People v. McNeal

• Decision Date: 26 August 1987
• Docket Number: No. 84-2184,84-2184
• Citation: 513 N.E.2d 897,160 Ill.App.3d 796
• Parties: , 112 Ill.Dec. 288 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marshall McNEAL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 897

513 N.E.2d 897

160 Ill.App.3d 796, 112 Ill.Dec. 288

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Marshall McNEAL, Defendant-Appellant.

No. 84-2184.

Appellate Court of Illinois First District, Third Division.

Aug. 26, 1987.

Steven Clark, Chicago (Sue Augustus, of counsel), for defendant-appellant.

Richard M. Daley, Chicago (Joan S. Cherry, Thomas V. Gainer, Jr. and James P. Stevenson, of counsel), for plaintiff-appellee.

Justice RIZZI delivered the opinion of the court:

Following a jury trial defendant, Marshall McNeal, was found guilty of murder and armed robbery. Defendant was sentenced to natural life imprisonment. This appeal followed.

On appeal, defendant contends that his conviction should be reversed and his natural life sentence should be vacated. Defendant argues that (1) the trial court's erroneous admission of hearsay out of court identification of defendant, as well as hearsay statements implicating defendant denied defendant his right to confront the witnesses testifying against him; (2) the State failed to prove defendant guilty beyond a reasonable doubt of accountability; (3) the prosecutor's comments in his closing argument were so prejudicial as to deny defendant his right to a fair and impartial trial; (4) the defense attorney was so incompetent that his representation resulted in ineffective assistance of counsel; (5) a bailiff had improper communication with the jury and the trial court erred in not granting defendant a continuance to establish that such communication occurred; (6) the mandatory life sentence imposed upon defendant violates the due process of law clause of the eighth and fourteenth amendments of the United States Constitution and (7) the State exercised peremptory challenges to systematically exclude blacks from the jury. We remand with directions.

On July 9, 1983, Chicago police responded to a call of a "man shot" in the area of 46th and Champlain. Upon arrival, the police found two victims; both had been shot to death and had no identification, money or jewelry on them. Officer Joseph Murphy was assigned to investigate the shootings. On July 13, 1983, Murphy interviewed several witnesses; one of the witnesses was Cynthia Berrian. Murphy testified that during the interview, Berrian indicated that she saw defendant grab one of the victims around the neck and drag him into an alley with the help of another man. Defendant was arrested the following day.

Murphy further testified that when he interviewed defendant on July 14, 1983, he indicated that he knew nothing about the murder and robbery of the two victims. After the interview, Murphy placed the defendant in a lineup which was viewed by Berrian. Murphy then interviewed defendant again and informed defendant that he had been identified "as an offender in the double homicide." Defendant reiterated that he knew nothing about a double homicide.

The following day, defendant talked with Murphy and expressed a desire to tell the truth. Defendant told Murphy that on July 9, 1983, he was met by two of his gang members, known as Big Al and Satan. Big Al and Satan wanted to rob one of the victims, Flagg. When defendant, Big Al and Satan saw Flagg and the other victim, Jordan, Big Al and Satan attempted to rob Flagg and Jordan. When Flagg resisted, defendant grabbed him around the neck and helped Big Al drag him into the alley. Defendant then positioned himself so the victims could not escape. Big Al and Satan robbed both Flagg and Jordan. Big Al then fired at each victim six times. Big Al, Satan and defendant then ran away leaving the victims lying on the ground. The next day, defendant met with Big Al and Satan to get his share from the robbery, but Big Al and Satan told the defendant that they had spent all of the money. Defendant subsequently gave a written statement but did not mention grabbing either victim in this statement.

Another officer, Officer O'Connell interviewed Big Al and Satan. Both gave alibi statements that were corroborated by Satan's mother, Doris Napoleon.

Defendant first argues that the trial court erred in admitting both Berrian's out of court identification of defendant and her out of court statements concerning the murders and robberies at issue here, because Berrian was deceased at the time of trial. Defendant further argues that the out of court statements of Big Al and Satan exculpating themselves were inadmissible. It is defendant's position that the identification testimony and statements were hearsay. Therefore, because he could not confront these non-testifying witnesses, he was denied a fair trial.

