People v. French

• Citation: 2017 IL App (1st) 141815,72 N.E.3d 1214
• Decision Date: 10 March 2017
• Docket Number: No. 1-14-1815,1-14-1815
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcellus FRENCH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (1st) 141815
72 N.E.3d 1214

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Marcellus FRENCH, Defendant-Appellant.

No. 1-14-1815

Appellate Court of Illinois, First District, FIFTH DIVISION.

Filed March 10, 2017
Rehearing denied April 6, 2017

Kathleen T. Zellner & Associates, P.C., of Downers Grove (Douglas H. Johnson and Nicholas Curran, of counsel), for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Eric Leafblad, Christine Cook, and Margaret A. Hayes, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Defendant Marcellus French was found guilty by a jury of first degree murder, with a finding that he personally discharged a firearm, and aggravated battery with a firearm. He was sentenced to prison terms of 55 years and 15 years, respectively, to be served consecutively.

72 N.E.3d 1219

¶ 2 On appeal, he contends (1) the trial court abused its discretion by admitting hearsay and allowing the State to refer to it as substantive evidence during closing argument, and this constituted plain error because the evidence was closely balanced, (2) trial counsel rendered ineffective assistance by failing to object to certain statements by witnesses on the basis of lack of foundation, (3) the trial court's preliminary inquiry into defendant's pro se posttrial claims of ineffective counsel was an adversarial proceeding and violated due process, and (4) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant's claims of ineffective trial counsel.

¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.

¶ 4 I. BACKGROUND

¶ 5 This case arose from the drive-by shooting that occurred on the evening of Thursday, August 19, 2010. Gunshots fired from a car struck and killed Roger Kizer and struck Estavion Thompson, who survived the attack. Eyewitnesses identified defendant Marcellus French as the shooter and codefendant Bodey Cook as the driver. Defendant was arrested January 20, 2011, and Cook was arrested February 16, 2011. A joint jury trial was held in 2013.

¶ 6 At the trial, the State's evidence showed that, at about 11 p.m. on the date of the offense, the victims Kizer and Thompson were outside near 7450 South Kenwood Avenue in Chicago. Kizer's family lived on that block. Kizer and Thompson were either sitting on the back of a friend's parked car or standing by the car in the street. Several other people were also outside, including Andre Stackhouse, Shevely McWoodson, and Sherman Johnson. People were drinking alcohol. The street was residential and illuminated by streetlights.

¶ 7 Thompson had "only a cup" of alcohol and could not recall whether people were smoking or selling marijuana. Thompson saw Cook drive a small greenish turquoise Cavalier down the street past Thompson's group and stop at a stop sign. Cook was alone in the car. Thompson had known Cook from the area for about three years. About 15 minutes later, Cook, who was still alone, drove toward Thompson's group a second time. Kizer tried unsuccessfully to wave or "flag [Cook] down." Kizer told Thompson he wanted to talk to Cook about "what was going on between" Cook and Kizer's family. About 10 minutes later, Cook drove toward the group a third time but Thompson did not see him approach because Thompson's back was facing Cook's car. Thompson heard gunshots and saw Kizer fall. Thompson tried to run but fell and could not get back up. He crawled to the grass by the sidewalk side of the parked car. He was shot in his legs, chest, and stomach. As he lay on the grass, he saw that Cook drove the car and the shooter in the passenger seat was a light-skinned male wearing a red hat. The police, however, did not recall Thompson giving that description of the shooter. Thompson also testified that the shooter yelled "bi* * * something" as the car drove away. Kizer died at the scene from a gunshot wound to his chest, and Thompson was taken to the hospital.

