People v. Trotter

• Decision Date: 28 December 1988
• Docket Number: No. 87-0756,87-0756
• Parties: , 127 Ill.Dec. 471 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John TROTTER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 89

533 N.E.2d 89

178 Ill.App.3d 292, 127 Ill.Dec. 471

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John TROTTER, Defendant-Appellant.

No. 87-0756.

Appellate Court of Illinois First District, Third Division.

Dec. 28, 1988.

Paul P. Biebel, Jr., Public Defender of Cook County, Chicago (Karen E. Tietz, Asst. Public Defender, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty., Chicago (Inge Fryklund, James E. Fitzgerald and Elizabeth Sklarsky, of counsel), for plaintiff-appellee.

Justice McNAMARA delivered the opinion of the court:

A jury convicted defendant John Trotter of murder and armed robbery. The trial court sentenced him to an extended term of 70 years for murder, and ten years for armed robbery, the sentences to be served concurrently. On appeal, defendant complains of a medical examiner's testimony regarding findings in a toxicologist's report; failure to give involuntary manslaughter and theft jury instructions; and prosecutorial remarks in closing arguments.

On April 6, 1986, near midnight, 83 year old Florence Fuller was murdered in her apartment. A neighbor, Michael Pierce, testified that the 46 year old defendant, who helped take care of the victim, had been staying with the victim several times a week. On that night, Pierce heard an exchange of voices. The victim said, "What's the matter with you, man?" You crazy? What's wrong with you, man?" There was several minutes of silence, and then a gunshot.

Pierce heard footsteps coming from the victim's apartment, and saw defendant leave the building carrying a bag. Pierce, who did not have a telephone, followed defendant, and then telephoned the police from a public telephone. He returned home. Several minutes later he entered the victim's apartment with the police. Inside the apartment they smelled gas and found one of the stove burners operating. The victim was lying on the couch. Blood ran down her neck from a gunshot wound behind her left ear.

Officer Nicholas DiMaggio and his partner observed that the victim was naked, covered partially by a blanket. He saw no marks on her hands. Her arms were across her chest. There was blood on the floor, and a bag of change totalling $64.29.

Officer John Haugh and his partner obtained defendant's description, and located him one hour later about three blocks from the murder scene. Haugh stopped defendant and his companion and asked defendant his name. Defendant replied, "I'm the man you're looking for." A search of defendant revealed the murder weapon and ammunition. He also had a bag with two red change purses containing jewelry, a key, buttons, a pen, a drapery hook, and $34.50. Defendant also carried unopened beer and whiskey. Haugh smelled alcohol on defendant, but did not believe defendant was intoxicated. Upon receiving his Miranda warnings, defendant stated, "Whatever she said I did, yes, I did. Whatever the old lady said I did."

Bernice Henry, the victim's 65 year old sister, testified that she saw the victim at her home one week earlier. The victim had just been released from the hospital, where she was treated for malnutrition. She was not prone to falling down and was not senile.

Dr. Yuksel Konakci, a pathologist, conducted a post-mortem examination of the victim, and concluded she died as the result of the gunshot wound. There was no evidence of close range firing. The path of the bullet was almost parallel to the ground, traveling from the entrance wound behind the left ear to the opposite side of the head. The victim had external bruises and abrasions on the right side of her neck. Her neck was fractured in two places. The neck injuries were consistent with blunt trauma causing pressure on the neck and fracturing the bones. There were bruises and abrasions in the neck and upper chest area. The injuries were less than 24 hours old. The victim's two main arteries were 70 to 80 percent blocked, and she suffered from marked emphysema and hyperemia. The toxicologist report indicated her blood alcohol level was negative.

Richard Chenow, a firearms technician for the police, examined the murder weapon and found it could fire when five to ten pounds of pressure was put on the trigger. The hammer block was in poor mechanical condition but was functional and safe. The technician opined that the gun would not accidentally fire as a result of a blow to the hammer or of being dropped, if it were not cocked. If the gun were cocked, it would not fire when someone grabbed it, unless the person holding the gun had his finger on the trigger and pulled it. Thus, the gun would fire only if a person held the gun in an uncocked position with his finger on the trigger, and a second person pushed the hammer back to the cocked position, and pulled on the gun so as to cause the pressure on the trigger to reach five pounds. The person who grabbed the gun would then have a dark residue and possibly a burn on her hand.

