People v. Orr

• Decision Date: 10 February 1977
• Docket Number: No. 76--32,76--32
• Citation: 45 Ill.App.3d 660,359 N.E.2d 1237,4 Ill.Dec. 285
• Parties: , 4 Ill.Dec. 285 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Pretice Charles ORR, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1237

359 N.E.2d 1237

45 Ill.App.3d 660, 4 Ill.Dec. 285

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Pretice Charles ORR, Defendant-Appellant.

No. 76--32.

Appellate Court of Illinois, Third District.

Feb. 10, 1977.

Robert J. Agostinelli, Deputy State Appellate Defender, Ottawa (Verlin R. Meinz Ottawa, of counsel), for defendant-appellant.

James E. Hinterlong, Dir. Ill. State's Appellate Attys. Assn., Ottawa, Edward Keefe, State's Atty., Rock Island County, Rock Island (Linda Vodar, Ottawa, of counsel), for plaintiff-appellee.

ALLOY, Presiding Justice.

This is an appeal by defendant Prentice Charles Orr from a judgment of the Circuit Court of Rock Island County finding defendant guilty of Attempt (Murder). Defendant was indicted by the Rock Island County Grand Jury for both the offenses of Attempt Murder, in violation of par. 8--4 of the Criminal Code of 1961 (Ill.Rev.Stat.1975, ch. 38, par. 8--4) and of Aggravated Battery in violation of par. 12--4 of the Criminal Code (Ill.Rev.Stat.1975, ch. 38, par. 12--4). Defendant was sentenced to a term of not less than 6 nor more than 12 years on the Attempt (Murder) judgment.

On appeal in this case, defendant contends that (1) the State failed to prove defendant guilty beyond a reasonable doubt, (2) the trial court erroneously allowed the introduction of certain allegedly irrelevant, inflammatory, and prejudicial evidence, (3) the trial court erred in allowing the State to question a defense witness concerning an allegedly inconsistent prior statement, where the State subsequently failed to offer proof that the witness ever made such statement, (4) the trial court erred in admitting into evidence a prior indictment charging defendant with the offenses of theft and burglary, where the defendant was convicted, apparently on a plea of guilty, of the offense of theft only, and (5) the trial court erroneously instructed the jury on the requisite mental state for the offense of Attempt (Murder).

On February 3, 1975, Rock Island police officers responded to a call from a shooting victim and discovered the complainant, Mary Sanchez, lying on the living room floor of her home, suffering from a bullet wound in her left chest. One of the officers asked Mary Sanchez, who had shot her, and she responded that she had been shot in the alley behind her house by a man wearing red pants. At that time she did not state that she knew the identity of the perpetrator. The police had come to her home in response to her call for help. She was taken to a hospital accompanied by a police officer. The officer returned to the Sanchez residence and conducted a search of the house and of the alley and surrounding area. No blood, bullet, shell casing, or weapon was ever found in the alley or in the yard by the police. The officer discovered a loaded pistol in the house but, based on his experience, determined that the weapon had not been fired recently. During the search, the officer learned from the mother of complainant that another gun was usually kept under the mattress of the bed in complainant's residence, but the police did not find this weapon during their search.

Following the February 3 shooting, Mary Sanchez was hospitalized for 11 days before she was released, and later returned to the hospital for an additional 2 days. When the investigating detective first spoke to Mary Sanchez at the hospital, she stated that it hurt her to talk and that she would tell him who did it later. When the officer subsequently returned to the hospital, Sanchez told him that she would be all right, and would tell him what had happened after she was released from the hospital. Mary Sanchez said she told the police about the defendant two or three weeks after being shot and that she had been unconscious for a time and very ill as a result of the gunshot wound. She stated she delayed naming the defendant to the police because she was afraid and that she was still somewhat afraid when she did identify defendant as the one who shot her. She said that she told her mother who shot her.

After Mary Sanchez had been released from the hospital she went to the police station at the request of the officer and told him that it was the defendant who had shot her. On March 12, 1975, a complaint was filed in the Circuit Court of Rock Island County, in which Mary Sanchez charged that defendant Orr committed the offense of shooting her in the chest with a gun.

