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The People of the State of Illinois v. Malcolm Toney

September 19, 2011


Appeal from the Circuit Court of Cook County. No. 2007 CR 20732 Honorable James B. Linn, Judge Presiding.

The opinion of the court was delivered by: Justice Rochford

JUSTICE ROCHFORD delivered the judgment of the court, with opinion.

Justice Lampkin concurred with the judgment of the court and the opinion Presiding Justice Hall dissented in part with the judgment of the court and the opinion.


¶ 1 Defendant, Malcolm Toney, was convicted of second-degree murder following a bench trial. Although defendant was a minor at the time of the offense, he was tried and sentenced as an adult to 18 years' imprisonment. On appeal, defendant asserts that: (1) the trial court improperly found a potential defense witness to be unavailable at trial on the basis of the witness's assertion of a right against self-incrimination; (2) the trial court incorrectly sentenced him as an adult; and (3) his sentence of 18 years' imprisonment was excessive. For the following reasons, we affirm.


¶ 3 In September of 2007, defendant was charged by indictment with six separate counts of first-degree murder. The charges generally alleged that on July 31, 2007, defendant shot and killed Clinton Washington (hereinafter the victim). A bench trial on the first two counts of first-degree murder was held in January of 2009.

¶ 4 The evidence at trial established that in July of 2007, defendant was 16 years old and lived on the west side of Chicago. Defendant testified that early in the evening of July 31, 2007, he and his friend Pierre Blackney walked to Douglas Park to attend a birthday party. He further testified that as the two walked to the park, Blackney asked defendant to hold a handgun because Blackney's pants were too tight for the weapon. Defendant agreed to hold the gun in his back pocket, and he testified that the gun was old and appeared to be missing some pieces near the trigger.

¶ 5 Defendant and Blackney joined the party, which was also attended by Sedale Cummings and Tiffany Thomas. A few hours later, the victim, DeShawn Hayes, Don Hicks, and Rasheed Thomas arrived at the park in the victim's car. Sometime during the week prior to the party, the 23-year-old victim had been "jumped" and beaten up. The victim and his three companions therefore drove to the park in an attempt to find those responsible.

¶ 6 When they arrived, the victim approached defendant and Blackney and confronted them about the previous incident. Blackney responded by punching the victim in the face, and a number of individual fights ensued involving the victim, defendant, Blackney, Cummings, Hayes, Hicks, and Thomas. No weapons were involved in any of these altercations.

¶ 7 Among these fights was one between the victim and Blackney. Hicks testified that, during this fight, the victim had Blackney "choked up" or "wrapped up in a bear hug." Defendant also testified that the victim was choking Blackney. Several witnesses testified that as the victim and Blackney were fighting, defendant was standing nearby. Defendant was yelling at the victim to let Blackney go, and at some point defendant produced a gun. Hicks testified that defendant indicated that he did not want to have to shoot the victim, and Thomas testified that she saw defendant strike the victim in the head twice with the gun. Ultimately, defendant shot the victim once in the back of the head. At trial, defendant testified that he only produced the gun because it appeared that the victim was going to choke Blackney to death and felt threatened himself. Defendant stated that he never intended to shoot the victim and that the gun simply went off when he hit the victim in the back of the head. After the shooting defendant ran away from the scene and discarded the gun, but he was arrested on September 4, 2007.

¶ 8 The victim was taken to the hospital, where he died on August 1, 2007. Dr. Tera Jones, an assistant medical examiner, testified that the victim died as a result of a single gunshot wound to the rear of his head. She also testified that evidence of a close-range shooting generally included soot and small scratches and abrasions near the gunshot wound. She found no such evidence in this case, but did acknowledge that any soot could have been washed away if the victim's wound was cleaned at the hospital. However, Dr. Jones indicated that any abrasions resulting from a close-range shooting would not have been cleaned away.

