1 

 2017 IL App (5th) 130576 

 NO. 5-13-0576 

 IN THE 

 APPELLATE COURT OF ILLINOIS 

FIFTH DISTRICT 

________________________________________________________________________ 

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellee, ) Jefferson County. 

 ) 

v. ) No. 02-CF-212 

 ) 

JOE C. TUCKER, JR., ) Honorable 

 ) David K. Overstreet, 

 Defendant-Appellant. ) Judge, presiding. 

________________________________________________________________________ 

 JUSTICE CATES delivered the judgment of the court, with opinion. 

 Justices Chapman and Barberis*

 concurred in the judgment and opinion. 

OPINION 

¶ 1 The defendant, Joe C. Tucker, Jr., filed a pro se petition pursuant to the PostConviction Hearing Act (725 ILCS 5/122-1 et seq. (West 2012)). Appointed counsel filed 

an amended postconviction petition, alleging ineffective assistance of trial and appellate 

counsel. The State filed a motion to dismiss the amended petition, and the motion was 

granted by the trial court. The defendant filed a timely appeal, asserting that the trial 

court erred in dismissing his amended petition without a third-stage evidentiary hearing, 

 *

Justice Stewart was originally assigned to participate in this case. Justice Barberis was substituted on the 

panel subsequent to Justice Stewart’s retirement and has read the briefs and listened to the recording of oral 

argument. 

NOTICE

Decision filed 05/30/17. The 

text of this decision may be 

changed or corrected prior to 

the filing of a Peti ion for 

Rehearing or the disposition of 

the same.
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when the defendant had alleged sufficient facts to make a substantial showing that his 

constitutional rights had been violated. For the reasons that follow, we reverse the order 

of dismissal and remand the matter for an evidentiary hearing. 

¶ 2 BACKGROUND 

¶ 3 This appeal is taken from the circuit court’s decision to dismiss the defendant’s 

amended postconviction petition at the second stage of postconviction proceedings. The 

facts of this case are set forth in this court’s disposition of the defendant’s direct appeal. 

People v. Tucker, No. 5-06-0484 (2011) (unpublished order under Supreme Court Rule 

23). Accordingly, we will restate only those facts relevant to our resolution of the issues 

raised in this appeal. 

¶ 4 The evidence at trial established that on the morning of May 6, 1988, Jeff 

Reynolds, Jana’s husband, returned home from his job on the night shift and found Jana 

lying on the bed covered in blood. She had been stabbed multiple times. A thermal 

underwear bottom and gray panties were hanging from her left ankle, and her thermal top 

had been pushed up. She was dead. Her purse was on the living room floor, with its 

contents dumped out. 

¶ 5 During the investigation, the police interviewed a number of individuals, including 

Albert McDaniels and the defendant. Albert McDaniels went to the police station and 

voluntarily gave samples of hair, pubic hair, saliva, and blood. A forensic technician 

compared small hair fragments found on Jana’s bed sheet to McDaniels’ head and pubic 

hair standards, and determined that there was no DNA match. The defendant also 

provided samples of hair from his head. A forensic scientist compared the samples taken 
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from the defendant’s head with the hair fragments recovered from the crime scene. The 

forensic scientist testified that the defendant’s hair sample did not match the hair 

fragments at the scene. The scientist further stated that he did not have hair from the 

defendant’s other body parts to compare with the hair fragments obtained from the crime 

scene, and because of that, the defendant could not be excluded as a suspect. By

December 1988, the police had followed more than 300 leads, but the case remained 

open. 

¶ 6 In August 2001, the Mount Vernon police department began to reexamine the 

physical evidence found at the scene of Jana’s murder. Using an alternate light source 

that was not available during the original investigation, a detective found previously 

undiscovered stains on the thermal bottoms and panties Jana was wearing at the time of 

her death. Cellmark, a private laboratory, determined that the stains on the thermal 

bottoms and panties were from seminal fluid. Cellmark developed a DNA profile from 

the stains and found that the DNA profile was from an unknown male source. The 

unknown DNA profile was compared to a DNA profile from McDaniels, and it did not 

match. No physical evidence linking McDaniels to the inside of Jana’s house was found. 

¶ 7 Cellmark also created a DNA profile of the defendant, using the hair samples he 

had provided to the police in 1988. Cellmark found that the defendant’s DNA matched 

the stains on Jana’s thermal bottoms and panties. Investigators obtained a current sample 

of the defendant’s DNA. Cellmark tested that sample and confirmed that the DNA 

sequences were the same. The defendant was arrested and subsequently charged with 

Jana’s murder. 
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¶ 8 In November 2002, the State’s Attorney telephoned police investigators and 

advised that he had received a letter from a prisoner named Robin Gecht. In the letter, 

Gecht claimed to have information about Jana’s death. Investigators interviewed Gecht, 

who stated that the defendant had approached him to help prepare a defense for the 

defendant’s case. Gecht told the defendant to write out his involvement with the case, and 

he wrote out four statements, providing more details in each successive version. 

Subsequently, the police obtained the statements from Gecht. 

¶ 9 During trial, Robin Gecht testified that he had been convicted of aggravated 

battery, aggravated kidnapping, rape, deviant sexual assault, and attempted murder.

Gecht admitted that he sent a letter to the State’s Attorney stating that he had information 

about Jana’s murder and suggesting that they could work out an agreement helpful to all 

concerned. Gecht testified that no one from the prosecution or law enforcement had 

offered him a deal in exchange for his testimony. Gecht stated that the defendant 

admitted he entered Jana’s house with the intent of raping her and burglarizing the home, 

and that he killed her. Gecht testified that he asked the defendant to write down what had 

occurred, and that he asked the defendant to rewrite the statement four times, including 

more details each time. Gecht stated that he helped the defendant with one statement, 

constructing a theory of defense that his friend, McDaniels, had killed Jana, while he 

observed. Gecht acknowledged that he had seen four pieces of discovery. 

