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People v. Smith

OPINION FILED JULY 2, 1979.

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

v.

ORVILLE SMITH ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Du Page County; the Hon. EDWIN DOUGLAS, Judge, presiding.

MR. JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:

Rehearing denied August 8, 1979.

The defendant Laures Smith was convicted of the offenses of reckless conduct and obstructing justice, and the defendant Orville Smith was convicted of the offenses of perjury and obstructing justice, in a consolidated jury trial. Each defendant received two concurrent sentences of two years probation. Both appeal, contending that they were deprived of a fair trial and that they were not proven guilty of the respective charges beyond a reasonable doubt.

The charged offenses arose out of incidents which occurred on May 1, 1976, as the outgrowth of previously unfriendly relations between the defendants and their neighbors, Mr. & Mrs. Baur. The Baurs had previously filed a complaint as to sanitary conditions at the Smith home with County Health officers; and earlier on the same day of May 1 had filed a complaint involving an alleged assault on the Baur daughter by a guest of the Smiths.

There was testimony that at approximately 7:30 p.m. on May 1, 1976, while Mr. Baur was seated on a rider tractor mowing his lawn, Mrs. Smith motioned for him to come over to the fence which divided their properties but he "waved her off." Baur testified that Mrs. Smith "screamed" an obscene epithet at him, then entered her house. Shortly thereafter Baur testified that he heard what he characterized as "hysterical screaming" by Mrs. Smith's son and daughter, who had emerged from the front door of the Smith residence, but he continued to drive his tractor. Shortly after this, he observed Mrs. Smith on the back porch of her residence and then heard two shots. He said he saw Mrs. Smith on the porch prior to the shots and when he looked, after the shots, he saw that she was on the porch with both hands on the handle of a gun or possibly one on the handle and the other on her wrist. He was momentarily shocked, then jumped off the tractor and ran towards his home. The police were called and said that they found Mr. Baur, who suffered from hypertension, very pale, perspiring and upset.

An officer, informed by Mrs. Baur that Mrs. Smith had shot her husband, then went to the Smith residence where other police had arrived. Deputy Simpson testified that Mrs. Smith ordered him to leave her property and became very belligerent, that he then placed her under arrest, advised her of her rights and removed her to the rear of his squad car. He said that Mrs. Smith at this point made a derogatory comment using an obscene epithet about the police. He requested her permission to search her premises and after some further discussion she consented.

Although a number of guns were found at the residence none had been recently fired. One of the officers testified that Mrs. Smith told him that some children had been playing in the yard with firecrackers and that she had heard a firecracker explode. She also told him that "she hits what she shoots at because she is a Kentucky woman."

Shortly after the search an officer spoke with Orville Smith over the telephone and asked him if he owned a .38 snub-nosed gun. The officer testified that Smith replied that he did and stated that he would return home immediately and find the gun. He again indicated he would find the gun when he returned home, but before he began his search he had a conversation with his wife. After this conversation he told the officer that he did not have the .38 snub-nosed gun in the house but rather it was "out of state."

Don Saccomonto, 14 years old, testified that he was a frequent visitor at the Smith residence and that he was in the kitchen at about 7:30 p.m. on the evening of the incident. He stated that he heard Mrs. Smith shouting at Mr. Baur; that after Mrs. Smith entered the house she immediately went to her bedroom. He was talking to the Smith daughter, Bonnie, in the kitchen and she followed her mother toward the bedroom. Saccomonto testified that she returned to the kitchen area and told him "my mother is getting a gun." He said he then entered the hallway area and saw Mrs. Smith holding a gun in one hand and loading it with the other; saw her leave her bedroom, walk through the hallway and kitchen and onto the back porch, run to the front of the house and exit to the front lawn; and at this time he heard two shots fired. On cross-examination Saccomonto testified that after hearing the shots he heard Mr. Baur say "Go ahead, shoot me." He said that shortly thereafter he asked Bonnie if she knew where the gun that had been used had been placed but that she said she wasn't going to tell him. He said that later Debbie Howery, a friend of the Smith children, told Saccomonto that the gun was in a pocket in a coat which was hanging on a door in Mrs. Smith's bedroom. He sought to retrieve the gun from that place but found no gun there.

There was further testimony that shortly after the police arrived at the Smith residence Mrs. Smith asked her daughter Bonnie to go to a store to purchase cigarettes and that Bonnie left with her friend Darlene Howery. Darlene Howery testified that after they had walked a couple of blocks from the Smith residence Bonnie removed a hand gun from her stocking; the two girls then began to hit the gun with a rock endeavoring to destroy it but thereafter Bonnie picked it up again and continued walking. After a short while Bonnie stopped and with the assistance of Darlene dug a hole and buried the gun.

Mrs. Smith testified that when she drove into her driveway on the evening of the day in question she informed Baur that she was going to sue him and that he became very insulting whereupon she challenged him to leave his mower and come over into the Smith driveway and repeat his comments. She said she then entered her house through the back door and found her daughter Bonnie and Don Saccomonto there. At that time she heard her daughter tell her that the police had arrived. She thought this was connected with the supposed assault on Mrs. Baur's daughter by Saccomonto and Bonnie. She denied she shouted obscene epithets at the police. She also testified that her husband does own a .38 snub-nosed hand gun but that it had been in Kentucky since about two years before the incident of May 1, 1976.

Bonnie Smith corroborated Darlene Howery's testimony regarding their attempt to destroy the weapon but testified that neither her mother nor her father suggested to her that she remove the gun or told her to hit it or destroy it. Rather she said that the plan to hide the gun originated with Don Saccomonto. She also denied that she had told Saccomonto that her mother was getting a gun and said she never saw her holding a gun on the day in question.

Mr. Smith also testified that he stated on the day in question that he did not have a .38 snub-nosed gun in his possession, that he owned such a gun but that it was with his family in Kentucky and had been so for two or three years. He identified the gun which was retrieved from the place where Bonnie and Darlene had hidden it as a .22-caliber weapon. He admitted on cross-examination that ...


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