People v. McGhee

605 N.E.2d 1039, 238 Ill. App. 3d 864, 179 Ill. Dec. 25, 1992 Ill. App. LEXIS 2024
CourtAppellate Court of Illinois
DecidedDecember 15, 1992
Docket2-91-0521
StatusPublished
Cited by12 cases

This text of 605 N.E.2d 1039 (People v. McGhee) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. McGhee, 605 N.E.2d 1039, 238 Ill. App. 3d 864, 179 Ill. Dec. 25, 1992 Ill. App. LEXIS 2024 (Ill. Ct. App. 1992).

Opinion

JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Frank McGhee, was indicted in the circuit court of Kane County on one count of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2(a)), one count of armed violence (Ill. Rev. Stat. 1989, ch. 38, par. 33A—2) and one count of attempted murder (Ill. Rev. Stat. 1989, ch. 38, pars. 8—4(a), 9—1). Following a jury trial, defendant was found guilty of all three offenses and sentenced to concurrent 35-year extended terms of imprisonment on the armed robbery and attempted murder convictions.

Defendant raises the following issues on appeal: (1) whether he was denied a fair and impartial jury; (2) whether he was denied a fair trial by the combination of police officer testimony regarding defendant’s fingerprint cards and another witness’ testimony that defendant told him that defendant committed robberies for a living; (3) whether defendant was denied the effective assistance of counsel based on his trial counsel’s refusal to allow him to testify; (4) whether defendant was proved guilty beyond a reasonable doubt; and (5) whether the trial court abused its discretion in sentencing him to concurrent 35-year extended terms of imprisonment.

The following facts were adduced at defendant’s trial. During voir dire, the court addressed venireperson Lawrence Becker concerning the possibility of “some involvement” between the court and Becker. The following discussion occurred between the trial judge and Becker:

“Q. [Trial Judge]: I’m in the process of buying a home from Westway Construction Company.
A. [Mr. Becker]: Right.
Q. Is there anything that I have said or done as a customer that is going to influence you in any way in terms of your ability to be a fair and impartial juror in this case?
A. Well, I really don’t know, I can’t—
Q. In other words, so far nothing has happened with me as a customer, I take it?
A. Right.
Q. You understand it’s the lawyers who are going to present the case, and the jurors who are going to decide the facts, and I’m simply going to tell you what the law is?
A. Is there going to be anything in the construction of your home that’s going to interfere with our relationship?
Q. I certainly hope not. We have never met before, though; is that correct?
A. That’s correct.”

The following discussion also took place between the prosecutor and Becker:

“Q. [Prosecutor]: Mr. Becker, are you ready, willing, and able to serve as a juror in this case?
A. [Mr. Becker]: I do have some time restraints that I wasn’t happy with this, but otherwise, yes.
Q. And that was going to be one of my next questions is do you have any obligations, what have you, that are distracting you, or perhaps going to—
A. I’m active in my community. For example, tonight I have a planning commission meeting which is to take place shortly.
I also do some bookkeeping on the side, and there is year-end tax situations that I’m confronted with.
Q. And as far as scheduling goes, we hope that this matter finishes sometime Wednesday.
Do you think that you will be able to put these concerns aside and concentrate on the matter at hand?
A. I’d have to.”

Becker was selected as an alternate juror. Defendant did not object to Becker’s selection. Later, defendant did not object when Becker replaced an ill juror. Nor did defendant raise in his post-trial motion any issue regarding Becker being on the jury.

Also prior to trial commencing, defendant moved to bar the testimony of Joe Gonzalez that defendant had told him that defendant committed robberies for a living and that defendant intended to rob the Saratoga Hotel. The court denied defendant’s motion.

The first witness to testify for the prosecution was the victim, Philip Fetzer. According to Fetzer, he was assigned to work at the Saratoga Hotel on July 27, 1990, from 11 p.m. to 7 a.m. as the night auditor and desk clerk. He has no memory of the incident. He remembered saving a computer program at home before going to work. The next thing he recalled was being transferred out of the intensive care unit at the hospital. Fetzer was unable to recognize anyone in the courtroom as the person who shot him, nor was he able to remember having seen defendant. On cross-examination, Fetzer was shown a photograph of defendant but did not recognize him. When asked whether he had ever seen defendant before, he .responded that he believed defendant and his family had stayed at the hotel prior to the incident.

Fetzer explained that he had been shot near the right temple. He suffered the loss of sight in his left eye, blurred patches in his right eye, loss of sense of smell and damaged nerves on the right side of his face.

Thomas Fetzer, a North Aurora police officer and the victim’s brother, testified that on July 27, 1990, sometime after 5 a.m., he was dispatched to the Saratoga Hotel based on a report of an armed robbery and a subject bleeding from his head. Upon arriving, Officer Fetzer observed his brother lying on the floor and bleeding profusely from the head. The victim was unconscious, had labored breathing, had a rapid and weak heartbeat and appeared to be dying.

After regaining consciousness at the scene, the victim told Officer Fetzer that someone shot him. He described the assailant as a black male armed with a dark-colored revolver. He also told Officer Fetzer that the black male kept telling him to open the safe, and, when the victim told him he could not do so, the black male starting shouting at him to do it. The black male then shot him.

Officer Fetzer described several photographs that depicted the front counter, the registration area, the cash register and the night clerk’s chair. The photographs also showed United States currency on the floor near the chair and a piece of a plastic bag on the chair.

Officer Bill Lomax identified a fingerprint card bearing defendant’s name as a “fingerprint card that the Aurora police department maintains for arrestees that come through [the] jail.” He further testified that he took the set of fingerprints on the card from defendant on June 10, 1988. Deputy Gerard Casale of the Kane County sheriff’s department identified a fingerprint card as containing the fingerprints he took from defendant. Defendant’s attorney asked Deputy Casale what date he took the fingerprints, to which Casale responded “in 1988 sometime.”

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Cite This Page — Counsel Stack

Bluebook (online)
605 N.E.2d 1039, 238 Ill. App. 3d 864, 179 Ill. Dec. 25, 1992 Ill. App. LEXIS 2024, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-mcghee-illappct-1992.