Appeal from the Circuit Court of Christian County. No. 97-CF-243A Honorable Ronald D. Spears, Judge, presiding.
The opinion of the court was delivered by: Justice Welch
On December 4, 1997, defendant Darryl G. Morgason and George Anthony were charged with two counts of first-degree murder (720 ILCS 5/9-1(a)(1), (2) (West 1996)) and one count of conspiracy to commit murder (720 ILCS 5/8-2(a) (West 1996)). The conspiracy count charged defendant and Anthony with agreeing to murder Doug Lykins and with performing an act in furtherance of that agreement. According to the parties at oral argument, the State entered a nolle prosequi as to the charges against Anthony.
On April 8, 1998, following a seven-day jury trial in Christian County, defendant was found guilty of the conspiracy charge. The jury acquitted defendant of the first-degree murder charges. The circuit court of Christian County entered judgment on the verdict and sentenced defendant to 14 years in the Illinois Department of Corrections. Defendant now appeals.
On appeal, defendant raises the following three issues: (1) whether the State presented sufficient evidence to prove defendant guilty of conspiracy to commit murder beyond a reasonable doubt, (2) whether the trial court erred in permitting the State's cross-examination of Josh Jones to exceed the scope of direct examination, and (3) whether the trial court erred when it admitted portions of Lovie Morgason's tape-recorded statement as substantive evidence. As we believe the trial court committed reversible error in admitting portions of Lovie Morgason's tape-recorded statement as substantive evidence, we reverse the judgment of the trial court and remand this case for a new trial.
During trial, the State's evidence and arguments were primarily directed toward the first-degree murder charges. Consequently, much of the evidence introduced during the seven-day trial had little bearing on the conspiracy charge. However, as defendant was acquitted of the murder charges, we shall not concern ourselves with that evidence but focus primarily on the evidence that pertains to the conspiracy. That evidence, when examined in the light most favorable to the prosecution (People v. Campell, 146 Ill. 2d 363, 374 (1992)), is as follows.
During the evening of September 4, 1996, defendant and Anthony went to Butch Shelton's home. Shelton testified that he had known defendant for many years. Also present at Shelton's home that evening were Jo Jo Tremain, a friend of Shelton's, and Doug Lykins, the victim. Although other people were also present at the house, their presence is not relevant to this appeal.
The topic of conversation at the house that evening pertained to drugs. In addition, several people at the house were drinking alcohol and/or using drugs. Shelton testified that at one point during the evening, he overheard Lykins conversing with defendant about pictures that were shown to Lykins by a drug enforcement agent while Lykins was in a jail in Effingham. According to Shelton, Lykins told defendant that one of the pictures he was shown was that of defendant. Shelton testified that Lykins told defendant that he told the agent that he knew defendant but did not associate with him.
Shelton testified that the party began to break up around 11 p.m. Shelton heard defendant ask if anybody wanted to go to the lake to drink. Defendant, Anthony, and Lykins left Shelton's house together. Shelton testified that after they left, he fell asleep on the couch. Shelton claims that about three hours later, he was awakened by a knocking on the back door of his home. Shelton got up and answered the door, and standing there were defendant and Anthony. Defendant and Anthony walked inside Shelton's home, and defendant stated, "You don't have to worry about him no more." Shelton responded that he did not want to hear it, and he asked defendant and Anthony to leave. Lykins was never seen alive again.
Gene Boston, the uncle of defendant's ex-wife, testified that around 4:30 in the morning on September 5, 1996, defendant came to his house. Boston testified that defendant came inside, sat on his couch, and said that he had killed someone. Boston claimed that defendant told him that if Boston told anybody, he would be next in line.
Joss Jones, defendant's nephew, testified that sometime in early September 1996, defendant and Anthony came to his home during the early morning hours. Jones did not remember the exact date, but he testified that when defendant arrived, defendant stated, "I did it."
Other evidence introduced by the State includes a tape-recorded statement made by defendant's ex-wife, Lovie Morgason. The State played portions of the statement as substantive evidence to the jury. In this tape-recorded statement, which was made on June 5, 1997, during an interview Lovie had with the police, Lovie claims that defendant told her that he had knowledge of who killed Lykins. Her statement claimed that defendant told her that he and Anthony and Shelton were involved in the murder. Finally, her statement claimed that defendant told her that Anthony did not kill Lykins but that Anthony beat up Lykins and was present when defendant held Lykins underwater. During her testimony at trial, Lovie admitted making this tape-recorded statement but testified that the statement was untrue. She testified that she made up the contents because she felt she was being implicated for something she had not done. At trial, Lovie testified that defendant never told her who killed Lykins.
Defendant testified on his own behalf. He admitted that he had been at the lake on the evening of September 4, 1996. However, defendant claims that by the time he had arrived at the lake, Lykins had already been killed.
According to defendant, he, Anthony, and Lykins left Shelton's house about 10:30 p.m. and drove around town for about an hour. Then, defendant dropped Anthony off at home and returned to Shelton's house with Lykins. Defendant stated that when they returned to Shelton's house, they saw Tremain driving up and down the street on a four-wheeler. Defendant testified that Shelton owed him about $1,700 for drugs and that Shelton offered to give defendant two stolen four-wheelers and a jet ski for the satisfaction of his debt. Defendant testified that he and Shelton agreed to hide the four-wheelers and the jet ski at defendant's lake lot. Defendant testified that he loaded one of the four-wheelers into his van and attached the jet ski to his van and then drove to the lake lot. Defendant testified that he ...