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People v. McCoy

Court of Appeals of Illinois, First District, Fourth Division

September 15, 2016

CARL McCOY, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 09 CR 613 The Honorable Diane Gordon Cannon, Judge presiding.

          JUSTICE BURKE delivered the judgment of the court, with opinion.[*] Justice Lampkin concurred in the judgment and opinion. Justice Gordon specially concurred, with opinion.


          BURKE, JUSTICE

         ¶ 1 Following a jury trial, defendant, Carl McCoy, was convicted of the first degree murder of Woodrow Culverson and sentenced to 50 years in prison. He appeals, arguing (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the State committed reversible error by asking during cross-examination whether he threatened to kill Culverson's family if Culverson told police that defendant shot him, where the State had no basis to ask that question and there existed no possibility of proving up that accusation; (3) the trial court should have admitted statements Culverson made to a paramedic on the scene as either dying declarations or excited utterances; and (4) the court erred by allowing the State to use defendant's prior attempted first degree murder conviction for impeachment purposes. We agree with defendant that the State's improper accusation during cross-examination and the admission of defendant's prior attempted murder conviction were reversible errors. Because we find the evidence was sufficient to sustain defendant's conviction such that retrial would not violate the double-jeopardy clause, we reverse and remand for a new trial.

         ¶ 2 I. BACKGROUND

         ¶ 3 A. Pretrial

         ¶ 4 In December 2008, a grand jury returned an indictment charging defendant with, inter alia, the first degree murder of Culverson.

         ¶ 5 Prior to trial, defendant filed a motion in limine seeking to admit statements that Culverson made to Chicago fire department paramedic Heather Spalliero as dying declarations or statements made for the purpose of medical diagnosis or treatment. Defendant's motion alleged that Spalliero treated Culverson at the accident scene and when she asked Culverson if he had been shot, he said no. She then asked if the driver shot him, and Culverson said no.

         ¶ 6 At an initial hearing on the motion, defense counsel explained that case law regarding dying declarations established that "[i]f the declarant believes that they are in dire health about to die and they make a statement, the truthfulness of the statement is such it should come in under [the] hearsay exception." The trial court responded as follows, "I understand. In this case we have the opposite. Not only did he not think he was shot, what makes you think that he felt he was going to die if he didn't even admit that he was shot?" Counsel acknowledged that Culverson's apparently incorrect response to the first question posed "a bit of a problem." However, counsel posited Culverson could have believed he was dying based not only on the shooting but also on the fact that he was in a bad car accident. The court initially denied defendant's motion. However, defense counsel asked the court to reserve its rulings for counsel to bring emergency medical technician (EMT) Spalliero to court to testify, and the court agreed.

         ¶ 7 At a later hearing, Spalliero testified that she came into contact with a car accident on 6440 South Martin Luther King Drive on August 30, 2008. She did not have an independent recollection of her encounter, but she reviewed her report before testifying. In her report, Spalliero indicated that Culverson was alert and oriented to person when she came into contact with him. Her report indicated that Culverson had gunshot wounds in his lower abdomen. His breathing became labored, and he complained that he could not breathe. Spalliero asked Culverson whether he had been shot, and he said no.[1] Spalliero administered cardiopulmonary resuscitation (CPR), and Culverson lost consciousness about 11 minutes after Spalliero came into contact with him. The State asked Spalliero the following question: "And you never told Mr. Culverson that he was going to die soon, did you?" to which Spalliero responded, "There's no way I can know that for sure." Spalliero testified Culverson never told her that he thought he was going to die soon.

         ¶ 8 The trial court denied defendant's motion in limine, finding Culverson's statements did not fall into the dying declaration exception, as Culverson was alert and oriented and died after being placed in the ambulance. The court also found the statements did not fall into the excited utterance exception because Culverson made his statements in response to Spalliero's questions. Furthermore, the court stated, "the reliability [was] questioned" because Culverson had an obvious gunshot wound to his abdomen and was either unsure of the question or was unaware of the fact that he had been shot. The court stated it did "not believe that there is reliability, nor is there a situation where the statements were made to assist the police in their investigation of getting a known offender off the streets."

         ¶ 9 Also prior to trial, the State filed a motion to allow proof of defendant's prior attempted murder conviction, for which defendant received a 10-year prison sentence in 1999, for impeachment purposes. Defendant objected, arguing the jury should hear only that he was a convicted felon but not that his conviction was for attempted murder. Stating that it had weighed the probative value of the evidence versus its prejudicial effect, the court ruled that if defendant elected to testify, his conviction could be introduced as a conviction of attempted first degree murder.

