People v. Mimms

• Decision Date: 03 August 1976
• Docket Number: No. 61334,61334
• Citation: 353 N.E.2d 186,40 Ill.App.3d 942
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry A. MIMMS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 186

353 N.E.2d 186

40 Ill.App.3d 942

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry A. MIMMS, Defendant-Appellant.

No. 61334.

Appellate Court of Illinois, First District, Second Division.

Aug. 3, 1976.

Bernard Carey, State's Atty., County of Cook, for plaintiff-appellee.

James J. Doherty, Public Defender of Cook County, for defendant-appellant.

JIGANTI, Justice.

Following a bench trial, defendant was convicted of the offense of attempt murder (Ill.Rev.Stat. (1973), ch. 38, par. 8--4(a)) and sentenced to a term of two to six years in the Illinois State Penitentiary. The indictment charging defendant was in two counts, one count of attempt murder for each of the victims. On appeal, he contends that the trial court erred when it: (1) found him guilty beyond a reasonable doubt, (2) issued a general finding of guilty upon the two Count indictment.

On March 28, 1973, Chicago Police Officers Kenneth Christiano and James Houtsma were driving north on the 8200 block on South Essex. They were in the area to interview witnesses to a Savings and Loan robbery which had occurred several days before. As they drove, they observed defendant walking south on Essex. Because defendant fit the general description of the robbery suspect, the officers decided to stop and 'interview' him. The officers testified that they parked their vehicle, and got out. As they crossed the street to approach the defendant, James Houtsma identified himself as a police officer. With that, defendant pulled a sawed-off rifle from under his coat and fired in the direction of the two officers. The defendant immediately dropped the front half of the weapon and fled. Officer Houtsma gave chase on foot, and Officer Christiano returned to the car.

Defendant ran south on Essex to 83rd Street, and then one block west to Phillips. Officer Houtsma continued to chase defendant south on Phillips until he was joined by Christiano who had driven the squad car to the location. At that point, Houtsma fired a shot at the defendant which made him drop the rear portion of the rifle. The defendant then ran south down an alley, and the officers lost sight of him. Houtsma began to comb the area on foot. A few minutes later, Christiano returned with defendant in the back seat of the squad car. He had been apprehended by two uniformed officers who had been alerted concerning defendant over the radio. The uniformed officers then surrendered the defendant to Christiano who in turn picked up Houtsma and returned to the district station.

Defendant makes a two part argument that the State failed to prove him guilty beyond a reasonable doubt. The first contention is that his identity was not firmly established because there existed some discrepancies in the witnesses' testimony concerning the defendant's clothing at the time of the shooting and that the State failed to provide fingerprint evidence to link the rifle to the defendant. As for the minor discrepancies in clothing description, this was a question of fact which was resolved by the trial court, and we find no reason to disturb those findings. People v. Mills (1968), 40 Ill.2d 4, 237 N.E.2d 697.

In support of defendant's argument regarding fingerprint evidence he cites People v. Jackson (1961), 23 Ill.2d 360, 178 N.E.2d 320. Defendant maintains that the failure by the State to offer some fingerprint evidence or to explain its absence gives rise to a reasonable doubt as to the identity of the assailant as a matter of law. However, a reading of this case does not support this position.

In Jackson, a prosecution for the unlawful possession of narcotic drugs the State sought to link narcotics found in an air shaft outside of an apartment window of defendant. There was no direct evidence that the narcotics were thrown out of the window by defendant when the police came to the door. In addition, the State failed to offer either fingerprint evidence, or to explain why such evidence was unavailable. In that instance, the court said that such a failure to produce fingerprint evidence, or to explain its absence could give rise to an inference that an attempt was made to obtain fingerprints, but that it was unsuccessful. The court, however, did not hold that the failure on the part of the State to provide fingerprint testimony would give rise to a reasonable doubt as to the identity of the defendant.

Jackson is distinguishable from the case at bar in that here, there are two eyewitnesses who were able to positively identify the defendant as their assailant. On the day of the occurrence, it was 9:00 in the morning, the area was bright, and the defendant was only twenty or thirty feet from the officers when he fired at them. The testimony of the officers was positive on the point of identification. When the State offers eyewitness testimony, its failure to provide additional evidence in the form of fingerprints to substantiate the eyewitnesses is unnecessary if that evidence would be only cumulative. (People v. Hickman (1973), 9 Ill.App.3d 601, 291 N.E.2d 872; People v. Jones (1964), 30 Ill.2d 186, 195 N.E.2d 698.) The absence of fingerprint evidence should only affect the weight to be given the identity testimony as a whole and that determination is for the trier of fact. People v. Abrams (1974), 21 Ill.App.3d 734, 316 N.E.2d 5; People v. Wooden (1972), 9 Ill.App.3d 310, 292 N.E.2d 236.

Defendant next contends that the State failed to show the intent necessary to convict for attempt murder. Defendant argues that firing a weapon in the direction of police officers has been held insufficient to establish the requisite intent, and cites People v. Henry (1971), 3 Ill.App.3d 235, 278 N.E.2d 547. In Henry, defendant was arrested in Chicago during widespread civil disorders on the City's westside. He claimed that he was accosted at night by a carload of white men, and that he fired two shots aimlessly into the air. The police officers at whom defendant fired testified that it was dark, and they could see muzzle flashes as the weapon was fired but were really not sure whether the defendant fired at them, or into the air, as he argued. Based on these statements the appellate court reversed defendant's conviction for attempt murder because it was not established that the defendant intended to kill or harm the officers in question. The court further found that the actions of Mr. Henry were not of such a nature that intent could be inferred from them. The Henry case, therefore, must be limited to the facts present there, and cannot support defendant's contention.

The general rule in Illinois is that when a person fires a gun 'at or towards' another, either with malice aforethought, or with a total disregard for human life, that person may be convicted of attempt murder. (People v. Nickolopoulos (196...