People v. Barton

                               NO. 5-94-0486

                                  IN THE

                        APPELLATE COURT OF ILLINOIS

                              FIFTH DISTRICT
_________________________________________________________________

THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of 
     Plaintiff-Appellee,            )  St. Clair County.
                                    )  
v.                                  )  No. 93-CF-380
                                    )
MICHAEL BARTON,                     )  Honorable
                                    )  James K. Donovan,
     Defendant-Appellant.           )  Judge, presiding.  
_________________________________________________________________

     JUSTICE GOLDENHERSH delivered the opinion of the court:
     After a jury trial defendant, Michael Barton, was found guilty
of first-degree murder (Ill. Rev. Stat. 1991, ch. 38, par. 9-
1(a)(1) (now 720 ILCS 5/9-1(a)(1) (West 1994)) and sentenced to 60
years in the Department of Corrections.  In this cause, defendant
contends that (1) he was denied a fair trial due to ineffective
assistance of counsel because his counsel recognized that the
testimony of three crucial witnesses against defendant was obtained
by improper coercion and duress and yet defense counsel failed to
object to the use of such testimony, and (2) he was denied a fair
trial due to the State's improper use of a prior inconsistent
statement by witness Francell McGuire as substantive evidence.  We
reverse and remand for a new trial.
                                     I
     Defendant was charged with the first-degree murder of the
victim, Terri Hammond, who died as the result of a gunshot wound. 
The first trial ended in a hung jury.  Prior to the start of the
second trial, defense counsel presented an oral motion in limine to
prohibit the State from introducing a statement by Francell
McGuire, defendant's ex-girlfriend, with whom he had three
children, as substantive evidence under section 115-10.1 of the
Code of Criminal Procedure of 1963 (the Code) (725 ILCS 5/115-10.1
(West 1992)).  Defendant's motion was granted.  
     At the first trial, McGuire testified that defendant was with
her the entire evening of April 17, 1993, the date the victim was
murdered, and that defendant never told her about a shooting that
occurred on that date.  The State confronted McGuire with her April
21, 1993, statement in which she implicated defendant by telling
police that defendant told her a white woman at a trailer had fired
a shot at him and he had fired a shot back.  McGuire denied ever
making such a statement.  McGuire explained that when she was
initially questioned by police at 4 a.m. on April 21, 1993, she
told police that defendant was with her the entire evening of April
17, 1993.  McGuire testified that the statement implicating
defendant was given later in the day, but that she never told the
investigating officer anything to implicate defendant--the officer
just wrote it down, and she signed it.  McGuire also admitted
making some corrections to the written document.  McGuire was
subpoenaed by the State for the second trial but failed to appear,
and the trial court declared McGuire unavailable.  Over defendant's
objection, McGuire's testimony from the first trial was read into
evidence.  
     Curtis McCall, one of the investigating officers, testified
that he interviewed Francell McGuire at the sheriff's department at
approximately noon on April 21, 1993.  McCall told McGuire that he
knew that her statement given earlier in the day was untrue. 
According to McCall, McGuire then gave a statement implicating
defendant.  When McGuire provided the statement, she was released. 
McCall admitted that McGuire had been arrested, placed in
handcuffs, and taken to jail overnight, even though there were no
charges pending against her.  McGuire was taken to the jail to
answer questions concerning defendant.  McCall also admitted that
this same procedure of taking a witness to jail for questioning was
repeated with approximately 15 to 20 other potential witnesses.  
     In addition to McGuire's testimony, defendant also complains
about the testimony of two additional witnesses for the State,
Quinton Billups and Mario Haynes.  Billups and Haynes both
implicated defendant in the murder of the victim.  Both testified
that they were with defendant on the evening of the shooting, and
both testified that defendant admitted to shooting the victim. 
Billups specifically testified that on April 17, 1993, he was at
William Rush's house with defendant, Mario Haynes, and Marcus Rush. 
Billups, Marcus Rush, and defendant left in defendant's automobile
to purchase marijuana.  Billups testified that the muffler on
defendant's vehicle was "loud."  According to Billups, they could
not come up with enough money to make a purchase, so they went back
to William Rush's house.  Billups then stated that between 8:30
p.m. and 9 p.m., the trio again left to try to obtain marijuana at
a trailer located between Centreville and Cahokia.  Defendant
pulled up in the driveway and went to the front of the trailer. 
Rush got out and went to the front of the vehicle.  Billups
remained inside the car and could not see what defendant was doing. 
