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People v. Cowen

OPINION FILED JANUARY 19, 1979.

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

v.

RICHARD COWEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.

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

In a bench trial, defendant was convicted of murder and sentenced to a term of 14 to 42 years. On appeal, he contends that (1) the court committed reversible error by allowing an 11-year-old witness to testify without first conducting a competency hearing; and (2) his conviction was not established beyond a reasonable doubt and should be reduced to either of the lesser-included offenses of voluntary manslaughter or involuntary manslaughter and his sentence modified accordingly.

Tyre Bias, age 11, testified that he was in a vacant lot behind the building in which he lived when he observed three boys whom he believed to be about 17 years old attempting to break into several cars, including his father's and defendant's; that he ran into his grandmother's building and telephoned his father and then ran to the second floor where, upon looking out of the window, he saw defendant on the third-floor fire escape with a gun; that when defendant hollered something to the boys, two of them ran away but the third stayed by the side of the car owned by defendant; that defendant fired once, and he saw the boy fall; that he did not see any of the three boys throw anything at defendant or shoot at him; and that after the police arrived, he saw a screwdriver in the deceased's hand.

Officer Charles Harris testified that he responded to a radio call of a man shot at 5924 Halsted; that after a short conversation with people in the area, he went to the third floor of the building at that address looking for an individual named Richard; and that he knocked on the door and was admitted by defendant, who stated his name was not Richard. Nevertheless, the officer placed him under arrest and, after advising him of his constitutional rights, asked whether he wanted to make a statement. Defendant responded that he had fired a shotgun at some boys who were tampering with his car downstairs and that the shotgun was in the apartment of Victor Jones, where he had taken it after the shooting. Defendant telephoned Jones who, when he brought the loaded shotgun to the police officers, said that when defendant gave him the shotgun he (defendant) indicated that he might have shot someone.

Officer Thomas Ptak testified to a conversation with defendant at the police station after advising him of his constitutional rights. Defendant told him his neighbor, Victor Jones, had come to his apartment and told him that someone had been tampering with the cars in the back of the building; that he walked out onto the fire escape on the third floor landing and shouted to the boys to get away from the car; that he then went into his apartment, got a 12-gauge shotgun, and returned to the fire escape, where he once again shouted to the boys; that one of the three fired at him and he, in return, fired the shotgun at them; that he then took the shotgun to the apartment of Victor Jones; that he told Jones he thought he had shot someone and asked him to hide the shotgun because the police would probably be asking questions.

Subsequently, Officer Ptak was present during a conversation between an assistant State's Attorney (Michael Epton) and defendant, wherein Epton advised defendant of his constitutional rights and, when Epton then asked what had happened, defendant related the same story he had told earlier but stated that he fired at the deceased as the latter was walking away from the car.

Officer Ptak also testified he later returned to the vicinity of the shooting and searched for indications of a shot being fired from the location of the car, but he was not able to find any.

It was stipulated that, if called, a coroner's pathologist would testify the cause of death of Robert Love, age 14, was shotgun pellet wounds of the head, shoulder and neck.

Victor Jones testified that he received a telephone call from his son, Tyre Bias, and went to the back of the building but did not see anyone there; that he knocked on defendant's door and told him someone might be breaking into his car; and that shortly thereafter he heard a sound which he thought might have been a backfire.

Defendant testified that after Victor Jones knocked on his door, he grabbed a gun and went out on the fire escape; that he saw three boys standing around his car and yelled for them to leave the car alone; that one of them threw something which did not strike him; and that a shot was then fired at him and he took his gun out to scare them away; that two of the boys ran down the alley and the third, who remained behind, had something in his hand but he could not tell whether it was a gun. In his direct testimony, defendant said that he fired the gun after the shot had been fired at him but, on another occasion, said he fired after two of the boys ran away. Then, on cross-examination, he stated that after the shot was fired at him, he picked up his gun, knocked the safety off, and pulled the trigger before the two boys ran away.

Defendant testified that he believed he was telling the officer the truth when he denied doing the shooting, because he did not know that he had hit anyone. He also denied telling Jones that he had shot someone. He testified the assistant State's Attorney was the first person to advise him of his constitutional rights, and he denied having seen Officer Ptak prior to trial.

Five persons testified to defendant's good reputation in the community.

Michael Epton, called in rebuttal, testified that he had interviewed defendant in the presence of Officer Ptak and that defendant told him he previously had been advised of his constitutional rights by police officers. Officer Charles Harris testified in rebuttal that when he knocked on the door and asked whether defendant's name was Richard, the latter replied negatively; and that he advised defendant of his ...


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