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11/27/95 PEOPLE STATE ILLINOIS v. SAM MCDONALD

November 27, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SAM MCDONALD, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE, MARY JANE THEIS, JUDGE PRESIDING.

Petition for Leave to Appeal Denied January 31, 1996.

Presiding Justice Campbell delivered the opinion of the court: Braden, J., concurs. Wolfson, J., dissents.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a bench trial, defendant, Sam McDonald, was convicted of the first degree murder of Aaron Ranson and sentenced to 25-years imprisonment. On appeal, defendant contends that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court improperly admitted and considered hearsay evidence; and (3) he was denied effective assistance of counsel. For the following reasons, we affirm the judgment of the trial court.

The record reveals the following relevant facts. Defendant and co-defendants George Ware, Kendall Dorsey and Tyrone Jones were charged by information with attempt armed robbery and three counts of first degree murder. Prior to trial, defendant's motion to sever was granted, although his trial was conducted simultaneously with the trials of Jones and Ware. *fn1

At trial, Mary Ranson testified that on September 10, 1990, her grandson, Aaron, left her home located at 2222 South State Street, Chicago, at approximately 11 a.m. Later that same day, Mary saw Aaron dead on the second floor of a building located at 2320 South State Street.

Next, Chicago Police Detective Ellen Weiss testified that on September 10, 1990, she and her partner Detective Robert McGuire investigated the fatal shooting of Aaron Ranson, a.k.a., "Pappy" at 2320 South State. From the second floor gallery of the building, the detectives observed a pool of blood and scattered bullets. The detectives interviewed several witnesses at the scene, and called an assistant State's Attorney to obtain witness statements.

Kashma Avery then testified on behalf of the State that he is currently in custody and has a case pending in criminal court for the charge of home invasion. Avery stated that he received no deals nor promises in exchange for his testimony, and that he expected no special treatment from the authorities.

Avery then testified that in the summer of 1990, he lived in an apartment located at 2140 South Indiana, along with his Godmother, Captola Payton, defendant, and defendant's brother, Dean Kendall. Defendant lived in Avery's apartment for approximately two months during the summer, and then moved back into the apartment in November 1990.

Approximately a week and a half before Thanksgiving 1990, Avery had a conversation with defendant in the kitchen of his apartment, in the presence of Payton and defendant's sister, Allison Kendall. Defendant told Payton that he could not accompany her to the store on State Street because "the police and Pappy's brother [were] looking for him." After Payton left the kitchen, Avery said to defendant, "I thought that case was over with." Defendant replied no, that he had never been to jail. Avery asked defendant what he was going to do and defendant responded that he was going to wait until the "other two" were caught, and then turn himself in.

A few days later, on approximately November 20, 1990, Avery and defendant were alone in the kitchen, and Avery asked defendant what really happened on the day of the shooting. Defendant replied that on the day prior to the shooting, Ranson attempted to rob him, but was unsuccessful. On the day of the shooting, defendant and two other men heard that Ranson was gambling on the second floor of the projects. Defendant, along with "T.Y." and a third individual armed themselves with guns, went up to the second floor, "and they lined them against the wall and he [defendant] said that T.Y. searched them, and he [defendant] finished searching him." Defendant further told Avery that T.Y. said, "no one move, you won't get shot." Defendant then stated, "Someone moved, and they started shooting." Avery reported these conversations to police on December 27, 1990.

On cross-examination, Avery stated that he had been offered a six-year sentence in exchange for a guilty plea. Avery further stated that at the time he reported his conversations with defendant to the police, he was angry with defendant because defendant had moved out of the apartment, and he was angry at Allison Kendall because she owed him money for back-rent. Avery added that Kendall currently owes him no money.

The State then called De Andre Wakefield as a witness. Prior to his testimony, the trial court determined that Wakefield had no right to decline to testify by invoking the fifth amendment.

Subsequently, on direct examination, Wakefield failed to answer almost all questions, invoking the fifth amendment approximately 80 times. On at least nine occasions, Wakefield disobeyed the trial court's order directing him to answer the question. At the conclusion of his testimony, the trial court found Wakefield in direct contempt of court.

On cross-examination, Wakefield stated that his testimony at this trial is the truth. Wakefield then proceeded to invoke the fifth amendment in response to a series of questions. In response to the questions of defense counsel, Wakefield then testified that on September 10, 1990, he gave statements to Detectives Weiss and McGuire in the presence of an assistant state's attorney at the 51st and Wentworth police station. Wakefield stated that he was under arrest at that time.

Thereafter, Wakefield testified that he was not present when Ranson was shot. Wakefield stated that at approximately 11:30 a.m. on September 10, 1990, he left Wendell Phillips High School, and rode a CTA bus to 2310 South State Street. As he descended the bus, at approximately noon, Anton Hamilton approached him and informed him that Ranson had been shot. Wakefield and Hamilton ran to the second floor scene of the shooting, and the police told them to leave the floor. Wakefield became embroiled in an argument with the police, and was arrested for disorderly conduct.

Wakefield further stated that on September 25, 1990, Chicago police detectives Weiss and McGuire arrived at his apartment located at 2222 South State Street, and escorted him to the criminal court building. While in the squad car, the detectives asked Wakefield why he was trying to run. Wakefield stated that the detectives were telling him "lies," and trying to get him to say that "they" murdered Ranson.

Wakefield recalled testifying before the grand jury that he had, in fact, been outside of the building at 2320 South State at the time Ranson was shot. However, Wakefield insisted that none of the statements he made before the grand jury were true. Wakefield further testified that the statement he gave to detectives Weiss and McGuire was not true, and that he lied to them because the detectives told him that they would drop the disorderly case against him. Wakefield stated that after he testified at the grand jury, his disorderly case was dismissed. Defense counsel then elicited the following testimony from Wakefield:

"Q: You say that you know my client, Sam?

A: Yeah.

Q: Would you describe what he's wearing today?

A: Brown DOC suit.

Q: May the record reflect that he's identified my client:

THE COURT: Sure.

Q: Did you see Sam at any time on September the 10th, 1990?

A: No."

The parties then stipulated that Wakefield was asked the following questions and gave the following answers before the grand jury on September 15, 1990:

"Q. DeAndre, on September 10, 1990, were you -- at 11:30 a.m. were you near 2320 South State Street in the City of Chicago, Cook County, Illinois?

[No answer.]

Q. And who did you see there?

A. Tyrone Jones.

Q And how long have you known Tyrone Jones?

A. About ten or eight years.

Q. And did you see anyone else there?

A. Kendall Dorsey.

Q. And Kendall Dorsey, how long have you known him?

A. All my life. Grew up together.

Q. How old are you?

A. Seventeen.

Q. And so you have known him for seventeen years?

A. Uh-huh.

Q. And who else did you see there?

A. George Ware.

Q. How long have you known Ware?

A. Three years.

Q. And did you see anyone else there?

A. Sam.

Q. Do you remember Sam's last name?

A. Davis.

Q. How long have you known Sam Davis?

A. Since July 13.

Q. So roughly two ...


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