NO. 4-99-0099

	IN THE APPELLATE COURT

	OF ILLINOIS

	FOURTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS,	)	Appeal from

	Plaintiff-Appellee,			)	Circuit Court of

	v.			     		)	Champaign County

TESHOME CAMPBELL,		 			)	No. 97CF1862

	Defendant-Appellant.		)	

	                     		)	Honorable

							)	John G. Townsend,

							)	Judge Presiding.

_______________________________________________________________

	JUSTICE COOK delivered the opinion of the court:

	On October 15, 1998, a jury convicted defendant, Teshome Campbell, of first degree murder (720 ILCS 5/9-1(a)(2)

(West 1996)) for his involvement in the beating death of James

Shepherd.  On November 24, 1998, the trial court denied defen

dant's posttrial motion and sentenced him to 55 years in prison. 

On January 7, 1999, the trial court denied defendant's motion to

reconsider his sentence.  Defendant appeals his conviction.  We

affirm.

I. BACKGROUND

	During the early morning hours of December 25, 1997,

James Shepherd, the murder victim, picked up Rita Butler, a

prostitute, and drove to the corner of Bellefontaine Street and

Clock Streets in Champaign to buy "crack" cocaine.  Butler

purchased a $20 rock of crack cocaine from defendant.  Defendant

had sold her drugs on two or three previous occasions.  She and

the victim then drove to a different location to smoke the crack. 

Upon discovering the crack was fake, the victim drove back to Bellefontaine Street to get his money back from defendant. The victim exited his van and approached defendant, who was standing

with a large group of people.  Butler remained in the van, which

was parked around the corner and facing away from the area where

the victim approached defendant and the group of men on

Bellefontaine Street.

	Butler testified that the victim and defendant began to

struggle.  She did not see who threw the first punch.  Five to

nine people then joined in the fight.  Unable to defend himself,

the victim fell to the ground.  The crowd continued to kick and

punch the victim until the sound of approaching police sirens

caused the crowd to disperse. The victim died about one month

after the attack as a result of multiple blows to the head.

	The following material, i.e., the remainder of the facts, is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).

	[Nonpublishable material under Supreme Court Rule 23 (166 Ill. 2d R. 23) omitted here.]

II. ANALYSIS	

	Defendant appeals and asks this court to reverse his

conviction on the basis of prosecutorial misconduct, ineffective

assistance of counsel, the improper admission of hearsay testi

mony, and insufficient evidence to prove defendant guilty beyond

a reasonable doubt.  We address each issue in turn.

A. Prosecutorial Misconduct

	The material in this section and sections (A)(1)

through (A)(4) is nonpublishable under Supreme Court Rule 23.

	[Nonpublishable material under Supreme Court Rule 23 omitted here.]

5. Prearrest Silence

	Defendant contends his fifth amendment right to remain silent was violated when the prosecutor presented evidence and

argument referring to defendant's exercise of that right when

questioned by police prior to his arrest and prior to any warn

ings.  Defendant agreed to talk to the officers and followed them

to their unmarked squad car where the officers interviewed him. 

The officers asked defendant if he was present the night of the

murder.  He told them he was outside a house on Bellefontaine

Street and witnessed the beating, but he was not involved or

anywhere near the victim.  The officers asked where he went after

the beating, and defendant responded, "I think I left.  I think I

went and got some pussy, but I don't really remember."  Officer

Kelly testified he then asked defendant, "Well, who was it? 

Where did you go?"  At this point, defendant replied, "Man, I

ain't got nothing more to say to you," and exited the vehicle.

	Even illegally obtained evidence may be used to impeach a defendant.  Where a defendant does not merely deny the elements

of the claim against him, but makes "sweeping claim[s]," such as

that he had never dealt in or possessed any narcotics, defendant

may be impeached with illegally obtained evidence.  Walder v. United States, 347 U.S. 62, 65, 98 L. Ed. 503, 507, 74 S. Ct. 354, 356 (1954) (heroin illegally seized from his home two years

earlier).  Such impeachment may include a statement made by

defendant which would be inadmissible under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966).  Harris v. New York, 401 U.S. 222, 224, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645 (1971).  However, impeachment by defendant's postarrest

silence after he had received Miranda warnings is impermissible.  Such silence is "insolubly ambiguous" and using such silence

would be fundamentally unfair given the fact that the warnings

carry the implicit assurance that silence will carry no penalty. 

