People v. Killings

• Court: Appellate Court of Illinois
• Writing for the Court: McCULLOUGH
• Citation: People v. Killings, 501 N.E.2d 1363, 150 Ill.App.3d 900, 103 Ill.Dec. 825 (Ill. App. 1986)
• Decision Date: 16 December 1986
• Docket Number: No. 4-85-0835,4-85-0835
• Parties: , 103 Ill.Dec. 825 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James L. KILLINGS, Defendant-Appellant.

Page 1363

501 N.E.2d 1363

150 Ill.App.3d 900, 103 Ill.Dec. 825

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James L. KILLINGS, Defendant-Appellant.

No. 4-85-0835.

Appellate Court of Illinois Fourth District.

Dec. 16, 1986.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Arden J. Lang, Asst. Defender, for defendant-appellant.

Jeffrey K. Davison, State's Atty., Decatur, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Linda Cullom, Staff Atty., for plaintiff-appellee.

Justice McCULLOUGH delivered the opinion of the court:

On December 13, 1985, following a bench trial, the defendant was convicted of the murder (Ill.Rev.Stat.1985, ch. 38, par. 9-1 et seq.) of James Bond and the attempt (murder) (Ill.Rev.Stat.1985, ch. 38, par. 8-4(a), 9-1(a)) of Wendy Estes. The defendant was subsequently sentenced to the Department of Corrections for a term of 30 years on the murder conviction and a term of 20 years on the attempt murder conviction. The sentences were ordered to run concurrently. The defendant appeals the conviction and sentence of the circuit court, asserting three grounds in support thereof.

Initially, the defendant maintains that he was denied a fair trial when the court denied his requests for a continuance. Next, the defendant claims that the trial court improperly qualified Dr. Grant Johnson as an expert and admitted his testimony regarding circumstances surrounding the death of James Bond. Finally, the defendant contends that the trial court erred in considering that the defendant's conduct threatened serious harm as a statutory aggravating factor in imposing sentence. We affirm.

The charges against the defendant stemmed from a shooting that occurred on August 27, 1985. On September 5, 1985, the defendant was arraigned and the matter was set for an October 21, 1985, jury trial. On October 14, 1985, defense counsel sought a continuance alleging insufficient time to prepare his case. The court allowed the continuance and set a hearing date of November 12, 1985, for all pretrial motions. On that date, defense counsel sought a second continuance claiming that he was not prepared to proceed on his motion to suppress the defendant's statements which were made while in custody. The court denied the defense counsel's request.

In the motion to suppress, defendant alleged that all statements made to police officers should be suppressed because the defendant was intoxicated at the time, and consequently, was unable to effectively and knowingly waive his constitutional rights. At the hearing, the State presented seven police officers, each of whom testified that they had interacted with the defendant and that he was not intoxicated at the time of his arrest. At the close of the State's evidence, the defendant renewed his motion for a continuance, alleging failure to contact necessary witnesses. The court denied the defendant's request for a one-week continuance, but recessed until the next morning. The next day, defense counsel again renewed his request for a continuance, and upon denial, rested without presentation of evidence. The court then denied the defendant's motion to suppress.

On November 18, 1985, the cause was called for trial at which time the defense requested another continuance alleging insufficient time to prepare. The court denied the motion and began jury selection. After the first juror was called for voir dire, the defendant waived his right to a jury trial. The court admonished the defendant, caused a jury waiver to be executed, and proceeded to trial.

Evidence presented at trial indicated that Wendy Estes was the defendant's former girlfriend. At the time of the shooting, Estes was living with James Bond, the victim. On the morning of the incident, the defendant came to Bond's residence to speak with Estes. Estes told the defendant to leave and when he refused, Bond intervened, told the defendant to leave, and laid a gun on the front table. At this point, the defendant left, stating that he would return.

Estes testified that approximately one hour later she and her daughter accompanied Bond to a liquor store. They returned home having consumed a small amount of alcohol. Estes claimed that they had returned to Bond's residence and were parked in the driveway talking when the defendant approached the car. Estes stated that she told the defendant to leave and he did, stating, "I be back (sic )."

