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People v. Burrows

OPINION FILED OCTOBER 18, 1978.

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

v.

MICHAEL E. BURROWS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Adams County; the Hon. MAX B. STEWART, Judge, presiding.

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

On May 12, 1977, in the circuit court of Adams County, defendant Michael Burrows and James Anthony (Tony) Varner were jointly charged with the offense of armed violence. An aggravated assault committed while armed with a dangerous weapon constitutes the offense of armed violence (Ill. Rev. Stat. 1977, ch. 38, par. 33A-2). The substance of the charge against defendant and Varner was that they knowingly discharged a shotgun in the direction of Leo Altmix thereby placing him in reasonable apprehension of receiving a battery. Charges against Varner were dismissed after his death. Following a jury trial, defendant was convicted of armed violence and sentenced to 1 to 3 years' imprisonment.

On appeal defendant contends (1) the evidence was insufficient to establish that the conduct attributed to him placed Judge Altmix in reasonable apprehension of receiving a battery and (2) the prosecution improperly introduced evidence from which the jury could infer that defendant had been involved in an unrelated crime.

At trial, Leo Altmix, an associate judge for Adams County, testified that on May 11, 1977, he conducted a bench trial at which the defendant Michael Burrows was found guilty of an ordinance violation and fined $50. About 10:20 that evening, he was at home with his daughter when he heard a vehicle in front of the house. He was sitting in the living room with his back to a bay window which faced the street. The drapes were closed, but there was a light on beside his chair and in the kitchen which would "give visibility from the outside." His daughter walked from the kitchen past the front window and about 10-12 feet from the bay window, and he rose out of his chair and was "somewhat in front of the window." At that time there was a terrific crash and glass was falling making a loud noise. He testified that he was frightened and "scared stiff." He called the police and after they arrived, he saw that the outside window was shattered but the inside window was just dented. He thought that the first noise he heard was the glass crashing and could not say that he actually heard a shotgun blast.

Defendant contends that being "scared" is not the same as being in reasonable apprehension of receiving a battery. He argues that Judge Altmix did not see anyone shoot or prepare to shoot but merely heard the sound of the breaking glass; that Altmix's fear was just a startled reaction to that sound and not a response to any conduct attributed to defendant.

• 1, 2 In People v. Alexander (1976), 39 Ill. App.3d 443, 350 N.E.2d 144, the court ruled that the victim of an assault need not expressly testify that he was in reasonable apprehension of receiving a battery, but that the trier of fact could draw that inference from the testimony of the witnesses. In the instant case, Judge Altmix was in close proximity to the window when he heard a crash and the sound of breaking glass. Under those circumstances, he could reasonably fear that he might be injured by flying glass or the object or objects which broke the glass. Such an injury could constitute a battery. The jury in the instant case could properly find that Judge Altmix was in reasonable apprehension of receiving a battery.

Pat Harmon, who knew defendant and his wife, testified that on May 11 at about 9 p.m., she was at the Forum, a discotheque, when Tony Varner told her that the defendant wanted to talk to her. She went outside to the parking lot with Tony. Defendant was sitting on the passenger side of his truck and she saw a rifle or shotgun in the truck. Defendant told her that he had been to court that day and had been fined on a peace disturbance and that he was "going to do the Judge's house." He mentioned Judge Altmix's name.

Over defendant's objection, she then testified that she saw the defendant driving his Ranchero on June 16, the evening before the preliminary hearing in the instant case. He passed her once, then stopped and asked her if she knew what tomorrow was and told her "not to make any mistakes." He also told her to remember "where Varner is." She knew that Varner was dead. When she told him that she had to tell what she knew, he said that she "didn't have to tell them nothing."

• 3 At trial, defendant objected to Ms. Harmon's testimony concerning the June 16 conversation on the ground that it concerned a separate pending charge against defendant for intimidation. The trial court properly overruled the objection. Evidence of an attempt by a defendant to influence the testimony of a witness is admissible as tending to show consciousness of guilt. People v. Bloom (1938), 370 Ill. 144, 18 N.E.2d 197.

Following the testimony of Ms. Harmon, Sam Swaim, special agent with the Iowa Bureau of Criminal Investigation, testified that on May 29, 1977, he was called to investigate the death of a subject who was found in a river. The death did not appear to be from natural causes and he identified a photograph of Tony Varner as being that of the dead person. Defendant argues that Swaim's testimony concerning the circumstances surrounding the death of Tony Varner was totally unrelated to any issue in defendant's trial. He contends that Swaim's testimony gave rise to the inference that defendant was involved in some manner in Varner's death, and that such an improper insinuation is especially prejudicial in a case, such as the instant one, where the evidence of defendant's guilt is entirely circumstantial.

• 4 This issue has not been properly preserved for review. The only objection made to Swaim's testimony at trial occurred when the prosecutor asked him to describe the injuries Varner had received and defense counsel objected to the question as irrelevant. The issue was not raised in the written motion for new trial filed by defense counsel nor in defendant's pro se motion to vacate the conviction. If an objection is not made at trial and the issue is not raised in a post-trial motion, the issue is considered waived and the court need not consider that issue on appeal unless it constitutes plain error. People v. Mayberry (1976), 63 Ill.2d 1, 345 N.E.2d 97; People v. Pickett (1973), 54 Ill.2d 280, 296 N.E.2d 856.

• 5 Swaim's testimony was relevant and had probative value to further explain the nature of defendant's threat to Ms. Harmon. The testimony itself was very limited. Closing arguments were not included in the record on appeal, but defendant does not contend that the prosecutor made improper or inflammatory use of this evidence. We do not consider the presentation of this evidence to have been plain error.

Accordingly, we ...


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