People v. McKinney

• Decision Date: 30 August 1983
• Docket Number: No. 82-211,82-211
• Citation: 73 Ill.Dec. 101,453 N.E.2d 926,117 Ill.App.3d 591
• Parties: , 73 Ill.Dec. 101 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony McKINNEY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 926

453 N.E.2d 926

117 Ill.App.3d 591, 73 Ill.Dec. 101

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Anthony McKINNEY, Defendant-Appellant.

No. 82-211.

Appellate Court of Illinois,

First District, Second Division.

Aug. 30, 1983.

Steven Clark, Deputy State Appellate Defender, for plaintiff-appellee; Robert E. Senechall, Jr., Senechalle & Murray, pro bono counsel.

Richard M. Daley, State's Atty., for defendant-appellant; Michael E. Shabat, Bruce A. Cardello and Harry John Devereux, Asst. State's Attys., Chicago, of counsel.

STAMOS, Justice.

Defendant Anthony McKinney was charged by indictment with murder and armed robbery and a jury convicted him on both counts. Defendant waived his right to a jury at his sentencing hearing. Upon hearing the evidence in aggravation and mitigation, the trial court imposed a sentence of natural life imprisonment after rejecting the death penalty. Defendant then instituted this appeal.

The State's evidence revealed that on September 15, 1978, Donald Lundahl was sitting in his car at 153rd Street near Lexington in Harvey, Illinois just before 10 p.m. when defendant walked up to the car. Wayne Phillips, who was standing about 50 yards away, testified that defendant approached Lundahl with a shotgun in his hand, pointed the gun at Lundahl and said to him, "Your money or your life." Phillips then heard defendant say, "Well, you just going to have to die." Defendant then fired the shotgun, reached into the car, put something in his pocket, and ran down an alley. Dennis Pettis, who was standing with Phillips at the time of the shooting, was subpoenaed to testify but failed to do so.

Harvey police officer Coleman McCarthy testified that he went to investigate the shooting of Donald Lundahl on September 15, 1978, and saw defendant running down the street. McCarthy placed defendant under arrest. The police report stated only that defendant was standing with the rest of the crowd that had gathered following the shooting.

At the time of defendant's arrest, defendant's brother Michael was also arrested. Both were released the following day.

Officer McCarthy, along with Officer Morrison, arrested defendant again on September 20 at approximately 12:30 a.m. pursuant to an arrest warrant. Defendant was taken to the police station and the Miranda warnings were read to him. After initially denying any involvement in the shooting, defendant admitted to committing the murder and he signed a written confession to that effect. Defendant also admitted to having taken three dollars from Lundahl, but that admission came after the signing of the confession and was not included therein.

Defendant's confession was the subject of a pre-trial motion to suppress. Defendant contended that he did not receive the Miranda warnings, that the confession was physically coerced, and that his request to call his mother was denied. The evidence at the hearing on the motion revealed that the Miranda warnings were read to defendant by Officer McCarthy and that defendant read his rights out loud before acknowledging in writing that he understood them. Defendant was also allowed to call his mother when he requested to do so. Defendant's motion to suppress was denied.

At the close of the State's case, defendant's motion for a directed verdict was denied. Following a recess, defense counsel requested leave of the court to call two witnesses who were not included on defendant's witness list. The witnesses were Gwendolyn Pettis, sister of Dennis Pettis, the absent eyewitness, and Robert McKinney, defendant's father. The State opposed allowing either witness to testify. The court allowed McKinney to testify but excluded Pettis. Defense counsel claimed that he had just learned of Pettis' testimony. In a formal offer of proof, Pettis testified as to a conversation she had with her brother and Wayne Phillips, the other eyewitness, in which Phillips said that the police beat them until they agreed to identify defendant as the murderer. The court excluded Pettis from testifying on the grounds that: (1) she was not an occurrence or alibi witness--her only value lay in the impeachment of Wayne Phillips' testimony, and (2) there was no foundation for this impeachment. The defense then presented its case.

The defense called Lena Haller who testified that sometime after 9:30 p.m. on September 15, 1978, defendant ran into her yard at 15329 Lexington in Harvey, Illinois, asking for help. Defendant told Haller that several boys were chasing him. She told defendant to run over to where the police were investigating a shooting. Defendant asserts that he was arrested while running over to the scene of the shooting.

The defense also called defendant's father, Robert McKinney. McKinney testified that he and a friend were at home from 7 to 10:15 p.m. on September 15, 1978, and that defendant was at home with them the entire time.