¶ 9 During the trial, defendant attempted to call Blackney -- who was present in court pursuant to a defense subpoena -- as a defense witness. However, after consulting with his own attorney, Blackney indicated that if called to testify he would assert his fifth amendment privilege against self-incrimination. The trial court therefore asked defense counsel about the questions he would seek to ask Blackney absent any such assertion of privilege. The following exchange then occurred:

"MR. STACH [defense counsel]: Judge, I would start with how tall are you and how much do you weigh.


MR. STACH: I would then ask him if he was the same height and approximately the same weight 18 months ago on July 31, 2007.

I would ask him on July 31, 2007, was he at a party in Douglas Park with his nephew, who was two years old. His nephew is by his half brother, Sedale Cummings; had he come to the party with his friend Malcolm Toney.

During the walk over to the party, did Pierre Blackney hand Malcom Toney a small caliber handgun and Malcolm Toney agreed to hold that small caliber handgun for him until the party was over.

I would ask Mr. Blackney where he got that gun and if he knew if that gun was capable of firing, if that gun had obvious defects to it which would make it possible for it to fire even if the trigger or the hammer was not pulled or the hammer fell; if Mr. Blackney saw a defect in the trigger mechanism.

I would ask Mr. Blackney if while he was at that party he was approached by a man who was much taller than him, much heavier than him, was in fear for his safety and in defense of himself because he thought he was about to get hit struck the first blow to the much bigger, much taller, much heavier, much older man; that during the course of the fight that much older, bigger, taller man, [the victim], got Mr. Blackney in a severe disadvantage and that Mr. Blackney was in fear for his own life and at that point his friend, Malcolm Toney, came to his aid by hitting [the victim] with the gun and while he was being hit -- while [the victim] was being hit with the weapon did the weapon discharge and kill [the victim].

THE COURT: Any reason he shouldn't be allowed to take the Fifth Amendment on those questions about him bringing a gun to this incident that you can tell me?

MR. STACH: I think he has a legitimate Fifth Amendment right--


MR. STACH: -- based upon my investigation of this case and speaking to witnesses. THE COURT: Just trying to make a record here.

The fact is I have already heard that this man was present at the scene. I am understanding now the questions you wanted to elicit from him under oath.

I cannot find any reason that a Fifth Amendment privilege ought not to be recognized, so he will not be available to you as a Defense witness."

¶ 10 After both sides rested, the trial court heard closing arguments. The State argued that defendant intentionally shot the victim in the back of the head and had no reasonably justifiable reason for doing so. The State therefore asked the trial court to find defendant guilty of first-degree murder. Defense counsel argued that the evidence established that defendant did not want to kill the victim and the victim was only shot as defendant was trying to protect his friend Blackney. Therefore, defense counsel asked the trial court to find defendant not guilty of first-degree murder.

¶ 11 The trial court found that defendant was very young and very immature, but he was also the only person involved in this incident with a gun. The trial court did not find credible defendant's testimony about receiving the gun from Blackney or his assertion that the gun accidentally fired as he was using it to bludgeon the victim. Nevertheless, the trial court did find that defendant had a belief -- albeit an unreasonable one -- that he needed to shoot the victim in order to protect Blackney. The trial court therefore found defendant guilty of second-degree murder.

¶ 12 Following defendant's conviction, defendant filed an unsuccessful posttrial motion for a new trial. The State in turn filed a motion to have him sentenced as an adult. Defendant objected, and a hearing on the matter was conducted. The trial court determined that defendant should be sentenced as an adult, and following a hearing, sentenced defendant to 18 years' imprisonment. A motion to reconsider that sentence was denied, and defendant has now appealed.


¶ 14 As noted above, defendant raises three separate issues on appeal. We address each of these issues in turn.

¶ 15 A. Witness Availability

ΒΆ 16 Defendant first asserts that he is entitled to a new trial because the trial court improperly found Blackney to be completely unavailable as a defense witness due to an assertion of his right against self-incrimination. As an initial matter we note -- and defendant concedes -- that any challenge to this ruling has been waived as it was not objected to at trial and was not included in defendant's posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186 (1988) (both a trial objection and a written posttrial motion raising the issue are required to preserve an issue for appellate review). Defendant therefore requests that we review this issue for plain error or, alternatively, find that his trial counsel provided ...

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