Billups testified that he heard a gunshot and got out of the car
and ran.  Defendant then directed Billups to get back in the car. 
Billups asked defendant "What happened?" and defendant told him
that a white woman tried to shoot him.  Defendant then drove to a
liquor store and examined himself to see if he was shot.  Billups
also testified that after defendant was arrested, defendant called
him from jail wanting to know if Billups implicated him.  Billups
testified, "[Defendant wanted me to] put someone else in his place,
saying that somebody paid me to say that he was there."  Defendant
called Billups from jail on other dates, but Billups stopped
accepting the calls.  
     On cross-examination, Billups testified that he was taken into
custody on April 20, 1993, and was told that he was being held for
investigation of a homicide.  Billups admitted making numerous
statements about the incident.  When first questioned by police
officers, Billups denied having any knowledge of the victim's
murder.  After that statement, Billups was taken to a cell.  On
April 21, 1993, Billups was again questioned by police and again
denied any knowledge of the shooting.  Billups was again placed in
a holdover cell.  On April 22, 1993, Billups was once again
questioned about the victim's murder.  According to Billups, once
he gave a statement implicating defendant, he was released from
jail.  Billups was not charged with any offense in conjunction with
the shooting.
     Mario Haynes testified that on April 17, 1993, he saw
defendant, Billups, and Marcus Rush at William Rush's house, at
which time Billups was discussing a burglary.  Haynes testified
that Marcus Rush is his brother, and that William Rush is now
deceased.  Haynes did not hear anyone discussing a marijuana
purchase.  Haynes testified that he heard Billups say that Billups
knew of a house in Cahokia that they could "hit," and that he heard
defendant say he was ready.  Defendant, Billups, and Marcus Rush
then left.  Later that evening, Haynes again saw defendant at
William Rush's house.  Haynes could not remember what defendant
said at that time, but he acknowledged that he told the police in
his statement that he heard defendant tell William Rush that
defendant went to a drug house and that a white female came to the
door with a gun.  Haynes testified that when the woman saw
defendant, she tried to shut the door, but defendant stuck his foot
inside before she could shut the door, and defendant shot her. 
Haynes also admitted that during his testimony in the first trial
he testified that defendant told him that he thought the victim
fired a shot.  
     On cross-examination, Haynes explained that one night in April
1993, police officers came to his house, placed him in handcuffs,
and took him to jail.  According to Haynes, he suffered a seizure
earlier that day and was ill.  The officers insisted that Haynes
was Marcus Rush, who was with defendant at the time of the
shooting.  Haynes repeatedly told officers that he was not Rush,
but they did not believe him and took him to jail.  Haynes
testified that he could not remember how long he was in the jail,
and that he was not allowed to call anyone.  Haynes admitted that
he gave a statement implicating defendant, but he testified that a
police officer wrote the statement, he signed it, and he could not
read the contents of that statement.  Haynes explained that he only
attended school until the tenth grade and was in special education
classes.  Soon after Haynes made the statement, he was released
from jail.  Haynes stated that he has a difficult time remembering
things because of the seizures he suffers.  Haynes did remember
that the muffler on defendant's car was loud.
     Belinda Burnine also testified for the State.  She was at the
victim's trailer at the time of the shooting.  She heard a "car
with a loud sound" pull up in the driveway.  Burnine testified that
the victim, armed with a gun, went to the door and opened it. 
Burnine could not see who was at the door, due to her position on
the couch.  She just heard a man ask if the victim's boyfriend was
home.  The man attempted to open the door, and the victim tried to
shut it.  As Burnine got up to assist the victim, she heard a
gunshot and saw that the victim had been shot.  Burnine ran out of
the back door of the trailer and saw someone getting into a car
parked in the driveway, but she could not identify that person. 
Burnine testified that the victim and her boyfriend sold marijuana
out of the trailer.
     Michael Cadman, a deputy United States marshall, testified
that he arrested defendant in Chicago on the instant offense on
September 28, 1993, at approximately 8:30 a.m.  At that time,
defendant was with Francell McGuire and two small children at his
brother's apartment.  Defendant later told Cadman that when he
found out he was wanted for the shooting, he immediately left for
St. Louis, Missouri, and later went to Chicago.
     During defense counsel's closing argument, he stated that he
was "troubled" that law enforcement officers "rounded up and locked
up" McGuire, Billups, and Haynes in order to obtain statements
implicating defendant.  The jury was instructed on the use of
witnesses' prior inconsistent statements.  The jury was instructed