Shortly thereafter, the defendant reappeared with a gun. Estes stated that the defendant said, "I'm going back to the penitentiary," and she then heard a gunshot. Estes testified that she felt several pellets land around her head and on the right side of her face. At this time, she unlocked the car door, jumped out and ducked down beside the passenger's door. She then saw the defendant reload the gun. When Estes attempted to flee the scene, the defendant fired again striking her in the right arm and shoulder. Estes stated that she continued running and entered an Eisner's store in search of assistance.

James Dellert, a sergeant with the Decatur police department, who was the first to arrive, described the scene of the shooting. He stated that Bond was in the car with his left hand on the steering wheel and his right hand on the seat of the car. Dellert further stated that when he first examined the victim, he noticed a holster stuck under the victim's crotch with a handle of an automatic weapon visible.

The State's case continued with Dr. Grant Johnson, the pathologist who performed the autopsy on James Bond. After being qualified as an expert in the field of pathology, he stated that Bond had two bullet wounds to the head and that death was caused by a hemorrhage due to the traumatization of blood vessels in the head.

Over defense objection, Dr. Johnson testified that he believed that the weapon had been discharged in a tight contact, i.e., that the muzzle of the gun had been firmly held against the target. Dr. Johnson stated that he was familiar with the flight characteristics of different types of shot in conjunction with the various barrel types, although he did not consider himself to be an expert in flight or barrel characteristics. He did, however, profess to be an expert in wound ballistics, a subbranch of ballistics dealing with how a wound looks relative to the time that a bullet hits the target and passes through.

After the presentation of the State's case, defense counsel moved for a continuance in order to secure the appearance of occurrence witness, Ray Bliefnick, a listed State's witness, for whom the defendant's subpoena had been returned. Defense counsel argued the materiality of the testimony since Bliefnick was the only eyewitness who had not had a previous relationship with any of the parties. In addition, the defense maintained that Bliefnick would offer new evidence by testifying that he had overheard an argument between two black men, one seated in a car and the other standing outside, followed by a gunshot blast, and that upon investigating he found a pistol in the lap of the driver of the vehicle. Defense counsel argued that Bliefnick's testimony would contradict that of Estes who had testified that no argument occurred before the shots were fired. The court ruled that the potential testimony was immaterial because it merely corroborated previously elicited evidence. The court then denied the defendant's motion for a continuance.

The defendant's case was based upon a theory of self-defense. The defendant claimed that he was still involved with Estes at the time of the incident and that he went to Bond's residence to speak with her. When the defendant first went to Bond's residence, Bond told him to leave while placing a gun on the table. The defendant admitted that after consuming a substantial amount of alcohol, he later returned, an argument ensued, and he shot Bond. The defendant, however, maintained that Bond had a gun and that he acted in self-defense. The defendant further claimed that he reloaded the gun which discharged accidentally and that he had never threatened, aimed at, or tried to shoot Estes.

At the close of the evidence, the court found the defendant guilty of murder and attempt murder. On December 2, 1985, at the post-trial and sentencing hearing, the trial court considered the statutory aggravating factors and imposed sentence.

On appeal, the defendant maintains that he did not receive a fair trial as a result of the trial court's denial of continuances, specifically at the pretrial hearing on the defendant's motion to suppress and also at the close of the State's case to procure an occurrence witness, Ray Bliefnick. In support of this argument, the defendant asserts that his public defender, who was only employed in this capacity on a part-time basis, was overburdened and consequently not prepared to proceed to trial. The defendant maintains that the trial court's denial of these continuances denied him the opportunity to prepare a complete and effective defense, and as such, was an abuse of discretion.

Although the State initially maintains that the defendant has waived this issue by failure to make a post-trial motion, we note that our supreme court has held that a post-trial motion is not necessary to preserve error in a bench trial, when the error has been brought to the attention of the trial court by motion or by timely objection, thus giving the trial court the opportunity to correct the error involved. (People v. Hoffman (1942), 381 Ill. 460, 45 N.E.2d 874.) Therefore, the defendant's timely objections at trial were sufficient to procure his rights to appeal.

On the merits, however, the decision to grant or deny a motion for continuance, by law, lies in the sound discretion of the trial court. (People v. Friedman (1980), 79 Ill.2d 341, 38 Ill.Dec. 141, 403 N.E.2d 229, citing Ill.Rev.Stat.1973, ch. 38,...