People v. Hoover
| Decision Date | 21 June 1993 |
| Docket Number | No. 1-89-1919,1-89-1919 |
| Citation | 189 Ill.Dec. 835,250 Ill.App.3d 338,620 N.E.2d 1152 |
| Parties | , 189 Ill.Dec. 835 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Belinda HOOVER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Rita A. Fry, Public Defender of Cook County (James N. Perlman, Asst. Public Defender, of counsel), for defendant-appellant.
Jack O'Malley, State's Atty., County of Cook (Renee Goldfarb, Donald Lyman and Eileen M. O'Neill, Asst. State's Attys., of counsel), for plaintiff-appellee.
An indictment returned in the circuit court of Cook County charged defendant, Belinda Hoover, with the murder of Cynthia Barker. Following a jury trial, defendant was found guilty of involuntary manslaughter and sentenced to a prison term of three years. On appeal, defendant contends that: (1) the trial court erred in denying her motion to dismiss the indictment based on the State's failure to preserve evidence of 911 tapes; (2) the statement of Artie Davis implicating defendant in Barker's shooting did not provide probable cause for defendant's arrest; (3) she was not proved guilty of involuntary manslaughter beyond a reasonable doubt; (4) the trial court erred in refusing to answer the written questions of the jury during the jury's deliberation; and (5) the trial court considered an improper factor in sentencing her to a prison term rather than probation. For the following reasons, we affirm.
The record sets forth the following facts relevant to this appeal. On March 20, 1987, at approximately 7:30 a.m., police discovered the body of Cynthia Barker, slumped in the front seat of a Ford Mustang automobile parked in front of 8420 South Marquette Avenue, Chicago. Police observed a single gunshot wound to the back of Barker's head. At the time of her death, Barker's husband, Artie Davis, lived with defendant in a basement apartment located at 8429 South Marquette Avenue. Defendant had been living with Davis for about a year and a half.
Prior to trial, defense counsel moved to quash defendant's arrest and suppress evidence. At the hearing on the motion, Chicago police detective Michael Rowan testified that he began his investigation of Barker's death on March 21, 1987. At 3 or 4 p.m., he went to 8729 South Marquette and encountered Robert McCracken on the front steps. The detectives searched Robert and ultimately arrested him for a weapons violation. At that time, Davis and defendant accompanied the officers to the police station for questioning. Police drove defendant home at 2:45 a.m. on March 22, 1987.
Detectives interviewed both Robert and Davis. Detective Rowan stated that at this time, Davis was the main suspect in the shooting. Davis took and failed a polygraph examination. The examination revealed that Davis was not truthful when he stated that he did not know anything about Barker's death. Subsequently, Davis admitted that defendant told him that she shot Barker. Davis further stated that he and Ricky McCracken took the gun from defendant and disposed of it in Lake Michigan.
On March 22, 1987, Detective Rowan and the other detectives returned to 8429 South Marquette in the early afternoon, arrested defendant, her mother, Billie Mahaffey, and Ricky McCracken, Robert's brother, and transported them to the police station. At that time, defendant was given her Miranda warnings and she gave a statement to police.
At the conclusion of the hearing, the trial court denied defendant's motion. The trial court found that the police had probable cause to arrest defendant on the afternoon of March 22, 1987, based on Davis' statement that defendant had shot Barker.
Defense counsel also moved to dismiss defendant's indictment on the grounds that the State lost certain 911 tapes, and that such evidence was material to defendant's case. The tapes purportedly contained telephone calls made to 911 by Ricky McCracken and Ronald Harris on the morning of March 20, 1987, reporting the shooting. At the hearing on the motion, Assistant State's Attorney Maria Gonzalez testified that on March 26, 1987, she prepared a subpoena duces tecum for the 911 tapes of the Chicago Police Department for the case of Belinda Hoover. The subpoena was typed by a secretary and returned to Gonzalez on March 27, 1987. Gonzalez then sent the subpoena to the Chicago Police Department Communications Section.
Gonzalez testified that as far as she knew, the subpoena was never honored. She personally never received the tapes, and after she was transferred out of Branch 66, she checked with the secretary there, who told Gonzalez that there was no entry in the unit log book that the tapes were ever returned pursuant to the subpoena.
