People v. Wilson

• Decision Date: 03 February 1981
• Docket Number: No. 79-2221,79-2221
• Citation: 48 Ill.Dec. 647,416 N.E.2d 1169,93 Ill.App.3d 161
• Parties: , 48 Ill.Dec. 647 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnnie Lee WILSON, Jr., a/k/a Lee Wilson, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1169

416 N.E.2d 1169

93 Ill.App.3d 161, 48 Ill.Dec. 647

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnnie Lee WILSON, Jr., a/k/a Lee Wilson, Defendant-Appellant.

No. 79-2221.

Appellate Court of Illinois, First District, Second Division.

Feb. 3, 1981.

James J. Doherty, Public Defender, Chicago (Ina S. Marks, Frances Sowa, Asst. Public Defenders, Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Marcia B. Orr, Joel A. Eisen-Stein, Bruce Rose, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

DOWNING, Justice:

Defendant, Johnnie Lee Wilson, Jr., also known as Lee Wilson, was charged by indictment with the murder (Ill.Rev.Stat.1977, ch. 38, par. 9-1) of Dexter Brooks and the attempt murder (Ill.Rev.Stat.1977, ch. 38, par. 8-4) and aggravated battery (Ill.Rev.Stat.1977, ch. 38, par. 12-4(b)(1)) of Tyrone Flakes. After a jury trial defendant was found guilty of those charges and sentenced to concurrent terms of 30 years for murder and 15 years for attempt murder. On appeal defendant asks this court to determine (1)(a) whether the state committed reversible error when it propounded objectionable questions to witnesses, (b) whether remarks by the prosecutor during opening and closing statements deprived defendant of a fair trial; (2) whether the state failed to prove him guilty beyond a reasonable doubt; and (3) whether the trial judge erred when he failed to state upon the record the factors he considered in arriving at the sentencing determination.

At about 1 a. m. on March 18, 1978, Dexter Brooks and Tyrone Flakes were sitting in a car parked across the street from 1541 South Karlov, Chicago. Flakes testified at trial that his cousin, defendant here, opened the driver's door of the car and began shooting a shotgun. Brooks spun out of his seat and attempted to escape behind the car. Flakes opened his door and also ran to the rear of the car. Defendant shot at Brooks until the latter fell. Defendant then chased Flakes about 15 feet and shot at him two or three more times. Brooks died from wounds he received in his neck, chest, and left hand. Flakes was hospitalized for two and a half months and suffered the loss of a finger, the loss of half a lung, and several broken ribs.

Flakes testified he lived in the same two-flat building as defendant and had known him all of his life. About one month prior to the shooting Tonette Booth moved out of defendant's residence. Flakes testified he and Brooks assisted Booth move. Included among her belongings was a black, .22 caliber handgun which Brooks subsequently purchased from Booth. Apparently, the handgun was loaned to Booth by defendant. In any event, during a conversation among Brooks, Flakes and defendant, defendant demanded the return of the gun and Brooks refused. Although defendant saw Brooks at least three or four times thereafter, he did not speak to him. Flakes also stated he had previously seen the murder weapon in the home of Dempsey Hamilton.

Dempsey Hamilton testified that he sold the shotgun to defendant a few weeks prior to the shooting. He stated defendant still owed him the sale price of $45. He claimed a friend, Eddie "Bee," was present during the transaction. He also testified that about a week before the sale defendant told him Booth had sold defendant's handgun, but that he wanted it returned.

Odessa Irby, Brooks' mother, testified that after the death of her son, she found a .22 caliber handgun among his belongings.

Employees of the police department testified that the spent casings found at the scene of the shooting all came from the same shotgun, that blood found at the scene consisted of two types which correspond to the victims' blood types, and that both victims were found at the scene in a state of unconsciousness, bleeding heavily.

Investigator Kenneth Spink testified he approached Flakes while the latter was in the emergency room of Mt. Sinai Hospital. Flakes was lying face up on a hospital gurney. A tube was protruding from his chest as hospital staff prepared him for surgery. When Spink asked if Flakes knew who shot him, Flakes responded that he did and that the offender "lived down the street." Spink repeated the question and Flakes again responded that he knew who shot him and that person lived "on the street on Karlov." A doctor then terminated questioning because Flakes was going into surgery.

Testifying in his own behalf, defendant stated that at about 1 a. m. on March 18, he joined Brooks and Flakes in their car to smoke some marijuana. After 5 or 10 minutes he left the car and began to walk home. A gold colored car pulled up with two men who exited the car and called out the first names of Brooks, Flakes, and defendant. Defendant turned around, a shot was fired, and he hit the ground. Several more shots were fired. Defendant stated he then heard the car's doors slam shut. He panicked. He got up, entered his car, and drove to his sister's home in Lockport, Illinois. He returned to Chicago on March 20, and surrendered to police.

