Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. French

Court of Appeals of Illinois, First District, Fifth Division

March 10, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
MARCELLUS FRENCH, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County. No. 11 CR 3147 The Honorable Mary Margaret Brosnahan, Judge Presiding.

          JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Presiding Justice Gordon and Justice Reyes concurred in the judgment and opinion.

          OPINION

          LAMPKIN JUSTICE

         ¶ 1 Defendant Marcellus French was found guilty by a jury of first degree murder, with a finding that he personally discharged a firearm, and aggravated battery with a firearm. He was sentenced to prison terms of 55 years and 15 years, respectively, to be served consecutively. ¶ 2 On appeal, he contends (1) the trial court abused its discretion by admitting hearsay and allowing the State to refer to it as substantive evidence during closing argument, and this constituted plain error because the evidence was closely balanced, (2) trial counsel rendered ineffective assistance by failing to object to certain statements by witnesses on the basis of lack of foundation, (3) the trial court's preliminary inquiry into defendant's pro se posttrial claims of ineffective counsel was an adversarial proceeding and violated due process, and (4) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant's claims of ineffective trial counsel.

         ¶ 3 For the reasons that follow, we affirm the judgment of the circuit court.

         ¶ 4 I. BACKGROUND

         ¶ 5 This case arose from the drive-by shooting that occurred on the evening of Thursday, August 19, 2010. Gunshots fired from a car struck and killed Roger Kizer and struck Estavion Thompson, who survived the attack. Eyewitnesses identified defendant Marcellus French as the shooter and codefendant Bodey Cook as the driver. Defendant was arrested January 20, 2011, and Cook was arrested February 16, 2011. A joint jury trial was held in 2013.

         ¶ 6 At the trial, the State's evidence showed that, at about 11 p.m. on the date of the offense, the victims Kizer and Thompson were outside near 7450 South Kenwood Avenue in Chicago. Kizer's family lived on that block. Kizer and Thompson were either sitting on the back of a friend's parked car or standing by the car in the street. Several other people were also outside, including Andre Stackhouse, Shevely McWoodson, and Sherman Johnson. People were drinking alcohol. The street was residential and illuminated by streetlights.

         ¶ 7 Thompson had "only a cup" of alcohol and could not recall whether people were smoking or selling marijuana. Thompson saw Cook drive a small greenish turquoise Cavalier down the street past Thompson's group and stop at a stop sign. Cook was alone in the car. Thompson had known Cook from the area for about three years. About 15 minutes later, Cook, who was still alone, drove toward Thompson's group a second time. Kizer tried unsuccessfully to wave or "flag [Cook] down." Kizer told Thompson he wanted to talk to Cook about "what was going on between" Cook and Kizer's family. About 10 minutes later, Cook drove toward the group a third time but Thompson did not see him approach because Thompson's back was facing Cook's car. Thompson heard gunshots and saw Kizer fall. Thompson tried to run but fell and could not get back up. He crawled to the grass by the sidewalk side of the parked car. He was shot in his legs, chest, and stomach. As he lay on the grass, he saw that Cook drove the car and the shooter in the passenger seat was a light-skinned male wearing a red hat. The police, however, did not recall Thompson giving that description of the shooter. Thompson also testified that the shooter yelled "bi*** something" as the car drove away. Kizer died at the scene from a gunshot wound to his chest, and Thompson was taken to the hospital.

         ¶ 8 Thompson spoke with detectives at the hospital the next day and identified Cook as the driver from a photo array. At that time, Thompson did not know Cook's full name. Two days later on August 22, Thompson viewed a black and white photo array that included defendant's photo, but Thompson did not identify anyone as the shooter from that array. At that time, Thompson knew defendant's name but not his full name. At the trial, Thompson said defendant at the time of the shooting "looked totally different" from his black and white picture in the photo array. Thompson could not remember whether he told the police on August 22 that defendant was the shooter. On January 20, 2011, Thompson went to the police station and identified defendant, whom Thompson knew "from around the same area, " out of a four-person lineup as the shooter. Witnesses Stackhouse, McWoodson, and Johnson were also at the police station, but they were not present when Thompson viewed the lineup. In February 2011, Thompson identified Cook from a lineup as the driver. Thompson also identified defendant and Cook in court as the offenders.

