People v. McClinton

• Decision Date: 11 April 1978
• Docket Number: No. 76-726,76-726
• Citation: 375 N.E.2d 1342,17 Ill.Dec. 58,59 Ill.App.3d 168
• Parties: , 17 Ill.Dec. 58 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mack McCLINTON and Frank McClinton, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1342

375 N.E.2d 1342

59 Ill.App.3d 168, 17 Ill.Dec. 58

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mack McCLINTON and Frank McClinton, Defendants-Appellants.

No. 76-726.

Appellate Court of Illinois, First District, Second Division.

April 11, 1978.

James Geis, Ralph Ruebner, Deputy State Appellate Defenders, and Martin W. Carlson, Asst. State Appellate Defender, Chicago, for defendants-appellants.

Bernard Carey, State's Atty. of Cook County, Chicago (Laurence J. Bolon and Iris E. Sholder, Asst. State's Attys., of counsel), for plaintiff-appellee.

PERLIN, Justice.

Following a bench trial, defendants, Mack McClinton and Frank McClinton, were found guilty of murder (Ill.Rev.Stat.1973, ch. 38, par. 9-1(a)(1)) and each was sentenced to a term of 14 to 20 years. Defendants appeal from the convictions contending: (1) that they were denied effective assistance of counsel because their attorney also represented a codefendant whose defense was antagonistic to the defendants' alibi defense; (2) that the trial judge improperly denied a motion to suppress a weapon and bullets recovered when defendant Mack McClinton was arrested; (3) that testimony with regard to the registration of the murder weapon was hearsay and was erroneously admitted; (4) that a rifle found in the possession of a codefendant was improperly admitted into evidence; (5) that they were denied due process of law because the State failed to disclose that a State's witness had two criminal convictions which could have been used to impeach the credibility of the witness; and (6) that defendants were not proven guilty beyond a reasonable doubt.

On March 2, 1975, Eddie McKinley was shot and killed in an alley adjoining a vacant lot near the Blue World Lounge in Chicago, Illinois. Defendants were charged, along with Saul Banks, Jr. and John Jones, with the murder. Initially all four defendants were represented by the same attorney. Subsequently, Jones retained his own counsel.

Prior to trial defendants filed a motion to sever their trial from that of Saul Banks. A hearing was held and their attorney advised the court that the defense of Banks was antagonistic to that of defendants. Defendants' alibi defense was that they were at Banks' home at the time of the murder. Banks had told police that the defendants were not at his home on the night of the murder. The trial court granted the motion and severed the trial of defendants from the trial of Banks. Assuming that Banks would have a bench trial and that the defendants and Jones would have a jury trial, the trial court stated that it would proceed simultaneously with both trials.

A second hearing was held prior to trial on a motion to suppress physical evidence filed on behalf of Mack McClinton. The motion sought to suppress two handguns and several bullets found in Mack McClinton's apartment at the time of his arrest on the basis that the arrest was illegal. Officer Barnas testified that he and Officer Bertucci arrested defendant Mack McClinton in his apartment, that they did not have an arrest warrant and that defendant was not engaged in any illegal activity at the time of the arrest. He testified that they went to arrest defendant because he was identified in photographs as a participant in the shooting. It was not stated who made the identification. Officer Barnas also testified that at the time of the arrest, the officers searched the apartment and recovered numerous .32 caliber bullets and two .32 caliber revolvers. The motion to suppress was denied on the basis that the search was incident to a lawful arrest.

The court proceeded to conduct the bench trials of all four defendants simultaneously. Defendants' attorney agreed to this procedure even though the McClintons' trial had been severed and all four defendants waived trial by jury.

Charlie McKinley, an uncle of the deceased, testified for the State that on March 2, 1975, at approximately 11:30 p. m. he and the deceased were walking to his niece's house, going through a gangway alongside the Blue World Lounge and toward an alley. As they reached the alley, he observed a car at the junction of the alley and the street about nine or ten feet away. The headlights of the car came on, and he saw four men armed with handguns and a shotgun emerge from the car. McKinley stated that the men started shooting at him and his nephew and that he ran. His nephew was shot. He testified that there were lights in the alley and that he looked directly at the headlights but they did not blind him. Although he did not initially give police a description of the men, about 20 hours after the shooting McKinley identified the four men, including defendants, after viewing photographs. McKinley also made a positive in-court identification.

