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01/12/95 PEOPLE STATE ILLINOIS v. WILLIE L. MCCLAIN

January 12, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WILLIE L. MCCLAIN, DEFENDANT-APPELLANT.



Appeal from Circuit Court of Champaign County. No. 92CF1142. Honorable Harold L. Jensen, Judge Presiding.

Released for Publication February 15, 1995. As Corrected March 31, 1995.

Honorable James A. Knecht, P.j., Honorable Robert J. Steigmann, J., Honorable John T. McCULLOUGH, J., Concurring

The opinion of the court was delivered by: Knecht

PRESIDING JUSTICE KNECHT delivered the opinion of the court:

After a jury trial, defendant Willie McClain was found guilty of aggravated battery and two counts of first-degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 12-4, 9-1). Defendant appeals and seeks a new trial, asserting the trial court erred by failing to (1) allow certain cross-examination of a prosecution witness, and (2) properly instruct the jury. We affirm.

Patrick Kelly, a police officer for the City of Champaign, was working in the early morning hours of May 11, 1992. Around 3:45 a.m. he was dispatched to investigate a call of shots fired, and came upon a car in the 400 block of Grove Street. Inside the car he found two persons, later identified as Shelvin Johnson and Eunice Pendermon, shot and severely wounded. Another officer found a third shooting victim, later identified as Michelle Meeks, farther down the street. Johnson and Pendermon died as a result of their wounds.

Jimmie Ross, Jr., was in the car with Johnson and Pendermon earlier that evening. Johnson was driving, Pendermon was in the backseat, and Ross was in the passenger seat. They stopped at the 400 block of East Grove to pick up Michelle Cooley (Meeks), when another car pulled in front of them. A man named Martinez (Gill) got out of the driver's side of the car in front of them carrying a pistol. He came to the car Ross was in and shot Johnson. Ross also saw defendant get out of the car in front of him. Defendant was carrying a pistol and began shooting. Ross got out of the car and ran, and he was hit in his thigh with a bullet. He continued to run and then hid in a garage until the police and paramedics came. Ross helped Johnson steal drugs and electronic equipment from Gill earlier that evening. Johnson and Gill were drug dealers and former associates.

Michelle Meeks lived in the 400 block of East Grove Street. She was walking in the neighborhood when a car pulled up. Johnson, the driver of the car, asked her to get in. She could see other people in the car. A car then pulled in front of Johnson's car. Gill and defendant got out of that car and came toward Johnson's car. Meeks backed away and saw both Gill and defendant carrying guns. Gill shot into Johnson's car. Ross jumped out of the car and ran, with Gill and defendant chasing him. Meeks hid behind a tree and heard more gunshots. Both Gill and defendant found Meeks. Defendant walked by her and shook his head. He was carrying a gun. Gill then shot her in the chest and arm. She "laid down and pretended to be dead," and heard more shots fired. She could see both Gill and defendant standing by Johnson's car shooting into the car. Gill and defendant then left.

On cross-examination, defense counsel attempted to question Meeks about an "incident" involving Bonnie Gill. The prosecution objected, and a side-bar conference was held. After the side bar, the trial court sustained the objection. Defense counsel later made an offer of proof that had the trial court allowed this specific cross-examination of Meeks, she would have testified a year and a half prior to the trial, she inflicted a fatal knife wound on Bonnie Gill, Martinez Gill's sister-in-law. Defendant was being tried on the aggravated battery count involving Meeks based on an accountability theory, so defense counsel believed Meeks' testimony would show Gill had a motive for shooting Meeks independent of any plan to shoot Johnson. This would tend to show shooting Meeks was not part of any plan defendant had to shoot Johnson, and so defendant would not be accountable for Meeks being shot. The trial court again sustained the prosecution's objection to the cross-examination on grounds of relevancy.

Sara Lambert sought out defendant earlier on the evening of the shooting because she wanted to buy cocaine from him. He got in her car and directed her to drive all around town. She asked why they could not "get something." Defendant told her "well, he was looking for somebody. Somebody had broken into his friend's trailer, and he was helping him find him, had to find this guy." Defendant continued to have her drive around town. They picked up Gill and a man named Thomas Houston, and continued to drive. Lambert heard defendant talk with Gill and Houston about stolen drugs. She heard them mention both Shelvin Johnson and Jimmie Ross. Gill and defendant were doing most of the talking.

At some point, they found a car "they said was that guy's car." Defendant got out, and Lambert heard glass breaking. Defendant was gone perhaps five minutes, but Gill and Houston did not leave the car during this time. Defendant returned carrying a lead pipe, and said "the back windows was hard to break" and "he wouldn't be driving that car."

Eventually, the men found the car they were looking for and told Lambert to follow it and then pull up beside the car. Everyone got out of Lambert's car except her, and she heard gunshots. Gill and defendant each had a gun. She heard defendant say "give me the gun, let me do it." Both Gill and defendant shot into the car behind hers. She was scared, wanted to leave, and started to move her car, but Gill returned, swore at her, and told her to "stop the car now." He was holding a gun. She heard the men say they were worried about "someone getting away."

Gill, defendant, and Houston then got back in her car, and told her to "get out of here." She drove them to defendant's girlfriend's house. Defendant handed Houston a gun and said "'hide it and hide it good.'" Defendant and Lambert went in the house, where he said, "'you know, you can't tell anybody about this, don't you? Do you know what I mean? Because if you do, same thing is going to happen to you. Do you understand me?'" He also told her, "'Now you understand what I do.'" He said, "this was his job, what comes along with it sometimes." She replied, "I know." Several days later, she went to the police and told them what happened. She told them she was considering leaving town because she was frightened of all three men and the whole situation.

On the evening in question, prior to the shooting, Lambert did not see defendant, Gill, or Houston with a gun, nor did she hear any of them mention anything about killing anyone. She only knew Gill was angry because someone had stolen from him. Lambert was not charged with any crime arising out of the ...


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