         ¶ 9 Thompson testified that no one made him any promises in exchange for his testimony. At the time of the trial, he had a pending misdemeanor marijuana charge and prior felony convictions in 2005 for resisting a police officer and aggravated battery of a police officer and in 2004 for aggravated unlawful use of a weapon. When Thompson testified before the grand jury on February 16, 2011, he said he was under the influence when he had spoken with an assistant State's Attorney (ASA) in January 2011; however, at the trial Thompson denied being under the influence at the time of that conversation.

         ¶ 10 Andre Stackhouse was on parole at the time of the trial, failed to appear on the date specified by a subpoena, and was arrested and testified the next day. He had known both defendant and Cook since they were in preschool. Stackhouse had been drinking Tequila on the night of the shooting. He was standing a couple of houses away from the Kizer home and talking with two girls when he saw Cook drive by in a greenish blue car alone. Not long thereafter, Stackhouse saw Cook drive east on 74th Street and then south on Kenwood Avenue. Defendant was in the passenger seat and half of his body was hanging out the window. He had a gun in his hand. Stackhouse did not see anyone in the car wearing a hat. Stackhouse moved into a gangway and heard several gunshots but did not look toward the shooting. After the shooting, he went to Kizer and Thompson and saw that they were shot. Sherman Johnson had a gunshot hole in his hat. Stackhouse left the scene and did not talk to the police that night.

         ¶ 11 On August 24, 2010, Stackhouse was arrested for a gun offense. He spoke with detectives on August 26 about the August 19 shooting. From photographs, Stackhouse identified Cook as the driver and defendant as the shooter. Stackhouse also identified defendant and Cook as the offenders in the lineups conducted in January and February of 2011 and again at the trial. Stackhouse did not receive any promises concerning his gun offense or his probation violation in exchange for his testimony. He faced a possible prison sentence of 3 to 7 years for the gun offense and received the minimum sentence of 3 years. He had convictions in 2011 for aggravated unlawful use of a weapon and in 2009 for possession of a stolen motor vehicle. When a defense investigator came to the Stackhouse home in June of 2012, Stackhouse's mother told the investigator to leave, and Stackhouse did not discuss the shooting with him. ¶ 12 Shevely McWoodson was Kizer's uncle. At the trial, McWoodson testified he had known Cook and defendant a few months prior to the shooting by seeing them on the street a few times. However, McWoodson previously told the grand jury that he had known defendant for about three years. At the time of the offense, McWoodson was with Kizer and a group of other people on south Kenwood Avenue talking. McWoodson saw Cook drive by once in a small car alone. Then McWoodson walked to his house a couple of houses away from the group to use the restroom. When he was near the gate of his house, he saw Cook drive by again with defendant in the passenger seat. McWoodson saw defendant lean out the window, fire a gun, and shoot Kizer. McWoodson heard three gunshots and saw the gun emit flames when it was fired. He did not speak with police that night.

         ¶ 13 In January 2011, McWoodson went to the police station and identified Cook from a photo array as the driver and defendant from a lineup as the shooter. At trial, McWoodson testified he "pointed [defendant] out" before he asked the police to have everyone in the lineup smile. McWoodson knew defendant had a chipped tooth, which was visible when defendant smiled. However, according to McWoodson's grand jury testimony, he "knew" it was defendant but was not "sure, " so he asked the detective to make the lineup participants smile and then saw defendant's chipped tooth and said, "That is him." At a second lineup in February 2011, McWoodson identified Cook as the driver, but McWoodson did not recall returning to the police station to view that second lineup. McWoodson either did not understand what a grand jury was or did not remember testifying before the grand jury in February 2011.