that such statements were to be considered only for impeachment
purposes, specifically, "only for the purpose of deciding the
weight to be given the testimony you heard from the witness stand
in this courtroom."  Defendant was convicted and sentenced to 60
years in the Department of Corrections.
                                    II
     The first contention raised by defendant is that he was denied
a fair trial due to ineffective assistance of counsel because his
counsel recognized that the testimony of three crucial witnesses
against defendant was obtained by improper coercion and duress by
law enforcement officers and yet defense counsel failed to object
to the use of such testimony.  Defendant asks us to reverse his
conviction and remand for a new trial or, in the alternative, to
remand this case for a hearing to determine whether the testimony
of McGuire, Billups, and Haynes was obtained by improper means. 
The State replies that defendant did not have standing to move to
suppress the testimony of these three witnesses because it was not
defendant's fourth amendment (U.S. Const. amend. IV) rights which
were allegedly violated.  After careful consideration, we agree
with the State that defendant does not have standing to contest the
voluntariness of these statements. 
     In People v. James, 118 Ill. 2d 214, 514 N.E.2d 998 (1987),
our supreme court stated:
          "It is a fundamental principle that a claim to suppress
     the product of a fourth amendment violation can be asserted
     `only by those whose rights were violated by the search or
     seizure itself.'"  James, 118 Ill. 2d  at 226, 514 N.E.2d  at
     1003.
In James, the defendant was arrested solely on the basis of the
codefendant's statements to the arresting officer.  The James court
determined that the defendant did not have standing to contest the
legality of the codefendant's arrest, even though the defendant's
confession was obtained after being confronted with statements
illegally obtained from his codefendant.  James, 118 Ill. 2d  at
226, 514 N.E.2d  at 1003.  The James court explained:
     "Here, the victim of the illegal arrest *** has standing to
     seek suppression of the fruit of that arrest.  He has, in
     fact, successfully done so.  [The codefendant], on the other
     hand, may be aggrieved by the admission of the product of
     someone's illegal arrest, but his personal privacy rights have
     not been violated."  James, 118 Ill. 2d  at 226, 514 N.E.2d  at
     1003.
Likewise, in the instant case, only the witnesses, McGuire,
Billups, and Haynes, have standing to seek the suppression of their
statements made to police officers.
     There is a line of cases which conclude that a defendant does
have standing to question the voluntary nature of another's
statement, but this is only when the statement is being used by the
State to impeach a defense witness.  See People v. Bacon, 2 Ill.
App. 3d 324, 333, 276 N.E.2d 782, 787-88 (1971).  Impeachment
evidence is not admitted as proof of the facts as stated in court
but is used to cast doubt on the testimony of the witness by
showing his inconsistency.  People v. Tate, 30 Ill. 2d 400, 403,
197 N.E.2d 26, 28 (1964).  Impeachment, however, is an entirely
different situation than what is presented in the instant case,
especially with regard to Billups' and Haynes's testimony.  
     Here, Haynes and Billups testified live at the second trial,
and their testimony was virtually the same as the contents of their
respective statements to police, which implicated defendant.  We do
note, however, that Haynes's testimony was not as strong as
Billups', since Haynes could not remember the events of April 17,
1993.  Consequently, the prosecutor resorted to asking him whether
he remembered specific portions of his testimony from the first
trial, and Haynes stated that he did recall giving such statements. 
Nevertheless, since both Haynes's and Billups' testimony at trial
was similar to their statements to the police, there was little to
be gained in suppressing their statements to police.  There is much
to be gained, however, in suppressing a defense witness's statement
given to the police which is contrary to that witness's testimony
at trial.  Therefore, a finding that a defendant has standing to
contest the voluntary nature of a defense witness's earlier
statement is dissimilar from the facts of the instant case.  We
agree with the State that defendant did not have standing to
question the voluntariness of Billups' and Haynes's statements made
to the police and, thus, defense counsel was not ineffective for
failing to pursue a motion to suppress.
                                    III
     McGuire's testimony, however, is more complicated, as she
failed to appear at the second trial, and the trial court allowed
her testimony from the first trial to be read into evidence.  We
choose to address McGuire's testimony in the context of the second
issue raised by defendant, whether defendant was denied a fair
trial due to the State's use of a prior inconsistent statement by
McGuire.  Defendant contends that the State improperly used as
substantive evidence McGuire's prior inconsistent statement, a
statement given to police in which McGuire stated that defendant
