People v. Everette, 1-87-1978

• Citation: 135 Ill.Dec. 472,543 N.E.2d 1040,187 Ill.App.3d 1063
• Decision Date: 30 August 1989
• Docket Number: No. 1-87-1978,1-87-1978
• Parties: , 135 Ill.Dec. 472 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald EVERETTE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1040

543 N.E.2d 1040

187 Ill.App.3d 1063, 135 Ill.Dec. 472

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Donald EVERETTE, Defendant-Appellant.

No. 1-87-1978.

Appellate Court of Illinois First District, Third Division.

Aug. 30, 1989.

Michael J. Pelletier, Deputy Defender, Martin Carlson, Asst. Appellate Defender, Chicago (Rosenthal and Schanfield, Robert R. Tepper, Andrew J. Katlin, John S. Delnero, Nancy Grant, Glenn E. Heilizer and David G. Spak of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty. of Cook County, Chicago (Inge Fryklund and Patricia Y. Brown, of counsel), for plaintiff-appellee.

Presiding Justice FREEMAN delivered the opinion of the court ^*:

Defendant, Donald Everette, was convicted by a jury of murder in the circuit court of Cook County. The trial court sentenced him to 24 years' imprisonment. He appeals.

At defendant's trial, Edward Jeffries testified to the following when called as a witness for the State. On November 1, 1985 at approximately 10 p.m., Jeffries, the victim, Johnny Island, and an individual named Donnell were drinking a six-pack of beer near the mailboxes on the first floor of a public housing building at 3835 South Federal in Chicago. While the three men were near the mailboxes, defendant approached the building and went to the mailbox area. When defendant did so, the victim moved away from him to the other side of the mailboxes. When he moved away, Island teased defendant about a "prior incident that happened to him." Defendant then told Island that, if defendant wanted to, he could get Island. Island then walked up and called defendant a name. Defendant ignored Island and walked away toward a ramp leading to apartments in the project.

Approximately five minutes later, defendant came down the ramp and started running toward the three men. Jeffries told Island that defendant was coming and Island started to run away. When defendant reached the area of the mailboxes and while Island was still running away, defendant pulled out a black revolver. Island slipped while turning the corner of the wall containing the mailboxes and Jeffries heard a shot. When Island slipped, he was seven to ten feet away from defendant. When defendant fired the gun, he had both arms straight out in front of him pointing at Island's back. After defendant had fired the shot, Jeffries asked him why he had shot at Island. Without responding, defendant walked past Jeffries and Donnell toward the ramp.

Defendant testified on his own behalf. He testified that he went to his mailbox upon arriving at his building on the night of the shooting. At that time, he heard Jeffries say, "There he is." After closing his mailbox and removing three letters, defendant heard Island say, "We aren't going to start nothing, cause that is over with." Defendant knew what Island was talking about. Defendant testified that, in June 1985, Island hit him over the head with a Coca-Cola bottle when defendant attempted to intercede in an argument between Island and the stepdaughters of a friend of defendant. Defendant also testified that, in August 1985, he was waiting for a bus when Island walked up to him and apologized in a sarcastic tone for hitting him in June. While apologizing, Island circled defendant with a gallon wine container in his hand.

Defendant further testified that when he started toward his apartment after getting his mail, he was met by Island, Jeffries and a third person. Defendant continued toward his apartment while the three men attempted to go through his pockets. After defendant got into his apartment, he noticed that two of the three letters were not for him. Eventually, defendant decided to go out for something to eat. Before leaving his apartment with the two misdirected letters, defendant decided to take his pistol with him because the three men might still be downstairs.

When defendant arrived downstairs, he went to the mailbox to deposit the two letters. At that time, Jeffries said "there he is again" and Island asked in a loud tone, "What are you doing back down here?" Defendant turned in Island's direction. Defendant saw the silhouette of a person he identified as Island from the voice. Island had his arm in a striking position, i.e. slightly behind the body at about a 45 degree angle and at waist height, while holding a can or other object. Defendant believed that Island was going to strike him. Defendant formed this belief because of Island's conduct toward him, Jeffries saying "Hit him, hit him," and because Island had struck him in the past. At that point, defendant pulled out his pistol, pointed in Island's direction and cocked it. Defendant denied any intent to shoot Island at that time, stated that he pulled the pistol because he was "frightened and scared," and claimed that he pulled it "just to scare" Island. Defendant further testified that as he cocked the pistol, he took two steps back. As he took the first step back, he saw Island turn. As he took the second step back, his right shoulder bumped the mailboxes, which caused the pistol to go off.

