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People v. De Savieu

OCTOBER 2, 1973.

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

v.

HARLAN DESAVIEU, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. L. SHELDON BROWN, Judge, presiding.

MR. JUSTICE LEIGHTON DELIVERED THE OPINION OF THE COURT:

Harlan DeSavieu and a co-defendant, Van J. Ross, were jointly charged with two counts of attempt to murder and two counts of aggravated battery. They were tried by the same jury, found guilty of all the charges and sentenced to the penitentiary. Ross took a separate appeal and in an accompanying opinion, we have affirmed his two convictions for attempt murder. See People v. Ross, 14 Ill. App.3d 923. This appeal is by DeSavieu and arises from the same material facts. *fn1

I.

At about 4:30 P.M. on May 23, 1968, Eugene Shanklin, age 17, and Melvin Baxter, age 14, were waiting for a "jitney" cab at East 58th Street and South Park Avenue in the City of Chicago. *fn2 They saw some boys come out of a nearby building. Moments later, they heard one or two shots. A tree branch fell to the ground. Thinking that someone was shooting at them, Shanklin and Baxter ran approximately six blocks to a point near East 52nd Street and Bowen Drive in Washington Park.

In his testimony, Shanklin said that he knew appellant. In fact, they had been acquainted for about nine months. He said that he also knew Van Ross. They had known each other for about five years. Although Melvin Baxter testified that he knew Ross, he said he did not know DeSavieu before May 23, 1968.

Shanklin testified that after he and his companion had run some six blocks away from the shooting at 58th Street, he saw a boy behind a tree; that the boy came out, shot him and then shot Melvin Baxter in the stomach and in the back. Shanklin told the jury that after he was wounded, he tried to cross East 51st Street and reach a hospital there, but a brown and white "* * * car drove up and tried to stop me from going to the hospital." Melvin Baxter also testified and described the shooting. In court, he and Shanklin identified appellant as the boy who shot them. Shanklin identified Ross as the driver of the car that tried to stop him from reaching the hospital. During cross-examination, Shanklin said that when he first saw the police, he told them that appellant shot him and that Ross was with him. Then, Shanklin was asked, "Did you ever say that Tyrone [Clark] was the one that shot you?" He answered, "Yes, in the police station."

In support of Shanklin and Baxter, the prosecution called three witnesses who gave testimony concerning the shooting. Fifteen-year-old Tyrone Clark told the jury that in the afternoon of May 23, 1968, while in a drug store at 58th Street and Calumet Avenue, he saw Eugene Shanklin and Melvin Baxter walk by. He went to an apartment on East 58th Street, there found appellant and Ross and told them he had seen the two youths. Appellant said, "[C]ome on." Clark and appellant left the apartment. They went through an alley and some gangways until they reached South Park Avenue. They saw Shanklin and Baxter at the "jitney" cab stop. Clark testified that appellant "pulled out a gun * * * got behind a porch and fired twice." Shanklin and Baxter "ran through the park." Clark said that he and appellant then returned to the apartment. When they got there, appellant went into a bedroom with Ross. Clark recalled that he could hear Ross say, "We can catch them in my car." Ross's car was brown and white. Clark said that appellant and Ross left the apartment. About fifteen minutes later, they returned. Then, in the presence of appellant and several others, Ross told them that "[i]t was a wipe-out set, you should have been there. Harlan [the appellant in this case] shot down Melvin [Baxter] like a piece of paper and then he shot Eugene [Shanklin] while he was running."

Terrence Bell, who Clark recalled was among his companions the afternoon of May 23, 1968, described his presence in the apartment when appellant and Ross left. He said that about half an hour later, they returned and Ross told them about the "wipe-out set" and that "we all should have been there." According to Bell, appellant recounted in his presence that he and Ross got in the car and then "* * * saw Eugene and another boy. He [appellant] said he jumped out of the car and the boys started running and he started shooting."

Clarence Britts was called and he told how he was in Washington Park with his family the afternoon of May 23, 1968, between 5:00 and 5:30 P.M. when he "saw two youngsters running through the park * * *. I turned around to open up a bottle of pop and I heard shots. * * * I looked for the boys and I found one falling down the bridle path."

