Illinois Official Reports

Appellate Court

People v. McCallum, 2019 IL App (5th) 160279

Appellate Court 

Caption

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. 

RANDY McCALLUM, Defendant-Appellant.

District & No. Fifth District 

No. 5-16-0279

Filed December 6, 2019

Decision Under 

Review

Appeal from the Circuit Court of St. Clair County, No. 09-CF-1442; 

the Hon. John Baricevic and the Hon. Heinz M. Rudolf, Judges, 

presiding.

Judgment Affirmed.

Counsel on

Appeal

James E. Chadd, Jacqueline L. Bullard, and John M. McCarthy, of 

State Appellate Defender’s Office, of Springfield, for appellant.

Patrick Delfino, Patrick D. Daly, and Max C. Miller, Special 

Prosecutors, of State’s Attorneys Appellate Prosecutor’s Office, of 

Mt. Vernon, for the People.

Panel JUSTICE OVERSTREET delivered the judgment of the court, with 

opinion.

Justices Barberis and Boie concurred in the judgment and opinion.
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OPINION

¶ 1 In February 2016, a St. Clair County jury found the defendant, Randy McCallum, guilty of 

two counts of first degree murder for the September 2009 shooting deaths of Charles Black 

and Kevin McVay. Viewed in the light most favorable to the State, the evidence at trial 

established that the defendant killed Black and McVay in front of his ex-girlfriend’s house and 

dropped a cigarette butt at the crime scene, that an eyewitness to the murders identified the 

defendant as the shooter, and that, in a dying declaration, Black also identified the defendant 

as the shooter. The evidence further established that the defendant made false exculpatory 

statements when questioned about the murders and made additional statements demonstrating 

his consciousness of guilt during a subsequent telephone conversation with his mother and 

sister. With respect to the former, the jury was shown redacted video recordings of two 

postarrest interviews that the defendant gave to investigators from the Illinois State Police. On 

appeal, arguing that he should be granted a new trial, the defendant contends that the circuit 

court abused its discretion in denying his pretrial motion to prohibit the State’s introduction of 

the redacted recording of the second interview. For the reasons that follow, we disagree and 

affirm the defendant’s convictions.

¶ 2 BACKGROUND

¶ 3 In September 2009, the defendant’s sister, Rachelle McCallum, was dating the defendant’s 

friend, Devion Kidd, and the defendant, who lived in Fairview Heights, was or had recently 

been dating Tatanisha Banks. Tatanisha lived in a house on the 1100 block of North 48th Street 

in Washington Park with her sisters Taquela and Tierra Banks. The defendant helped the Banks 

sisters move into the house in August 2009. 

¶ 4 On the morning of September 17, 2009, the defendant was at the Banks sisters’ house 

visiting Tatanisha. On September 18, 2009, Tierra and Tatanisha went out with friends around 

midnight and returned home around 3 a.m. Sometime thereafter, Black and McVay drove to 

the sisters’ house in Black’s car, which Black parked on the street in front of the house. Taquela 

was not home that night.

¶ 5 At approximately 4:35 a.m., Black called 911 reporting that he had just been shot on 48th 

Street and that “Randy McCallum” was “the shooter.” On the recording of the 911 call, it is 

clear that Black was experiencing difficulties breathing and communicating. Black can be 

heard pleading with “Randy” following the sound of multiple gunshots. Black’s brief call 

abruptly ends after the firing of additional gunshots and his apparent death rattle are heard.

¶ 6 When the police who responded to Black’s 911 call arrived at the Banks sisters’ house, 

they found McVay’s body in the ditch by the street near Black’s car. Approximately 30 feet 

away, Black’s body was on the ground in the front yard next to a tree, with the cell phone that 

he used to call 911 still in his hand.

¶ 7 An autopsy later revealed that McVay had been shot three times in the lower abdomen and 

once in the head. The headshot proved fatal and resulted in a wound that was consistent with 

a contact wound. An autopsy revealed that Black had also been shot numerous times about the 

body and had also died from a gunshot wound to the head.

¶ 8 Fired bullets recovered by the pathologist who performed the autopsies were consistent 

with 9-millimeter bullets, and 9-millimeter cartridge casings, all of which had been ejected 
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from the same handgun, were found at the crime scene. A fully loaded .30-30 Winchester rifle 

with no fingerprints on it was found on the ground along the fence of a sewage pump station 

adjacent to the Banks sisters’ front yard. A vehicle repair estimate for Kidd’s vehicle dated 

September 2, 2009, was found in the ditch near McVay’s body. Additionally, a cigarette butt 

with the defendant’s DNA on it was discovered on the street near Black’s car. The crime scene 

investigator who collected the cigarette butt later testified that it “appeared to be fresh,” 

explaining that “it still ha[d] the gray ash on the end of [it].” 

¶ 9 Tierra witnessed part of the incident from her bedroom window, which overlooked the 

front yard of the house. When interviewed by investigators on September 18, 2009, Tierra gave 

two video-recorded statements regarding what she had seen and heard. In her first statement, 

Tierra indicated that she had heard arguing outside her window and had heard a man, whose 

voice she did not know, repeatedly say, “It’s me, bro.” When she looked out, she saw a man, 

whom she could not identify, shoot a man who was on the ground by the tree in her front yard. 

In her second September 18, 2009, video-recorded statement, Tierra identified the defendant 

as the man who she had heard talking and had seen shooting outside her bedroom window.

¶ 10 On the night of December 8, 2009, the defendant was arrested at a home in Lebanon. On 

December 9, 2009, the defendant waived his Miranda rights and was twice interviewed at the 

St. Clair County jail by Special Agents James Walker and Robert O’Brien of the Illinois State 

Police. See Miranda v. Arizona, 384 U.S. 436 (1966). Both interviews were video recorded, 

and redacted copies of both recordings were presented at trial. As redacted, the recording of 

the first interview was approximately 35 minutes long, and the recording of the second was 

approximately 18 minutes long. The record indicates that transcripts of the interviews were 

never prepared.