Doyle v. Ohio, 426 U.S. 610, 617-18, 49 L. Ed. 2d 91, 97-98, 96 S. Ct. 2240, 2244-45 (1976).  

	In contrast, a defendant who voluntarily speaks after

receiving Miranda warnings has not been induced to remain silent.  Anderson v. Charles, 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180 (1980) (impeachment by prior inconsistent statements permit

ted); see also Jenkins v. Anderson, 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (1980) (where defendant claimed self-defense

at trial, State allowed to impeach by defendant's prearrest

silence in not reporting stabbing for two weeks).  A defendant

who chooses to answer police questions may be cross-examined

regarding matters he did not disclose.  "Following his arrest and

Miranda warnings, defendant did not remain silent.  He related an entire version of events, but denied his knowledge of the cocaine

and the anticipated drug deal.  Defendant also omitted signifi

cant details to which he later testified at trial."  People v. Frieberg, 147 Ill. 2d 326, 356, 589 N.E.2d 508, 522 (1992) (State could properly cross-examine).  Frieberg distinguished an earlier case: "[People v.]Gagliani[, 210 Ill. App. 3d 617, 569 N.E.2d 534 (1991),] did not concern a situation where a defendant gave authorities any version of events which later proved inconsis

tent; the defendant simply denied knowledge of the incident." 

Frieberg, 147 Ill. 2d at 356, 589 N.E.2d at 522.

	Frieberg involved impeachment, but there is no reason a defendant's prior statements cannot come in substantively, on

direct examination.  Perhaps mere silence, either at trial or

during the initial questioning by police, is not admissible on

direct examination.  United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) (initial questioning); Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965) (silence at trial).  This case, however, does not involve mere silence but a defendant who chose to speak to the police.  Any

statement by an accused person, unless excluded by the privilege

against self-incrimination or other exclusionary rules, may be

used against him as an admission, even if it is not inculpatory

or against interest.  People v. Aguilar, 265 Ill. App. 3d 105, 110, 637 N.E.2d 1221, 1224 (1994).   

	Defendant chose to speak to the police.  He made an

important assertion in his own defense, that he did not flee the

scene in codefendant Bobby Joe Douglas's car, that "I think I

went and got some pussy, but I don't really remember."  When the

police attempted to verify the details of defendant's alibi,

defendant refused to provide the name of the woman.  The State

was entitled to show that defendant either could not or would not

furnish the details of his alibi, thereby permitting the infer

ence that his alibi was fictitious.  Omitting facts within a

statement does not involve the right to remain silent.  People v. Mischke, 278 Ill. App. 3d 252, 265, 662 N.E.2d 442, 451 (1995).  A defendant who spoke to the police about his thriving narcotics

trade could not complain when the officer testified that defen

dant said nothing about the murder at the time of his arrest

except, "it will all come out in court."  People v. Garza, 276 Ill. App. 3d 659, 669-70, 658 N.E.2d 1355, 1362 (1995).  Here,

the prosecutor did not comment on defendant's silence but on the

inconsistent statements defendant made to police. 

	Frieberg and Anderson stand for the proposition that a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent.  It is no help to defen

dant that this case did not involve a custodial interrogation and

did not rise to the level where a Miranda warning was required.  Instead, that fact weighs in favor of the prosecution.  Impeach

ment by postarrest silence not preceded by Miranda warnings has been allowed on the basis that the government has not induced

silence by implicitly assuring the defendant that his silence

would not be used against him.  Fletcher v. Weir, 455 U.S. 603, 606-07, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312 (1982).      

      	It has been held that a potential Doyle violation, in cases in which the evidence is closely balanced, should be

treated as plain error for purposes of review.  Gagliani, 210 Ill. App. 3d at 626, 569 N.E.2d at 540.  This case does not

involve a Doyle violation, but a situation where defendant chose to talk to police.  It could be argued that defendant's state

ment, "Man, I ain't got nothing more to say to you," was not a

refusal or inability to answer a specific question, but an invocation of his fifth amendment privilege.  The trial court was

deprived of the opportunity to address the issue or attempt to

prevent any unfair prejudice by giving instructions or the like

by defendant's failure to object.     