On cross-examination defendant admitted he initially told police he arrived in Lockport at 5 p. m. on March 17, and that he had spent that evening with his sister's husband. Defendant further stated police told him Flakes had identified him as the offender.

Police Officer Roderick Height stated under oath that he never told defendant Flakes had identified defendant as the offender. Height testified that Tonette Booth informed the police that defendant was the murderer.

Eddie "Bee" Simpson testified he was never present during a weapons sale between defendant and Hamilton. He also testified that he saw a couple of men get into a gold car just after he heard shots fired on March 18. He did not see who these men were nor did he see the shots being fired. He did state he saw defendant about two minutes later when defendant allegedly returned to his residence.

After the jury found defendant guilty as charged, the trial court conducted a sentencing hearing and sentenced defendant to concurrent terms of 30 and 15 years on the murder and attempt murder charges, respectively.

I.

Defendant contends he was denied a fair trial because the state asked two questions over defense objections and made two comments during the opening statement and closing argument that were objectionable. Each of these grounds has been waived.

A.

Defendant claims error in the state's questioning of Brooks' mother and Officer Height. Brooks' mother was asked what she did with the pistol she found in her son's room. The defense objected and cited the trial court's previous ruling that exhibition of the gun or questions regarding it created unfair surprise to the defense. The trial court sustained counsel's objection and no further questions were asked of that witness. Subsequently, defendant testified he was told by police that Flakes had identified him. In rebuttal, Officer Height testified Tonette Booth informed police of the defendant's involvement. The state then asked a leading question of Height and defense objected. Height was asked what he told defendant about Tonette Booth. Height responded, "That she had saw him with the sawed-off ." Defense counsel's objection was sustained. Neither of these testimonial exchanges were stated as grounds for a new trial in defendant's written post-trial motion.

Failure to raise an issue in a written motion for a new trial waives the issue for purposes of appellate review. People v. Evans (1st Dist. 1979), 80 Ill.App.3d 444, 454, 35 Ill.Dec. 805, 399 N.E.2d 1333, appeal denied (1980), 79 Ill.2d 632; People v. Marshall (1st Dist. 1977), 50 Ill.App.3d 615, 623, 8 Ill.Dec. 736, 365 N.E.2d 1122.

B.

Defendant also claims remarks in the opening statement and closing argument require reversal. In the opening statement the state indicated Flakes suffered the loss of a finger and part of a lung due to the shooting. No objection to the statement was made. The matter was not specified in the written post-trial motion. It was therefore waived for review. People v. Jones (4th Dist. 1978), 62 Ill.App.3d 443, 447, 19 Ill.Dec. 637, 379 N.E.2d 301, appeal denied, 71 Ill.2d 619; People v. Marshall, supra.

Defendant similarly waived his claim that the closing argument was improper. In closing argument the assistant state's attorney remarked upon defense counsel's election not to make an opening statement. Defense counsel did not object to the remark. Although such a remark may be grounds for reversal (People v. Fuerback (1st Dist. 1966), 66 Ill.App.2d 452, 457, 214 N.E.2d 330), the trial court immediately instructed the jury, sua sponte, to disregard the assistant state's attorney's remark. During the post-trial hearing, the trial court indicated defense counsel could have access to the transcript of the closing argument. Defense counsel elected not to refer to the transcript and stated only general grounds for a new trial in its post-trial motion. Accordingly, this contention is also waived for purposes of review. (People v. Matthews (3rd Dist. 1979), 69 Ill.App.3d 65, 67, 25 Ill.Dec. 553, 387 N.E.2d 10; see also People v. Witherspoon (1st Dist. 1975), 33 Ill.App.3d 12, 21, 337 N.E.2d 454, appeal denied, 61 Ill.2d 604.) In addition, we conclude that neither the questions nor remarks alleged to be error here deprived defendant of a fair or impartial trial. The record discloses overwhelming evidence of defendant's guilt and, accordingly, the plain error doctrine (73 Ill.2d R. 615(a)) is inapplicable. See generally People v. Howell (1975), 60 Ill.2d 117, 120-21, 324 N.E.2d 403.

II.

We next consider defendant's contention that he was not proved guilty beyond a reasonable doubt. He argues three factors support this contention: Flakes failed to immediately identify him as the murderer during questioning at the hospital; Flakes allegedly described the shooting inconsistently in the light of his wounds; and Eddie "Bee" Simpson...