¶ 11 During the first video-recorded interview, which commenced at approximately 3:40 p.m., 

the defendant denied the investigators’ suggestions that he had been hiding out in Lebanon and 

Alorton. He acknowledged, however, that he was aware that the investigators had been wanting 

to talk to him, that he had only known the resident of the home where he had been arrested for 

“a couple of months,” and that he had met the resident through Robert Jones. Additionally, the 

defendant did not deny the investigators’ suggestions that he had narrowly avoided being 

arrested at a club in East St. Louis and that he had not previously been arrested in Alorton 

because his father had significant “pull” with the Alorton Police Department. The defendant 

laughed and joked with the investigators about his near arrest at the club, and he advised them 

that he was going to contact them after his upcoming birthday. The defendant further advised 

that he did not have a driver’s license. 

¶ 12 When asked if he knew Black and McVay, the defendant paused before stating that he did. 

The defendant also smiled when stating that he knew Black. Referring to Black and McVay as 

his “partners,” the defendant acknowledged that he knew that they had been murdered. When 

Walker advised the defendant that people were claiming that he had killed Black and McVay, 

the defendant claimed that he knew nothing about the killings. The defendant further claimed 

that he could not recall where he had been on the morning in question. The defendant 

acknowledged that he, Black, and McVay had been “close” and had grown up together.

¶ 13 When asked about Tatanisha, the defendant indicated that he used to see her, but he had 

not been to her house in Washington Park since helping her move in August 2009. When the 

defendant was advised that Tatanisha and Taquela had both claimed that he had been at their 

house several times since then, the defendant indicated that he did not remember being there.
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¶ 14 When Walker falsely claimed that Kidd and Jones had both implicated the defendant in the 

murders, the defendant indicated that he had no idea why they would do that because he had 

not done anything. When Walker asked the defendant if he was going to confess to the murders, 

the defendant laughed and again claimed no knowledge of what had occurred. He also insisted 

that Black and McVay were his “partners.” Thereafter, O’Brien asked Walker if they were 

going to let the defendant know about the “secret,” i.e., “the phone call.” When the defendant 

asked about the phone call, Walker indicated that he was not yet ready to discuss it.

¶ 15 After advising the defendant that the investigation had led the police to conclude that the 

defendant, Kidd, and Jones were involved in the murders and that the defendant was the 

shooter, Walker again asked the defendant if he was willing to confess. In response, the 

defendant again laughed and insisted that he could not recall where he had been on the morning 

in question.

¶ 16 When the defendant was confronted with the fact that he did not act as if he cared that his 

friends had been killed, the defendant indicated that he felt bad for them but had not murdered 

them and had not learned of their deaths until days after the fact. The defendant further 

indicated that he lost friends all the time. When the defendant was asked where he had been 

when he first learned that Black and McVay had been murdered, he advised that he could not 

recall, but he might have been at a friend’s house. When O’Brien asked the defendant why the 

defendant had smiled when Walker first mentioned Black’s name, the defendant stated that he 

had to “think about the name.” The defendant also indicated that he smiled because he knew 

that Walker was going to accuse him of having committed the murders.

¶ 17 When the defendant was asked if he could assist in the investigation by providing an alibi 

that the investigators could verify, he indicated that he had probably been at a hotel with a girl 

when the murders occurred. When asked which hotel, the defendant stated that he had 

“probably” been at a hotel.

¶ 18 At one point, while reading from a notepad, Walker falsely claimed that Jones had 

specifically stated, “[The defendant] told me he killed them two. [The defendant] told me he 

wasn’t worried about it.” In response, the defendant laughed and indicated that if Jones did 

make such statements, Jones was talking “crazy.” The defendant also laughed in disbelief when 

Walker again falsely claimed that Kidd had been cooperating as well.

¶ 19 Toward the end of the first interview, the investigators reiterated that they had a secret, and 

they advised the defendant that their secret constituted evidence of his guilt. Walker then asked 

the defendant if he would be willing to confess if he was shown the evidence of his guilt. In 

response, the defendant denied that such evidence existed and explained that regardless of what 

the investigators showed him, he would not confess to something he did not do. The defendant 

agreed to speak with Walker and O’Brien at a later time, and he was told to think about where 

he might have been when the murders occurred.

¶ 20 We note that on the unredacted recording of the first interview, the defendant was 

questioned about a string of robberies that had recently occurred in Lebanon and about drugs 

and ammunition that had been found in the home where he was arrested. The defendant also 

acknowledged that he had recently violated the conditions of his parole and knew that there 

was a resulting warrant out for his arrest. The defendant claimed that when he was arrested in 

Lebanon, he had been “on the run” because of the warrant.

¶ 21 The defendant’s second video-recorded interview with Walker and O’Brien commenced 

approximately two hours after the conclusion of the first. After the defendant again waived his 
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Miranda rights, Walker referenced the secret that had previously been mentioned and advised 

the defendant that there was an exception to the old saying, “Dead men tell no tales.” Walker 

then played the recording of Black’s 911 call, while the defendant sat silently at the interview 

table with his head down on his arms. At the conclusion of Black’s call, Walker asked the 

defendant if it sounded familiar. In response, the defendant raised his head and indicated that 

it did not. When Walker advised the defendant that Black had placed the 911 call after the 

defendant had shot him “the first time,” the defendant denied shooting Black, stating that the 

call was “bulls***.” When the defendant was asked why Black had identified him as the 

shooter, the defendant initially denied that Black had done so. The defendant then 

acknowledged that Black had stated his name but again insisted that the call was “bulls***.” 

When asked why Black would have claimed that the defendant had shot him, the defendant 

persisted that the call was “bulls***” and suggested that Black was confused. When the 

investigators offered to play the recording a second time, the defendant stated that he did not 

need to hear it again.

¶ 22 Walker subsequently commented that the 911 recording of Black being fatally shot and 

identifying the defendant as the shooter was “powerful evidence” that the defendant could not 

overcome. Walker further advised that he had spoken to witnesses who had placed the 

defendant at the scene of the murders. The defendant suggested that Walker’s claims were 

“bulls***” and that Black’s 911 call could not place him at the scene of a crime he did not 

commit. In response, Walker advised that Black had placed the defendant at the scene and had 

clearly identified him as the shooter. Walker emphasized that of all the people Black could 

have named, Black had named the defendant. When O’Brien reiterated that other people had 

also placed the defendant at the scene, the defendant indicated that those people did not know 

what they were talking about. When the defendant suggested that the 911 call was not evidence 

against him, Walker explained that “legally” it was evidence, and the defendant’s attorney 

would have to recognize it as such. The defendant argued that Black did not know who shot 

him and could have named anyone.