	Defendant argues that the prosecutor improperly used

evidence of his invocation of his right to remain silent as

evidence of guilt during the State's case in chief and during

argument.  During opening arguments, the prosecutor told jurors

defendant "wasn't real cooperative" when police initially inter

viewed him.  During closing arguments, the prosecutor said that

the reason there was no physical evidence against defendant was

because when the police interviewed defendant four days after the

attack, defendant "stonewalled" them.  The prosecutor further

commented that defendant "threw up an attitude" when police

questioned him and he "built a wall" between himself and the

police.  Again, these comments are properly viewed, not as a

comment on defendant's silence, but as a comment on the state

ments defendant did make to the police.    

6. 	Prosecutor's Improper Remarks During Closing Argument  

	Defendant's final six allegations of prosecutorial

misconduct relate to closing argument.  In analyzing whether a

prosecutor's closing argument was improper, the law gives a

prosecutor wide latitude in argument and he may comment on facts

and legitimate inferences that may be drawn therefrom.  People v. Enis, 163 Ill. 2d 367, 407, 645 N.E.2d 856, 874 (1994).  Further, the prosecutor may respond to comments made by defense counsel,

denounce the activities of the defendant, and highlight inconsis tencies or weaknesses in the defendant's argument.  People v. Sutton, 260 Ill. App. 3d 949, 960, 631 N.E.2d 1326, 1335 (1994).  Finally, in reviewing allegations of prosecutorial misconduct,

the arguments of both the prosecutor and the defense counsel must

be examined in their entirety and the allegedly improper remarks

must be placed in the proper context.  People v. Westbrook, 262 Ill. App. 3d 836, 856, 635 N.E.2d 398, 411 (1992). 

	The material in sections (6)(a) and (6)(b) is

nonpublishable under Supreme Court Rule 23.

          [Nonpublishable material under Supreme Court Rule 23 omitted here.]

(c) Witness Fear

	Defendant next contends the prosecutor improperly told

the jury the witnesses were afraid to testify and implied the

defendant was responsible for that fear.  Specifically, defendant

contends that during closing argument the prosecutor emphasized

and contrasted the "alleged fears" of the witnesses with a

menacing and threatening portrayal of defendant.  

	First of all, the "alleged fears" commented upon were

based on testimony from the witnesses that they were, in fact,

afraid.  Rita Butler testified she was "scared" when Officer Swan

questioned her about two weeks after the incident.  Damion

Johnson, a witness to the beating originally charged with the

murder but who was testifying in exchange for having the charges

dropped, testified he did not voluntarily tell police what he

knew about the incident because he did not want his cousins and

friends (some of the codefendants were also his cousins) to get in trouble, and he was afraid of what might happen if he talked

to police.  When asked what he was afraid might happen, Johnson

said, "[s]omebody coming back and blow us up, too."  A few lines

later, Johnson clarified he was afraid "[']they['] might try to

do something to me," and "try to hurt me."  Looking at the

prosecutor's closing argument in its entirety and putting com

ments in their proper context, it becomes clear that the prosecu

tor's purpose in commenting on the evidence of the witnesses'

fear to come forward was to explain why it was not inconsistent

for them to have a different story now than they did initially. 

There was no impropriety here.

	Finally, during Johnson's testimony, the prosecutor

made this reference to Johnson's fear and reluctance to testify:

"listen carefully, 'cause [Damion Johnson's] got his chin down on

his chest because his cousin's sitting right there staring

daggers at him."  The prosecutor did commit error when he made

the comment that defendant was "staring daggers" at Johnson while

Johnson was testifying.  People v. Crabtree, 162 Ill. App. 3d 632, 637, 515 N.E.2d 1323, 1326 (1987) (error for prosecutor to

comment on defendant's nontestifying demeanor).  We find this

single, isolated comment to be harmless, however, because the

jury was instructed that closing arguments made by counsel were

not evidence and that any argument or statement made by counsel

not based on the evidence should be disregarded.  This instruc

tion has been held to cure any prejudice to the defendant because

of the prosecutor's improper remarks.  People v. Labosette, 236 Ill. App. 3d 846, 857, 602 N.E.2d 966, 974 (1992).	

