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People v. Hutter

JUNE 6, 1975.




APPEAL from the Circuit Court of Winnebago County; the Hon. JOHN C. LAYNG, Judge, presiding.


Following a jury trial, the defendant, Brian Hutter, was convicted of attempt to commit murder, and was sentenced to serve a 4- to 7-year term of imprisonment. On appeal, the defendant contends (1) that the trial court erred in denying the defendant's motion in limine which sought to exclude evidence of controlled substances and weapons, allegedly not directly related to the offense of attempted murder, and that the trial court improperly admitted such evidence; (2) that the trial court improperly instructed the jury that evidence of other crimes of the defendant had been presented solely on the issue of the defendant's motive, but that the State was not required to establish a motive for the commission of the offense; and (3) that the evidence leaves a reasonable doubt as to the defendant's guilt, and that consequently, he was not proven guilty beyond a reasonable doubt.

Having fully reviewed the testimony of the witnesses and the exhibits admitted into evidence, we conclude that no reversible error was committed by the trial court, and that the defendant was proven guilty beyond a reasonable doubt. We therefore affirm the judgment.

The defendant was indicted and charged with having committed the offense of attempt murder of Officer Richard McMahon of the Winnebago County Sheriff's Department. The incident occurred shortly after midnight on August 21, 1973, when a narcotics task force and other police officers forcibly entered the dwelling of Wayne Gutowsky, pursuant to a valid search warrant. The search warrant was based upon a surveillance of Wayne Gutowsky, who was suspected of selling methamphetamine, a controlled substance under the Controlled Substances Act. At the time the search warrant was executed, the Gutowsky residence was occupied by Wayne Gutowsky, Donna Gutowsky, and their two children. In addition, the defendant and a female companion had been residing at the Gutowsky home for several days.

The defendant admitted that he had fired a .38-caliber automatic pistol through his bedroom door and that one of the bullets fired by him had wounded Officer McMahon's hand. However, the defendant contended that when he fired the pistol, he did not have knowledge of the officers' identity as police officers. Rather, he asserted that he believed that the persons attempting to enter his bedroom were members of a street gang, who had burglarized and set fire to his former apartment. He argued that his actions were justifiable based upon defense of self and defense of a dwelling when entry is made in a tumultuous manner. Consequently, the defendant's knowledge or lack of knowledge of the police officers' identity, his asserted belief that when he fired the weapon he did not know that the persons were police officers, and the reasonableness of his asserted belief were the crucial issues at the trial.

Officer Robert Combs testified that on August 21, 1973, at approximately 12:30 A.M., pursuant to a search warrant, he and other officers in plain clothes knocked on the door of the Gutowsky residence and announced that they were police officers with a search warrant. After knocking a second time and shouting their identity and purpose, Combs stated that he heard what sounded like two or more people running inside the house. At that point, in order to prevent the destruction of the subject matter of the warrant, the officers kicked in the front door. Combs testified that as he and Officer McMahon entered the premises, he saw a person run toward one of the bedrooms. According to Combs, McMahon shouted that he was a police officer and simultaneously displayed his identification badge. While other officers secured the remainder of the house, Combs and McMahon proceeded to the door of the bedroom into which the person had run, and attempted to gain access to the room. Combs testified that he and McMahon shouted five to eight times that they were police officers. As they began to kick in the bedroom door, two shots were fired through the door from inside the room, one of which wounded McMahon. The officers returned the fire. According to Combs, when he and McMahon gained access to the bedroom, the defendant was behind a dresser with a gun in his hand. With his gun the witness struck the defendant on the head, and the defendant's weapon fell to the floor. Combs testified that he subsequently placed the defendant's gun on the dresser and observed that the gun had jammed.

Officers Richard McMahon, Charles Bishop, and Richard Galvononi testified regarding their roles and observations in executing the search warrant of the Gutowsky residence. Their testimony was substantially in accord with Combs' account of the incident. All stated that they had shouted that they were police officers.

In addition, the State presented evidence technicians, a firearms identification expert, and a drug identification expert, who related the location, condition, and nature of certain exhibits. In searching the bedroom, incident to the defendant's arrest, the officers found approximately five grams of marijuana and a derringer pistol. In addition, evidence obtained pursuant to the search warrant produced a gray box, located in the Gutowsky's recreation room, which contained cocaine, syringes, and hypodermic needles. Amphetamines were found in an orange container located in the kitchen. Further, a sawed-off shotgun and a box of shells were found in plain view in the recreation room.