¶ 10 Gecht denied tricking the defendant into writing the statements. During crossexamination by the defendant’s counsel, the following occurred: 
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“MR. BURKE [defense counsel]: Did you trick [the defendant] into writing 

these statements? 

GECHT: No, sir. 

MR. BURKE: Do you remember talking with me and Kevin McClain back 

in November? 

GECHT: Yes, sir. 

MR. BURKE: No other questions, Your Honor.” 

¶ 11 Kevin McClain testified that he was a private investigator. Defense counsel asked 

McClain if Gecht said that he had tricked the defendant into writing the signed 

statements. The State objected on hearsay grounds because defense counsel had not asked 

Gecht any questions about the content of his conversation with McClain. The court 

sustained the objection. 

¶ 12 Albert McDaniels testified that on May 5 or 6, 1988, he was near Jana’s house 

because he was going to rob the house next door. McDaniels stated that he walked by 

Jana’s house and looked in the window. He asserted that he had difficulty remembering 

anything from that time period. Defense counsel handed McDaniels a copy of a statement 

he had given to the police on May 11, 1988. McDaniels was asked if that was his 

signature on the bottom of each page, and he answered in the affirmative. When asked if 

it was his handwriting, he stated that he did not write it. Defense counsel asked that the 

statement be allowed into evidence as a past recollection recorded. The State objected on 

the ground that no foundation had been laid, and the trial court sustained the objection.

Defense counsel continued asking McDaniels questions about May 5 or 6, 1988, and he 
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claimed not to remember. Defense counsel asked that McDaniels be made a court’s 

witness. The State objected on the ground that he could not be declared a hostile witness 

until he showed some hostility. The court stated that it would not allow McDaniels to be 

questioned as a court’s witness because he had not shown any hostility. Defense counsel 

then gave McDaniels a transcript from his testimony in July 1989, to refresh his memory. 

McDaniels stated that reviewing his testimony only refreshed his memory somewhat, but 

that the prior testimony indicated that he and an individual named “T.C.” had a 

discussion about robbing a “dope house.” McDaniels implied to T.C. that he and Jana had 

had an affair. McDaniels told T.C. the best time to go to Jana’s house if he wanted to 

have sex with her was between 11 p.m. and 7 a.m. because her husband would be at 

work. McDaniels denied killing Jana. 

¶ 13 Defense counsel requested again that McDaniels be declared a hostile witness. The 

State objected on the ground that McDaniels was answering the questions. The court 

replied: 

“Mr. Burke, you may—you may question this [witness] as if he’s being 

cross examined. There’s a proper way that you need to ask someone 

questions; however, and you’re not doing it the proper way. So you need to 

move on and do it the correct way. But you may cross examine him at this 

time.” 

¶ 14 McDaniels denied that he stopped by Jana’s house and looked in the living room 

window while the defendant looked in the kitchen window. He also denied telling the 

defendant that they could go into Jana’s house, have sex with her, and look for money for 
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drugs. 

¶ 15 Alva Busch testified that he had worked for the Illinois State Police as a crime 

scene investigator for 24 years. In 2001, he retired and opened an agency that reviewed 

criminal cases. Defense counsel showed Busch a crime scene drawing generated by the 

Illinois State Police. Defense counsel told Busch that the defendant gave a statement that 

he looked in the kitchen window and saw Jana lying on the couch. Defense counsel asked 

Busch to draw a line from the kitchen window to the couch. The State objected on the 

ground that the drawing was not to scale. Defense counsel argued that it was just 

demonstrative. The State argued that the defense was trying to use a diagram that was not 

to scale to establish that it was impossible to see Jana lying on the couch from the kitchen 

window. The trial court sustained the objection. 

¶ 16 The defendant took the stand, and defense counsel asked him about his 

convictions for aggravated battery and burglary. The defendant stated that one night 

while he was out, he went to a gas station for a soda, but had no money. When he told the 

cashier that he planned to rob him, the cashier laughed, and he threw the soda at the 

cashier. 

¶ 17 The defendant testified that he and Jana worked together at a Wendy’s restaurant 

in 1982 or 1983 and that they began a sexual relationship in about 1983. He testified that 

on May 5, 1988, he borrowed his sister’s car to go to Jana’s house. He parked about two 

blocks away and walked to her house. He testified that as he approached her house, 

McDaniels stepped out from beside it, claiming to have been just walking around. They 

both went to the door, and he introduced McDaniels to Jana. They spent about 15 minutes 
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talking in the living room. He stated that he and Jana went into her bedroom and started 

to engage in sexual intercourse. McDaniels came into the bedroom and asked if “it was a 

party,” and Jana said “no.” He stated that McDaniels left the room and then returned,

saying “Fuck this shit.” The defendant testified, “I had already came at the time and I was 

getting up and then he just ran into the bedroom and started grabbing on her, pulling on 

her.” The defendant pushed McDaniels off Jana. The defendant testified that McDaniels 

then pulled a knife, stabbed Jana, and threatened to kill him. The defendant ran away. He 

claimed to have seen McDaniels later that morning, and McDaniels threatened to kill him 

if he said anything. The defendant testified that he did not say anything to the police 

because he was afraid. 

¶ 18 The defendant testified that he met Gecht in prison. The defendant stated that he 

had questions he wanted his attorney to ask some potential witnesses. Because his 

handwriting was poor, he asked Gecht to type the questions for him. He testified that 

Gecht told him that he could help with his defense. The defendant admitted writing the 

statements that the State offered into evidence and said that he had written them for 

Gecht to help him with his defense. The defendant testified that after he wrote the first 

statement, Gecht told him to write another one with more detail. He stated that he wrote 

the statements because his attorney had told him that the police knew that McDaniels was 

at the scene, but could not place him in the house. He testified that Gecht told him to 

write a statement putting himself in McDaniels’ place to show the police how they 

missed McDaniels. He stated that in writing the statements, he took everything he knew 

about the case, and everything he learned from discovery, and tried to rebuild a crime 
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scene.