	The material in sections (6)(d), (6)(e), and (6)(f) is

nonpublishable under Supreme Court Rule 23.

	[Nonpublishable material under Supreme Court Rule 23 omitted here.]

B. Ineffective Assistance of Counsel

	Defendant contends his sixth amendment right to the

effective assistance of counsel was violated when defense counsel

failed to mount any defense whatsoever, despite a wealth of

evidence at his disposal.  To establish ineffective assistance of

counsel, a 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 v. Washington, 466 U.S. 668, 694, 80 L. Ed. 2d 674, 698, 104 S. Ct. 2052, 2068 (1984).  Defense counsel's actions must be re

viewed in the context of the entire trial, and the defendant must

overcome the presumption the complained-of actions could be

considered trial strategy under the circumstances.  Strickland, 466 U.S. at 689-90, 80 L. Ed. at 694-95, 104 S. Ct. at 2065-66. 

"[N]either mistakes in strategy nor the fact that an other attorney with the benefit of hindsight would have

handled the case differently indicates the trial lawyer

was incompetent."  People v. Vera, 277 Ill. App. 3d 130, 138, 660 N.E.2d 9, 16 (1995).  Finally, the failure to satisfy either the deficiency or the prejudice prong of the

Strickland test precludes a finding of ineffective assistance.  Strickland, 466 U.S. at 697, 80 L. Ed. at 699, 104 S. Ct. at 2069.  

	Specifically, defendant contends his counsel was

ineffective because he (1) failed to impeach two of the State's

occurrence witnesses; (2) failed to call two disinterested

eyewitnesses who could not identify defendant as a participant,

but who could identify the State's leading witnesses, Steven

Peete and Johnson, as participants; (3) tendered an improperly

worded accomplice witness instruction; (4) failed to attack the

reliability of Butler's initial identification of defendant from

a photo array; (5) failed to tender a jury instruction limiting

the consideration of defendant's alleged prior drug sales to the

issue of identification; and (6) failed to object to nearly all

instances of prosecutorial misconduct.  We address each allega

tion in turn.

	 1. Failure To Impeach Two of the State's Witnesses

	Defendant first contends defense counsel failed to impeach Johnson and Peete, both witnesses to the beating origi

nally charged with the murder but who were testifying in exchange

for having the charges dropped, with their complete criminal

records and the specific details of their agreements with the

State.  On direct, the State revealed Johnson had a weapons

conviction and a pending burglary charge and the fact that "back

in high school," Johnson was "adjudicated as a delinquent because

[h]e got into a fight."  Defendant argues defense counsel was

ineffective because he did not attempt to inform the jury of the

remainder of Johnson's criminal record, which was extensive, or the fact the high school "fight" was actually a felony aggravated

battery.  Further, defense counsel 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.  Defendant

argues 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.  Finally, defendant argues

defense counsel should have elicited testimony on Johnson's theft

adjudication because it was an offense directly involving dishon

esty.  See People v. Spates, 77 Ill. 2d 193, 204, 395 N.E.2d 563, 568-69 (1979) (reasonable relation between theft and testimonial

deceit).  

	In addition to the failure to inform the jury of the

totality of Johnson's criminal background, defendant argues

defense counsel failed to elicit testimony concerning the details

of Johnson's agreement with the State.  Specifically, defendant

argues 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, defendant

argues defense counsel failed to impeach him with a prior juve

nile adjudication for felony mob action and failed to inform the

jury of the details of Peete's agreement with the State.

	 Defendant must show that not impeaching Johnson and Peete in the way he claims his counsel should have done was both objectively unreasonable and that, but for this error, there is a

reasonable probability that 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.  The decision whether to impeach a

witness is generally considered a matter of trial strategy, and

failure to do so is therefore not objectively unreasonable.  See 

People v. Ward, 187 Ill. 2d 249, 261-62, 718 N.E.2d 117, 127 (1999) (decisions of what evidence to present are matters of

trial strategy and therefore normally immune from claims of

ineffective assistance).  Further, here the prosecutor had

already elicited testimony from Johnson that he had prior convic

tions and that Johnson and Peete were only testifying because the

State was going to drop the murder charges against them.  The

jury was fully aware that Johnson and Peete were not the most

reliable witnesses and that they had an incentive to incriminate

defendant.  These witnesses were impeached.  Defendant's entire

argument is basically his belief that the witnesses were not

impeached enough.    