Johnny Fleming testified that at about 10:30 p. m. he was driving near the Blue World Lounge when he observed a car swerve from the curb at a high rate of speed. When the car drove past him in the opposite direction, he saw three men and a shotgun. Fleming testified that the car's headlights were shining somewhat, but not directly, in his face, and that he observed the car and the men's faces for about 30 seconds. In court Fleming identified defendants as being occupants of the car. A statement given to the police by Fleming after the incident was inconsistent in that he told police he did not get a good look at the man in the back seat, and in court he identified the man as being defendant Frank McClinton.

Officer Bertucci testified that he and Officer Barnas arrested defendant Mack McClinton and recovered two handguns and several bullets. He testified that they inventoried the guns, that the serial numbers of both weapons were checked through the firearms registration section, and that one was found to be registered to Mack McClinton. He stated that they then took the handguns to the Crime Lab and obtained receipts for them. A ballistics expert testified that one of the handguns proved to be the murder weapon. The handguns and bullets were admitted into evidence over the objection of defendants.

Officer Cronin testified that he arrested John Jones and recovered a rifle which was in Jones' possession at the time. The rifle was admitted into evidence over defendants' objection.

Jones testified on his own behalf and presented an alibi, which was corroborated by the testimony of his wife, sister and brother-in-law.

Banks testified on his own behalf stating that he was home on the night of the murder having a party. This was corroborated by six witnesses. Banks also testified that the McClintons were at his party during the evening, but that they had left at around 10:00 p. m. and did not return until after midnight. He denied telling the police that he did not see the McClintons that evening.

Aritta Banks testified on behalf of the McClintons that both Mack and Frank McClinton were at Banks' party and that Mack did not leave until 2:00 in the morning and Frank did not leave until 5:00 in the morning.

Frank McClinton testified that both he and Mack McClinton were at Banks' home during the evening, that they had left at about 10:00 for 15 minutes to buy some liquor, but that they returned and remained at the party until after 2:00 a. m.

Officer Bertucci testified in rebuttal that Banks told an officer that the McClintons were not at his house at all. Banks testified in surrebuttal that he told an officer that the McClintons were not at his house between the hours of 10:00 and 12:00.

The court found Mack McClinton, Frank McClinton and Jones guilty of murder but entered a finding of not guilty as to Banks. Defendants filed a motion for a new trial alleging that the State did not comply with discovery in that it did not tender the arrest record of the witness McKinley to their attorney. The record had been given to Jones' attorney and there were some comments in the record indicating that defendants' attorney was aware of the record. After a post-trial hearing, the motion was denied. Jones was granted a new trial on his own motion. Defendants Mack McClinton and Frank McClinton appeal.

Defendants initially contend that they were denied effective assistance of counsel because the defense of Banks was antagonistic to their alibi defense. They argue that their attorney could not effectively support their alibi defense because of his duty to defend the contradictory alibi defense of Banks. The State argues that defendants may not complain on appeal that their attorney was involved in a conflict of interest because they chose their own counsel. Also, during the trial the question of conflict arose, and defendant Mack McClinton stated that he felt that his attorney was acting on his behalf.

It is clear that all defendants are entitled to effective assistance of counsel whether the attorney is appointed or chosen. (People v. Stoval (1968), 40 Ill.2d 109, 239 N.E.2d 441; People v. Arnold (3d Dist. 1974), 17 Ill.App.3d 1043, 309 N.E.2d 89.) A defendant's right to effective assistance of counsel requires that his attorney not represent conflicting interests. (Glasser v. United States (1942), 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680; People v. Kester (1977), 66 Ill.2d 162, 5 Ill.Dec. 246, 361 N.E.2d 569.) A conflict exists where one attorney represents two or more codefendants whose defenses are antagonistic to each other. (People v. Ware (1968), 39 Ill.2d 66, 233 N.E.2d 421; People v. Barren (3d Dist.1975), 32 Ill.App.3d 78, 335 N.E.2d 779.) Our supreme court stated in People v. Coslet (1977), 67 Ill.2d 127 at 133, 364 N.E.2d 67 at 70:

"This court adopted a per se conflict-of-interest rule in People v. Stoval (1968), 40 Ill.2d 109, 112, 239 N.E.2d 441, whereby allegations and proof of prejudice are unnecessary in cases where a defense counsel, without the knowledgeable assent of the defendant, might be restrained in fully representing the defendant's interest due to his or her commitments to others, with even...