{ "id": 257200, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JARVIS McNEAL, Defendant-Appellant", "name_abbreviation": "People v. McNeal", "decision_date": "1998-12-04", "docket_number": "No. 1\u201497\u20141170", "first_page": "889", "last_page": "895", "citations": [ { "type": "official", "cite": "301 Ill. App. 3d 889" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "406 U.S. 472", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6171574 ], "weight": 3, "year": 1972, "pin_cites": [ { "page": "478" }, { "page": "240" }, { "page": "1675" } ], "opinion_index": 0, "case_paths": [ "/us/406/0472-01" ] }, { "cite": "648 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1995, "opinion_index": 0 }, { "cite": "271 Ill. App. 3d 97", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 249227 ], "weight": 2, "year": 1995, "pin_cites": [ { "page": "102" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/271/0097-01" ] }, { "cite": "138 N.E. 614", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1923, "opinion_index": 0 }, { "cite": "307 Ill. 283", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5090112 ], "year": 1923, "pin_cites": [ { "page": "290" } ], "opinion_index": 0, "case_paths": [ "/ill/307/0283-01" ] }, { "cite": "553 N.E.2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1990, "opinion_index": 0 }, { "cite": "135 Ill. 2d 252", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3256584 ], "year": 1990, "pin_cites": [ { "page": "304" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/135/0252-01" ] }, { "cite": "144 N.E. 338", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1924, "opinion_index": 0 }, { "cite": "312 Ill. 625", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5122426 ], "weight": 2, "year": 1924, "pin_cites": [ { "page": "632" }, { "page": "632" } ], "opinion_index": 0, "case_paths": [ "/ill/312/0625-01" ] }, { "cite": "95 L. 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App. 3d", "case_ids": [ 2587845 ], "weight": 4, "year": 1990, "pin_cites": [ { "page": "341" }, { "page": "341" }, { "page": "342" }, { "page": "342" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/202/0336-01" ] }, { "cite": "118 F. Supp. 511", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4238723 ], "year": 1954, "pin_cites": [ { "page": "517" } ], "opinion_index": 0, "case_paths": [ "/f-supp/118/0511-01" ] }, { "cite": "378 U.S. 52", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6165037 ], "weight": 3, "year": 1964, "pin_cites": [ { "page": "55" }, { "page": "681-82" }, { "page": "1596-97" } ], "opinion_index": 0, "case_paths": [ "/us/378/0052-01" ] }, { "cite": "604 N.E.2d 1107", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1992, "opinion_index": 0 }, { "cite": "237 Ill. App. 3d 561", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5161753 ], "year": 1992, "pin_cites": [ { "page": "562" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/237/0561-01" ] } ], "analysis": { "cardinality": 640, "char_count": 11463, "ocr_confidence": 0.787, "pagerank": { "raw": 5.498596135998852e-08, "percentile": 0.34407469315778644 }, "sha256": "7e86bb20d0779a1fcb412c197d2260e6b71a9c46942ab6bdae5183a60e053159", "simhash": "1:c0d3cb06e15ba49d", "word_count": 1856 }, "last_updated": "2023-07-14T19:13:21.929948+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JARVIS McNEAL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LEAVITT\ndelivered the opinion of the court:\nA judge found Jarvis McNeal in direct criminal contempt of court after he invoked his fifth amendment privilege against self-incrimination and refused to testify as a prosecution witness/victim at Dante Brown\u2019s trial for murder, attempted murder and aggravated battery. The judge sentenced McNeal to six months\u2019 incarceration and ordered that sentence to run consecutively with whatever sentence might later be imposed for then-pending charges against McNeal of murder and unlawful use of a weapon. We reverse the trial court\u2019s order and vacate McNeal\u2019s sentence.\nI. FACTS\nBrown was charged with the July 1993 gang-related murder of Gary Pittman and attempted murder of Jarvis McNeal at 5700 South Paulina in Chicago. McNeal was charged much later with a gang-related murder that occurred in December 1995, within a two- or three-block radius of 5700 South Paulina, and unlawful use of a weapon in an unrelated incident. In October 1996, McNeal indicated, through counsel, he intended to invoke his fifth amendment right and refuse to testify at Brown\u2019s trial. At a hearing held to determine whether McNeal would be allowed to refuse to testify, McNeal\u2019s lawyer urged the two men\u2019s crimes were part of a series of shootings in an ongoing gang war in the neighborhood and that McNeal\u2019s testimony, which would certainly include his gang affiliation, would be incriminating at his own murder trial. The judge however found there was no reasonable basis for McNeal\u2019s refusal to testify.