         ¶ 14 Sherman Johnson was Thompson's cousin. Johnson had known Cook and defendant his whole life. At the trial, Johnson testified that on the afternoon of August 19, 2010, everyone was standing in front of a school when Kizer unsuccessfully attempted to flag down Cook, who was driving a red Cadillac. Later that evening, Johnson was standing with the group on the 7400 block of south Kenwood Avenue. About 30 people were outside, and they were drinking alcohol and doing drugs. He heard gunshots and ran from the scene without looking to see the source of the gunfire. He never saw who fired the gunshots, was not grazed on his elbow by a bullet, and did not have a bullet knock any hat off his head.

         ¶ 15 Johnson fled Chicago a week after the shooting because he was wanted for an attempted murder that occurred in an unrelated case on August 25, 2011. He was apprehended and extradited back to Chicago on January 19, 2011. Thereafter, the detectives investigating the instant case brought him from the jail to the police station. Johnson claimed the detectives put him in a room with Thompson and urged him to "go with" Stackhouse's written statement. Johnson also claimed the police offered to help him with his pending case in exchange for his cooperation in this matter. Johnson denied or could not recall giving the police and ASA any statement. Johnson initially maintained he did not recall testifying before the grand jury in February 2011, later admitted on cross-examination that he did in fact testify before the grand jury, and then on redirect claimed again that he did not recall testifying before the grand jury. He denied identifying Cook and defendant as the offenders and merely pointed them out in the photo arrays as people he knew. Johnson denied identifying defendant and Cook as the offenders in lineups conducted in January and February of 2011. Ultimately, Johnson pled guilty in his pending case in 2012 to a lesser charge of aggravated battery with a firearm, faced a possible sentence of 6 to 30 years in prison, and received a 7-year prison term without the detectives' help.

         ¶ 16 The State impeached Johnson's trial testimony with the testimony of detectives and the ASA; Johnson's January 21, 2011, signed written statement; his February 18, 2011 grand jury testimony; and a January 2011, photograph of his elbow. According to his written statement, Johnson saw Cook drive by in a light green Chevy Cavalier. Cook was alone, and Kizer called out Cook's name to get his attention. Kizer's cousins had a "beef" or argument with Cook. Cook did not stop and sped off. When Cook drove by again about 15 to 30 minutes later, defendant was hanging out the passenger's-side window. The upper part of defendant's body was hanging out the window, and a gun was in his hand. Defendant fired the gun several times. The detectives testified that Johnson identified defendant as the shooter and Cook as the driver in photo arrays in January 2011, identified defendant in a January 2011 lineup, identified Cook in a February 2011 lineup, and was never told he would receive help in any pending case in exchange for talking about this case.

         ¶ 17 When ASA Morgan Creppel interviewed Johnson before presenting his testimony to the grand jury in February 2011, Johnson confirmed that the police and detectives never made any promises to him in exchange for his cooperation. According to Johnson's grand jury testimony, he was standing with Kizer and Thompson on south Kenwood Avenue at the time of the offense. Kizer's cousin, who was selling marijuana, got into a truck with a buyer. As the truck drove away, the group noticed Cook, who was alone, follow the truck in a light turquoise Cavalier. When the truck returned, Cook, who was still alone, was still following the truck. Kizer tried to flag Cook down, but Cook sped off. No one in the group noticed Cook's car as it approached them the third time. Johnson heard the first gunshot and looked in the direction from which the sound came. Johnson was shocked, "actually just got stuck, " and "couldn't even move." He saw defendant hanging out of the passenger's side window of the car from his waist up, using the top of the car to try to balance himself, and pointing the gun at anybody and shooting. Cook was driving the car. Johnson saw Kizer get struck first and Thompson get struck next. Then bullets grazed Johnson's elbow and knocked his hat off his head.

