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People v. Burnett





APPEAL from the Circuit Court of Cook County; the Hon. ALBERT PORTER, Judge, presiding.


Following an indictment charging defendant, Clinton Burnett, with the offense of murder (Ill. Rev. Stat. 1971, ch. 38, par. 9-1(a)(2)), a jury of 11 persons found defendant guilty as charged. Judgment of conviction was entered thereon and a sentence of from 15 to 30 years imprisonment was imposed.

Defendant appeals from this judgment and presents several issues for our consideration: (1) whether defendant knowingly and understandingly waived his statutory right to be tried by a jury of 12 jurors, (2) whether the trial court properly admitted into evidence an exhibit introduced by the State, (3) whether the credibility of certain defense witnesses was improperly impeached, (4) whether it was proper for the trial court, under the circumstances of this case, to instruct the jury that the State did not have to prove motive in order to establish defendant's guilt, (5) whether the prosecution sustained its burden of proving beyond a reasonable doubt that defendant was not acting in self-defense at the time the homicide occurred, and (6) whether the evidence creates a reasonable doubt of defendant's guilt of the charged offense.


Due to the amount of conflicting testimony adduced at trial and its impact on the issues to be addressed herein, a summation of pertinent portions of the record is necessary. On July 14, 1972, the deceased, Steve Loston, and defendant resided in adjacent apartments, numbers 1508 and 1510 respectively, in a Chicago Housing Authority Project located at 3519 South Federal in Chicago. Loston (hereinafter referred to as "the deceased") died on July 14 after receiving a single laceration under his right arm during a fight that evening with defendant in an area outside of their apartments; a pathologist testified that the cause of death was attributable to the stab wound.

Three corridors form a U-shaped hallway on the floor on which the incident occurred; two side corridors branch off of a main corridor. Outside of each apartment is a small porch area leading to a corridor. A partition or wall extends across approximately one-third of each porch in the passage way between the porch and the corridor. Throughout the trial, this partition was referred to by the witnesses as a "pillar." Two elevators are located in the main corridor. One end of this corridor terminates at defendant's porch. The side corridor which meets the main corridor in front of defendant's porch leads to the deceased's apartment; the porches outside of these two apartments are perpendicularly adjacent to one another.

It is undisputed that defendant was in the deceased's apartment at approximately 6:30 p.m. on July 14. Also present in the apartment at that time were, among others, the deceased and his common-law wife, Elmer "Sue" Loyd; Robert "Foley" Spurlock, a friend of the deceased; and Betty "Rita" Williams, a neighbor who resided in apartment 1512.

Mrs. Williams testified that on July 14 while she was in the deceased's apartment, she witnessed the following conversation between defendant and the deceased:

"DEFENDANT: Steve, did you tell me that Rita [Mrs. Williams] told you that I was going with Elmer Loyd?

DECEASED: Man, I didn't tell you no bullshit like that, I don't want to even hear it.

DEFENDANT: You just don't tell me no lie, you just wait until I come back."

She stated that defendant was "shouting" during this conversation. Defendant then left the apartment, and the witness departed shortly thereafter. From her apartment, Mrs. Williams heard defendant say in a "loud" voice from the hallway "You better not come out of there, if you come out of there, I'm going to kill you." About 10-15 minutes later, Elmer Loyd and Robert Spurlock came to her apartment and said "Rita, Clint have cut Steve." Immediately thereafter, the deceased, bleeding and unarmed, "staggered" to her door and collapsed on her porch.

Elmer Loyd testified that defendant was in her apartment on July 14 when the deceased returned home from work. She testified with regard to the argument between defendant and the deceased in a manner similar to Mrs. Williams' version of the conversation. She further testified that defendant left her apartment after the argument, but subsequently returned to the hallway and shouted threatening remarks. A few minutes later, after she and the deceased finished packing for a trip to Detroit, they went out into the hallway to get on the elevator. According to her testimony, the elevator is located 6-8 feet from defendant's apartment. While they were waiting for the elevator, she observed defendant walk out of his apartment and proceed toward the elevator. Defendant had his hand on a brown handled knife which was about 12 inches long. The deceased, who was unarmed, "jumped" behind the pillar in front of defendant's apartment. Defendant "had his hand on the knife and got up to the pillar and looked around like he was going to pull the knife." The deceased "grabbed" defendant and threw him to the floor. After an exchange of punches, defendant "stuck" the deceased under the right arm. Defendant then said to the deceased "I told you I was going to kill you."

On cross-examination, Ms. Loyd stated that the deceased was on top of defendant throughout the fight which lasted for about five minutes. When asked by defense counsel if she heard the deceased say to Robert Spurlock immediately after the stabbing "Man, I told you to reach me my knife," she responded in the negative. Reading from the transcript of the grand jury proceedings, counsel next asked her if she remembered making the following statement before the grand jury: "Oh, and I heard Steve [the deceased] say one thing. When he walked around he told Foley [Robert Spurlock], `Man, I told you to reach me my knife.'" She remembered making that statement. However, at a side-bar conference, the prosecution argued that the statement from the transcript had been read out of context. In response, defense counsel agreed to read more of the witness' grand jury testimony in conjunction with his question. When the proceedings resumed, the court struck the last question, whereupon defense counsel asked the witness if she recalled making the following statement before the grand jury:

"Oh, then I heard Steve say one thing. When he walked around he told Foley, `Man, I told you to reach me my knife,' and Steve fell. Then he told me to say he didn't say that and I called the Police and I didn't hear any more."

She replied that she did not remember making this statement. Following redirect examination, defense counsel moved that her testimony be stricken on the ground of perjury. In denying this motion, the trial court stated that in matters of impeachment the trier of fact is ...

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