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08/26/87 the People of the State of v. Marshall Mcneal

August 26, 1987





513 N.E.2d 897, 160 Ill. App. 3d 796, 112 Ill. Dec. 288 1987.IL.1242

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.


JUSTICE RIZZI delivered the opinion of the court. McNAMARA, P.J., and WHITE, J., concur.


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 a 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 dependent for its value upon the credibility of the out-of-court asserter. (People v. Rogers (1980), 81 Ill. 2d 571, 577, 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, 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 ...

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