¶ 19 The jury found the defendant guilty of all 10 counts of first degree murder.

Following the sentencing hearing, the trial court stated that the defendant would be 

sentenced on the most serious charge, the offense of first degree murder in that he, 

without lawful justification and with the intent to kill Jana, stabbed her with a sharp 

instrument, thereby causing her death, and the offense was accompanied by exceptionally 

brutal or heinous behavior indicative of wanton cruelty (count VI). The court then 

sentenced the defendant to natural life imprisonment on count VI, and vacated the other 

convictions. 

¶ 20 The defendant filed a motion to reconsider sentence and a motion for a new trial, 

both of which were denied. As previously noted, the defendant’s conviction and sentence

were affirmed on appeal. People v. Tucker, No. 5-06-0484 (2011) (unpublished order 

under Supreme Court Rule 23). The defendant then filed a pro se petition for relief from 

judgment pursuant to section 2-1401(f) of the Code of Civil Procedure (735 ILCS 5/2-

1401(f) (West 2010)). The circuit court sua sponte dismissed the petition, and the 

defendant appealed. This court affirmed the dismissal. People v. Tucker, 2012 IL App 

(5th) 100190-U. 

¶ 21 The defendant then filed a pro se postconviction petition. Appointed counsel filed

an amended postconviction petition alleging ineffective assistance of trial and appellate 

counsel. The State filed a motion to dismiss the defendant’s postconviction petition, 

arguing that the defendant failed to meet the Strickland standard for ineffective assistance 

of counsel. Strickland v. Washington, 466 U.S. 668 (1984). The court granted the State’s 
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motion to dismiss. This appeal followed. 

¶ 22 ANALYSIS 

¶ 23 On appeal, the defendant contends that the trial court erred in dismissing his 

postconviction petition at the second stage of the proceedings. The defendant argues that 

the errors made by trial counsel so permeated his trial that it is impossible to conclude 

that the allegations in the amended petition, when liberally construed in light of the trial 

record, failed to make a substantial showing of a constitutional violation. 

¶ 24 The Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2012)) 

provides a process through which a defendant can assert that his conviction resulted from 

a substantial deprivation of his rights under the United States Constitution or the Illinois 

Constitution. People v. Coleman, 183 Ill. 2d 366, 378-79 (1998). A postconviction 

petition is a collateral attack on a prior conviction, the purpose of which is to allow 

inquiry into constitutional issues related to the conviction or sentence that were not, and 

could not have been, determined on direct appeal. People v. Barrow, 195 Ill. 2d 506, 519 

(2001). Thus, issues that were raised and decided on direct appeal are barred under the 

principle of res judicata, and issues that could have been presented on direct appeal, but 

were not, are considered waived. Barrow, 195 Ill. 2d at 519. 

¶ 25 Postconviction proceedings may potentially proceed through three stages. People 

v. Pendleton, 223 Ill. 2d 458, 471-72 (2006). At the first stage, the trial court may 

summarily dismiss a petition if it finds that the petition is frivolous and patently without 

merit. Pendleton, 223 Ill. 2d at 472. At the second stage, counsel may be appointed for an 

indigent defendant. Pendleton, 223 Ill. 2d at 472. Postconviction counsel’s obligations 
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under Illinois Supreme Court Rule 651(c) include (1) consulting with the defendant to 

ascertain his contentions of deprivation of constitutional rights; (2) examining the record 

of the trial proceedings; and (3) amending the petition, if necessary, to ensure that the 

defendant’s contentions are adequately presented. Ill. S. Ct. R. 651(c) (eff. Feb. 6, 2013); 

Pendleton, 223 Ill. 2d at 472. At the second stage, it is the defendant’s burden to make a 

substantial showing of a constitutional violation, and the State may move to dismiss the 

petition for failure to do so. Pendleton, 223 Ill. 2d at 472-73. In determining whether the 

defendant has made a substantial showing of a constitutional violation, all well-pleaded 

facts in the petition, not positively rebutted by the record, are to be taken as true. 

Pendleton, 223 Ill. 2d at 473. Where, as here, the trial court dismisses the postconviction 

petition on the State’s motion, without an evidentiary hearing, the trial court’s decision is 

reviewed de novo. Pendleton, 223 Ill. 2d at 473. 

¶ 26 A defendant has a right to effective assistance of counsel under the United States 

Constitution (U.S. Const., amend. VI) and the Illinois Constitution (Ill. Const. 1970, art. 

I, § 8). People v. Leeper, 317 Ill. App. 3d 475, 481 (2000). A defendant alleging a 

violation of his right to effective assistance of counsel must generally meet the twopronged test set out in Strickland, 466 U.S. at 687. People v. Albanese, 104 Ill. 2d 504, 

525-27 (1984). Under Strickland, the defendant must allege facts demonstrating (1) that 

counsel’s performance fell below an objective standard of reasonableness and (2) that 

counsel’s deficient performance so prejudiced the defendant that he was denied a fair 

trial. Strickland, 466 U.S. at 687-88; People v. Nowicki, 385 Ill. App. 3d 53, 81 (2008). In 

establishing substandard performance, the defendant must overcome the strong 
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presumption that his attorney’s actions were the product of sound trial strategy and not 

incompetence. Nowicki, 385 Ill. App. 3d at 81. A defendant is entitled to competent, not 

perfect, representation, and mistakes in trial strategy or judgment will not, of themselves, 

render the representation ineffective. Nowicki, 385 Ill. App. 3d at 82. In establishing the 

prejudice prong, the defendant must show that there is a reasonable probability that, but 

for his attorney’s deficient performance, the result of the proceedings would have been 

different. Barrow, 195 Ill. 2d at 520. A reasonable probability is one that sufficiently 

undermines confidence in the outcome of the proceeding. Barrow, 195 Ill. 2d at 520. 