admitted to her that he had been involved in the murder.  The State
first responds that since this is the first time this issue has
been raised, defendant has waived the issue.  Second, the State
replies that inasmuch as McGuire's testimony contradicted and
damaged the State's case, it was proper to impeach McGuire with the
prior inconsistent statement, and that the prosecutor did not
improperly argue the statement as substantive evidence.  We find
that the introduction of McGuire's prior inconsistent statement
constituted substantive evidence and that such an error is plain
error, reviewable pursuant to Supreme Court Rule 615(a).  134 Ill.
2d R. 615(a).
     It is black-letter law that a witness's prior inconsistent
statement is admissible only to attack his credibility and cannot
be admitted as proof of the substance of the statement.  People v.
Gant, 58 Ill. 2d 178, 317 N.E.2d 564 (1974).  The purpose of
impeachment is to destroy credibility, not to prove the facts
stated in the impeaching statement, and what a witness says out of
court and out of the presence of defendant is pure hearsay and
incompetent.  People v. McGee, 39 Ill. 2d 265, 270, 235 N.E.2d 625,
628 (1968).
     Here, McGuire testified at the first trial that defendant was
with her the entire evening of April 17, 1993, and that defendant
made no mention to her about a shooting on that date.  The State
then confronted McGuire with People's exhibit 21, a four-page
statement she gave to police officer McCall on April 21, 1993, in
which she stated that defendant told her that a white female came
to the front door of the trailer and fired a shot and defendant
fired a shot in return.  McGuire denied making such a statement to
McCall.  
     At the second trial, defendant filed a motion in limine to
prohibit the State from introducing this statement as substantive
evidence.  The trial court granted the motion.  However, because
McGuire failed to appear, the State moved to have McGuire declared
unavailable, so that the State could use as evidence McGuire's
testimony from the first trial.  The trial court, over defendant's
objection, granted the State's motion.  
     Upon review of McGuire's testimony, it becomes painfully
obvious that the State's introduction of McGuire's testimony from
the first trial serves no other purpose than to highlight McGuire's
statement made to McCall on April 21, 1993, in which McGuire
implicated defendant.  McGuire's testimony at the first trial
actually gave defendant an alibi.  The only plausible explanation
for the State's introduction of McGuire's testimony was to use
McGuire's prior inconsistent statement as substantive evidence
against defendant.  Even though the trial court instructed the jury
that the prior inconsistent statement could only be used to assist
in deciding the weight to be given the testimony at trial, in our
estimation this did nothing to correct the problem in the instant
case.  See Tate, 30 Ill. 2d  at 403-04, 197 N.E.2d  at 28 (a
discussion of the difficult mental operation imposed upon jurors by
allowing impeachment of a witness by a prior inconsistent
statement).  We find that it was error for McGuire's testimony from
the first trial to be introduced by the State at the second trial
because McGuire's testimony at the first trial did nothing to
advance the State's case.  
     In response, the State contends that there is other sufficient
competent evidence to support defendant's conviction for murder,
viz., the testimony of Billups and Haynes, so that any error caused
by the introduction of McGuire's testimony is harmless at best.  We
disagree.  First, the fact that the jury was hung in the first
trial indicates that the evidence in this case is close.  Second,
as we previously discussed, Haynes's testimony in the second trial
was not overwhelming.  Haynes testified that he could not remember
what occurred on April 17, 1993, and that he suffered a seizure on
April 21, 1993, the date he was taken in for questioning in
conjunction with this case and allegedly gave an incriminating
statement against defendant.  The prosecutor did most of the
testifying for Haynes at the second trial by asking him whether he
made specific statements at the first trial.  Third, while Billups'
testimony was more damaging, it is somewhat suspicious in light of
the fact that the record reflects that Billups himself was at one
time a likely suspect in this homicide.  Also disturbing was
information brought out on the cross-examination of Billups by
defense counsel.  Billups testified that he was held for almost
three days at the county jail before implicating defendant.  After
considering the evidence as a whole, we conclude that defendant's
conviction was based in part on the incompetent evidence presented
during the reading of Francell McGuire's testimony from the first
trial in which her prior inconsistent statement was used as
substantive evidence against defendant.  The introduction of this
highly prejudicial evidence requires that this case be reversed and
the cause be remanded for a new trial free from such prejudicial
error.
     For the foregoing reasons, the judgment of the circuit court
of St. Clair County is reversed, and the cause is remanded for a
new trial.

