People v. McCall

Decision Date30 September 2021
Docket Number1-17-2105
Citation2021 IL App (1st) 172105,198 N.E.3d 222,459 Ill.Dec. 432
Parties The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Vennis MCCALL, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

James E. Chadd, Douglas R. Hoff, and Jonathan Krieger, of State Appellate Defender's Office, of Chicago, for appellant.

Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, Assistant State's Attorney, of counsel), for the People.

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

¶ 1 Following a bench trial,1 defendant Vennis McCall was convicted of three counts of first degree murder for the deaths of Allen McCullough Jr. (Allen Jr.), Danna McCowen-McCullough (Danna), and Allen McCullough III (Allen III). Prior to sentencing, defendant raised pro se claims of ineffective assistance of trial counsel, contending that his attorneys should have filed a motion to suppress his videotaped statement to police because it was obtained in violation of his Miranda rights and because the video recording had been tampered with. The trial court held a preliminary Krankel hearing on those claims and rejected them. See People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984). On appeal, in an agreed summary order, we reversed and remanded, agreeing with the State's concession that the preliminary Krankel inquiry was an improperly adversarial proceeding given the State's participation. People v. McCall , No. 1-13-3463 (2015) (unpublished summary order under Illinois Supreme Court Rule 23(c) ).

¶ 2 On remand, the trial court conducted a second preliminary Krankel hearing and again rejected defendant's claims of ineffective assistance, declining to appoint defendant new counsel. Defendant now appeals, contending that the trial court erred in rejecting his claims of trial counsel's possible ineffectiveness. Defendant asserts that he adequately demonstrated that his trial counsel possibly neglected his case in failing to file motions to suppress evidence. Defendant specifically identifies two viable claims that counsel should have raised in a motion to suppress. First, defendant asserts that counsel should have filed a motion to suppress the evidence seized from the McCullough home, where the evidence was seized without a warrant and police overstepped the plain-view exception to the fourth amendment. Second, defendant contends that his trial counsel should have filed a motion to suppress his custodial statement to police, where the detectives engaged in an improper "question first, warn later" style of questioning in violation of Missouri v. Seibert , 542 U.S. 600, 124 S.Ct. 2601, 159 L.Ed.2d 643 (2004) (opinion of Souter, J., joined by Stevens, Ginsburg, and Breyer, JJ.). For the reasons that follow, we affirm the judgment of the circuit court.

¶ 4 A. Trial
¶ 5 1. Trial Evidence

¶ 6 The facts adduced at defendant's trial are largely uncontested. The record shows that in April 2008 defendant was a house guest at Danna and Allen Jr.’s home on South Hermitage Avenue in Chicago. Defendant had been staying at the McCullough home for about a month. On April 3, 2008, Allen III and his friend Eddie Connor visited Rikki Jones, defendant's sister and a family friend of the McCulloughs. Jones gave Allen III some money and asked him to buy her some cigarettes. Connor drove Allen III to the McCullough home at South Hermitage Avenue and waited in the car while Allen III went inside to retrieve his iPod. Connor fell asleep in the vehicle and awoke several minutes later to see defendant exiting the house. Connor asked defendant where Allen III went, and defendant responded that he was "gone." Connor did not note anything unusual about defendant's appearance.

¶ 7 After Allen III and Connor did not return to give Jones her cigarettes, she called Allen III on his cell phone, but he did not answer. She also called the McCullough house phone and Danna's cell phone, but no one answered any of her calls. After repeatedly calling the McCullough house phone, defendant eventually answered. Jones asked defendant about the money she gave to Allen III and whether he had picked up the cigarettes. Defendant responded that Allen III had left the money in the house and then left the house. Defendant told Jones that he would buy her the cigarettes. Jones waited for more than an hour for defendant to arrive, but when he did not, she called again and told him that she would come to the McCulloughs’ house to retrieve the cigarettes. Before Jones could finish getting dressed, however, defendant arrived and gave her the cigarettes. Jones did not observe anything unusual about defendant's appearance and did not notice any signs of an injury to his arm.

¶ 8 Both Jones and Connor attempted to contact the McCulloughs over the next several hours, but none of them answered their phone calls or responded when Jones knocked on the door of the house. Defendant was the only person who would answer the landline phone.