¶ 23 After Walker subsequently advised the defendant that his inability to recall his whereabouts 

at the time of the murders was not a defense, the defendant indicated that he might have been 

at a friend’s house when the killings occurred. The investigators again stressed the compelling 

nature of Black’s 911 call, advising the defendant that dying people do not generally make 

false accusations or random identifications. Again stating that there were eyewitnesses who 

corroborated Black’s call, Walker encouraged the defendant to tell the truth about what had 

happened. Walker asserted that he knew that the defendant had shot and killed Black and 

McVay but could only speculate as to why. When the defendant asked Walker, “How do you 

know I did it,” Walker again used his notepad to falsely suggest that Jones had specifically 

stated, “[The defendant] told me he killed them two. [The defendant] told me he wasn’t worried 

about it.” In response, the defendant again denied killing the men and indicated that what Jones 

had claimed was “bulls***.” 

¶ 24 When subsequently discussing the defendant’s apparent lack of remorse over the loss of 

his friends, O’Brien again noted that the defendant had smiled when Black’s name was first 

mentioned. O’Brien further noted that the defendant had laughed at times when Black’s name 

was subsequently mentioned. O’Brien asked the defendant if the defendant thought “this [was] 

funny.” In response, the defendant indicated that he had smiled and laughed because he was 

being accused of killing “some motherf***” that he did not kill. The second December 9, 2009, 
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interview concluded with the defendant again stating that he did not murder anyone. Notably, 

during the second interview, the defendant’s tone and demeanor were markedly more serious 

than they were during the first.

¶ 25 We note that on the unredacted recording of the second interview, Walker extensively 

discussed the “dying declaration” exception to the hearsay rule and opined as to how a jury 

would perceive Black’s 911 call. Walker further suggested that in the absence of an alibi 

defense that the defendant’s attorney could assert on the defendant’s behalf Black’s dying 

declaration would legally be taken “as fact” and the jury would view the defendant’s bare 

denials as “bulls***.” The unredacted recording of the second interview concluded with the 

defendant requesting his attorney and stating, “Let’s go to court.”

¶ 26 On December 11, 2009, Tierra gave a third video-recorded statement to investigators. In 

her third statement, she again identified the defendant as the man she had heard and seen 

outside her window, and she again advised that she had seen the defendant shoot the man by 

the tree.

¶ 27 On December 14, 2009, the State charged the defendant with two counts of first degree 

murder (720 ILCS 5/9-1(a)(1) (West 2008)). The charges alleged that the defendant shot and 

killed Black and McVay on September 18, 2009, with the intent to kill or do great bodily harm.

¶ 28 In February 2013, after Tierra agreed to write an apology to the defendant and his family 

for implicating him in her statements to the police, a relative of the defendant’s, whom Tierra 

knew as “Jaymo,” contacted her via Facebook and asked her to memorialize the apology in an 

affidavit. Tierra agreed and met Jaymo across the street from the East St. Louis Public Library, 

where he presented her with an affidavit form on which to copy the apology she had written. 

After the affidavit was prepared and notarized, Tierra gave it back to Jaymo. In the affidavit, 

Tierra apologized for saying that the defendant was the shooter, explaining that she had done 

so out of fear and intimidation after the police had threatened her.

¶ 29 On September 9, 2013, the cause proceeded to a jury trial that ultimately resulted in a 

mistrial. The record indicates that the mistrial resulted from a holdout juror, who was later the 

focus of a resulting investigation. The record further indicates that as part of that investigation, 

audio recordings of the telephone calls that the defendant made from the St. Clair County jail 

during his first trial were reviewed by the St. Clair County Sheriff’s Department.

¶ 30 On the evening of September 10, 2013, while the defendant was incarcerated in the 

St. Clair County jail during his first trial, he called his mother, Gwendolyn McCallum. The 

defendant placed the call using the jail’s inmate telephone system, which records all calls. 

During his recorded conversation with Gwendolyn, the defendant explained that he was 

considering testifying that he shot McVay and Black in self-defense after they threatened him 

over money that he owed them. Referencing the rifle found along the fence by the sewage 

pump station, the defendant explained that he could claim that after Black and McVay retrieved 

the rifle from the trunk of Black’s car, they had used it to try to “walk [the defendant] in[to] 

the house.” The defendant suggested that he could thus claim that Black had not called 911 

until after the defendant had gotten “the upper hand” in the situation. The defendant indicated 

that he could tell the jurors that he “did what [he] had to do” under the circumstances. In 

response, Gwendolyn reminded the defendant that he only needed one of the jurors to believe 

that he was not guilty.

¶ 31 Rachelle subsequently joined the conversation and repeatedly advised the defendant to not 

testify or admit to anything. Rachelle also reminded the defendant that he only needed one 
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person to believe he was not guilty. Rachelle then repeatedly assured the defendant that not all 

of the jurors believed that he was guilty. Rachelle told the defendant that he needed to pay 

attention to the jury and to think “long and hard” about that “one person.” Rachelle told the 

defendant that he was “good.” The defendant indicated that he understood what Rachelle was 

saying. Rachelle then told the defendant that since he had not done anything, he should not 

admit to anything. The defendant agreed that he had not done anything, but he explained that 

he was “trying to win.” Rachelle again assured the defendant that not all of the jurors believed 

that he was guilty and again advised him to pay attention to the jury. The conversation then 

turned to family matters, and Rachelle told the defendant to call back later because Kidd 

wanted to talk to him.

¶ 32 In February 2016, the cause proceeded to a second jury trial. Prior to trial, the defendant 

filed numerous motions, one of which was a motion in limine requesting that the State be 

precluded from introducing the video recordings of his two postarrest interviews. The 

defendant noted that the recording of the first interview included references to the defendant’s 

prior criminal history and to cocaine, ammunition, and robberies that were unrelated to the 

present case. With respect to the recording of the second interview, the defendant suggested 

that it primarily consisted of Walker’s legal opinions, which included Walker’s observations 

as to what a “jury will think if [the defendant] does not come up with a defense.” Noting that 

the defendant had denied the investigators’ accusations throughout both interviews, the 

defendant described the recordings as “exculpatory.” 

