375 N.E.2d 1342 (Ill.App. 1 Dist. 1978), 76-726, People v. Mcclinton

Docket Nº76-726.
Citation375 N.E.2d 1342, 59 Ill.App.3d 168, 17 Ill.Dec. 58
Party NamePEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mack McCLINTON and Frank McClinton, Defendants-Appellants.
Case DateApril 11, 1978
CourtCourt of Appeals of Illinois

Page 1342

375 N.E.2d 1342 (Ill.App. 1 Dist. 1978)

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.

Court of Appeals of Illinois, First District, Second Division.

April 11, 1978.

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[Copyrighted Material Omitted]

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[59 Ill.App.3d 170] [17 Ill.Dec. 60] 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

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[17 Ill.Dec. 61] 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 [59 Ill.App.3d 171] 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

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[17 Ill.Dec. 62] speed. When the car drove past him in...

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