People v. McCoy

• Decision Date: 15 September 2016
• Docket Number: No. 1–13–0988.,1–13–0988.
• Citation: 63 N.E.3d 1006,407 Ill.Dec. 574
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Carl McCOY, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

63 N.E.3d 1006

407 Ill.Dec. 574

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

v.Carl McCOY, Defendant–Appellant.

No. 1–13–0988.

Appellate Court of Illinois, First District, Fourth Division.

Sept. 15, 2016.

Michael J. Pelletier, Alan D. Goldberg, Patricia Mysza, and Gabrielle Green, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Peter D. Fischer, Assistant State's Attorneys, of counsel), for the People.

OPINION

Justice BURKE

delivered the judgment of the court, with opinion.^*

¶ 1 Following a jury trial, defendant, Carl McCoy, was convicted of the first degree murder of Woodrow Culverson and sentenced to 50 years in prison. He appeals, arguing (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the State committed reversible error by asking during cross-examination whether he threatened to kill Culverson's family if Culverson told police that defendant shot him, where the State had no basis to ask that question and there existed no possibility of proving up that accusation; (3) the trial court should have admitted statements Culverson made to a paramedic on the scene as either dying declarations or excited utterances; and (4) the court erred by allowing the State to use defendant's prior attempted first degree murder conviction for impeachment purposes.

We agree with defendant that the State's improper accusation during cross-examination and the admission of defendant's prior attempted murder conviction were reversible errors. Because we find the evidence was sufficient to sustain defendant's conviction such that retrial would not violate the double-jeopardy clause, we reverse and remand for a new trial.

¶ 2 I. BACKGROUND

¶ 3 A. Pretrial

¶ 4 In December 2008, a grand jury returned an indictment charging defendant with, inter alia, the first degree murder of Culverson.

¶ 5 Prior to trial, defendant filed a motion in limine seeking to admit statements that Culverson made to Chicago fire department paramedic Heather Spalliero as dying declarations or statements made for the purpose of medical diagnosis or treatment. Defendant's motion alleged that Spalliero treated Culverson at the accident scene and when she asked Culverson if he had been shot, he said no. She then asked if the driver shot him, and Culverson said no.

¶ 6 At an initial hearing on the motion, defense counsel explained that case law regarding dying declarations established that “[i]f the declarant believes that they are in dire health about to die and they make a statement, the truthfulness of the statement is such it should come in under [the] hearsay exception.” The trial court responded as follows, “I understand. In this case we have the opposite. Not only did he not think he was shot, what makes you think that he felt he was going to die if he didn't even admit that he was shot?” Counsel acknowledged that Culverson's apparently incorrect response to the first question posed “a bit of a problem.” However, counsel posited Culverson could have believed he was dying based not only on the shooting but also on the fact that he was in a bad car accident. The court initially denied defendant's motion. However, defense counsel asked the court to reserve its rulings for counsel to bring emergency medical technician (EMT) Spalliero to court to testify, and the court agreed.

¶ 7 At a later hearing, Spalliero testified that she came into contact with a car accident on 6440 South Martin Luther King Drive on August 30, 2008. She did not have an independent recollection of her encounter, but she reviewed her report before testifying. In her report, Spalliero indicated that Culverson was alert and oriented to person when she came into contact with him. Her report indicated that Culverson had gunshot wounds

in his lower abdomen. His breathing became labored, and he complained that he could not breathe. Spalliero asked Culverson whether he had been shot, and he said no.¹ Spalliero administered cardiopulmonary resuscitation

(CPR), and Culverson lost consciousness about 11 minutes after Spalliero came into contact with him. The State asked Spalliero the following question: “And you never told Mr. Culverson that he was going to die soon, did you?” to which Spalliero responded, “There's no way I can know that for sure.” Spalliero testified Culverson never told her that he thought he was going to die soon.

¶ 8 The trial court denied defendant's motion in limine, finding Culverson's statements did not fall into the dying declaration exception, as Culverson was alert and oriented and died after being placed in the ambulance. The court also found the statements did not fall into the excited utterance exception because Culverson made his statements in response to Spalliero's questions. Furthermore, the court stated, “the reliability [was] questioned” because Culverson had an obvious gunshot wound

to his abdomen and was either unsure of the question or was unaware of the fact that he had been shot. The court stated it did “not believe that there is reliability, nor is there a situation where the statements were made to assist the police in their investigation of getting a known offender off the streets.”

