People v. McGath
83 N.E.3d 671
Ill. App. Ct.2017Background
- Marcus E. McGath was charged (amended to 720 ILCS 570/401(d)) with delivering <1 gram of cocaine to a police confidential source on Nov. 4, 2014; a jury convicted him after a May 2015 trial and he was sentenced to 25 years.
- The confidential source (Coartney Barton) arranged the buy by texting a number saved as “Katrina,” went to defendant’s home, handed $40 to McGath, and received a small amount of crack cocaine; an audio recording of the encounter and forensic testing (0.1 g cocaine) were introduced.
- Katrina Ross (defendant’s girlfriend) answered the door during the transaction; defense theory was that Ross, not McGath, provided the drugs. Ross was present in court for part of the day but was not subpoenaed or called; after trial she signed an affidavit claiming responsibility for the sale.
- At trial the court and parties discussed that Ross might invoke the Fifth Amendment; defense counsel did not subpoena her and did not call her. After conviction, defense counsel sought a new trial based on Ross’s affidavit; the court denied the motion and refused further testimony/explanation about her absence.
- On appeal McGath raised: insufficiency of the evidence; ineffective assistance (failure to subpoena/call Ross); failure to hold a Krankel hearing; erroneous denial of an offer of proof about Ross’s absence; and double enhancement at sentencing. The Fourth District affirmed.
Issues
| Issue | State (People) Argument | McGath Argument | Held |
|---|---|---|---|
| Sufficiency of evidence | Audio, Barton’s testimony, and forensics sufficiently proved McGath delivered cocaine | Testimony contradicted audio; circumstantial evidence pointed to Ross | Affirmed—viewing evidence in light most favorable to prosecution, jury could find guilt beyond reasonable doubt |
| Ineffective assistance (failure to subpoena/call Ross) | Counsel reasonably declined to call Ross who likely would invoke Fifth; record inadequate to resolve on direct appeal | Counsel was ineffective for not calling subpoenaing Ross; her post-trial affidavit is exculpatory | Not resolved on direct appeal—claim better suited to postconviction proceedings because the record lacks what counsel knew/relied on at trial |
| Krankel hearing (trial court should sua sponte inquire) | Krankel applies to pro se posttrial claims; no pro se claim was made here | Trial court should have conducted Krankel inquiry because counsel’s posttrial comments suggested ineffectiveness | No Krankel duty—Krankel is triggered only by a defendant’s pro se posttrial claim; court properly declined to hold one |
| Offer of proof about Ross’s absence | Denying further offer of proof was proper and any challenge is waived; post-trial affidavit irrelevant to trial record | Court erred by denying offer to explain Ross’s absence and exclude relevant exculpatory testimony | No reversible error—information about why Ross was absent after trial is irrelevant to the record; the issue ties into ineffective-assistance claim more appropriately raised in postconviction proceedings |
| Double enhancement at sentencing | Court’s community-harm remarks were proper context and not a prohibited double enhancement; issue forfeited and not plain error | Court relied on societal harm inherent in drug delivery, producing double enhancement | Forfeited and not plain error; on the merits commentary about drug harm did not constitute improper double enhancement |
Key Cases Cited
- Krankel v. People, 102 Ill. 2d 181 (Ill. 1984) (trial court must inquire when defendant files pro se posttrial claim of ineffective assistance)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (two-prong test for ineffective assistance of counsel)
- Bew v. People, 228 Ill. 2d 122 (Ill. 2008) (insufficient direct-record showing of ineffective assistance may be pursued in postconviction proceedings)
- Phelps v. People, 211 Ill. 2d 1 (Ill. 2004) (prohibition on using a factor both as element of offense and as aggravating sentencing factor)