¶ 27 To prevail on a claim of ineffective assistance, both prongs of Strickland must be 

satisfied. Coleman, 183 Ill. 2d at 397. Thus, a court may resolve an ineffective assistance 

claim based upon only the prejudice component because a lack of prejudice renders 

irrelevant the issue of counsel’s performance. Coleman, 183 Ill. 2d at 397-98. 

¶ 28 On appeal, the defendant contends that his trial counsel’s errors so permeated 

every phase of the trial that there can be no confidence in the jury’s verdict. Initially, the 

defendant notes that the State’s evidence, particularly the DNA evidence and the 

defendant’s incriminating written statements, led his counsel to pursue a three-part 

defense strategy: (1) the defendant had been having an “on again off again affair” with 

Jana, and that he had consensual sex with her on the night of her murder; (2) the actual 

killer was Albert McDaniels; and (3) Gecht had tricked the defendant into writing the 

incriminating statements. The defendant concedes that his counsel successfully presented 

evidence that the defendant had consensual sex with Jana, through the defendant’s own 

trial testimony. The defendant asserts, however, that his counsel failed to present 
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evidence in support of the remaining theories of defense due to counsel’s lack of 

understanding of basic rules of evidence, violations of pretrial rulings, and incompetence 

in trial advocacy. 

¶ 29 Specifically, the defendant alleges that his counsel (1) violated the court’s order 

granting a motion in limine limiting the introduction of Gecht’s criminal history, (2) 

disregarded evidentiary rules in describing the details of his prior conviction, (3) failed to 

lay a proper foundation to impeach Gecht and establish that Gecht tricked him into 

writing the incriminating statement, (4) failed to attempt to perfect impeachment of 

McDaniels with any of McDaniels’ inconsistent statements; (5) failed to know the rules 

of evidence when introducing a diagram, and (6) made an improper closing argument in 

which counsel focused on his own performance, discussed an offensive interpretation of 

the evidence, and referenced prejudicial information. The defendant asserts that the 

substandard performance left him unable to present his theory of the case and prejudiced 

him to the point that he suffered a constitutional deprivation of his right to counsel. The 

defendant also alleges ineffective assistance of appellate counsel. We will consider each 

contention in turn. 

¶ 30 Initially, the defendant argues that counsel’s lack of courtroom awareness was 

evident during the pretrial hearing when counsel offended the trial court by suggesting 

that defense motions were routinely denied when the State offered an objection and that 

the defense motions were granted only when the State agreed to them. We note that this 

exchange between counsel and the trial court occurred outside the presence of the jury 

and thus could not have biased the jurors. People v. Young, 248 Ill. App. 3d 491, 502 
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(1993). The defendant has not alleged nor argued that the trial judge developed a bias 

against the defendant as a result of this exchange. In fact, the defendant concedes that this 

instance alone would not be sufficient to establish ineffective assistance of counsel. 

Instead, he contends that this conduct foreshadowed counsel’s refusal to comply with 

pretrial orders and his lack of understanding of the rules of evidence. 

¶ 31 Next, the defendant asserts that his counsel violated an order in limine prohibiting 

the defense from discussing the details of one of Robin Gecht’s criminal convictions. The 

defendant notes that during opening statements, defense counsel told the jury that Gecht 

was serving time for attempted murder and deviant sexual assault, and then stated: “we’ll 

get into the particulars of that deviant sexual assault.” The State objected that counsel’s 

comment violated the order in limine, and the objection was sustained. During a sidebar, 

the trial court admonished defense counsel that he could ask about Gecht’s prior 

conviction, but he could not delve into the particulars of that case. 

¶ 32 A witness may be impeached on cross-examination with prior convictions, but the 

details of the nature of the crime are irrelevant and prejudicial surplusage. People v. 

Arroyo, 339 Ill. App. 3d 137, 151-52 (2003). In this case, defense counsel’s comment, 

during opening statement, that he would reveal the details of Gecht’s deviant sexual 

assault conviction, suggests that counsel either did not understand the order in limine or 

did not plan to abide by it. In our view, this incident, standing by itself, does not satisfy 

the prejudice prong of Strickland. In other words, the defendant cannot show that but for 

defense counsel’s comment, there is a reasonable probability that the result of the trial 

would have been different. 
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¶ 33 The defendant also asserts that his counsel disregarded the evidentiary rule 

restricting the admission of details underlying a prior conviction of a defendant. Prior to 

commencement of opening statements, defense counsel had not yet received a ruling on a 

motion in limine, which included a paragraph seeking to prohibit the State from referring 

to the defendant’s prior bad acts and prior convictions. During a conference outside the 

presence of the jury, and just prior to opening statements, the State indicated that it did 

not intend to refer to the defendant’s prior convictions during opening statements because 

the motion had not yet been ruled upon. During its opening statement, the State refrained 

from any comment on the defendant’s prior convictions. Curiously, defense counsel, 

during his opening statement, proceeded to inform the jury that the defendant had been 

convicted of a crime in Champaign. He stated that the defendant: 

“was in a convenience store. He got a Coke out of the freezer or out of the 

refrigerator, took it up to the counter, didn’t have any money. He told the 

guy behind the counter that he was going to rob him. The guy behind the 

counter laughed. Joe hit him with the Coke can, then the two guys in the 

store jumped over the counter, held Joe down until the police got there. So

Joe ended up with a felony conviction and went to prison. While he was out 

of prison and on parole, these charges were brought up and so a parole hold 

was put on him and he was put back in prison. While he was in prison, 

that’s when he hooked up with Robin Gecht.” 

¶ 34 The defendant later testified in his own defense. Responding to questions by his 

own counsel, the defendant explained that he was arrested for a parole violation and 
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subsequently sent to prison at Menard, where he met Robin Gecht. The defendant asserts 

that defense counsel’s errors during his opening statements, and during his questioning of 

the defendant, unfairly prejudiced the defense because the jury was needlessly given 

some details of a prior conviction, which included violence, and was permitted to 

speculate as to the extent of the injury caused when the clerk was struck with the Coke 

can. 

