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02/28/97 PEOPLE STATE ILLINOIS v. MICHAEL BARTON

February 28, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL BARTON, DEFENDANT-APPELLANT.



Appeal from the Circuit of St. Clair County. No. 93-CF-380. Honorable James K. Donovan, Judge, presiding.

The Honorable Justice Goldenhersh delivered the opinion of the court. Maag and Hopkins, JJ., concur.

The opinion of the court was delivered by: Goldenhersh

JUSTICE GOLDENHERSH delivered the opinion of the court:

After a jury trial defendant, Michael Barton, was found guilty of first-degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(1) (now 720 ILCS 5/9-1(a)(1) (West 1994)) and sentenced to 60 years in the Department of Corrections. In this cause, defendant contends that (1) he was denied a fair trial due to ineffective assistance of counsel because his counsel recognized that the testimony of three crucial witnesses against defendant was obtained by improper coercion and duress and yet defense counsel failed to object to the use of such testimony, and (2) he was denied a fair trial due to the State's improper use of a prior inconsistent statement by witness Francell McGuire as substantive evidence. We reverse and remand for a new trial.

I

Defendant was charged with the first-degree murder of the victim, Terri Hammond, who died as the result of a gunshot wound. The first trial ended in a hung jury. Prior to the start of the second trial, defense counsel presented an oral motion in limine to prohibit the State from introducing a statement by Francell McGuire, defendant's ex-girlfriend, with whom he had three children, as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10.1 (West 1992)). Defendant's motion was granted.

At the first trial, McGuire testified that defendant was with her the entire evening of April 17, 1993, the date the victim was murdered, and that defendant never told her about a shooting that occurred on that date. The State confronted McGuire with her April 21, 1993, statement in which she implicated defendant by telling police that defendant told her a white woman at a trailer had fired a shot at him and he had fired a shot back. McGuire denied ever making such a statement. McGuire explained that when she was initially questioned by police at 4 a.m. on April 21, 1993, she told police that defendant was with her the entire evening of April 17, 1993. McGuire testified that the statement implicating defendant was given later in the day, but that she never told the investigating officer anything to implicate defendant--the officer just wrote it down, and she signed it. McGuire also admitted making some corrections to the written document. McGuire was subpoenaed by the State for the second trial but failed to appear, and the trial court declared McGuire unavailable. Over defendant's objection, McGuire's testimony from the first trial was read into evidence.

Curtis McCall, one of the investigating officers, testified that he interviewed Francell McGuire at the sheriff's department at approximately noon on April 21, 1993. McCall told McGuire that he knew that her statement given earlier in the day was untrue. According to McCall, McGuire then gave a statement implicating defendant. When McGuire provided the statement, she was released. McCall admitted that McGuire had been arrested, placed in handcuffs, and taken to jail overnight, even though there were no charges pending against her. McGuire was taken to the jail to answer questions concerning defendant. McCall also admitted that this same procedure of taking a witness to jail for questioning was repeated with approximately 15 to 20 other potential witnesses.

In addition to McGuire's testimony, defendant also complains about the testimony of two additional witnesses for the State, Quinton Billups and Mario Haynes. Billups and Haynes both implicated defendant in the murder of the victim. Both testified that they were with defendant on the evening of the shooting, and both testified that defendant admitted to shooting the victim. Billups specifically testified that on April 17, 1993, he was at William Rush's house with defendant, Mario Haynes, and Marcus Rush. Billups, Marcus Rush, and defendant left in defendant's automobile to purchase marijuana. Billups testified that the muffler on defendant's vehicle was "loud." According to Billups, they could not come up with enough money to make a purchase, so they went back to William Rush's house. Billups then stated that between 8:30 p.m. and 9 p.m., the trio again left to try to obtain marijuana at a trailer located between Centreville and Cahokia. Defendant pulled up in the driveway and went to the front of the trailer. Rush got out and went to the front of the vehicle. Billups remained inside the car and could not see what defendant was doing. Billups testified that he heard a gunshot and got out of the car and ran. Defendant then directed Billups to get back in the car. Billups asked defendant "What happened?" and defendant told him that a white woman tried to shoot him. Defendant then drove to a liquor store and examined himself to see if he was shot. Billups also testified that after defendant was arrested, defendant called him from jail wanting to know if Billups implicated him. Billups testified, "[Defendant wanted me to] put someone else in his place, saying that somebody paid me to say that he was there." Defendant called Billups from jail on other dates, but Billups stopped accepting the calls.

