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03/23/89 the People of the State of v. David Mccarthy

March 23, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DAVID MCCARTHY, DEFENDANT-APPELLANT



Before trial, the court granted the State's motion in limine barring the testimony of the mental health therapist and also denied a defense motion to bar evidence of other crimes, i.e., breaking the car windows and the batteries against Adrienne and her mother. In the opening statement, defense counsel conceded that defendant shot his "common law wife" but asserted that the shooting was manslaughter resulting from the provocation of seeing her in bed with another man. However, the trial court refused to instruct the jury on voluntary manslaughter and defendant was convicted of murder and subsequently sentenced to 34 years' imprisonment.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

536 N.E.2d 917, 181 Ill. App. 3d 208, 129 Ill. Dec. 867 1989.IL.395

Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. COCCIA, J., concurs. JUSTICE PINCHAM, Concurring in part and Dissenting in part.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Defendant David McCarthy appeals his jury conviction for murder. The fact that defendant shot and killed Adrienne Neal is undisputed. The record contains the following additional facts.

Defendant and Adrienne began dating in 1974 when they were both high school freshmen. In 1978, they had a child and then lived together for six months in 1979. After a second child was born to Adrienne and defendant in 1981, they again lived together until April 3, 1983 (Easter), when Adrienne ended the relationship and moved, with the two children, initially into her mother's home and then into her own apartment. The couple were never legally married. On the day Adrienne moved out, her mother testified that defendant went to her home and smashed the windows of a car parked in the driveway belonging to Adrienne's father. Two weeks later, defendant again went to the Neal home and physically assaulted Adrienne and her mother. Defendant denied these acts.

Early in May, Adrienne began dating an old grade school friend, Winifred Johnson, and defendant began "seeing" Michelle Gardner. Approximately 10 days before the shooting incident, defendant was referred by his probation officer to Englewood Mental Health Center and told a therapist that he was depressed and was having homicidal and suicidal thoughts. On June 3, defendant bought a gun. Three days later, he picked up Michelle, who testified that they drove around for about an hour and stopped several times, looking for some marijuana. Michelle said that she did not notice anything unusual about defendant and that there was no evidence that he had been drinking. Defendant testified that they had just driven around talking about Adrienne and the children and that they never stopped for marijuana. Around 11 p.m., defendant parked near Adrienne's apartment building and, taking an object from beneath the seat, left Michelle in the car and went to the back of the building.

Defendant went up to Adrienne's second-floor apartment and knocked on the back door. Adrienne's sister, Anita, who was in the kitchen with her boyfriend, Woodrow McGuire, let defendant in. McGuire testified that earlier in the evening, defendant had gone to McGuire's house and said, "I know Anita is hiding behind the door, tell her to take her last look." Anita and McGuire then went to Adrienne's house. Adrienne and Johnson came home and went into the bedroom. According to Anita and McGuire, defendant came into the kitchen and pointed a gun seven to eight inches away from Anita's face and then knocked her to the floor, pulled her up again putting the gun to her head, and then dropped her back to the floor. Neither McGuire nor Anita saw any signs that defendant had been drinking.

Defendant then went to the bedroom, where he shot Adrienne five times. Johnson testified that he and Adrienne had fallen asleep in their underwear while watching television when they were awakened by Anita's screams. They had both jumped out of the bed when defendant burst in and shot at Johnson, grazing him. Johnson ran out of the room and jumped off the back porch. Anita, McGuire, and Johnson all heard more shots as they were fleeing. The evidence shows that Adrienne was shot from two to six feet away. Defendant then fled to California, and Michelle followed to give him some belongings his mother had sent, after which Michelle returned to Chicago.

Defendant, and his sister, testified that after the Easter breakup, he became extremely depressed, suicidal, and began drinking heavily. Although not legally married, defendant stated that he thought of Adrienne as his "wife." He also testified that he did not threaten Anita and that he had purchased the gun to kill himself, and that when he went to Adrienne's home, he intended to kill himself if she refused to reconcile.

The record also indicates that defendant was seeing other women both before and after the Easter breakup, and that he, in fact, married one of them, Raydell Lacey, six months after killing Adrienne. In January 1984, defendant, accompanied by counsel, turned himself in to the police.

On appeal, defendant contends that the trial court committed error in refusing to give a voluntary manslaughter instruction, in permitting admission of other crimes evidence and barring the therapist's testimony, and further, that defendant's sixth amendment right to effective assistance of ...


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