People v. McCallum

• Decision Date: 06 December 2019
• Docket Number: NO. 5-16-0279,5-16-0279
• Citation: 437 Ill.Dec. 379,2019 IL App (5th) 160279,144 N.E.3d 491
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Randy MCCALLUM, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2019 IL App (5th) 160279

144 N.E.3d 491

437 Ill.Dec. 379

The PEOPLE of the State of Illinois, Plaintiff-Appellee,

v.Randy MCCALLUM, Defendant-Appellant.

NO. 5-16-0279

Appellate Court of Illinois, Fifth District.

December 6, 2019

James E. Chadd, State Appellate Defender, Jacqueline L. Bullard, Deputy Defender, John M. McCarthy, Assistant Appellate Defender, Office of the State Appellate Defender, Fourth Judicial District, 400 West Monroe Street, Suite 303, P.O. Box 5240, Springfield, IL 62705-5240

Patrick Delfino, Director, Patrick D. Daly, Deputy Director, Max C. Miller, Staff Attorney, Office of the State's Attorneys Appellate Prosecutor, 730 East Illinois Highway 15, Suite 2, P.O. Box 2249, Mt. Vernon, IL 62864

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

¶ 1 In February 2016, a St. Clair County jury found the defendant, Randy McCallum, guilty of two counts of first degree murder for the September 2009 shooting deaths of Charles Black and Kevin McVay. Viewed in the light most favorable to the State, the evidence at trial established that the defendant killed Black and McVay in front of his ex-girlfriend's house and dropped a cigarette butt at the crime scene, that an eyewitness to the murders identified the defendant as the shooter, and that, in a dying declaration, Black also identified the defendant as the shooter. The evidence further established that the defendant made false exculpatory statements when questioned about the murders and made additional statements demonstrating his consciousness of guilt during a subsequent telephone conversation with his mother and sister. With respect to the former, the jury was shown redacted video recordings of two postarrest interviews that the defendant gave to investigators from the Illinois State Police. On appeal, arguing that he should be granted a new trial, the defendant contends that the circuit court abused its discretion in denying his pretrial motion to prohibit the State's introduction of the redacted recording of the second interview. For the reasons that follow, we disagree and affirm the defendant's convictions.

¶ 2 BACKGROUND

¶ 3 In September 2009, the defendant's sister, Rachelle McCallum, was dating the defendant's friend, Devion Kidd, and the defendant, who lived in Fairview Heights, was or had recently been dating Tatanisha Banks. Tatanisha lived in a house on the 1100 block of North 48th Street in Washington Park with her sisters Taquela and Tierra Banks. The defendant helped the Banks sisters move into the house in August 2009.

¶ 4 On the morning of September 17, 2009, the defendant was at the Banks sisters' house visiting Tatanisha. On September 18, 2009, Tierra and Tatanisha went out with friends around midnight and returned home around 3 a.m. Sometime thereafter, Black and McVay drove to the sisters' house in Black's car, which Black parked on the street in front of the house. Taquela was not home that night.

¶ 5 At approximately 4:35 a.m., Black called 911 reporting that he had just been shot on 48th Street and that "Randy McCallum" was "the shooter." On the recording of the 911 call, it is clear that Black was experiencing difficulties breathing and communicating. Black can be heard pleading with "Randy" following the sound of multiple gunshots. Black's brief call abruptly ends after the firing of additional gunshots and his apparent death rattle are heard.

¶ 6 When the police who responded to Black's 911 call arrived at the Banks sisters' house, they found McVay's body in the ditch by the street near Black's car. Approximately 30 feet away, Black's body was on the ground in the front yard next to a tree, with the cell phone that he used to call 911 still in his hand.

¶ 7 An autopsy later revealed that McVay had been shot three times in the lower abdomen and once in the head. The headshot proved fatal and resulted in a wound that was consistent with a contact wound. An autopsy revealed that Black had also been shot numerous times about the body and had also died from a gunshot wound to the head.

¶ 8 Fired bullets recovered by the pathologist who performed the autopsies were consistent with 9-millimeter bullets, and 9-millimeter cartridge casings, all of which had been ejected from the same handgun, were found at the crime scene. A fully loaded .30-30 Winchester rifle with no fingerprints on it was found on the ground along the fence of a sewage pump station adjacent to the Banks sisters' front yard. A vehicle repair estimate for Kidd's vehicle dated September 2, 2009, was found in the ditch near McVay's body. Additionally, a cigarette butt with the defendant's DNA on it was discovered on the street near Black's car. The crime scene investigator who collected the cigarette butt later testified that it "appeared to be fresh," explaining that "it still ha[d] the gray ash on the end of [it]."