Defendant also took the stand. He testified that he was running near the scene of the shooting because he was being chased by a gang of youths. He also claimed that the police beat him until he signed the acknowledgment-of-rights form and the confession.

After the jury returned a guilty verdict, defendant moved for a new trial. The motion was denied. Defendant then waived his right to have a jury pass sentence and a hearing in aggravation and mitigation was conducted. The court imposed a sentence of natural life after concluding that the death penalty was not warranted. Defendant then appealed.

Defendant first contends that the State did not meet its burden of proving that defendant knowingly and intelligently waived his constitutional rights as enunciated in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, prior to making a confession to the police. This question was for the trial court to decide on the basis of the surrounding facts and circumstances (People v. Johnson (1973), 55 Ill.2d 62, 70, 71, 302 N.E.2d 20) including the defendant's background, experience, and conduct. (See North Carolina v. Butler (1979), 441 U.S. 369, 374-75, 99 S.Ct. 1755, 1757-58, 60 L.Ed.2d 286.) The court need not be convinced beyond a reasonable doubt in making its decision and its finding will stand unless contrary to the manifest weight of the evidence. People v. Johnson (1973), 55 Ill.2d 62, 70-71, 302 N.E.2d 20.

We note that in the instant case, defendant was 18 years old with an 11th grade education at the time of the confession and that he read out loud and answered in writing the questions on a form entitled "Constitutional Rights of Person in Custody" which included the Miranda warnings. Thus, it is evident that defendant was capable of making an intelligent waiver of his rights. Defendant also acknowledged in writing that he was informed of and understood his rights prior to making a confession. Under these circumstances, we find sufficient evidence that defendant knowingly and intelligently waived his rights. See People v. Brooks (1972), 51 Ill.2d 156, 164, 281 N.E.2d 326.

Defendant's next contention concerns the trial court's exclusion of a defense witness. At the close of the State's case in chief and following a denial of defendant's motion for a directed verdict, defense counsel requested that he be allowed to call two witnesses who were not included on defendant's witness list as required by Supreme Court Rule 413. (87 Ill.2d R. 413(d)(i).) The witnesses were Robert McKinney, defendant's father, and Gwendolyn Pettis, sister of Dennis Pettis, the eyewitness who failed to appear at trial. The court allowed Robert to testify but excluded Gwendolyn.

Following the court's ruling, defense counsel called Gwendolyn to testify out of the presence of the jury in a formal offer of proof. In pertinent part, she testified that she spoke with the two eyewitnesses, Wayne Phillips and Dennis Pettis, on September 20, 1978, and Phillips told her that the police had kept them over night and had beaten them and forced them to identify defendant as the man who killed Lundahl. Defendant contends that the court erred by excluding Gwendolyn from testifying.

Supreme Court Rule 413(d)(i) requires that defendant disclose prior to trial a list of the witnesses that defendant intends to call. (87 Ill.2d R. 413(d)(i).) Failure to comply with this disclosure requirement subjects the defendant to possible sanctions, including the exclusion of the undisclosed witness. (See 87 Ill.2d R. 415(g)(i).) Exclusion has been held to be a proper sanction where the facts and circumstances justify such action. (People v. Braxton (1980), 81 Ill.App.3d 808, 815, 36 Ill.Dec. 924, 401 N.E.2d 1062.) Whether or not to impose such a sanction is a matter within the trial court's discretion and the court's decision will not be disturbed absent a showing by defendant of prejudice or surprise. People v. Morales (1982), 109 Ill.App.3d 183, 189, 64 Ill.Dec. 750, 440 N.E.2d 302.

In the instant case, defense counsel claimed to have learned of Gwendolyn's testimony during a lunch break following the conclusion of the State's case in chief. Counsel questioned Gwendolyn at her parents' home. He did not explain what prompted him to go to the Pettis' home during the break or how it came about that Gwendolyn suddenly revealed the substance of her proffered testimony. The circumstances surrounding Gwendolyn's revelation strongly suggest recent fabrication (see People v. Braxton (1980), 81 Ill.App.3d 808, 815, 36 Ill.Dec. 924, 401 N.E.2d 1062), and in light of defense counsel's failure to adequately explain the reasons for seeking Gwendolyn out at such a late date, we find that the trial court did not abuse its discretion by excluding Gwendolyn from testifying.

The next contention of error concerns several comments in the prosecution's closing and rebuttal arguments. Defendant contends that these comments contain numerous improper arguments which, taken together, served to deprive him of a fair trial.

Defendant's first...