¶ 35 Our courts have voiced concerns that providing proof of an accused’s “penchant 

for criminal behavior would control the decision-making process, resulting in convictions 

based upon past guilt instead of current evidence.” People v. Fletcher, 335 Ill. App. 3d 

447, 449 (2002). “While evidence of prior criminality cannot be admitted for the purpose 

of proving criminal propensity, it is allowed to be used, on occasion, after an accused 

testifies.” Fletcher, 335 Ill. App. 3d at 449. Whether a prior conviction can be used 

against the defendant requires a process of balancing its probative value as impeachment 

against the unfair prejudice it might impose. People v. Montgomery, 47 Ill. 2d 510, 518-

19 (1971). Simply put, the details of the defendant’s actions as described by his counsel 

during opening statement would not have been admissible under any interpretation of 

Montgomery, unless the defendant took the stand and testified to same. In this case, the 

defendant admitted to being on parole and then returned to prison for the parole violation, 

but he did not provide details of the prior conviction during his testimony. Thus, it was 

only the defendant’s attorney who described, in detail, the circumstances that led to the 

defendant’s prior conviction in Champaign County. 

¶ 36 Further, the defendant has questioned his counsel’s understanding of when the 
17 

State can properly introduce evidence of a defendant’s prior criminal history. Based on 

the record, it seems that defense counsel was unaware of the limitations placed upon the 

admissibility of prior criminal convictions under the Montgomery rule, and the trial 

court’s obligation to perform a balancing test under circumstances as set forth herein, 

where the defendant testifies and the State seeks to introduce prior convictions. Defense 

counsel made no objection to the State’s motion to admit the defendant’s prior conviction 

for unlawful delivery of a controlled substance, a crime that was unrelated to the facts of 

this case. Inasmuch as defense counsel made no objection, the trial court did not perform 

any analysis, as required by Montgomery. In some circumstances, counsel’s decision to 

inform a jury of a prior conviction shows competence by attempting to blunt its impact 

with the jury, but the details of the nature of past crimes are irrelevant and prejudicial 

surplusage. Arroyo, 339 Ill. App. 3d at 151-52. The defendant contends that defense 

counsel either was unaware of or ignored the Montgomery rule and that his counsel’s 

repeated introduction of the prejudicial details of the defendant’s past criminal history 

before the jury constitutes ineffective assistance of counsel. 

¶ 37 Judicial scrutiny of counsel’s performance is highly deferential, and there is a 

strong presumption that counsel’s conduct falls within the wide range of reasonable 

professional assistance. People v. Manning, 241 Ill. 2d 319, 334 (2011). It is the 

defendant’s burden to overcome the presumption that, under the circumstances, counsel’s 

challenged action might be considered trial strategy. Manning, 241 Ill. 2d at 334.

“Reviewing courts should hesitate to second-guess counsel’s strategic decisions, even 

where those decisions seem questionable.” Manning, 241 Ill. 2d at 335. Given the record 
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before us, we are unwilling to assume that defense counsel’s decision to describe the 

details of the defendant’s aggravated battery conviction, and to allow the defendant to 

testify regarding his past criminal activity, was sound trial strategy. This information may 

have influenced the jury’s verdict. These allegations, supported by the trial record, make 

a substantial showing that the defendant’s constitutional rights may have been violated. 

¶ 38 The defendant also argues that his counsel was ineffective in that he failed to lay a 

proper foundation to impeach Gecht. The defendant asserts that his counsel erred during 

cross-examination of Gecht because counsel stopped one question short of laying a 

proper foundation to impeach Gecht’s testimony that he had not tricked the defendant 

into writing the statements confessing to Jana’s murder. Defense counsel asked Gecht 

whether he remembered speaking with defense counsel and McClain, the private 

investigator. Gecht responded in the affirmative. Defense counsel then stated “No further 

questions.” Next, defense counsel called McClain as a witness and asked him about his 

conversation with Gecht. Specifically counsel asked McClain whether Gecht had 

admitted that he tricked the defendant into writing the incriminating statements. The State 

objected on hearsay grounds, arguing that defense counsel had not asked Gecht any 

questions about the content of his conversation with McClain. The trial court sustained 

the objection. The defendant argues that defense counsel never asked the court if he could 

recall Gecht to lay the proper foundation, even though the trickery was a cornerstone of 

the defendant’s explanation in defense of the incriminating statements. The defendant 

asserts that counsel’s failure to lay this foundation was unfairly prejudicial to his defense 

because the defendant was unable to present testimony from his witness, McClain, to 
19 

corroborate the defendant’s testimony that he was tricked by Gecht into writing 

incriminating statements. Without this testimony, the defendant argues that the jury was 

left to determine whether the defendant or Gecht was more credible on this issue. 

¶ 39 The record at trial shows that both Gecht and the defendant had credibility issues. 

Gecht had been impeached by his criminal record. And while Gecht did not receive a deal 

in exchange for his testimony, he readily admitted that he wrote to the State’s Attorney, 

claiming to have information about Jana’s murder in hopes of working out some 

agreement that would be helpful to “all concerned.” Gecht testified that the defendant 

told him that he had entered Jana’s house with the intent of raping her and burglarizing 

her house and that he had killed her. During cross-examination by defense counsel, Gecht 

denied that he had tricked the defendant into writing the statements. But defense counsel 

failed to take the extra steps necessary to lay the ground work for impeaching Gecht with 

McClain’s testimony. Inasmuch as the defendant’s claim of deception in the authoring of 

the incriminating statements was a key component to the defendant’s trial strategy, we 

are not willing to assume that defense counsel’s failure to lay the groundwork for the 

impeachment of Gecht was sound trial strategy. The testimony of McClain may have 

influenced the jury’s verdict. The defendant’s allegations, supported by the trial record, 

make a substantial showing that the defendant’s constitutional rights may have been 

violated. 