On cross-examination, Billups testified that he was taken into custody on April 20, 1993, and was told that he was being held for investigation of a homicide. Billups admitted making numerous statements about the incident. When first questioned by police officers, Billups denied having any knowledge of the victim's murder. After that statement, Billups was taken to a cell. On April 21, 1993, Billups was again questioned by police and again denied any knowledge of the shooting. Billups was again placed in a holdover cell. On April 22, 1993, Billups was once again questioned about the victim's murder. According to Billups, once he gave a statement implicating defendant, he was released from jail. Billups was not charged with any offense in conjunction with the shooting.

Mario Haynes testified that on April 17, 1993, he saw defendant, Billups, and Marcus Rush at William Rush's house, at which time Billups was discussing a burglary. Haynes testified that Marcus Rush is his brother, and that William Rush is now deceased. Haynes did not hear anyone discussing a marijuana purchase. Haynes testified that he heard Billups say that Billups knew of a house in Cahokia that they could "hit," and that he heard defendant say he was ready. Defendant, Billups, and Marcus Rush then left. Later that evening, Haynes again saw defendant at William Rush's house. Haynes could not remember what defendant said at that time, but he acknowledged that he told the police in his statement that he heard defendant tell William Rush that defendant went to a drug house and that a white female came to the door with a gun. Haynes testified that when the woman saw defendant, she tried to shut the door, but defendant stuck his foot inside before she could shut the door, and defendant shot her. Haynes also admitted that during his testimony in the first trial he testified that defendant told him that he thought the victim fired a shot.

On cross-examination, Haynes explained that one night in April 1993, police officers came to his house, placed him in handcuffs, and took him to jail. According to Haynes, he suffered a seizure earlier that day and was ill. The officers insisted that Haynes was Marcus Rush, who was with defendant at the time of the shooting. Haynes repeatedly told officers that he was not Rush, but they did not believe him and took him to jail. Haynes testified that he could not remember how long he was in the jail, and that he was not allowed to call anyone. Haynes admitted that he gave a statement implicating defendant, but he testified that a police officer wrote the statement, he signed it, and he could not read the contents of that statement. Haynes explained that he only attended school until the tenth grade and was in special education classes. Soon after Haynes made the statement, he was released from jail. Haynes stated that he has a difficult time remembering things because of the seizures he suffers. Haynes did remember that the muffler on defendant's car was loud.

Belinda Burnine also testified for the State. She was at the victim's trailer at the time of the shooting. She heard a "car with a loud sound" pull up in the driveway. Burnine testified that the victim, armed with a gun, went to the door and opened it. Burnine could not see who was at the door, due to her position on the couch. She just heard a man ask if the victim's boyfriend was home. The man attempted to open the door, and the victim tried to shut it. As Burnine got up to assist the victim, she heard a gunshot and saw that the victim had been shot. Burnine ran out of the back door of the trailer and saw someone getting into a car parked in the driveway, but she could not identify that person. Burnine testified that the victim and her boyfriend sold marijuana out of the trailer.

Michael Cadman, a deputy United States marshall, testified that he arrested defendant in Chicago on the instant offense on September 28, 1993, at approximately 8:30 a.m. At that time, defendant was with Francell McGuire and two small children at his brother's apartment. Defendant later told Cadman that when he found out he was wanted for ...


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