Affirmed in part and reversed in part. Judgment affirmed.
MR. JUSTICE KLUCZYNSKI delivered the opinion of the court:
In cause No. 46610 defendant Melvin Bailey, following a jury trial in the circuit court of Cook County, was convicted on five counts of attempted murder and one count of conspiracy to commit murder. He was sentenced to concurrent terms of 10 to 15 years in the penitentiary. The appellate court reversed and remanded the cause for a new trial, holding that prejudicial hearsay testimony had been introduced by the State, thereby depriving Bailey of a fair trial. People v. Bailey, 18 Ill.App.3d 80.
In cause No. 46649 co-defendant Andrew McChristian was similarly charged and jointly tried with Bailey and Edward Dinkins. The latter was acquitted by the trial
We granted the State's petition for leave to appeal in both causes and have consolidated the matters.
About 9:30 p.m. on May 8, 1968, three police officers assigned to the Gang Intelligence Unit stopped a car on the south side of Chicago driven by David Barksdale and containing four other persons. Barksdale was known to officers Foulkes, Clark and Peck as the leader of a street gang named the Disciples. The officers searched Barksdale and the others for weapons but found none. A search of the passenger compartment of the car also failed to disclose any weapons. Barksdale and his passengers drove away with the officers closely following in an unmarked police car.
After driving about the area for several minutes Barksdale arrived at 6526 S. Ellis, where he stopped the car and raced its motor. Shouts were heard and then gunfire erupted. The police, who had stopped several car lengths behind Barksdale's car, exited their vehicle and arrested Bailey and McChristian, both of whom were members of a rival street gang called the Blackstone Rangers. The police recovered .45-caliber and .25-caliber automatic pistols and a .22-caliber "sawed-off" carbine. Dinkins was arrested as he apparently attempted to intercede on behalf of the other defendants. Meanwhile, Barksdale drove a short distance from the area and waited for the police to arrive. All then went to the police station.
In summary, officers Foulkes and Clark testified that as they stopped behind Barksdale's car at the Ellis Avenue location someone shouted "D's" and then "Blackstones," whereupon numerous individuals began to shoot from
When the defendants were transported to the police station, they saw Barksdale. Peck testified that at this juncture Bailey remarked to Barksdale, "We didn't get you this time." McChristian, who was chuckling, responded, "We will get him next time."
David Barksdale was called by the State, but after he refused to testify he was granted immunity and made a court's witness. He corroborated much of the testimony concerning the officers' initial stop and search of his vehicle. Barksdale knew the police were following and that he was "playing" with them as he drove into "Ranger territory." He stopped the car for several seconds at the Ellis Avenue location, and during this brief time he heard someone shout "D's" and then several shots were fired from both sides of the street, which caused him to drive quickly from the area. He claimed that one bullet struck the back of his car. Barksdale denied seeing Bailey at the time of the shooting and, although he admitted he saw McChristian sitting on a porch, he did not see the latter
Thereupon the State elicited from Barksdale the fact that on prior occasions, commencing about the time of the shooting and culminating on the day he testified, he made various statements to law-enforcement officials concerning the involvement of Bailey and McChristian in the shooting. He was less certain as to Dinkins' participation. One of these conversations occurred with an assistant State's Attorney, Matthew Walsh. Barksdale explained that at the times he implicated the rival gang members he lied because he was mad that he had been shot at.
At this juncture the trial court instructed the jury as follows:
Matthew Walsh was thereafter permitted to testify, over defense objections, as to a conversation he previously had with Barksdale. During their discussion, certain facts of the case were mentioned by Barksdale, who told Walsh of Bailey's remark to him which was made in the police station after the shooting and McChristian's response thereto. Barksdale also purportedly told Walsh that he was telling the truth, although he just shrugged his shoulders
Andrew McChristian testified in his own behalf. He claimed that on the evening of the shooting he and Bailey were with several girls sitting on a porch when someone shouted "here comes David" and many people started to run. McChristian said that he attempted to flee into a crowded hallway but he and Bailey were unable to gain entrance. Bailey ran in another direction and McChristian lay down on a nearby porch until the gunfire ceased and Peck arrested him. McChristian claimed that he was unarmed and that Peck found the .25-caliber pistol near the curb. He further denied having any conversation with Bailey or Barksdale at the police station, and he specifically disclaimed stating that they would "get" Barksdale at some other time.
During closing arguments the State, over repeated defense objections, emphasized and detailed the prior out-of-court statements that Barksdale had made. The State further requested the jury to consider whether Walsh or Barksdale was telling the truth. The trial court instructed the jury, as it had previously, concerning the use of prior inconsistent statements of a witness.
