People v. Mcneal

Decision Date24 November 2010
Docket NumberNo. 1–08–2264.,1–08–2264.
Citation352 Ill.Dec. 856,955 N.E.2d 32,405 Ill.App.3d 647
PartiesThe PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Anthony McNEAL, Defendant–Appellant.
CourtUnited States Appellate Court of Illinois

405 Ill.App.3d 647
955 N.E.2d 32
352 Ill.Dec.
856

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Anthony McNEAL, Defendant–Appellant.

No. 1–08–2264.

Appellate Court of Illinois, First District, Sixth Division.

Nov. 24, 2010.


[955 N.E.2d 37]

Anita Alvarez, Cook County State's Attorney, Chicago, IL (Alan J. Spellberg, Michelle Katz, Veronica Calderon Malavia, Tasha-Marie Kelly, Assistant State's Attorney, of counsel), for Plaintiff–Appellee.Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender of Cook County, Chicago, IL (Gilbert C. Lenz, Assistant Appellate Defender), for Defendant–Appellant.
MODIFIED UPON DENIAL OF PETITION FOR REHEARING
Justice McBRIDE delivered the opinion of the court:

[352 Ill.Dec. 861] [405 Ill.App.3d 649] Following a jury trial, defendant Anthony McNeal was convicted of two counts of aggravated criminal sexual assault and one count each [405 Ill.App.3d 650] of home invasion, armed robbery, and aggravated criminal sexual abuse. The trial court subsequently sentenced defendant to consecutive terms of 30 years for each count of the aggravated criminal sexual assault and concurrent terms of 20 years for home invasion, 20 years for armed robbery and 6 years for aggravated criminal sexual abuse, but to be served consecutive to the sentences for aggravated criminal sexual assault. In total, defendant received an aggregate sentence of 80 years in prison.

Defendant appeals, arguing that: (1) the trial court failed to question prospective jurors in compliance with Supreme Court Rule 431(b) (Official Reports Advance Sheet No. 8 (April 11, 2007), R. 431(b), eff. May 1, 2007); (2) the trial court improperly allowed a witness to testify about the contents of a triage note prepared by a nontestifying witness because the note was inadmissible hearsay and violated defendant's constitutional right to confrontation; (3) the expert testimony of a fingerprint analyst failed to offer a foundation for her conclusion; (4) the trial court erroneously instructed the jury on a non-Illinois Pattern Jury Instruction definition of “sexual penetration”; (5) the State failed to prove defendant guilty of home invasion because no one was present in the house when it was entered; and (6) the trial court erred in imposing an unidentified $30 assessment and defendant is entitled to receive credit for the $200 “Sexual Assault Fine.”

The trial court conducted defendant's jury trial in May 2008. At the start of jury selection, the trial court made the following statement.

“Under the law, the defendant is presumed to be innocent of the charges placed against him. This presumption remains with the defendant at every stage of the trial and is not overcome unless and until you are satisfied by the evidence presented in this case beyond a reasonable doubt as to the guilt of the defendant.

The State has the burden of proving the guilty of the defendant beyond a reasonable doubt. The State carries this burden throughout the case. The defendant is not required to prove his innocence. The defendant need not present any evidence at all. The defendant may rely upon this presumption of innocence.”

Later, the trial court asked a series of questions of the venire as a group. The court asked the prospective jurors to raise their hands or nod in response to the questions.

[955 N.E.2d 38]

[352 Ill.Dec. 862] “Do you understand and accept that a person accused of a crime is presumed to be innocent of the charges against him?

Again heads nodding yes.

That this presumption of innocence stays with the defendant throughout the trial and is not overcome unless from all the evidence you believe the State proved the defendant's guilt beyond a reasonable doubt?

[405 Ill.App.3d 651] Again, all heads are nodding yes, no hands raised.

Do you understand that this means that the State has the burden of proving the defendant's guilt beyond a reasonable doubt?

All heads nodding yes, no hands raised.

That the defendant does not have to prove his innocence?

Again, heads are nodding yes, no hands raised.

That the defendant does not have to present any evidence on his own behalf?

Again, all heads nodding yes, no hands raised.

Do you have any disagreement with any of these principles of law?

Again, no hands raised.”

Defendant did not object to the trial court's questioning of the jurors.

The following evidence was presented at defendant's trial.

M.Z. testified that on September 9, 2005, she lived with her boyfriend Bhawani Singh at 911 Sherman in Evanston. The building is a courtyard building and the outer entry door is unlocked to enter a vestibule with a locked inner door and buzzers for the individual apartments.

