probability is a probability sufficient

to undermine confidence in the outcome.” Strickland,

. In making this

determination, a court must consider the totality of the evidence before the judge or jury.

Strickland,

. “[A] verdict or conclusion only weakly supported by the record is

more likely to have been affected by errors than one with overwhelming record support.”

Strickland,

. “Taking the unaffected findings as a given, and taking due account

of the effect of the errors on the remaining findings, a court making the prejudice inquiry must

ask if the defendant has met the burden of showing that the decision reached would reasonably

likely have been different absent the errors.” Strickland,

.

¶ 48 Even assuming that defense counsel should have objected to the introduction of Tate’s

written statement, Jones’s oral statements to Mastroianni and Lindmark, and the hearsay portions

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of McLaurin’s grand jury transcript, defendant has not shown that the jury’s verdict would

reasonably likely have been different. When the properly admitted evidence of defendant’s guilt,

including Jones’s in-court testimony and grand jury testimony and the properly admitted portions

of McLaurin’s grand jury testimony, is combined with Karen’s and Sanders’s eyewitness

testimony and the other properly admitted evidence, the evidence provides overwhelming

support for the jury’s guilty verdict.

¶ 49 Jones testified at trial that, on the evening of the murder, he and defendant were at 301

Royal Avenue. Defendant told Jones that he planned on “hitting some licks,” which meant

committing a robbery, because he was “broke.” Jones saw defendant leave 301 Royal on foot.

Approximately 30 minutes to 1 hour later, Jones received a phone call from defendant.

Defendant asked Jones to come pick him up because “he had just shot somebody.” Because

defendant’s statements to Jones were admissions from which guilt could be inferred, Jones’s in-

court testimony as to what defendant said to him was not hearsay and was properly admitted.

See Ill. R. Evid. 801(d)(2) (eff. Jan. 1, 2011) (providing that a party’s own statement is not

hearsay); People v. Milka,

(2003) (explaining that a defendant’s

statement from which guilt may be inferred is an admission that is not objectionable under the

hearsay rule (quoting People v. Stewart,

(1984)).

¶ 50 Jones’s grand jury testimony was also properly admitted. A witness’s grand jury

testimony that is inconsistent with his or her trial testimony is admissible as substantive evidence

under section 115-10.1(c)(1) of the Code, which, unlike section 115-10.1(c)(2), does not have a

personal-knowledge requirement. People v. Harvey,

(2006). At

trial, Jones professed memory loss regarding his grand jury testimony and further testified that

defendant “never” confessed to him in the days following the shooting, which was sufficient to

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lay a foundation for admission of his grand jury testimony. See People v. Flores,

(1989) (a witness’s “professed memory loss” regarding his or her grand jury testimony is

sufficient to establish inconsistency). Jones testified before the grand jury that, the day after the

murder, Jones saw defendant at defendant’s mother’s house. Defendant told Jones about trying

to rob a guy on Jefferson and having to shoot the guy. Jones explained that “it was something

about because he couldn’t take the money or something from the guy, something. He got in a

struggle with the guy or something.”

¶ 51 McLaurin’s grand jury testimony was also admissible as substantive evidence pursuant to

section 115-10.1(c)(1) of the Code. Like Jones, McLaurin professed memory loss at trial.

Before the grand jury, however, McLaurin testified that she was with defendant and Jones at 301

Royal Avenue on the evening of the murder. Defendant said “that he was broke and he was

about to go rob someone.” Defendant left the house on Royal on foot, wearing a “black hoody”

and blue jeans. Approximately 20 to 30 minutes later, defendant called McLaurin’s phone, and

she handed the phone to Jones. (McLaurin then testified that, following the phone conversation,

Jones told her that defendant had said that he had just shot someone and needed a ride, which

was a hearsay portion of the grand jury transcript and should have been redacted.) The next

morning, McLaurin saw defendant again at the house on Royal when he and Jones drove up in a

car. Defendant had a “big silver gun” wrapped in a towel or a shirt in the trunk and told

McLaurin that she “shouldn’t tell anyone.”

¶ 52 Viewing Jones’s trial and grand jury testimony and McLaurin’s grand jury testimony

together, a reasonable trier of fact could have found that, on the evening of the murder, defendant

left 301 Royal on foot after saying that he was going to rob someone because he was “broke.”

He was wearing a “hoody” and blue jeans. Approximately 30 minutes later, defendant called

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Jones’s phone and said that he had shot someone. The next day, Jones saw defendant at his

mother’s house, where defendant again told Jones that he had shot someone during a failed

robbery. Defendant told Jones that the shooting occurred on Jefferson. Also the next day, Jones

and defendant drove to 301 Royal and defendant had a “big silver gun” wrapped in a towel or a

shirt in the trunk. Defendant told McLaurin that she “shouldn’t tell anyone.”