¶ 33 At the hearing on the defendant’s motion in limine, the defendant reiterated his previous 

objections to the recording of the first interview and complained that, during the second 

interview, Walker went “on and on and on” about his opinions of the case. Counsel argued that 

introducing the recording of the second interview would serve no purpose other than to allow 

Walker to essentially “give a closing argument” during trial. In response, the State indicated 

that it had already redacted counsel’s objected-to references from the recording of the 

defendant’s first interview. With respect to the recording of the second interview, the State 

explained that it wanted to further review the recording and possibly work with defense counsel 

to determine what redactions might be appropriate. Chief Circuit Court Judge John Baricevic, 

who had presided over the defendant’s case since its inception, took the defendant’s motion 

under advisement, pending the parties’ attempt to negotiate an agreement on the matter.

¶ 34 At the commencement of the defendant’s second trial, Judge Baricevic noted that the 

defendant’s motion in limine was still pending. Defense counsel advised the court that the 

parties had not reached an agreement with respect to the second recording and that the 

defendant was standing on his previous argument that neither of the recordings should be 

admitted. Counsel emphasized that the defendant had not confessed to the murders during 

either interview. In response, the State argued, inter alia, that the redacted recording of the first 

interview included statements that reflected the defendant’s consciousness of guilt and that the 

recording of the second interview was relevant because it included the defendant’s reactions 

and demeanor when confronted with the recording of Black’s 911 call. The State also indicated 

that in light of the defendant’s previously stated concerns, it had edited the recording of the 

second interview by eliminating Walker’s extensive discussions regarding the strength of 

Black’s “dying declaration” and how a jury would view it.

¶ 35 Judge Baricevic subsequently advised the parties that the Honorable Heinz Rudolf would 

be presiding over the defendant’s trial. Because Judge Baricevic had previously taken the 
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defendant’s motion in limine under advisement, however, it was agreed that Judge Baricevic 

would rule on the motion after viewing the redacted recordings of the interviews during jury 

selection. Thereafter, Judge Baricevic viewed the redacted recordings and entered a written 

order finding that they were admissible in that they were probative and did not have a high 

potential for prejudice.

¶ 36 In its opening statement to the jury, the State primarily discussed the recording of Black’s 

911 call and its specific contents. The State advised the jurors that they would hear the 

defendant shooting Black and McVay and would further hear Black identify the defendant as 

the shooter before dying. The State further advised that when Black’s body was discovered, 

the cell phone that he used to place the 911 call was “still clenched in his right hand.” The State 

emphasized that the forensic evidence from the crime scene included a cigarette butt with the 

defendant’s DNA on it. The State did not discuss Tierra, the defendant’s postarrest interviews, 

or the recorded conversation that the defendant made from the St. Clair County jail on 

September 10, 2013.

¶ 37 Defense counsel urged the jurors to carefully analyze the State’s evidence because 

unanswered questions about the murders remained despite “the 911 tape.” With respect to the 

cigarette butt found at the crime scene, counsel advised the jurors that the defendant used to 

frequent the Banks sisters’ house and may have been there earlier on the day of the murders. 

Counsel also noted that while Tierra’s name would likely come up during the trial, she had 

given several inconsistent statements over the years. 

¶ 38 The recording of Black’s 911 call was admitted and played for the jury on the first day of 

the defendant’s four-day trial. On the second day, the State presented forensic evidence, Tierra 

and Walker testified, and the jury viewed the redacted video recordings of the defendant’s two 

postarrest interviews. On the third day, the State presented additional forensic evidence and 

the recorded conversation that the defendant had with Gwendolyn and Rachelle on September 

10, 2013, was admitted and published through the testimony of Sergeant Steven Strubberg of 

the St. Clair County Sheriff’s Department. As the sole witness for the defense, Gwendolyn also 

testified on the third day of trial. On the fourth and final day, the parties gave their closing 

arguments, and the jury returned its verdict finding the defendant guilty on both counts.

¶ 39 When Tierra testified, she indicated that the defendant had frequently visited her home in 

the weeks prior to the murders because he and Tatanisha were “still close” at the time. Tierra 

testified that the defendant was at the house when she left for work on September 17, 2009, at 

11 a.m. Tierra stated that she had grown up with Kidd and Jones but had not known Black or 

McVay. Tierra indicated that the rifle found along the fence of the pump station had previously 

been inside her home but that she had not seen it since August 2009.

¶ 40 On September 18, 2009, Tierra and Tatanisha went “riding around” with some friends 

around midnight and returned home around 3 a.m. After returning, Tierra retired to her 

bedroom at the front of the house and went to sleep. She was later awoken by the sounds of 

arguing outside, and she heard the defendant say, “It’s me, [b]ro,” three or four times. She then 

heard multiple gunshots, all of which sounded the same. Tierra testified that when she 

subsequently looked out her bedroom window, she saw two men on the ground in the front 

yard, one by the ditch and one by a tree. She also saw two men standing in the yard, one of 

whom was standing by the man on the ground by the tree. She then saw the man standing near 

the tree shoot the man on the ground by the tree. Thereafter, a gold vehicle that looked like 

Kidd’s and had been parked on the street near Black’s car “pulled off” and drove away. Tierra 
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testified that she could not identify either of the two men that had been standing in her yard 

but that the defendant was “[p]ossibly” the man who had shot the man on the ground by the 

tree. Tierra further testified that she was positive she had heard the defendant’s voice outside 

her window, but she also indicated that she was not certain that she had.

¶ 41 Tierra acknowledged that in her first video-recorded September 18, 2009, interview with 

the police, she had claimed that she could not identify the man who had been standing near the 

tree or the voice that she had heard outside her window. She further acknowledged that in her 

second video-recorded September 18, 2009, interview and in a third video-recorded interview 

that she gave on December 11, 2009, she had stated that she had heard the defendant say, “It’s 

me, [b]ro,” and had also seen the defendant shoot the man on the ground by the tree.

¶ 42 With respect to the threats that she referenced in her February 2013 affidavit apologizing 

to the defendant and his family, Tierra indicated that although she had not been physically 

threatened by the police, she had feared that she “was going to go to jail or something” if she 

did not implicate the defendant. She explained that when she was first interviewed, the police 

had repeatedly accused her of lying and had threatened to charge her for it. Tierra testified that 

no one had forced or threatened her into preparing her February 2013 affidavit. The jury was 

later instructed that it could consider Tierra’s prior inconsistent statements as substantive 

evidence. See Illinois Pattern Jury Instructions, Criminal, No. 3.11 (approved Oct. 17, 2014); 

People v. Patterson, 2017 IL App (3d) 150062, ¶ 27.