\nOn January 14, 1997, when McNeal was called and sworn, he refused to testify, even after the judge ordered him to do so. The judge found him in direct criminal contempt of court. The judge further instructed McNeal could change his mind and testify at any time during the Brown trial and thereby avoid being sentenced for contempt. McNeal never altered his position, and, after Brown was convicted, the judge sentenced McNeal.\nII. ISSUES\nMcNeal raises the following issues: (1) whether the judge erred in finding invocation of his fifth amendment right to refrain from self-incrimination was improper and contemptuous; (2) whether a criminal contempt citation was the proper remedy if contemptuous conduct in fact occurred here; and (3) whether the judge erred in imposing a sentence to be served consecutively with any potential future sentence. The State concedes a sentence may not be ordered to run consecutively with a sentence not yet imposed, and the judge\u2019s ruling in that respect was erroneous. People v. Reed, 237 Ill. App. 3d 561, 562, 604 N.E.2d 1107 (1992).\nIII. ANALYSIS\nThe fifth amendment provides, in part, \u201cNo person *** shall be compelled *** to be a witness against himself ***.\u201d U.S. Const., amend. V; see also Ill. Const. 1970, art. I, \u00a7 10. The United States Supreme Court long ago stated the policies and purposes of the fifth amendment:\n\u201cIt reflects many of our fundamental values and most noble aspirations: our unwillingness to subject those suspected of crime to the cruel trilemma of self-accusation, perjury or contempt; *** our sense of fair play which dictates \u2018a fair state-individual balance by requiring the government *** in its contest with the individual to shoulder the entire load,\u2019 [citation] our respect for the inviolability of the human personality ***; our distrust of self-deprecatory statements; and our realization that the privilege, while sometimes \u2018a shelter to the guilty,\u2019 is often \u2018a protection to the innocent.\u2019 [Citation.]\u201d Murphy v. Waterfront Comm\u2019n of New York Harbor, 378 U.S. 52, 55, 12 L. Ed. 2d 678, 681-82, 84 S. Ct. 1594, 1596-97 (1964).\nWhile the accused may assert the privilege as an excuse for refusing to take the stand, a witness may assert the privilege only with respect to particular questions. United States v. Manno, 118 F. Supp. 511, 517 (N.D. Ill. 1954). Furthermore, a witness may exercise his right to avoid self-incrimination only where he has reasonable cause to suspect the possibility of subsequent prosecution from a direct answer. However, the witness need not prove the answer to a particular question would necessarily subject him to prosecution. People v. Cooper, 202 Ill. App. 3d 336, 341, 559 N.E.2d 942 (1990). As the United States Supreme Court stated:\n\u201c[I]f the witness, upon interposing his claim, were required to prove the hazard in the sense in which a claim is usually required to be established in court, he would be compelled to surrender the very protection which the privilege is designed to guarantee. To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim \u2018must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence.\u2019 [Citation.]\u201d Hoffman v. United States, 341 U.S. 479, 486-87, 95 L. Ed. 1118, 1124, 71 S. Ct. 814, 818 (1951).\nThe privilege extends not only to answers that would in themselves support a conviction but also to answers that might furnish a link in a chain of evidence needed to prosecute the witness for a crime. Cooper, 202 Ill. App. 3d at 341.\nThe privilege against self-incrimination must be liberally construed in favor of the accused or the witness. Hoffman, 341 U.S. at 487, 95 L. Ed. at 1124, 71 S. Ct. at 818; People v. Newmark, 312 Ill. 625, 632, 144 N.E. 338 (1924). A witness may be denied the privilege only when it is \u201c \u2018perfectly clear, from a careful consideration of all the circumstances in the case,\u2019 \u201d that the answers sought \u201c \u2018cannot possibly have [a] tendency\u2019 \u201d to incriminate. Cooper, 202 Ill. App. 3d at 342, quoting Hoffman, 341 U.S. at 488, 95 L. Ed. at 1125, 71 S. Ct. at 819. The trial court has discretion to determine whether the witness has a valid basis for invoking the fifth amendment right against self-incrimination. People v. Redd, 135 Ill. 2d 252, 304, 553 N.E.2d 316 (1990). But any uncertainty as to whether a question calls for an incriminating answer is to be resolved in favor of the witness\u2019 determination. People v. Spain, 307 Ill. 283, 290, 138 N.E. 614 (1923); Newmark, 312 Ill. at 632.\nAs we stated earlier, at the hearing the trial court held to determine whether McNeal\u2019s invocation of his fifth amendment right was proper, McNeal asserted (1) he and Dante Brown belonged to rival gangs, (2) the crimes with which he and Brown were charged were gang-related and occurred in the same two- to three-block area, (3) Brown\u2019s alleged illegal acts were committed in retaliation for McNeal\u2019s prior bad acts, and (4) answering questions about gang affiliation, alliances, rivalries, activities, retaliations and their motivations would be incriminating as to the pending unlawful use of a weapon and murder charges against McNeal along with potential future charges. The prosecution essentially argued Brown\u2019s and McNeal\u2019s crimes were unrelated and that McNeal\u2019s testimony could not possibly place him in jeopardy. Based on the facts adduced at that proceeding, the record before us, and the legal precepts outlined above, we find the court abused its discretion in refusing to allow McNeal to invoke his fifth amendment right and ordering him to \u201canswer any questions propounded to [him] consistent with this case by the State\u2019s attorney.