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02/20/97 PEOPLE STATE ILLINOIS v. COLUMBUS MCGEE

February 20, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
COLUMBUS MCGEE, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS HETT, JUDGE PRESIDING.

Released for Publication March 31, 1997.

Presiding Justice Wolfson delivered the opinion of the court. McNAMARA and Cerda, JJ., concur.

The opinion of the court was delivered by: Wolfson

PRESIDING JUSTICE WOLFSON delivered the opinion of the court:

Columbus McGee (McGee) was tried before a jury on a charge of first-degree murder for the shooting of Tyree West. He admitted the shooting, but claimed he acted in self-defense. He was found guilty and sentenced to 55 years imprisonment.

The issues in this case concern the various ways McGee's believability as a witness was attacked by the prosecution. Four prior felony convictions were admitted against him, and the prosecution's cross-examination of the defendant included questions about his repeated commission of other crimes, his association with "robbers and murderers," and his use of an alias to stay out of jail.

We reverse the defendant's conviction and remand the case for a new trial.

FACTS

At trial, 24-year-old Carice West testified that two years earlier, on August 26, 1992, he and his brother, Tyree West, visited Tyree's girlfriend, Vivian Clifton. Clifton lived in an apartment at the corner of Central Park Avenue and Thomas Street in Chicago. After eating dinner and watching TV, Carice and his brother left Clifton's apartment sometime around 6:30 p.m. to go to a grocery store to get cigarettes. The grocery store was located a few blocks away at Augusta and Ridgeway.

When leaving the grocery store, Carice noticed a Chevy Malibu car with four black men inside. The men pointed toward Carice and Tyree. As Carice and Tyree walked east on Augusta, going back to Clifton's apartment, they heard shots being fired and turned to see a black man shooting at them. Carice and Tyree ran into an alleyway, over to Monticello Street, then back to Augusta, and then to Central Park Avenue. On Central Park Avenue, as they approached Clifton's apartment, they saw a black man, whom Carice later identified as Columbus McGee, standing on the corner, wearing dark pants and a blue sweater. Tyree shouted that the man had a gun. Carice and Tyree began to run and McGee started shooting.

As Carice and Tyree ran, Tyree said that he had been hit. Carice helped Tyree into a gangway and then ran back to Clifton's apartment to call for help. The police and an ambulance responded and Tyree was taken to Mt. Sinai Hospital, where he later died from a single gunshot wound to the back.

Carice further testified that three days later, on August 29, 1992, he picked McGee's picture from a group of photographs and identified him as the man who shot Tyree. He did not know McGee and had never seen him before the shooting. On October 7, 1992, Carice witnessed a line-up at the police station and again identified McGee as the shooter.

John Butler, a forensic investigator for the Chicago police, testified that on August 26, 1992, in the course of his investigation of the shooting, he recovered three .38 automatic cartridge cases from the ground near 1058 North Central Park Avenue and three .9 mm NNY Luger cartridge cases from the ground at the northwest corner of the intersection at Augusta and Ridgeway.

Detective Joseph Walsh of the Chicago police department testified that he had been assigned to investigate the shooting of Tyree West and became aware that McGee was wanted for questioning. He learned that McGee was on probation and had an appointment scheduled. Walsh and his partner went to the probation office to speak to McGee. McGee did not keep the appointment.

Later, on the evening of October 6, 1992, the police received a tip concerning McGee's whereabouts. Based on the information received, Walsh, along with several other officers, went to an apartment at 1007 Monticello Avenue. When the officers knocked, a woman opened the door to the apartment and said that McGee was not home. She allowed the officers to enter the apartment to look for McGee. Walsh's partner, Detective Whalen, discovered McGee hiding behind some clothes in the bedroom closet. He was arrested and taken to the police station.

Detective Keane, who also was at the apartment, discovered a gun "clip" containing a single live round or bullet. This was discovered between the mattress and box spring in one of the bedrooms inside the apartment.

Detective Keane also testified that he spoke with McGee in an interview room at the police station following his arrest. After advising McGee of his rights, McGee made several statements. First, McGee stated that he had gone to a store at Monticello and Augusta with his daughter, that two men followed him from the store, and that he shot at these men out of fear for his own life. Next, McGee admitted that he was not with his daughter, but claimed that two men approached him on the street and that he shot at them because he was in fear for his own life.