At the trial, the complaining witness testified to the events surrounding the shooting. She stated that at approximately 10 minutes after three in the afternoon of February 3, 1975, she left her home en route to a tavern for a soda. As she entered the alley behind her residence, Sanchez was confronted by two of her acquaintances, Ronald Hearn and defendant Orr. Although she had been acquainted with the defendant for 10 years, Sanchez testified that she had not seen him in over a year. Mary Sanchez had, however, talked to Hearn less than one half hour before the confrontation. According to Sanchez, the defendant was standing in the alley with a gun in his hand, and said to her, 'I told you so.' Having no explanation for the defendant's statement, and thinking the gun was a joke, Sanchez responded kiddingly, referring to the defendant with an obscenity. Sanchez testified that the defendant then shot her from a distance of about 6 inches and that she fell to the ground in the alley. She said that the defendant then emptied the shell casing from the gun while being over her, and that the defendant and Hearn then walked away. While she was bleeding very rapidly, Sanchez picked up the discharged shell casing, walked the distance of about half a block to her house, and kicked on the back door of the house until someone let her in. Sanchez then called the police to report the shooting and fell to the floor of her living room, where she was found by the investigating officers. She testified that she lost the shell casing while trying to get into her house, and that after her release from the hospital she rediscovered the casing in her yard. She said that she had called the police about the rediscovered casing, but that at the time of the trial she had lost the casing again.

Sanchez stated that she delayed in reporting defendant's name to the police because she was afraid for herself and her family, from the time of the shooting through the time of the trial. She further testified that she had earlier told her mother who had shot her.

At the trial, the State introduced expert evidence concerning the nature and extent of Sanchez' injuries, which were very serious. According to the State's witness, Sanchez' would could have been fatal had the bleeding not been stopped. The State also introduced into evidence, over the objection of defense counsel, the blood-stained shirt and jacket worn by Sanchez at the time of the shooting.

Ron Hearn testified as a witness for the defense. Hearn testified, as had Sanchez, that he paid Sanchez a friendly visit during her hospitalization. Hearn, however, contradicted Sanchez' account of the events of February 3. While Hearn agreed that he had talked to Sanchez shortly before three on the afternoon in question, he testified that he later drove by her house and observed her lying on the ground, trying to get up. Hearn testified that he, thinking she had merely fallen down, continued on his way. During re-cross examination, the following testimony took place in the examination of Hearn:

'Q. Isn't it a fact that you made a statement to both (Mary Sanchez and her mother, during your visit to the hospital), (that) Prentice Orr shot her because there was a contract out on her and he was trying to fulfill the contract.

A. No.

Q. That is not a correct statement?

A. No.

OBJECTION: It is sort of argumentative that he is raising with the witness. He appears to be out to prejudice the defendant. I ask the jury be instructed to disregard * * *

THE COURT: He can inquire into any alleged conversation. Objection overruled.'

The defendant's mother and cousin both testified that the defendant, who was taking prescribed modication for the treatment of injuries sustained in an automobile accident the preceding December, had been resting in his bedroom in his family's home from 11:20 A.M. to 3:30 P.M. on February 3, 1975. At 3:30 that afternoon, the defendant's younger sister came home from school with the news that Sanchez had been shot.

The defendant testified in his own behalf. He stated that although he did see Sanchez on occasion, he had not talked to her for over a year and a half. He testified that he spent the afternoon of February 3, 1975 resting in his home. Defendant further stated that he had not seen Hearn on February 3, 1975, and that he had not communicated with Hearn since they met in the county jail during the previous year.

Over the defense counsel's objection, certified official transcripts of the defendant's three prior convictions were admitted into evidence. The transcripts, consisting of some 40 pages of material, reflect the defendant's prior convictions for unlawful delivery of a controlled substance, theft, and deceptive practices. The transcript of the theft conviction related that the defendant was initially charged with both theft and burglary, but that the defendant pleaded guilty to the theft charge but was neither tried nor convicted on the burglary charge.

At the jury instruction conference, the State tendered an instruction containing a comprehensive definition of murder. The defense objected to this instruction, and offered an instruction which defined the requisite mental state for murder as intending to kill or do great bodily harm. The specific language will be referred to later in this opinion.

On September 30, 1975, the jury returned a verdict of guilty of attempt (murder) and aggravated battery.

Defendant's first contention on this appeal is that, in light of Mary Sanchez' delay...