The police officers who testified attributed possession of the gray box, containing cocaine and hypodermic needles, possession of the orange box, containing amphetamines, and possession of the sawed-off shotgun to Wayne Gutowsky, the owner of the premises. Furthermore, Wayne Gutowsky testified that he had been indicted for possession of the controlled substances and weapon found in his home, excluding that which was found in the bedroom occupied by the defendant. The defendant admitted possession of the marijuana and derringer found in his room, but he denied knowledge of and possession of the other controlled substances found in the search of the Gutowsky home. However, the defendant testified that he had knowledge of the sawed-off shotgun in the Gutowsky recreation room. It is clear that the testimony heard by the jury regarding the exhibits in no manner implied that the defendant had been charged with possession of cocaine, hypodermic needles, amphetamines, or a sawed-off shot gun.

Donna Gutowsky testified on behalf of the defense that on August 21, 1973, the defendant, Brian Hutter, had been residing with her family for 4 days. Mrs. Gutowsky stated that on the evening preceding the incident she was at the place of her employment and arrived at home at 11:15 P.M. The defendant retired to his room at midnight, and she and her husband retired at approximately 12:15 A.M. About 5 minutes after she had retired, she heard a banging noise on the door. According to Mrs. Gutowsky's testimony she did not hear any voices. She testified that when she heard the sound of the outside door being kicked, her husband ran from their bedroom into the bedroom occupied by the defendant and slammed the door behind him. The witness testified that it was dark in this area of the house when the police officers entered and she did not know they were police officers. According to Mrs. Gutowsky, Officer McMahon pounded on the bedroom door, shouted in vulgar language, and did not identify himself as a police officer. However, she testified that Combs, who was positioned closer to her room, said in a "regular conversation voice" that he was a police officer. After they gained access to the bedroom, she observed that a light had been turned on in that room, and she heard her husband exclaim "Are you really police?"

On cross-examination, Mrs. Gutowsky did not recall the portion of her signed statement taken on the night the incident occurred, in which she stated that Wayne had called Brian to meet him at the front door. She further denied the truth of her statement which read, "Then I heard the door crash open and Brian and Wayne came running through the hall and they both ran into the back bedroom * * * they were yelling that they were policemen * * *." In addition, Donna Gutowsky denied having any knowledge of the narcotics and asserted that she had never seen the sawed-off shotgun.

Brian Hutter, the defendant, testified that on August 21, 1973, he had been residing with the Gutowsky's because his former dwelling had been burglarized and set on fire. He had filed a complaint with the Rockford police, had identified mug shots, and had been informed by the police that those who he had identified were members of a street gang with dangerous propensities. In response to this information, the defendant purchased a .38-caliber automatic pistol. On August 20, 1973, he returned from work to the Gutowsky residence at approximately 6 P.M. He testified that on the evening preceding the incident, he babysat, cleaned house, listened to music, and consumed two or three beers. After Donna Gutowsky returned from work, he fell asleep and was awakened by the pounding on the front door. He stated that Wayne ran into his bedroom, slammed the bedroom door, and told him to get his gun. He testified that he heard someone pounding on the door which Wayne was holding closed. According to the defendant, he did not hear any person state that they were police officers or that they had a search warrant. As the pounding on his bedroom door continued, Wayne was jarred away from the door, and told the defendant to shoot his gun. The defendant fired twice, and the persons outside of the room returned the fire. According to the defendant's testimony, at that point he pulled the slide on the gun back and put one safety on the gun, which he explained has three safety positions. He asserted that he placed the gun on the dresser, and that the gun had not jammed. It was then that the defendant heard a voice stating that they were the police. He stated that in response, Wayne discontinued his effort to hold the door closed and exclaimed, "Are you really, really police?"

On cross-examination, the defendant asserted that his gun was not in his hand, but was on the dresser when Officer Combs struck him, and that he had not left his room to run toward the front door. The defendant asserted that although he had seen the gray box in the recreation room, he did not have knowledge of its contents. Further, he denied possession or ownership of the items. He testified that he had seen the orange container, the sawed-off shotgun, and the shells for the shotgun, but denied ownership or possession of these items. He admitted that he had his brother's derringer pistol in his possession and that he had approximately 5 grams of marijuana in his bedroom when the incident occurred.

Prior to the trial, the defense had submitted a motion in limine to exclude certain evidence. Specifically, the motion sought to preclude the State and all witnesses presented by the State from testimony, remarks, questions, or argument which might inform the jury of the grounds for the search warrant, any evidence of drugs or appliances connected with the use of drugs found during the incident, and any evidence of firearms not found in the defendant's bedroom. The defense urged that disclosure of any of these items to the jury would be highly prejudicial, even with an instruction to disregard the testimony. The trial judge denied the defendant's motion in limine, and found the evidence admissible after considering its relevancy against its possible prejudicial effect. The trial judge agreed with the State that in view of the defendant's admission that he had fired the gun, the issue at trial would be whether his ...

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