Court of Appeals of Illinois, First District, First Division
Appeal from the Circuit Court of Cook County. No. 02 CR 19506. Honorable Kenneth J. Wadas, Judge Presiding.
The trial court did not fail to address all of the claims made in defendant's postconviction petition, notwithstanding the fact that the court's dismissal order did not individually mention every argument in the petition; rather, the dismissal denied all of the claims in the petition, and appellate counsel was not ineffective in failing to argue that instructions on the defense of necessity and self-defense to felony murder were improperly rejected, since defendant was unable to establish that he was blameless for purposes of an instruction on necessity, and in Illinois, self-defense cannot be used as a defense to felony murder, and any error would have been harmless in view of the overwhelming evidence of defendant's guilt.
Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Office of the State Appellate Defender, Chicago, Illinois (Adrienne N. River, Of Counsel) for APPELLANT.
Anita Alvarez, State's Attorney, Chicago, Illinois (Alan J. Spellberg, Of Counsel) for APPELLEE.
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Connors and Justice Hoffman concurred in the judgment and opinion.
[¶1] This appeal arises from a December 17, 2010 order entered by the circuit court of Cook County which dismissed defendant-appellant George Maclin's (Maclin) pro se postconviction petition as frivolous and patently without merit. Maclin's postconviction petition followed his conviction for first-degree murder, which was affirmed by this court in People v. Maclin, 395 Ill.App.3d 1116, 986 N.E.2d 806, 369 Ill.Dec. 493 (2009) (unpublished order under Supreme Court Rule 23). On appeal, Maclin argues that: (1) the trial court improperly dismissed his postconviction petition because the court's order failed to address all of the claims presented in his petition; (2) the trial court erred in dismissing his postconviction petition because the petition stated an arguable basis of a claim that appellate counsel was ineffective for failing to argue that the trial court erred in refusing a jury instruction on the defense of necessity; and (3) the trial court improperly dismissed his postconviction petition because the petition stated an arguable basis of a claim that appellate counsel was ineffective for failing to argue that the trial court erred in refusing a jury instruction on self-defense to felony murder. For the following reasons, we affirm the judgment of the circuit court of Cook County.
[¶3] On July 3, 2002, Ernest McGhee (McGhee) suffered a stab wound to the neck. McGhee passed away as a result of his injury. On that same day, Maclin was arrested for the murder of McGhee. On July 30, 2002, Maclin was charged by indictment with five counts of first-degree murder and one count of armed robbery. The State proceeded to trial on only one count of felony murder predicated on armed robbery (720 ILCS 5/9-1(a)(3)/18-2(a)(1) (West 2002)).
[¶4] On May 16, 2007, Maclin's trial commenced in the circuit court of Cook County. Emmett Brown (Brown) testified that he had been friends with the victim, McGhee, for six or seven years. At the time of the trial, Brown was employed as a mechanic and also remodeled houses and performed roofing work. Brown testified that around 1 a.m. on July 3, 2002, he drove to a vacant lot on Adams Street and Western Avenue in Chicago to drink a six-pack of beer. Brown stated that he and his friends would hang out in the vacant lot to drink beer and tell jokes on the weekend and during the week after they finished working. Brown testified that earlier that day, McGhee had been working on the transmission of a blue van that was parked on Adams Street. While sitting in the passenger seat of his vehicle, Brown opened a beer and began talking to his friend, Vearb Smith (Smith). Brown noticed Maclin walking back and forth in the vacant lot and heard Maclin say that " he wasn't going to let nobody else take no money from him" and " whoever do it he going to kill him."
[¶5] A short time later, Brown saw another vehicle pull up and park behind him. The vehicle was driven by a woman named
Helen, and McGhee was in the passenger seat. Brown stated that McGhee exited the vehicle and Maclin immediately approached McGhee and began arguing with him about $5 that McGhee owed to Maclin. Brown testified that Maclin said " you going to pay me my money," and McGhee said " I don't have it." Maclin then told McGhee to go inside a nearby house and get the money from " Mr. Anderson." McGhee went inside the house and then came back out and said that he did not have any money. Brown testified that Maclin began to chase McGhee around a vehicle, and Maclin pulled out a steak knife. Brown stated that Maclin made a stabbing motion with the knife and then said " you going to get my money or I'm going to kill you." McGhee ran across the street, picked up some " rocks or bricks," and began throwing them at Maclin to keep Maclin away from him. Maclin then walked over to the blue van that McGhee had been working on and took McGhee's toolbox from the passenger side of the van. McGhee came over to the van and said " you can't take my toolbox, I need that," to which Maclin responded " you going to give me my money." Brown testified that Maclin put down the toolbox and began chasing McGhee again. McGhee started to run away, but ran out of breath and began walking away from Maclin. Brown stated that McGhee then fell backward and hit his head on the ground. Maclin got on top of McGhee and straddled him, pinning his arms down. Brown testified that Maclin grabbed McGhee's hands and " slowly stuck [McGhee] in the neck." Maclin then got up and walked away from the vacant lot.