\u201d\nMcNeal analogizes his case to People v. Medrano, 271 Ill. App. 3d 97, 648 N.E.2d 218 (1995), and we find that case, to some extent, helpful. There, the trial court allowed a witness/victim in a gang-related murder, attempted murder, armed violence, and aggravated battery trial to invoke his fifth amendment privilege against self-incrimination where the witness had a gang-related murder charge pending. We affirmed, holding, \u201c[s]ince the pending murder trial against [the victim] involved a shooting where gang affiliation would be incriminating, forcing [the victim] to testify would have provided evidence for the prosecutor in the pending murder charge. Therefore, the victim had a colorable fifth amendment privilege claim.\u201d Medrano, 271 Ill. App. 3d at 102.\nMcNeal should have been allowed to refuse to answer questions which might yield incriminating answers, as was the victim in Medrano, because he showed he had \u201creasonable cause to apprehend danger\u201d from certain direct answers based on a prospect of penal liability that was \u201creal and substantial,\u201d and not merely speculative. Hoffman, 341 U.S. at 486, 95 L. Ed. at 1124, 71 S. Ct. at 818; Zicarelli v. New Jersey State Comm\u2019n of Investigation, 406 U.S. 472, 478, 32 L. Ed. 2d 234, 240, 92 S. Ct. 1670, 1675 (1972). Indeed, McNeal\u2019s lawyer represented that both Brown\u2019s and McNeal\u2019s alleged murders were gang related and that any testimony by McNeal about his gang membership, activities, or motivations could be used against McNeal in the murder case against him. The State speciously argued, in response, that it had \u201cindependent evidence\u201d of McNeal\u2019s gang affiliation and activities and therefore McNeal should be forced to testify about those topics. We find that argument unfounded in law or logic. Simply because the prosecution has \u201cindependent\u201d inculpating evidence against a defendant in no way means that defendant can be forced to give self-incriminating testimony. Furthermore, testimony given by McNeal placing him in the area where the crimes with which both he and Brown were charged occurred could have proven incriminating evidence in McNeal\u2019s subsequent trial.\nAnd, importantly, the government failed to offer McNeal immunity. See 725 ILCS 5/106 \u2014 1 (West 1996) (setting forth the government\u2019s ability to compel testimony from a \u201cmaterial witness\u201d by immunizing him \u201cfrom all liability to be prosecuted or punished on account of any testimony or other evidence he may be required to produce\u201d). It could have conferred immunity on McNeal and, thereafter, attempted to obtain the evidence it sought. If McNeal balked after being granted immunity, he could have been punished for contempt, but not before.\nAs we stated earlier, a witness may be denied his fifth amendment privilege only when it is \u201c \u2018perfectly clear, from a careful consideration of all the circumstances in the case,\u2019 \u201d that the answers sought \u201c \u2018cannot possibly have [a] tendency to incriminate [the witness].\u2019 \u201d Cooper, 202 Ill. App. 3d at 342, quoting Hoffman, 341 U.S. at 488, 95 L. Ed. at 1125, 71 S. Ct. at 819. Because we cannot say it was perfectly clear that McNeal could not possibly have incriminated himself if, as the judge ordered, he answered \u201cany questions propounded to [him] consistent with this case by the State\u2019s attorney,\u201d we reverse the judge\u2019s ruling denying McNeal the right to invoke his fifth amendment privilege.\nFor all of these reasons, we reverse the finding of contempt and vacate the sentence imposed upon McNeal.\nReversed and vacated.\nCAHILL, EJ., and BURKE, J., concur.", "type": "majority", "author": "JUSTICE LEAVITT" } ], "attorneys": [ "Rita A. Fry, Public Defender, of Chicago (Cheryl K. Lipton, Assistant Public Defender, of counsel), for appellant.", "Richard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and James E Lynch, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JARVIS McNEAL, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 1\u201497\u20141170\nOpinion filed December 4, 1998.\nRita A. Fry, Public Defender, of Chicago (Cheryl K. Lipton, Assistant Public Defender, of counsel), for appellant.\nRichard A. Devine, State\u2019s Attorney, of Chicago (Renee Goldfarb, James Fitzgerald, and James E Lynch, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0889-01", "first_page_order": 907, "last_page_order": 913 }