¶ 9 Tierra witnessed part of the incident from her bedroom window, which overlooked the front yard of the house. When interviewed by investigators on September 18, 2009, Tierra gave two video-recorded statements regarding what she had seen and heard. In her first statement, Tierra indicated that she had heard arguing outside her window and had heard a man, whose voice she did not know, repeatedly say, "It's me, bro." When she looked out, she saw a man, who she could not identify, shoot a man who was on the ground by the tree in her front yard. In her second September 18, 2009, video-recorded statement, Tierra identified the defendant as the man whom she had heard talking and seen shooting outside her bedroom window.

¶ 10 On the night of December 8, 2009, the defendant was arrested at a home in Lebanon. On December 9, 2009, the defendant waived his Miranda rights and was twice interviewed at the St. Clair County jail by Special Agents James Walker and Robert O'Brien of the Illinois State Police. See Miranda v. Arizona , 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). Both interviews were video recorded, and redacted copies of both recordings were presented at trial. As redacted, the recording of the first interview was approximately 35 minutes long, and the recording of the second was approximately 18 minutes long. The record indicates that transcripts of the interviews were never prepared.

¶ 11 During the first video-recorded interview, which commenced at approximately 3:40 p.m., the defendant denied the investigators' suggestions that he had been hiding out in Lebanon and Alorton. He acknowledged, however, that he was aware that the investigators had been wanting to talk to him, that he had only known the resident of the home where he had been arrested for "a couple of months," and that he had met the resident through Robert Jones. Additionally, the defendant did not deny the investigators' suggestions that he had narrowly avoided being arrested at a club in East St. Louis and that he had not previously been arrested in Alorton because his father had significant "pull" with the Alorton Police Department. The defendant laughed and joked with the investigators about his near arrest at the club, and he advised them that he was going to contact them after his upcoming birthday. The defendant further advised that he did not have a driver's license.

¶ 12 When asked if he knew Black and McVay, the defendant paused before stating that he did. The defendant also smiled when stating that he knew Black. Referring to Black and McVay as his "partners," the defendant acknowledged that he knew that they had been murdered. When Walker advised the defendant that people were claiming that he had killed Black and McVay, the defendant claimed that he knew nothing about the killings. The defendant further claimed that he could not recall where he had been on the morning in question. The defendant acknowledged that he, Black, and McVay had been "close" and had grown up together.

¶ 13 When asked about Tatanisha, the defendant indicated that he used to see her, but he had not been to her house in Washington Park since helping her move in August 2009. When the defendant was advised that Tatanisha and Taquela had both claimed that he had been at their house several times since then, the defendant indicated that he did not remember being there.

¶ 14 When Walker falsely claimed that Kidd and Jones had both implicated the defendant in the murders, the defendant indicated that he had no idea why they would do that because he had not done anything. When Walker asked the defendant if he was going to confess to the murders, the defendant laughed and again claimed no knowledge of what had occurred. He also insisted that Black and McVay were his "partners." Thereafter, O'Brien asked Walker if they were going to let the defendant know about the "secret," i.e. , "the phone call." When the defendant asked about the phone call, Walker indicated that he was not yet ready to discuss it.

¶ 15 After advising the defendant that the investigation had led the police to conclude that the defendant, Kidd, and Jones were involved in the murders and that the defendant was the shooter, Walker again asked the defendant if he was willing to confess. In response, the defendant again laughed and insisted that he could not recall where he had been on the morning in question.

¶ 16 When the defendant was confronted with the fact that he did not act as if he cared that his friends had been killed, the defendant indicated that he felt bad for them but had not murdered them and had not learned of their deaths until days after the fact. The defendant further indicated that he lost friends all the time. When the defendant was asked where he had been when he first learned that Black and McVay had been murdered, he advised that he could not recall, but he might have been at a friend's house. When O'Brien asked the defendant why the defendant had smiled when Walker first mentioned Black's name, the defendant stated that he had to "think about the name." The defendant also indicated that he smiled because he...