On that morning, Singh left for work shortly before 8 a.m. M.Z. was still home preparing for work. She was employed as a postdoctoral researcher at the University of Chicago. Several minutes after Singh left, M.Z. heard the buzzer for the front door. She stated that she assumed Singh had forgotten something and pushed the button to open the inner vestibule door without asking who was there. No one entered her apartment and no one knocked on her door.

Approximately 5 to 10 minutes later, M.Z. left her apartment through the front door. As she turned to lock the door, she observed an African–American man standing in the stairwell. He was wearing an orange shirt and jeans with big pockets. She identified this man as defendant. Defendant said a name that M.Z. did not recognize. Then, he pulled out a knife, held it to M.Z.'s throat and threatened to kill her if she yelled. Defendant forced M.Z. back into her apartment. Defendant was behind M.Z. with his arms around her neck.

Inside the apartment, defendant began to look for money and valuables. He dumped the contents of M.Z.'s purse on the table and found $10 as well as credit cards and an automated teller machine (ATM) card. He asked M.Z. for her personal identification number (PIN) for the ATM card three times and told her he would kill her if she lied. M.Z. testified that she gave him the correct number and wrote it down for him when he asked. M.Z. stated that she was very scared and believed defendant would hurt her so she did whatever he asked of her.

[405 Ill.App.3d 652] Defendant asked M.Z. when she usually left for work and she said around 9 a.m. He told her to call her lab and tell them that she was not feeling well and would in late. M.Z. did as defendant instructed. Defendant then rummaged around the apartment looking for valuables. He opened drawers and closets. M.Z. told defendant that she had a large container of [352 Ill.Dec. 863]

[955 N.E.2d 39]

change in the dining room. Defendant got the container and told M.Z. to separate the quarters from the rest of the change.

While M.Z. was separating the change, defendant began to touch her “bottom part.” She testified that she said “no, please don't.” Defendant did not stop. He unbuttoned her bra from outside her shirt and pulled her pants partway down. He told M.Z. to remove her pants and underwear. She complied. He told her to go into the bedroom. In the bedroom, defendant told M.Z. to lie on the bed. M.Z. testified that defendant “put his penis into [her] vagina.” After less than a minute, defendant removed his penis and asked for a condom. M.Z. told him that she did not have a condom. Defendant “became very, very mad” and “put the knife right above [her] eyeball, almost going to cut [her] eyeball out.” M.Z. said that she did not have condoms because she and her boyfriend were trying to have a baby. Defendant then released the knife. He told her to “f––– herself” and said he wanted to see a “real orgasm.” Defendant then told M.Z. to “touch [her]self” and “to put [her] finger into [her] own vagina.” Defendant felt her breasts while on the bed. M.Z. testified that defendant did not ejaculate at any time.

After 5 to 10 minutes, defendant told her to stop. He went into the living room and M.Z. followed, still naked from the waist down. He had her take the quarters from the dining room table to the living room table and she stacked the quarters. Defendant sat on the couch and told M.Z. to lie on top of him. M.Z. supported herself as she did not want to lie completely on defendant. Defendant then rubbed M.Z.'s vagina and buttocks. A few minutes later, defendant turned on the television.

Defendant began looking through M.Z.'s CDs, DVDs and electronics. He specifically picked up the movie “The Color Purple” and asked if it was “good.” He also found her diplomas in a closet. He asked M.Z. for a shopping bag. She saw defendant put some of the quarters in his pockets and in the bag. He asked M.Z. if she had any “special underwear” and made her put on a pair of thong underwear.

Around 9:30 a.m., defendant told M.Z. they were going shopping. He threatened to kill her and her boyfriend if she caused trouble while they were out. M.Z. stated that she believed defendant and promised defendant that she would not do anything stupid. M.Z. had one credit card in her purse and defendant had her ATM card. She did not know where her cell phone was at this time.

[405 Ill.App.3d 653] When they left, defendant asked where the closest ATM was located. M.Z. said a White Hen Pantry. As they walked toward the store, defendant saw a police car outside White Hen so he took her to the southbound Purple Line stop for the el train. Defendant gave M.Z. money to pay for the train. He used the quarters from M.Z.'s apartment. Defendant held M.Z.'s hand. They boarded a southbound train and rode to the Howard stop. At Howard, they transferred to a southbound Red Line train. They rode for about 20 minutes and exited at the Wilson stop.

After they exited the station, defendant took M.Z. to a store called City Sports, located at Wilson and Broadway. Inside the store, defendant selected several items with M.Z. nearby. They went to the register to pay. M.Z. handed her credit card to the employee, later identified as David Kim the store manager,...

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