We agree with the appellate court that the State's tactics pertaining to the use of Barksdale's prior inconsistent statements were improper. In People v. McKee, 39 Ill.2d 265, 270 we stated:
It has been further recognized that jurors may find difficulty in consideration of prior inconsistent statements used solely to determine credibility and they might afford such testimony substantive value. People v. Paradise, 30 Ill.2d 381, 384.
Here, Barksdale's own admission of prior statements inconsistent with his trial testimony seriously detracted from his credibility. The State, however, endeavored to prove the substance of this witness's prior statements by the testimony of Matthew Walsh. Examination of the record establishes a thinly disguised effort by the State to impart substantive character to Barksdale's prior inconsistent statements, although such attempts have been repeatedly rejected by this court (People v. Collins, 49 Ill.2d 179,
In regard to defendant McChristian's case (No. 46649), the appellate court majority noted that the conspiracy indictment specifically provided that McChristian and others agreed to murder Barksdale and the four named occupants of his car and in furtherance thereof fired weapons at the vehicle. (Ill. Rev. Stat. 1967, ch. 38, par. 8-2(a).) The appellate court reasoned that the State had to prove not only that the accuseds knew Barksdale was in the car but also that they shot at the car with intent to murder. With regard to this latter requirement, the appellate court deemed it significant that, while police testimony indicated many persons were firing numerous shots, not one bullet was positively demonstrated to have hit Barksdale's vehicle. While the evidence showed that a shooting occurred, the appellate court held that the criminal conduct of McChristian was not such as to sustain the conspiracy conviction.
Section 8-2(a) of the Criminal Code provides, in pertinent part:
The Committee Comments to this section state,
The State argues that the concerted efforts of Bailey and McChristian at the time of the shooting as well as their conversation in the police station after their arrests is sufficient to permit a jury to conclude that a conspiracy existed. We do not agree.
The evidence does not establish beyond a reasonable doubt that Bailey, McChristian and others had agreed to murder Barksdale or any one else. Rather it clearly appears that Barksdale drove to the Ellis Avenue location in a car known to defendants and others, stopped and then raced the motor. The obvious purpose was to incite a rival and hostile street gang knowing that the police were a short distance behind in an unmarked squad car. Almost simultaneously with Barksdale's unexpected appearance and his recognition, gunfire erupted from both sides of the street.
While it might be argued that the defendants were members of a rival street gang, this mere relationship does not establish an intent to agree to kill Barksdale. (People v. Gates, 29 Ill.2d 586, 591.) Moreover, while the statements of Bailey and McChristian at the police station after the shooting might be construed as admitting to a conspiracy to shoot Barksdale, under the circumstances of this case, particularly the almost instantaneous or "knee jerk" reaction attributed to the defendants as well as other possible gang members, the evidence is sufficiently improbable
Accordingly, the judgment of the appellate court insofar as it reversed and remanded Bailey's conviction of attempted murder is affirmed. Since the same evidence was presented to establish both McChristian's and Bailey's guilt of conspiracy, and we have held that evidence insufficient as to McChristian, then Bailey's conviction of this offense is reversed. The judgment of the appellate court reversing McChristian's conviction is affirmed.
46610 — Affirmed in part and reversed in part.
46649 — Judgment affirmed.
MR. JUSTICE RYAN, dissenting:
I cannot agree with the conclusion reached by the majority of this court with respect to defendant Bailey, nor can I agree with the conclusion of the majority with respect to defendant McChristian.
In the case of Bailey, the majority reverses the conviction of the defendant on the attempted-murder charge because of the introduction of hearsay evidence. Since the majority concludes that it cannot say that "this error was harmless beyond a reasonable doubt," it finds that the conviction has to be reversed and the defendant granted a new trial.