	To support his claim, defendant asks us to compare his

trial to the trial of codefendant Douglas, who was acquitted. 

Douglas's counsel did bring out the details about Johnson's

criminal record and his agreement with the State in the way

defendant now argues his counsel should have done.  Therefore,

defendant argues, if his counsel had done what Douglas's counsel

had done, then there is a reasonable probability that defendant

would have been acquitted too.    

	Defendant argues that we are allowed to compare his trial with Douglas's trial, citing People v. Edwards, 195 Ill. 2d 142, 165, 745 N.E.2d 1212, 1225 (2001), a recent Illinois Supreme

Court case which compared the results of the trials of codefen

dants when one defendant claimed ineffective assistance of

counsel on appeal.  The defendant in Edwards was charged with aggravated kidnapping and murder for burying a man alive in a

wooden box.  Edwards, 195 Ill. 2d at 151, 745 N.E.2d at 1217.  The defendant in Edwards argued that his counsel was ineffective for failing to seek to limit the amount of time that the wooden

box was present in the courtroom and pointed out that a motion to

that effect was made and granted in the trial of his codefendant. 

The court in Edwards found that failing to make the motion was not ineffective assistance of counsel because, even if the motion

had been granted, the defendant could not have excluded the

wooden box entirely.  Edwards, 195 Ill. 2d at 165, 745 N.E.2d at 1225.  The Edwards court further noted that because Edwards' codefendant was also convicted, "it [did] not appear that the

presence of the box was an influential consideration in the

jury's guilty verdicts here."  Edwards, 195 Ill. 2d at 165, 745 N.E.2d at 1225.

	Edwards appears to stand for the proposition that a reviewing court can use a codefendant's conviction as evidence

that defendant's counsel's strategy was not ineffective assis

tance because the results would have been the same regardless. 

Defendant argues the converse of Edwards:  that a codefendant's acquittal can be used as evidence that defendant's counsel's

strategy was ineffective assistance because the results would have been different. 

	We decline to give Edwards the interpretation argued by defendant.  We do not know what happened in Douglas's trial or

why the jury acquitted him.  The jury may have simply believed

Douglas or believed he was less responsible than others who

instigated the beating.  Douglas's counsel's handling of Johnson

may have had nothing to do with the acquittal.  It is entirely

too speculative to say that defendant would likely have been

acquitted too if his counsel had used the same strategy as

Douglas's counsel.  Douglas's acquittal is not proof that defen

dant's counsel's strategy was either objectively unreasonable or

that there is a reasonable probability that the result would have

been different.  That another strategy may have been better, or that another lawyer would have apparently

handled the case differently, is not proof defendant's

trial counsel was incompetent.  Vera, 277 Ill. App. 3d at 138, 660 N.E.2d at 16.

2. Failure To Call Two Disinterested Witnesses

	Defendant further argues that defense counsel's assis

tance was ineffective because he failed to call two disinterested

eyewitnesses.  Again, defense counsel's decision whether to call

a witness is generally a matter of trial strategy and immune from

claims of ineffective assistance.  People v. Enis, 194 Ill. 2d 361, 378, 743 N.E.2d 1, 12 (2000).  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.  People v. Butcher, 240 Ill. App. 3d 507, 510, 608 N.E.2d 496, 498 (1992).  

	Defendant contends 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.  Defendant also argues Toni Leon

ard's testimony would have contradicted and weakened Rita But

ler'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 stated she saw Lynntez Holt

and Jeff Dillon initiate the argument with Shepherd, which

contradicts Butler's testimony that defendant started the fight. 

Further, Leonard, who had been a neighbor of Johnson's, identi

fied 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 here.

	We find that none of the testimony which defendant

claims Hunter and Leonard would have given would have exonerated

defendant.  All these witnesses could do is further implicate

Johnson and Peete as involved in the murder, a fact of which the

jury was already aware because it knew Johnson and Peete had been

charged with the murder.  Implicating Johnson and Peete would not

exonerate defendant.  Also, testimony that defendant did not

start the beating would not contradict the State's theory that defendant participated in the beating.

