People v. McGath, 4-15-0608.

• Citation: 2017 IL App (4th) 150608,83 N.E.3d 671
• Decision Date: 21 September 2017
• Docket Number: No. 4-15-0608.,4-15-0608.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marcus E. MCGATH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2017 IL App (4th) 150608
83 N.E.3d 671

The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Marcus E. MCGATH, Defendant-Appellant.

No. 4-15-0608.

Appellate Court of Illinois, Fourth District.

September 21, 2017

Michael J. Pelletier, Jacqueline L. Bullard, and Salome Kiwara-Wilson, of State Appellate Defender's Office, of Springfield, for appellant.

Randy Yedinak, State's Attorney, of Pontiac (Patrick Delfino, David J. Robinson, and Luke McNeill, State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.

OPINION

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

¶ 1 Following a May 2015 trial, a jury convicted defendant, Marcus E. McGath, of unlawful delivery of a controlled substance ( 720 ILCS 570/401(d) (West 2014)). In July 2015, the trial court sentenced him to 25 years in prison.

¶ 2 Defendant appeals and raises several arguments: (1) the State failed to prove him guilty beyond a reasonable doubt, (2) he received ineffective assistance of counsel when his trial counsel failed to subpoena

83 N.E.3d 675

a key witness, (3) the trial court erred when it failed to conduct a hearing in accordance with People v. Krankel , 102 Ill. 2d 181, 80 Ill.Dec. 62, 464 N.E.2d 1045 (1984), (4) the court erred when it denied trial counsel's request to make an offer of proof to explain a key witness' absence at trial, and (5) the court subjected him to double enhancement at sentencing when it considered a factor in aggravation that was inherent in the offense. For the reasons that follow, we disagree and affirm.

¶ 3 I. BACKGROUND

¶ 4 In February 2015, the State charged defendant with unlawful delivery of a controlled substance ( 720 ILCS 570/401(e) (West 2014)), which was later amended to subsection (d) ( 720 ILCS 570/401(d) (West 2014)). The charge alleged that, on or about November 4, 2014, defendant knowingly delivered less than one gram of a substance containing cocaine to Coartney Barton, a police confidential source.

¶ 5 A. Pretrial Proceedings

¶ 6 In May 2015, the day before trial, defendant tendered a witness list that contained only the name of Katrina Ross, his girlfriend. (Defendant's theory throughout trial was that the evidence was unclear as to who delivered the cocaine to Barton—he or Ross.)

¶ 7 On the day of trial, the trial court asked the parties, outside of the presence of the jury, whether any matters needed to be resolved before the court brought the jury back in. The following conversation took place regarding whether Ross would testify:

"MR. REGNIER [Assistant State's Attorney]: There is, Judge. It is regarding disclosure of a witness yesterday regarding what she was going to say today.

THE COURT: Who?

MR. REGNIER: Katrina Ross.

THE COURT: Okay.

MR. REGNIER: And *** what—I would proffer based off talking to her today, she is planning on using her Fifth Amendment right.

THE COURT: Okay.

MR. REGNIER: There has [sic ] been some discussions over what she can testify to before using that right or not. And if Your Honor does allow her to use that right, the State would probably pursue some kind of immunity, either use or qualified immunity for her.

THE COURT: She is not listed as your witness.

MR. REGNIER: Judge, we were aware of what she was going to say today as far as a summary of what her statements were going to be.

THE COURT: Well, I—

MR. REGNIER: And that is when we found out about the Fifth Amendment.

THE COURT: Okay. But you have not listed her as a witness. And if you are not planning on calling her, I don't see it being an issue for the State.

MR. REGNIER: Regarding her *** using use immunity or regarding her invoking her Fifth Amendment right while she is on the stand.

THE COURT: She can do that.

MR. REGNIER: The State's belief is that if she is going to testify about a transaction—she can't testify about that partially and then invoke her Fifth Amendment right and the State, now that we are aware of what she intends to testify to generally, a summary from speaking with her this morning, believes it would be the case.

THE COURT: Well, we will have to get into that when she starts testifying.

MR. REGNIER: Okay. Well—

83 N.E.3d 676

THE COURT: I got to get the case going."

¶ 8 B. The Trial

¶ 9 The following evidence was presented at defendant's May 2015 jury trial. In November 2014, Barton conducted a controlled buy for the proactive unit in Livingston County. Barton arranged the buy through text messages with a contact in her phone listed as "Katrina." Katrina Ross had been Barton's friend for many years and was in a relationship with defendant. Barton used this telephone number to contact defendant because it was how she communicated with him in the past. Barton sent a text message that asked if defendant "was good," meaning if he had any drugs. She received a positive response, and she told him that she would come by in the early afternoon. Barton believed Inspector Leland Brooke was present while she made the arrangements and that Brooke saw the text messages. (However, Brooke later testified that he was not present and did not see the messages.)

