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People v. Mctush

OPINION FILED JUNE 7, 1978.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

NATHANIEL MCTUSH, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JOHN M. BREEN, JR., Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Nathaniel McTush was indicted for the offense of the unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(7)) in that he possessed a shotgun with a barrel less than 18 inches in length. Following a jury trial, he was found guilty and was sentenced to a term of one to three years in the penitentiary. McTush appeals, raising two issues for review: (1) whether the defendant was deprived of a fair trial by testimony and argument, implying that the defendant was engaged in criminal activity other than that for which he was on trial; (2) whether the closing argument of the State violated his privilege against self-incrimination.

Sergeant John Sweeney and Officers Edward Meyer and Patrick McGreal of the Chicago Police Department testified for the State. All three officers were assigned to the Special Operations Unit, Area 2. On the evening of April 29, 1974, at approximately 10:30 p.m., the three officers were driving north in an unmarked police car in an alley located between Wolcott and Winchester Streets in Chicago and were approaching 66th Street. As the squad entered the intersection of the alley and 66th Street, they heard an explosion and saw a flash. They turned east on 66th Street and drove toward the area from which they heard the explosion. At that time, the officers observed two individuals located on the northeast corner of 66th Street and Wolcott. The individuals were later identified as Melvin Hannah and Nathaniel McTush, the defendant. Melvin Hannah is not a party to this appeal.

As the officers approached Hannah and McTush, they heard a metallic clicking sound and saw that one of the two men was carrying a shotgun. The officers pulled alongside Hannah and McTush, exited their vehicle and ordered the two men to put their hands up. The man with the shotgun in his right hand, identified as McTush, raised his left hand. Sergeant Sweeney then ordered him to raise his other hand, at which point McTush dropped the weapon.

Officer Richard Chenow, a firearms technician for the Chicago Police Department, also testified for the State. He stated that the barrel of the shotgun recovered from McTush on the night of April 29, 1974, was less than 18 inches in length. The defendant offered no witnesses.

As the initial ground for the reversal of his conviction, McTush contends that he was deprived of a fair trial by certain testimony and argument which the State presented to the jury that suggested that McTush was engaged in other criminal activity at the time he was apprehended. This issue arises from certain testimony by Officer McGreal and the subsequent use of that evidence by the State in its closing argument. On cross-examination McGreal stated that the Special Operations Unit to which he was assigned, was an "assist" unit and that the officers of that unit received "simulcasts" of "in progress calls." On redirect examination, McGreal stated that "in progress calls" relate to felony calls which include burglaries, robberies and shootings.

During its closing argument the State emphasized the serious nature of the charge against McTush and the duty of the jury to return a guilty verdict if such a verdict was supported by the evidence. The following comments were made:

"Think about it [Defense Counsel] are asking you to give [McTush] a break; to let him go.

I ask you to think about 66th and Wolcott at 10:30 at night on April 29th, 1974, as that man walked along the streets of Chicago with this cocked and loaded shotgun.

Would he give one of those people a break?"

An objection by defense counsel was sustained. The State also addressed itself to the question of the credibility of the police officers, as follows:

"And did you hear about what [the officers] do for a living? Did you hear about Officer McGreal? He responds to simulcasts. He told you what the simulcasts were; radio messages.

What type of calls in particular did he respond to? He, Officer Meyers, and Officer Sweeney, what do they respond to? In progress calls; in progress calls of ...


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