         ¶ 10 B. Trial

         ¶ 11 In December 2012, defendant's jury trial commenced.

         ¶ 12 1. The State's Evidence

         ¶ 13 Linnetta Culverson testified that she and Culverson were married for seven years. Culverson owned a 2002 pearl white Park Avenue, which he loved. Linnetta, Culverson, and Culverson's sister, Laytunya, attended a party at a family member's home on August 30, 2008. Culverson "did a little drinking." The three left the party at around 8 p.m. in Culverson's Park Avenue. Culverson dropped Linnetta off first at their home at 5313 South Wallace Street. He then departed in his car at around 8:20 p.m. to take Latunya home. Linnetta thought Culverson intended to return home after dropping off Latunya. When asked whether she believed that Culverson was going to his brother's party after taking Latunya home, Linnetta said she "wasn't aware of it." Linnetta did not notice anything unusual about the way Culverson was acting or driving. She had never met defendant and did not know whether Culverson knew defendant.

         ¶ 14 Latunya Culverson testified that Culverson dropped her off at her home at 827 East Bowen Avenue at around 9 p.m. on August 30, 2008. After walking Latunya inside and talking to Latunya's son, Antione, Culverson departed. Latunya believed that Culverson was planning on going to his brother's home afterward. When asked where Culverson's brother lived, Latunya responded, "62nd-I am not quite sure. I don't know the direct address, but I know it is on Normal." Latunya did not know whether Culverson knew defendant or ever let defendant drive his car.

         ¶ 15 Antione Thompson, Latunya's son, likewise testified that he did not know whether Culverson knew defendant or ever gave him permission to drive his car. Culverson drove Latunya home on August 30, spoke to Antione, then departed. Thompson believed Culverson was going to his brother's house.

         ¶ 16 Patience Mays testified that she was driving near 67th Street and Martin Luther King Drive at around 9:25 p.m. on August 30, 2008. From her rearview mirror, she saw a car run into a pole. The car had previously tried to pass her as she was driving along Martin Luther King Drive.

         ¶ 17 Mays made a U-turn and pulled up to the side of the car. Inside, she saw two men. One was sitting in the passenger's seat and the other was getting out of the driver's seat. The two men appeared to be conversing because their hands were moving as if they were talking. Mays did not hear the driver or the passenger screaming.

         ¶ 18 Mays asked the driver of the car whether he was okay, and he started retrieving items out of the car, like a jacket and a bottle. Mays did not see him grab or throw a gun. She also did not see if anything was tucked into his waistband or if he had anything in the jacket he grabbed. The driver threw the bottle and told Mays that he was okay. Mays offered to call somebody. The driver instructed her not to call the police but to call the paramedics. Thereafter, the driver "took off running" toward a viaduct. The passenger of the car never screamed for help, and the driver never instructed Mays to tell the paramedics that the passenger had been shot.

         ¶ 19 After the driver ran away, Mays pulled over to the other side of the street and called 911. Mays drove away when the fire department arrived. She did not speak to the paramedics or police before leaving the scene.

         ¶ 20 The parties stipulated that if called to testify, deputy medical examiner Dr. Valerie Arangelovich would testify that she performed an autopsy on Culverson on August 31, 2008. She would testify that she observed two gunshot entrance wounds on the lower left side of his abdomen. She would opine that Culverson died of multiple gunshot wounds and that his manner of death was homicide. There was no evidence of close range firing with respect to either entrance wound. She would also note that Culverson had a laceration on the palm of his right hand.

         ¶ 21 Chicago police officer Joseph Bokuniewicz testified that he and his partner, Officer Adamski, received a call to go to the area of 6640 South Martin Luther King Drive at around 9:30 p.m. At the scene, Bokuniewicz observed a light-colored Buick Park Avenue crashed into a light pole. Both air bags were deployed and blood was on the seats. No one was in the vehicle by the time Bokuniewicz arrived.

         ¶ 22 Forensic investigator David Ryan testified that he arrived at the scene at around 11:30 p.m. He noticed a 2002 Buick Park Avenue that had struck a light pole. Ryan conducted a walk- through of the scene, looking for firearm evidence or other physical evidence. Ryan's partner also videotaped and photographed the scene.