	The State argues that the failure to call witnesses who

could only further impeach the State's already disreputable

witnesses cannot be ineffective assistance of counsel because it

was a matter of trial strategy.  As the State correctly points

out, it was defendant's counsel's strategy during trial to argue

that it was too dark on the street that night to make any spe

cific identifications.  There was evidence that the paramedics

who arrived at the scene could not see the victim's face, even

when right next to him, because it was too dark.  Therefore, it

would have been entirely contrary to defendant's counsel's

strategy to call witnesses who claimed to have made specific

identifications.

	Essentially, defendant's entire argument is again his

belief that his counsel's strategy should have been to do more to

impeach the State's witnesses because that was a better strategy. 

The jury was aware of the problems with the State's witnesses. 

The record shows that all of the witnesses to the beating who

were out on the street at 2 a.m. on Christmas morning, including

those defendant argues should have been called, had problems. 

Defendant's counsel chose to argue it was too dark that night to

make identifications, for which there was some evidence, rather

than mount a defense based upon the conflicting testimony of

unreliable witnesses.  Whether or not failing to use impeachable

witnesses to further impeach the State's already impeached

witnesses was a mistake, it was still strategy.  "[N]either mistakes in strategy nor the fact that another attorney with the benefit of hindsight would have handled the

case differently indicates the trial lawyer was incom

petent."  Vera, 277 Ill. App. 3d at 138, 660 N.E.2d at 16.

	The material in sections (B)(3) through (B)(6) is

nonpublishable under Supreme Court Rule 23.

	[Nonpublishable material under Supreme Court Rule 23 omitted here.]

[The preceding material is nonpublishable under Supreme Court Rule 23.]

C. Admission of Hearsay Evidence								  

	Defendant next contends the trial court erred when it

permitted the introduction of Heather Vinson’s hearsay testimony

regarding the conversation she overheard between codefendant

Douglas and an unidentified man, where she could not attribute

the statements to a particular speaker and where the testimony

was not admissible as either an express or tacit admission.

	Hearsay is defined as testimony regarding an out-of-

court statement offered for the truth of the matter asserted. 

People v. Cloutier, 178 Ill. 2d 141, 154, 687 N.E.2d 930, 936 (1997).  Hearsay is generally inadmissible unless it falls under

an exception to the rule excluding it.  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 a defendant, either express or tacit. 

See People v. Goswami, 237 Ill. App. 3d 532, 535-36, 604 N.E.2d 1020, 1023 (1992).

	Vinson testified Douglas called her around 3 a.m. the

night of the beating and asked her to pick him up at his house.  When she arrived at his house, Douglas got into the front seat

and a man she did not recognize got into the backseat.  The

following exchange between the prosecutor and Vinson then oc

curred over defense counsel’s objection:

		"Q.  What did they say as they were

talking back and forth had happened before

you *** went to pick them up?

		A.  They beat some guy bloody.

		Q.  When they saw all the police cars 

	there and the lights on the police cars, 

	what did they say about the man?

		A.  That the guy must be dead.

		Q.  Do you remember them talking about 

	the man who had been beaten and his comings 

	and goings?

		A.  Oh, something was said about he-- 

	'I don’t know why he came back' or 'I can’t 

	believe he came back' or something to that 

	effect."  

	Vinson heard both men speak but did not recall "who

said exactly what words."  On cross-examination, defense counsel

asked Vinson whether Douglas used the word "I" or "they" in

describing the beating, and she answered, "I can’t remember *** I

think he said 'they.'"  Vinson also could not recall what words

the unidentified man spoke during the conversation.  Vinson

testified after they dropped off the unidentified man at code

fendant Theodis White's house, she and Douglas went to his house.  She then heard Douglas make a phone call and ask if "Theo was

home."   

	The trial court explained its reasoning when it over

ruled defendant’s objection to the admission of the hearsay

testimony:

	"I understand the State’s theory to be and

the evidence, at least for purposes of ana

lyzing this objection, to circumstantially

permit the possible conclusion that the

[d]efendant was the person other than Bobby

Joe Douglas in the vehicle with Ms. Vinson,

and it is my view that the statements elic

ited by the State were admissible either as a

statement by the [d]efendant or adopted by

the [d]efendant’s silence made by Bobby Joe

Douglas."

