from Circuit Court of Livingston County No. 15CF25 Honorable
Jennifer H. Bauknecht, Judge Presiding.
Justices Appleton and Knecht concurred in the judgment and
1 Following a May 2015 trial, a jury convicted defendant,
Marcus E. McGath, of unlawful delivery of a controlled
substance (720 ILCS 570/401(d) (West 2014)). In July 2015,
the trial court sentenced him to 25 years in prison.
2 Defendant appeals and raises several arguments: (1) the
State failed to prove him guilty beyond a reasonable doubt,
(2) he received ineffective assistance of counsel when his
trial counsel failed to subpoena a key witness, (3) the trial
court erred when it failed to conduct a hearing in accordance
with People v. Krankel, 102 Ill.2d 181, 464 N.E.2d
1045 (1984), (4) the court erred when it denied trial
counsel's request to make an offer of proof to explain a
key witness' absence at trial, and (5) the court
subjected him to double enhancement at sentencing when it
considered a factor in aggravation that was inherent in the
offense. For the reasons that follow, we disagree and affirm.
3 I. BACKGROUND
4 In February 2015, the State charged defendant with unlawful
delivery of a controlled substance (720 ILCS 570/401(e) (West
2014)), which was later amended to subsection (d) (720 ILCS
570/401(d) (West 2014)). The charge alleged that, on or about
November 4, 2014, defendant knowingly delivered less than one
gram of a substance containing cocaine to Coartney Barton, a
police confidential source.
5 A. Pretrial Proceedings
6 In May 2015, the day before trial, defendant tendered a
witness list that contained only the name of Katrina Ross,
his girlfriend. (Defendant's theory throughout trial was
that the evidence was unclear as to who delivered the cocaine
to Barton-he or Ross.)
7 On the day of trial, the trial court asked the parties,
outside of the presence of the jury, whether any matters
needed to be resolved before the court brought the jury back
in. The following conversation took place regarding whether
Ross would testify:
"MR. REGNIER [Assistant State's Attorney]: There is,
Judge. It is regarding disclosure of a witness yesterday
regarding what she was going to say today.
THE COURT: Who?
MR. REGNIER: Katrina Ross.
THE COURT: Okay.
MR. REGNIER: And *** what-I would proffer based off talking
to her today, she is planning on using her Fifth Amendment
THE COURT: Okay.
MR. REGNIER: There has [sic] been some discussions
over what she can testify to before using that right or not.
And if Your Honor does allow her to use that right, the State
would probably pursue some kind of immunity, either use or
qualified immunity for her.
THE COURT: She is not listed as your witness.
MR. REGNIER: Judge, we were aware of what she was going to
say today as far as a summary of what her statements were
going to be.
THE COURT: Well, I-
MR. REGNIER: And that is when we found out about the Fifth
THE COURT: Okay. But you have not listed her as a witness.
And if you are not planning on calling her, I don't see
it being an issue for the State.
MR. REGNIER: Regarding her *** using use immunity or
regarding her invoking her Fifth Amendment right while she is
on the stand.
THE COURT: She can do that.
MR. REGNIER: The State's belief is that if she is going
to testify about a transaction-she can't testify about
that partially and then invoke her Fifth Amendment right and
the State, now that we are aware of what she intends to
testify to generally, a summary from speaking with her this
morning, believes it would be the case. THE COURT: Well, we
will have to get into that when she starts testifying.
MR. REGNIER: Okay. Well-
THE COURT: I got to get the case going."
8 B. The Trial
9 The following evidence was presented at defendant's May
2015 jury trial. In November 2014, Barton conducted a
controlled buy for the proactive unit in Livingston County.
Barton arranged the buy through text messages with a contact
in her phone listed as "Katrina." Katrina Ross had
been Barton's friend for many years and was in a
relationship with defendant. Barton used this telephone
number to contact defendant because it was how she
communicated with him in the past. Barton sent a text message
that asked if defendant "was good, " meaning if he
had any drugs. She received a positive response, and she told
him that she would come by in the early afternoon. Barton
believed Inspector Leland Brooke was present while she made
the arrangements and that Brooke saw the text messages.
(However, Brooke later testified that he was not present and
did not see the messages.)
10 The police searched Barton's person and vehicle before
she went to defendant's residence and found no
contraband. The police gave her $40 of prerecorded money and
an audio-recording device inside a cigarette pack, which she
placed in her pocket. The police then followed her to
11 Barton arrived at defendant's residence, knocked on
the door, and Ross answered it. Barton walked into the living
room and did not see defendant. Barton asked Ross if
defendant had something for her, and Ross replied
affirmatively and stated that defendant was in the bedroom.
Barton knocked on the bedroom door, and defendant opened it.
She handed him $40, and he gave her a small amount of crack
cocaine. Defendant asked Barton for a ride to the pawnshop.
She told him that she could give him a ride but needed to
drop off the cocaine first.
12 Barton left and drove to the jail, and the police followed
close behind. At the jail, Barton gave the police the
purported crack cocaine, and they searched her again and
found no contraband. The police transferred the white
substance to a forensic scientist for testing, who, after a
series of tests, concluded that the 0.1 grams of white
substance contained cocaine.
13 The prosecution played the audio recording of the
transaction for the jury. The entire conversation between
Barton, Ross, and defendant lasted approximately one minute.
When Barton arrived at the residence, she knocked on the door
and Ross greeted her. Barton said, "here, " and
after a few seconds, she mentioned defendant. Ross yelled,
"Oh! Babe!" Defendant said something to Ross, but
what he said is unclear from the recording. Ross responded,
"Do you have something for Cornelia?" (Cornelia is
a nickname that Ross used for Barton.) Defendant replied,
"Yeah, but ask her if she can run me to the pawnshop
real quick." Ross relayed the request to Barton, in
which she said she could after she dropped off the drugs.
Ross suggested that defendant should just ride with Barton,
but he interjected and said that he would wait because he did
not "want nobody seeing [his] face."
14 In between testimony, the trial court held a recess.
Outside the presence of the jury, the court instructed the
parties to read People v. Human, 331 Ill.App.3d 809,
773 N.E.2d 4 (2002), to determine whether a party may call a
witness it believes will invoke the fifth amendment
privilege. When the parties returned from the recess, the
court asked them if they had any questions about Ross. The
following conversation took place:
"MR. MASON [Defense counsel]: At this time, no. I have
told her to go talk to Mr. Morgan[, the public defender].
THE COURT: Okay. And we'll take it up.
MR. MASON: I've reviewed the case that you gave me that