¶ 43 Walker testified that he made several false statements to the defendant during the two 

video-recorded interviews that were conducted on December 9, 2009. Walker acknowledged 

that he had lied when claiming that Jones and Kidd had implicated the defendant in the murders 

and had lied when suggesting that Jones had made the statements that Walker read from his 

notepad. Walker explained that lying to the subject of an interview was “a common 

interrogation technique” used to evaluate the subject’s responses and reactions. When crossexamined, Walker acknowledged that during both interviews, the defendant’s responses 

“pretty much were, ‘I wasn’t there,’ ‘I didn’t do it,’ ‘It’s bulls***,’ something in those 

contexts.”

¶ 44 Strubberg testified that inmates at the St. Clair County jail are generally allowed to make 

outgoing calls using jail-operated telephones from after breakfast until 10 p.m. All such calls 

are recorded and stored in an off-site system, and a message advising that the calls are recorded 

is heard at the commencement of every call. Strubberg explained that when placing an outgoing 

call from the jail, an inmate must use two specifically assigned identification numbers. 

Strubberg further explained that although it is a violation of jail policy for an inmate to use 

another inmate’s identification numbers, the numbers were sometimes stolen, sold, or traded.

¶ 45 Strubberg testified that the call the defendant made to Gwendolyn and Rachelle on the 

evening of September 10, 2013, had been placed using another inmate’s identification 

numbers. Strubberg further testified that when the call was made, the defendant had been 

housed in a unit of the jail with restricted one-hour phone-use times. Strubberg identified the 

defendant’s voice on the recording of the call, stating that he was familiar with the defendant’s 

voice and was positive that the male voice on the recording was his. When cross-examined, 

Strubberg acknowledged that the defendant’s demeanor and tone had changed when the 

recorded conversation turned to family matters.

¶ 46 Gwendolyn testified that the defendant frequently called her from the St. Clair County jail. 

She further testified that the defendant had called her two or three times a day during his “last 
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trial” and that the call she received from him on the evening of September 10, 2013, had been 

placed during his last trial. After counsel had Gwendolyn listen to the recording of the call, she 

acknowledged that the voices on the recording were hers, the defendant’s, and Rachelle’s. 

Gwendolyn testified that she could hear fear and frustration in the defendant’s voice when he 

was discussing whether to testify in his defense. Gwendolyn noted that the defendant’s voice 

had subsequently “calmed down” when the conversation about the trial ended. Counsel had 

Gwendolyn confirm that toward the end of the conversation about whether the defendant was 

going to testify, the defendant had stated that he knew that he had not done anything and was 

“trying to win.” Gwendolyn advised the jurors that the defendant had not subsequently testified 

in his defense.

¶ 47 In its closing arguments, the State maintained that it had proven beyond a reasonable doubt 

that Black and McVay were “executed” and that the defendant was the executioner. The State 

replayed and discussed at length the recording of Black’s 911 call, emphasizing that Black had 

“unequivocally” identified the defendant as the shooter before he died. The State further

emphasized that a fresh cigarette butt with the defendant’s DNA on it had been found on the 

street near Black’s car. The State submitted that Tierra had told the police the truth in her 

second and third video-recorded interviews and that her demeanor while testifying suggested 

that she had been afraid to tell the truth at trial. The State also intimated that fear had prompted 

Tierra to prepare her recantation affidavit for Jaymo in February 2013. The State argued that 

the vehicle repair estimate found near McVay’s body was consistent with the notion that Kidd 

had given the defendant a ride to and from the Banks sisters’ house on the morning of the 

murders. The State further argued that the self-defense discussion that the defendant had with 

Rachelle and Gwendolyn was an admission that he had committed the murders. The State did 

not reference the defendant’s postarrest interviews other than noting that the defendant had 

indicated that he, Black, and McVay had been “partners.”

¶ 48 In response, defense counsel argued that there were too many unanswered questions to 

allow for a finding of guilty beyond a reasonable doubt. Counsel suggested, inter alia, that by 

basing their investigation solely on Black’s 911 call, the police had neglected to adequately 

investigate whether Jones or Kidd might have been the shooter. Counsel argued that the 

defendant might have dropped the cigarette butt found on the street when he visited Tatanisha 

on the morning of September 17, 2009. Counsel argued that Tierra had told the truth in her 

first video-recorded interview and that the fear she exhibited while testifying reflected her fear 

of what might happen if she did not say what the investigators had “manipulated” her to say. 

Counsel maintained that the recording of the defendant’s September 2013 phone call to 

Gwendolyn and Rachelle had captured the fear and frustration that he had been experiencing 

during his first trial and that the defendant had considered claiming self-defense because he 

was scared and desperate. Emphasizing that the defendant had also said that he had not done 

anything, counsel suggested that the State was taking the phone conversation out of context. 

Urging the jurors to return a verdict finding the defendant not guilty, counsel contended that 

the State had failed to prove its case beyond a reasonable doubt.

¶ 49 In rebuttal, the State argued that in addition to Black’s 911 call, the fresh cigarette butt, the 

accounts that Tierra gave in her second and third interviews, and the defendant’s admission to 

Rachelle and Gwendolyn, the defendant’s guilt was further supported by statements he made 

during his postarrest interviews. The State emphasized that the defendant had claimed, 

inter alia, that he could not remember where he was “the night two of [his] friends were 
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murdered.” The State further argued that when the defendant listened to his “partners being 

murdered” on the recording of the 911 call, he had shown “absolutely no emotion” because he 

was the person doing the shooting. The State contended that the 911 call was “the ultimate 

truth detector in this case” because Black had no motivation to either lie or “frame his friend.” 

The State maintained that there was no fear in the defendant’s voice when he spoke with 

Rachelle and Gwendolyn from jail.

¶ 50 On February 25, 2016, after deliberating for approximately four hours, the jury found the 

defendant guilty on both counts of first degree murder. During its deliberations, the jury 

requested and was provided with the recording of Black’s 911 call and the recording of the 

defendant’s September 2013 conversation with Gwendolyn and Rachelle. The parties agreed 

that it was proper to allow the jury to hear the recordings as many times as it wanted so that it 

could independently evaluate the recordings’ contents.

¶ 51 In March 2016, the defendant filed a motion for a new trial, alleging, inter alia, that the 

circuit court erred in allowing the State to show the jury the redacted video recording of his 

second postarrest interview with the police. The motion alleged that the recording had no 

evidentiary value and was admitted for the sole purpose of allowing Walker “to opine on his 

theory of the case.”

