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People v. Bingham

OPINION FILED JULY 27, 1979.

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

v.

LONNIE C. BINGHAM, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SAUL A. EPTON, Judge, presiding.

MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 7, 1979.

After a bench trial, defendant was convicted of attempt murder (Ill. Rev. Stat. 1971, ch. 38, pars. 8-4 and 9-1) and aggravated battery (Ill. Rev. Stat. 1971, ch. 38, par. 12-4) and sentenced to a term of not less than four years nor more than four years and one day on the attempt murder conviction. On appeal, he contends that he was not proven guilty beyond a reasonable doubt and that he was denied a fair trial as a result of numerous trial errors. We affirm in part, reverse in part.

Defendant's first contention is that he was not proven guilty beyond a reasonable doubt of attempt murder and aggravated battery. It is undisputed that sometime after 11 p.m. on August 30, 1973, defendant shot Rico Davis at close range. Since the shooting, Davis has been unable to walk. Defendant argues that the reliable evidence indicates that he shot Davis in self-defense. Alternatively, he argues that the evidence fails to show that he had the specific intent to kill.

Defendant testified that he was shooting craps with Davis on the night in question. He said that prior to that night he had overheard a conversation between Davis' brother and sister-in-law in which Davis was described as a "bad kid," but, nevertheless, he was shooting craps with Davis because he was not afraid of him. At about 11 p.m., Davis accused him of cheating in the game. When Davis began picking up some money which belonged to defendant, he asked Davis to give the money to him. Davis refused and told him that all he was going to get was an "ass kicking." Davis continued to pick up the money, stood up, and then "went to go in his right pocket." Defendant then shot Davis with a gun which he had earlier purchased for his girl friend. When he fired the gun, Davis was about three feet away from him. He said he fired the gun to scare Davis because he thought that Davis was going for a gun. Although Davis had never pulled a gun on him before and although he had not seen Davis with a gun during the evening, he said that he had seen Davis with a gun at some prior time.

Emma Mae Harper, defendant's girl friend and the mother-in-law of one of Davis' brothers, testified that Davis had a reputation for being a violent person and that defendant had a reputation for being peaceful. Two other witnesses also testified that defendant had a reputation for being peaceful.

The State offered testimony from five occurrence witnesses, including Davis, and a brother, two friends, and a neighbor of Davis. They generally testified that although Davis had been making side bets during the craps game, he never placed any bets with defendant. One of them admitted, however, giving the police a statement in which he stated that Davis was betting with defendant. Sometime after 11 p.m., defendant told Davis that he owed him five dollars on a bet. Davis refused to pay the money and said that he had no bet with defendant. Davis then turned to leave. Shortly, someone called out his name and, as he turned around, defendant shot him in the right front shoulder. Davis testified that he could not remember where his hands were at this point, but that he probably had some money in his hands. Others testified that he had his hands up in the air, either before or after he turned, and that he had money in his hands. After the shooting, defendant and others ran from the scene. None of the witnesses testified that they had seen Davis with a gun or any weapon during the evening.

Defendant claims that this testimony creates a reasonable doubt of his guilt because the defense testimony was very plausible, authentic sounding, and convincing while the State's testimony was not very reliable because of its "evasive" character. In particular, he points out that there were discrepancies in the State's witnesses' testimony as to whether Davis raised his hands just before he was shot. He notes that several of the witnesses offered testimony which indicates that it would have been difficult for them to witness the events preceding the shooting. Further, he points to inconsistencies in their testimony as to specific events occurring earlier in the evening. We reject this claim.

• 1-4 The issue of self-defense in this case was an issue for the trier of fact. (People v. Campbell (1978), 57 Ill. App.3d 456, 373 N.E.2d 506.) In light of the absence of testimony that Davis was carrying a gun and the rather speculative nature of even Davis' alleged movement to his right pocket, we cannot say that the trial court erred in rejecting defendant's theory of self-defense. Moreover, we believe that any discrepancies, difficulties in observation, and inconsistencies evident in the State's witnesses' testimony were matters of credibility, and thus, were properly matters within the special purview of the trial court. (People v. Akis (1976), 63 Ill.2d 296, 347 N.E.2d 733.) On the record before us, we believe that there was sufficient evidence to convict defendant beyond a reasonable doubt.

• 5 We also reject defendant's alternate argument that the evidence fails to show that he had a specific intent to kill. Specific intent may be inferred from the character of the assault and the accompanying circumstances. (People v. Thorns (1978), 62 Ill. App.3d 1028, 379 N.E.2d 641; People v. Woods (1978), 62 Ill. App.3d 381, 378 N.E.2d 1271.) The undisputed evidence indicates that defendant shot Davis in the right front shoulder at extremely close range. Although defendant testified that he was shooting the gun only to scare Davis, the trial court need not have accepted this testimony. (See Thorns.) The trial court refused to believe the defendant and we see no reason to overturn that decision.

Defendant next contends that the trial court erred when it permitted two unlisted State eyewitnesses to testify without giving him adequate opportunity to prepare. Just prior to opening statements, the court allowed the State to amend its list of witnesses to include the names of two occurrence witnesses and further informed the defendant that he would have all the time he needed to interview the new witnesses. After opening statements, defendant was given at least two hours and 20 minutes to interview the new witnesses. When the trial recommenced, defense counsel stated that he was surprised by some of the information which he heard during the interviews. He asked the court for a continuance after the State had concluded its case so that he might re-examine some of the old witnesses in light of the statements of the new witnesses. The court denied the request for a continuance.

• 6 The decision to allow unlisted witnesses to testify at trial is within the sound discretion of the trial court, and that decision will not be reversed absent some showing of surprise or prejudice. (People v. Raby (1968), 40 Ill.2d 392, 240 N.E.2d 595.) Defense counsel explained to the court that he was surprised by some of the interview statements of the two new witnesses because their statements were substantially at variance with discovery information which he had previously received. Yet, despite this alleged substantial variance, the trial testimony of the two new witnesses did not significantly differ from the trial testimony of the State's other occurrence witnesses. The only difference in the new witnesses' testimony was that they said that Davis had his hands up before the shooting. This testimony was not critical. Absent any evidence that Davis was carrying a gun on the night of the shooting, the meaning of any movement prior to the shooting was merely speculative. The cases cited by the defendant in support of his position (People v. Lott (1977), 66 Ill.2d 290, 362 N.E.2d 312; People v. Millan (1977), 47 Ill. App.3d 296, 361 N.E.2d 823) are distinguishable on grounds that they involve critical testimony by surprise witnesses. Moreover, we believe it significant that although defense counsel claimed surprise at the statements of the two new witnesses, he did not impeach these witnesses with any of the discovery information which he claimed differed from their statements.

• 7 We also believe that the trial court did not err when it refused defendant's request for a continuance. As already noted, defendant was given at least two hours and 20 minutes to interview the new witnesses. This time allotment was sufficient to explore the potential testimony which proved to be largely cumulative. We believe that in light of the largely cumulative nature of this "new" testimony, there was no need to re-examine the older witnesses. Additionally, we note that defendant had three years to investigate these older witnesses and we find that to be sufficient time to fully explore their testimony.

Defendant contends that he was denied a fair trial when the trial court ruled that the State was not obligated to furnish him with the criminal conviction records of the State's witnesses. After the court denied the motion for a continuance, defendant renewed his request that the State furnish "rap sheets" on all of the State's witnesses. The State said it did not order rap sheets on any of the ...


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