People v. Fauntleroy

• Decision Date: 30 September 1991
• Docket Number: Nos. 1-87-1152,1-87-1973,s. 1-87-1152
• Citation: 224 Ill.App.3d 140,586 N.E.2d 292
• Parties: , 166 Ill.Dec. 334 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David FAUNTLEROY and James Andrews, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 292

586 N.E.2d 292

224 Ill.App.3d 140, 166 Ill.Dec. 334

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David FAUNTLEROY and James Andrews, Defendants-Appellants.

Nos. 1-87-1152, 1-87-1973.

Appellate Court of Illinois First District, First Division.

Sept. 30, 1991.

As Modified Feb. 3, 1992.

Office of the State Appellate Defender, Chicago (Michael J. Pelletier, Deputy Defender, Barbara Kamm, Asst. Appellate Defender, of counsel), for defendant-appellant David Fauntleroy.

Cook County Public Defender, Chicago (James L. Rhodes, Asst. Public Defender, of counsel), for defendant-appellant James Andrews.

James Andrews, pro se.

Cook County State's Attorney, Chicago (Renee Goldfarb, William P. Pistorius, Asst. State's Attys., of counsel), for plaintiff-appellee Cecil A. Partee.

MODIFIED ON DENIAL OF PETITION FOR REHEARING

Presiding Justice BUCKLEY delivered the opinion of the court:

In the early morning hours of March 30, 1983, Keith Lewis was found dead of gun shot wounds in a south-side alley in Chicago. Following an investigation, co-defendants David Fauntleroy and James Andrews were charged, inter alia, with murder (Ill.Rev.Stat.1981, ch. 38, par. 9-1) and armed robbery (Ill.Rev.Stat.1981, ch. 38, par. 18-2). Their cases were severed and, after being found guilty by a jury as charged, the court gave each defendant a natural life sentence for murder and a concurrent 60 year term for armed robbery. The defendants have brought separate appeals, now consolidated, alleging various trial and sentencing errors, the details of which we later provide.

The evidence received against each defendant at their separate trials consisted primarily of their individual confessions and the testimony of occurrence witnesses and law enforcement personnel. This evidence may be summarized as follows:

In the evening of March 29, 1983, defendants discussed robbing someone while standing in front of a south-side restaurant. Keith Lewis, who Fauntleroy knew, came by the restaurant. Defendants approached Lewis and Fauntleroy asked him for a ride to a location where the defendants could purchase some marijuana. As the defendants encountered Lewis, one of them ¹ stuck a gun in Lewis' side and ordered him into the car. Andrews drove the car to an alley while Fauntleroy sat in back and Lewis sat in the passenger seat. At the alley, Lewis' wallet, neck chains and watch were taken. Fauntleroy told Andrews that Lewis knew him and would tell the police. Andrews knocked Lewis to the ground and shot him in the head three times. Neighbors heard the shots, but were unable to identify the defendants. Defendants then drove Lewis' car to another alley where they attempted to set a fire in the car's backseat. Defendants met later that evening and used the proceeds of the robbery to "get high." Lewis' neck chains were sold to Fauntleroy's sister.

The following morning, the neighbors discovered Lewis' body in the alley. An autopsy report showed the cause of death to be gun shot wounds to the head. Lewis' family identified the body and Lewis' abandoned, partially burnt car. Lewis' neck chains were later recovered by the police and identified in court by Lewis' sister as the neck chains her brother was wearing on the night of his murder.

We first address Fauntleroy's four contentions on appeal. Relying on Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, Fauntleroy first contends that the court denied him his sixth amendment right to confront an adverse witness.

The record with respect to this issue reflects that, prior to trial, Fauntleroy moved in limine to preclude police officers from repeating any statement Andrews may have made which implicated Fauntleroy. The State responded that this evidence was necessary to demonstrate the totality of the circumstances surrounding Fauntleroy's confession and, therefore, its reliability. The court ruled the State could elicit that Andrews made a statement implicating Fauntleroy and, when confronted with Andrews' statement, Fauntleroy then confessed.

During the State's case-in-chief, the jury learned that Andrews made a statement to the police which was then transcribed, reviewed by Andrews and then signed. Armed with this statement, the police asked Fauntleroy, who was then being held in a separate interview room, if he was involved in the murder. When Fauntleroy denied any involvement, the police told him that he was lying. Chicago police detective McWeeny testified as follows as to what transpired next:

"Q. MR. DWYER [Assistant State's Attorney]: Now when you received a copy [of Andrews' confession] which was exactly the same as this statement, would you tell the ladies and gentlemen of the jury what if anything you did with this document?

A. Myself and Detective Madigan at that time then returned to the interview room. Both myself and Detective Madigan sat down in front of him. We placed a copy of that statement in front of Mr. Fauntleroy, whereupon then I engaged him in a conversation.