¶ 9 Also prior to trial, the State filed a motion to allow proof of defendant's prior attempted murder conviction, for which defendant received a 10–year prison sentence in 1999, for impeachment purposes. Defendant objected, arguing the jury should hear only that he was a convicted felon but not that his conviction was for attempted murder. Stating that it had weighed the probative value of the evidence versus its prejudicial effect, the court ruled that if defendant elected to testify, his conviction could be introduced as a conviction of attempted first degree murder.

¶ 10 B. Trial

¶ 11 In December 2012, defendant's jury trial commenced.

¶ 12 1. The State's Evidence

¶ 13 Linnetta Culverson testified that she and Culverson were married for seven years. Culverson owned a 2002 pearl white Park Avenue, which he loved. Linnetta, Culverson, and Culverson's sister, Latunya, attended a party at a family member's home on August 30, 2008. Culverson “did a little drinking.” The three left the party at around 8 p.m. in Culverson's Park Avenue. Culverson dropped Linnetta off first at their home at 5313 South Wallace Street. He then departed in his car at around 8:20 p.m. to take Latunya home. Linnetta thought Culverson intended to return home after dropping off Latunya. When asked whether she believed that Culverson was going to his brother's party after taking Latunya home, Linnetta said she “wasn't aware of it.” Linnetta did not notice anything unusual about the way Culverson was acting or driving. She had never met defendant and did not know whether Culverson knew defendant.

¶ 14 Latunya Culverson testified that Culverson dropped her off at her home at 827 East Bowen Avenue at around 9 p.m. on August 30, 2008. After walking Latunya inside and talking to Latunya's son, Antione, Culverson departed. Latunya believed that Culverson was planning on going to his brother's home afterward. When asked where Culverson's brother lived, Latunya responded, “62nd—I am not quite sure. I don't know the direct address, but I know it is on Normal.” Latunya did not know whether Culverson knew defendant or ever let defendant drive his car.

¶ 15 Antione Thompson, Latunya's son, likewise testified that he did not know whether Culverson knew defendant or ever gave him permission to drive his car. Culverson drove Latunya home on August 30, spoke to Antione, then departed. Thompson believed Culverson was going to his brother's house.

¶ 16 Patience Mays testified that she was driving near 67th Street and Martin Luther King Drive at around 9:25 p.m. on August 30, 2008. From her rearview mirror, she saw a car run into a pole. The car had previously tried to pass her as she was driving along Martin Luther King Drive.

¶ 17 Mays made a U-turn and pulled up to the side of the car. Inside, she saw two men. One was sitting in the passenger's seat and the other was getting out of the driver's seat. The two men appeared to be conversing because their hands were moving as if they were talking. Mays did not hear the driver or the passenger screaming.

¶ 18 Mays asked the driver of the car whether he was okay, and he started retrieving items out of the car, like a jacket and a bottle. Mays did not see him grab or throw a gun. She also did not see if anything was tucked into his waistband or if he had anything in the jacket he grabbed. The driver threw the bottle and told Mays that he was okay. Mays offered to call somebody. The driver instructed her not to call the police but to call the paramedics. Thereafter, the driver “took off running” toward a viaduct. The passenger of the car never screamed for help, and the driver never instructed Mays to tell the paramedics that the passenger had been shot.

¶ 19 After the driver ran away, Mays pulled over to the other side of the street and called 911. Mays drove away when the fire department arrived. She did not speak to the paramedics or police before leaving the scene.

¶ 20 The parties stipulated that if called to testify, deputy medical examiner Dr. Valerie Arangelovich would testify that she performed an autopsy on Culverson on August 31, 2008. She would testify that she observed two gunshot entrance wounds

on the lower left side of his abdomen. She would opine that Culverson died of multiple gunshot wounds and that his manner of death was homicide. There was no evidence of close range firing with respect to either entrance wound. She would also note that Culverson had a laceration on the palm of his right hand.

¶ 21 Chicago police officer Joseph Bokuniewicz testified that he and his partner, Officer Adamski, received a call to go to the area of 6640 South Martin Luther King Drive at around 9:30 p.m. At the scene, Bokuniewicz observed a light-colored Buick Park Avenue...