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People v. O'neal

DECEMBER 18, 1969.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES E. O'NEAL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. REGINALD J. HOLZER, Judge, presiding. Affirmed in part, reversed in part.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT.

Defendant, James O'Neal, was charged with two counts of armed robbery and two counts of aggravated battery. After a jury trial, defendant was found guilty on all four counts. He was sentenced to terms of 20 to 40 years on each count of armed robbery, and to terms of 5 to 10 years on each count of aggravated battery, all sentences to run concurrently.

Defendant appeals, contending that the opinion evidence of the ballistics expert was improperly admitted; that evidence of a separate and unrelated crime was improperly introduced; that certain prejudicial hearsay evidence was erroneously introduced; that defendant was deprived of the assistance of counsel at the preliminary hearing; that the court erred in imposing separate sentences for crimes arising out of the same conduct; and that the sentences imposed on defendant were excessive and should be reduced.

On February 26, 1967, at about 10:30 p.m., after a telephone call, Leslie Johnson and Francis Kelly, the complaining witnesses, drove to downtown Chicago to a restaurant to purchase some marijuana. At the restaurant they met defendant and another man identified as Bill. After a conversation, the four men proceeded in Kelly's car to the south side to pick up the marijuana. At their destination, Bill was given forty dollars by the complaining witnesses and left the car to get the marijuana. After waiting for Bill for a while, defendant suggested that they wait inside the building. After they entered the building hallway, defendant drew a gun, and ordered the complaining witnesses to take out their wallets and raise their hands. Defendant then shot Johnson in the arm, picked up the wallets, and left the building. Johnson and Kelly went to a hospital. At the hospital, Johnson told the police that he was the sole victim of the crime, and Kelly did not report to the police that he was robbed until several days later. At the hospital, a police officer removed a spent bullet from Johnson's overcoat, and identified the bullet in court. Police officers arrested defendant on March 5, 1967, and found a gun on his person. At trial Johnson identified that gun as the one used by defendant on the night in question.

Officer Burt Nielsen, a firearms identification technician employed by the Chicago Police Department Crime Laboratory, testified as to his duties at the crime laboratory and his qualifications as a ballistics expert. He also explained laboratory ballistics procedures. When a weapon is received at the laboratory it is classified as to type, caliber, make and model. Each gun has class characteristics common to its particular make and model. In addition, each gun has its own individual characteristics. In constructing a gun barrel, the barrel is drilled, reamed, and then a cutting tool is used to place spiral lanes and grooves into the barrel. This process, which consists of tearing metal from metal through harder metal, causes small microscopic imperfections in the bore of the gun. As a bullet is fired through the gun barrel, it picks up these imperfections left by the cutting tool. After the gun is received at the laboratory, if operable, it is fired into a bullet recovery box. The bullet in question is then compared with the test bullet under a comparison microscope.

A comparison microscope consists of two identical microscopes mounted side by side and connected by an optical bridge. That bridge has a single eyepiece with a split field of view, enabling the operator to see half the image under the right microscope and half the image under the left microscope. The bullets are mounted on spindles which in turn are on stages and these stages can be moved up and down.

Nielsen identified the gun taken from the defendant as the one he received at the laboratory on March 7, 1967. He identified the bullet found in Johnson's overcoat as the one he received on February 28, 1967. He fired the weapon twice on March 9, and following the aforementioned procedures, he compared the two test bullets with the one in question. On the basis of the tests, he determined that the bullets were fired from the same gun. Photomicrographs of the bullets are never taken at the Chicago Police Department laboratory.

Defendant first contends that the opinion evidence of the ballistics expert was improperly admitted. Defendant apparently concedes the witness's expertise in the field of ballistics. Defendant also recognizes that a properly qualified ballistics expert may offer his opinion as to whether a bullet was fired from a gun in question. People v. Fisher, 340 Ill. 216, 172 N.E. 743 (1930). However, defendant argues that in the instant case there was no factual basis in the evidence to support the expert's conclusions that the basis of his opinion was not placed before the jury, that either the test bullets, photomicrographs, or an explanation of the particular similarities should have been offered into evidence; and that as a result defendant's right to proper cross-examination was improperly restricted.