¶ 40 The defendant argues that defense counsel was ineffective because he never tried 

to perfect his impeachment of McDaniels with any of McDaniels’ inconsistent 

statements, even though McDaniels’ testimony was replete with instances where he 
20 

claimed not to remember and where he denied things he had said in previous statements. 

The defendant argues that getting McDaniels’ prior inconsistent statements into evidence 

was critical to his defense because the police had identified McDaniels as the alternate 

suspect, and the jury deserved to have a full understanding of McDaniels’ viability as the 

perpetrator of the murder. He further asserts that, after watching defense counsel struggle 

to lay a proper foundation to introduce McDaniels’ prior inconsistent statements, the trial 

court allowed counsel to question McDaniels as a hostile witness, even though he showed 

no hostility, highlighting counsel’s lack of knowledge of the rules of evidence. 

¶ 41 The trial record shows that defense counsel was able to establish that McDaniels 

was serving time in prison for armed robbery at the time he testified. After defense 

counsel failed to lay the foundation to admit McDaniels’ May 11, 1988, statement to the 

police as a past recollection recorded, he attempted to use that document to refresh 

McDaniels’ memory. McDaniels reviewed the statement, but stated that it did not really 

refresh his memory. Defense counsel then asked McDaniels if he remembered giving 

sworn testimony in July 1989, and McDaniels stated that he did not remember.

McDaniels was asked if he remembered saying he was at Jana’s house on the night of the 

murder. He replied that he could not remember if he said he was at her house, but he did 

recall saying he was near the house, because he was going to rob the house next door. 

McDaniels denied stopping at Jana’s house while heading to rob the house next door. He 

testified that he cut through Jana’s yard and looked in the window as he passed. Defense 

counsel handed him three pages from the transcript of his July 1989 testimony. He read 

them and stated that they refreshed his memory somewhat. Defense counsel asked him if 
21 

he discussed robbing the house with T.C., and he stated that he did. Defense counsel 

asked McDaniels if he knew Jana, and he said no. Defense counsel handed McDaniels 

pages from his July 1989 testimony to refresh his memory. McDaniels stated that it did 

not really refresh his memory, but, if that is what he said, “then that’s about as close that 

it get[s] to what really happened back then.” He was asked if he had been to a party at 

Jana’s house, and he said not that he remembered. He admitted testifying to having been 

at a party at her house and that he had implied to T.C. that he and Jana had an affair. He 

testified that he no longer remembered, but at the time of his July 1989 testimony, he 

stated that he had told T.C. that the best time to go to Jana’s house to have sex was 

between 11 p.m. and 7 a.m. because her husband would be at work. 

¶ 42 McDaniels also testified that he voluntarily cooperated with the police when they 

asked for blood, hair, saliva, and the clothes he was wearing on the night of the murder. 

He stated that every time the police asked if they would find his DNA in the house, he 

stated they would not. McDaniels reviewed his testimony from July 1989 and admitted 

that he had testified that he knew Jana slightly through a friend who may have worked 

with her and that he had been to her house once for a small party, with just a few people.

He said he was introduced to her, but did not speak with her. He stated that any 

implications that he was having an affair with her were false. He denied killing Jana, 

denied that he was in the house at any time on the night she was killed, and denied that he 

had any contact with her other than at the small party. 

¶ 43 Based upon the testimony in the trial record, it appears that defense counsel was 

able to impeach McDaniels with prior inconsistent statements. McDaniels had difficulty 
22 

remembering statements he had made to the police years earlier. Defense counsel asked 

McDaniels to verify if he had made the statements, and defense counsel was then able to 

either refresh McDaniels’ memory with his prior statements or was allowed to read from 

the statements. Defense counsel was also allowed to question McDaniels as a hostile 

witness and was thus allowed to ask leading questions through cross-examination. The 

record establishes that defense counsel was able to introduce the defense theory that 

McDaniels was the perpetrator of the crime. McDaniels admitted that he was near Jana’s 

house and looked in the window. He admitted to being in the area to rob the house next 

door. He admitted that he made a statement to the police allowing a friend to believe that 

he had an affair with Jana and that he had told his friend that the best time to have sex 

with Jana would be between 11 p.m. and 7 a.m. when her husband was at work. He 

admitted that he had lied to his friend about having an affair with Jana. While he denied 

knowing Jana, he admitted that he had told police that he had been at a small party at her 

house. He also admitted that statements he had made earlier to the police would have 

been more accurate. He stated that it was possible that he had told the police some things 

in May 1988 that were not completely true. 

¶ 44 Impeachment is not evidence. People v. Douglas, 2011 IL App (1st) 093188, ¶ 47. 

Impeachment simply challenges the credibility of the witness and, ultimately, it falls to 

the trier of fact to determine whether that challenge was successful. Douglas, 2011 IL 

App (1st) 093188, ¶ 47. “[A] court of review will not upset a verdict by a jury on the 

possibility, not probability, that with a little bit more impeachment, the witness would 

have been found totally incredible.” Douglas, 2011 IL App (1st) 093188, ¶ 47. Defense 
23 

counsel was able to show that McDaniels made inconsistent statements, and the question 

of credibility was left to the jury to determine who was more credible—the defendant or 

McDaniels. Accordingly, the defendant has failed to make a substantial showing that his 

defense was unfairly prejudiced by his counsel’s failure to properly impeach McDaniels. 

¶ 45 The defendant next argues that defense counsel was ineffective for failing to know 

the rules of evidence when introducing a diagram to establish line of sight. Defense 

counsel hired an expert witness, Alva Busch, to recreate the crime scene. Defense counsel 

attempted to elicit testimony from Busch that it was impossible to see Jana lying on the 

couch, from the kitchen window, as testified to by McDaniels. Defense counsel also 

attempted to elicit testimony from Busch that the defendant could not have seen Jana 

lying on the couch from the kitchen window as the defendant claimed in his statement. 

