People v. McKee

• Decision Date: 28 March 1968
• Docket Number: No. 39341,39341
• Citation: 39 Ill.2d 265,235 N.E.2d 625
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Billie McKEE, Appellant.
• Court: Illinois Supreme Court

Page 625

235 N.E.2d 625

39 Ill.2d 265

The PEOPLE of the State of Illinois, Appellee, v.Billie McKEE, Appellant.

No. 39341.

Supreme Court of Illinois.

March 28, 1968.

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.

KLINGBIEL, Justice.

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 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 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 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 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 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, that that morning McKee had threatened him in the bull pen.When asked if he were also afraid of the Statehe said that he was, that at the first recess a police officer had said to him, 'Now look what you have done.Would you rather have a little time or big time?'.On continuing his testimony he stated that there had been no meeting to plan the robbery.On inquiry by the courthe stated that his first statement was not true and then later changed again and said it was true but that his second statement was all lies.

Defense counsel then moved to strike all of Clifford's testimony as inadmissible, improper and prejudicial, citing the fact that a severance was granted in the first place so as not to allow the statements of the various co-defendants to be used against one another.The court denied the motion, stating that statements were properly used to impeach a witness who had taken the prosecution by surprise.

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 him as a court's witness.A witness may be made a court's witness and subjected to cross-examination by either side where, for sufficient reason shown, his integrity or veracity is doubtful and neither side desires to vouch for his testimony.The purpose of the rule is to prevent a miscarriage of justice by having an eyewitness to the crime fail to testify, but the cross-examination should be strictly restricted to the direct issues and not permitted on collateral matters.(People v. Hundley, 4 Ill.2d 244, 122 N.E.2d 568;People v. Daniels, 354 Ill. 600, 188 N.E. 886;People v. Cardinelli, 297 Ill. 116, 130 N.E. 355;People v. Grigsby, 357 Ill. 141, 191 N.E. 264.)In effect, it is an attempt to arrive at the truth based on sworn testimony.The purpose of impeachment is to destroy credibility, not to prove the facts stated in the impeaching statement.What the witness stated out of court and out of presence of the defendant is pure hearsay and incompetent.Legally it is not evidence of defendant's guilt and cannot be received as proof of the fact at issue.(People v. Hundley, 4 Ill.2d 244, 122 N.E.2d 568;People v. Barragan, 337 Ill. 531, 169 N.E. 180;People v. Johnson, 333 Ill. 469, 165 N.E. 235.)As stated in People v. Grigsby, 357 Ill. 141, 149, 191 N.E. 264, 'If the witness admitted making the previous statement, it would prove nothing except that he, an admittedly unreliable witness, had said so.If the witness denied making the statement the matter would necessarily end there, because to pursue it further would be trying a collateral issue rather than a fact material under the indictment.The defendant would thus be hopelessly enmeshed in a prejudicial situation without anyone having assumed responsibility or liability for perjury'.

In the case before us all parties and the court seem to use the words 'court's witness' and 'impeachment' interchangeably.Rather than restricting the examination of the witness to the direct issues, the widest possible latitude was allowed so that the minutest detail of the out-of-court statements was brought before the court, who was acting as judge of the law as well as finder of the facts.Under the circumstances this was an impossible task for any man.Had the case been tried before a jury the admission of such testimony would necessarily constitute reversible error for the reason that such evidence is not competent even for the purpose of impeachment where the statement bears directly upon...