¶ 52 When denying the defendant’s motion for a new trial, the circuit court noted that Judge 

Baricevic had viewed the redacted versions of the recordings before finding that they were 

admissible. The court declined to disturb Judge Baricevic’s ruling but noted the defendant’s 

objection. The circuit court subsequently entered judgment on the defendant’s convictions and 

sentenced him to mandatory consecutive terms of natural-life imprisonment. See 730 ILCS 

5/5-8-1(a)(1)(c)(ii), 5-8-4(a)(i) (West 2006); People v. Petrenko, 237 Ill. 2d 490, 505-07 

(2010). In June 2016, the defendant filed a timely notice of appeal.

¶ 53 DISCUSSION

¶ 54 The defendant argues that the circuit court abused its discretion in allowing the State to 

introduce the redacted video recording of his second postarrest interview and that the error 

warrants that he be granted a new trial. Citing People v. Hardimon, 2017 IL App (3d) 120772, 

the defendant maintains that the recording had no probative value and should not have been 

played for the jury. The defendant specifically claims that he was prejudiced by the portions 

of the recording during which the investigators commented on the evidentiary strength of 

Black’s 911 call and expressed their beliefs as to the defendant’s guilt. The State counters that 

Hardimon is readily distinguishable from the present case and that even assuming that the 

circuit court’s ruling on the defendant’s motion in limine was erroneous, the error was harmless 

beyond a reasonable doubt. We agree with the State.

¶ 55 Evidence is relevant if it has “any tendency to make the existence of any fact that is of 

consequence to the determination of the action more probable or less probable than it would 

be without the evidence.” Ill. R. Evid. 401 (eff. Jan. 1, 2011). “Any statement by an accused 

person, unless excluded by the privilege against self-incrimination or other exclusionary rules, 

may be used against him as an admission, even if it is not inculpatory or against interest.” 

People v. Summers, 353 Ill. App. 3d 367, 374-75 (2004). 

¶ 56 Statements made by police officers when questioning a defendant, including opinions and 

observations regarding the defendant’s guilt or credibility, are generally relevant and 

admissible to demonstrate the statements’ effects on the defendant, to provide context to the 
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defendant’s responses, or to explain the logic and course of the officers’ interview or 

investigation. See People v. Moore, 2012 IL App (1st) 100857, ¶ 52; People v. Theis, 2011 IL 

App (2d) 091080, ¶¶ 33-37; People v. Munoz, 398 Ill. App. 3d 455, 488 (2010). Such is the 

case even if the statements themselves would not be admissible as direct testimony. See Theis,

2011 IL App (2d) 091080, ¶¶ 35-37. “However, Illinois courts have long recognized, as a 

matter of common law, that a trial court may exercise its discretion to exclude evidence, even 

when it is relevant, if its prejudicial effect substantially outweighs its probative value.” People 

v. Walker, 211 Ill. 2d 317, 337 (2004). Illinois Rule of Evidence 403 likewise recognizes that 

“[a]lthough relevant, evidence may be excluded if its probative value is substantially 

outweighed by the danger of unfair prejudice.” Ill. R. Evid. 403 (eff. Jan. 1, 2011).

¶ 57 As a reviewing court, we will not reverse the circuit court’s ruling on a motion in limine

absent an abuse of discretion. People v. Hanson, 238 Ill. 2d 74, 96 (2010); People v. Enis, 139 

Ill. 2d 264, 281 (1990). An abuse of discretion will be found where the circuit court’s ruling is 

fanciful, arbitrary, or unreasonable or where no reasonable person would take the view adopted 

by the circuit court. People v. Donoho, 204 Ill. 2d 159, 182 (2003).

¶ 58 As previously indicated, the defendant cites Hardimon, 2017 IL App (3d) 120772, in 

support of his claim that he should be granted a new trial. In Hardimon, the defendant was 

interviewed by investigators following a fatal shooting outside a nightclub that the defendant 

had allegedly been kicked out of after allegedly arguing with the victim. See id. ¶¶ 15-24. 

During the interview, the defendant acknowledged that he had been outside the club when the 

shooting occurred, but he denied any involvement in the shooting and denied being ejected 

from the club following an argument. Id. ¶¶ 18-19, 36. At the defendant’s trial, a redacted 

video recording of the interview was shown to the jury, and the defendant was found guilty of 

first degree murder and unlawful possession of a weapon by a felon. Id. ¶¶ 15, 29. On appeal, 

the defendant claimed that he had been denied the effective assistance of counsel due to his 

attorney’s failure to file a motion to further redact the recording of the interview. Id. ¶ 32. The 

defendant specifically argued that “the final two-thirds” of the recording should have been 

redacted because the contents were irrelevant and more prejudicial than probative. Id. Our 

colleagues in the Third District agreed and granted the defendant a new trial. Id. ¶¶ 37-39, 46.

¶ 59 The Hardimon court indicated that the redacted recording of the defendant’s interview was 

approximately 80 minutes long and that the first 20 or 30 minutes included relevant discussions 

and admissions. Id. ¶¶ 34, 36. After approximately 30 minutes, however, the tenor of the 

interview shifted from conversational to accusatorial, and during the remaining 50 minutes, 

the police pressured and goaded the defendant to confess, despite his persistent claims of 

innocence. Id. ¶¶ 19, 36. The investigators also made numerous irrelevant and prejudicial 

statements, which included repeated accusations of guilt, suggestions that the defendant was a 

liar and a cold-blooded killer, comments as to how easy it would be for the State to convict the 

defendant, and implications that a jury would view the defendant with disgust. Id. ¶¶ 21-24, 

34, 36. While acknowledging that statements made by investigators during an interview are 

admissible to demonstrate the defendant’s responses or the statements’ effects on the defendant 

(id. ¶ 35), the Hardimon court determined that, because the defendant had not changed his 

version of events during the final two-thirds of interview, the final two-thirds had no probative 

value and were highly prejudicial (id. ¶¶ 37-38). The court thus concluded that defense 

counsel’s performance was deficient for failing to file a motion to redact the final two-thirds. 

Id. ¶ 37. Noting, inter alia, that there was no physical evidence directly connecting the 
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defendant to the murder and that no witnesses had identified the defendant as the shooter, the 

Hardimon court further concluded that the defendant had demonstrated resulting prejudice. Id.

¶ 39.