On cross-examination, defendant characterized his first encounter with Island and Jeffries as a "brief argument." He further claimed that he pulled the gun on Island because of fear for his life.

The State also introduced evidence of a question and answer statement which defendant made to an assistant State's Attorney after the shooting. The statement substantially corroborated defendant's testimony regarding the sequence of events leading up to the shooting of Island. However, there was no mention in the statement of the fact that defendant left his apartment to buy something to eat, in addition to returning two misdirected letters to his mailbox. Nor was there any mention in the statement that defendant took his pistol with him for his protection. Finally, there was no mention in the statement that defendant shot Island accidentally. In addition to introducing the statement in its case-in-chief, the State used the statement to impeach defendant's testimony on these three points.

OPINION

On appeal, defendant first contends he was not proved guilty beyond a reasonable doubt. Specifically, he asserts that the testimony of Jeffries, the State's only occurrence witness, was incredible because the facts "suggest" that Jeffries was intoxicated at the time of the shooting. Defendant further likens Jeffries to a narcotics addict, whose testimony must be closely scrutinized. See, e.g., People v. Galloway (1974), 59 Ill.2d 158, 319 N.E.2d 498.

We find the "suggestion" in the record of Jeffries' intoxication at the time of the shooting wholly insufficient to render his testimony incredible and, therefore, to raise a reasonable doubt of defendant's guilt. Nor is there any evidence in the record that Jeffries habitually used or abused alcohol. As such, there is no record basis for defendant's comparison of Jeffries to a narcotics addict. Thus, neither the trial court nor jury was required to scrutinize his testimony as closely as that of a narcotics addict.

Defendant also asserts that he was not proved guilty beyond a reasonable doubt because the State improperly introduced into evidence a gun which was similar to the one used by defendant. The gun actually used in the incident had been inadvertently destroyed by the State.

We do not agree. People v. Seals (1987), 153 Ill.App.3d 417, 106 Ill.Dec. 316, 505 N.E.2d 1107, dealing with exactly the same issue, is dispositive of defendant's claim. Therein the court stated:

"Demonstrative evidence can be used to make other testimony more understandable. [Citation.] If it provides a visual aid for the jury, it should be used for factual explanation, not dramatic effect. [Citation.] The use of demonstrative evidence is within the discretion of the trial court." Seals, 153 Ill.App.3d at 423, 106 Ill.Dec. 316, 505 N.E.2d 1107.

Like the Seals defendant, defendant here admitted firing the gun that caused the death and his defense was based on a theory of self-defense. Also, as in Seals, the jury was told that the gun demonstrated at trial was not the gun used in the shooting. Comparably to Seals, the gun was used briefly during the testimony of a police officer and by the prosecutor in closing argument but was not permitted to go to the jury. In view of the limited use of the similar gun, we cannot say that the trial court abused its discretion in admitting it into evidence. Seals, 153 Ill.App.3d at 424, 106 Ill.Dec. 316, 505 N.E.2d 1107.

Defendant next asserts that the State did not prove him guilty beyond a reasonable doubt because it did not disprove beyond such a doubt that he shot Island accidentally while acting in self-defense. After reviewing the record, we find that the evidence adduced at trial was sufficient to support defendant's conviction for murder. As such, defendant is not entitled to an outright reversal of his conviction. Moreover, because the evidence was sufficient to support a finding of guilty of murder, granting defendant a new trial would not subject him to double jeopardy. See Burks v. United States (1978), 437 U.S. 1, 11, 98 S.Ct. 2141, 2147, 57 L.Ed.2d 1, 9.

Although we find that the evidence was sufficient to support defendant's conviction, we cannot say that it was so clear and convincing that the jury could not reasonably have acquitted defendant. As such, we find dispositive the error which defendant next raises, viz., the trial court's error in refusing to instruct the jury on the defense of self-defense. See People v. McCurrie (1929), 337 Ill. 290, 299, 169 N.E. 214; People v. Jones (1979), 81 Ill.2d 1, 9, 39 Ill.Dec. 590, 405 N.E.2d 343.

Relying on People v. Robinson (1987), 163 Ill.App.3d 754, 114 Ill.Dec. 898, 516 N.E.2d 1292, defendant contends that the trial court erred in refusing tendered instructions, on self-defense and voluntary manslaughter, on the ground that defendant's claim that he accidentally shot...