I would first observe that this question does not involve error of constitutional magnitude. It involves only an alleged error in the admission of evidence, and no constitutional issue is involved unless we are to consider every trial error as raising a constitutional question. Therefore, we are not concerned with the "harmless error beyond a reasonable doubt" test of Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824. We are instead concerned with whether the competent evidence
The majority states that Officers Foulkes and Clark testified that they saw Bailey run into the street and fire several shots at the car driven by Barksdale; that Bailey threw an object under a parked car which Officer Clark recovered and that the object was a "warm" .45-caliber pistol. Officer Peck testified that at the police station Bailey remarked to Barksdale, "We didn't get you this time," and that McChristian replied, "We will get him next time." Barksdale, himself, testified that as his car was stopped on the street near where Bailey was apprehended, he heard some shouts and then heard several shots fired, one of which struck his car. In light of the strength of this evidence of guilt, it is difficult to see how the elimination of Barksdale's out-of-court statement would have altered the verdict, it is only where the trial error results in manifest prejudice to the defendant that a court of review will interfere. (People v. Pittman, 55 Ill.2d 39, 59; People v. Wilson, 51 Ill.2d 302, 307-8; People v. Burris, 49 Ill.2d 98, 104.) In view of the strength of this evidence, I can see no need for reversing Bailey's conviction of attempted murder and remanding his case for a new trial.
The defendants, Bailey and McChristian, were convicted by the jury of conspiracy to commit murder. The majority of this court reverses that conviction because "the evidence does not establish beyond a reasonable doubt that Bailey, McChristian and others had agreed to murder Barksdale or anyone else." Of course, it is not necessary, and in most cases not possible, to prove an agreement between co-conspirators by direct evidence. It is only necessary to show that they pursued a course tending toward the accomplishment of the objective of which
The majority opinion somehow concludes that this evidence does not establish that Bailey and McChristian had agreed to murder Barksdale or anyone else and characterizes the conduct of the defendants as instantaneous or "knee-jerk" reaction. However one may characterize it, the fact remains that Bailey had fired several shots from a .45-caliber pistol and that McChristian had fired at least one shot from a .25-caliber pistol. These were not toys, and had one of the bullets found its mark, both of these defendants would have been prosecuted for murder. In my opinion, there is adequate evidence to find
MR. CHIEF JUSTICE UNDERWOOD, with whom MR. JUSTICE RYAN joins, dissenting:
To the extent that the majority opinion may be thought to hold the prior inconsistent statements incompetent, I do not agree. That those statements were emphasized beyond proper limits, I concede. But I concur with Mr. Justice Ryan that, considering the evidence in this case, reversal of the convictions is unnecessary.
In my judgment, earlier decisions of this court are not in harmony and have resulted in the impression that prior inconsistent statements by witnesses made outside the presence of defendants, and relating directly to the guilt or innocence of those defendants, are inadmissible for the purpose of impeaching the credibility of such witnesses. A careful analysis of those cases, however, reveals that this court has not intended to establish such a broad rule, but rather has attempted to eliminate attempts by the State to use such hearsay statements as substantive evidence under the "guise of impeachment." Despite the unfortunate use of overly broad language in several cases, this court has permitted and should, in my view, continue to permit the use of such statements when the record clearly reveals that their sole purpose was impeachment and no attempt was made by the State to impart substantive value to them. While I agree that the unnecessary emphasis upon the impeaching evidence in this case merits criticism, the court does not address itself to the problem created by our past decisions. I therefore feel compelled to add my own comments which I hope may serve to clarify what I regard to be substantial confusion regarding the proper use of prior inconsistent statements to impeach witnesses in criminal cases.
In People v. Barragan (1929), 337 Ill. 531, defendant had been indicted for robbery with two other men, Drury and Brodie. Drury, who had pleaded guilty, was returned from the penitentiary as a court's witness and testified that the defendant did not commit the robbery with him. He was then confronted with a prior statement he had made to police implicating the defendant, but he denied making the statement. The police officer who transcribed the statement then testified that Drury had in fact made the statement. Although much closer than Johnson to being proper impeachment, this court again reversed the conviction, concluding from the record that the "whole purpose of the offer was to get before the jury evidence of Drury's unsworn statement that Barragan participated in the crime." 337 Ill. 531, 536.
In People v. Grigsby (1934), 357 Ill. 141, defendant had been tried and convicted of assault with intent to
In reversing the convictions in Johnson, Barragan, and Grigsby, this court was responding to the use of improper tactics by the State under the "guise of impeachment," but, it seems to me, clearly did not intend to establish a rule forbidding proper impeachment by the use of prior inconsistent statements.
In People v. Hundley (1954), 4 Ill.2d 244, defendant's girlfriend was made a court's witness after it was clear that her testimony would not be in agreement with her previous statements to police. She was then impeached with the statement which was damaging to the defendant. Relying on Johnson, Barragan, and Grigsby, this court reversed the conviction, noting once again that the real intention of the State was not proper impeachment.
