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People v. Summers

JUNE 14, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ARNOLD SUMMERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.

MR. JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Defendant, Arnold Summers, was charged with attempt murder and aggravated battery. After a jury trial in the circuit court of Cook County, he was found guilty of attempt murder. The court placed him on five years probation, the first year to be served in Vandalia.

On appeal defendant contends that: (1) the trial court deprived him of a fair trial by refusing to grant him a continuance; (2) the trial court denied defendant his fundamental right to be present during his trial when the court ordered testimony to continue while defendant was absent; (3) the trial court denied defendant a fair trial by requesting that defense counsel conclude his closing argument; (4) the court erred in not requiring the State to furnish its preparation sheet to the defendant for impeachment purposes; (5) evidence of an unrelated prior criminal act was improperly admitted into evidence; (6) the motion to suppress evidence was erroneously denied; and (7) certain statements of defendant were improperly introduced into evidence.

On March 5, 1969, at approximately 2:30 P.M., defendant shot and wounded Donald Tiske. The shooting occurred on the sidewalk of Tiske's residence, an apartment building located at 4909 Winthrop Avenue in the city of Chicago. Defendant lived in the adjoining apartment building. The incident took place after the two men had a discussion about a barking dog.

At trial Donald Tiske and his wife testified that Tiske picked up his wife at her job at 1:30 P.M. They stopped at a grocery store, and then Tiske drove her home. He intended to return to a tile setting job he was doing at a gas station. When the Tiskes entered their building, defendant was in the lobby ringing various apartment bells. Defendant began cursing, and asked whose dog was barking. Tiske replied that it might be his dog, but that there were several dogs in the building. Defendant then left the building. Mrs. Tiske went up to their apartment and Tiske left the building to return to work. Tiske testified that defendant was in front of the building when he emerged from the lobby. Tiske was walking to his parked automobile, when defendant, who was walking ahead, turned and shot him twice.

Mrs. Tiske testified that to her knowledge her husband had not been drinking on the day in question, and she would be able to tell when he had been drinking. She admitted that when he drank he became belligerent and unruly. Tiske testified that he did not remember whether he had anything to drink prior to the incident.

Defendant testified that he shot Tiske, but did it in self-defense. Defendant went over to the apartment building to complain to the manager about a barking dog. After defendant inquired of the Tiskes about the dog, Tiske yelled that he would cut defendant's head off, and at the same time displayed a knife. Defendant ran out of the building with Tiske following him. Defendant told Tiske to get back, and when Tiske kept advancing, defendant shot him. After the first shot, Tiske did not fall, but kept hopping from side to side. Defendant then shot him the second time.

Defendant testified that he happened to have the gun in his possession because he had tried to sell it. He stated that he did not believe the gun was loaded, but admitted that after the first shot he was aware that it was loaded. Defendant also testified that Tiske was drunk.

Defendant initially contends that the trial court committed reversible error in refusing to grant him a continuance. On Wednesday, October 14, 1970, the last day of trial, after defendant and the only other defense witness, testifying as to defendant's good character, had completed their testimony, defendant requested a continuance of the trial until the following week. The purpose of the continuance was to bring in an additional witness, Doctor A. Madlia. Defendant represented that he did not learn about the doctor until the previous Friday, October 9, 1970, when the State responded to a discovery motion. Defendant had filed the discovery motion on September 28, 1970. Defense counsel stated that he spoke to the doctor on the morning of October 14. The doctor stated that he was too busy all that week, but he would be willing to come to court the following week. Defendant unsuccessfully attempted on October 14 to serve a subpoena on the doctor. Defendant represented that Doctor Madlia was a resident in the emergency room of the hospital to which Tiske was taken after the shooting, and that he would testify that Tiske, when brought to the hospital, appeared to be intoxicated. The judge denied the motion for the continuance.

• 1, 2 Motions for a continuance are addressed to the discretion of the trial court and shall be considered in the light of the diligence shown on the part of the moving party. (Ill. Rev. Stat. 1969, ch. 38, par. 114-4 (e); People v. Clark, 9 Ill.2d 46, 137 N.E.2d 54.) A reviewing court will not interfere with the trial court's denial of defendant's motion for continuance unless such court has abused its discretion. People v. Kurtz, 69 Ill. App.2d 282, 216 N.E.2d 524.

• 3 Under the facts and circumstances of the present case we do not believe that the trial court abused its discretion in denying defendant's motion for a continuance. An examination of the record reveals that defendant was arraigned on June 5, 1969, and trial commenced with the selection of the jury on October 9, 1970. Between arraignment and trial, the case was continued nine times on motion of defendant, and three times by agreement of the parties. Defendant asserts that he did not learn about Doctor Madlia until the State filed answers to his discovery motion on October 9, 1970. However, he did not request discovery until September 28, 1970. And more importantly, defendant did not attempt to serve a subpoena on the proposed witness until October 14, when the trial was virtually completed. Under the circumstances a request to continue the case until the following week was unreasonable and the court did not abuse its discretion in denying the motion.

Defendant's second contention is that he was deprived of his fundamental right to be present at his trial when the court ordered testimony to continue while defendant was absent.

Prior to recessing trial on October 13, the trial judge directed the jury to be present at 9:30 A.M, the following morning so that they could begin promptly at 9:30 A.M. He also cautioned defense counsel not to be late.

At 9:30 A.M. the following morning the defendant was not present. At 9:35 A.M. the judge stated that no one had heard from defendant and resumed the trial proceedings. The judge commented that defense counsel could make an objection if he wished. Defense counsel replied that for the record he was objecting. The State then called Officer Joseph Juhas, one of the arresting police officers. Officer Juhas corroborated the testimony of his partner Officer Don Jacobsen, who had testified on the previous day as ...


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