¶ 9 The next morning, April 4, 2008, Chicago police conducted a well-being check on the McCulloughs at the South Hermitage Avenue residence. Chicago police officer John O'Donnell knocked on the door and rang the doorbell but received no response. Officer O'Donnell attempted to gain entry to the residence but was unable to do so. A member of the fire department arrived and was able to open one of the windows. Officer O'Donnell pushed the drapes to the side and saw what appeared to be a body on the floor of the living room. Officer O'Donnell crawled inside the window and moved a chair that was being used to barricade the front door, so that other officers could enter the home. The officers did not have a search warrant.

¶ 10 After gaining entry to the home, the officers discovered the bodies of Allen Jr., Danna, and Allen III. All three of the bodies had been covered by sheets. After discovering the bodies, the officers searched the rest of the house to see if anyone else was in the house. Officer O'Donnell testified that the officers made sure they did not touch anything because it was a crime scene. The officers called for evidence technicians to come process the scene. Chicago police evidence technician Michael Emmett processed the scene with a team of other officers. Officer Emmett and his team walked through the house and were "careful not to contaminate anything." They then recorded a video and took photographs of the exterior and interior of the house before marking the evidence while the scene was "still in pristine condition." The officers then marked each piece of evidence. The video tape, photographs, and pieces of evidence were then submitted into evidence.

¶ 11 The officers found the bodies of Allen Jr. and Allen III on the floor of the kitchen and Danna's body on the floor of the dining room. All three bodies were covered with sheets or tarps. There was blood on the floor of the living room, dining room, and kitchen. There was also blood in the bathroom, including in the sink and in the bathtub. The officers removed the "P-traps" from the bathroom and kitchen sinks and swabbed them for DNA, but neither trap contained blood. The officers also discovered cell phones and a hammer on the couch on the living room. DNA testing showed that blood on the hammer matched defendant. The officers also discovered various cleaning supplies, including bloody rags, paper towels, disinfectant wipes, and bottles of Windex. Allen III's blood was found on the Windex bottle and on a grate from the bathroom sink. Allen Jr.’s blood was found on a water bottle and a glove. Defendant's blood was found on duct tape, washcloths, and the bathroom sink grate, and defendant's fingerprint was on the Windex bottle.

¶ 12 The officers found cartridge cases in the dining room and a fired bullet in one of the bedrooms. Emmett testified that they found a 9-millimeter handgun, which was Allen Jr.’s "duty weapon" in an upstairs bedroom. The gun had been placed in its holster.

¶ 13 Autopsies revealed that Danna and Allen Jr. each sustained gunshot wounds to the head. Allen Jr. also sustained a blunt force injury to his head

as the result of a hammer strike. The medical examiner testified that the injury was consistent with someone striking Allen Jr. with a hammer as though they were hammering a nail, rather than someone throwing the hammer at Allen Jr. Allen III had two gunshot wounds. One was in his upper lip that lacerated his brain, and one was to his left ear that fractured his cervical spine. The bullet that struck Allen III in the upper lip was fired from close range. Ballistics evidence showed that each of the bullets recovered from the scene, including those recovered from the victims’ bodies, were fired from the 9-millimeter gun found in the upstairs bedroom of the home.

¶ 14 Defendant was not arrested until nearly three weeks later on April 22, 2008. A neighbor of the McCulloughs discovered defendant in his basement and called police. Officers arrived, but defendant had fled from the neighbor's basement. The responding officer noticed a broken window in the basement of the McCulloughs’ home and entered the house through the window. Defendant, who had been hiding in the home, fled the house into the yard where he was tased and arrested.

¶ 15 Chicago police detective Daniel Ludwig helped transport defendant to the police station. When they arrived at the police station, defendant asked Detective Ludwig how long the police had been looking for him. Detective Ludwig responded that they had been looking for him for "a couple of weeks." Defendant told Detective Ludwig that he was nervous about going back to jail. Detective Ludwig asked defendant why he would go back to jail. Defendant responded that "[y]ou go back to jail when you murder somebody."

¶ 16 2. Defendant's Statement

¶ 17 At the police station, defendant was placed in an interview room, where he was...

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