The defendant argues that defense counsel failed to properly prepare a diagram for use as 

substantive evidence and that counsel’s error prevented him from offering substantive 

evidence to support his theory that McDaniels was in the victim’s house on the night she 

was murdered. 

¶ 46 In this case, defense counsel retained a well-qualified expert, who had years of 

experience with the Illinois State Police as a crime scene investigator, to offer testimony 

to support the defense theory that McDaniels had to have been in the house to know that 

Jana was lying on the couch. Inexplicably, counsel failed to properly prepare a diagram 

of the house and yard, including sight lines, so that this evidence could be introduced 

through the testimony of Busch. The defendant contends that, as a result of counsel’s 

error, he was deprived of critical evidence that supported his theory that McDaniels was 
24 

the perpetrator of the crime. The defendant’s allegation, supported by the trial record, is 

sufficient to make a substantial showing that his constitutional rights may have been 

violated. 

¶ 47 In this case, the allegations in the defendant’s petition, and the supporting record, 

regarding counsel’s inability to introduce this evidence and counsel’s other errors, make a 

substantial showing that counsel’s representation was deficient and that counsel’s 

deficient performance may have resulted in unfair prejudice. 

¶ 48 Next, the defendant contends that by the end of the trial, even defense counsel 

recognized his performance was deficient. Defendant notes that counsel began his closing 

argument with the words, “Not guilty. Joe Tucker is innocent of killing Jana Reynolds.

Albert McDaniels killed Jana Reynolds.” The defendant suggests that these words are 

important because they support his contention that the trial strategy to be used in his 

defense was to show that McDaniels killed Jana. 

¶ 49 Shortly thereafter, defense counsel offered the following description of his legal 

performance: 

“Years ago I tried being a—a trial lawyer for a while. And my memory I 

was pretty good at it. Last Monday put the light to that. I was so nervous last 

Monday and I’m nervous now but not like last Monday. Last Monday I was so 

nervous I couldn’t hardly speak.

I retired, if you will, from being a trial lawyer and I—and I became more 

what you might have a research lawyer and that’s how I end up learning so much 

about DNA. I’m a DNA guy. 
25 

When I agreed to help [the defendant] on this case, I thought it was a DNA 

case and it turned out it wasn’t. So here I am. I might have said during voir dire

about how I’ve been on a jury before. It was a criminal case down in Benton in 

Federal Court. For as tough as it is on this side of the railing—(Physical 

indication)—to me it’s a whole lot tougher over on this side of the railing. 

(Physical indication). 

In that case it was obvious to all of us on the jury that one lawyer was better 

than the other. When we got back to the jury room nobody even mentioned it.

When we got back to the jury room we started to look at the evidence. I think that 

you guys are going to do the same thing; but, if there’s any doubt, please don’t 

judge this case on who has the better lawyer. That wouldn’t be fair because [the 

defendant is] going to lose on that ground.” 

Defense counsel’s admission to the jury that he may not have been as good a lawyer for 

the defendant as the attorney representing the State is somewhat confounding. It is 

conceivable that a lawyer may try to endear himself or herself to the jury as a matter of 

trial strategy, but the extended admission did not end with defense counsel’s request that 

the jury treat the defendant fairly. Instead, defense counsel revisited it later in his 

argument, telling the jurors: 

“And, by the way, I have—I have decided that I’m going to re-retire from being a 

trial lawyer. I—I find it just too stressful. But while Albert McDaniels was on the 

stand last Friday, I wanted to quit that day. I wanted to quit that morning. I wanted 
26 

to quit being [the defendant’s] lawyer. I wanted to quit my job. I wanted to turn in 

my law license.” 

When the State objected to this argument, the judge asked defense counsel to “move on.” 

¶ 50 The defendant also directs us to that portion of defense counsel’s argument about a 

wet spot found on the murder victim’s bed. Defense counsel, in describing this spot, used 

a somewhat bizarre example. He explained to the jury: 

“But let’s talk about the wet spot. Okay. And I’ll give you my example of that. 

When I was married, my wife had a bird. It was some kind of little parrot and we 

always thought it was a female. You can’t really tell with birds until we gave it a 

little fuzzy bear that was about it’s [sic] own size. And then it turned out that it—it 

was actually a male bird. And my wife asked me to clean it up and I asked her 

why am I the expert on the wet spot? Just because there’s semen on thermal 

underwear, if somebody moves, the semen doesn’t leak off the thermal 

underwear.” 

It is unclear, based upon the trial record, what point defense counsel was attempting to 

make with this example. 

¶ 51 When talking about McDaniels’ testimony that he knew Jana from a party, defense 

counsel asked the jury: 

“Did Albert ever have sex with Jana? We don’t know. Only Albert knows. 

There’s—that’s—this is the thing, you can’t—you can’t prove or disprove an 

affair, I mean, like—I know with—with—with President Clinton, he was 

impeached after they found some of his DNA.” 
27 

Again, the State objected, and the court sustained the objection, telling defense counsel to

“move on.” 

¶ 52 The defendant notes that at one point during closing argument, defense counsel 

intentionally raised the possibility that the defendant’s family may have been involved in 

an unsolved murder. Defense counsel referred to one of the letters the defendant 

maintains were written at the request of Gecht, and tells the jury: 

“Back to this letter. Okay. You guys are getting this letter. I asked that it be put in 

evidence. One thing he says right at the very beginning, I think I have some 

information about an unsolved murder that Tucker’s family took part in. Back in

1991, a guy named Lamont and—” 

¶ 53 Before defense counsel could finish, the State objected. The court sustained the 

objection and instructed the jury to disregard counsel’s statement. The court gave a 

further instruction, telling the jury that what an attorney says in closing argument is not 

evidence. The defendant claims he was further prejudiced when his counsel allowed the 

entire Gecht letter, which contained allegations that the defendant’s family killed 

someone in 1991 named Lamont, to go back to the jury room during deliberations. After 

reviewing the record, it appears that the State’s objection to defense counsel’s statements 

was made to protect the defendant from potential prejudice. We note that after the jury 

retired to deliberate, the State questioned whether defense counsel wanted the letter to go 

to the jury, and defense counsel reiterated he wanted the entire letter to go back to the 

jury. The letter did not advance the defendant’s cause, nor did it test the prosecution’s 

case. Rather, the implication from the letter was that the defendant may have been 
28 

inclined to commit murder because of his familial upbringing. 

