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11/22/89 the People of the State of v. David Mccarthy

November 22, 1989





547 N.E.2d 459, 132 Ill. 2d 331, 138 Ill. Dec. 292 1989.IL.1820

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Arthur J. Cieslik, Judge, presiding.


JUSTICE MILLER delivered the opinion of the court.


Following a jury trial in the circuit court of Cook County, the defendant, David McCarthy, was convicted of murder and sentenced to a term of 34 years' imprisonment. The appellate court reversed the defendant's conviction and remanded the cause for a new trial, finding reversible error in the trial Judge's refusal to instruct the jury on voluntary manslaughter in addition to murder. (181 Ill. App. 3d 208.) We allowed the State's petition for leave to appeal (107 Ill. 2d R. 315(a)).

The victim in the present case was Adrianne Neal, with whom the defendant had previously enjoyed a longstanding romantic relationship. The defendant and Adrianne began dating in 1974, while freshmen in high school. The couple eventually had two children -- one daughter was born in 1978, and a second in 1981 -- and they lived together from 1978 or 1979 until 1983, with one or two brief interruptions. The defendant and Adrianne never married. Early in April 1983, Adrianne and the children moved out of the apartment they shared with the defendant. After living for a short time with Adrianne's mother, Adrianne and the two children moved to their own apartment. On June 7, 1983, the defendant entered Adrianne's apartment, found her lying in bed with another man, Winfred Johnson, and shot both of them. Johnson survived, but Adrianne died as a result of the shooting. The autoptic evidence disclosed that Adrianne was shot a total of five times, and that several of the shots were fired at close range; the cause of death was determined to be a bullet wound to the head. Following the murder, the defendant fled to California. The defendant later returned to Chicago, and he surrendered to police on January 11, 1984.

Adrianne's sister, Anita Neal, and Anita's boyfriend, Woodrow McGuire, were present when the defendant entered Adrianne's apartment on June 7. At trial, they testified that they had seen the defendant earlier the same evening at Woodrow's home. The defendant pulled up in his car around 9:30 and spoke to Woodrow. The defendant's two daughters and a woman whom neither Anita nor Woodrow recognized were also in the car. The defendant seemed upset, and he told Woodrow to inform Adrianne that she would never see the children again. The defendant next turned toward the house and said, "I know Anita is standing inside the door. Tell her to take her last look." The defendant then drove off.

Anita and Woodrow testified that they went to Adrianne's apartment following their encounter with the defendant. They arrived around 10:45, but no one was home at the time. Anita and Woodrow returned to the apartment at 11:30 and found both Adrianne and her boyfriend, Winfred Johnson, there. Anita related to her sister what the defendant had said earlier that evening. Adrianne and Winfred then retired to the bedroom, and Anita and Woodrow worked a crossword puzzle in the kitchen.

About 15 or 20 minutes later, the defendant let himself into the apartment through the back door and entered the kitchen. The defendant knocked Anita to the floor, grabbed her by the collar, and held a gun to her head. Woodrow told the defendant not to shoot, and the defendant then released Anita and walked down the hallway toward the bedrooms. Anita and Woodrow fled from the apartment through the rear exit, jumping from the back porch onto the ground below. The apartment was on the second floor, and, according to the evidence, the back stairs of the building were undergoing renovation at the time. Anita and Woodrow heard several shots being fired, and they called the police from a nearby store. Both Woodrow and Anita testified that they did not smell alcohol on the defendant's breath and that his eyes did not appear bloodshot.

Winfred Johnson had known Adrianne and her family for more than 10 years, and he had been dating Adrianne for several months before she was killed. Winfred testified that on June 7, 1983, he picked Adrianne up from work and that they returned to Adrianne's apartment later that evening. After Anita and Woodrow arrived, Adrianne spoke with her sister and then joined Winfred in the bedroom. Winfred testified that they fell asleep in their underwear while watching television. He was awakened by Anita's screams and got out of bed. The defendant entered the bedroom and fired a handgun at both Winfred and Adrianne; a bullet grazed Winfred's chest. Winfred ran to the back porch and jumped to the ground below.

Michelle Gardner also testified in the State's behalf at trial. She met the defendant late in 1982 and began dating him shortly after that. Michelle testified that from April through June 1983 she saw the defendant two or three times a week. According to Michelle, the defendant would talk about his two children but not about Adrianne. Michelle testified that the defendant picked her up during the evening of June 7, 1983. The defendant stopped and talked to someone at one point. Over the defendant's objection, Michelle testified that the defendant made several other stops that evening in an attempt to purchase marijuana. Michelle said that she did not smell alcohol on the defendant's breath, that his eyes did not appear bloodshot, and that he did not have any difficulty driving. According to Michelle, the defendant was laughing and joking as usual and did not seem sad or depressed. Later, the defendant stopped near an apartment building, retrieved an object from under his seat, and got out of the car. The defendant returned to the car after 10 minutes and quickly drove off. Michelle testified that a day or two later the defendant told her that he had shot Adrianne.

Over defense counsel's objection, the State was permitted to introduce evidence of two prior incidents in which the defendant committed acts of violence toward Adrianne and her family. Adrianne's mother, Mrs. Jacqueline Neal, testified that on April 3, 1983, the day Adrianne left the defendant, the defendant came to their house and broke the windows of a family member's car. Mrs. Neal also testified to a second incident that occurred about two weeks later, on April 14. On that occasion, Mrs. Neal and Adrianne returned home around 9 o'clock one night. As the two women were getting out of the car, the defendant grabbed Adrianne and struck her several times. After striking Mrs. Neal, the defendant ran off.

The defendant acknowledged at trial that he had performed the acts resulting in the victim's death. The defendant maintained, however, that he had been provoked by the sight of Adrianne in bed with another man. Testifying in his own behalf, the defendant said that he was despondent following his breakup with Adrianne in April 1983 and that he began drinking heavily. The defendant said that he cried continually, could not eat or sleep, and felt suicidal. He was then serving a term of probation from an earlier conviction for robbery, and he sought help from his probation officer. The probation officer referred him to a municipal mental health center, and the defendant went there on one occasion in late May 1983. The defendant testified that he told the people ...

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