In his third statement, which he said was "the truth," McGee said that he had gone to the store at Monticello and Augusta with his girlfriend. His girlfriend, he claimed, told him that two men, who had been in the store earlier, wanted to rob him. McGee left the store and got into a car with three other black men. They drove down Augusta and he pointed out two guys walking down the street. At Augusta and Ridgeway, McGee and one of the other men in the car named "Little June," jumped out of the car and fired shots at the two guys. Little June used a Tech 9 semiautomatic pistol and McGee used a .38 semi-automatic pistol. The two men ran off. McGee and Little June got back into the car and took off after the two fleeing men. At Monticello Avenue, McGee jumped out of the car and ran toward Central Park Avenue. As McGee stood on the southwest corner of Thomas Street and Central Park Avenue, he saw the two men running toward him on Central Park Avenue. When the men saw him they turned around and started to run away. They were unarmed. McGee fired three shots at them, then left the area.

After obtaining McGee's statement, Detective Keane called an assistant State's Attorney (ASA). ASA Earl Grinbarg came to the station and met with McGee. McGee told Grinbarg the same story he had told to Detective Keane about how the shooting occurred, the third version. McGee told ASA Grinbarg that he would sign a written statement, but after Grinbarg wrote out McGee's statement, McGee refused to sign it.

McGee was the only witness to testify for the defense. First, he admitted that he had prior convictions for robbery, aggravated battery, manufacture and delivery of a controlled substance, and possession of a controlled substance. Then McGee told about an incident that occurred on July 23, 1991, when he was shot in the face. He said that he had been in an alleyway with a friend when two men came up to them and put a gun to his head. He grabbed the gun and it discharged in his face. McGee had to be treated in the hospital for more than two months and remained permanently disfigured. A plate was inserted in his jaw to replace a shattered jaw bone and his speech was affected because his tongue was mutilated. This event, McGee claimed, caused him to become so fearful that he started carrying a gun.

After this preliminary testimony, McGee told his version of what happened on August 26, 1992. He did not deny shooting Tyree West, but claimed that he did so in self-defense.

He said that he was in the grocery store at Monticello and Augusta with his girlfriend. After a conversation with his girlfriend, he gave her $2,000, bond money he had just gotten back from Cook County, to hold for him. McGee then started to walk to McDonald's to get some food.

At the intersection of Thomas Street and Central Park Avenue, McGee heard someone say, "Nigger, blow that shit." He turned around and saw two men, later identified as the West brothers. He claimed that Tyree pulled out a gun, slapped him, and demanded his gold chain. He took off the chain and gave it to Tyree. Then Tyree threatened him and told him to leave the area.

McGee turned as if to leave, but pulled out his own gun. He turned back around and directed a woman, who had gotten in the way, to move. McGee claimed that Tyree and Carice heard him tell the woman to move and turned around. Tyree then pointed his gun at McGee and McGee fired. McGee said that, after he fired one shot, the brothers turned to run away. He fired two more shots as they ran. McGee admitted that he disposed of the gun in the sewer after the shooting.

In accord with defendant's theory of defense, the jury was given instructions on self-defense and second degree murder based on imperfect self-defense.

DECISION

1. Admission of defendant's prior convictions.

The most troubling issue in this case concerns the trial judge's denial of the defendant's motion to exclude three of his four prior felony convictions. The State proposed to offer the convictions to impeach the defendant's credibility should he take the stand.

The defendant had been convicted of aggravated battery, possession of a controlled substance, manufacture and delivery of a controlled substance, and robbery. The defendant does not seriously challenge use of the robbery conviction, but contends the other three convictions should not have been admitted to impeach him.

For tactical reasons, McGee revealed his prior convictions during his direct testimony. Given the trial judge's pre-trial ruling, he was not required to wait for cross-examination. He may and does argue that he was unfairly prejudiced by the trial court's ruling. He contends the prior convictions had no bearing on his testimonial credibility, but served only to inform the jury he was a bad person.

Any discussion of the admissibility of prior convictions for impeachment purposes necessarily begins with People v. Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695 (1971).

In Montgomery our supreme court adopted the 1971 proposed version of Federal Rule of Evidence 609:

"(a) General Rule. For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime, except on a plea of nolo contendere, is admissible but only if the crime, (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted, or (2) involved dishonesty or false statement regardless of the punishment, unless (3) in either case, the judge determines that the probative value of the evidence of the crime is substantially outweighed by the danger of unfair prejudice." 47 Ill. 2d at 516.

Section (b) of the proposed rule established a permissible age limit for the convictions. Age of the convictions ...


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