People v. Perry

• Decision Date: 18 April 1974
• Docket Number: No. 57738,57738
• Citation: 19 Ill.App.3d 254,311 N.E.2d 341
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles E. PERRY, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 341

311 N.E.2d 341

19 Ill.App.3d 254

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles E. PERRY, Defendant-Appellant.

No. 57738.

Appellate Court of Illinois, First District, Third Division.

April 18, 1974.

Julius Lucius Echeles, Carolyn Jaffe, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Kenneth L. Gillis, Mariann Twist, Chicago, of counsel.

MEJDA, Justice.

Defendant was convicted, after a jury trial, on two counts of aggravated battery upon Judith Dingillo; first, a battery causing great bodily harm; and second, a battery with a deadly weapon (Ill.Rev.Stat.1969, ch. 38, par. 12--4). The court denied probation and sentenced defendant to a term of 18 months to five years. On appeal, defendant contends:

1) The court erred in failing to instruct the jury as requested by defendant on the lesser included offense of reckless conduct;

2) the court erred in excluding evidence of defendant's state of mind;

3) the court erred in allowing testimony of a police officer on rebuttal as to the force required to fire the gun;

4) the prosecutor's conduct amounted to reversible error;

5) defendant was not proved guilty beyond a reasonable doubt; and

6) the trial court erred in denying probation.

On June 24, 1971, the victim, Judith Dingillo, suffered injuries as a result of a gunshot wound inflicted by the defendant. The facts and circumstances surrounding this incident--which are not disputed on appeal--are as follows:

Earlier on the above date, Frank Melecio slapped defendant's younger brother in the presence of several youths. Upon defendant's return from work that evening, he was informed of the incident. He armed himself with a .22 caliber automatic pistol he had purchased from a friend a week or so earlier, then placed the gun in the waistband of his trousers and 'went looking' for the person who hit his brother. About 10:30 that evening, defendant and three other youths approached the house where the victim and Frank Melecio were sitting on the porch. When he saw the defendant, Melecio ran to the sidewalk and threw a bottle toward him. The gun held by defendant discharged, hitting the girl in the chest. Defendant fled around the corner and the gun again discharged, inflicting a wound in his right leg. He gave the gun to Michael Koons for safekeeping. Koons and the defendant ran away from the scene.

The facts surrounding the first discharge of the gun are greatly disputed. The victim, testifying for the State, said she did not see the bottle strike anyone. She further testified that she saw a man kneeling or crouching on the corner of Lyndale and Kimball Streets, with a gun in his hand. She identified the defendant as that person. She heard the bottle break a couple of seconds before she was shot in the chest.

Michael Koons, testifying for the State, stated that a group of youths accompanied defendant to Lyndale and Kimball. Four persons, including the defendant and Koons, turned the corner toward a building where Melecio was sitting on the porch. Defendant preceded the other three, and someone said, 'I want to talk to you.' Then the person came off the porch, picked up a bottle and threw it at the defendant. Koons saw the bottle being thrown and, with the others, turned and ran in the other direction as the bottle broker. He did not see defendant get struck with the bottle. He heard a gunshot. He saw no weapon in defendant's hands on the street or while defendant ran around the corner and caught up to him, running west on Lyndale. Koons then heard another gunshot, and he and the defendant kept going. About a half block later, defendant stopped, took his hand out of his pocket and said, 'I just shot myself.' Defendant took a gun from his waistband, handed it to Koons and asked him to take it home, which he did. Koons gave the gun to the police the next day. He further testified to a conversation he had with the defendant some three months after the shooting, when defendant told him 'he took a shot and didn't know who he hit, or what.' Defendant never told him the gun went off accidentally. On cross-examination, Koons testified concerning that conversation, saying that defendant never said he intentionally fired at anyone.

Defendant testified in his own behalf. When he arrived home from work at about 10:15 p.m., he was told that his brother had been beaten by a man. He went to his garage and took the gun; being left-handed, he placed the gun in the waistband on the right side of his pants. He knew it was loaded, but did not know that there was a shell in the chamber. He did not know if the gun was cocked, and did not cock it. He did not know how to operate the gun and had never fired it before. One of the boys told him that Frank Melecio and Judy were sitting on a porch, and several boys accompanied him to the address. They had not reached the porch when Frank jumped up and threw a bottle at them. Defendant testified that he put up his shoulder to shield himself from the bottle, and as he did, the gun came out of the waistband of his pants and went off. He had the finger of his left hand 'by, but not on the trigger.' He did not kneel and take aim with the gun in his hand. He started to run because he saw the victim, Judy, and Frank running toward him. He proceeded a short distance when the gun which he had put back in his waistband began to fall. He pulled it up and it went off again. He continued running until he realized he had shot himself. He then gave the gun to Koons and went home.