The defense called four witnesses: (1) Mary Wright: She testified that she lived in the apartment on East 58th Street. She knew Tyrone Clark. He had been in her apartment on May 23, 1968, but left about 4:00 P.M. She knew that Shanklin was in the neighborhood that day. She was acquainted with Van Ross, and she recalled that he was in her apartment the day in question, but it was before Shanklin arrived in the area. As to appellant, all she could say was that "I don't remember seeing him in the apartment that day." (2) Richard Lis: He appeared and told the jury that on May 23, 1968, he was a Chicago police detective and questioned Eugene Shanklin after he was shot in Washington Park. Lis was asked, "Do you know if Shanklin identified Tyrone Clark as the boy who shot him?" Lis answered, "At one point, yes." (3) Van Ross: He admitted knowing Shanklin and Baxter and having seen them the afternoon of May 23 near East 58th Street. He knew the owners of the apartment on East 58th Street, but he was not in the apartment after he saw the two youths. He did not see appellant on May 23. He denied having made the statements attributed to him by Clark and Bell or in any way being involved in the shooting of Shanklin and Baxter. (4) Appellant: He denied knowing Shanklin or Baxter. He said that he did not see them on May 23, 1968. He denied ever being in the apartment described by Tyrone Clark, and he denied ever having fired any shots at or assaulting either Shanklin or Baxter.

After hearing the evidence, receiving its instructions and listening to closing arguments, the jury deliberated and found appellant guilty on the two counts of attempt to murder and the two counts of aggravated battery. He was sentenced to concurrent terms for the four offenses. From these facts, appellant presents seven issues for our review. *fn3

II.

First. Whether he was proven guilty beyond a reasonable doubt.

Appellant contends that the State's evidence "* * * reveals many contradictions, discrepancies and improbabilities." For example, he argues that when Shanklin first spoke with the police, he did not tell them that appellant was his assailant, even though, according to him, he had known appellant prior to the shooting of May 23. Appellant insists that Shanklin initially identified another prosecution witness, Tyrone Clark, as his assailant. In addition, he points to the testimony of Melvin Baxter and argues that Baxter had only a glance at the person who shot him and based his identification on appellant's hairstyle.

Turning to the testimony of other State's witnesses, appellant maintains that two of them, Tyrone Clark and Terrence Bell, were interested in seeing him convicted because they too had been arrested for the shooting of Shanklin and Baxter. In addition, Tyrone Clark was an admitted accomplice because he, as a participant, went to East 58th Street and South Park Avenue on the day in question where appellant "pulled out a gun * * * and shot twice." Finally, appellant argues that the State did not call all persons whom Clark and Bell said were in the Wright apartment the afternoon of May 23 when Ross and appellant allegedly made the incriminating statements about having shot Shanklin and Baxter.

• 1 In our judgment, the record does not support appellant with regard to Shanklin's first identification of his assailant. However, if it did, the failure of a complaining witness, until a few days later, to say that an accused was his assailant, or even denying that an accused was his attacker, only affects the weight to be given his testimony. (People v. Hines, 131 Ill. App.2d 638, 267 N.E.2d 696.) In fact, the weight to be given what a complaining witness says, taking into consideration such discrepancy or inconsistency as may accompany his testimony, is a question for the jury. People v. Johnson, 123 Ill. App.2d 69, 259 N.E.2d 621.

Appellant's identity as perpetrator of the assault on Shanklin and Baxter was a question of fact. (See People v. Stephens, 297 Ill. 91, 130 N.E. 459; compare People v. McMiller, 410 Ill. 338, 102 N.E.2d 128.) As to the uninvolved persons in the apartment on East 58th Street, the State was under no obligation to call all of them as witnesses. (Compare People v. Clay, 38 Ill.2d 17, 230 N.E.2d 191; People v. Martin, 35 Ill.2d 289, 220 N.E.2d 170.) Therefore, it was for the jury to consider what was said by the witnesses who were called, Shanklin, Baxter, Clark, Bell and the others, and from all the evidence, determine the credibility that was to be given their testimony. This, of course, included consideration of the opportunity each had to observe or any interest, bias or prejudice which the jury should have considered in determining their credibility. (See People v. Emerling, 341 Ill. 424, 173 N.E. 474; I.L.P. Witnesses ...


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