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People v. Burdine

OPINION FILED FEBRUARY 17, 1978.

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

v.

ANDREW BURDINE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 21, 1978.

After a jury trial, defendants were found guilty of attempt murder, armed robbery, and aggravated battery. Judgments were entered merging the aggravated battery and attempt murder convictions, and each defendant was sentenced to 60-100 years. The appeals of the defendants were consolidated for review, and they jointly contend that the jury was erroneously instructed regarding the elements of attempt murder; that they were not proved guilty of attempt murder beyond a reasonable doubt; and that prosecutorial misconduct concerning certain police reports denied them a fair trial. Additionally, Burdine contends that the trial court erred in sending certain photographs, not admitted in evidence, to the jury. Smalley also separately contends that his sentence was excessive and that he was denied a fair trial (a) because of the admission of evidence of prior criminal activity; and (b) because the prosecutor's closing argument vouched for the credibility of State's witnesses.

It appears that the Checker Taxi Co. received a request for a cab by a person identifying himself as "Berdeen." Willie McDougle, a Checker driver, was told to respond and arrived at the address given shortly before 5 a.m. Two men, whom he identified as defendants, entered the cab, and when their announced designation was reached Smalley paid the fare, using a special push-through cup because a protective shield between the front and back seats was closed, preventing direct contact. After McDougle used the cup to deliver the change, Smalley (who had left the cab) opened the right front door and announced a holdup. He then slid the protective shield to an open position through which Burdine aimed a sawed-off shotgun at McDougle and threatened to blow his head off. He was told to drive his cab into a nearby alley, where on demand he gave up the cab money and some of his own. At this point, Smalley searched and took more money from him, after which he demanded his gun. When McDougle said he had no gun, Smalley struck him with his fist and, on several occasions thereafter, Burdine hit him on the side of his head with the shotgun, causing some of his teeth to chip. Smalley then stripped him of his clothing and Burdine walked him away from the cab towards a garage, where he told him not to turn around. He did turn, however, and saw Burdine fire the gun at him. Defendants fled immediately, but McDougle, who had been shot in the left thigh, managed to crawl back to his cab where he sounded his horn. The police arrived within 25-30 minutes and transported him to the hospital, where later his left leg was amputated above the knee.

Police officers who arrived at the scene testified that the victim had a gaping wound in his left thigh, through which they could see bone and muscle and from which there was considerable blood.

Dr. Flaherty, the surgeon who operated on McDougle, testified that the shotgun blast had blown away considerable muscle tissue in the area of the four- to five-inch wound; that the popliteal and femoral veins, the femoral artery and the sciatic nerve had been severed; that it was difficult to examine the wound, as it filled with blood whenever the pressure bandage was removed; and that during the operation, the leg had to be clamped above and below the knee to control bleeding. During the attempt to repair his leg, McDougle went into shock twice and, eventually, the decision to amputate was made.

OPINION

Defendants first contend that the trial court erroneously instructed the jury regarding the elements of attempt murder. Initially, we note that defendants' failure to object to the attempt murder instructions is a waiver of their right to raise the question on review (People v. Hines (1964), 30 Ill.2d 152, 195 N.E.2d 712); however, as provided in Supreme Court Rule 451(c) (Ill. Rev. Stat. 1973, ch. 110A, par. 451(c)), we believe that the interests of justice require its review here.

The pertinent instructions were as follows:

"A person commits the crime of attempt who, with intent to commit the crime of murder, does any act which constitutes a substantial step toward the commission of the crime of murder." (Illinois Pattern Jury Instructions, Criminal, No. 6.05 (1968) (hereinafter cited as IPI Criminal).) *fn1

"A person commits the crime of murder who kills an individual if, in performing the acts which cause the death,

he intends to kill or do great bodily harm to that individual; or he knows that such acts will cause death to that individual; or he knows that such acts create a strong probability of death or great bodily harm to that individual * * *." (IPI Criminal No. 7.01 (emphasis added).)

"To sustain the charge of attempt, the State must prove the following propositions:

First: That the defendant performed an act which constituted a substantial step toward the commission of the crime of Murder; and

Second: That the defendant did so with intent to commit the crime of Murder.

If you find from your consideration of all the evidence that each of these propositions has been proved beyond a reasonable doubt, then you should find the defendant guilty.

If, on the other hand, you find from your consideration of all the evidence that any of these propositions has not been proved beyond a reasonable doubt, then you should find the defendant not guilty." IPI Criminal No. 6.07.

It is defendants' position that it was error not to delete the underlined phrase in No. 7.01, because it permitted the jury to return a verdict of guilty of attempt murder on an intent only to do great bodily harm.

• 1 Ordinarily, the trial court has no obligation to instruct on its own motion; however, in criminal cases, due process places such a burden on the court regarding the elements of the crime charged. (People v. Parks (1976), 65 Ill.2d 132, 357 N.E.2d 487; People v. Lewis (1969), 112 Ill. App.2d 1, 250 N.E.2d 812.) Moreover, where the crime charged is attempt, the court must not only relate the elements of attempt itself but also of the specific offense allegedly attempted. People v. Viser (1975), 62 Ill.2d 568, 343 N.E.2d 903; People v. Koshiol (1970), 45 Ill.2d 573, 262 N.E.2d 446, cert. denied (1971), 401 U.S. 978, 28 L.Ed.2d 329, 91 S.Ct. 1209; People v. Davis (1966), 74 Ill. App.2d 450, 221 N.E.2d 63.

However, "[w]hen the language of an instruction is inaccurate, and, standing alone, might have misled the jury, others in the series may explain it, remove the error or render it harmless." People v. ...


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