Hearsay is testimony of an out of court statement offered to prove the truth of the matter asserted therein. It is thus dependant for its value upon the credibility of the out of court asserter. People v. Rogers (1980), 81 Ill.2d 571, 577, 44 Ill.Dec. 254, 257, 411 N.E.2d 223, 226. An out of court statement not offered for the truth of the matter asserted is not hearsay. People v. Loggins (1985), 134 Ill.App.3d 684, 692, 89 Ill.Dec. 550, 556, 480 N.E.2d 1293, 1299. It is the State's contention that Berrian's out of court identification and statements, and the exculpatory statements of Big Al and Satan are not hearsay because they were not offered for the truth of the matter asserted, but instead to illustrate the steps involved in the police investigation of these crimes. We agree.

Prior out of court statements offered to show that a person did something as a reaction to, or as a result of, an occurrence are not hearsay. Therefore, in a criminal prosecution, it is permissible for a police officer to testify as to prior out of court statements about the circumstances of an investigation to detail the steps leading up to a defendant's arrest and indictment. People v. Price (1979), 79 Ill.App.3d 1112, 1119, 35 Ill.Dec. 208, 212, 398 N.E.2d 1158, 1162; People v. Bryant (1984), 123 Ill.App.3d 266, 275, 78 Ill.Dec. 661, 667, 462 N.E.2d 780, 786.

Officer Murphy testified that during the course of his investigation, he spoke with Berrian who indicated that she saw defendant drag one of the victims into an alley by the neck with the help of another person. Shortly thereafter, Berrian heard shots. Based on this information, Murphy located defendant and arrested him. Murphy also testified that Berrian viewed a lineup and identified defendant.

Officer O'Connell later testified that he interviewed Big Al and Satan as to their whereabouts on the night of the shooting. Both told O'Connell that they were with Satan's mother, Doris Napoleon. O'Connell indicated that Napoleon told him that Big Al and Satan were with her in the "Bonanza" lounge when the shots were fired. Upon hearing the shots, Big Al and Satan ran to the scene. After viewing a showup, Berrian informed O'Connell that she saw Big Al and Satan at the scene but neither were involved. Based on this information, O'Connell testified that neither Big Al or Satan were arrested.

It is our position that the testimony of Murphy and O'Connell was not offered to prove that the substance of their statements were true. With respect to Murphy's testimony, the issue was not whether defendant in fact took someone into the alley by the neck, or that because Berrian identified defendant in a lineup he was the actual offender. Rather, we believe that Murphy's testimony was offered to detail the course of an investigation that culminated in the defendant's arrest and indictment. As to Officer O'Connell's testimony, the issue was not whether Big Al and Satan were in fact with Ms. Napoleon when the shooting occurred. O'Connell's testimony simply set forth the course of an investigation that did not culminate in any arrest. Therefore, because this portion of Murphy's and O'Connell's testimony was offered merely to show the reasons for their actions, no inadmissible hearsay existed and defendant was not denied his right to confront any witnesses.

Defendant next argues that he was not proven guilty of accountability beyond a reasonable doubt for the murders and robberies of the two victims. We disagree. To prove a defendant guilty of accountability, the State must establish that a defendant: (1) solicited, aided, abetted, agreed or attempted to aid another person in the planning or commission of the offense; (2) participated in the occurrence either before or during the commission of the offense and (3) participated with the concurrent, specific intent to promote or facilitate the commission of the offense. Ill.Rev.Stat.1985, ch. 38, par. 5-2; People v. Soteras (1987), 153 Ill.App.3d 449, 454, 106 Ill.Dec. 343, 346, 505 N.E.2d 1134, 1137.

A jury's determination that a defendant is legally accountable for a crime will not be overturned on review unless the evidence is "so improbable, unsatisfactory or unreasonable that a reasonable doubt of defendant's guilt exists." People v. Cleveland (1986), 140 Ill.App.3d 462, 469, 94 Ill.Dec. 883, 888, 488 N.E.2d 1276, 1281. It is only necessary that the evidence, on the whole, convince the trier of fact that a defendant is guilty beyond a reasonable doubt. People v. Harbold (1984), 124 Ill.App.3d 363, 370, 79 Ill.Dec. 830, 836, 464 N.E.2d 734, 740.

Here, by defendant's own admissions to Officer Murphy, he assisted in the robberies and murders of the two victims. Defendant discussed robbing and murdering the victims with his accomplices. Defendant further stated that he grabbed one of the victims "around the neck and dragged him into the gangway along with the assistance of Big Al." Defendant then positioned himself in the alley so the victims could not escape. Moreover, defendant's written statement indicates that he received scratches on his neck from struggling with one of the victims and that he met with his accomplices the following day to receive his share of the stolen money.

We believe that such evidence amply supports the jury's determination that defendant was accountable for the...