         ¶ 23 Ryan testified that he and his partner recovered the deployed air bags from the driver's side and passenger's side. Ryan explained that skin cells can be obtained from deployed air bags. Ryan observed blood on the front passenger's seat cushion, the front driver's seat cushion, and the inside of the front passenger door panel. His partner swabbed the steering wheel and swabbed the blood from the seat cushions and interior front door panel. The two officers also processed the car for fingerprints. They did not conduct gunshot residue (GSR) testing because, after speaking with the detectives, there was no indication that any areas should be tested for GSR. Ryan would not expect to find GSR inside the car if a gun were fired from outside the vehicle. The officers also did not conduct GSR testing on Culverson's hands. Ryan did not recover any cartridge casings or bullet fragments in the car. If a semiautomatic weapon or a gun with a clip were fired inside the car, Ryan would expect to see a casing unless the gun became jammed during firing.

         ¶ 24 Melissa Nally, a forensic scientist with the Illinois State Police crime lab and firearm identification expert, testified that she examined the bullet retrieved from Culverson's body. The bullet was consistent with having been fired from a semiautomatic pistol.

         ¶ 25 Debra McGary, a forensic scientist with the Illinois State Police forensic science center and expert in the field of fingerprint identification, testified that only some of the latent prints she received were suitable for comparison. Those impressions were not made by defendant.

         ¶ 26 Debra Klebacha, a forensic scientist at the Illinois State Police forensic science center and expert in the area of forensic biology, testified that she swabbed the driver's side air bag and preserved it for deoxyribonucleic acid (DNA) analysis. The parties stipulated that Ron Ryan, an investigator with the Cook County State's Attorney's office, would testify that he obtained defendant's DNA sample through a buccal swab. The parties further stipulated that Janice Youngsteadt, a forensic scientist in the forensic biology DNA section of the Illinois State Police, forensic sciences command who would be qualified as an expert in the field of forensic DNA analysis, would state that she compared defendant's buccal swab to the DNA extracted from the driver's side air bag and defendant could not be excluded from having contributed to the DNA sample found on the air bag. Katrina Gomez of the Illinois State Police forensic science center, an expert in the area of DNA analysis, also testified that she compared the DNA data from the air bag to defendant's DNA data and determined defendant could not be excluded as having contributed to the major human DNA profile on the air bag.

         ¶ 27 Detective Brian Forberg testified that he and Detective James Butler were assigned to investigate Culverson's homicide on August 30, 2008. On September 1, 2008, Forberg and his partner, Detective Kevin Eberle, drove the various routes that Culverson could have taken from his sister's home at 827 East Bowman to the accident site. Each route took the officers approximately 20 to 25 minutes to drive. Forberg also reviewed the footage of seven to nine police observation device (POD) cameras along routes that Culverson could have taken from his sister's home to the accident location from between 9 and 9:30 p.m. He did not see Culverson's car on any of the cameras. However, Forberg testified that the cameras rotate, and thus, they cannot catch every portion of the street at a particular time.

         ¶ 28 On September 2, 2008, Mays provided Forberg with a physical description of the driver of the car. On September 26, 2008, Katrina Gomez told Forberg that she had obtained defendant's DNA profile from the air bag. Thereafter, Forberg obtained a picture of defendant, which he showed to Culverson's family members. None of them knew defendant.

         ¶ 29 Forberg testified that he and Eberle interviewed Mays and showed her a photo array on November 13, 2008. The photo array included defendant's photograph. Mays "tentatively identified" defendant but told Forberg and Eberle that she would feel more comfortable viewing defendant in a lineup. Mays viewed a lineup on November 21, 2008, and identified defendant as the person she saw exiting the driver's side of Culverson's car.

         ¶ 30 Forberg testified that he interviewed defendant on November 26, 2008. The State entered into evidence a video of Forberg's interview with defendant and published it for the jury. Defendant denied knowing Culverson. When Forberg showed defendant a picture of a car that was the same year, make, and model of Culverson's car, defendant denied ever being in the car.

         ¶ 31 Forberg acknowledged that he did not know the location or exact time of the shooting. He also did not know whether Culverson was shot inside or outside of his car. Forberg's "operating belief, " however, was that Culverson was inside the car when he was shot. He also believed the shooter was not in the car when the shot was fired. If the shooter had been inside the car, Forberg would have expected to find evidence of close range firing on Culverson's body or his clothes. In addition, the nature of Culverson's injuries along the left side of his abdomen indicated that Culverson was in a position that Forberg thought was consistent with the blood smears as well as "trying to move away from the shooter." As to the time of the shooting, Forberg explained that he knew Culverson was shot sometime between 9 and 9:30 p.m., based on what Culverson's family had told him.

