Court of Appeals of Illinois, First District, Fourth Division
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
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. 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
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
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
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
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?
[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
[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,
[ASSISTANT STATE'S ATTORNEY]: You actually told him that
if he said anything you would kill his family, didn't
[DEFENSE COUNSEL]: ...