People v. McKee, 39341

CourtSupreme Court of Illinois
Writing for the CourtKLINGBIEL; WARD
Citation39 Ill.2d 265,235 N.E.2d 625
PartiesThe PEOPLE of the State of Illinois, Appellee, v. Billie McKEE, Appellant.
Docket NumberNo. 39341,39341
Decision Date28 March 1968

Page 625

235 N.E.2d 625
39 Ill.2d 265
The PEOPLE of the State of Illinois, Appellee,
Billie McKEE, Appellant.
No. 39341.
Supreme Court of Illinois.
March 28, 1968.

[39 Ill.2d 266]

Page 626

Ralph E. Brown and Warren L. Swanson, Chicago, appointed by the court, for appellant.

William G. Clark, Atty. Gen., Springfield and John J. Stamos, State's Atty., Chicago (Fred G. Leach, Asst. Atty. Gen., and Elmer C. Kissane and Richard A. Rinella, Asst. State's Attys., of counsel), for appellee.


Billie McKee was convicted of murder in a bench trial in the circuit court of Cook County and sentenced to 50 to 75 years in the penitentiary. Two others, Edward Clifford [39 Ill.2d 267] and DeKoven Thomas, were jointly indicted with defendant but a severance was granted and defendant was tried alone. His direct appeal challenges the legality of his arrest, the admissions of his confession and certain other evidence on constitutional grounds. He also contends that he was not proved guilty beyond a reasonable doubt, that admission into evidence of statements of an alleged accomplice was improper and highly prejudicial and that the crime of murder charged in the indictment was at variance with the crime of felony murder of which he was convicted.

On April 9, 1963, Jerry Cole was shot and killed with a shotgun while seated in his parking-lot attendant's shack, and $368 was taken from his person. On April 18

Page 627

Clifford and Thomas were arrested and on information furnished by them the police arrested defendant at a room in a hotel. In two oral statements, one at the scene of his arrest and later at the police station, defendant allegedly admitted taking part in the robbery to the extent of accompanying the other two men in the car, but he accused Clifford of doing the shooting while he and Thomas remained in the car. A motion to suppress these admissions, and also a pistol and cartridges taken at the time of defendant's arrest, was denied and it was stipulated that the testimony of the police officers at the trial would be the same as their testimony at the hearing on the motion to suppress. For reasons later appearing herein we shall first discuss the trial evidence.

The only witness to the shooting testified that he was sitting with the decedent when someone banged open the door and announced it was a stick-up; that when the decedent said not to play with him the shotgun went off; that the robber didn't bother with the parking-lot money but rather went through decedent's pockets removing only what money he had. He was unable to identify the robber even as to being white or Negro. Several witnesses testified they had seen defendant at a party held by the decedent three [39 Ill.2d 268] weeks previously and that defendant had observed that decedent carried a lot of money on his person and had asked where the guy got it all.

Clifford, the alleged accomplice, was then called as a State's witness but he protested his innocence and also that of McKee, stating that anything he had previously told the police was a lie. Over objection he was made a court's witness and the State's Attorney proceeded to cross-examine him. His resultant testimony was confusing and contradictory and takes up approximately 127 pages in the record representing almost a full day on the stand. He was confronted with two statements he had previously made to the police. The first one was short, in which he described the planning of the robbery by defendant, Thomas, and himself, but denied being with them in the car or taking any part in the escapade. In this statement he also said that he was present when McKee and Thomas returned, that McKee said he had had to shoot the man, that McKee at that time had a shotgun and $368 which he had taken from decedent, and that McKee gave him $35 of this sum. His second statement was lengthy and was given to the State's Attorney on the night of his arrest and was reduced to writing. In it he described in detail the planning of the robbery, the route to the scene, the conversation of the parties, the stealing of a car for transportation, the times involved, the return and the splitting of the proceeds. In this statement he also stated that defendant got out of the car at the scene, put two shells in the gun and climbed down the ladder to the shack from an overhead street, and that after they heard two shots he and Thomas took off without McKee and later met to split the proceeds.

On the theory of 'impeachment' the State was permitted to confront him on a question-and-answer basis with apparently every item in both statements. On numerous occasions he protested that though he recalled making such statements they were false. He said a police officer had [39 Ill.2d 269] offered him five years probation if he would frame McKee on murder. He stated that he was told McKee accused him of killing the attendant, that Thomas's statement had been read to him and that to exonerate himself he patterned his statement after that of Thomas. He said the police had schooled him on the location of the parking lot and the times involved so that they would conform to the distances travelled to the lot. He repeatedly stated that all the facts in both statements were lies.

Finally a recess was taken and the court directed that no one should talk to Clifford. On resumption of his testimony he admitted the facts in his first statement were true, that he had been in on the planning but he had stayed at the apartment and did not go with McKee and Thomas when the robbery

Page 628

and killing occurred. Another recess was taken and again the court warned that no one was to talk to Clifford. When called back to the stand he was reluctant to answer defense counsel's question as to whether there actually had been a planned meeting. When pressed he started to cry; he was not quite 19 years of age. The court inquired whether he was afraid to answer and he stated that he was,...

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    .......         We agree with the appellate court that the State's tactics pertaining to the use of Barksdale's prior inconsistent statements were improper. In People v. McKee, 39 Ill.2d 265, 270, 235 N.E.2d 625, 628, we stated: . 'In considering the admissibility of this testimony it is necessary to understand the difference between the right to impeach a witness and to cross-examine . Page 808 . him as a court's witness. A witness may be made a court's witness and ......
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