¶ 53 Most, if not all, of this properly admitted evidence is duplicative of the hearsay evidence

on which the majority focuses its discussion. Thus, the record contradicts the majority’s

statement that, “[o]ther than hearsay statements involving defendant’s alleged confessions to

others, there is very little evidence to tie defendant to Dowthard’s killing.” Supra ¶ 35. In

making this statement, the majority attributes little import to the fact that virtually identical

statements were properly admitted through Jones’s trial and grand jury testimony and

McLaurin’s grand jury testimony.

¶ 54 In this regard, this case is very similar to Harvey, in which the court affirmed the

defendant’s conviction despite the trial court’s error in admitting two witnesses’ prior written

statements that contained the defendant’s admissions. The court explained that it was error to

admit the written statements, because they did not satisfy the personal-knowledge requirement of

section 115-10.1(c)(2). However, the court concluded that the error was harmless because “the

jury was permitted to consider substantively virtually identical evidence contained in the

recanting witnesses’ grand jury testimonies.” Harvey,

. The

witnesses’ grand jury testimonies were properly admitted pursuant to section 115-10.1(c)(1),

which does not require personal knowledge. Harvey,

. Likewise, here,

any error in admitting Tate’s written statement, Jones’s oral statements to Mastroianni and

Lindmark, and the hearsay portions of McLaurin’s grand jury transcript is harmless, as the jury

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heard virtually identical evidence in the form of Jones’s trial and grand jury testimony and

McLaurin’s grand jury testimony.

¶ 55 When Jones’s trial and grand jury testimony and McLaurin’s grand jury testimony are

combined with Sanders’s and Karen’s eyewitness testimony and the other properly admitted

evidence, the evidence of guilt becomes overwhelming. Sanders testified that the shooter had a

“big, chrome gun,” which was consistent with McLaurin’s testimony that defendant had a “big

silver gun” in the trunk of the car on the day after the murder. Additionally, Karen testified that

the shooter was wearing a “hoodie” and “some type of dark pants.” This was consistent with

McLaurin’s grand jury testimony that, when defendant left 301 Royal on foot, he was wearing a

“hoody” and blue jeans. Both Sanders and Karen testified that the shooter was a young, thin,

light-skinned black male. Jiminez testified that, on the evening of the murder, Karen described

the shooter as about 5 feet, 3 inches tall and 130 pounds. See generally People v. Temple,

(explaining that prior statements of identification, including police officers’

testimony as to witnesses’ descriptions of the offender, are admissible under Illinois Rule of

Evidence 801(d)(1)(B) (eff. Jan. 1, 2011) and section 115-12 of the Code). These descriptions

were consistent with Whisenand’s testimony that defendant was 5 feet, 6 inches tall and 130

pounds. Furthermore, Karen estimated that the shooter was between 17 and 19 years old, while,

according to Turner, Sanders estimated his age to be 16 or 17. These estimates were not

inconsistent with Jiminez’s testimony that defendant’s date of birth is January 6, 1985, which

made him 21 years old at the time of the murder.

¶ 56 The majority casts doubt on Karen’s selection of defendant out of a photo array a year

after the murder, explaining that Karen picked the photo based on “his body structure, his neck,

and his eyes,” which were features that she failed to mention to Jiminez on the night of the

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shooting. The majority also notes that Karen testified that the photo “jumped out” at her because

“spiritually, emotionally,” she felt that she was “in the presence.”

¶ 57 While Karen’s choice of words to express her confidence in her identification of

defendant might have been idiosyncratic, her testimony was not equivocal. Karen’s testimony

that “spiritually, emotionally,” she felt “in the presence” came at the end of a rigorous cross-

examination during which she struggled to articulate the reasons for her adamancy that the photo

she selected was of the shooter. She later explained that she was not “spiritually *** led to pick

it out” but picked the photo because she was certain that it was of the man whom she saw shoot

her brother. She testified that she got a “good look” at the shooter’s eyes and that she could tell

that he was a “slender guy” from the “structure of his neck,” which was a “long neck.” She also

saw the color of his skin. Indeed, the photo depicts a light-skinned black male with an unusually

long and slender neck.

¶ 58 Also supporting the jury’s verdict was the evidence of the short distance between 301

Royal Avenue, from which defendant left on foot, and 2319 West Jefferson, where the shooting

occurred and where, Sanders testified, the shooter arrived on foot. Mastroianni testified that

2319 West Jefferson was only about three blocks from 301 Royal. Similarly, Whisenand

testified that 2319 West Jefferson was 2½ blocks from 301 Royal. A map introduced into

evidence confirmed the officers’ testimony.

¶ 59 Viewing all of the properly admitted, nonhearsay evidence together, the evidence of

defendant’s guilt is overwhelming. Therefore, I cannot agree with the majority’s conclusion that,

other than hearsay statements, “there is very little evidence to tie defendant to Dowthard’s

killing.” Supra ¶ 35. Even assuming that defense counsel should have objected to Tate’s written

statement, Jones’s oral statements to Mastroianni and Lindmark, and the hearsay portions of

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McLaurin’s grand jury transcript, there is no reasonable probability that, but for counsel’s errors,

the result of the trial would have been different.

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