¶ 60 Notably, in People v. Dunbar, 2018 IL App (3d) 150674, our colleagues in the Third 

District declined to extend Hardimon where the interview in question only shared “some 

characteristics” of the Hardimon interview. See id. ¶ 53; see also People v. Whitfield, 2018 IL 

App (4th) 150948, ¶ 53 (finding Hardimon “factually distinguishable”). In Dunbar, the police 

responded to a call of an infant not breathing at the apartment where the defendant lived with 

his girlfriend, Leila Martin, and her infant son, J.M. Dunbar, 2018 IL App (3d) 150674, ¶¶ 3, 

19. When the police arrived, J.M. had no pulse, and there were obvious injuries to his head. Id.

¶ 3. Additional injuries were discovered after the infant was transported to a hospital 

emergency room, where he was pronounced dead. Id. ¶¶ 4, 12.

¶ 61 When the defendant was subsequently interviewed by the police, he indicated that J.M. had 

been put to bed without incident at approximately 10 p.m. and was fine when the defendant 

gave him a bottle around 2 or 3 a.m. Id. ¶ 6. The defendant advised that when Martin checked 

on J.M. about 30 minutes later, the child was not breathing. Id. When the defendant was asked 

how J.M. might have been injured, the defendant stated that “maybe J.M. had hit his head 

somehow.” Id. The Dunbar court described the remainder of the defendant’s interview as 

follows:

“As the interview progressed, the officers became more aggressive in their interview 

tactics. At no point, however, did defendant admit that he had committed or taken any 

part in the commission of the offenses, despite the police officers trying various 

interview techniques. The officers tried to get defendant to state that Martin had killed 

J.M., accused defendant of the crime, and told defendant that when the pictures of the 

dead infant would be shown, a jury would not believe defendant and would find that 

both defendant and Martin were responsible for the baby’s death.” Id.

¶ 62 At the defendant’s trial, the jury was shown a video recording of the interview. Id. ¶ 16. 

During closing arguments, defense counsel maintained that the defendant had not succumbed 

to the officers’ interrogation techniques because he was being forthright and truthful. Id. ¶ 19. 

The defendant was ultimately convicted of first degree murder and aggravated battery of a 

child. Id. ¶¶ 1, 20.

¶ 63 On appeal from his convictions, the defendant argued, inter alia, that defense counsel was 

ineffective for failing to move to redact certain portions of the video recording of his interview 

with the police. Id. ¶ 23. Citing Hardimon (id. ¶ 53), the defendant specifically maintained that 

counsel was ineffective for “failing to file a motion seeking to redact the portions of [the] 

interview in which meaningful conversation between defendant and the detectives ground to a 

halt” (id. ¶ 51).

¶ 64 When rejecting the defendant’s ineffective-assistance-of-counsel claim, the Dunbar court 

distinguished Hardimon on two grounds. Id. ¶¶ 51-54. Noting that there was no evidence in 

Hardimon that defense counsel “utilized the contested portions of the defendant’s interview to 

craft an argument” (id. ¶ 53), the court first found that counsel’s failure to file a motion to 

redact was a matter of trial strategy (id. ¶ 51). The court secondly found that even assuming 

counsel had filed a motion to redact, the defendant’s entire interview would have been admitted 

as relevant and probative. Id. ¶ 54. Noting that statements made by investigators during an 

interview are admissible to demonstrate the defendant’s responses or the statements’ effects 
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on the defendant, the Dunbar court concluded that the statements made during the defendant’s 

interview did not rise to “the same prejudicial level as the statements described in Hardimon” 

(id.), even though the interviews in both cases shared “some characteristics” (id. ¶ 53).

¶ 65 Here, the defendant’s reliance on Hardimon is misplaced, and we reject his assertion that 

the redacted recording of his second interview had no probative value. We further conclude 

that the circuit court did not abuse its discretion in determining that the probative value of the 

recording was not substantially outweighed by its potential for unfair prejudice.

¶ 66 The defendant’s second interview was essentially a continuation of his first interview, so 

much so that the conclusion of the first interview would have been nonsensical without it. As 

noted, during the first interview, the investigators advised the defendant that they had a secret 

phone call to reveal, and the defendant expressed his interest in hearing it. At the conclusion 

of the first interview, the defendant agreed to speak with the investigators again at a later time; 

the investigators indicated that they would reveal the secret call at that time, and the 

investigators told the defendant to think about where he might have been when the murders 

occurred. As a general premise, the recording of the second interview was thus relevant and 

necessary to place the entire interview process in context. Moreover, there was not a 

breakdown of meaningful communication until the end of the second interview.

¶ 67 The redacted recording of the defendant’s second interview was specifically relevant to 

demonstrate the effect that Black’s 911 call had on the defendant. The playing of the 911 call 

introduced a new dynamic into the interview process that was not present in Hardimon. As 

noted, the defendant showed no emotion while listening to Black’s 911 call at the 

commencement of the second interview, but his demeanor notably changed after hearing it. 

Additionally, the defendant initially denied that Black had stated his name and then declined 

the investigators’ offer to play the recording a second time. 

¶ 68 The redacted recording of the second interview was also relevant and admissible to show 

the defendant’s responses to the investigators’ questions and comments about the 911 call and 

to place his responses in context. Although the defendant repeatedly contended that Black’s 

911 call was “bulls***,” he nevertheless addressed it and attempted to minimize its 

significance. The defendant claimed, inter alia, that Black was confused and could have named 

anyone as the shooter. Moreover, after the defendant was advised that the 911 call was 

admissible evidence and that his inability to recall his whereabouts at the time of the murders 

was not a defense, the defendant abandoned his claim that he had probably been at a hotel 

when the killings occurred and indicated that he might have been at a friend’s house. Thus, 

unlike the defendant in Hardimon, as the interview progressed, the defendant continued to 

make statements that held probative value and his alibi changed.

¶ 69 In conjunction with the recording of the first interview, the portions of the second 

interview, during which the defendant’s apparent lack of remorse over the loss of his alleged 

“partners” was exhibited and discussed, were also probative. Although the defendant offered 

explanations for why he had sometimes smiled when Black’s name was mentioned, the jury 

could have concluded that the defendant’s general attitude towards both victims was 

inconsistent with that of someone discussing the violent deaths of two of his friends.