     Reversed and remanded.

     MAAG and HOPKINS, JJ., concur.                                      NO. 5-94-0486
                                     IN THE
                          APPELLATE COURT OF ILLINOIS
                                 FIFTH DISTRICT
___________________________________________________________________________
THE PEOPLE OF THE STATE OF ILLINOIS,)  Appeal from the 
                                    )  Circuit Court of 
     Plaintiff-Appellee,            )  St. Clair County.
                                    )  
v.                                  )  No. 93-CF-380
                                    )
MICHAEL BARTON,                     )  Honorable
                                    )  James K. Donovan,
     Defendant-Appellant.           )  Judge, presiding.  
___________________________________________________________________________

Opinion Filed:                 February 28, 1997
___________________________________________________________________________

Justices:      Honorable Richard P. Goldenhersh, J.
                         
               Honorable Gordon E. Maag, J., and 
               Honorable Terrence J. Hopkins, J.,
               Concur
___________________________________________________________________________
                         
Attorneys      Daniel M. Kirwan, Deputy Defender, Janet Gandy Fowler, 
for            Assistant Defender, Office of the State Appellate Defender,
Appellant      Fifth Judicial District, Route 15 East, P.O. Box 2430,
               Mount Vernon, IL 62864
___________________________________________________________________________

Attorneys      Robert B. Haida, State's Attorney, St. Clair County 
for            Courthouse, Belleville, IL 62220
Appellee       
               Norbert J. Goetten, Director, Stephen E. Norris, Deputy
               Director, Philip B. Alfeld, Contractual Attorney, Office of
               the State's Attorneys Appellate Prosecutor, Route 15 East,
               P.O. Box 2249, Mt. Vernon, IL 62864
___________________________________________________________________________