	According to this reasoning, the trial court allowed

Vinson's hearsay as either an express or tacit admission.  A

tacit admission may be admissible as an exception to the hearsay

rule if sufficient evidence supports a finding that, in light of

the totality of the circumstances, a defendant remained silent

when faced with an incriminating statement, which, if untrue,

would normally call for a denial.  People v. Powell, 301 Ill. App. 3d 272, 277, 703 N.E.2d 934, 937 (1998). 

	There was evidence from Johnson, Vinson, and Cleo White

that defendant was the other person in the car with Douglas when

the incriminating statements were made.  That evidence did not have to be conclusive for it to be admitted.  A particular item

of evidence does not have to be proved beyond a reasonable doubt

to be admitted.  People v. Davis, 248 Ill. App. 3d 886, 893, 617 N.E.2d 1381, 1386 (1993).  Evidence is relevant if it has any

tendency to prove a proposition in issue.  Davis, 248 Ill. App. 3d at 893, 617 N.E.2d at 1386.  The jury was entitled to consider

the statements made in the Vinson car and whether they were

expressly or tacitly made by defendant. 

	D.  Sufficiency of the Evidence

	The material in section (D) is nonpublishable under Supreme Court Rule 23.

	[The material in section (D) is n[Nonpublishable material under Supreme Court Rule 23 omitted here.]e under Supreme Court Rule 23.]

	Defendant finally argues the State did not prove his

guilt beyond a reasonable doubt.  Defendant's challenge to the

sufficiency of the evidence focuses on the State's failure to

prove defendant "caused multiple blows to the head" of the

victim, as alleged in the information.  The State maintains

defendant's guilt was proved beyond a reasonable doubt.  We agree

with the State. 

	In determining the sufficiency of the evidence, a court

of review considers whether, viewing the evidence in the light

most favorable to the prosecution, a rational trier of fact could

have found the elements of the crime proved beyond a reasonable

doubt.  People v. Lewis, 165 Ill. 2d 305, 336, 651 N.E.2d 72, 87 (1995).  The reviewing court may not substitute its judgment for that of the jury on matters of credibility of witnesses, the

weight to be given their testimony, and the inferences to be

drawn therefrom.  People v. Oaks, 169 Ill. 2d 409, 457, 662 N.E.2d 1328, 1349 (1996).  Finally, even though accomplice

testimony is viewed with caution, it is nevertheless sufficient

to prove the defendant's guilt, even without any corroboration. 

People v. McLaurin, 184 Ill. 2d 58, 79, 703 N.E.2d 11, 21 (1998).

	The individual testimony of Johnson, Peete, or Butler

was sufficient to prove defendant's guilt beyond a reasonable

doubt.  Each of these witnesses identified defendant as a par-

ticpant in the beating death of Shepherd.  The members of the

jury weighed the credibility of each witness and their testimony,

and returned a guilty verdict.  We will not substitute our

judgment of the State's witnesses for that of the jury. 

	[The preceding material is nonpublishable under Supreme Court Rule 23.] 

III. CONCLUSION

	We affirm defendant's conviction.

	Affirmed.

	MYERSCOUGH, J., concurs.

	KNECHT, J., dissents.

	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 disinter

ested eyewitnesses who could not identify defendant as a partici

pant, 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 (proba

tion); (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 dis

charge 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 juve

nile 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, defen

dant points to the trial of codefendant Douglas, who was acquit ted 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 consti

tuted 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 rein

state 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 wit nesses, 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 identi fied Peete as a participant.  Hunter also testified at

codefendant Douglas's trial that he thought Peete was a partici

pant 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 credi

bility and contradicted the State's version of the facts sur rounding the beating.

	Toni Leonard's testimony would have contradicted and

weakened Rita Butler's testimony and Leonard would have identi

fied 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, identi

fied 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 eviscer

ated the credibility 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 coefendant 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 de

prived 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

[d]efendant was the person other than Bobby

Joe Douglas in the vehicle with Ms. Vinson, and it is my view that the statements elic

ited by the State were admissible either as a

statement by the [d]efendant 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 inad

missible 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 admis

sion, the witness must be able to attribute a particular state

ment 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 excep

tion 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 defen

dant 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, appli

cation 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, defen dant 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 line of events that night after the assail

ants 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 evi

dence 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.