¶ 54 We recognize that counsel is given great latitude in his or her closing argument to 

the jury. Leeper, 317 Ill. App. 3d at 484. To show ineffectiveness as a result of comments 

made during closing argument, the defendant must overcome the strong presumption that 

his counsel was not incompetent and that his actions were a part of sound trial strategy. 

People v. Davis, 356 Ill. App. 3d 725, 730 (2005). A reviewing court evaluates the 

reasonableness of counsel’s conduct from his perspective in light of the totality of the 

circumstances in the case. Davis, 356 Ill. App. 3d at 730; People v. Daniels, 331 Ill. App. 

3d 380, 393 (2002). Even when defense counsel concedes the defendant’s guilt during 

closing argument, the court will not presume prejudice unless the strategy amounted to a 

complete failure to subject the prosecution’s case to meaningful adversarial testing. 

People v. Milton, 354 Ill. App. 3d 283, 290 (2004). In essence, counsel’s choice does not 

constitute ineffective assistance of counsel simply because it was unsuccessful. Milton, 

354 Ill. App. 3d at 290. 

¶ 55 During closing argument, defense counsel’s conduct was unprofessional, at best. 

Again, we are not willing to assume that counsel’s argument was part of some 

unconventional defense strategy and that counsel’s conduct had no impact on the jury. 

¶ 56 In his postconviction petition and in this appeal, the defendant has argued that 

defense counsel’s errors permeated every stage of his trial. He asserts that he is entitled to 

a third-stage evidentiary hearing because, through cumulative error, he has demonstrated 

a substantial showing of a constitutional violation. We agree. At this stage of the 

proceedings, the test is not whether the defendant had established actual prejudice under 
29 

Strickland. Rather, the analysis focuses on whether the allegations in the petition and 

supporting documents make a substantial showing that a constitutional violation 

occurred. In our view, the numerous errors outlined above entitle the defendant to a thirdstage evidentiary hearing. 

¶ 57 Criminal defense attorneys must assist clients in a way that the constitutional 

guarantee of “assistance of counsel” contemplates. The constitution contemplates 

assistance that engages evidentiary rules to shield an accused from a decision based upon 

unreliable evidence. People v. Moore, 279 Ill. App. 3d 152, 159 (1996). It contemplates 

assistance that appreciates and understands legal principles applicable to the case. People 

v. Faulkner, 292 Ill. App. 3d 391, 394 (1997). “It contemplates assistance ready to 

provide an adversarial check to a prosecutor’s excessive endeavors.” Fletcher, 335 Ill. 

App. 3d at 453. Accordingly, on the record before us, the defendant has made a 

substantial showing that his trial counsel’s representation was substandard and that 

counsel’s deficient performance may have had an effect on the outcome of the 

proceedings. 

¶ 58 In his final point, the defendant alleges that he was deprived of effective assistance 

of appellate counsel because his appellate attorney failed to raise trial counsel’s numerous 

errors in his direct appeal. Because we are remanding this case to the trial court for an 

evidentiary hearing on many of the defendant’s claims of ineffective assistance of trial 

counsel, we are unable to determine whether appellate counsel was ineffective for failing 

to raise ineffective assistance of trial counsel. Unless the underlying issues are 

meritorious, the defendant has suffered no prejudice from counsel’s failure to raise those 
30 

issues on appeal. People v. Foster, 168 Ill. 2d 465, 474 (1995). The defendant shall be 

allowed to present his claims of ineffective assistance of counsel at the third-stage 

evidentiary hearing, including his claims of ineffective assistance of appellate counsel. 

¶ 59 CONCLUSION 

¶ 60 For the reasons stated, we reverse the judgment of the circuit court dismissing the 

defendant’s postconviction petition without an evidentiary hearing, and we remand this 

cause of action for a third-stage evidentiary hearing. 

¶ 61 Reversed and remanded with directions. 
2017 IL App (5th) 130576 

NO. 5-13-0576 

IN THE

APPELLATE COURT OF ILLINOIS

FIFTH DISTRICT

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the 

 ) Circuit Court of 

 Plaintiff-Appellee, ) Jefferson County. 

 ) 

v. ) No. 02-CF-212 

 ) 

JOE C. TUCKER, JR., ) Honorable 

 ) David K. Overstreet, 

 Defendant-Appellant. ) Judge, presiding. 

__________________________________________________________________________ 

Opinion Filed: May 30, 2017

__________________________________________________________________________ 

Justices: Honorable Judy L. Cates, J.

 Honorable Melissa A. Chapman, J., and 

 Honorable John B. Barberis, J.,

 Concur 

__________________________________________________________________________ 

Attorneys Michael J. Pelletier, State Appellate Defender, Jacqueline L. Bullard, 

for Deputy Defender, John M. McCarthy, Assistant Appellate Defender, 

Appellant Office of the State Appellate Defender, Fourth Judicial District, 400 

 West Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705- 

 5240 

__________________________________________________________________________ 

Attorneys Hon. Douglas R. Hoffman, State’s Attorney, Jefferson County 

for Courthouse, 100 South 10th Street, Mt. Vernon, IL 62864; Patrick 

Appellee Delfino, Director, David J. Robinson, Deputy Director, Timothy J. 

 Londrigan, Staff Attorney, Office of the State’s Attorneys Appellate 

 Prosecutor, 725 South Second Street, Springfield, IL 62704 

__________________________________________________________________________