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People Ex Rel. Walker v. Pate

OPINION FILED JANUARY 26, 1973.

THE PEOPLE EX REL. GERALD DANIEL WALKER, APPELLANT,

v.

FRANK J. PATE, WARDEN, APPELLEE. THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

GERALD DANIEL WALKER, APPELLANT.



No. 43622. APPEAL from the Circuit Court of Will County; the Hon. MICHAEL A. ORENIC, Judge, presiding.

No. 43832. APPEAL from the Circuit Court of Lake County; the Hon. WILLIAM WEBB JOHNSON, Judge, presiding.

MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

VESCELUS, LEETZ, PERRY & POLLARD, of Wheaton, appointed by the court, for appellant.

WILLIAM J. SCOTT, Attorney General, of Springfield, and JACK HOOGASIAN, State's Attorney, of Waukegan (JAMES B. ZAGEL, Assistant Attorney General, and WILLIAM D. BLOCK and DUDLEY E. OWENS, Assistant State's Attorneys, of counsel), for the People.

A jury in the circuit court of Lake County found Gerald Daniel Walker, the defendant, guilty of attempted murder and aggravated battery. He was sentenced to concurrent terms in the penitentiary of 16-20 years for attempted murder and 8-10 years for aggravated battery. He appealed directly to this court from the convictions.

Contrary to the repeated advice of the trial judge that he be represented by counsel, the defendant chose to represent himself at trial. The court did appoint an attorney to provide advice to the defendant when requested. On this appeal, too, the defendant appears pro se, and has submitted a 100-page brief alleging numerous errors in the conduct of his trial. Another brief has also been filed by counsel who was appointed to assist the defendant in the presentation of his appeal.

We begin our discussion of this appeal by observing that the defendant correctly contends that it was error to impose a sentence for aggravated battery as well as a sentence for attempted murder, since both crimes resulted from the same conduct and because aggravated battery is a lesser included offense of attempted murder. The State acknowledges the validity of the defendant's position. People v. Peery, 81 Ill. App.2d 372, 377; see also People v. Schlenger, 13 Ill.2d 63, 66-67.

The principal witness for the People was Sven G.S. Lundgren, a State trooper, who was shot by the defendant. On May 26, 1969, he was on duty in a patrol car on U.S. 12 in the vicinity of Volo. About 9:20 A.M. he noticed a 1968 Chevrolet auto without a front license plate. At his signal the driver of the Chevrolet, the defendant, pulled to the side of the road. The defendant told the officer that he had lost the plate the week before, and that he had leased the auto, but did not have the lease papers with him. The officer was standing next to the Chevrolet, and he and the defendant, who was from Wisconsin, engaged in conversation regarding the officer's plans to open a business in Wisconsin. At that, the defendant gave the witness his business card. The officer had informed the defendant that he would have to "check the car out," and on the back of the defendant's business card he noted the vehicle's identification number from the dashboard.

The defendant and the witness then moved to the patrol car, with the defendant sitting on the passenger's side of the front seat and the officer on the driver's side. When the witness again told the defendant that he was going to "call the [license plate and vehicle identification] numbers in to check on the car," and that it would then take ten or fifteen minutes to make the check, the defendant left the police car to get a magazine from his car.

Trooper Lundgren radioed the information and began to fill out a warning ticket. As he did, he observed the defendant returning from his car with a magazine under his arm. He noticed the defendant open the passenger door of the police car as he continued to fill out the ticket. Seconds later he heard a shot and experienced "something * * * crashing into the side of [his] head." He said he fell to his right, realized he had been shot and lost consciousness. He did not at any time see a weapon. About five minutes later, he learned, he regained consciousness, saw he was alone and then radioed that he had been shot.

Other testimony introduced by the People showed that the bullet had entered under the witness' right ear and lodged in the skin just under the left ear lobe, the path of the bullet being approximately parallel to the ground. There was also testimony that an advertising magazine and the defendant's business card, which he had given Lundgren, were found in the police car. A police ballistics expert, who conducted tests on the bullet which was removed from the victim, testified that in his opinion the bullet had been fired from the .25 caliber automatic pistol which was found on the defendant when he was arrested two weeks later. The defendant was arrested in a woods in Chicago, after a high-speed chase that included police use of a helicopter. It was shown that the vehicle the defendant was driving when he was stopped by Trooper Lundgren belonged to Charles Richards, a resident of Des Plaines, Illinois, and that it had been stolen from a garage in Des Plaines a few weeks before the shooting.

The defendant, who took the stand, did not explicitly deny that he had been driving the stolen car. Rather, he simply referred to other evidence which, in the moments following the shooting, described the car driven by Lundgren's assailant as blue rather than gold, as Richards had described his auto. Prior to trial, the defendant filed an affidavit of intention to rely on an alibi defense, but his defense at trial was that the officer had been wounded when the defendant's weapon accidentally discharged. The defendant testified that he was carrying the .25 caliber pistol in his right rear pocket with a round in the chamber, but he said that the weapon was uncocked. He could not, however, recollect, he testified, whether the safety had been engaged. He said that when he returned to the patrol car carrying the magazine, he fell backwards to the ground. The weapon then struck the ground, and discharged. The bullet first struck him on the right thigh, and then, after ricocheting off an unknown surface wounded the officer.

He testified that he was not conscious of what had happened until he left the scene. At first, he stated, he felt only a sharp pain and thought that a sniper in the nearby fields had shot the officer and him.

To support his version of what occurred, the defendant had several persons who had visited him in the Lake County jail three of four weeks after the shooting incident testify. They testified that the defendant had exhibited his right thigh, and that they had observed a "scab" there. The testimony of the witnesses varied in estimating the "scab's" size.

Also giving testimony for the defendant was a weapons expert who had been appointed by the court after the defendant had made a motion seeking such expert assistance. The witness testified that he had examined the defendant's pistol and that he was of the opinion that a sharp striking of the weapon against a hard surface might cause it to discharge as the defendant had claimed it had.

The first contention the defendant makes here is that the trial court erred in denying his motion for a new trial. In support of his motion, the defendant had submitted several affidavits, and he argues here that what they set out established his right to a new trial within our holdings, including People v. Baker, 16 Ill.2d 364. In Baker this court discussed criteria to be considered upon a motion for a new trial on the ground of newly discovered evidence. It was observed: "A motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. [Citation.] To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but ...


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