[2-5] The function of an expert witness is to draw inferences from facts which the jury is ordinarily unqualified to draw. Schwartz v. Peoples Gas Light & Coke Co., 35 Ill. App.2d 25, 181 N.E.2d 826 (1962). However an expert opinion must be based upon facts in evidence. Kanne v. Metropolitan Life Ins. Co., 310 Ill. App. 524, 34 N.E.2d 732 (1941); Carlson v. New York Life Ins. Co., 76 Ill. App.2d 187, 222 N.E.2d 363 (1966). The admissibility of expert testimony is conditioned upon the laying of a proper factual foundation. Marshall v. First American Nat. Bank of Nashville, 91 Ill. App.2d 47, 233 N.E.2d 430 (1968). Where the expert bases his opinion upon facts personally known to him, he must testify to those facts. Department of Public Works and Buildings v. Oberlaender, 92 Ill. App.2d 174, 235 N.E.2d 3 (1968). The reason for this requirement is to act as a safeguard for the reliability of the expert's testimony. Marshall v. First American Nat. Bank of Nashville, supra. See 2 Wigmore on Evidence (3rd ed 1940, § 417).

We find that the expert's opinion in the instant case was properly admitted. The witness testified that he received the gun and bullet in question at the laboratory; and the gun and bullet were introduced into evidence. He also testified that he fired the gun twice, and that he compared the test bullets with the one in question. He testified to the procedure generally used and to the reasons why a comparison of bullets will reveal the identity of the gun which fired them. On the basis of these tests, he was of the opinion that the gun found on defendant's person fired the bullet found in the complaining witness's coat. The expert witness set forth the reasons for his conclusion, and it was for the triers of fact to determine how much weight to give to his testimony. It should also be noted that the bullet and gun in question were introduced into evidence, and that defendant was not foreclosed from conducting similar tests, either prior to or during trial.

Other jurisdictions also have allowed the conclusions of a ballistics expert even though demonstrative evidence had not been introduced. In McKenna v. People, 124 Colo. 112, 235 P.2d 351 (1951), the court held that the ballistic expert's testimony was proper without the introduction of photomicrographs, stating that the latter were inaccurate to some degree. In State v. Wojculewicz, 140 Conn. 487, 101 A.2d 495 (1953), the court held that the introduction of the test bullet is not essential to the admissibility of the expert's testimony. And in People v. Buckowski, 37 Cal.2d 629, 233 P.2d 912 (1951), it was held that the oral testimony of the ballistics expert as to the bullets in question was sufficient to support his conclusions.

Defendant next argues that the testimony of a witness concerning a separate and unrelated crime constituted prejudicial error.

Over objection of defendant, Officer Correntano was allowed to testify that, when he arrested defendant, a gun was found on defendant's person. After the officer testified that he found the gun on defendant and saw it again at the police station, the prosecutor, in establishing the chain of possession of the gun, then asked when he next saw the gun. The officer replied that he next saw it "in court on an unlawful use of weapons." The trial judge, while denying a defense motion for a mistrial, stated that the remark was practically inaudible, and directed the jury to disregard the remark if they heard it. The judge also instructed the witness to confine himself to answering the questions. Prior to the officer's taking the stand, the defense offered to stipulate that the gun was found on defendant's person, but the State rejected the proposed stipulation.

[7-10] While introduction into evidence of separate and unrelated offenses is generally prejudicial error, People v. Peto, 38 Ill.2d 45, 230 N.E.2d 236 (1967), evidence of another crime is admissible when relevant to the matter on trial. People v. Carter, 38 Ill.2d 496, 232 N.E.2d 692 (1967). Facts and circumstances attending the arrest of an accused may be introduced into evidence where they tend to connect defendant with the commission of the offense for which he is on trial. And evidence which tends to prove any fact material to the issue on ...


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