¶ 8 Thompson spoke with detectives at the hospital the next day and identified Cook as the driver from a photo array. At that time, Thompson did not know Cook's full name. Two days later on August 22, Thompson viewed a black and white photo array that included defendant's photo, but Thompson did not identify anyone as the shooter from that array. At that time, Thompson knew defendant's name but not his full name. At the trial, Thompson said defendant at the time of the shooting "looked totally different" from his black

72 N.E.3d 1220

and white picture in the photo array. Thompson could not remember whether he told the police on August 22 that defendant was the shooter. On January 20, 2011, Thompson went to the police station and identified defendant, whom Thompson knew "from around the same area," out of a four-person lineup as the shooter. Witnesses Stackhouse, McWoodson, and Johnson were also at the police station, but they were not present when Thompson viewed the lineup. In February 2011, Thompson identified Cook from a lineup as the driver. Thompson also identified defendant and Cook in court as the offenders.

¶ 9 Thompson testified that no one made him any promises in exchange for his testimony. At the time of the trial, he had a pending misdemeanor marijuana charge and prior felony convictions in 2005 for resisting a police officer and aggravated battery of a police officer and in 2004 for aggravated unlawful use of a weapon. When Thompson testified before the grand jury on February 16, 2011, he said he was under the influence when he had spoken with an assistant State's Attorney (ASA) in January 2011; however, at the trial Thompson denied being under the influence at the time of that conversation.

¶ 10 Andre Stackhouse was on parole at the time of the trial, failed to appear on the date specified by a subpoena, and was arrested and testified the next day. He had known both defendant and Cook since they were in preschool. Stackhouse had been drinking Tequila on the night of the shooting. He was standing a couple of houses away from the Kizer home and talking with two girls when he saw Cook drive by in a greenish blue car alone. Not long thereafter, Stackhouse saw Cook drive east on 74th Street and then south on Kenwood Avenue. Defendant was in the passenger seat and half of his body was hanging out the window. He had a gun in his hand. Stackhouse did not see anyone in the car wearing a hat. Stackhouse moved into a gangway and heard several gunshots but did not look toward the shooting. After the shooting, he went to Kizer and Thompson and saw that they were shot. Sherman Johnson had a gunshot hole in his hat. Stackhouse left the scene and did not talk to the police that night.

¶ 11 On August 24, 2010, Stackhouse was arrested for a gun offense. He spoke with detectives on August 26 about the August 19 shooting. From photographs, Stackhouse identified Cook as the driver and defendant as the shooter. Stackhouse also identified defendant and Cook as the offenders in the lineups conducted in January and February of 2011 and again at the trial. Stackhouse did not receive any promises concerning his gun offense or his probation violation in exchange for his testimony. He faced a possible prison sentence of 3 to 7 years for the gun offense and received the minimum sentence of 3 years. He had convictions in 2011 for aggravated unlawful use of a weapon and in 2009 for possession of a stolen motor vehicle. When a defense investigator came to the Stackhouse home in June of 2012, Stackhouse's mother told the investigator to leave, and Stackhouse did not discuss the shooting with him.

¶ 12 Shevely McWoodson was Kizer's uncle. At the trial, McWoodson testified he had known Cook and defendant a few months prior to the shooting by seeing them on the street a few times. However, McWoodson previously told the grand jury that he had known defendant for about three years. At the time of the offense, McWoodson was with Kizer and a group of other people on south Kenwood Avenue talking. McWoodson saw Cook drive by once in a small car alone. Then McWoodson walked to his house a couple of houses away from the group to use the restroom.

72 N.E.3d 1221

When he was near the gate of his house, he saw Cook drive by again with defendant in the passenger seat. McWoodson saw defendant lean out the window, fire a gun, and shoot Kizer. McWoodson heard three gunshots and saw the gun emit flames when it was fired. He did not speak with police that night.

¶ 13 In January 2011, McWoodson went to the police station and identified Cook from a photo array as the driver and defendant from a lineup as the shooter. At trial, McWoodson testified he "pointed [defendant] out" before he asked the police to have everyone in the lineup smile. McWoodson knew defendant had a chipped tooth, which was visible when defendant smiled. However, according to McWoodson's grand jury testimony, he "knew" it was defendant but was not "sure," so he asked the detective to make the lineup participants smile and then saw defendant's chipped tooth and said, "That is him." At a second lineup in February 2011, McWoodson identified Cook as the driver, but McWoodson did not recall returning to...