¶ 10 The police searched Barton's person and vehicle before she went to defendant's residence and found no contraband. The police gave her $40 of prerecorded money and an audio-recording device inside a cigarette pack, which she placed in her pocket. The police then followed her to defendant's residence.

¶ 11 Barton arrived at defendant's residence, knocked on the door, and Ross answered it. Barton walked into the living room and did not see defendant. Barton asked Ross if defendant had something for her, and Ross replied affirmatively and stated that defendant was in the bedroom. Barton knocked on the bedroom door, and defendant opened it. She handed him $40, and he gave her a small amount of crack cocaine. Defendant asked Barton for a ride to the pawnshop. She told him that she could give him a ride but needed to drop off the cocaine first.

¶ 12 Barton left and drove to the jail, and the police followed close behind. At the jail, Barton gave the police the purported crack cocaine, and they searched her again and found no contraband. The police transferred the white substance to a forensic scientist for testing, who, after a series of tests, concluded that the 0.1 grams of white substance contained cocaine.

¶ 13 The prosecution played the audio recording of the transaction for the jury. The entire conversation between Barton, Ross, and defendant lasted approximately one minute. When Barton arrived at the residence, she knocked on the door and Ross greeted her. Barton said, "here," and after a few seconds, she mentioned defendant. Ross yelled, "Oh! Babe!" Defendant said something to Ross, but what he said is unclear from the recording. Ross responded, "Do you have something for Cornelia?" (Cornelia is a nickname that Ross used for Barton.) Defendant replied, "Yeah, but ask her if she can run me to the pawnshop real quick." Ross relayed the request to Barton, in which she said she could after she dropped off the drugs. Ross suggested that defendant should just ride with Barton, but he interjected and said that he would wait because he did not "want nobody seeing [his] face."

¶ 14 In between testimony, the trial court held a recess. Outside the presence of the jury, the court instructed the parties to read People v. Human , 331 Ill. App. 3d 809, 265 Ill.Dec. 642, 773 N.E.2d 4 (2002), to determine whether a party may call a witness it believes will invoke the fifth amendment privilege. When the parties returned from the recess, the court asked them if they had any questions about Ross. The following conversation took place:

83 N.E.3d 677

"MR. MASON [Defense counsel]: At this time, no. I have told her to go talk to Mr. Morgan[, the public defender].

THE COURT: Okay. And we'll take it up.

MR. MASON: I've reviewed the case that you gave me that you referred to earlier.

THE COURT: Yes, yes.

MR. MASON: Told her what I thought it meant.

THE COURT: Okay.

MR. MASON: And I believe she was going to talk to Mr. Morgan.

THE COURT: All right. Very good. Is she under subpoena?

MR. MASON: No. And I think that makes a difference, too.

THE COURT: Yes. I believe it does."

¶ 15 The trial resumed without Ross being called to testify. The jury found defendant guilty of unlawful delivery of a controlled substance ( 720 ILCS 570/401(d) (West 2014)).

¶ 16 C. Posttrial Proceedings

¶ 17 In June 2015, defense counsel filed a motion for a new trial and argued, among other things, (1) the State failed to prove defendant guilty beyond a reasonable doubt, (2) Barton's testimony was not supported by the audio recording, and (3) Ross was present for a portion of the trial and "was not called as a defense witness although she could have provided testimony contradicting testimony of *** Barton as shown by the notarized statement of *** Ross attached hereto. Ms. Ros [sic ] had been present at the trial during the morning but did not return after lunch." Ross's notarized statement stated the following:

"I Katrina Pauline Ross being of sound mind and in a sober state am writing this to claim responsibility for my actions. On November 4, 2014[,] I Katrina Ross exchanged a $40 bag of cocaine for two $20 bags of heroin with Coartney Barton. When this was done without [defendant] knowing. This is all supported by the audio. This transaction was within the first 10 seconds of the audio when Ms. Barton enters my home. When [defendant] was asked if he had something for "Cornelia" it was referring to $10 the gas money she needed that evening to go to Lexington IL where she worked at McDonald's. I declare that this are [sic ] true and correct."

¶ 18 In July 2015, the trial court held a hearing on the motion for a new trial. Defense counsel asked the court to allow Ross to testify. The State objected, arguing that Ross's testimony was not newly discovered evidence. In response, defense counsel stated if the court would allow her to testify, she would explain why she did not testify at trial. The court...