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People v. Clark

OPINION FILED AUGUST 13, 1976.

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

v.

JAMES CLARK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES E. STRUNCK, Judge, presiding.

MR. JUSTICE BARRETT DELIVERED THE OPINION OF THE COURT:

Defendant, James Clark, appeals from convictions for aggravated assault on a peace officer, aggravated assault with a deadly weapon, armed violence, and unlawful use of a weapon. Following a jury trial and a finding by the jury of guilty on these counts, the court entered judgments on the verdicts and sentenced defendant to prison terms of 364 days on both counts of aggravated assault; 1 to 3 years on armed violence; and 3 to 9 years on unlawful use of a weapon pursuant to the enhanced penalty provision (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(b)), *fn1 with all terms running concurrently.

On appeal in this court, defendant Clark contends (1) he was deprived of a fair trial because of the prosecutor's prejudicial cross-examination; (2) the failure to conduct a bifurcated trial and the admission in evidence of a previous robbery conviction to prove unlawful use of weapons within five years of release from the penitentiary facilitated guilty verdicts on all charges and was prejudicial; (3) the convictions arose out of the same conduct and all but the unlawful use of weapons conviction should be vacated; (4) the general jury verdict of guilty of unlawful use of weapons should be attributable to the lesser misdemeanor charge rather than the felony (enhanced penalty) charge; (5) he was not proven guilty beyond a reasonable doubt.

The State's evidence revealed that on July 21, 1974, at approximately 4:45 a.m. uniformed Chicago police officers Patrick Kellam and Rochelle McClain were patrolling the vicinity of Kedzie Avenue and Central Park Avenue in a marked squad car. As they proceeded east through an alley, Joseph Dixon approached the car and told the officers that defendant Clark was around the corner armed with a pistol. The officers continued through the alley to Kedzie Avenue where they observed defendant about 150 feet north of them on the west side of the street near the doorway of the building at 1320 S. Kedzie Avenue. Defendant was pointing a handgun at a man across the street. The police immediately pulled onto Kedzie Avenue and drove to defendant's location. When defendant saw the police, he fled through a gangway. Both officers gave pursuit taking different routes. Officer McClain regained contact with defendant in an alley. At that point defendant was 15 feet from McClain and was running away. McClain shouted, "Halt, police. Drop the gun." Defendant then spun around and pointed the gun at McClain's chest. McClain responded by firing two shots, wounding defendant. Defendant then ran into an abandoned building. By this time other police officers arrived on the scene. Sgt. Frank Hughes worked his way to the front of the abandoned building and saw defendant inside. Following Hughes' command defendant came out of the building. He fell to the ground saying that he had been shot. Other officers searched the abandoned building for defendant's gun. A loaded .38 Smith and Wesson revolver was found in the building and identified at trial as the one used by defendant. Four bullets were removed from the revolver.

Joseph Dixon testified that he observed defendant point the gun at McClain.

The defense attempted to show inferentially through the testimony of the manager of the Geneva Sports Shop and Louis Carter that the weapon recovered by police was a "drop gun"; that is, one placed by police near an individual to give the impression he was armed. Carter testified that he purchased a gun from the Geneva Sports Shop 7 years earlier and that it was taken away from him by a Chicago police officer. The manager of the Geneva Sports Shop testified that the serial number of the weapon found in the abandoned building matched the serial number of a gun sold to Louis Carter.

Defendant testified that he was standing in front of 1310 S. Kedzie, which was about 7 miles from his home, waiting for Joseph Dixon to return when he first saw the police. He admitted fleeing from police, but denied that he had a gun or that he aimed a gun at Officer McClain and denied seeking refuge in the abandoned building.

In rebuttal, conviction records were admitted into evidence showing defendant had been convicted twice for burglary and once for attempt murder. Earlier in the trial defendant's conviction for robbery had been admitted in evidence through stipulation.

OPINION

It is first argued that the prosecutor adduced evidence of other crimes to infect the trial under the pretext of impeaching defendant on cross-examination because the defense had opened such inquiry on direct examination. Defendant points to the State's line of questioning concerning whether defendant ever knew how to handle a gun or whether he ever pointed or fired a gun at a Chicago police officer. Defendant also complains of the following line of questioning which was the subject of a continuing objection that had been overruled by the trial court:

"Q. Mr. Clark, I believe my last question or last few questions prior to breaking in this matter was have you ever been shot before; is that correct?

A. Yeah.

Q. And I believe you told yes; is ...


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