         ¶ 32 2. Defendant's Evidence

         ¶ 33 The parties stipulated that if called to testify, Spalliero would testify that she responded to an accident at approximately 9:30 p.m. on August 30, 2008, and that when she first approached Culverson, she administered treatment, and Culverson was conscious during that treatment.

         ¶ 34 Defendant testified that he was drinking with some friends near 47th Street and Vincennes Avenue during the late afternoon or early evening hours of August 30, 2008. They were drinking and hanging out for about an hour and a half or two hours at the home of Josh, whose last name defendant did not know. The other two friends were named Izo and Big Pawn; defendant did not know Izo's last name and only knew Big Pawn by his nickname.

         ¶ 35 Defendant testified that he started walking to the train station on 47th Street between Calumet Avenue and Prairie Avenue at around 8:40 or 9 p.m. to go to a reggae club at 66th Street and State Street. When he got off the train at 63rd Street and Vernon Avenue, he went to a liquor store and purchased a 22-ounce container of Budweiser and a half pint of Remy Martin.

         ¶ 36 Defendant further testified that as he walked south on Vernon Avenue toward 66th Street, he encountered Culverson, who was leaning against his car with the driver's side door open. Defendant did not know Culverson prior to August 30, 2008. The car, which was running, was on Vernon Avenue, at the northwest corner of Vernon Avenue and 64th Street. Culverson was sweating and moaning. Defendant asked Culverson, "man, you good, you cool?" Culverson did not respond. Defendant saw that Culverson was bleeding on his left side. Defendant helped Culverson into the passenger's side of the car by walking him around the front of the car. He did not ask Culverson any questions. Defendant then grabbed the bottle he had placed on the top of the car and set it on the armrest. The bottle eventually fell into the back seat, and beer spilled out onto the seat.

         ¶ 37 Defendant testified that he started to drive, making a right onto 64th Street and then a left onto Martin Luther King Drive. Defendant intended to take Culverson to St. Bernard Hospital at 63rd Street or 64th Street and Wells Street. During the drive, he did not ask Culverson if he was okay or what happened. While driving south toward 67th Street, defendant tried to get around a car that was moving slowly. He turned the wheel, lost control, and the car "[h]opped the curb" and "hit the pole." The air bags deployed, and defendant started to get out of the car. After getting out of the car, defendant heard Culverson moaning. He told him to "[b]e cool." Defendant started grabbing the bottles to get out of the car, and Mays pulled up alongside the car. She asked if she could call somebody, and defendant said "don't call the police, call the paramedics." Thereafter, he grabbed the bottles from the car and "got up out of there." Defendant explained that he "didn't want to get caught up with it, get blamed for it" and did not want "to deal with the police." He acknowledged that he had a prior attempted murder conviction.

         ¶ 38 Defendant testified that he started running up 67th Street to a reggae club at 66th Street and State Street. The next day, he conducted an Internet search and saw on a news website that Culverson had died. He later drove by the scene and saw Culverson's family setting out balloons.

         ¶ 39 When asked whether he called 911, defendant responded that he did not have a phone. The State showed defendant a photograph that showed a phone on the driver's seat of the car at the scene of the accident. However, defendant said that phone could not have been in the seat because he was sitting on the seat. He did not see that phone or use it to call 911.

         ¶ 40 Defendant further testified that he lied and told the police that he did not know Culverson and did not recognize the car. He thought the police "were trying to be slick" and that while they were questioning him "they were trying to catch [him] up on something." Defendant said that before he went into the interview room, the detectives asked him whether he had a conscience and "stuff like that." The following colloquy ensued:

"[ASSISTANT STATE'S ATTORNEY]: So you were planning on taking this gunshot victim into the hospital, correct? [DEFENDANT]: Yes.
[ASSISTANT STATE'S ATTORNEY]: You weren't worried answering questions or being blamed for it at that point?
[DEFENDANT]: If he would have got help, he would be able to tell everyone it wasn't me. It would be a whole lot easier that way. Somebody dead, I am on my own.
[ASSISTANT STATE'S ATTORNEY]: He was still alive and conscious when you left him.
[DEFENDANT]: I didn't want to stick around and talk to the police?
[ASSISTANT STATE'S ATTORNEY]: Right. Because in fact, you are saying that you told him, you're saying you told him you'll be okay or stay cool or words to that effect, correct?
[ASSISTANT STATE'S ATTORNEY]: You actually told him that if he said anything you would kill his family, didn't you?

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