* * * * * *

Q. What happened at that time?

A. At that time, then David looked at the statement and I looked at him and I told him, I said, 'You don't think this is for real do you, this statement?' He looked at me and says 'No, I don't.' I says 'Well, watch this,' and I left the room and I walked across the hall.

* * * * * *

A. * * * I brought James Andrews back to the room where Mr. Fauntleroy was at and he stood in the doorway and I said 'James, is that your statement?'

MR. KULL [Defense attorney]: Judge, I'm going to object to any further statements as to what Andrews says, if he says anything.

* * * * * *

THE COURT: I will overrule it.

Q. [Assistant State's Attorney]: What was said at this time?

A. James responded 'Yes it is, yes;' and he looked--him and David looked at each other and Andrews said to David--he says 'Tell the truth, I did.' I then took Andrews back to where he was being held in custody and I returned to the room. I walked into the room. At this point now I was standing up. I looked at him and I went like that to him. I said 'Hey, it's all true.' At that point he is like this and he is staring and he says 'Okay, okay.' He says 'I was there but I didn't shoot anybody.' "

Fauntleroy subsequently gave the written statement which was read to the jury at his trial.

Fauntleroy contends that while the details of Andrews' statement were not revealed to the jury, it was clearly brought home to them that Andrews had implicated Fauntleroy. Fauntleroy asserts his sixth amendment right to confront an adverse witness was violated because he was denied the opportunity to cross-examine Andrews about his accusation that Fauntleroy was involved in the crime. To further support his contention, Fauntleroy directs this court to the State's rebuttal argument. Here, Fauntleroy asserts, the State directed the jury to rely on Andrews' statement as substantive evidence of Fauntleroy's guilt:

"The evidence on that point is not contradicted, unrebutted, about what happened. He walks in, he's got the statement and he puts it on the desk in front of him and he tells him what he's got. Madigan picks it up, you think we're kidding, take a look at it, look at the name on it. And then he takes it and he shows him his signature. It's signed. He still doesn't believe it, but now, he's not so confident. So what do they do? Immediately, they go get James Andrews and they bring him into the door and there they are, they're looking eyeball to eyeball. They know, each of them, in their heart, and they know that everybody else now knows. He looks at him and he says tell the truth, I did it. They take him out.

Then, McWeeny comes back in and now, you know, I've been confronted with the statement. The co-conspirator in the murder and robbery is right there, telling him to tell the truth. What does he do? When he walks in, Madigan goes, well, what does McWeeny have to do? It's all there. The statement, James Andrews is urging him to tell the truth, and the guilt, so what does he do, he does what the human being does. He thinks about it and he realizes they've got me, but what am I going to do about it. They got me dead bang."

We disagree with Fauntleroy's assertion that a confrontation violation occurred in this case. In Bruton v. United States (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476, the Supreme Court held that a defendant's sixth amendment right to confront adverse witnesses is violated by introduction in a joint trial of a non-testifying accomplice's statement which implicates the defendant, even where limiting instructions are given to the jury. Here, no Bruton violation occurred because no part of Andrews' statement was brought before the jury. Neither in the direct testimony of any State witness or in the State's closing argument did the jury hear the substance of Andrews' statement. Accordingly, because the substance of Andrews' statement was not revealed to the jury, Bruton, and the other cases upon which defendant relies, are distinguishable. (See People v. Duncan (1988), 124 Ill.2d 400, 125 Ill.Dec. 265, 530 N.E.2d 423; People v. Hernandez (1987), 121 Ill.2d 293, 117 Ill.Dec. 914, 521 N.E.2d 25, cert. denied (1988), 488 U.S. 869, 109 S.Ct. 177, 102 L.Ed.2d 146; People v. Tyner (1964), 30 Ill.2d 101, 195 N.E.2d 675; People v. Clark (1959), 17 Ill.2d 486, 162 N.E.2d 413; People v. Burns (1988), 171 Ill.App.3d 178, 121 Ill.Dec. 116, 524 N.E.2d 1164; People v. Jones (1988), 169 Ill.App.3d 883, 120 Ill.Dec. 563, 524 N.E.2d 593; People v. Lincoln (1987), 157 Ill.App.3d 700, 109 Ill.Dec. 958, 510 N.E.2d 1026; People v. McVay (1981), 98 Ill.App.3d 708, 98 Ill.App.3d 708, 54 Ill.Dec. 172, 424 N.E.2d 922.) In all these cases, a Bruton violation occurred because the substance of a non-testifying co-defendant's statement, which either directly or indirectly implicated the defendant, was used as substantive evidence against the defendant. Here, in contrast, as...