[¶6] Brown testified that after Maclin stabbed McGhee in the neck, he got out of his vehicle to help McGhee. Brown put a towel over the hole in McGhee's neck. Brown stated that he and a woman named Rebecca Beck (Beck) helped McGhee walk over to the blue van. Once the group reached the blue van, McGhee collapsed against a light pole and began gasping for air. Brown then called the paramedics. Brown testified that he went to the police station to give a statement and then returned to his vehicle in the vacant lot. Brown stated that he and Smith were trying to figure out Maclin's last name because they just knew him as " George." Brown and Smith remembered that Maclin had some " medical papers" with him when he was around the area of the vacant lot. Brown and Smith found Maclin's mail on the side of a building near the vacant lot, and Brown called the police. Both Brown and Smith brought Maclin's mail into the police station. Brown testified that on the night of July 3, 2002, he saw Maclin in the area of the vacant lot. Brown called the police, and when the police arrived, Brown directed them in the direction of Western Avenue and Jackson Boulevard. On July 4, 2002, Brown identified Maclin in a physical lineup.
[¶7] Smith testified that he was friends with McGhee and worked as a mechanic with McGhee. Smith testified that on July 3, 2002, he was asleep on the second floor of a building located at 2337 West Adams Street. Smith heard a commotion and went downstairs to see what was going on. Smith stated that as he stood on the porch of the building, he saw McGhee lying on the ground with Maclin " standing on top of [McGhee]." Maclin then walked away from McGhee, and McGhee started yelling for help. Beck helped McGhee get up and walk toward Smith. Smith noticed that McGhee was holding his neck and McGhee collapsed at the base of a light pole near the blue van. Smith stated that he remained at the scene of the incident and talked to a police officer. Smith testified that later that morning, he was on the porch of the building talking to Brown about Maclin. Smith and Brown wanted to learn Maclin's last name, and Smith
remembered that Maclin had been drinking in the area of the vacant lot with his " V.A. papers." Smith stated that he went to the side of a building where Maclin had been drinking, retrieved Maclin's papers, and gave the papers to Brown. Smith and Brown then called the police and took the papers to the police station. On July 4, 2002, Smith identified Maclin in a physical lineup.
[¶8] Chicago police officer Todd Stremplewski (Officer Stremplewski) testified that he and his partner were the original officers on the scene of the incident, and learned that a man had been stabbed with a knife. On July 4, 2002, Officer Stremplewski and his partner responded to a radio call of found property at the vacant lot of 2339 West Adams Street. When Officer Stremplewski arrived at the lot, he spoke with Marilyn Green (Green). Officer Stremplewski testified that Green took him to the area where McGhee was killed and directed him to a garbage can near the area. Officer Stremplewski looked in the garbage can and found a knife. The parties stipulated that the bloodstain on the knife was consistent with the DNA profile of McGhee.
[¶9] Chicago police detective David March (Detective March) testified that he was assigned as a follow-up detective for McGhee's killing. Detective March testified that the original case report stated that the offender was named " George." Detective March reviewed the available reports and learned that some mail addressed to Maclin had been recovered. At 11:30 p.m. on July 3, 2002, Detective March received a telephone call from Brown, during which Brown informed Detective March that Maclin was present at the scene of McGhee's killing. When Detective March arrived at the scene, Beck directed him to a CTA bus that was proceeding westbound on Jackson Boulevard. Detective March and his fellow detectives stopped the bus at the corner of Jackson Boulevard and Western Avenue. Detective March testified that he boarded the bus and placed Maclin into custody. At the police station, Detective March advised Maclin of his Miranda rights and interviewed him. Maclin denied having any knowledge of, or involvement in, the death of McGhee. Maclin stated that he did not remember where he had been during the incident. Detective March testified that as part of processing, he removed Maclin's shirt to note any scars, marks, or tattoos that can be used for identification. Detective March observed an abrasion on Maclin's left armpit area. Detective March asked Maclin how he was injured, and Maclin replied that the injury occurred two weeks prior and he did not remember how it happened. Detective March testified that he did not notice any blood on Maclin's shirt.
[¶10] Dr. Mitra Kalelkar (Dr. Kalelkar) testified that she is a forensic pathologist and conducted an autopsy on McGhee. Dr. Kalelkar stated that the cause of McGhee's death was internal bleeding as the result of a stab wound to the left side of his neck. Dr. Kalelkar opined that homicide was the manner of McGhee's death.
[¶11] Maclin testified that on July 3, 2002, he was sitting in a white van in the area of Adams Street and Western Avenue, smoking crack cocaine with a friend named " Willie." Maclin stated that he saw McGhee in the area and approached him. Maclin asked McGhee if he had the money that he owed to Maclin. Maclin stated that McGhee looked at him in an angry way, and he felt scared. Maclin again asked McGhee if he had the money, and McGhee became " indignant." McGhee stated that he did ...