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People v. Wilbert

NOVEMBER 14, 1973.

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

v.

ANDREW LEE WILBERT, A/K/A LEE JAY (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS B. GARIPPO, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

The defendant-appellant was charged with murder, attempted murder, and aggravated battery and was found guilty of aggravated battery. He was sentenced to from one to five years imprisonment and in this appeal maintains that the State failed to prove his guilt beyond a reasonable doubt. In addition defendant maintains he was prejudiced by references made to alleged other crimes, to his alleged street gang membership and to the family of the victim of the fatal shooting, Bertha Gurley. We find no merit in these contentions.

The evidence in this case was lengthy but centers on the testimony of four occurrence witnesses. Since the defendant was convicted of the aggravated battery charge alone, we shall consider the evidence only as it pertains to this offense. The shootings involved in this case occurred on July 4, 1969, in a breezeway that runs underneath a public housing project at 1160 North Sedgwick in the city of Chicago. The victim of the aggravated battery was Kenneth Elders. Miss Bertha Gurley was shot and killed.

Mr. Elders testified on behalf of the prosecution and stated that on July 4, 1969, he was a member of the Black P. Stone Nation. At approximately 10:30 or 11:00 o'clock on that morning he was in the Gurley residence located on the 18th floor of the apartment building at 1160 North Sedgwick. At this time Elders left the Gurley apartment and was joined downstairs by Nathaniel Ragsdale, Lucious Dobbs and a fellow called "Little June", Elders and his companions encountered the defendant and about four other men. Mr. Elders stated he later found out that one of the men with the defendant was Stephen Carroll. According to Mr. Elders' testimony he was not armed but Dennis Ragsdale was carrying a knife and the defendant and Stephen Carroll were carrying revolvers. Mr. Elders testified that the defendant stated to him that the Stones had killed his (the defendant's) cousin, Stanley Morgan, and that they were going over to 1161 N. Larrabee. At this time the defendant had his gun out and it was down at his side. Elders stated that as they proceeded over to 1161 N. Larrabee, Lucious Dobbs ran and the defendant fired two shots at Dobbs but missed him. The rest of the group proceeded toward the Larrabee address and then Elders saw a police car approaching and he ran. Mr. Elders stated that the next time he saw the defendant was on the evening of July 4, 1969.

At approximately 9:00 P.M., on that evening Elders was again in the Gurley apartment and left about 9:15. He proceeded to the first floor breezeway of 1160 N. Sedgwick and when he arrived in the area, Elders stated that Bertha Gurley and Diane Ragsdale were there and were sitting midway on a railing located in the breezeway. Elders went over to the railing and got ready to sit upon it. Elders testified that as he was getting upon the railing he was grabbed by the collar and pulled forward by the defendant and that the defendant said to him, "you ran this morning".

According to Elders, the defendant then fired two shots at him and Elders was wounded in the groin area and creased in the leg. Elders stated he had no weapon on his person or in his hand.

After the shooting, Elders ran out of the east side of the building and stated that as he was running he heard more shots. Elders testified that he did not know at whom the shots were fired. Elders proceeded to a gas station in the area and the police were there. He stated the police took him to Henrotin Hospital where he was treated for a half hour for his wounds. After being released from the hospital, Elders testified he was taken to the Chicago Avenue Police Station and that he gave a signed statement to the police.

On cross-examination Mr. Elders admitted that he was then serving a penitentiary sentence of from one to five years for robbery and that he had previously been convicted for possession of a concealed weapon. Defense counsel asked Mr. Elders where he had spent the night before the shooting and he replied at his house on the south side. However, it was shown that Mr. Elders' grand jury testimony was that he had spent the night prior to the shooting at the apartment building at 1160 N. Sedgwick. When confronted with this apparent inconsistency and asked whether or not he had given that testimony at the grand jury hearing, Mr. Elders replied, "I don't recall". During cross-examination defense counsel made reference to the statement Mr. Elders gave to the police on the night of the shooting. In that statement Mr. Elders said, "As I was coming down the stairs a fellow came up to me and said, `You ran this morning' and then he started shooting." When asked whether he had been asked that question and had he given that answer, Elders replied, "The question wasn't put into that detail." However, when defense counsel again asked whether he had given that answer, Elders stated, "Yes".

