People v. Zambrano, 2016 IL App (3d) 140178 (July). Episode 212 (Duration 10:30)
Ineffective assistance of counsel for not giving the accomplice instruction leads to murder reversal.
This was a murder involving at least 4 known culprits. The victim was shot in the head after opening his apartment door. This was a dispute over a girl.
The defendant was seen and recorded in the presence of the other suspects. One of those individuals testified in an early trial then testified again against defendant.
However, this time he invoked his 5th Amendment right to not incriminate himself and only testified after the State granted him use immunity.
Defense counsel argued defendant was not present for the killing and that a codefendant alone murdered the victim.
The State's Witness
Further the state’s witness was the only witness to identify his client as participating in the murder.
Counsel recited jury instructions regarding witness credibility and argued that the sole eyewitness was not a credible witness.
He suggested that this witness received leniency on his prior charges and hoped to do so for his pending charge in exchange for his testimony.
Illinois Pattern Jury Instruction 3.17
IPI 3.17 says that…
“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”
The instruction should be given when there is probable cause to believe the witness, not the defendant, was responsible for the crime as a principal or as an accessory under an accountability theory, despite his denial of involvement.
Indeed, testimony of accomplices should be viewed with suspicion and accepted only with great caution, especially where the witnesses were promised leniency or where the testimony was induced with a grant of immunity.
Where the accomplice testifies, strategic reasons for not requesting the accomplice-witness instruction typically have eluded the courts.
Was There Any Reason To Not Give It?
During cross-examination of the state’s witness, defense counsel impeached him with his prior inconsistent statements to the police during his initial interview.
He was also examined about bias regarding the criminal DWLR charges he faced after the murder, and their disposition, including dismissal and reduction of charges, which took place after his testimony at the first codefendant’s trial.
Defense counsel also used the general jury instructions regarding witness credibility to portray the state’s witness as a noncredible witness.
Throughout the proceedings, the defense asserted that he was a liar, whose testimony was impeached by his prior inconsistent statements and the videos from the apartment complex, that his pending cases were resolved favorably after his prior testimony and that he was not a believable witness.
Definitely An Accomplice
There is no doubt that the evidence at trial and the reasonable inferences that can be drawn from the evidence establish probable cause that the state’s witness acted as an accomplice.
He entered the building with defendant and the first codefendant and left with them. This witness testified under a grant of use immunity, the jury should have been instructed that it should carefully scrutinize his testimony in light of his role as an accomplice.
The testimony was detrimental to defendant in that it created the inference that defendant was the shooter, or at least acted in concert with the shooter. This was the only evidence establishing defendant’s participation.
These circumstances, coupled with the fact that defense counsel embraced the strategy that the witness could not be trusted, reinforce the need for the accomplice witness instruction.
There is no reasonable purpose for leaving out the instruction. Counsel’s failure to submit an instruction on accomplice testimony prejudiced defendant by depriving the jury of critical information it needed to evaluate the witnesses testimony.
Reversed and remanded. I can totally see another panel going the other way with this with a holding that there was prejudice.