Barbara Lulkowski, the secretary in Branch 66, testified that when records are subpoenaed, a request slip is given to an investigator, who picks up the subpoenaed records and brings them to the State's Attorney's office. The subpoenaed records are then forwarded to the assistant State's Attorney assigned to the case. In this particular case, the tapes were never found.
Subsequently, on December 31, 1987, defense counsel attempted to subpoena the tapes from the police. At that time he learned that neither the police, the State's Attorney nor the court had possession of the tapes.
Defense counsel introduced into evidence a copy of a log from the State's Attorney's office. On the last page the date "4-10-87" was written in a column next to "People v. Hoover." The trial court found that there was no evidence that this notation indicated that the tapes were delivered, and may in fact have indicated only that a copy of the subpoena was forwarded to the trial judge. At the conclusion of the hearing, the judge denied defendant's motion to dismiss the indictment. The court described the actions of the State's Attorney's office as "careless" and "sloppy" and noted that the State's subpoena procedure left a lot to be desired, but found that the State did not lose or misplace the tapes in bad faith. The court further concluded that the defense could obtain evidence of what was said on the 911 tapes by some other means.
At trial, Gwendolyn Jones testified on behalf of the State that on March 19, 1987, she lent her brown, Ford Mustang to her cousin, Cynthia Barker. Jones stated that prior to that day, the automatic gear shift was not working properly and that the gears would stick when shifting. Jones stated that she used a screwdriver to remove the gear shift cover, and then used the screwdriver to shift the gears. The screwdriver was in the car at the time Jones lent the car to Barker.
Chicago police officer Daniel McCarthy testified that he received a dispatch at 7:30 a.m. to investigate the nature of an injured woman at 8420 South Marquette. When he arrived at the scene, Officer McCarthy observed a Ford Mustang next to the curb. He noticed that the Mustang had struck the car in front of it, and that its headlights were on and the engine running. He found a woman seated in the front seat of the car, and determined that she was dead.
Chicago police detective John Duffy testified that he investigated the scene of Barker's death on March 20, 1987. At that time, he noted that Barker's hair toward the back, left side of her head had been pulled out so that it was standing out more than the rest of her hair. Barker had a bullet wound to the center, rear of her head, and powder burns in the hair surrounding the bullet wound. On cross-examination, Detective Duffy identified a photograph taken of the interior of the Mustang, depicting a screwdriver lying on top of a purse on the floor of the passenger side of the car.
Dr. Robert Stein, chief Cook County medical examiner, testified that he performed an autopsy on Barker on March 20, 1987. Dr. Stein found a bullet wound in the back of Barker's head, approximately five and one-quarter inches below the top of her head. The wound was consistent with a gun being held at close range, directly to the back of Barker's head. Dr. Stein further found evidence of a pregnancy in Barker's right Fallopian tube. Dr. Stein determined the cause of death to be a gunshot wound to the head with a tubal pregnancy as a contributing factor. On cross-examination, Dr. Stein stated that the toxicology report revealed that Barker's blood contained a high level of cocaine and an alcohol content equivalent to two bottles of beer.
Ronald Harris testified that on March 20, 1987, he lived at 8411 South Marquette Avenue. At 6:30 that morning, he looked out of his window and saw a car parked across the street with its lights on and motor running. When he left the house to go to work shortly thereafter, he saw that the car was still there, so he crossed the street and saw a woman in the car who looked like she was sleeping. He said, "Hello, hello," but there was no response. Then he saw blood, and said to his neighbor, When the police did not arrive, Harris called 911 himself. Finally, the police arrived, and a sergeant turned off the car engine.
Ricky McCracken testified on behalf of the State that on March 20, 1987, at approximately 5 a.m., he heard a car horn and then heard Davis' car alarm go off. At that time, Davis' car was parked directly in front of the two flats where Ricky lived with his mother, Ruby McCracken, in the second floor apartment. Ricky testified that Davis lived in the basement with defendant, Ricky's cousin, and that defendant's parents, Billie Mahaffey and James Myers lived in the first floor apartment. Ricky went out to investigate the noise and saw Barker in her car calling out Davis' name. As Ricky approached Barker, she drove off, making a right turn at 84th and Marquette. Ricky returned to the house, and met Davis, Mahaffey and defendant in the living room. Ricky then heard the car return,...
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