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June 10, 1994



Released for Publication August 2, 1994.

McNAMARA, Egan, Giannis

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Following a jury trial, defendant Michael Goodloe was found guilty of first degree murder of William "Red" McKinney and was sentenced to 23 years imprisonment. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt; that the trial court erred in not allowing him to show that the deceased had alcohol in his body; and that he was denied effective assistance of counsel. The pertinent facts follow.

At trial, Diane McKinney testified for the prosecution that on May 14, 1987, she lived in Chicago with her husband, the deceased in this case. Defendant's mother, Zola Goodloe, lived next door. Diane had lived next door to defendant's family for two and a half years and had seen defendant at his parents' house before. There was a fence that was not more than four feet high between the two houses.

Diane testified that she saw the deceased fighting with defendant on the afternoon of May 14, 1987 in front of the McKinney home. Defendant was a much larger and heavier man than the deceased, but the deceased was landing blows on defendant, who was swinging back, but missing. The men were also engaged in a verbal altercation. After observing the fight for a few minutes, Diane told her husband to come inside the house. At that point, the fight stopped, and she heard defendant say to the deceased, "I am going to kill you." Diane also heard defendant state, "I am going to kill you half white punk." The deceased then went inside his house. Thereafter, Diane got dressed and left the house about 4:00 or 5:00 p.m.. She later returned about 7:00 or 8:00 p.m.. When she returned, the deceased was at home with various relatives. After they all had gone to bed, three friends of the deceased came to the house at about 11:00 p.m. or 12:00 a.m. to celebrate a birthday. They stayed for about an hour or an hour and a half. When the visitors left, the deceased walked them to their car which was parked in front of the house. They had gone out the back door because the front door of the house was nailed shut. During this time, Diane stayed on the back porch which was enclosed with windows and doors.

Diane saw the deceased, after he had walked the visitors to their car, talking to defendant, who was standing on the McKinneys' side of the fence. Diane was a few feet from where they were standing and was close enough to hear some mumbling and cursing. As she turned to go into the house, Diane heard a shot and saw a flash coming from defendant. She then saw defendant throw something over the fence and jump over the fence. Defendant turned around, and he and Diane made eye contact. She did not know if defendant ran into his home, because at that point, she started calling for her son, Eddie. She was screaming, "Red's been shot and Michael shot him."

When the police arrived, Diane told them that defendant shot her husband and told them this before they asked. When Diane pointed defendant out to the police, defendant was standing "on the front part of his house like the side." The lighting was good, and she had a direct view.

Diane testified that she saw defendant shoot her husband with a gun, but she did not know the type of gun. She was not sure whether she had told the police that defendant jumped over the fence. Diane did not believe that she told the police that defendant ran eastbound down the street. She did recall telling the police that defendant ran to his house.

Diane further testified that she had previously seen the visitors who came to the McKinney home on the night of the shooting. She gave the visitors' names or nicknames to the police, and she did not see any cocaine. She told the police that she had one beer with her husband after 11:00 p.m. and had one other beer earlier in the day.

Latarra Moon, Diane's niece, testified that friends of the deceased and her aunt came to the house. Moon was staying at their house. She heard the visitors leave and her uncle say goodbye. After Moon heard the visitors' car pull away, she heard a gunshot. She then heard her aunt "hollering out for her son saying Red was dead. Red got shot." Moon told the police that she had not seen anything. The police did not ask her if she had heard anything. Moon also confirmed that she had never seen any cocaine in the house.

Officer Robert Stubitsch testified for the State that on May 15, 1987, he responded to a call that there had been a shooting. When he arrived at the scene at 2:07 a.m., a woman, later identified as Diane McKinney, ran up to him and told him that her husband had been shot. She gave him a description of the male shooter and within a few minutes told him the offender's name.

Stubitsch first secured the rear of the house and then went to the front where he observed a person fitting the description that Diane had given him, including the type of shirt and pants he was wearing. Stubitsch stated that as he walked towards the individual to question him, "Diane [ ] came running out from between the two houses, pointed at the individual and stated that was the man who had shot her husband." Stubitsch then arrested defendant at about 2:10 a.m..

Stubitsch testified that after speaking with Diane, he wrote in hisarrest report that the deceased had been shot with a handgun, but did not recall whether Diane told him this or whether she had indicated with her hand that the deceased had been shot. His report also stated that the offender fled eastbound. This Conclusion was based on Diane having pointed in an eastbound direction. Nowhere in his report did it state that the offender had jumped over a fence. Diane told him that the deceased had been drinking with defendant all day, but he could not recall whether Diane had participated. If Diane had told Stubitsch that she had been drinking all day, he would have put that information in his report. His report did not contain such information. He did not see any blood on defendant's clothes and did not see any bruises on defendant's body indicating that he had been in a struggle.

Officer John Butler testified for the State that he performed a gunshot residue test on defendant's hands at 4:15 a.m., the morning of the incident. He testified that upon being asked by him, defendant told Butler that he last washed his hands at 1:00 p.m. the previous day.

John Riley, a special agent with the Federal Bureau of Investigation, testified as an expert witness for the prosecution. He conducts gunshot residue analyses to determine whether a person may have discharged a firearm. He cannot, however, determine from said analyses the type of gun that was involved. Riley indicated that there are outside factors which affect the accuracy of his test, namely the type of gun fired and the amount of time that has elapsed. He stated that some guns leave a deposit and others do not. Where a person who has discharged a gun has been active for about six or seven hours, an examination is not conducted since the contaminates will have been physically removed.

Riley performed gunshot residue examinations on the swabs taken from defendant's hands in order to determine whether the elements, antimony and barium, were present which would indicate that defendant had gunshot residue on his hands from a discharged firearm. Riley testified that when he tested the swabs taken from the palms and backs of both of defendant's hands, he found significant amounts of antimony and barium. Based on the swabbings that were taken from defendant, Riley's Conclusion was that "defendant either discharged the firearm or he was in the environment of gunshot residue." When asked what he meant by "in the environment of gunshot residue," he explained that an individual "could have either been very close to somebody else shooting a gun or he could have been struggling with somebody when a gun went off and in some cases when a person merely handles a very dirty weapon * * *." He also noted that the significant amounts of antimony and barium which werefound were much higher than typically found on the hands of non-shooters.

Detective Terrence O'Connor testified for the State that he was assigned to investigate the homicide. He stated that about 4:00 a.m. he spoke to Diane, who related that she saw something in the offender's hands. She told him that there was a flash, but could not describe the type of gun. Nevertheless, O'Connor wrote in his report that a handgun was the murder weapon because "Diane told [the police] that she saw the flash coming from the hand which would make it a handgun."

Detective O'Connor testified for the defense that he did not notice any blood stains, burns or marks on defendant which would indicate that he had been fighting. O'Connor went inside defendant's home the evening of May 15, 1987. There he confiscated two handguns which were handed over by Orville Smith, defendant's brother-in-law, who lived in the Goodloe house. Smith said that the unregistered guns belonged to defendant. O'Connor did not recall Diane telling him that the shooter jumped over the fence after having thrown a gun over it. Although on direct examination he testified that Diane told him that the shooter ran eastbound, he explained on cross-examination that the testimony was an error on his part.

Officer Robert Stubitsch testified for the defense that after arresting defendant, he spoke with Moon. He stated that Moon's first statement was that she did not see or hear anything. Approximately 10 or 20 minutes later, however, she retracted the statement and said that she had heard one gunshot.

Officer John Butler testified for the defense that he saw defendant's hands at the police station and did not notice any burns on them. Following Butler's testimony, the defense rested. Following ...

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