dissenting:
I cannot agree with the conclusion reached by the majority of this court with respect to defendant Bailey, nor can I agree with the conclusion of the majority with respect to defendant McChristian.
In the case of Bailey, the majority reverses the conviction of the defendant on the attempted-murder charge because of the introduction of hearsay evidence. Since the majority concludes that it cannot say that “this error was harmless beyond a reasonable doubt,” it finds that the conviction has to be reversed and the defendant granted a new trial.
I would first observe that this question does not involve error of constitutional magnitude. It involves only an alleged error in the admission of evidence, and no constitutional issue is involved unless we are to consider every trial error as raising a constitutional question. Therefore, we are not concerned with the “harmless error beyond a reasonable doubt” test of Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824. We are instead concerned with whether the competent evidence is sufficient to prove the defendant’s guilt beyond a reasonable doubt. Assuming but not conceding that it was error to introduce proof of Barksdale’s prior statement, I find sufficient other competent evidence to establish Bailey’s guilt of attempted murder beyond a reasonable doubt.
The majority states that Officers Foulkes and Clark testified that they saw Bailey run into the street and fire several shots at the car driven by Barksdale; that Bailey threw an object under a parked car which Officer Clark recovered and that the object was a “warm” .45-caliber pistol. Officer Peck testified that at the police station Bailey remarked to Barksdale, “We didn’t get you this time,” and that McChristian replied, “We will get him next time.” Barksdale, himself, testified that as his car was stopped on the street near where Bailey was apprehended, he heard some shouts and then heard several shots fired, one of which struck his car. In light of the strength of this evidence of guilt, it is difficult to see how the elimination of Barksdale’s out-of-court statement would have altered the verdict, it is only where the trial error results in manifest prejudice to the defendant that a court of review will interfere. (People v. Pittman, 55 Ill.2d 39, 59;People v. Wilson, 51 Ill.2d 302, 307-8; People v. Burris, 49 Ill.2d 98, 104.) In view of the strength of this evidence, I can see no need for reversing Bailey’s conviction of attempted murder and remanding his case for a new trial.
The defendants, Bailey and McChristian, were convicted by the jury of conspiracy to commit murder. The majority of this court reverses that conviction because “the evidence does not establish beyond a reasonable doubt that Bailey, McChristian and others had agreed to murder Barksdale or anyone else.” Of course, it is not necessary, and in most cases not possible, to prove an agreement between co-conspirators by direct evidence. It is only necessary to show that they pursued a course tending toward the accomplishment of the objective of which complaint is made. (People v. Perry, 23 Ill.2d 147, 155; People v. Walczak, 315 Ill. 49.) Whether a scheme is a conspiracy or separate ventures is ordinarily a question of fact and may be proved not only by direct evidence but by inferences from conduct, statements, facts and circumstances which disclose a common design on the part of the accused and others to act in pursuance of a common criminal purpose. (People v. Brinn, 32 Ill.2d 232.) Examining the evidence of conspiracy in the light of these principles, we find that McChristian and Bailey knew each other; they were members of the same street gang; David Barksdale was a member of a rival street gang; McChristian and Bailey were sitting on a porch with some girls when someone shouted, “Here comes David”; the defendants knew David Barksdale and his automobile; the defendants were both seen by the officers firing shots at Barksdale’s automobile as it left the scene and Officer Peck testified that at the police station, as noted above, Bailey said to Barksdale, “We didn’t get you this time,” and McChristian, who was chuckling, responded, “We will get him next time.” In my opinion, these facts, particularly the statements of Bailey and McChristian made at the police station, clearly establish that a common design existed to murder Barksdale. In fact McChristian’s reply, “We will get him next time,” is strong evidence that the common design to murder him had not terminated.
The majority opinion somehow concludes that this evidence does not establish that Bailey and McChristian had agreed to murder Barksdale or anyone else and characterizes the conduct of the defendants as instantaneous or “knee-jerk” reaction. However one may characterize it, the fact remains that Bailey had fired several shots from a .45-caliber pistol and that McChristian had fired at least one shot from a .25-caliber pistol. These were not toys, and had one of the bullets found its mark, both of these defendants would have been prosecuted for murder. In my opinion, there is adequate evidence to find both Bailey and McChristian guilty beyond a reasonable doubt of conspiring to commit murder. I can see no reason for setting aside the verdict of the jury.