Mr. Elders was also asked by defense counsel what the defendant was wearing on the evening of the shooting and he said, "I think he had on a gold jacket. I didn't look at his trousers." Defense counsel again confronted Elders with the statement he gave to the police and in which he had stated the defendant was wearing a green jacket at the time of the shooting. However, Mr. Elders reaffirmed his testimony that the jacket was gold and pointed out that the statement had been signed by two people. In the defendant's presentation of his case, the detective who took the statement testified that when he asked the question pertaining to the defendant's clothing it was Elders who responded. It should be noted that during cross-examination Mr. Elders was asked, "What did you do when he grabbed you?", and he responded, "I looked up into his face."

The next witness the State called was Diane Ragsdale who testified that on July 4, 1969, she lived at 1160 N. Sedgwick. At approximately 9:00 or 9:30 P.M., on the evening of July 4, 1969, she was in the breezeway of her apartment building and sitting on the railing located there. She testified that she was in the breezeway prior to the time Elders arrived and that from the time she first saw Elders until the defendant entered the breezeway a few minutes passed. Miss Ragsdale stated that when she first saw the defendant, Elders was leaning next to her on the rail. According to Miss Ragsdale, the defendant walked up to the breezeway, grabbed Elders by the collar, and put a gun at Elders' side. She stated that the defendant and Elders began struggling but Elders did not have any kind of weapon. Miss Ragsdale testified she heard noises from the gun the defendant had and that she heard the gun go off and the other boy fired. She then saw Mr. Elders run out of the building. On cross-examination Miss Ragsdale stated, "I said Elders had been shot in the side, but they were struggling with the gun. And both guns went off. The other boy's gun went off." Defense counsel then asked Miss Ragsdale, "Well, you don't know who shot Elders in the side then?", and she answered "No".

The State produced two other occurrence witnesses but their testimony is not germane to the aggravated battery conviction. Rita Dolores Watkins testified that she was sitting on some stairs in the breezeway on the evening of July 4, 1969, but had her back to the railing. She heard some people arguing, but did not know who the people were. She stated that she heard some noises like firecrackers and then turned around and saw Elders running out of the building. Ella Mae Sims also testified that she was in the breezeway on that evening and that she heard Elders and another boy arguing. She stated she heard gunshots and then saw Elders run from the building. However, she did not give any testimony as to who shot Elders.

Stephen Carroll testified on behalf of the defendant and stated that on the evening of July 4, 1969, he accompanied the defendant to the apartment building at 1160 N. Sedgwick. Upon entering the building, Carroll stated that Kenneth Elders confronted the defendant and Elders went up under his shirt and had a gun. According to Carroll, the defendant grabbed Elders' hand and they began struggling. The gun went off and Elders ran from the building. Mr. Carroll stated he did not see the defendant with a gun.

The defendant testified on his own behalf and stated that when he and Carroll entered the breezeway Elders jumped down off the railing and started toward them. The defendant testified that Elders pulled a gun and that he grabbed it. They began to tussle and the gun went off. Elders then ran from the building. There was no further evidence as to whether or not it was the defendant who shot and killed Bertha Gurley, but as previously stated since the jury found the defendant not guilty of the murder charge we see no reason to discuss this evidence.

• 1, 2 The first contention of the defendant is that the State failed to prove him guilty beyond a reasonable doubt. Defendant's basis for this contention is that the testimony of the State's witnesses who had knowledge of the Elders shooting, Mr. Elders and Diane Ragsdale, was contradictory and impeached to such an extent as to become incredible. This argument is essentially an attack on the credibility of two of the State's occurrence witnesses. The rule of law ...


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