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People v. Mikel

OPINION FILED JUNE 18, 1979.

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

v.

WAYNE S. MIKEL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Vermilion County; the Hon. RALPH S. PEARMAN, Judge, presiding.

MR. JUSTICE GREEN DELIVERED THE OPINION OF THE COURT:

A multicount information was filed in the circuit court of Vermilion County, charging defendant Wayne S. Mikel and co-defendant Charles W. Seaton with the murder of Anvil Nelson and the aggravated assault of Gary Patton and Tyrone Grant. The two defendants were tried separately. After trial by jury, defendant Mikel was convicted of murder and the two aggravated assaults and was sentenced to concurrent terms of imprisonment of 40 to 100 years for murder and 360 days for each aggravated assault. He appeals his conviction of the second aggravated battery charge and his murder conviction and sentence.

Defendant first contends that the evidence presented at trial was insufficient to prove his guilt of either the murder or second aggravated battery charges. We disagree.

At trial, several witnesses testified that sometime after 11 p.m. on November 19, 1977, a pickup truck containing two young white males stopped at the corner of Jackson and Van Buren near the Modest Tavern in Danville. Several of the witnesses identified a truck belonging to co-defendant Seaton as being the same or similar to the pickup truck they saw on that night and two of the witnesses identified defendant as the passenger in the truck.

Several witnesses testified that the passenger in the truck exchanged racial insults with a group of black men and women standing near the corner. The passenger then fired a rifle out of the truck's window, narrowly missing one of the black men. This action was the basis for defendant's conviction for the aggravated assault of Gary Patton. On appeal, defendant does not contend that the evidence was insufficient to support this conviction.

Further evidence indicated that this truck then proceeded east on Van Buren and turned north on Washington Street. One or two minutes later, the witnesses heard more shots coming from that direction.

One witness testified that he passed the pickup truck on Van Buren, circled the block in his car to try to get behind the truck to get its license number, saw the same truck stopped at the intersection of Washington and North near the Corner Inn and heard what sounded like two shots. He then followed the truck for several blocks but stopped because he was afraid that the occupants would know he was following them.

Two witnesses who were in a parking lot across the street from the Corner Inn testified to hearing three shots and seeing a black man, who was walking near the Corner Inn, stagger after the second shot and fall after the third shot. One of these witnesses saw a pickup truck at the intersection of Washington and North, about 5-7 feet from the man who was shot. He testified that the shots were coming from the side of the truck closest to the Corner Inn.

Both defendant and co-defendant Seaton testified that they were in the area on the night of the murder about the time that the killing occurred and that defendant who was a passenger in Seaton's truck was shooting Seaton's rifle out the truck window. Both testified that they then left Danville and went to the Klondike Tavern in Westville. Defendant's sister-in-law at the time of trial testified that soon after defendant arrived at the Klondike, he told her that he had shot somebody.

A bullet was found by a police officer on the floor of the hospital morgue near the body of the deceased, during or shortly after the body was undressed. That bullet was identified as having been fired from the rifle used by the defendant on the night in question. Evidence also showed that the defendant and co-defendant tried to destroy the co-defendant's rifle by burning the stock and grinding the barrel and then throwing the barrel into a lake.

Defendant testified that after he and Seaton left a tavern on Main Street, they drove north on Washington and he fired the gun once or twice out of the window on the passenger side toward a parking lot. Both defendant and Seaton testified that they continued north on Washington and while the truck was stopped at the intersection of Washington and North, defendant fired the gun twice, shooting past Seaton out the window on the driver's side. Defendant testified that he was shooting at some trash cans in an alley and that as they pulled away, Seaton looked back and said that he saw a man walking down the sidewalk there. Defendant stated that at that time, he did not know he had shot someone.

Tyrone Grant, the victim of the second aggravated assault, testified that at about 11:45 p.m. on November 19 at the intersection of Main and Gilbert in Danville, a pickup truck pulled up behind his car on Gilbert (which was also Route 1), followed him for awhile, and then pulled up next to him at a stoplight. His description of the truck and the passenger were very similar to those given by witnesses to the earlier events, and several days later, he identified the truck owned by co-defendant Seaton as the truck he saw that night. While they waited for the light to change, the passenger in the truck kept looking at Grant, and raised his right hand in a clenched fist and pointed down at Grant with his thumb. After the light changed the truck got in front of his car and when he tried to pass, it repeatedly cut him off. He then saw the window on the passenger side rolling down and saw the passenger pointing a gun out the window at him. He ducked and turned his car toward an exit. As he did so, he heard a sound like a firecracker. When he returned to Route 1, he saw the truck three cars ahead of him. He did not try to pass the truck again but followed it to the stoplight in Westville where the truck turned off Route 1. After this incident, there was a hole completely through the door on the driver's side of his car, and the police officer to whom he reported the incident the following morning found a bullet inside the car between the door and the rear seat. Several days later, Mr. Grant viewed a photographic lineup and identified a picture of the truck's passenger. However, at trial, he was unable to identify the defendant as the person whose picture he selected.

• 1 Defendant contends that where an eyewitness to a crime can remember many details of the incident but cannot identify the defendant as the guilty party, guilt has not been established beyond a reasonable doubt and a conviction must be reversed. Defendant cites no authority for this contention, and it is not a proper statement of the law. The failure of a victim to make an in-court identification does not preclude the defendant's conviction for that crime. Such an identification is not essential where other circumstances link the accused to the crime. In People v. Mullen (1976), 43 Ill. App.3d 311, 356 N.E.2d 1337, this court affirmed a defendant's convictions for kidnapping and armed robbery, even though the armed robbery victim could not make a positive identification of the defendant. Other testimony by that victim linked the robber with the kidnapping and the defendant was positively identified at trial as the kidnapper.

• 2 Likewise, in the instant case, Grant's description of the truck and its passenger was substantially similar to the descriptions given by other witnesses who had observed co-defendant Seaton's truck and its passenger not more than 30 minutes earlier. Two of those witnesses positively identified defendant at trial as the truck's passenger and Grant identified Seaton's truck as the one involved in the incident. Defendant's testimony and that of Seaton placed them in the general area of the incident involving Grant at about the time of the occurrence. These circumstances link defendant to the aggravated ...


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