APPEAL from the Circuit Court of De Kalb County; the Hon.
JAMES E. BOYLE, Judge, presiding.
MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
Defendant, Donald Smalley, Sr., was tried before a jury in the circuit court of DeKalb County and found guilty of the attempted murder of Lawrence Williams and of aggravated assault upon April Backstrom (charges of aggravated battery and aggravated assault upon Lawrence Williams were dropped by the State at the close of the evidence). He was sentenced to 3 to 20 years on the charge of attempted murder and 1 to 5 years on the charge of aggravated assault, to be served concurrently.
Defendant appeals, contending (1) that the indictment failed to state the offense of aggravated assault; (2) that he was not proved guilty of attempted murder beyond a reasonable doubt; (3) that the court erred in the receipt of evidence and the giving of instructions; (4) that the court and State improperly emphasized defendant's prior convictions; and (5) that the State's closing argument, and a remark made by the court during that argument, were prejudicial.
Lawrence Williams testified for the prosecution that on January 16, 1971, he called defendant from Chicago and was told to come to the Smalley home in Clare, Illinois, to collect a debt. He left in company with Alice Backstrom, bringing a .38 caliber pistol loaded with six bullets which he placed in a zippered briefcase on the front seat of his car. He explained that he did not want to leave it in his apartment because of a previous burglary.
When he arrived at the Smalley residence, after accidentally driving a block past the house, he saw a pick-up truck in the driveway but no cars. He had started to pull in front of the garage to back out, thinking that no one was home, when they saw defendant in the garage doorway about 4 or 5 feet from the hood of the car. Williams started to get out of his car but got back in when Miss Backstrom yelled that defendant had a gun.
Williams testified that defendant started shooting a rifle, with the first shot going into the left hand door post and other shots through the windshield. Williams said he then pulled his gun from the case, and returned the fire through the windshield from a lying position. He then was able to back out of the driveway. At the time, Williams was on probation for burglary, and was not supposed to have a gun in his possession. He was granted immunity to testify.
April Backstrom testified for the State that she lived with Williams, and that he normally took the gun with him when leaving his apartment. Essentially she corroborated Williams' version of the incident.
Detective Harold Eckhardt and Police Captain Melvin Shaw testified that one bullet hole was found above the door frame of the garage, about 7 1/2 feet above the ground. Four empty rifle cartridges were found on the floor of the garage. The inside and back wall of the garage were checked, but no other bullet holes were found. Tire tracks from the left front wheel of Williams' car were approximately 16 feet from the garage door. Glass and a blood-like substance were found 16 feet from the door of the garage.
Detective Sergeant James Laben testified that Donald Smalley made a statement on the evening of January 16, 1971, in which he said that Lawrence Williams claimed that defendant owed him money, and had made numerous calls with reference to it. He had called the previous Wednesday and told defendant's wife that defendant had better send the money or he would send someone to collect it. The last call had been on the morning of the incident, when Williams said "he would be out today to get some money or some ass." When Williams arrived, he parked where he could see the house, and defendant took his rifle to the garage. When Williams pulled up, he stepped out of the car and fired once at defendant. Defendant grabbed his rifle and returned a shot. Williams got back in the car and fired five shots through the windshield. Defendant fired three more shots, and Williams backed out of the driveway and took off. Defendant returned to the house and called the Sheriff.
Fred Aubey, a ballistics expert, testified that he examined the windshield of Williams automobile and determined that the six holes on the passenger side of the windshield were caused by a projectile originating from within the vehicle, and the black marks on them were similar to powder burns from the close range firing of a weapon. The three holes in the lower center of the windshield had no powder patterns, and originated from outside the vehicle. There was also a penetrating hole on the driver's side in the lower corner. He agreed that the holes could have been produced by almost anything projected at a high velocity, but said that they had the physical appearance of bullet holes. He could not say whether the six holes on the passenger side were made by one gun, or whether they were made in rapid succession.
Donald Smalley, Sr., the defendant, testified on his own behalf that Williams called him on the morning of the incident and said he was coming to defendant's house for the money he claimed defendant owed him. Defendant denied owing him money. After the call, defendant called the Sheriff in Plymouth, Indiana, and learned Williams was wanted for nonpayment of child support. Defendant then called the DeKalb Sheriff's Department and told them a man wanted in Plymouth was coming to his house, and asked if they would apprehend him. When Williams arrived, he drove past the house, turned around, came back, and parked for 8 to 10 minutes at a spot from which the house was visible. When Williams began to drive toward the house, defendant yelled for his wife to call the Sheriff. Williams pulled into the driveway, drove near the garage, and stopped 15 to 18 feet away. He stepped from the car with a pistol in his hand, and seeing this, defendant dove for his rifle and told Williams to "get out of there". Williams fired a shot at defendant from outside the car, and defendant returned the fire. Williams then got back in the car and fired four more shots through the windshield. Defendant fired three more shots through the windshield of the car. After the battle, defendant phoned the DeKalb Sheriff's Department.
Leota Smalley, the defendant's wife, testified that when Williams arrived, he waited for 10 minutes on the side of the road, pulled his car onto the driveway, and stepped out. She heard a shot and saw him get back in the car. She saw nothing further because defendant hollered for her to call the sheriff, but she heard four other shots.
Nancy Smalley, defendant's daughter-in-law, testified that she saw Williams' car go by, come back, and stop for five or ten minutes. She said Williams then drove quickly into the driveway, jumped out before the car had stopped, and shot a gun, making a "pinging" sound. There was then a loud shot, and Williams jumped back in the car. She said both the man and woman in the car were shooting, and saw five shots inside the car. On rebuttal, a detective testified that, questioned after the shooting, she had said only that she heard a noise, went to the window and saw a ball of fire in the car, and went into the living room.
Patrol Sergeant George Shaw testified in rebuttal that he was in charge of receiving all calls at the DeKalb Sheriff's Department on the day of the incident, and there was no call from Donald or Leota ...