         ¶ 18 The defense's evidence showed that defendant was with Romania Booker and her father Randy Alexander at the time of the shooting. They were at the home of Booker's grandmother. Booker was pregnant with defendant's child and her due date was August 19, 2010, so defendant stayed with her in case her water broke. Alexander testified he and defendant stayed inside the house on August 19 but acknowledged they "were not joined at the hip." Alexander was convicted in 2011 of burglary and in 2007 of possession of a controlled substance. Booker testified that defendant remained by her side from noon on August 19 until the child was born on August 24. Booker stopped dating defendant before he was arrested in January 2011 in this case. Although Booker knew about the arrest, she never contacted the police to inform them of this alibi. Defendant's family helped Booker with expenses for the baby.

         ¶ 19 Cook's family members and friends testified that he was at the home of his aunt at the time of the shooting. He was setting up for and attending a large family surprise birthday party for the aunt that lasted from about 6 p.m. on Thursday, August 19 to 3:30 a.m. on Friday.

         ¶ 20 Defense Investigator John Byrne testified that he had been a Chicago police detective and sergeant in the detective division for 25 years. When he went to Stackhouse's home in June 2012, he informed Stackhouse that he worked for the defense. Stackhouse agreed to speak with him about this case and invited him into the house. Byrne was at the house for about 30 minutes but did not make any video or audio recording. Byrne took notes during the interview, which he used to write his two-page, undated report and then destroyed the notes. According to Byrne, Stackhouse said he did not see the face of either the shooter or driver when the car drove past him because it was dark outside and the incident happened quickly. Stackhouse merely saw the passenger extend an arm out the open window and fire a gun. Furthermore, in January 2011, detectives signed Stackhouse out of jail, brought him to the police station, and informed him that witnesses had already identified defendant as the shooter and Cook as the driver. The detectives said they would help Stackhouse with his pending case if he corroborated the testimony of those witnesses. Although Stackhouse told the detectives what they wanted to hear, they ultimately did not help him. Stackhouse mentioned his probation and asked Byrne if he could get in trouble for what he said during their interview. Stackhouse did not sign or review Byrne's report.

         ¶ 21 The jury found defendant guilty of the first degree murder of Kizer, with a finding that defendant personally discharged a firearm that proximately caused Kizer's death, and guilty of the aggravated battery with a firearm of Thompson. The trial court sentenced defendant to consecutive prison terms of 55 years for murder and 15 years for aggravated battery with a firearm. The jury also found Cook guilty of first degree murder and aggravated battery with a firearm.

         ¶ 22 II. ANALYSIS

         ¶ 23 On appeal, defendant argues that (1) the trial court abused its discretion by admitting hearsay-i.e., that Kizer wanted to stop Cook's car and talk to him about something going on between Kizer's family and Cook-and allowing the State to refer to it as substantive evidence during closing argument, (2) trial counsel rendered ineffective assistance by failing to object to certain statements by witnesses on the basis of lack of foundation, (3) the trial court's preliminary inquiry into defendant's pro se posttrial claims of ineffective counsel was an adversarial proceeding and violated due process, and (4) the trial court erred when it failed to appoint new counsel and hold a hearing on defendant's claims of ineffective trial counsel.

         ¶ 24 A. Hearsay

         ¶ 25 Defendant contends that the trial court abused its discretion when it admitted hearsay during Thompson's testimony that Kizer told him Kizer wanted to stop Cook's car and talk to Cook about "something" that was "going on" between Cook and members of Kizer's family. Defendant complains that this information came before the jury again when the State impeached Johnson with his signed written statement to the police and ASA that Kizer tried to get Cook's attention by calling out his name and Kizer's cousins were having a "beef" with Cook. Defendant also argues that the trial court later allowed the State to use the hearsay during closing argument as substantive evidence of defendant's guilt.

         ¶ 26 Defendant has forfeited review of this issue by failing to both timely object and include this issue in his motion for a new trial. However, he asks us to review this issue under the plain error doctrine, arguing that the evidence was so closely balanced ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.