Harry Thieben testified for the defense that he informed defendant of the incident involving his brother Patrick's being hit by Melecio; that defendant told the witness and the other young men resent that he wanted to go find out why Melecio had hit his brother. Four boys accompanied defendant to the vicinity of the victim's home when the witness saw Melecio jump off the porch and throw a bottle. The witness stated that the bottle first struck the defendant, then struck him. He ran toward the street when he heard a shot. He was also present when the defendant shot himself.

Officer Mudry, the arresting officer, testified for the State that the defendant when arrested made a statement that 'after he had been struck with a bottle he pointed the gun towards the porch and the gun fired.' The defendant told him the gun had accidentally discharged.

Defendant's first contention is that the trial court erred in failing to instruct the jury as requested by him upon the lesser included offense of reckless conduct. During the conference on jury instructions, defendant tendered only Defendant's Instruction 1, defining negligence, and Defendant's Instruction 2, setting forth the issues on a charge of reckless conduct, both of which were refused. Although each contained the handwritten notation 'non-I.P.I.', they were identical with IPI--Criminal 5.02 and 11.14 respectively. The instruction as to negligence had no basis in the evidence and was properly refused.

Reckless conduct can be a lesser included offense of aggravated battery. (People v. Thomas (1971), 1 Ill.App.3d 139, 275 N.E.2d 253.) The elements of both offenses are substantially similar, with the only element of difference relating to the degree of culpability. To sustain a conviction for aggravated battery it must be proved that the conduct of the defendant was performed 'knowingly' or 'intentionally.' On the other hand, to sustain a conviction for reckless conduct of the same facts, it must be proved that the defendant's conduct was 'reckless' and defined in the Criminal Code. (See Ill.Rev.Stat.1971, ch. 38, pars. 12--4, 12--5.)

As this court stated in People v. Bembroy (1972), 4 Ill.App.3d 522, at 525, 281 N.E.2d 389, at 392,

'It is well settled that where there is evidence in the record which, if believed by the jury, would reduce the crime to a lesser included offense, an instruction defining the lesser offense should be given. People v. Jones (1943), 384 Ill. 407, 51 N.E.2d 543; People v. Papas (1942), 381 Ill. 90, 44 N.E.2d 896; People v. Harris (1956), 8 Ill.2d 431, 134 N.E.2d 315. This rule is applicable even though the theory of the defense at trial is inconsistent with the possibility that the defendant is guilty of the lesser offense. People v. Scalisi (1926), 324 Ill. 131, 154 N.E. 715. It is equally well settled, however, that the refusal to give an instruction defining the lesser included offense is not error where all the evidence adduced indicates that the jury would only be justified in returning a verdict of guilty or not guilty of the crime charged. People v. Price (1939), 371 Ill. 137, 20 N.E.2d 61; People v. DeRosa (1942), 378 Ill. 557, 39 N.E.2d 1; People v. Ruel (1970), 120 Ill.App.2d 374, 256 N.E.2d 672; People v. Dewey (1969), 42 Ill.2d 148, 246 N.E.2d 232.'

(Also see People v. Peery (1973), 11 Ill.App.3d 730, 297 N.E.2d 643.)

Thus, the specific issue for our determination is whether there is evidence in the record upon which the jury could have conceivably based a verdict of guilty of the lesser included offense of reckless conduct. We have heretofore held that a gun is a deadly weapon capable of killing another, and that handling a gun improperly may be reckless conduct. (People v. Thomas (1971), 1 Ill.App.3d 139, 275 N.E.2d 253; People v. Reece (1970), 123 Ill.App.2d 97, 259 N.E.2d 619; and People v. Mitchell (1973), 9 Ill.App.3d 1015, 293 N.E.2d 683.) In People v. Bembroy (1972), 4 Ill.App.3d 522, at 526, 281 N.E.2d 389, at 393, we noted that 'it has been specifically held that pointing a loaded pistol at another is such a gross deviation for the standard of care which a reasonable...