Following his arrest, defendant made a statement. Defendant said he took the victim's gun, her money and her jewelry, and some ammunition. As he was leaving, the victim asked where he was going with her money. As he began to explain, the victim grabbed the gun which he held in his right hand, and the gun went off accidentally. Defendant visited a friend, and they went to buy alcohol and change defendant's coins into currency. As they walked back, the police stopped them.

Defendant testified at trial that he had been taking care of the victim for five months. He drove her to the store and to the bank, and cooked and cleaned for her. On the day of the shooting, he drank alcohol intermittently throughout the day. Later, he saw the victim sleeping on the couch. He took a bag of change to buy more liquor, and placed it on the table next to the couch. He then took the gun and bullets for his personal safety because it was after midnight. As he was reaching for the bag of change, he heard the victim mumble something. His right hand held the gun, with his index finger on the trigger. As he turned, the victim grabbed the gun and it fired. The gun was not cocked. Defendant shook the victim and asked if she was all right. She did not respond. Defendant panicked and left the house. He went to a friend's house, and said he wanted to return to check on the victim's condition. First, however, he asked the friend to smoke some marijuana with him, because he thought he would go to jail for five to ten years. The two men stopped to buy liquor and exchange the coins for paper currency. Defendant denied strangling the victim, and maintained that the shooting was an accident.

In rebuttal, Officer Yucaitis testified the table was six feet from the couch where the victim was found.

Chenow testified in rebuttal that the gun would not fire without pressure applied to the trigger. It would not fire from simply pulling on the gun.

Defendant first contends that the trial court erred in permitting Dr. Konakci to testify that the toxicologist report, which Dr. Konakci did not testify he relied upon, indicated that the victim's blood alcohol level was negative. Defendant maintains that his general credibility suffered because the results in the toxicological report contradicted his claim that the victim had been drinking.

In Wilson v. Clark (1981), 84 Ill.2d 186, 49 Ill.Dec. 308, 417 N.E.2d 1322, cert. denied 454 U.S. 836, 102 S.Ct. 140, 70 L.Ed.2d 117 the court adopted Federal Rules of Evidence 703 and 705. Under these rules, a medical expert may testify to an expert medical opinion based on facts not in evidence where the data upon which the opinion is based is reliable and of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject. See also People v. Anderson (1986), 113 Ill.2d 1, 99 Ill.Dec. 104, 495 N.E.2d 485, cert. denied 479 U.S. 1012, 107 S.Ct. 658, 93 L.Ed.2d 713; People v. Ward (1975), 61 Ill.2d 559, 338 N.E.2d 171.

Dr. Konakci, a pathologist, conducted a post-mortem examination of the victim's body. A routine part of the examination included the withdrawal of blood for testing of blood alcohol level. The testifying witness himself withdrew the blood and directed that the test be performed as part of the examination which would permit him to form an opinion as to the cause of the victim's death. Moreover, the reliability of the toxicologist's report is reflected by the nature of medical records, which are considered inherently reliable and commonly used as reference materials by medical experts. (Wilson v. Clark; People v. Murphy (1987), 157 Ill.App.3d 115, 109 Ill.Dec. 311, 509 N.E.2d 1323.) We hold that the trial court properly permitted testimony regarding the victim's blood alcohol level.

Defendant's reliance on People v. Murphy is misplaced. In Murphy, a psychiatrist testified about comments made by defendant's mother to a non-testifying psychiatric institute employee about defendant's conduct before the murder. The source, then, could be considered unreliable. In addition, the expert in that case expressly stated he did not use the information from the mother in making his diagnosis.

Defendant raises the issue of whether the toxicology report would be admissible pursuant to the statute which permits the admission of medical examiner's reports as prima facie evidence of findings. (Ill.Rev.Stat.1985, ch. 38, sec. 115-5.1) The trial court sustained defendant's objection to the report's admission as evidence, and therefore this issue is not before us.

Defendant next contends that the trial court erred when it refused to give the jury an involuntary manslaughter instruction.

Involuntary manslaughter occurs where defendant kills another person without lawful justification and his acts which cause the death are such as are likely to cause death or great bodily harm to some individual, and those acts are performed recklessly. (Ill.Rev.Stat.1985, ch. 38, par. 9-3.) A person acts recklessly when he...