In People v. Tate (1964), 30 Ill.2d 400, this court held that the rule announced in Tunstall was too broad and that proper impeachment was not forbidden. Defendants, on trial for murder, called as a witness Hosie Laws, who had been indicted with them and had pleaded guilty to the crime. He testified that he alone was responsible for the murder, but was impeached with a previous statement he had given police implicating defendants. After the prosecutor read the questions and answers once, the parties stipulated that the court reporter who took the statement would verify it, and the questions and answers were then read again to the jury by the prosecutor. The judge overruled defendants' objection to admission of the statement, stating "it is a matter of attempted impeachment." The jury was given no other explanation or instruction with regard to this prior statement. After quoting the broad rule announced in Tunstall, the court noted that the "factual situations in the three cases cited [in Tunstall] for the broad proposition thus announced [there] differed from the problem present in the Tunstall case" (30 Ill.2d 400, 403), and added that the decision in Tunstall "did not rest solely upon the broad statement
However, the court then seemed to ignore Tate in deciding People v. McKee (1968), 39 Ill.2d 265, which is quoted with apparent approval by the majority in this case. The defendant was being tried for murder in a bench trial. The State called Edward Clifford, an alleged accomplice, as a witness, but he stated that he and McKee were innocent, whereupon he was made a court's witness. On the theory of impeachment, he was confronted on a question-and-answer basis with every item in two prior statements he had given police implicating himself and the defendant. Clifford recalled making the statements but declared repeatedly that they were false. One of the statements was quite lengthy, and Clifford was on the stand almost a full day. The trial court, although admitting the statements for purposes of impeachment, had in its findings given substantive effect to certain information contained only in those prior statements. McKee's conviction was reversed since the statements were thus obviously "admitted as evidence under the guise of impeachment and had no probative value as to the guilt of the defendant." (39 Ill.2d 265, 272.) With no mention of Tate, the court then reaffirmed and even broadened the discredited Tunstall rule by adding the following dictum: "Had the case been tried before a jury the admission of such testimony would necessarily constitute reversible error for the reason that such evidence is not competent even for the purpose of impeachment where the statement bears directly upon defendant's guilt or innocence." (39 Ill.2d 265, 271.) The court even failed to add the final sentence
Faced with the same issue once again in People v. Marino (1970), 44 Ill.2d 562, this court plainly demonstrated that it was not bound by the dicta in Tunstall and McKee. Defendants were charged with theft of property exceeding the value of $150. One of the police officers who had apprehended them was called as a court's witness after his attorney advised the State that his testimony would differ from his prior statements. His previous testimony at the preliminary hearing and before the grand jury was damaging to the defendants because his identification of them as the persons who ran from the scene of the crime was positive and he had revealed that they had offered him a bribe after being apprehended. At the trial, however, he could not positively identify defendants, who were apprehended after a short chase, as the men he saw run from the scene, nor could he recall a conversation with them after taking them into custody. When the State used the officer's previous statements for impeachment, the trial judge specifically instructed the jury that such statements were for impeachment only. The officer stated that he couldn't remember making the prior statements, whereupon the parties agreed that the court transcripts of the previous testimony were correct. The jury was again advised of the limited use of these prior statements. This court held that the statements were properly used for impeachment and distinguished McKee:
Although perhaps not as damaging as some of the prior statements in other cases, the officer's previous statement was certainly one bearing directly on defendants' guilt or innocence since it affirmed that the persons apprehended were in fact the same persons who ran from the scene of the crime. And at least the statement before the grand jury was given outside the presence of the defendants. This decision, in my judgment, is a square holding that any prior inconsistent statement is admissible for impeachment when the court insures that such is its sole purpose.
I believe that the court's true position on this issue was stated fully and accurately in People v. Paradise (1964), 30 Ill.2d 381, 383-85:
This same language was quoted with approval in People v. Collins (1971), 49 Ill.2d 179, 194-95, in which we refused to follow a recent trend in other jurisdictions allowing use of prior inconsistent statements as substantive evidence, but our intention there was obviously not to restrict proper impeachment techniques. Indeed, to follow a rule as broad as that stated in Tunstall and McKee would allow a witness to lie with impunity on the stand, knowing that his previous statements could not even be used to reveal that his testimony was unreliable. Although we have recognized in Paradise, Collins and other cases that jurors have difficulty in considering evidence for one purpose and not another, we have never held that they cannot or should not be asked to do so. Rather, the whole import of our many decisions in this area is that every reasonable precaution should be observed by judges and lawyers to insure that prior inconsistent statements are used only for impeachment purposes and not improperly emphasized to the point that they will be viewed by the jury as substantive evidence. Courts should be alert to see that