¶ 70 With respect to the recording’s potential for unfair prejudice, we note that Walker’s 

extensive discussions regarding Black’s “dying declaration” and how a jury would perceive it 

were redacted prior to trial, the portions of the redacted recording during which the 

investigators expressed their beliefs as to the defendant’s guilt and stressed the compelling 
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nature of Black’s 911 call were relatively brief, and the investigators’ comments and 

observations were generally relevant under the circumstances. Cf. Hardimon, 2017 IL App 

(3d) 120772, ¶¶ 34, 36-38 (finding that the majority of the 80-minute recording that the jury 

viewed contained irrelevant and highly prejudicial comments). Furthermore, although the 

investigators were accusatorial throughout the defendant’s second interview, the tone of the 

interview generally remained conversational, and the investigators were not threatening or 

overly aggressive, as the police in Hardimon seemingly were. See id. ¶¶ 21-24. Additionally, 

when cross-examining Walker, defense counsel emphasized that the defendant had 

consistently maintained his innocence during both interviews. We also note that the jury 

watched the redacted recordings of the interviews only once and did so without the benefit of 

a transcript.

¶ 71 Ultimately, although the defendant’s second interview with the police shared “some 

characteristics” of the interview in Hardimon (Dunbar, 2018 IL App (3d) 150674, ¶ 53), the 

entire interview was relevant and probative, and its probative value was not substantially 

outweighed by the danger of unfair prejudice. We accordingly conclude that the circuit court 

did not abuse its discretion in denying the defendant’s pretrial motion to exclude the redacted 

recording of the second interview. Furthermore, even assuming arguendo that the court should 

have prohibited the State’s introduction of the recording, any resulting error was harmless in 

light of the remainder of the evidence establishing the defendant’s guilt.

¶ 72 “Error will be deemed harmless and a new trial unnecessary when ‘the competent evidence 

in the record establishes the defendant’s guilt beyond a reasonable doubt and it can be 

concluded that retrial without the erroneous admission of the challenged evidence would 

produce no different result.’ ” People v. McKown, 236 Ill. 2d 278, 311 (2010) (quoting People 

v. Arman, 131 Ill. 2d 115, 124 (1989)). Here, Black’s 911 call was not merely a dying 

declaration that was “singly sufficient” to support the defendant’s murder convictions (People 

v. Hatchett, 397 Ill. App. 3d 495, 511 (2009)), the call produced a live recording of the crime 

in progress, which is extremely compelling evidence (see Patterson, 2017 IL App (3d) 150062, 

¶¶ 22-23). Nothing suggests that Black had any reason to falsely implicate the defendant, and 

Black’s dying declaration was corroborated by the fresh cigarette butt found near his car and 

by Tierra’s identification of the defendant as the shooter. Although in his second interview, the 

defendant maintained that Black was mistaken as to the identity of the shooter, the jury 

obviously rejected that claim.

¶ 73 Tierra’s second and third statements to the police, in which she positively identified the 

defendant as the shooter, were also independently sufficient to support the defendant’s 

convictions. See People v. Logan, 352 Ill. App. 3d 73, 79-81 (2004); People v. Morrow, 303 

Ill. App. 3d 671, 675-77 (1999). Although the defendant suggests that Tierra’s second and third 

statements should be viewed with suspicion in light of her other statements and trial testimony, 

we must presume that the jury concluded that the former were more credible than the latter. 

See Logan, 352 Ill. App. 3d at 80-81; Morrow, 303 Ill. App. 3d at 676-77. Moreover, Tierra’s 

identification of the defendant as the shooter was consistent with Black’s 911 call and was also 

supported by the cigarette butt found near Black’s car.

¶ 74 The jury could have further concluded that the defendant implicitly acknowledged his guilt 

during the recorded telephone conversation that he had with Gwendolyn and Rachelle despite 

his agreement with Rachelle’s contention that he had not done anything. The jury could have 

reasoned that because Rachelle knew that the call was being recorded, her contention was 
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meant to obscure and sanitize the defendant’s earlier discussions regarding his proposed claim 

of self-defense. The jury could have further reasoned that the defendant had called Gwendolyn 

and Rachelle using another inmate’s identifications numbers in an attempt to conceal their 

conversation or delay the discovery of its occurrence.

¶ 75 From the defendant’s first interview, the jury could have also inferred the defendant’s 

consciousness of guilt by finding that he had falsely asserted, inter alia, that he had not been 

to Tatanisha’s house since August 2009, that he had not learned that his friends had been killed 

until days after the fact, and that he could not recall where he had been when the murders 

occurred but had “probably” been at a hotel. See People v. Milka, 336 Ill. App. 3d 206, 227-

28 (2003); People v. Wilson, 8 Ill. App. 3d 1075, 1079 (1972). The defendant’s consciousness 

of guilt could further be inferred from the first interview’s discussions suggesting that he had 

been avoiding the police for months. See People v. Henderson, 39 Ill. App. 3d 502, 507-08 

(1976). Additionally, given the evidence of the defendant’s relationship with Tatanisha and the 

fact that McVay and Black were murdered in her front yard at approximately 4:35 a.m., the 

jury could have concluded that jealousy was the defendant’s possible motive. See People v. 

Shack, 396 Ill. 285, 292 (1947); People v. Coleman, 116 Ill. App. 3d 28, 35 (1983).

¶ 76 We lastly emphasize that the defendant’s interviews with the police were not the central 

pieces of the State’s case; Black’s 911 call and the defendant’s recorded conversation with 

Gwendolyn and Rachelle were. Moreover, as previously noted, during its deliberations, the 

jury requested and was provided with the recording of the 911 call and the recording of the 

defendant’s conversation with Gwendolyn and Rachelle. Under the circumstances, that the jury 

did not also request the recordings of the defendant’s interviews suggests that it did not 

perceive those recordings as being particularly important one way or the other. In any event, 

given the remainder of the State’s evidence, we cannot conclude that the jury’s verdict might 

have been different had it not viewed the redacted recording of the defendant’s second 

interview with the police, which further distinguishes the present case from Hardimon.

¶ 77 CONCLUSION

¶ 78 For the foregoing reasons, we conclude that the circuit court did not abuse its discretion in 

denying the defendant’s pretrial motion to prohibit the State’s introduction of the redacted 

recording of his second interview with the police and that even assuming otherwise, the error 

was harmless. Accordingly, the defendant’s convictions for first degree murder are hereby 

affirmed.

¶ 79 Affirmed.