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People v. Mcmullen

OPINION FILED MARCH 27, 1980.

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

v.

JOHN MCMULLEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT J. SULSKI, Judge, presiding.

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendant, John McMullen, was charged by indictment with the offenses of attempt murder (Ill. Rev. Stat. 1971, ch. 38, par. 8-4), aggravated assault (Ill. Rev. Stat. 1971, ch. 38, par. 12-2), and armed violence (Ill. Rev. Stat. 1971, ch. 38, par. 33A-2). Prior to trial, defendant McMullen filed a motion to quash his arrest and to suppress evidence. The trial court denied the motions. He was tried by a jury and found guilty of attempt murder, aggravated assault, and armed violence. Judgment was entered on the verdicts and the trial court sentenced him to 3 to 9 years in the Illinois Department of Corrections on the charge of attempt murder. We affirm.

In his appeal to this court, defendant contends (1) the trial court erred in failing to suppress alleged inculpatory admissions he made following an improper detention and interrogation by police officers; (2) his arrest lacked probable cause; (3) the trial court committed reversible error by allowing a police officer to bolster his testimony even though that testimony was never impeached nor was there any charge or implication of fabrication; and (4) he was denied a fair trial when his defense attorney failed to give a closing argument.

At the pretrial hearing, a motion was heard based upon the allegation that the arresting officers lacked probable cause to arrest defendant. At the same time, the trial court conducted a hearing on a motion to suppress certain identification evidence.

At the hearing, Officer Robert Scarpetti of the Chicago Police Department testified about his first encounter with defendant. On December 28, 1973, he was given a description of an individual who was wanted in connection with shooting at a police officer. The description was of a male, between the ages of 20 and 25 years, 5 feet, 10 inches in height, and weighing 170 pounds. The shooting was reported to have occurred at 1220 South Keeler Avenue, in Chicago.

On the same date at approximately 9:15 p.m., Officer Scarpetti was on patrol in an unmarked car and in plainclothes. He and his partner, Officer Richard Oswald, viewed a man, who later was identified as the defendant, John McMullen, as he stood in front of a building at 1217 South Keeler Avenue, directly across the street from the address of the reported incident. Officer Scarpetti testified defendant matched the description of the individual who shot at the police officer. The patrolman stopped the car and approached defendant who turned and ran into the building. The officers chased defendant to a third floor apartment. They knocked on the door but there was no answer.

The officers returned to their car and drove around the block. When they returned to the building at 1217 South Keeler Avenue, defendant was standing in the doorway. The officers left their car and pursued him. This time he did not run. When the officers were close enough to question defendant, he cursed them and threatened them with bodily harm. Officer Scarpetti testified, quoting defendant as stating: "I missed you yesterday, but I won't miss you this time"; and, "Why didn't you follow me up the stairs yesterday"; and, finally, "I'm going to blow your [f____] head off."

It was after defendant made these responses that the police officers arrested him. A search of his person failed to yield a weapon.

Defendant McMullen was taken to the police station where he was viewed in a lineup by Officer Gerald DiPasquale. The lineup was properly conducted, and Officer DiPasquale identified defendant as the person who shot at him the day before.

Officer Oswald was called as a witness to corroborate the testimony of Officer Scarpetti.

Officer DiPasquale also testified at the hearing on the motion. He said he was called to view a lineup on December 28, 1973. Officer DiPasquale stated he did not see defendant while he was waiting at the police station. Six people participated in the lineup and defendant was identified by Officer DiPasquale as the person who shot at him.

Both sides rested and the trial court denied defendant's motions.

The parties proceeded to trial where evidence was presented that shortly before 11 a.m. on December 27, 1973, Officer Gerald DiPasquale was patrolling in his squad car in the vicinity of Keeler Avenue and Roosevelt Road. The officer testified that he stopped his car approximately 75 feet from a bus stop located at the intersection of those streets. Standing at the bus stop were two women and defendant. Officer DiPasquale observed the bus stop until defendant turned and started to walk southbound on Keeler Avenue. The officer followed defendant in his squad car. When defendant noticed he was being followed, he began to run. He ran to an abandoned building located at 1220 South Keeler and entered. Officer DiPasquale got out of his car and pursued him.

It was snowing and there were no lights in the building, but someone could be heard inside running up a flight of stairs. Following the sound, Officer DiPasquale ran into the hallway of the first floor, but due to darkness his vision was limited. As he approached the stairs, he saw defendant with a blue steel handgun. Defendant fired several shots at Officer DiPasquale. The officer returned the gunfire, then quickly radioed for assistance. Minutes later, 60 to 75 policemen, including a canine ...


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