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People v. Wilbourn





APPEAL from the Circuit Court of Cook County; the Hon. ALBERT PORTER, Judge, presiding.


Defendant was convicted for the murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) of Clarence Johnson and for an aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12-4) committed against Kenneth Harper. He was sentenced to serve a term of 18 to 40 years for the murder, and 1 to 10 years for the aggravated battery, the sentences to run concurrently. He appeals from these convictions, raising three issues for our consideration: (1) whether the trial court erred in denying defendant's motion for a mistrial following an emotional outburst by the mother of the murder victim; (2) whether certain remarks made by the prosecuting attorney during his closing argument were so prejudicial as to deny defendant a fair trial; and (3) whether the corpus delicti for the crime of murder was proved beyond a reasonable doubt.

The facts, stated briefly, are these: Between 10 and 10:30 p.m., on July 6, 1973, Edward, Kenneth, and Velma Harper, Clarence Johnson, and a number of other members of the Harper family were seated on the front porch of the Harper residence at 1315 S. Avers Street, in Chicago. A group of individuals, including defendant and his co-defendant, Thomas McClinton, *fn1 approached and engaged in a conversation with Kenneth Harper. McClinton accused Harper of "jump[ing] on his little brother and Peaches." Defendant, who was known in the neighborhood by the nickname, "Peaches," said he would be right back. The group then departed.

A few minutes later, defendant and McClinton returned to a location across the street from the Harper residence. Defendant, armed with a shotgun, began to fire in the direction of the porch where the Harpers and Clarence Johnson were sitting. Johnson was shot in the forehead. He died five days later. Kenneth Harper was struck in the right arm by a shotgun pellet.


Defendant argues, without citation of any authority, that the trial court erred in denying his motion for a mistrial following an emotional outburst by the decedent's mother during the testimony of Kenneth Harper. The ourburst occurred as the witness, testifying on behalf of the State, related the circumstances of the shooting of the decedent. The outburst was described as a loud, piercing scream. The jury was promptly removed from the courtroom. Decedent's mother was removed from the courtroom before the jury returned, and the court admonished the jury to disregard the outburst.

In People v. Herbert (1935), 361 Ill. 64, 196 N.E. 821, the trial proceedings were interrupted as the defendant testified that he did not know the decedent. Decedent's widow screamed that Herbert was a liar. Such an incident is certainly much more prejudicial than that which occurred in the case at bar, and yet the supreme court held that it was not reversible error for the court to deny Herbert's motion for a mistrial.

• 1 Our review of the record indicates that there was little possibility that the jury was prejudiced by the outburst. Throughout the trial, defense counsel did not contest the fact that Clarence Johnson was brutally murdered. The defense was simply that the defendant was not there. The trial court noted for the record "that the mother of the deceased gave one scream and immediately * * * I excused the jury * * *." The scream by decedent's mother, who did not testify, did not in any way reflect on defendant's culpability for the murder. There is nothing in the record to indicate the jury was aware of the identity of the mother. Both the jury and decedent's mother were promptly removed from the courtroom. The trial judge acted promptly and effectively to thwart any prejudice to either party. The court was within its discretion to deny defendant's motion for a mistrial. (See People v. Spagnola (1st Dist. 1970), 123 Ill. App.2d 171, 187-88, 260 N.E.2d 20.) We find no prejudice to the defendant.


Defendant contends that certain remarks made by the state's attorney during his closing argument to the jury were improper and so prejudicial as to deny defendant a fair trial. The first statement complained of is:

"[B]ear with me, ladies and gentlemen, because we have something at stake and what we have at stake is that people cannot even sit on their own front porch without getting shot and killed, and that is what is at stake here, so bear with me, please."

• 2 Defendant maintains that the import of this statement is that the jury should consider the problem of crime in Chicago in determining his guilt and that the passions of the jury were inflamed. Defendant's attorney, however, did not object to the statement. Ordinarily, the defendant's failure to object at trial constitutes a waiver of any error on review. (See People v. Bailey (1st Dist. 1966), 76 Ill. App.2d 310, 321, 222 N.E.2d 268.) In any event, in our opinion, these remarks do not constitute reversible error. People v. Bailey, which also involved alleged error in the closing argument, is dispositive of this issue.

Secondly, defendant complains that during his closing argument, the state's attorney picked up a piece of paper which had not been admitted into evidence and waved it in front of the jury, indicating that it was the note which had accompanied the decedent's body from the hospital to the morgue and which had listed the cause of his death as cardiac arrest. Defendant maintains that this was prejudicial because it inferred to the jury that whatever information the note contained was unfavorable to defendant and deliberately withheld from evidence.

• 3 We fail to see any prejudice to the defendant from this conduct. This is apparent from the context in which the act occurred. At that portion of his closing argument, the record shows the state's attorney was attempting to demonstrate the weakness of the defendant's attack on the testimony of Dr. Tai An, a forensic pathologist from the Cook County Coroner's Office, as to the cause of death (Dr. An's testimony is discussed in more detail in Part III of this opinion). He was attempting to show that the defendants expected the jury to disregard the testimony of a forensic pathologist that the cause of death was a gunshot wound to the head and to believe instead an unsigned note from the hospital listing the cause of death as cardiac arrest. We note that there is testimony in the record regarding the contents of the note, and that a portion of this testimony was elicited on cross-examination of Dr. An by counsel for the defendant. Furthermore, it is undisputed that the paper used by the prosecutor in his argument was not the note, that an objection was raised by counsel for the defendant and sustained by the court, and that the court admonished the jury to consider only the evidence which was presented from the witness stand. Defendant has cited no authority to this court, nor has our own research revealed any authority, that such conduct is reversible error. ...

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